[Cite as State v. Montgomery, 2014-Ohio-4108.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
RODERICK T. MONTGOMERY
Defendant-Appellant
Appellate Case No. 26014
Trial Court Case No. 10-CR-4099/3
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 19th day of September, 2014.
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MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301
West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
RODERICK T. MONTGOMERY, A-665-660, Warren Correctional Institution, Post Office Box 120,
Lebanon, Ohio 45036
Defendant-Appellant, pro se
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FAIN, J.
{¶ 1} Defendant-appellant Roderick Montgomery appeals from a judgment overruling
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his petition for postconviction relief. Montgomery contends that the trial court abused its
discretion by overruling his petition despite evidence of jurors sleeping during his trial. He also
contends that the trial court failed to make the necessary findings of fact and conclusions of law
in its decision denying the petition.
{¶ 2} We conclude that the trial court did not abuse its discretion in overruling
Montgomery’s petition. We also conclude that the trial court made the necessary findings of fact
and conclusions of law. Accordingly, the judgment of the trial court is Affirmed.
I. Course of the Proceedings
{¶ 3} Following a jury trial, Roderick T. Montgomery was convicted on six counts of
Aggravated Murder, six counts of Murder, two counts of Aggravated Robbery, two counts of
Kidnapping, two counts of Felonious Assault, and two counts of Aggravated Burglary. The trial
court merged the convictions into one count of Aggravated Murder, one count of Aggravated
Burglary, and two counts of Aggravated Robbery. Montgomery was sentenced to a total prison
term of 31 years to life.
{¶ 4} Montgomery appealed from his conviction and sentence. We affirmed. State v.
Montgomery, 2d Dist. Montgomery No. 25277, 2013-Ohio-4509. Montgomery moved to reopen
his direct appeal pursuant to App.R. 26(B). We overruled the motion.
{¶ 5} While his direct appeal was pending, Montgomery filed a petition for
postconviction relief. Montgomery asked the trial court to vacate his convictions, contending
that two jurors were sleeping during his trial, which violated his constitutional right to a fair and
impartial jury and his constitutional right to the effective assistance of trial counsel. The State
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moved for summary dismissal of Montgomery’s petition, but the trial court overruled the motion
and granted Montgomery an evidentiary hearing. Nine witnesses testified at the hearing.
Ultimately, the trial court denied the petition. Montgomery appeals from the judgment denying
his petition for postconviction relief.
II. The Trial Court Did Not Abuse Its Discretion
by Denying Montgomery’s Petition
{¶ 6} Montgomery’s First Assignment of Error states:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
DENYING APPELLANT’S PETITION FOR POST-CONVICTION RELIEF
BASED UPON EVIDENCE THAT JURORS WERE SLEEPING.
{¶ 7} R.C. 2953.21(A)(1)(a), provides, in part:
Any person who has been convicted of a criminal offense * * * 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 * * * may file a petition in the court that imposed
sentence, stating the grounds for relief relied upon, and asking the 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.
{¶ 8} “In reviewing a trial court’s determination on a petition for postconviction relief,
the reviewing court uses an abuse of discretion standard.” State v. Perkins, 2d Dist.
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Montgomery No. 24397, 2011-Ohio-5070, ¶ 16, citing State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. The term “abuse of discretion” has been defined as a
decision that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19
Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).
{¶ 9} In his petition for post conviction relief, Montgomery contended that he was
denied his constitutional right to a fair and impartial jury when jurors were sleeping during his
trial. Montgomery alleged a form of juror misconduct. “[U]nder Crim.R. 33(A), juror
misconduct justifies a new trial only if it materially affected an accused’s substantial rights.”
State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 45. The burden is on
the party alleging juror misconduct to establish prejudice. Id. at ¶ 42, citing Smith v. Phillips,
455 U.S. 209, 215-217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶ 10} The trial court held an evidentiary hearing on Montgomery’s petition. Nine
witnesses testified during the hearing. In its decision denying Montgomery’s petition, the trial
court summarized the testimony and evidence relating to Montgomery’s petition. The trial court
then concluded, in part:
It is fundamental that Montgomery bears the burden of proving the
grounds for post-conviction relief pursuant to R.C. 2953.21(A)(1)(a). Shinell
Crowder, the petitioner’s aunt, testified that juror number four was dozing for
three to four minutes while the young boy provided his testimony. The State’s
witnesses testified that the young boy, Dajaun Jones, testified on the second day of
trial, the day Crowder testified she was absent from the trial. She also testified
that one juror slept for a good seven or eight minutes during closing argument.
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Her testimony contradicted that of Jeff Gramza who saw two jurors with their eyes
closed for at least two minutes. It is also unclear whether the alleged sleeping
took place during the State’s oral argument or that of the defense. Both Crowder
and Gramza acknowledged that some close their eyes to concentrate. The
defendant himself acknowledged he has closed his eyes without being asleep, and
the only way to know is to ask the juror involved.
All of the State’s witnesses noted that the trial was a short one and was one
with riveting testimony concerning the home invasion and murder. Judge
O’Connell testified that the energy level and tension were pretty high during
closing arguments and he doubted a juror could sleep seven to eight minutes
during that portion of the trial. The State bears the burden of proof at trial and
would not benefit from the inattention of any juror.
This Court conducted a thorough hearing regarding Montgomery’s
allegation of juror misconduct. The court finds that the State’s witnesses were
more credible than that of the defense. Jeffrey Gramza is an honorable lawyer.
He admitted he could not say for sure that a juror was sleeping when her eyes were
closed. The petitioner has failed to meet his burden of persuasion that two jurors
slept during portions of his trial. Having found that petitioner’s rights to due
process were not denied, his claim of ineffective assistance of counsel necessarily
fails. Montgomery’s petition to vacate his conviction pursuant to R.C. 2953.21 is
denied.
Dkt. 50, p. 6-7.
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{¶ 11} The trial court conducted a thorough evidentiary hearing. Ultimately, the trial
court credited the State’s witnesses over Montgomery’s witnesses. The credibility of the
witnesses and the weight to be given to their testimony are primarily matters for the trier of facts
to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar
competence of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 12} According to Montgomery, his trial counsel noticed that two of the jurors had
their eyes closed and discussed this fact with Montgomery prior to the close of the trial. In State
v. Perkins, 2d Dist. Montgomery No. 24397, 2011-Ohio-5070, we held that a defendant’s petition
for post conviction relief must fail when the defendant had knowledge during his trial of juror
misconduct, but failed to raise the misconduct at the trial level or in his direct appeal. We
stated:
In the second instance of alleged juror misconduct, a juror allegedly fell
asleep during the trial. To support his claim, Perkins submitted the affidavit of
Sheree Prewitt along with his own affidavit adopting the entire statement of facts
from his postconviction petition. In his affidavit, Perkins claims to have learned
about the sleeping juror from Wells. If a juror would have been sleeping during
the trial, it should have been noticed by the attorneys or the trial court, and raised
at that time. The purpose of raising the issue during the trial itself is that the trial
court has significant discretion in how it resolves an incident with a sleeping juror.
* * * In addition, to demonstrate prejudice, Perkins needed to assert the exact
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testimony that the sleeping juror missed. * * * Finally, if Perkins had knowledge
of the alleged juror misconduct during trial, he is precluded from raising this issue
under the doctrine of res judicata, since he could have raised this issue in his direct
appeal.
(Citations omitted.) Perkins at ¶ 27.
{¶ 13} Montgomery argues that his trial counsel was ineffective for having failed to
bring to the trial court’s attention, during the original trial, the issue of the sleeping jurors. But
in its decision denying Montgomery’s petition for post-conviction relief, the trial court found that
there were no sleeping jurors, which finding is equally dispositive of the ineffective assistance of
counsel argument.
{¶ 14} Based on the record before us, we conclude that the trial court did not abuse its
discretion by denying Montgomery’s petition for postconviction relief. Montgomery’s First
Assignment of Error is overruled.
III. The Trial Court Made the Necessary Findings
of Fact and Conclusions of Law
{¶ 15} Montgomery’s Second Assignment of Error states:
THE TRIAL COURT FAILED TO MAKE PROPER FINDINGS OF
FACT AND CONCLUSIONS OF LAW, THUS DENYING APPELLANT DUE
PROCESS IN POST-CONVICTION PROCEEDINGS.
{¶ 16} R.C. 2953.21 requires the trial court to make findings of fact and conclusions of
law if it dismisses or denies the petition for postconviction relief. R.C. 2953.21(C), (G). “A
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trial court need not discuss every issue raised by appellant or engage in an elaborate and lengthy
discussion in its findings of fact and conclusions of law.” State v. Calhoun, 86 Ohio St.3d 279,
291, 714 N.E.2d 905 (1999). Rather, a trial court “issues proper findings of fact and conclusions
of law where such findings are comprehensive and pertinent to the issues presented, where the
findings demonstrate the basis for the decision by the trial court, and where the findings are
supported by the evidence.” Id. at 292.
{¶ 17} In its written decision, the trial court reviewed the testimony received at the
evidentiary hearing on Montgomery’s petition. The trial court then made findings of fact and
conclusions of law that are comprehensive and pertinent to the issues presented and that
demonstrate the basis for the decision by the trial court. Id. The trial court’s findings are
supported by the evidence of record. Id. The trial court was not required to specifically title its
decision “Findings of Fact and Conclusions of Law.”
{¶ 18} Montgomery’s Second Assignment of Error is overruled.
IV. Conclusion
{¶ 19} Both of Montgomery’s assignments of error having been overruled, the judgment
of the trial court is Affirmed.
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HALL and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
Michele D. Phipps
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Roderick T. Montgomery
Hon. James A. Brogan
(sitting for Judge Timothy N. O’Connell)