State v. Griffin

[Cite as State v. Griffin, 2016-Ohio-2988.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 14CA010680
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PATRICK W. GRIFFIN COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 10CR080110
DECISION AND JOURNAL ENTRY
Dated: May 16, 2016
WHITMORE, Judge.
{¶1} Appellant Patrick Griffin appeals from a decision of the Lorain County Court of
Common Pleas denying his petition for postconviction relief. We affirm.
I
{¶2} Police discovered the body of Alberto Gutierrez in a ditch on Thanksgiving
morning in 2009. The police soon identified Griffin as a person of interest. Griffin lived across
the hall from Gutierrez in the same apartment complex and his cell phone number was the last
number dialed on the victim’s cell phone. The police discovered that Griffin lied about his
whereabouts around the time of the murder and that his cell phone and car were in the
approximate vicinity of the murder scene near Gutierrez’s estimated time of death. Forensic
testing uncovered gunshot residue on a glove in Griffin's car as well as primer residue in his car
and on the cuff of his jacket.
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{¶3} A grand jury indicted Griffin on counts of aggravated murder, murder, felony
murder, felonious assault, and having weapons under disability. All of the counts also contained
an attendant firearm specification. Four of the counts contained repeat violent offender
specifications.
{¶4} The matter proceeded to a jury trial. Griffin was represented by counsel at trial.
The jury found Griffin guilty on all counts. The trial court imposed a sentence of 43 years to life
in prison.
{¶5} Griffin filed a direct appeal to this Court. He was represented by new counsel on
appeal. We affirmed Griffin’s conviction. State v. Griffin, 9th Dist. Lorain No. 11CA010128,
2013-Ohio-416.
{¶6} Griffin filed a pro se petition for postconviction relief in the trial court. The trial
court denied the petition without an evidentiary hearing. Griffin appeals. He asserts three
assignments of error for our review. We consider his assignments of error together for ease of
analysis.
II
Assignment of Error One
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
HELD THAT GRIFFIN PRESENTED NO RELIABLE EVIDENCE TO
SUPPORT A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
Assignment of Error Two
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
HELD THAT GRIFFIN’S TRIAL COUNSEL PERFORMED EFFECTIVE
ASSISTANCE OF COUNSEL.
Assignment of Error Three
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT
GRANTING APPELLANT-GRIFFIN AN EVIDENTIARY HEARING.
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{¶7} In his assignments of error, Griffin argues that the trial court erred and abused its
discretion (1) in denying his petition for postconviction relief asserting ineffective assistance of
counsel and (2) in ruling on the petition without first holding an evidentiary hearing. We
disagree.
{¶8} An appellate court reviews a trial court’s denial of a petition for postconviction
relief without a hearing under an abuse of discretion standard. State v. Houser, 9th Dist. Summit
No. 21555, 2003-Ohio-6811, ¶ 12. An appellate court will not substitute its judgment for that of
the court of common pleas unless the trial court’s decision was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶9} Griffin’s petition for postconviction relief contained seven grounds for relief,
including a claim of ineffective assistance of counsel. Regarding Griffin’s claim for ineffective
assistance, the trial court found that Griffin “presented no evidence, other than his own personal
statements, that was not available to him prior to the jury trial.” The court held that Griffin’s
ineffective assistance claim was barred by res judicata because Griffin could have argued it on
direct appeal. The trial court also held in the alternative that, even if the court were to fully
consider Griffin’s argument, he “presented no reliable evidence” to support his allegation of
ineffective assistance of counsel.
{¶10} On appeal Griffin argues that the trial court erred in applying the doctrine of res
judicata to his ineffective assistance of counsel claim. He also argues that he provided reliable
evidence to support his claim.
{¶11} Griffin asserts that his trial counsel was ineffective because he failed to prepare
for trial, did not properly investigate, and neglected to present “exculpatory evidence” and
“known credible witnesses.” Specifically, he contends that his counsel: (1) did not call a private
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investigator who had worked on the matter to testify; (2) did not retain or call to the stand a cell
phone expert regarding the location of his cell phone on the night of the murder; and (3) did not
call to the stand a witness who lived close to the location where the body was found. Griffin
claims also that the prosecutor and police presented false testimony at trial, although it is unclear
whether and how Griffin intends for this allegation to form part of his ineffective assistance of
counsel claim. Griffin asserts that he was entitled to a hearing on his petition for postconviction
relief.
{¶12} “Under the doctrine of res judicata¸ a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack of due process
that was raised or could have been raised by the defendant at the trial * * * or on [direct appeal].”
State v. Szefcyk, 77 Ohio St. 3d 93 (1996), syllabus. “It is well-settled that, ‘pursuant to res
judicata, a defendant cannot raise an issue in a [petition] for postconviction relief if he or she
could have raised the issue on direct appeal.’” (Alteration sic.) State v. Phillips, 9th Dist.
Summit No. 20692, 2002 WL 274637, *3 (Feb. 27, 2002), quoting State v. Reynolds, 79 Ohio
St.3d 158, 161 (1997). Accordingly, to avoid preclusion by res judicata, a petitioner must
produce new evidence that would make the judgment void or voidable, and must also
demonstrate that he could not have appealed the claim based upon information contained in the
original record. Phillips at *3. When the issue of competent trial counsel could have been
determined on direct appeal without resort to evidence outside of the record, res judicata is a
proper basis to dismiss a petition for postconviction relief. State v. Cole, 2 Ohio St. 3d 112
(1982), syllabus, State v. Lentz, 70 Ohio St. 3d 527, 530 (1994).
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{¶13} Griffin has not presented any new evidence to support his ineffective assistance of
counsel claim. His claim instead depends on evidence drawn from the trial court record or
evidence that was available to him at the time of trial. Griffin attached to his petition a lab report
that was submitted into evidence. He also attached excerpts from police reports that were
included in discovery and thus were made part of the record. Questions that Griffin wanted his
trial counsel to ask were marked as an exhibit by the trial court for purposes of appeal.
Moreover, Griffin’s claim that the prosecutor and police presented false testimony at trial
depends on testimony in the trial record. In addition, the investigator report Griffin submitted
with his petition was available to Griffin at the time of trial and at the time of his direct appeal.
Although not a part of the trial record, this evidence does not defeat the doctrine of res judicata
because it does not meet the “’threshold standard of cogency’” necessary to overcome the
doctrine. State v. Dovala, 9th Dist. Lorain No. 08CA009455, 2009-Ohio-1420, ¶ 10, quoting
State v. Stallings, 9th Dist. Summit No. 19620, 2000 WL 422423, *1 (Apr. 19, 2000). Griffin
does not make any cogent argument, nor is it apparent from the report itself, why this evidence
“demonstrate[s] that the claims advanced in the petition could not have been fairly determined on
direct appeal based on the original trial court record.” Stallings at *1. Further, Griffin’s affidavit
composed of general conclusory statements without any supporting evidence is insufficient to
constitute new evidence that would bar application of the res judicata doctrine. See State v.
Shirey, 9th Dist. Summit No. 20930, 2002-Ohio-4151, ¶ 16. Accordingly, Griffin attempts to
advance arguments that he could have raised on direct appeal. As such, res judicata was a
proper basis for the trial court to dismiss Griffin’s petition for postconviction relief. See Dovala
at ¶ 13; State v. Keenan, 9th Dist. Summit No. 20633, 2002 WL 57999, *2 (Jan. 16, 2002).
6
{¶14} Contrary to his position, Griffin was not entitled to a hearing prior to the dismissal
of his petition on res judicata grounds. Res judicata is a proper basis upon which to dismiss a
petition for postconviction relief without a hearing. Cole at 113; Shirey at ¶ 16.
{¶15} We find that the trial court properly dismissed Griffin’s petition for
postconviction relief without a hearing on the basis of res judicata. Accordingly, we need not
examine whether Griffin presented reliable evidence in support of his claim of ineffective
assistance of counsel. Because the trial court did not abuse its discretion in dismissing Griffin’s
petition for postconviction relief as barred by res judicata, Griffin’s assignments of error are
overruled.
III
{¶16} Griffin’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
PATRICK W. GRIFFIN, pro se, Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.