[Cite as State v. Baughman, 2010-Ohio-4951.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-10-34
v.
JESSICA BAUGHMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2009 0055
Judgment Affirmed
Date of Decision: October 12, 2010
APPEARANCES:
Eric J. Allen for Appellant
Jana E. Emerick for Appellee
Case No. 1-10-34
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Jessica Baughman (“Baughman”) brings this
appeal from the judgment of the Court of Common Pleas of Allen County denying
her petition for post-conviction relief. For the reasons set forth below, the
judgment is affirmed.
{¶2} On February 12, 2009, the Allen County Grand Jury issued an
indictment against Baughman for one count of child endangering and one count of
obstructing justice as a result of the death of her son. A bench trial was held on
June 29, 2009, and the trial court found Baughman guilty of both counts. The trial
court then sentenced Baughman to a total prison term of eight years. On July 21,
2009, Baughman filed an appeal of that judgment. This court affirmed the
judgment of the trial court on March 29, 2010.
{¶3} On February 22, 2010, Baughman filed a petition for post-conviction
relief. This petition was overruled without a hearing on April 7, 2010. Baughman
appeals from that judgment and raises the following assignments of error.
First Assignment of Error
The trial court erred in finding that defense counsel provided
effective assistance to [Baughman] under the Sixth Amendment
to the United States Constitution made applicable to the states
by the Fourteenth Amendment.
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Second Assignment of Error
The trial court erred in denying the post-conviction petition
without holding an evidentiary hearing.
{¶4} Baughman argues in the first assignment of error that she was
denied effective assistance of counsel because her counsel failed to investigate,
prepare and present the defense of duress. “Reversal of convictions on ineffective
assistance requires the defendant to show ‘first that counsel’s performance was
deficient and, second that the deficient performance prejudice the defense so as to
deprive the defendant of a fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002-
Ohio-3751, ¶105, 772 N.E.2d 81. The defendant must show that there was a
reasonable probability that but for counsel’s error, the result of the trial would
have been different. Id. at ¶108.
{¶5} Duress is an affirmative defense and as such, Baughman would
have the burden of proving the defense. State v. Cross (1979), 58 Ohio St.2d 482,
391 N.E.2d 319. Baughman would have to prove that the force which compelled
the criminal contact was 1) an immediate and imminent threat of serious bodily
harm, 2) present throughout the time period of the crime, and 3) could not
reasonably be avoided. Id. Fear of future harm is not sufficient to prove the
affirmative defense of duress. State v. Good (1960), 110 Ohio App. 415, 165
N.E.2d 28.
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{¶6} In order for Baughman’s counsel to be ineffective, she would need
to show that had counsel presented the defense, the outcome of the trial would
have likely been different. Baughman argues that since counsel only met with her
four times, failed to discuss the psychological evaluation with her, and failed to
discuss trial strategy with her, counsel was ineffective. She claims that had
counsel investigated, counsel would have discovered her prior history of
attempted suicides, bad relationships and depression and would have concluded
that Baughman’s actions were the result of extreme fear of Jacob Jones (“Jones”).
However, a review of the record indicates that a defense of duress was not
supported by the facts of the case. Jones beat her child over a period of a week
and left him unconscious without medical treatment for more than a day.
Baughman did not seek medical treatment for a long period of time. When the
police arrived to investigate the call to St. Rita’s Medical Center concerning an
unconscious child, Baughman lied to them as to what happened. Baughman went
with the paramedics to the hospital and repeatedly lied when questioned about
what happened to the child. It was not until the child was at the hospital and the
police confronted her with the injuries to the child that she finally admitted what
Jones had done. She also admitted that the acts occurred in her presence, that she
did nothing to stop him, and she did not actively seek medical help for her son.
Baughman does not claim that Jones threatened her with serious bodily injury or
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that she was unable to contact the police or a doctor for help. Thus, her claim of
duress would not have been supported by the facts. Baughman’s counsel was not
ineffective for failing to present the defense as it would not have changed the
outcome of the trial.
{¶7} Additionally, the claim of ineffective assistance of counsel could
have been raised on direct appeal, but was not. Thus, it is barred by the doctrine
of res judicata.
Under the doctrine of res judicata, a final judgment of
conviction bars the convicted defendant 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 which resulted in that judgment of conviction or on an
appeal from that judgment. As stated in 18 American
Jurisprudence 2d 505, Section 33:
‘Just as the petitioner’s knowledge, at the time of trial, or the
error of fact relied upon, or his fault in not discovering such
error previously, will bar relief under a common-law writ of
error coram nobis, such factors will also bar a comparable
statutory (postconviction) remedy.’
State v. Perry (1967), 10 Ohio St.2d 175, 180-81, 226 N.E.2d 104. This doctrine
includes all issues that were either raised or could have been raised on direct
appeal. Grava v. Parkman (1995), 73 Ohio St.3d 379, 653 N.E.2d 226. The
alleged errors that Baughman claims all arose from the trial and should have been
raised on the direct appeal. A review of the record indicates that Baughman had
different trial and appellate counsel. Thus there is no reason that the alleged
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ineffective assistance of counsel could not have been raised. Since the claim of
ineffective assistance of counsel was not previously raised, it cannot be raised in a
petition for post-conviction relief. For these reasons, the first assignment of error
is overruled.
{¶8} In the second assignment of error, Baughman alleges that the trial
court erred in denying her petition for post-conviction relief without holding an
evidentiary hearing. Before the trial court holds a hearing on a petition for post-
conviction relief, the court must first determine if there are substantive grounds
for the relief. R.C. 2953.21(C). The trial court is to consider the petition,
supporting affidavits, documentary evidence, and all files and records pertaining
to the proceedings. Id. If the trial court finds no basis for the hearing, it can
dismiss the petition and make findings of fact and conclusions of law regarding
the dismissal. Id. In addition, no hearing is required for claims barred by the
doctrine of res judicata. State v. Maag, 3d Dist. No. 5-08-35, 2009-Ohio-90, ¶15.
A review of the record in this case reveals that the trial court considered the
substantive grounds of the claim. The trial court then made findings of fact and
conclusions of law indicating that no prejudicial error occurred and that the claim
of ineffective assistance of counsel was barred by the doctrine of res judicata.
Since these findings are supported by the record, the trial court did not err in
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denying a hearing on the petition for post-conviction relief. The second
assignment of error is overruled.
{¶9} Having found no error prejudicial to Baughman, the judgment of the
Court of Common Pleas of Allen County is affirmed.
Judgment Affirmed
ROGERS, J., concurs.
PRESTON, J., concurs in Judgment Only.
/jlr
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