[Cite as State v. Baker, 2015-Ohio-338.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26252
:
v. : T.C. NO. 11CR4317/2
:
LARRY BAKER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___30th___ day of ____January_______, 2015.
...........
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LARRY BAKER, #A686-670, 15708 McConnelsville Road, Caldwell, Ohio 43724
Defendant-Appellant
.............
FROELICH, P.J.
{¶ 1} Larry Baker appeals, pro se, from the trial court’s denial of his petition for
postconviction relief, filed pursuant to R.C. 2953.21. Baker is serving an aggregate
prison term of 36 years to life, following his conviction on two counts of murder and
firearms specifications. We affirmed his conviction on appeal. State v. Baker, 2d Dist.
-2-
Montgomery No. 25828, 2014-Ohio-3163.
{¶ 2} As we stated in our Opinion, Baker’s offenses related to a robbery and
shooting at the Cash and Go pawn shop on December 22, 2011. Baker and two
accomplices, Darren Taylor and Anthony Dewayne McClain, were alleged to have driven
to the pawn shop from Detroit that morning and to have robbed the shop and shot its
employee, Ilya Golub. Golub returned fire, striking McClain, but the three perpetrators
managed to flee and returned to Detroit. Golub and McClain died from their gunshot
wounds.
{¶ 3} Baker was later charged with four counts of murder, two counts of
aggravated robbery, and two counts of felonious assault. Each count included a firearm
specification. In June 2013, Baker was found guilty by a jury on all counts. The four
counts of which Golub was the victim (two counts each of murder, aggravated robbery,
and felonious assault) were merged, and the two counts of murder related to McClain
were merged. On direct appeal, Baker challenged the weight and sufficiency of the
evidence, and he argued that he was denied the effective assistance of counsel. We
rejected each of these arguments. Id.
{¶ 4} On February 19, 2014, Baker filed a petition for postconviction relief. The
petition alleged that Baker had been denied the effective assistance of counsel in that trial
counsel 1) had not called one of the other perpetrators of the crime, Darren Taylor, as a
witness to “clear [Baker] of any wrongdoing,” and 2) failed to present evidence that Baker
had called the police “to report the incident” when he got back to Detroit. According to
Baker, this evidence would have supported his position that, if he were “guilty of anything,
it’s being guilty by association,” or being with the wrong people at the wrong time. The
-3-
State filed an answer to the petition and a motion for summary judgment.
{¶ 5} The trial court denied Baker’s petition and granted the State’s motion for
summary judgment without a hearing. Baker raises one assignment of error on appeal,
challenging the denial of his petition without a hearing.
{¶ 6} 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.
Baker claims that he was denied his constitutional rights because his trial counsel
rendered ineffective assistance. Such an argument, if successful, would render
his judgment voidable, but not void. See, e.g., State v. Knowles, 2d Dist.
Champaign No. 2012 CA 35, 2013-Ohio-2578, ¶ 9; State v. Chivers, 2d Dist.
Montgomery No. 16751, 1998 WL 350543, * 1 (July 2, 1998).
{¶ 7} The post-conviction relief statutes do “not expressly mandate a hearing for
every post-conviction relief petition and, therefore, a hearing is not automatically
required.” State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). Rather, in
addressing a petition for post-conviction relief, a trial court plays a “gatekeeping role” as to
whether a defendant will receive a hearing. State v. Gondor, 112 Ohio St.3d 377,
-4-
2006-Ohio-6679, 860 N.E.2d 77, ¶ 51. A trial court may dismiss a petition for
postconviction relief without a hearing “where the petition, the supporting affidavits, the
documentary evidence, the files, and the records do not demonstrate that petitioner set
forth sufficient operative facts to establish substantive grounds for relief.” State v.
Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905, paragraph two of the syllabus; Gondor at ¶
51. 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);
Calhoun at paragraph three of the syllabus.
{¶ 8} Where a petition is based on alleged 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. Jackson at 107, syllabus. A defendant must
demonstrate that counsel’s performance was deficient and fell below an objective
standard of reasonable representation, and that the defendant was prejudiced by
counsel’s performance; there must be a reasonable probability that but for counsel’s
unprofessional errors, the result of the defendant’s trial would have been different.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶ 9} “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. Montgomery No. 24397, 2011-Ohio-5070, ¶ 16, citing Gondor at ¶ 45. An abuse of
discretion is 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); Blakemore v.
-5-
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 10} With respect to the testimony of Darren Taylor, Baker’s petition and its
attachments suggest that letters and statements made by Taylor after the crime
supported Baker’s contention that, although he (Baker) was present at the robbery, he
had not actively participated in it. The statements Taylor made to his girlfriend suggest
confusion on Taylor’s part about how the police had connected Baker and his wife with
the crime during their investigation, and Taylor had given conflicting statements to the
police about who his accomplices had been. The petition asserts that Baker instructed
his attorney to speak with Taylor, who “could clear up any wrong involvement of
petitioner’s behalf in this case” by testifying that Baker “had no knowledge that [Taylor]
and Anthony McClain were going to Ohio to commit a Robbery offense, let alone commit
murder.” The petition asserts that trial counsel did not talk with or subpoena Taylor.
{¶ 11} The trial court held that Baker’s documentation in support of this claim,
which included his own affidavit, an unidentified handwritten narrative, and various police
reports, failed to establish that Taylor was willing to testify during Baker’s trial. The court
further noted that “Taylor had a history of lying when asked about the events” surrounding
the shooting, including a claim in his initial interview with the police that Baker had not
been with him. Baker had admitted being at the pawn shop, and surveillance footage
also documented his presence. The court concluded that, “even if Mr. Taylor had agreed
to testify at [Baker’s] trial, it is unclear whether his testimony would have been truthful or
whether it would have had any effect on the jury.” Further, the court found that trial
counsel’s decision not to call Taylor, a co-defendant of Baker who had been convicted of
the same offenses before Baker’s trial, was a reasonable, strategic choice.
-6-
{¶ 12} The evidence relied upon by Baker did not establish that Taylor was willing
to testify on Baker’s behalf or that, if Taylor had done so, his testimony would have
reflected Baker’s alleged non-accomplice involvement in the crime or would have
otherwise been helpful to the defense. The trial court did not abuse its discretion in
rejecting this argument without a hearing.
{¶ 13} With respect to the 911 call, Baker’s petition alleged that he had called 911
from McClain’s cell phone as Taylor was dumping McClain’s body in an alley in Michigan.
According to the petition, Baker “had to hang up [when Taylor returned to the car,] fearing
for his life” if Taylor realized he had made such a call. Baker asserted that he informed
dispatch of the location of the body before Taylor returned to the car, then hung up.
Baker contends that trial counsel was ineffective in failing to investigate or present
evidence about this 911 call.
{¶ 14} Baker’s petition did not include any evidence about the nature or content of
the 911 call. The court observed that Baker merely alleged that counsel should have
investigated the call more thoroughly, but did not “specify what would have been
discovered by any additional investigation * * * [or] allege any additional facts to suggest a
more thorough investigation would have changed the outcome of the trial.” The trial
court noted that evidence about the call was presented at trial: testimony was presented
that calls were made to the police department from McClain’s cell phone, and that the
calls originated near Baker’s home. The court stated that, because the phone calls
came from near Baker’s house, “it appears that the jury viewed the phone calls as links
between the Defendant and the murders, rather than evidence of his innocence,” and that
trial counsel made a reasonable, strategic choice not to focus on this evidence. The
-7-
court did not abuse its discretion in concluding that Baker’s assertions and evidence
regarding the 911 call did not warrant a hearing on his petition for postconviction relief.
{¶ 15} Addressing the denial of the petition without a hearing, the trial court stated
that Baker “relie[d] solely on speculation as to Mr. Taylor’s possible testimony, as well as
the impact of Defendant’s 911 calls regarding the location of Mr. McClain’s body.” It
concluded that the statements in Baker’s affidavit, even if true, were insufficient to
establish a constitutional violation or that further investigation of Taylor’s potential
testimony or of the 911 call would have led to exculpatory evidence; Baker had “not
introduce[d] any additional facts entitling him to an evidentiary hearing.”
{¶ 16} Baker’s petition, his affidavit, and the other documents attached to the
petition provided, at most, a basis for conjecture that additional investigation by trial
counsel might have led to helpful evidence. Thus, the petition did not set forth sufficient
operative facts to establish that Baker was denied the effective assistance of counsel or
that the defense was prejudiced by counsel’s alleged ineffectiveness. Because the
petition did not establish a violation of Baker’s constitutional right to the effective
assistance of counsel or other substantive grounds for relief, the trial court did not abuse
its discretion in denying the petition without a hearing.
{¶ 17} Baker’s assignment of error is overruled.
{¶ 18} The judgment of the trial court will be affirmed.
.............
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Andrew T. French
Larry Baker
-8-
Hon. Dennis J. Adkins