State v. Rouse

[Cite as State v. Rouse, 2014-Ohio-483.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Respondent : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. CT2013-0043
RONALD T. ROUSE, JR. :
:
Defendant-Petitioner : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2007-0012

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 10, 2014

APPEARANCES:

For Plaintiff-Respondent For Defendant-Petitioner

D. MICHAEL HADDOX RONALD T. ROUSE, JR. PRO SE
ROBERT SMITH S.O.C.F. #549234
27 North Fifth Street Box 45699
Zanesville, OH 43701 Lucasville, OH 45699
[Cite as State v. Rouse, 2014-Ohio-483.]

Gwin, J.

{¶1} Defendant-appellant Ronald T. Rouse, Jr., appeals the July 31, 2013

Judgment Entry of the Muskingum County Court of Common Pleas overruling his

petition for post conviction relief filed pursuant to R.C. 2953.21. Plaintiff-appellee is the

State of Ohio.

Facts and Procedural History

Zanesville Municipal Court Case No. 06CRB00319

{¶2} On February 27, 2006, Appellant was arrested for domestic violence, in

violation of Zanesville Ordinance 537.14A. See, City of Zanesville v. Rouse, Fifth

District Muskingum No. CT-08-35, 2011-Ohio-3351, after remand City of Zanesville v.

Rouse, 126 Ohio St.3d 1, 20120-Ohio-2218, 929 N.E.2d 1044. Appellant entered a plea

of not guilty at his arraignment on February 28, 2006. The trial court scheduled the

matter for trial on April 5, 2006. The trial court also issued a protection order. Appellant

appeared before the trial court on April 13, 2006, and entered a plea of guilty to the

charge. The trial court stayed the matter until October 26, 2006, to allow Appellant to

complete an anger management program.

{¶3} Appellant did not complete the anger management program as he was

incarcerated in July 2006 on unrelated charges. Appellant informed the trial court he still

wished to complete the program. Appellant was scheduled to be released from jail in

December 2006. The trial court stayed the matter until July 6, 2007, again giving

Appellant time to complete the anger management program.

{¶4} On July 20, 2007, Appellant filed a motion to dismiss, alleging the trial

court lacked subject matter jurisdiction to entertain the State’s prosecution as a criminal
Muskingum County, Case No. CT2013-0043 3

complaint had never been filed. Appellant further argued the temporary protection order

was void or unenforceable as a result.

{¶5} The trial court conducted a hearing on the motions on June 9, 2008. Via

Judgment Entry filed the same day, the trial court overruled Appellant’s motion to

dismiss. The trial court then proceeded to enter a finding of guilty on Appellant’s plea,

sentenced him to ten days in jail, and imposed a fine of $50.00. The trial court

suspended the jail time and fine as Appellant was serving a fifteen-year sentence in a

state correctional facility imposed after a jury verdict. See, State v. Rouse, Fifth District

Muskingum No. CT2007-0036, 2008-Ohio-2975. The trial court memorialized its finding

of guilt and sentence via Judgment Entry filed June 9, 2008.

{¶6} Rouse appealed. This Court vacated the conviction and sentence as well

as the temporary protection order. City of Zanesville v. Rouse, Fifth District Muskingum

No. CT08–0035, 2009–Ohio–2689. The City appealed. The Ohio Supreme Court

reversed our decision and reinstated the judgment of the trial court. City of Zanesville v.

Rouse, 126 Ohio St.3d 1, 20120-Ohio-2218, 929 N.E.2d 1044. Via Reconsideration

Entry filed August 17, 2010, the Ohio Supreme Court remanded the matter to this Court

“for consideration of [Rouse’s] assignments of error held to be moot.” State v. Rouse,

126 Ohio St.3d 1227, 2010-Ohio-3754, 933 N.E.2d 260.

Fifth District Muskingum Case No. CT08-0035, after remand from the Ohio

Supreme Court

{¶7} This court overruled Appellant’s assignments of error relative to the trial

court’s failure to dismiss the complaint for lack of a time-stamp, violation of Appellant’s
Muskingum County, Case No. CT2013-0043 4

speedy trial rights and Appellant’s contention that he was denied his right to counsel

and not advised of his rights under Crim. R. 11 and Crim. R. 44 before entering his plea.

Muskingum County Court of Common Pleas, Case No. CR2007-0012

{¶8} Appellant was convicted after a jury trial in the Muskingum County Court

of Common Pleas for one count of Aggravated Burglary, in violation of R.C.

2911.11(A)(1), a felony of the first degree; one count of Violation of a Protection Order,

in violation of R.C. 2919.27(A)(1), a felony of the third degree; and one count of

Domestic Violence, in violation of R.C. 2919.25(A), a misdemeanor of the first degree.

See, State v. Rouse, Fifth District Muskingum No. CT2007-0012, 2008-Ohio-2975.

{¶9} On May 20, 2007, the trial court conducted a sentencing hearing. Present

on behalf of Appellant was trial counsel, Mr. Mortimer and a second attorney Mr. Rodier.

Both attorneys stood with Appellant during sentencing. The trial court sentenced

Appellant to a stated prison term of ten (10) years on Count One and to a stated prison

term of five (5) years on Count Two, said sentences to be served consecutive to one

another for an aggregate prison sentence of fifteen (15) years. In addition, Appellant

received a sentence of six (6) months on Count Three, said sentence to be served

concurrent to the other charges. Appellant was also ordered to pay the costs of his

prosecution and to pay restitution to his victims.

{¶10} On June 4, 2007, two separate appeals were filed on behalf of Appellant.

The first appeal was filed by Elizabeth Gaba and assigned Case No. CT2007-0036.

Cole Gerstner, who had been appointed to represent Appellant upon appeal by the trial

court, filed the second appeal. This appeal was assigned Case No. CT2007-0037. Upon

being advised of the conflict, Mr. Gerstner filed a Motion to Withdraw as appellate
Muskingum County, Case No. CT2013-0043 5

counsel with this Court. By entry dated June 25, 2007, this Court granted Mr. Gerstner’s

Motion to Withdraw and sua sponte dismissed Case No. CT2007-0037.

{¶11} This Court affirmed Appellant’s convictions and sentences.

Petition for Post Conviction Relief

{¶12} On January 9, 2008, Appellant, through counsel, filed a Petition for Post-

Conviction Relief. No action had been taken on the record in that case.

{¶13} On May 2, 2013, Appellant filed a Petition for Post-Conviction Relief in the

Muskingum County Court of Common Pleas. In this petition, Appellant set forth six (6)

issues:

Petitioner trial/appellate attorney failed to investigate the underlying

Municipal Court case and counsels performance ineffectiveness violated

Petitioners right to effective assistance of counsel under the Sixth

Amendment and his Fourteenth Amendment of United States Constitution.

[SIC]

Petitioner Trial Attorney had Knowledge Complaint failed to charge

offense deprived Defendant of Constitutional Rights under the Sixth and

Fourteenth Amendment as well as Section I Article 10 Ohio Constitution to

be informed Nature of Accusation against him therefore ineffective

assistance an Due Process occurred [SIC]

Petitioner Trial Counsel Provided ineffective assistance an deprived

Petitioner of his Sixth Amendment to Adversarial Testing an to Fourteenth

Amendment Due Process [SIC]
Muskingum County, Case No. CT2013-0043 6

Petitioners Trial/Appellate Counsel provided deficient performance

in the investigation of the underlying Municipal Court case. As such

counsels ineffectiveness violated petitioners rights to the effective

assistance under the sixth and fourteenth amendment of the United States

Constitution and Due Process [SIC]

Petitioner Appellate Counsels Provided Ineffective Assistance an

Deprived Petitioner of his Sixth Amendment an to Effective Assistance an

Fourteenth Amendment Due Process [SIC]

Petitioners Trial Attorney Knew or Should Have Knew Petitioner

Plea Was Invalid Therefore Defendants Initial Appearance Was Invalid For

Right To Counsel as Such His Constitutional Rights under Sixth and

Fourteenth Amendment to Counsel an Due Process Were Violated [SIC]

{¶14} By Entry dated July 31, 2013, the trial court denied Appellant's Petition for

Post-Conviction Relief without an oral hearing. The Court found that the claims were

barred by the doctrine of res judicata.

Assignments of Error

{¶15} Appellant raises three assignments of error,

{¶16} “I THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING

TO ISSUE FINDINDS OF FACT AND CONCLUSIONS OF LAW MANDATED BY OHIO

REVISED CODE 2953.21 THEREBY VIOLATING PETITIONERS 5TH, 6TH AND 14TH

AMENDMENT DUE PROCESS UNDER U.S. CONSTITION ARTICLE 1 SECTION 10

AND 16 [SIC]
Muskingum County, Case No. CT2013-0043 7

{¶17} “II APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO

ARGUE COMPLAINT FAILED TO CHARGE AN OFFENSE UNDER CRIM. R. 3 AND

THEREFORE COURT LACKED SUBJECT MATTER JURISDICTION [SIC].

{¶18} “III. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO

CITED ANY APPLICABLE CASE LAW TO CRIM. R. 44 AND 11 ARGUMENT [SIC].

I.

{¶19} In his first assignment of error, Appellant maintains that the trial court

erred in failing to set out detailed findings of fact and conclusions of law when it

dismissed his petition for post-conviction relief. We disagree.

{¶20} Pursuant to R.C. 2953.21, if a trial court dismisses a petition for post-

conviction relief without a hearing it has to provide findings of fact and conclusions of

law as to why the petition was dismissed. See State v. Lester, 41 Ohio St.2d 51, 322

N.E.2d 656(1975), paragraph two of the syllabus. The trial court does not need to

specifically label the findings of fact and conclusions of law as such in its journal entry,

so long as the purpose is served of informing the petitioner of the grounds for denial.

State v. Farley, 10th Dist. Franklin No. 03AP-555, 2004-Ohio-1781, ¶16.

{¶21} 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. State v. Foster, 9th Dist.

Summit No. 18169, 1997 WL 626586 (Sept. 24, 1997) at 6, citing State ex. rel. Carrion

v. Harris, 40 Ohio St.3d 19, 530 N.E.2d 1330(19888). In State v. Mapson, 1 Ohio St.3d

217, 219, 438 N.E.2d 910(1982), the Court stated,
Muskingum County, Case No. CT2013-0043 8

The obvious reasons for requiring findings are “ * * * to apprise

petitioner of the grounds for the judgment of the trial court and to enable

the appellate courts to properly determine appeals in such a cause.”

Jones v. State (1966), 8 Ohio St.2d 21, 22, 222 N.E.2d 313. The existence

of findings and conclusions are essential in order to prosecute an appeal.

Without them, a petitioner knows no more than 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.

{¶22} In the case at bar, we find that the trial court’s decision denying

Appellant’s petition for post-conviction relief satisfies the policy considerations

announced in Mapson. In this matter, while the trial court did not label a section of its

judgment entry as “findings of fact and conclusions of law,” the trial court’s July 31, 2013

judgment entry adequately addresses Appellant’s arguments and explains the trial

court’s reasons for denying his claims was res judicata. We find that the trial court did

provide enough information to apprise Appellant of the reasons it was denying his

petition for post-conviction relief.

{¶23} Appellant’s first assignment of error is overruled.

II & III

{¶24} Appellant’s second and third assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.
Muskingum County, Case No. CT2013-0043 9

{¶25} In his second ground for relief, Appellant contends that he was denied

effective assistance of appellate counsel because appellate counsel failed to argue the

complaint in Muskingum Municipal Court Case No. 06CRB00319 failed to allege the

mens rea for the charge of domestic violence. In his third assignment of error, Appellant

contends that he was denied effective assistance of counsel because appellate counsel

failed to cite any applicable authority pertaining to Appellant’s claim in his fourth

assignment of error in State v. Rouse, Fifth District Muskingum No. CT08-0035, 2011-

Ohio-3351 that his plea in Muskingum County Municipal Court case No. 06CRB00319

was constitutionally infirm because of the trial court’s failure to adhere to the mandates

of Crim. R. 11 and Crim. R. 44. We disagree.

{¶26} At the outset, we note a reviewing court is not authorized to reverse a

correct judgment merely because it was reached for the wrong reason. State v. Lozier,

101 Ohio St.3d 161, 166, 2004-Ohio-732, 803 N.E.2d 770, 775(2004), ¶46, [Citing State

ex rel. McGinty v. Cleveland City School Dist. Bd. of Edn., 81 Ohio St.3d 283, 290, 690

N.E.2d 1273(1988)]; Helvering v. Gowranus, 302 U.S. 238, 245, 58 S.Ct. 154,

158(1937).

{¶27} In Morgan v. Eds, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157,

the Ohio Supreme Court observed,

We adopted App.R. 26(B), effective on July 1, 1993, in the wake of

our decision the year before in State v. Murnahan (1992), 63 Ohio St.3d

60, 584 N.E.2d 1204. See 1993 Staff Notes to App.R. 26. In Murnahan,

we held that “[c]laims of ineffective assistance of appellate counsel are not

cognizable in post-conviction proceedings pursuant to R.C. 2953.21.” Id.
Muskingum County, Case No. CT2013-0043 10

at paragraph one of the syllabus. We based our decision in Murnahan on

our view that claims of ineffective assistance of appellate counsel should

be considered and disposed of in the appellate court where the alleged

error occurred, and not in the state’s trial courts, where post conviction

claims are first raised by Ohio criminal defendants under R.C. 2953.21. In

Murnahan, we explained that “appellate judges are in the best position to

recognize” whether a criminal defendant has received and been

prejudiced by the ineffective assistance of appellate counsel. Id. at 65, 584

N.E.2d 1204. Allowing ineffective-appellate-counsel claims to be raised in

Ohio trial courts like other postconviction claims “could in effect permit trial

courts to second-guess superior appellate courts.” Id. Thus, our reasoning

in Murnahan concerned the appropriate court in which to bring a collateral

challenge to the effectiveness of appellate counsel. However, we never

suggested that such a collateral challenge, when brought, was part of the

initial appeal.

Id., ¶6. Accordingly, a claim of ineffective assistance of appellate counsel is not

cognizable in a post-conviction proceeding pursuant to R.C. 2953.21. State v.

Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204(1992), paragraph one of the syllabus.

State v. Dotson, Fifth District Richland No. 92-CA-63, 1993 WL 274305(June 30, 1993).

{¶28} In the case at bar, the trial court was without jurisdiction to entertain

Appellant’s claims in his petition for post conviction relief that he was denied effective

assistance of appellate counsel.

{¶29} Appellant’s second and third assignments of error are overruled.
Muskingum County, Case No. CT2013-0043 11

{¶30} Accordingly, the judgment of the Muskingum County Court of Common

Pleas, Muskingum County, Ohio is affirmed.

By Gwin, J.,

Hoffman, P.J., and

Farmer, J., concur