State v. Ross

[Cite as State v. Ross, 2014-Ohio-2038.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27180
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DENNY ROSS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 1999-05-1098 A
DECISION AND JOURNAL ENTRY
Dated: May 14, 2014
WHITMORE, Judge.
{¶1} Defendant-Appellant, Denny Ross, appeals from the judgment of the Summit
County Court of Common Pleas, denying his petition for post-conviction relief. This Court
affirms.
I
{¶2} In 1999, Hannah Hill was murdered. Ross was tried for her murder, but his first
trial resulted in a mistrial. Many years of litigation followed, as Ross challenged the propriety of
a retrial in both state and federal court. In 2012, the retrial finally occurred, and the jury
convicted Ross. Specifically, Ross was convicted of murder, felony murder with felonious
assault as the predicate offense, tampering with evidence, gross abuse of a corpse, and felonious
assault. The trial court sentenced Ross to 19 years to life in prison.
{¶3} On September 27, 2013, Ross filed a petition for post-conviction relief, as well as
a motion to conduct discovery on his petition. The basis for the petition was that, after the jury
2
was discharged, Ross’ father visited the “Remembering Hannah Hill” website page and saw a
picture of a woman he believed to be the jury foreperson listed as a “friend” of the website page.
Ross argued that he was entitled to a hearing on his petition as well as to discovery to determine
the date on which the foreperson had joined the website. According to Ross, the fact that the
foreperson had identified herself as a friend of the website was evidence that she was not
impartial. As such, he asked the court to vacate his convictions based on a violation of his Sixth
Amendment right to be tried by an impartial jury. The State opposed Ross’ petition, and Ross
filed a brief in reply. On November 8, 2013, the trial court denied Ross’ petition without a
hearing. The court’s decision also denied Ross’ request for discovery.
{¶4} Ross now appeals from the trial court’s denial of his petition and raises two
assignments of error for our review.
II
Assignment of Error Number One
THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT’S
POST-CONVICTION PETITION BECAUSE THE JURY FOREPERSON
EXHIBITED EXTREME AND INHERENTLY PREJUDICIAL MISCONDUCT
WHEN SHE, SHORTLY AFTER THE VERDICTS WERE RETURNED,
APPLIED TO BECOME AN INTERNET FRIEND OF THE “REMEMBERING
HANNAH HILL” INTERNET BLOG, A BLOG ASSOCIATED WITH THE
ALLEGED MURDER VICTIM, ALL IN VIOLATION OF APPELLANT’S
DUE PROCESS RIGHTS AS PROTECTED BY UNITED STATES CONST.
AMEND. VI AND OHIO CONST. ART. I § 10.
{¶5} In his first assignment of error, Ross argues that the trial court erred when it
denied his petition for post-conviction relief without first holding a hearing. We disagree.
{¶6} This Court reviews a trial court’s decision to deny a post-conviction relief petition
for an abuse of discretion. State v. Cleveland, 9th Dist. Lorain No. 08CA009406, 2009-Ohio-
397, ¶ 11, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58. Likewise, “[w]e
3
review a trial court’s decision not to hold a hearing on a petition for post-conviction relief for an
abuse of discretion.” State v. Chesrown, 9th Dist. Summit No. 26336, 2014-Ohio-680, ¶ 7. An
abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable in
its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶7} R.C. 2953.21(A)(1)(a) permits a person who has been convicted of a criminal
offense to petition the court for post-conviction relief where “there was such a denial or
infringement of the person’s rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States * * *.” If the trial court agrees, it may
“vacate or set aside the judgment or sentence or [] grant other appropriate relief.” R.C.
2953.21(A)(1)(a). The trial court serves a “gatekeeping function in the post[-]conviction relief
process.” Gondor at ¶ 52. “The gatekeeping function includes the trial ‘court’s decision
regarding the sufficiency of the facts set forth by the petitioner and the credibility of the
affidavits submitted.’” State v. Wesson, 9th Dist. Summit No. 25874, 2012-Ohio-4495, ¶ 9,
quoting Gondor at ¶ 52. “[A] trial court properly denies a defendant’s petition * * * without
holding an evidentiary hearing where the petition, the supporting affidavits, the documentary
evidence, the files, and the records do not demonstrate that petitioner set forth sufficient
operative facts to establish substantive grounds for relief.” State v. Calhoun, 86 Ohio St.3d 279(1999), paragraph two of the syllabus.
{¶8} The only item Ross submitted in support of his petition was an affidavit from his
father, Allen Ross. In his affidavit, Allen Ross averred:
2. That after the verdicts were returned in this case I scanned the internet looking
for comments posted regarding my son’s conviction. I did this shortly after the
verdicts were returned on October 5, 2012. That day was a Friday and I believe it
was the next day that I checked;
4
3. While browsing the Remembering Hannah Hill website I saw a picture of a
woman I recognized as the foreperson of my son’s jury. The publication
identified her as a person who had become a friend of a website “Remembering
Hannah Hill”;
4. The “Remembering Hannah Hill” website is and was a website dedicated to the
memory of Hannah Hill, the alleged victim of the murder for which my son was
convicted * * * .
Ross argued that the foreperson’s identification of herself “as a friend of the Hannah Hill website
calls into question her ability to sit as a disinterested juror.”
{¶9} The trial court denied Ross’ petition on the basis that it failed to set forth any
substantive evidence that juror misconduct had occurred during the trial. The court noted that
the trial was over and the jury already had been discharged at the time Allen Ross allegedly saw
the foreperson on the Remembering Hannah Hill website. The court further noted that Ross had
not included a copy of the website page with the foreperson’s picture in his petition. Because
Ross’ petition was premised upon “a mere hunch” that misconduct had occurred during the trial,
the court concluded that Ross had failed to set forth “sufficient operative facts to establish
substantive grounds for relief.”
{¶10} Having reviewed the record, we cannot conclude that the trial court abused its
discretion by denying Ross’ petition without a hearing. Ross acknowledges on appeal that his
father did not visit the website in question until after the court had accepted the jury’s verdict and
had discharged the jurors from their duties. By then, “the jurors had satisfied their official task
and were free to discuss the case.” State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, ¶ 99.
Ross did not produce any evidence that the foreperson joined the website while serving on the
jury or that she had, in fact, disregarded her oath to remain impartial during the trial. See State v.
Kiley, 9th Dist. Lorain No. 12CA010254, 2013-Ohio-634, ¶ 11 (insufficient operative facts
alleged where affidavits failed to contain evidence of the content of conversations that jurors
5
were alleged to have had about the case on their cell phones). Any suggestion that the
foreperson joined the website before the trial ended or that her membership affected her
impartiality during the trial is mere speculation. See Chesrown, 2014-Ohio-680, at ¶ 11-12
(post-conviction relief arguments rejected as mere speculation). See also State v. English, 9th
Dist. Lorain No. 99CA007408, 2000 WL 254912, *4 (Mar. 8, 2000) (“Conjecture built upon
insufficiently supported speculation does not establish substantive grounds entitling a defendant
to post[-]conviction relief.”).
{¶11} Notably, Ross’ petition did not even set forth proof that the foreperson had
actually joined the website. Ross did not include a copy of the website page showing the
foreperson and/or her name, and, in his affidavit, Allen Ross only averred that he saw a picture
of “a woman” who he “recognized as the foreperson.” The record supports the trial court’s
conclusion that Ross failed to allege “sufficient operative facts to establish substantive grounds
for relief.” Calhoun, 86 Ohio St.3d at paragraph two of the syllabus. As such, Ross’ first
assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT ERRED IN FAILING TO PERMIT APPELLANT
DISCOVERY, DENYING HIM DUE PROCESS OF LAW IN VIOLATION OF
UNITED STATES CONSTITUTION AMEND. VI.
{¶12} In his second assignment of error, Ross argues that the trial court erred by not
allowing him to conduct discovery on his post-conviction relief petition before denying it. We
disagree.
{¶13} “This Court has long held that there is no right to discovery in a post[-]conviction
proceeding.” Wesson, 2012-Ohio-4495, at ¶ 111. That is because post-conviction relief is a
civil, statutory remedy whose procedures are governed by R.C. 2953.21. State v. Craig, 9th Dist.
6
Summit No. 24580, 2010-Ohio-1169, ¶ 6. “That section does not provide for discovery.” Id.Although Ross’ brief contains a blanket statement that R.C. 2953.21 is unconstitutional, he has
failed to support that statement with any argument or citation to applicable legal authority. See
App.R. 16(A)(7). Consequently, we abide by our precedent and conclude that a post-conviction
relief petitioner is not entitled to discovery. Wesson at ¶ 111. Ross’ second assignment of error
is overruled.
III
{¶14} Ross’ assignments of error are overruled. The judgment of the Summit 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 Summit, 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
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.
7
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, J.
CONCURS.
BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶15} Based upon this Court’s long-standing precedent, I concur in the majority’s
judgment. See State v. Craig, 9th Dist. Summit No. 24580, 2010-Ohio-1169, ¶ 45-48 (Belfance,
J., concurring in judgment only).
APPEARANCES:
LAWRENCE J. WHITNEY, Attorney at Law, for Appellant.
TIMOTHY J. MCGINTY, Prosecuting Attorney, and CHRISTOPHER D. SCHROEDER and
MATTHEW E. MEYER, Assistant Prosecuting Attorneys, for Appellee.