State v. Evans

[Cite as State v. Evans, 2012-Ohio-1120.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 11CA0020-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOSEPH R. EVANS COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 08-CR-0536
DECISION AND JOURNAL ENTRY
Dated: March 19, 2012
CARR, Judge.
{¶1} Appellant, Joseph Evans, appeals the order of the Medina County Court of
Common Pleas denying his petition for post-conviction relief. This Court dismisses the appeal
as it is not taken from a final, appealable order.
I.
{¶2} On December 3, 2008, the Medina County Grand Jury indicted Evans on three
counts of rape of a minor under the age of thirteen in violation of R.C. 2907.02(A)(1)(b), felonies
of the first degree, and one count of pandering obscenity of a minor in violation of R.C.
2907.321(A)(5), a felony of the fourth degree. The alleged victim of the aforementioned
offenses was Evans’ daughter, M.E. Evans pleaded not guilty to the charges at his arraignment.
On June 29, 2009, Evans withdrew his plea of not guilty and entered a plea of no contest to the
pandering obscenity charge. The remaining three counts were tried to a jury. The jury
subsequently found Evans guilty of two counts of rape of a minor under the age of thirteen and
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one count of the lesser-included offense of gross sexual imposition, in violation of R.C. 2907.05.
Evans was sentenced to consecutive terms on all four counts, totaling twenty-two and a half
years in prison. The sentencing entry was journalized on July 31, 2009.
{¶3} Evans filed a direct appeal to this Court. On appeal, Evans argued that trial
counsel provided ineffective assistance of counsel; that his convictions were not supported by
sufficient evidence and were against the manifest weight of the evidence; and that the trial court
erred in imposing consecutive prison sentences. On August 2, 2010, this Court affirmed the trial
court’s judgment. State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545.
{¶4} On July 28, 2010, while his direct appeal was still pending, Evans filed a pro se
petition for post-conviction relief pursuant to R.C. 2953.21. The trial court appointed counsel to
represent Evans on July 29, 2010. Evans supplemented his petition on September 23, 2010, and
October 14, 2010. A hearing was held on Evans’ petition over the course of three days on
October 15, 2010, December 17, 2010, and January 21, 2011. The trial court issued a journal
entry denying the petition on January 26, 2011.
{¶5} On February 25, 2011, Evans filed his notice of appeal. On appeal, Evans raises
two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO
MAKE AND FILE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF
LAW, AS REQUIRED UNDER R.C. 2959.21(G), WHERE THE TRIAL
COURT DID NOT FIND GROUNDS FOR RELIEF AND DENIED THE
DEFENDANT’S PETITION FOR POSTCONVICTION RELIEF.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
DEFENDANT’S PETITION FOR POSTCONVICTION RELIEF WHERE
TRIAL COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE
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ASSISTANCE BY (1) FAILING TO LOCATE AND SUBPOENA AN
ESSENTIAL DEFENSE WITNESS OR TO USE THE INFORMATION
PROVIDE[D] BY THAT DEFENSE WITNESS TO IMPEACH THE ALLEGED
VICTIM AND HER MOTHER ON CROSS-EXAMINATION AT TRIAL; AND
(2) FAILING TO ADVISE DEFENDANT OF A PLEA BARGAIN OFFER
MADE BY THE STATE PRIOR TO TRIAL.
{¶6} In his first assignment of error, Evans argues that the trial court did not make the
required findings of fact and conclusions of law in denying his petition for post-conviction relief.
In his second assignment of error, Evans argues that the trial court erred in denying his petition
for post-conviction relief. We dismiss the appeal as the trial court’s journal entry does not
constitute a final, appealable order.
{¶7} R.C. 2953.21(G) states, “If the court does not find grounds for granting relief, it
shall make and file findings of fact and conclusions of law and shall enter judgment denying
relief on the petition.” “[T]he general purpose of R.C. 2953.21 is to provide judicial review of
the allegations raised in a prisoner’s petition, in order to provide a remedy for violation of
constitutional rights.” State v. Lester, 41 Ohio St. 2d 51, 56 (1975). The Supreme Court of Ohio
has articulated the following policy considerations in discussing the requirement that a trial court
make findings in denying a petition for post-conviction relief:
The obvious reasons for requiring findings are “*** to apprise petitioner of the
grounds for the judgment of the trial court and enable the appellate courts to
properly determine appeals in such cause.” Jones v. State, 8 Ohio St. 2d 21, 22
(1966). The existence of findings and conclusions are essential in order to
prosecute an appeal. Without them, a petitioner knows no more than [that] he lost
and hence is effectively precluded from making a reasoned appeal. In addition,
the failure of a trial judge to make the requisite findings prevents any meaningful
judicial review, for it is the findings and the conclusions which an appellate court
reviews for error.
State v. Mapson, 1 Ohio St. 3d 217, 219 (1982).
{¶8} This Court has noted that “by squarely addressing [the] constitutional claim, the
trial court’s order constituted adequate findings of fact and conclusions of law.” State v. Fischer,
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9th Dist. No. 18204, 1997 WL 537661, *2, fn.2 (August 20, 1997). A judgment entry filed
without findings of fact and conclusions of law is not a final, appealable order. State v. Beard,
9th Dist. No. 07CA009240, 2008-Ohio-3722, ¶ 2, citing Mapson, 1 Ohio St. 3d at 218. This
Court’s position that a trial court’s failure to make the statutorily required findings renders the
order non-final rests upon our interpretation of Mapson. The controversy in Mapson arose when
a trial court dismissed a petition for post-conviction relief without making findings of fact and
conclusions of law. More than two months after the trial court’s entry was journalized, the
petitioner filed a notice of appeal. The Court of Appeals dismissed the appeal on the basis that it
was not timely filed. Seven months after the trial court’s order dismissing the petition was filed,
the trial court issued findings of fact and conclusions of law in support of its decision. The
Supreme Court granted the petitioner’s motion for leave to appeal. The Supreme Court held that
“R.C. 2953.21 mandates that a judgment denying post-conviction relief include findings of fact
and conclusions of law, and that a judgment entry filed without such findings is incomplete and
it thus does not commence the running of the time period for filing an appeal therefrom.” Id. at
218. While the Mapson decision contains language suggesting that the court implicitly agreed
with prior cases stating that a trial court’s failure to make the statutorily required findings was
prejudicial error, the court’s ultimate holding was that the court of appeals was incorrect in
concluding that the trial court’s dismissal order which lacked the statutorily required findings
commenced the running of the time period to perfect a timely appeal. Id. at 220. Thus, an order
which “does not include such statutorily mandated findings is incomplete and does not constitute
a final appealable order.” State v. Hickman, 9th Dist. No. 22279, 2005-Ohio-472, at ¶ 8, citing
Mapson, 1 Ohio St. 3d at 218.
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{¶9} Turning to the instant matter, Evans filed his pro se petition on July 28, 2010.
After counsel was appointed, Evans supplemented his petition on September 23, 2010. In
support of his petition, Evans set forth two separate arguments relating to the performance of
trial counsel. First, Evans argued that trial counsel was ineffective for failing to call an essential
witness who had knowledge that the victim, M.E., had recanted on her allegations against Evans
prior to trial. Evans also argued that trial counsel was ineffective for failing to inform him of a
plea offer from the State made prior to the commencement of trial. Attached to the September
23, 2010 supplement were the affidavits of Evans’ wife, Nicole; Evans’ father, Alan; and the
man who allegedly had knowledge of M.E.’s recantation, Joshua Pettitt. Evans further
supplemented his petition on October 14, 2010, in order to submit his own affidavit, as well as
the affidavit of Randy Bodosi, a close personal friend of Evans.
{¶10} The hearing on the petition was set to go forward on October 15, 2010, at which
time Evans’ attorney and the prosecutor appeared in the trial court. The parties promptly agreed
to continue the hearing and no substantive issues were addressed. On November 16, 2010, the
trial court issued a journal entry indicating that the hearing scheduled for November 19, 2010,
had been continued to December 17, 2010, at the request of the State. The parties again
appeared in the trial court on December 17, 2010. At the outset of the hearing, counsel for Evans
stated, “The last time we were here in November, November 19th of 2010, we had our witness
Josh Pettitt here. He was subpoenaed at that time and had remained in contact with us. He is not
here today.” A review of the hearing transcript reveals that Evans presented the testimony of
Zsusanna Danielson, his mother, as well as Alan Evans, and Nicole Evans on December 17,
2010. The testimony at the hearing covered a range of issues, including both arguments Evans
made in support of his petition. Pettitt was again unavailable to testify when the parties appeared
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before the trial court on January 21, 2011. Evans, however, did testify on his own behalf on the
final day of the hearing.
{¶11} The trial court denied the petition on January 26, 2011. The trial court’s journal
entry denying the petition contained the following analysis:
This hearing was originally scheduled for August 20, 2010, but was continued by
the defense to September 24, 2010. The hearing for September 24, 2010 was
continued by the defense in order to find a witness, Josh Petit (sic). The hearing
was continued to November 19, 2010.
That hearing was rescheduled to December 17, 2010 when testimony was heard.
The defense asked for a continuance in order to find Josh Petit (sic) again which
was granted. On January 21, 2011, the witness did not appear again.
After hearing the testimony of the witnesses, the Court hereby finds that the
defendant presented no evidence which convinced the Court that [trial counsel]
was ineffective. Further, the defendant presented no witness that the victim
recanted her testimony. The motion is denied.
The trial court’s judgment entry did not sufficiently apprise Evans of the basis for the denial of
his petition. As noted above, the purpose of requiring the trial court to include findings of fact
and conclusions of law in its judgment entry is to sufficiently apprise both the petitioner and the
potential appellate court of the grounds for its decision. Mapson, 1 Ohio St. 3d at 219. While the
trial court appears to have discussed both issues Evans raised in support of his petition at the
conclusion of the hearing on January 21, 2011, it did not squarely address both issues in its
judgment entry denying the petition. The trial court did not discuss the nature of the evidence
presented at the hearing and make findings of fact, nor did it make conclusions of law. As the
trial court did not sufficiently apprise Evans of the reasons why the petition for post-conviction
relief was denied, the trial court’s journal entry does not constitute a final, appealable order. See
Hickman at ¶ 8.
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III.
{¶12} The trial court’s journal entry in this case is not a final, appealable order. The
appeal is dismissed.
Appeal dismissed.
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.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶13} I concur in judgment out of deference to our precedent. However, if I were
writing without regard to stare decisis, I would conclude that the judgment in this case is final
and appealable. Although we have previously interpreted State v. Mapson, 1 Ohio St. 3d 217
(1982), as requiring this Court to dismiss appeals from denials of post-conviction relief which
fail to include findings of fact and conclusions of law, see, e.g., State v. Beard, 9th Dist. No.
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07CA009240, 2008-Ohio-3722, ¶ 2, I do not reach the same conclusion. There is language in
both Mapson and State v. Lester, 41 Ohio St. 2d 51(1975), that supports the conclusion that the
failure of a trial court to include findings of fact and conclusions of law is prejudicial error, and
not a jurisdictional defect. Mapson at 219 (noting that the Court has implicitly agreed with cases
holding “that the failure of a trial judge to make the required findings is prejudicial error[]”);
Lester at 56 (concluding it was error when “the [trial] court did not make and file findings of fact
and conclusions of law * * * []”).
MOORE, J.
CONCURRING IN JUDGMENT ONLY.
{¶14} I concur in judgment for the reasons expressed in Judge Belfance’s opinion.
APPEARANCES:
JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.