[Cite as State v. Williams, 2013-Ohio-2706.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99357
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-550955
BEFORE: Rocco, P.J., Blackmon, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: June 27, 2013
-i-
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶1} Petitioner-appellant Michael Williams appeals from the trial court order that
denied his petition for postconviction relief.
{¶2} Williams presents three assignments of error in which he claims (1) the
evidence attached to his petition was sufficient to warrant an oral hearing, (2) the trial
court misapplied the doctrine of res judicata, and (3) the trial court did not independently
prepare its findings of fact and conclusions of law.
{¶3} A review of the record leads this court to disagree with Williams’s claims.
Consequently, his assignments of error are overruled, and the trial court’s order is
affirmed.
{¶4} The facts surrounding Williams’s original convictions in his criminal case
were set forth by this court in State v. Williams, 8th Dist. No. 97730, 2012-Ohio-4277
(“Williams I”). In pertinent part, those facts are set forth as follows:
The facts in the instant case arise from events that occurred on April
27, 2010. The victim, Wilson Clark, received a telephone call from
Williams who inquired about purchasing an automobile from Clark. Clark
and Williams had known each other for many years prior to the incident.
Clark and his girlfriend, Dominique Hearn, drove to meet Williams so that
he could look at the car. Upon arriving at E. 133 and Holyoke in Cleveland,
Ohio, Clark called Williams to tell him that he had arrived.
Clark testified that Williams approached and entered the car. Clark
stated that Williams pulled a gun and told Clark, “you know what it is.”
Clark then explained that this was slang for a robbery. Clark testified that
Williams was pointing the gun at him and he responded by giving Williams
$9 that he had in his pocket.
Clark stated that at this point, Williams had one leg in and one leg out of the car
and that although Williams instructed him “[d]on't pull off in this car, man,” he began to
drive hoping that Williams would fall from the car. Clark testified that when he began to
drive, Williams shot him once in the side of his mouth which exited through his neck and
once in the chest. Clark crashed his car into a house and was later transported to the
hospital. Hearn was not injured during the altercation.
Cleveland police officer Randy Hicks testified that he arrived at the scene shortly
after the shooting. Officer Hicks testified that he repeatedly asked Clark who shot him
and Clark responded “Mike Jones.” Officer Hicks stated that, from his experience
working with the narcotics unit in this area, he knew that “Mike Jones” was Williams’
alias. Officer Hicks testified that he went to Williams’ residence to search for him but
that he was not at home.
Dominick Allen testified that he witnessed, through the window of his apartment,
Williams running from the car shortly after he heard gunshots. Allen also testified that he
knew Williams prior to this incident because he and Williams lived in the same apartment
complex.
During the investigation, police interviewed Hearn and, during that interview, she
identified Michael Houston as the shooter. During that same interview, however, she
repeatedly denied having seen the shooter. Hearn testified that she identified Houston
because she knew that she and Clark were meeting a “Mike” and that Michael Houston
was the only person by that name whom she knew to live in the area. Houston was later
dropped as a suspect in the case because he had an alibi for the entire day of the incident.
Clark was unconscious for nearly a month after the incident and awoke on May 17,
2010, in the hospital. Shortly after that date, Clark identified Williams from a police photo
array. A blind administrator was later used to present the same photo array to Clark. He
again identified Williams as the shooter. At the time of trial, Clark made an in-court
identification of Williams as the man who shot him on April 27, 2010.
Williams waived his right to a jury and the court convicted him of two counts of
attempted murder with one and three-year firearm specifications, two counts of felonious
assault with one and three-year firearm specifications, two counts of aggravated robbery
with one and three-year firearm specifications and two counts of improperly handling a
firearm in a motor vehicle. He was sentenced to serve 15 years with five years of
postrelease control.
(Emphasis added.) Id. at ¶ 2-9.
{¶5} In his direct appeal of his convictions, Williams raised as his first assignment of error a
claim of ineffective assistance of trial counsel. Id. at ¶ 10-25; this court responded to his arguments in
pertinent part as follows:
Williams argues that his counsel should have impeached Dominick Allen with
discrepancies in his statements. In a supplemental discovery response filed by the state of
Ohio on October 18, 2011, the state provided that Allen, on October 17, 2011, reported
that he did not know who he saw running from the car “when confronted with his written
statement, it was the defendant he saw jump from the vehicle following the gunshots.”
***
With respect to witness Allen, his initial identification was that of the appellant
and, over one year later, he indicated to the prosecuting attorney that he did not know who
it was that jumped from the vehicle. However, when presented with his written statement,
he acknowledged that it was the appellant that he had seen jump.
***
The choice to impeach a witness is a trial tactic. The Supreme Court of Ohio has
held, “we will not second-guess trial strategy decisions, and a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” State v. Mason, 82 Ohio St.3d 144, 157-158, 1998 Ohio 370, 694 N.E.2d 932
(1998) (overruled on other grounds). Furthermore, “Debatable trial tactics do not
constitute a denial of effective assistance of counsel.” State v. Clayton, 62 Ohio St.2d 45,
49, 402 N.E.2d 1189 (8th Dist. 1980). Here, trial counsel’s decision not to impeach must
be granted deference.
***
Williams also argues that his defense counsel never offered evidence to show that
Williams * * * told officers that he knew nothing about the shooting and that he was at
his girlfriend’s house at the time of the incident. This information was provided to defense
counsel in supplemental discovery filed by the state on October 20, 2011. Williams does
not explain why it was error for his counsel to not use this evidence, nor does he establish
the likelihood of a different outcome if it were to have been used. The omission of this
evidence by trial counsel was a tactical decision that we will not second-guess.
Williams next argues that Hearn related to the state on
June 22, 2011, that she was told by Clark that she “picked the wrong guy” from the photo
array shown to her when she identified Michael Houston as the assailant.
On June 27, 2011, the state of Ohio filed a supplemental response to discovery that
reflected that on June 22, 2011, Sgt. Cunningham related that Dominque Hearn stated to
him that Michael Williams was not the shooter. Counsel failed to explore that information
through examination of either Sgt. Cunningham or Dominique Hearn.
We find this evidence to be irrelevant. At no point was Hearn utilized at trial to
identify Williams as the shooter. She testified at trial as to what happened the day of the
incident, and to explain why she initially identified Houston as the shooter. Hearn always
maintained that she never saw the shooter. As such, this evidence cannot be used to
establish a claim of ineffective assistance of counsel.
Williams argues that trial counsel should have filed motions to preserve all
evidence and a motion to suppress eyewitness identification as the East Cleveland Police
Department lost the photo arrays that they had showed Clark the first time they visited
him in the hospital. Williams claims that counsel should have tested the procedures used
in administering the photo arrays. This does not create evidence that had this error not
occurred there is a reasonable probability of a different outcome. Clark identified
Williams in a second identical photo array administered by a “blind administrator” and
also in open court during trial. The photo array that was lost does not somehow nullify
the other three instances wherein Clark identified Williams as the shooter. Further, Clark
knew Williams for many years prior to the incident.
(Emphasis added.)
{¶6} Because each of his assertions was rejected, Williams’s claim of ineffective assistance
failed. Id. During the pendency of his direct appeal of his convictions, Williams filed a petition for
postconviction relief pursuant to R.C. 2953.21.
{¶7} Williams claimed in his petition that he had received ineffective assistance of counsel in the
trial proceedings. In particular, Williams claimed that counsel failed to: (1) investigate his case to
check his alibi, (2) confer with him to prepare a defense, (3) explain the implications before Williams
waived his right to trial by jury, and (4) file a motion to suppress the identification testimony due to
improper police procedure.
{¶8} Williams attached to his petition his affidavit, in which he merely averred that
the allegations he made in his petition were true. He also attached copies of documents.
One of these purported to be a sign-in sheet for an Alcoholics Anonymous meeting that
took place on April 27, 2010 and that he asserted contained his signature. Others
purported to be inmate request forms that indicated Williams had made numerous
requests for his trial counsel to visit him prior to the commencement of his trial.
{¶9} The state filed an opposition brief. Subsequently, the trial court denied
Williams’s petition.
{¶10} Two months later, Williams filed a request for findings of fact and
conclusions of law. The state responded to Williams’s request by filing for the trial
court’s consideration proposed findings of fact and conclusions of law.
{¶11} Six weeks after the state’s response, the trial court issued an order that
clearly adopted the state’s proposals in their entirety. After outlining the evidence
adduced at trial and setting forth the relevant parts of this court’s opinion in Williams I,
the court found that Williams’s materials submitted in support of his petition did not
constitute admissible evidence and that Williams’s claims were barred by the doctrine of
res judicata, because they were, or could have been, raised in his direct appeal.
{¶12} Williams appeals from the trial court’s order with three assignments of
error.
I. Defendant was denied due process of law when [the] court
dismissed his petition for post-conviction relief without an evidentiary
hearing.
II. Defendant was denied due process of law when the court
dismissed his petition based on an erroneous application of res judicata.
III. Defendant was denied due process of law when the court did not
independently prepare findings of fact and conclusions of law.
{¶13} Williams argues in his assignments of error that he supplied evidence that was sufficient
to warrant an oral hearing on his petition, that the trial court improperly utilized the doctrine of res
judicata in denying his petition, and that, because the trial court adopted the state’s proposed findings of
fact and conclusions of law, the court did not independently review the record. The record, however,
supports none of these arguments.
{¶14} A trial court is not required to hold a hearing on a petition for postconviction relief if the
record and the petition fail to show that the defendant is entitled to relief. State v. Calhoun, 86 Ohio
St.3d 279, 714 N.E.2d 905 (1999). The statute specifically reads that “[u]nless the petition and the
files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a
prompt hearing on the issues * * * .” R.C. 2953.21(E); State v. Jones, 8th Dist. No. 83601,
2004-Ohio-3868.
{¶15} In considering a petition, the pivotal question for the trial court is whether,
upon consideration of all the files and records pertaining to the underlying proceedings
and any supporting evidence attached, the petitioner has set forth “sufficient operative
facts to establish substantive grounds for relief.” Calhoun, paragraph two of the
syllabus. The trial court acts as a gatekeeper in determining whether a hearing is
warranted. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77.
{¶16} The trial court’s “gatekeeping” function in the postconviction relief process
is entitled to deference, including its decisions regarding the sufficiency of the facts set
forth by the petitioner and the credibility of his affidavit. State v. West, 8th Dist. No.
98680, 2013-Ohio-826, ¶ 9, citing Calhoun. This court reviews the trial court’s
decisions for an abuse of discretion. Id. In this case, the trial court did not abuse its
discretion in either declining to conduct an evidentiary hearing or applying the doctrine of
res judicata.
{¶17} R.C. 2953.21 affords a prisoner postconviction relief “only if the court can
find that there was such a denial or infringement of the rights of the prisoner as to render
the judgment void or voidable under the Ohio Constitution or the United States
Constitution.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four
of the syllabus. A postconviction petition is not intended to provide a petitioner a second
opportunity to litigate his or her conviction. State v. Hessler, 10th Dist. No. 01 AP-1011,
2002-Ohio-3321, ¶ 23.
{¶18} Rather than a direct appeal, a petition for postconviction relief is a collateral
civil attack on a criminal judgment. State v. Easley, 10th Dist. No. 09AP-10,
2009-Ohio-3879, ¶ 9, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67
(1994). The petition is meant to get to constitutional issues that would otherwise be
impossible to reach because the evidence supporting those issues is not contained in the
record. Easley at ¶ 9.
{¶19} Based upon that rationale, constitutional issues cannot be considered in
postconviction proceedings brought pursuant to R.C. 2953.21 where they have already, or
could have, been fully litigated by the defendant, either before his judgment of conviction
or on direct appeal from that judgment. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104
(1967), at paragraph seven of the syllabus; State v. McCullough, 78 Ohio App.3d 587,
591, 605 N.E.2d 962 (1992). Issues properly raised in a petition for postconviction relief
are only those which could not have been raised on direct appeal because the evidence
supporting such issues is outside the record. State v. Milanovich, 42 Ohio St.2d 46, 50,
325 N.E.2d 540 (1975). If an issue has, or should have been, raised on direct appeal, the
trial court may dismiss the petition on the basis of res judicata. State v. Dowell, 8th Dist.
No. 86232, 2006-Ohio-110, ¶ 10, citing Perry.
{¶20} In order to be entitled to a hearing on a petition for postconviction relief
alleging ineffective assistance of counsel, the petitioner must submit evidentiary
documents containing sufficient operative facts to demonstrate both the lack of competent
counsel and that the defense was prejudiced by counsel’s ineffectiveness. (Emphasis
added.) State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus See also
State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982) (“Where ineffective
assistance of counsel is alleged in a petition for postconviction relief, the defendant, in
order to secure a hearing on his petition, must proffer evidence which, if believed, would
establish not only that his trial counsel had substantially violated at least one of a defense
attorney’s essential duties to his client but also that said violation was prejudicial to the
defendant”).
{¶21} “New” evidence attached to the petition does not automatically defeat the
res judicata bar. Rather, evidence outside the record must meet “some threshold standard
of cogency; otherwise it would be too easy to defeat the holding of Perry by simply
attaching as exhibits evidence which is only marginally significant and does not advance
the petitioner’s claim[.]” State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362
(1995), quoting State v. Coleman, 1st Dist. No. C-900811, 1993 Ohio App. LEXIS 1485
(Mar. 17, 1993). Moreover, the evidence dehors the record must not be evidence which
was in existence and available for use at the time of trial and which could and should
have been submitted at trial if the defendant wished to use it. Dowell, 8th Dist. No.
86232, 2006-Ohio-110, ¶ 10.
{¶22} In this case, Williams provided nothing to the trial court to warrant an
evidentiary hearing. All of his assertions about his trial counsel’s alleged lack of effort
on his behalf were ones that were, or could have been, presented in Williams I. Indeed,
in Williams I, this court discussed the issues Williams presented in his petition and found
that: (1) trial counsel’s decision to forgo presenting evidence of Williams’s alleged alibi
was a tactical decision, (2) in light of the facts that the victim knew Williams and looked
at him directly during the incident, but his girlfriend did not and had not, preservation of
the photo arrays would not have changed the outcome of trial, and (3) Williams waived
his right to a jury, a decision that was placed on the record.
{¶23} In addition, Williams attached no competent evidence to support his claim
that his trial counsel provided ineffective assistance. His affidavit was general and
conclusory, and none of the documents he provided was either verified or authenticated.
See State v. Richmond, 8th Dist. No. 97616, 2012-Ohio-2511, ¶ 10-12. At any event,
even if Williams’s documents were deemed of evidentiary quality, none established his
claim and all were in existence at the time of trial.
{¶24} Based upon the foregoing, Williams’s first and second assignments of error
are overruled.
{¶25} The argument Williams raises in his third assignment of error has been
addressed by this court in State v. Bradley, 8th Dist. No. 90290, 2008-Ohio-3536 as
follows:
Bradley argues that the trial court improperly dismissed his petition
for reasons other than res judicata without making findings of fact and
conclusions of law. He argues that the trial court never engaged in personal
fact-finding as required by R.C. 2953.21 because it adopted the State’s
proposed findings * * * .
Civ.R. 52 provide[s] that it is within the trial court’s discretion to “require any or
all of the parties to submit proposed findings of fact and conclusions of law.” Moreover,
this court has previously held that: “[i]n the absence of demonstrated prejudice, it is not
erroneous for the trial court to adopt, in verbatim form, findings of fact and conclusions
of law which are submitted by the state.” State v. Thomas, Cuyahoga App. No. 87666,
2006 Ohio 6588, citing State v. Powell (1993), 90 Ohio App.3d 260, 263, 629 N.E.2d 13;
State v. Sowell (1991), 73 Ohio App.3d 672, 676, 598 N.E.2d 136.
“A trial court may adopt verbatim a party’s proposed findings of fact and
conclusions of law as its own if it has thoroughly read the document to ensure that it is
completely accurate in fact and law.” Thomas, citing State v. Jester, Cuyahoga App. No.
83520, 2004 Ohio 3611. Thus, “the trial court’s adoption of the findings of fact and
conclusions of law submitted by the state does not, by itself, deprive the petitioner of a
meaningful review of his petition for postconviction relief and does not constitute error *
* * .” State v. Powell (1993), 90 Ohio App.3d 260, 629 N.E.2d 13.
{¶26} Similarly, nothing in this case indicates that the trial court did not review the record and
the materials submitted before adopting the state’s proposed findings of fact and conclusions of law.
The trial judge was the same one who had presided over Williams’s trial, so he was familiar with
Williams’s demeanor when waiving the right to a jury trial, the manner in which trial counsel
conducted the defense, the evidence of Williams’s guilt, and the accuracy of the state’s proposed facts.
Additionally, the state applied the appropriate legal analysis to the facts presented. Under these
circumstances, the trial court did not abuse its discretion in adopting the state’s proposed findings of
fact and conclusions of law.
{¶27} Williams’s third assignment of error is also overruled.
{¶28} The trial court’s order is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR