State v. Scofield

[Cite as State v. Scofield, 2021-Ohio-569.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2020 CA 00025
DAVID SCOFIELD
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County Court of
Common Pleas, Case No. 16 CR 475
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 1, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT THOMAS C. LOEPP, CO., LPA
Fairfield County Prosecuting Attorney 3580 Darrow Road
Stow, Ohio 44224
MARK A. BALAZIK
Assistant Prosecuting Attorney
239 East Main Street, Suite #101
Lancaster, Ohio 43130
Fairfield County, Case No. 2020 CA 00025 2
Hoffman, J.
{¶1} Defendant-appellant David Scofield appeals the judgment entered by the
Fairfield County Common Pleas Court dismissing his petition for post-conviction relief
(hereinafter “PCR”) without a hearing. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} The facts of this case as set forth in our opinion on Appellant’s direct appeal
are as follows:
{¶3} On November 4, 2016, shortly before 1:00 a.m., Pickerington Police Officer
Mercedes Gavins was on patrol near Hill Road North when she observed the driver of a
maroon Saturn, later identified as Appellant, weaving within his lane. As she followed, the
vehicle drifted left of center, crossing the double yellow lane marking. Gavins notified
dispatch she was going to initiate a traffic stop, and provided a description and plate
number for the Saturn.
{¶4} Gavins activated the overhead lights on her cruiser signaling Appellant to
pull over. Instead of immediately doing so, Appellant slammed on his brakes, nearly
causing Gavins to collide with the back end of the Saturn. Appellant continued a bit further
before pulling over on Diley Road. Diley Road is two lanes in each direction with a
concrete median, raised curbs, and no shoulder. Before Gavins got out of her cruiser,
dispatch advised the Saturn was registered to 85-year-old Dorothy Scofield.
{¶5} As Gavins approached the vehicle, she could see Appellant was the only
occupant. Appellant was moving about the cabin area, at one point ducking below the
front seat. Appellant had the window rolled hallway down as she approached. Gavins
advised Appellant the reasons for the stop were a marked lanes violation and his abrupt
stop. Appellant explained he was weaving due to his operation of the car's radio. Gavins
Fairfield County, Case No. 2020 CA 00025 3
asked Appellant for his license and proof of insurance. Appellant told Gavins his license
was in his pocket, but made no move to retrieve it. Gavins asked Appellant for his license
three times before he finally gave it to her. Gavins also had to ask Appellant for his proof
of insurance three times before he finally gave it to her. In spite of Appellant's odd
behavior, Gavins did not detect any signs of intoxication. She took his license and proof
of insurance back to her cruiser, intending to issue a citation for the lanes of travel
violation and send Appellant on his way.
{¶6} Once in her cruiser, Gavins relayed Appellant's information to dispatch.
Dispatch advised Appellant had two arrest warrants in Akron and an extensive criminal
history including impersonating an officer, obstruction, and resisting arrest. Gavins was
further cautioned Appellant may be armed. Akron confirmed both warrants with dispatch.
Gavins requested backup and Officer Smith arrived to assist.
{¶7} Gavins and Smith approached Appellant's car together and asked him to
step out of the vehicle so they could place him under arrest on the warrants. Appellant
responded the warrants were “bogus,” denied he had any warrant for his arrest, and
further advised the officers he was a law enforcement officer with 20 years experience.
Appellant refused to get out of the car. The officers again asked Appellant to get out of
the car. He again refused and locked his doors. When Gavins reached in to unlock the
door, Appellant slapped her hand away and rolled up the window, nearly catching Gavin's
fingers. The officers pulled out batons and advised Appellant he could either get out of
the car voluntarily or they would break the car window and remove him from the car. As
Smith counted down from three, Appellant opened the door and got out. He was cuffed
and placed in Gavins's cruiser without incident. Additional officers and Appellant's
Fairfield County, Case No. 2020 CA 00025 4
girlfriend, who had been driving her car ahead of Appellant, arrived on the scene shortly
thereafter.
{¶8} Because Gavins's dash camera was not functioning, the time between
Gavin pulling Appellant over and Appellant's arrest was unclear. According to Gavins's
testimony at the suppression hearing, it was mere minutes. At 1:27 a.m., dispatch
indicated Akron would not extradite Appellant, but three minutes later dispatch indicated
Akron had changed its stance and would extradite.
{¶9} Due to Appellant's arrest, the fact the Saturn was impeding traffic, and
because the record owner of the Saturn lived 40 minutes away, Gavins called for a tow
truck to impound the vehicle. In the meantime, officers conducted an inventory search of
the car. During the search officers discovered a loaded Glock 23 handgun under the front
seat and a polymer knife in a compartment below the steering wheel. Officers further
discovered a police scanner below the dash tuned to the officer's frequency. Additional
polymer knives, a SBR AR-15 automatic rifle with two magazines, additional assorted
magazines and ammunition were discovered in the trunk of the car.
{¶10} Appellant was transported to the Pickerington Police Station where he was
provided with Miranda warnings. Appellant advised he possessed the concealed carry
and manufacturer licenses required to possess the weapons. Further investigation
revealed both licenses were void.
{¶11} Appellant was issued a citation for the marked lanes violation. Gavins
forwarded a report requesting further charges based on Appellant's possession of the
weapons to the City of Lancaster Prosecutor's Office. The Fairfield County Grand Jury
subsequently returned an indictment charging Appellant with one count of improper
Fairfield County, Case No. 2020 CA 00025 5
handling of a firearm in a motor vehicle, a felony of the fourth degree, and one count of
unlawful possession of a dangerous ordinance, a felony of the fifth degree.
{¶12} Appellant pled not guilty to the charges. On December 15, 2016, Appellant
filed a motion to suppress arguing there was insufficient probable cause to stop his vehicle
and further, any statements he made prior to receiving Miranda warnings should be
suppressed. Appellant supplemented the motion on April 10, 2017, additionally arguing
the Pickerington Police Department violated its own impound policies and procedures,
and therefore any evidence recovered as a result of the inventory search must be
suppressed.
{¶13} A hearing was held on the suppression motion on April 10, 2017. On May
9, 2017, the trial court overruled Appellant's motion with the exception of any pre-Miranda
statements.
{¶14} On January 29, 2018, Appellant entered a no contest plea to improper
handling of a firearm in a motor vehicle. The trial court found appellant guilty and
sentenced him to five years community control. The State dismissed the second count of
the indictment.
{¶15} Appellant filed an appeal to this Court from the judgment of conviction and
sentence, assigning as error, “Because the mere arrest of a motor vehicle’s operator
should not automatically trigger police impoundment of that car, a warrantless inventory
search conducted in such a scenario violates the Fourth Amendment and Section 14,
Article I of the Ohio Constitution.” This Court found the impoundment of the vehicle and
subsequent inventory search to be lawful, and affirmed. State v. Scofield, 5th Dist.
Fairfield No. 18-CA-06, 2019-Ohio-375.
Fairfield County, Case No. 2020 CA 00025 6
{¶16} On March 21, 2019, Appellant filed a PCR petition, alleging counsel was
ineffective for failing to present evidence police began the inventory search of his car prior
to receiving confirmation of the warrants from Akron. He alleged counsel failed to present
evidence of “radio chatter” via dash cam videos which would have demonstrated police
began to search his car while dispatch waited for Akron police to confirm the validity of
the warrants and to decide if they desired Pickerington police to hold Appellant for pickup.
The State filed a response on May 2, 2019, arguing Appellant failed to support his petition
with evidentiary support.
{¶17} Appellant filed a motion for leave to file an amended petition on May 2, 2019.
The amended petition was attached to his motion. Attached to the motion were three CD
discs purporting to be dash cam video from the Pickerington police. Also attached to the
motion was a timeline of unknown origin of events of the traffic stop, taken from videos
on Disc 3 of the attached discs.
{¶18} Appellant also attached his own affidavit to his petition. In his affidavit, he
averred while confined to the back of the police cruiser, he could hear radio
communication which made it clear Pickerington law enforcement could not readily verify
the status of the Akron warrant. He averred he eventually heard Pickerington state they
had confirmation of the warrant from Akron, but prior to such confirmation he observed
Pickerington police officers enter and search his car. He stated he reviewed all video
and/or audio recordings created on the night in question, and the timeline presented in
the recordings verifies police searched his car prior to confirmation of the warrants.
{¶19} As further evidentiary support for his petition, Appellant attached an affidavit
of his girlfriend, Elena LaRue. She averred before she was told about the active warrants,
Fairfield County, Case No. 2020 CA 00025 7
she heard two officers state in reference to Appellant, “We will find something to hold him
on.” Aff. LaRue, ¶5. She averred an officer told her they were waiting to verify the validity
of the warrants out of Akron, she could pick Appellant up at the Pickerington Police
Department if there was not a warrant, but if there was a warrant he would be taken to
the Fairfield County Jail. She averred while she was communicating with police, other
officers opened Appellant’s car doors and looked inside.
{¶20} The State filed a response to Appellant’s motion to file an amended PCR
petition on January 9, 2020. The trial court granted Appellant leave to file the amended
petition on March 5, 2020. The amended petition was filed on March 5, 2020, and the
State responded on March 27, 2020.
{¶21} On May 14, 2020, the trial court dismissed Appellant’s petition without a
hearing. The court found Appellant’s claims were barred by res judicata. The court further
found Appellant had not demonstrated ineffective assistance of counsel because even
considering Appellant’s newly proffered evidence, the search was lawful pursuant to the
inevitable discovery rule.
{¶22} It is from the May 14, 2020 judgment of the Fairfield County Common Pleas
Court Appellant prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING SCOFIELD’S PETITION FOR POST-CONVICTION RELIEF
WITHOUT FIRST GRANTING A HEARING AS TO SAME.
Fairfield County, Case No. 2020 CA 00025 8
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
PERMITTING THE STATE TO FILE ITS RESPONSE TO SCOFIELD’S
PETITION FOR POST-CONVICTION RELIEF.
III. SCOFIELD’S COUNSEL WAS INEFFECTIVE IN NOT SEEKING
TO STRIKE THE STATE’S UNTIMELY RESPONSE TO HIS PETITION
FOR POST-CONVICTION RELIEF.
IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
IN DENYING SCOFIELD’S PETITION FOR POST-CONVICTION RELIEF
ON THE BASIS OF RES JUDICATA.
V. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT
IN NOT TIMELY PRODUCING THE AUDIOS/VIDEOS FROM THE
EVENING OF THE ARREST OF SCOFIELD, AND IN NOT CORRECTING
THE RECORD.
VI. SCOFIELD’S COUNSEL WAS INEFFECTIVE IN NOT RAISING
PROSECUTORIAL MISCONDUCT IN THE STATE’S UNTIMELY
PRODUCTION OF THE AUDIOS/VIDEOS FROM THE EVENING OF THE
ARREST OF SCOFIELD, AND IN NOT CORRECTING THE RECORD.
VII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
IN RELYING ON THE DOCTRINE OF INEVITABLE DISCOVERY.
I., IV., VII.
{¶23} In his first, fourth, and seventh assignments of error, Appellant argues the
trial court erred in dismissing his petition without a hearing.
Fairfield County, Case No. 2020 CA 00025 9
{¶24} R.C. 2953.21 governs petitions for post-conviction relief, and provides in
pertinent part:
(A)(1)(a) Any person who has been convicted of a criminal offense
or adjudicated a delinquent child and who claims that 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, any person who has been convicted of a criminal offense and
sentenced to death and who claims that there was a denial or infringement
of the person's rights under either of those Constitutions that creates a
reasonable probability of an altered verdict, and any person who has been
convicted of a criminal offense that is a felony and who is an offender for
whom DNA testing that was performed under sections 2953.71 to 2953.81
of the Revised Code or under former section 2953.82 of the Revised Code
and analyzed in the context of and upon consideration of all available
admissible evidence related to the person's case as described in division
(D) of section 2953.74 of the Revised Code provided results that establish,
by clear and convincing evidence, actual innocence of that felony offense
or, if the person was sentenced to death, establish, by clear and convincing
evidence, actual innocence of the aggravating circumstance or
circumstances the person was found guilty of committing and that is or are
the basis of that sentence of death, may file a petition in the court that
imposed sentence, stating the grounds for relief relied upon, and asking the
Fairfield County, Case No. 2020 CA 00025 10
court to vacate or set aside the judgment or sentence or to grant other
appropriate relief. The petitioner may file a supporting affidavit and other
documentary evidence in support of the claim for relief.
{¶25} “In a petition for post-conviction relief, which asserts ineffective assistance
of counsel, the petitioner bears the initial burden to submit evidentiary documents
containing sufficient operative facts to demonstrate the lack of competent counsel and
that the defense was prejudiced by counsel's ineffectiveness.” State v. Jackson, 64 Ohio
St.2d 107, 413 N.E.2d 819 (1980), syllabus.
{¶26} A defendant may only seek post-conviction relief for violations of his State
and Federal Constitutional rights. Both the United States Constitution and the Ohio
Constitution provide for the right to assistance of counsel. Counsel's performance will not
be deemed ineffective unless counsel's performance is proven to have fallen below an
objective standard of reasonable representation and, in addition, prejudice arises from
counsel's performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). To show a defendant has been prejudiced by counsel's deficient
performance, the defendant must demonstrate but for counsel's errors, the result of the
trial would have been different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶27} Further, before a hearing is granted in proceedings for post-conviction relief
upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial
burden to submit evidentiary material containing sufficient operative facts which
demonstrate a substantial violation of defense counsel's essential duties to his client and
Fairfield County, Case No. 2020 CA 00025 11
prejudice arising from counsel's ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279,
289, 714 N.E.2d 905 (1999); State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980),
syllabus; see, also Strickland v. Washington, supra, 466 U.S. at 687.
{¶28} The Ohio Supreme Court has recognized, “In post-conviction cases, a trial
court has a gatekeeping role as to whether a defendant will even receive a hearing.” State
v. Gondor, 112 Ohio St.3d 377, 388, 860 N.E.2d 77, 2006–Ohio–6679, ¶ 51. A petition
for post-conviction relief does not provide a petitioner a second opportunity to litigate his
or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on
the petition. State v. Wilhelm, 5th Dist. Knox No. 05–CA–31, 2006–Ohio–2450, ¶ 10, citing
State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). As an appellate court
reviewing a trial court's decision in regard to the “gatekeeping” function in this context, we
apply an abuse-of-discretion standard. See Gondor, supra, at ¶ 52, citing State v.
Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999); accord State v. Scott, 5th Dist. Stark
No.2006CA00090, 2006–Ohio–4694, ¶ 34. In order to find an abuse of discretion, we
must determine the trial court's decision was unreasonable, arbitrary or unconscionable
and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶29} The trial court in the instant case dismissed Appellant’s petition without a
hearing for two reasons: (1) the petition was banned by res judicata, and (2) based on
the inevitable discovery rule, Appellant did not demonstrate a reasonable probability of a
change in the outcome had counsel presented evidence police searched the car prior to
confirmation of the Akron warrant.
Fairfield County, Case No. 2020 CA 00025 12
{¶30} At the outset, we note the discs attached to Appellant’s petition containing
what purports to be Pickerington Police Department dash cam video from the stop, as
well as the timeline of the stop, bear no authentication. There are no accompanying
affidavits averring where the discs came from, nor is there any indication who prepared
the timeline from the videos on the discs.
{¶31} “Evid.R. 901(A) requires, as a condition precedent to the admissibility of
evidence, a showing that the matter in question is what it purports to be.” State v.
Simmons, 2nd Dist. Montgomery No. 24009, 2011-Ohio-2068, 2011 WL 1646819, ¶ 12.
{¶32} The threshold standard for authenticating evidence is low. State v. Wiley,
2d Dist. Darke No. 2011 CA 8, 2012-Ohio-512, 2012 WL 443977, ¶ 11. The most
commonly used method is testimony that a matter is what it is claimed to be under Evid.R.
901(B)(1). State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, 2013 WL
6576714, ¶ 30.
{¶33} Appellant’s affidavit states as follows:
4. While I was confined in the back of the cruiser, I could hear radio
communication coming from the cruiser audio system.
5. I could hear Pickerington law enforcement officials discussing the
warrant situation.
6. It was clear from this communication that the Pickerington Police
Department could not readily verify the warrant status from Akron.
7. I eventually heard Pickerington confirm that they had confirmation
of the warrant.
Fairfield County, Case No. 2020 CA 00025 13
8. Prior to that confirmation, I was able to observe from the back of
the cruiser the Pickerington police officers enter and search my car.
9. I reviewed all video and/or audio recordings created on the night
in question.
10. The timeline presented in the recordings verify that the
Pickerington Police Department entered and searched my car prior to
verification of the Akron warrant. The video confirms my observations.
{¶34} Scofield Aff., ¶¶4-10.
{¶35} Assuming arguendo Appellant’s affidavit is sufficient to authenticate the
videos of the stop and the prepared timeline, nothing in the video or the affidavits
contradicts Gavins’s testimony she learned about the existence of the Akron warrants
prior to removing Appellant from his vehicle and placing him in the back of the police
cruiser. Rather, the radio chatter indicates Pickerington police were waiting for direct
communication from Akron to confirm the existence of the warrants which Gavins became
aware of upon checking Appellant’s driver’s license, and were waiting to determine if
Akron wanted to pick up Appellant on the warrants.
{¶36} The dash cam videos with the accompanying background radio chatter, the
affidavit of Elena LaRue, and Appellant’s affidavit demonstrate police began to remove
items, specifically a gun, from Appellant’s vehicle prior to confirmation by Akron police of
the existence of the warrant, and while awaiting a decision from Akron as to if they would
pick Appellant up. However, we find the trial judge did not err in finding the evidence
Fairfield County, Case No. 2020 CA 00025 14
would have been inevitably discovered during an inventory search subsequent to
Appellant’s arrest for obstructing official business, or his arrest on the Akron warrants.
{¶37} The inevitable-discovery rule allows the admission of illegally obtained
evidence where “it is established that the evidence would have been ultimately or
inevitably discovered during the course of a lawful investigation.” State v. Perkins, 18
Ohio St.3d 193, 480 N.E.2d 763, syllabus (1985). Although Appellant was not ultimately
charged with obstructing official business or resisting arrest, in his supplemental motion
to suppress, he set forth the facts as follows:
After checking defendant’s information, the officer discovered that
the defendant had a warrant out of Akron. Once backup arrived, the officer
approached the vehicle a second time and defendant was asked to exit his
vehicle. Defendant did not comply with the request by law enforcement and
attempted to inform the officers that he was outside of the pickup radius for
his Akron warrant. Eventually, defendant was removed from the vehicle,
handcuffed and placed in the back of the cruiser. Later, dispatch radioed
that Mr. Scofield was not going to be held on his Akron warrant. The officers
and radio dispatch then relayed that Mr. Scofield was being arrested for
obstructing official business/resisting arrest and would be held in Fairfield
County jail. At this point in time, dispatch was informed that Akron would
come down to pick him up from the jail on their warrant.
While the Akron warrant issues were being resolved, several officers
had arrived on the scene and they decided to conduct a search of the
Fairfield County, Case No. 2020 CA 00025 15
vehicle. According to the officer’s narrative, during the administrative
search, several pieces of evidence were located, including a handgun under
the driver’s seat. Another firearm was located in the trunk of the vehicle.
{¶38} Defendant’s Supplemental Motion to Suppress, April 10, 2017.
{¶39} After a discussion of the Pickerington police impoundment policy,
Appellant’s motion states, “Defendant was arrested for obstructing official
business/resisting arrest.” While Appellant’s recitation of the facts in his motion appears
to have been taken from the “officer’s narrative” of the stop which is not a part of the
record before this Court, the dash cam video attached to Appellant’s PCR petition also
demonstrates after initially being informed by dispatch Akron did not want Appellant to be
held for pickup on the warrant, an officer can be heard saying to dispatch, “We’re going
to have our own charges.” Defendant’s Ex. C, at 21:11. In her affidavit, Elena LaRue
stated an officer told her they were waiting to verify the validity of the warrants out of
Akron, and she could pick Appellant up at the Pickerington Police Department if there
was not a warrant, but if there was a warrant he would be taken to the Fairfield County
Jail. Thus, it is clear from the record Appellant was not going to be released from the
scene regardless of the status of the Akron warrant. He would either be arrested on local
charges or taken to the jail to await pickup by Akron. Therefore, the car would have been
impounded and inventoried regardless of the status of the Akron warrant. This Court
previously upheld the validity of the impoundment of the vehicle and the inventory search.
{¶40} In addition, ultimately Akron police decided they would pick Appellant up on
the warrant, merely three minutes after their first indication they would not pick Appellant
Fairfield County, Case No. 2020 CA 00025 16
up. Therefore, Appellant would have been held on the Akron warrants regardless of any
arrest for obstructing official business or resisting arrest, the car would have been
impounded and inventoried, and the weapons would have been discovered.
{¶41} We find the trial court did not err in finding Appellant has not demonstrated
a reasonable probability of a change in the outcome had counsel presented evidence of
the timeline of the search of the vehicle, as the evidence would have been inevitably
discovered.
{¶42} Because we have concluded the trial court correctly dismissed Appellant’s
petition without a hearing on the basis of the inevitable discovery rule, we need not
discuss the propriety of the trial court’s conclusion the petition was barred by res judicata.
{¶43} The first, fourth and seventh assignments of error are overruled.
II., III.
{¶44} In his second and third assignments of error, Appellant argues the trial court
erred in allowing the State to file a response to his first PCR petition eight months after
its filing, and erred in allowing the State to file a response to his amended petition more
than three weeks after its filing. He also argues counsel was ineffective in failing to object
to the State’s untimely filed responses.
{¶45} R.C. 2953.21(E) provides:
(E) Within ten days after the docketing of the petition, or within any
further time that the court may fix for good cause shown, the prosecuting
attorney shall respond by answer or motion. Division (A)(6) of this section
applies with respect to the prosecuting attorney's response. Within twenty
Fairfield County, Case No. 2020 CA 00025 17
days from the date the issues are raised, either party may move for
summary judgment. The right to summary judgment shall appear on the
face of the record.
{¶46} As to the State’s delayed response to Appellant’s first petition, we find the
issue is moot. The trial court did not rule on the merits of Appellant’s first petition, but
rather allowed Appellant to file an amended petition.
{¶47} Regarding Appellant’s amended petition, the State’s response was not filed
within ten days. The trial court scheduled a non-oral hearing on the petition on March 27,
2020, stating the court would consider the pending motion and all of the parties’ written
arguments on or after this date. While not expressly stated, the trial court’s entry implies
the State’s response would be due on or before March 27, 2020, the date of the non-oral
hearing.
{¶48} Appellant has not demonstrated prejudice from the trial court’s decision to
allow the State to file its response by March 27, 2020, nor has he demonstrated the result
of the proceeding would have been otherwise had counsel objected to the State’s delayed
filing. In the time period between Appellant’s first petition and his amended petition, the
record demonstrates a plethora of activity surrounding a motion to revoke Appellant’s
community control, which may have delayed consideration of the PCR petition. We also
note the State presented no evidence in response to Appellant’s petition, but merely made
legal argument in response. We found in our discussion of Appellant’s first, fourth, and
seventh assignments of error above the trial court did not err in denying Appellant’s
petition without a hearing based on the inevitable discovery doctrine. Nothing in the
Fairfield County, Case No. 2020 CA 00025 18
record suggests the trial court and this Court would not have reached the same decision
in the absence of the March 27, 2020 response filed by the State.
{¶49} Appellant’s second and third assignments of error are overruled.
V., VI.
{¶50} In his fifth and sixth assignments of error, Appellant argues the prosecutor
committed misconduct in failing to produce the dash cam videos in a timely manner, and
further his trial counsel was ineffective for failing to raise the issue of prosecutorial
misconduct.
{¶51} Appellant failed to raise this claim in his PCR petition. A party who fails to
raise an argument in the trial court waives the right to raise it on appeal. Niskanen v.
Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34, citing
State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993).
{¶52} Further, the record demonstrates Appellant’s claim he was not given the
recordings in a timely manner is without merit. On March 2, 2017, the State provided a
supplemental discovery response which indicated Appellant was given two DVDs, one of
the cruiser video from Unit 416 and one from Unit 421. DVD numbers one and two
attached to Appellant’s PCR petition reflect they were recorded from cruiser Units 416
and 421. The third DVD attached to the petition includes two video clips which appear to
have been excerpted from the dash cam videos provided in discovery.
{¶53} Therefore, it appears from the record Appellant received the videos more
than a month prior to the suppression hearing in this case.
Fairfield County, Case No. 2020 CA 00025 19
{¶54} The fifth and sixth assignments of error are overruled.
{¶55} The judgment of the Fairfield County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur