State v. Ketterer

[Cite as State v. Ketterer, 2017-Ohio-4117.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :
CASE NO. CA2016-08-166
Plaintiff-Appellee, :
OPINION
: 6/5/2017
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:

DONALD KETTERER, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR03-03-0309

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Randall L. Porter, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for defendant-
appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Donald Ketterer, appeals a decision of the Butler County

Court of Common Pleas denying his two petitions for postconviction relief and other

postconviction motions.

{¶ 2} In 2003, appellant pled guilty to aggravated murder, aggravated robbery,

aggravated burglary, grand theft of a motor vehicle, and burglary in connection with the death
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of Lawrence Sanders. A three-judge panel convicted appellant on all charges. Following a

penalty-phase hearing, the panel sentenced appellant to death on the aggravated murder

charge and to prison terms for the noncapital offenses. The Ohio Supreme Court affirmed

the convictions and death sentence on direct appeal. State v. Ketterer, 111 Ohio St.3d 70,

2006-Ohio-5283 ("Ketterer I").

{¶ 3} The supreme court later reopened appellant's direct appeal and found that his

first appellate counsel had been ineffective for failing to challenge appellant's noncapital

sentences under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. The supreme court

vacated the noncapital sentences and remanded for resentencing. On remand, the three-

judge panel held a resentencing hearing on the noncapital offenses and resentenced

appellant. On appeal, the supreme court again vacated the sentences, this time because the

trial court had not properly imposed postrelease control during resentencing. State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831 ("Ketterer II"). On remand, the three-judge

panel issued a new sentencing entry. On appeal, the supreme court affirmed appellant's

sentences for the noncapital offenses. State v. Ketterer, 140 Ohio St.3d 400, 2014-Ohio-

3973 ("Ketterer III").

{¶ 4} As relevant to this appeal, in December 2004, appellant filed a petition for

postconviction relief ("PCR") challenging his capital murder conviction and death sentence

and raising 16 grounds for relief. In April 2005, appellant moved the trial court to reconvene

the three-judge panel that sentenced him to death for the purpose of ruling on his PCR

petition. In April 2006, now retired Butler County Common Pleas Court Judge Patricia S.

Oney, one of the three judges on the panel, denied appellant's motion.

{¶ 5} Appellant subsequently filed a complaint in this court for a writ of prohibition to

prevent Judge Oney from ruling on his PCR petition. Appellant claimed that R.C. 2945.06

vested the three-judge panel with exclusive jurisdiction over the PCR petition. We granted
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Judge Oney's motion to dismiss appellant's prohibition complaint.1 In May 2007, the Ohio

Supreme Court affirmed our judgment, finding that "[a]n alleged violation of R.C. 2945.06 is

not cognizable in an extraordinary writ action" and that appellant had an adequate remedy by

way of appeal. State ex rel. Ketterer v. Oney, 113 Ohio St.3d 306, 2007-Ohio-1954, ¶ 6.

{¶ 6} In May 2007, appellant filed a supplemental PCR petition challenging his

noncapital offenses and raising 16 grounds for relief. Most of the grounds for relief were

duplicative of the grounds for relief raised in appellant's first PCR petition. The supplemental

PCR petition was filed because the Ohio Supreme Court had remanded the case for

resentencing on the noncapital offenses pursuant to its decision in Foster. In the prayers for

relief of both PCR petitions as well as in a motion filed in February 2005, appellant requested

that the trial court grant him leave to pursue discovery prior to ruling on the merits of his PCR

petitions. Appellant further moved for discovery in April 2005 and November 2010.

{¶ 7} On July 22, 2016, the trial court denied appellant's PCR petitions and discovery

motions without a hearing on the basis of the doctrine of res judicata. The trial court found

that the issues raised by appellant in the PCR petitions and discovery motions were

addressed and rejected by the Ohio Supreme Court in Ketterer I, Ketterer II, or Ketterer III.

{¶ 8} Appellant now appeals, raising 13 assignments of error which will be addressed

out of order.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO

RECONVENE THE THREE JUDGE PANEL.

{¶ 11} Appellant argues the trial court erred in denying his motion to reconvene the

three-judge panel that sentenced him to death for the purpose of ruling on his PCR petitions.

1. State ex rel. Ketterer v. Oney, 12th Dist. Butler No. CA2006-07-171 (Oct. 3, 2006) (Judgment Entry Denying
Writ of Prohibition).
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As he did in his motion, appellant essentially argues that once a capital murder defendant

waives a trial by jury and elects to be tried by a three-judge panel pursuant to R.C. 2945.06,

all postconviction proceedings in the case, including PCR petitions, must be considered by

the three-judge panel. In support of his argument, appellant relies heavily on State v.

Stumpf, 32 Ohio St.3d 95 (1987), and cites State v. Davis, 38 Ohio St.3d 361 (1988), and

State v. Filiaggi, 86 Ohio St.3d 230 (1999).

{¶ 12} The trial court denied appellant's motion, finding that a three-judge panel's

jurisdiction under R.C. 2945.06 ends after conviction and sentencing, and that the term

"court" as used in R.C. 2953.21 must be given its common meaning. Thus, the trial court

concluded, "where a defendant waives jury trial and is convicted by a three-judge panel, the

postconviction remedies announced in R.C. 2953.21 do not contemplate a reconvening of

the three-judge panel to hear postconviction proceedings."

{¶ 13} R.C. 2945.06 provides in relevant part that

In any case in which a defendant waives his right to trial by jury
and elects to be tried by the court * * *, any judge of the court in
which the cause is pending shall proceed to hear, try, and
determine the cause[.] If the accused is charged with an offense
punishable with death, he shall be tried by a court to be
composed of three judges[.] The judges or a majority of them
may decide all questions of fact and law arising upon the trial;
however the accused shall not be found guilty or not guilty of any
offense unless the judges unanimously find the accused guilty or
not guilty. If the accused pleads guilty of aggravated murder, a
court composed of three judges shall examine the witnesses,
determine whether the accused is guilty of aggravated murder or
any other offense, and pronounce sentence accordingly.

(Emphasis added.)

{¶ 14} In turn, R.C. 2953.21(A)(1) generally provides that any person who has been

convicted of a criminal offense and who claims 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,
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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.

{¶ 15} Appellant relies heavily on the Ohio Supreme Court's Stumpf decision to

support his argument that R.C. 2945.06 and 2953.21(A)(1) grant a three-judge panel that

sentenced a defendant to death, authority to hear a PCR petition. We find that neither

Stumpf nor Davis nor Filiaggi support appellant's argument.

{¶ 16} In Stumpf, a defendant charged with capital murder waived a jury trial and pled

guilty before a three-judge panel. The panel convicted Stumpf and sentenced him to death.

Stumpf subsequently moved to withdraw his guilty plea, or in the alternative, to grant him a

new sentencing hearing. While the motion was pending, one of the panel members died and

the remaining two judges denied Stumpf's motion. On appeal, Stumpf claimed error in the

consideration of his motion by only two judges. The supreme court rejected Stumpf's

argument, finding that "[u]nanimity is mandated only when the panel finds a defendant guilty

or not guilty. Whether [Stumpf] was entitled to withdraw his guilty plea or to a new

sentencing hearing were questions of law, properly determined by a majority of the panel."

Stumpf, 32 Ohio St.3d at 105.

{¶ 17} Contrary to appellant's assertion, Stumpf does not explicitly or implicitly hold

that a three-judge panel that sentenced a defendant to death must hear the defendant's PCR

petition. The case did not involve a PCR petition under R.C. 2953.21 and the supreme court

did not expound on the narrow issue presented here. Rather, the supreme court merely

held that the two remaining members of a three-judge panel did not err in considering and

denying Stumpf's motion to withdraw his guilty plea. Stumpf therefore does not address the

proposition for which appellant cites it, and we will not imply such a holding. As the supreme

court stated, "[a] reported decision, although [in] a case where the question might have been

raised, is entitled to no consideration whatever as settling * * * a question not passed upon or
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raised at the time of the adjudication." State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,

¶ 11.

{¶ 18} Furthermore, Stumpf is distinguishable from the case at bar as they involved

dissimilar motions. Stumpf involved a motion to withdraw a plea or to set aside a sentence.

Because such a postsentence motion "is filed in the underlying criminal case and * * * targets

the withdrawal of a plea, it is not a 'collateral challenge to the validity of a conviction or

sentence.'" State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, ¶ 13. Rather, the motion is

filed within the context of the same capital case in which the movant has been sentenced to

death. By contrast, this case involves a PCR petition which is governed by R.C. 2953.21. A

postconviction proceeding is not an appeal of a criminal conviction, but rather, a collateral,

civil attack on a criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994).

Therefore, a petitioner receives no more rights than those granted by the statute. State v.

Calhoun, 86 Ohio St.3d 279, 281 (1999). Postsentences motions to withdraw a guilty plea

and PCR petitions exist independently and are separate remedies involving separate

proceedings subject to separate rules and procedures. See Bush.

{¶ 19} Likewise, Davis and Filiaggi do not support appellant's argument that R.C.

2945.06 and 2953.21(A)(1) grant a three-judge panel that sentenced a defendant to death

authority to hear a PCR petition. In Davis, the Ohio Supreme Court reversed the defendant's

death sentence and remanded the case for resentencing because the three-judge panel had

improperly weighed nonstatutory aggravating circumstances against the mitigating factors in

sentencing the defendant to death. Davis, 38 Ohio St.3d at 367, 372-373. In Filiaggi, the

supreme court upheld the three-judge panel's decision convicting the defendant of capital

murder and sentencing him to death but reversed his convictions on the noncapital charges

because the verdicts were entered only by the presiding judge and not by the three-judge

panel as required under R.C. 2945.06. Filiaggi, 86 Ohio St.3d at 238-240, 254. Neither case
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involved a PCR petition under R.C. 2953.21. Rather, both involved remands upon issues

clearly within the ambit of a three-judge panel's responsibility in a capital murder case under

R.C. 2945.06.

{¶ 20} The highlighted language in R.C. 2945.06 above unambiguously indicates that

the duties of a three-judge panel are restricted to the "trial" phase of a capital case and the

issues "arising upon the trial." Our research indicates that in capital murder cases, a single

judge, and not a three-judge panel, has routinely ruled upon a capital defendant's PCR

petition. See, e.g., State v. Rojas, 1st Dist. Hamilton No. C-950091, 1995 Ohio App. LEXIS

5764 (Dec. 19, 1995). The one exception was a case from the Second Appellate District

where a PCR petition was ruled upon by a three-judge panel. State v. Bays, 2d Dist. Greene

No. 96-CA-118, 1998 Ohio App. LEXIS 226 (Jan. 30, 1998). Whether R.C. 2945.06 and

2953.21 require a three-judge panel to rule upon a PCR petition was not at issue in that

case. We further note that the Ohio Supreme Court has denied the affidavit of a capital

defendant seeking to disqualify a trial judge who had presided over the three-judge panel that

sentenced the defendant to death from ruling upon the defendant's PCR petition. In re

Disqualification of Nastoff, 134 Ohio St.3d 1232, 2012-Ohio-6339. The supreme court

denied the affidavit of disqualification and then held, "The case may proceed before Judge

Nastoff." Id. at ¶ 12.

{¶ 21} In 1978, the Fifth Appellate District addressed whether a capital defendant

sentenced to death by a three-judge panel was entitled to have the same three-judge panel

hear and rule upon the defendant's PCR petition. State v. Tilton, 5th Dist. Stark No. 4964,

1978 Ohio App. LEXIS 11204 (Dec. 20, 1978). The defendant's PCR petition was ostensibly

denied by the trial court, and not by a three-judge panel. The Fifth Appellate District rejected

the argument, stating: "There is no language in [R.C.] 2953.21 proceedings for post-

conviction relief which indicates that the term 'court' as used therein has other than its usual
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meaning. This means one judge and it may well be a judge other than one of the judges

presiding at the trial which resulted in a conviction and sentence." Id. at *10-11.

{¶ 22} In light of the foregoing, the trial court did not err in denying appellant's motion

to reconvene the three-judge panel that sentenced him to death for purposes of ruling on his

PCR petitions.

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

{¶ 24} Assignment of Error No. 4:

{¶ 25} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT RELIEF ON THE FIRST GROUND FOR RELIEF.

{¶ 26} In his first ground for relief, appellant challenged Ohio's postconviction relief

statutory scheme, arguing it is unconstitutional because it does not provide an adequate

corrective process. The trial court denied relief on the basis of this court's opinion in State v.

McKelton, 12th Dist. Butler No. CA2015-02-028, 2015-Ohio-4228. Appellant urges this court

to reconsider our holding in McKelton.

{¶ 27} The Ohio Supreme Court has held that the statutory procedure for

postconviction relief constitutes "the best method of protecting constitutional rights of

individuals and, at the same time, providing a more orderly method of hearing such matters."

Freeman v. Maxwell, 4 Ohio St.2d 4, 6 (1965). In addition, this court has already determined

that "[t]he statutory procedure for postconviction relief constitutes an adequate corrective

process." State v. Lindsey, 12th Dist. Brown No. CA2002-02-002, 2003-Ohio-811, ¶ 13;

State v. Davis, 12th Dist. Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 34. Other Ohio

appellate districts have held the same. See State v. Conway, 10th Dist. Franklin No. 12AP-

412, 2013-Ohio-3741, ¶ 63; State v. Trimble, 11th Dist. Portage No. 2007-P-0098, 2008-

Ohio-6409, ¶ 108; State v. Frazier, 6th Dist. Lucas No. L-07-1388, 2008-Ohio-5027, ¶ 70;

State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, ¶ 143-149. We see no
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reason to deviate from this prior precedent and therefore continue to find that Ohio's

postconviction relief statutory scheme is constitutional. State v. Lawson, 12th Dist. Clermont

No. CA2013-12-093, 2014-Ohio-3554, ¶ 43. Accordingly, the trial court did not err when it

denied appellant's first ground for relief.

{¶ 28} Appellant's fourth assignment of error is overruled.

{¶ 29} Assignment of Error No. 3:

{¶ 30} THE TRIAL COURT ERRED WHEN IT ISSUED INCOMPLETE FINDINGS OF

FACT AND CONCLUSIONS OF LAW.

{¶ 31} Appellant argues the trial court improperly denied his PRC petitions because it

failed to make sufficient findings of fact regarding all of the claims raised in his petitions and

failed to consider the supporting exhibits.

{¶ 32} R.C. 2953.21(C) explicitly requires a trial court to "determine whether there are

substantive grounds for relief," to consider the PCR petition and its supporting affidavits in

making that determination, and to make findings of fact and conclusions of law when denying

relief on a PCR petition. State v. Lester, 41 Ohio St.2d 51, 54 (1975); State v. Wilson, 12th

Dist. Madison No. CA2013-10-034, 2014-Ohio-2342, ¶ 21.

{¶ 33} The purpose of requiring findings of fact and conclusions of law is to apprise

the petitioner of the basis for the trial court's disposition and to enable meaningful appellate

review. State v. Mapson, 1 Ohio St.3d 217, 219 (1982). Thus, "[t]he existence of findings

and conclusions are essential in order to prosecute an appeal." Id. "[T]he 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." Id.

{¶ 34} Findings of fact and conclusions of law should be clear, specific, and complete.

State v. Martin, 12th Dist. Warren Nos. CA2003-06-065 and CA2003-06-066, 2004-Ohio-702,

¶ 22. While a trial court need not discuss every issue that the petitioner raises or engage in
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an elaborate and lengthy discussion in its findings of fact and conclusions of law, its findings

must be sufficiently comprehensive and pertinent to the issues to form a basis upon which

the evidence supports the conclusion. Calhoun, 86 Ohio St.3d at 291-292. In order for an

appellate court to determine the basis for judgment, the findings of fact and conclusions of

law should respond to all material or determinative issues in the case. Lindsey, 2003-Ohio-

811 at ¶ 16.

{¶ 35} As stated above, appellant raised 16 grounds for relief in his first PCR petition,

and with the exception of one ground, raised duplicative grounds for relief in his

supplemental PCR petition. Citing Ketterer I, Ketterer II, Ketterer III, or State v. Perry, 10

Ohio St.2d 175 (1967), the trial court summarily denied relief on most of the grounds on the

basis of res judicata.

{¶ 36} Res judicata is a proper basis for dismissing a PCR petition. Lester, 41 Ohio

St.2d at 55. "[W]hen a petition is summarily dismissed because all claims raised are barred

by res judicata, the trial court should make and file findings of fact and conclusions of law

with respect thereto, and, where appropriate, should specify the portions of the files and

records which establish the bar of res judicata." Id. The trial court is required to "make a

finding as to the substantive basis of each claim for relief contained in a petition," and "the

findings of the trial court should reply to each of a petitioner's substantive claims." Id.

{¶ 37} We find the trial court issued insufficient findings of fact and conclusions of law

in denying appellant's PCR petitions. In a three-page entry, the trial court summarily denied

14 grounds for relief raised in appellant's first PCR petition on the basis of res judicata, and in

a duplicative four-page entry, likewise summarily denied 14 grounds for relief raised in

appellant's supplemental PCR petition.

{¶ 38} The trial court's entries dismissing the petitions simply conclude that appellant

is entitled to no relief. The entries do not describe or discuss the several and specific claims
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raised by appellant but instead generically label them in headings before summarily denying

them. While the entries reference four supreme court opinions as the basis for its denial of

the PCR petitions, they do not specify which portions of the supreme court opinions

specifically addressed and rejected the issues raised by appellant in his petitions. Further,

the entries do not indicate the trial court reviewed the documents submitted in support of the

PCR petitions, do not contain any reference to those supporting documents, and do not

explain why the supporting documents do not prevent the application of res judicata. In other

words, the trial court's conclusory finding that appellant is entitled to no relief because of res

judicata bars does not provide this court with adequate reasons to evaluate whether the trial

court erred in its decision.

{¶ 39} The trial court's failure to make the requisite findings of fact and conclusions of

law prevents us from conducting a meaningful judicial review. We therefore reverse the trial

court's denial of appellant's PCR petitions and remand this cause to the trial court to make

findings of fact and conclusions of law as required by R.C. 2953.21.

{¶ 40} Appellant's third assignment of error is sustained.

{¶ 41} Assignment of Error No. 2:

{¶ 42} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S POST-

CONVICTION PETITIONS WITHOUT AFFORDING HIM THE OPPORTUNITY TO

CONDUCT DISCOVERY.

{¶ 43} Appellant argues the trial court erred in denying his PCR petitions without first

allowing him to conduct discovery.

{¶ 44} At the outset, we note that appellant sought leave to conduct discovery prior to

the trial court ruling on the merits of his PCR petitions in three separate pleadings, to wit, in

both PCR petitions' prayers for relief and in a motion filed in February 2005. While appellant

further moved for discovery in April 2005 and November 2010, it is not clear the motions
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related to his PCR petitions. The April 2005 motion sought discovery pursuant to Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), and appellant avers a Brady claim is not a

discovery issue. The November 2010 motion was addressed in Ketterer III. We therefore

only address appellant's discovery prayers and February 2005 motion. The trial court

implicitly denied the prayers by denying the PCR petitions. It denied the motion on two

grounds: res judicata and failure to submit any documentary evidence dehors the record.

{¶ 45} As stated above, a postconviction proceeding is not an appeal of a criminal

conviction, but rather, a collateral, civil attack on a criminal judgment. Steffen, 70 Ohio St.3d

at 410. Because postconviction relief is a statutory right, not a constitutional right, R.C.

2953.21 grants a petitioner "only those rights specifically enumerated in its provisions and no

more." State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, ¶ 28. Until recently, it was well-

established that the statutory scheme governing postconviction relief did not entitle a

petitioner to conduct discovery. Id.; State v. Osie, 12th Dist. Butler No. CA2014-10-222,

2015-Ohio-3406, ¶ 31. Nevertheless, discovery could be proper where a petitioner set forth

operative facts outside the record that revealed a constitutional error in his or her case.

McKelton, 2015-Ohio-4228 at ¶ 41.

{¶ 46} The Ohio Legislature has recently amended R.C. 2953.21. Newly-amended

R.C. 2953.21, which became effective on April 6, 2017, makes substantial changes regarding

PCR petitions in death-penalty cases, and in particular, allows capital petitioners to obtain

discovery in aid of their PCR petition if good cause is shown.

{¶ 47} Consequently, we remand the case for the trial court to determine whether

newly-amended R.C. 2953.21 applies to appellant's PCR petitions, and if so, whether

appellant has shown good cause under the new statute and is entitled to discovery. If the

trial court determines that appellant has shown good cause under the new statute, the trial

court is instructed to proceed with the discovery provisions of newly-amended R.C. 2953.21
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and then determine the merits of the petitions supporting its decision with the requisite

findings of facts and conclusions of law. If, on the other hand, the trial court determines that

appellant has failed to show good cause under the new statute and is therefore not entitled to

discovery, the trial court is instructed to make the requisite findings of fact and conclusions of

law necessary to support its denial of appellant’s PCR petitions in compliance with our

holding under appellant’s third assignment of error. We note that pursuant to newly-

amended R.C. 2953.21, whether a trial court denies or grants a capital defendant's PCR

petition, the court shall make and file findings of fact and conclusions of law, and "the

findings of fact and conclusions of law shall state specifically the reasons" for "the dismissal

of the petition and of each claim it contains," or "for the finding of grounds for granting the

relief, with respect to each claim contained in the petition."

{¶ 48} To that extent only, appellant's second assignment of error is sustained.

{¶ 49} Assignment of Error No. 5:

{¶ 50} THE TRIAL COURT ERRED WHEN IT FOUND THE SECOND GROUND FOR

RELIEF PROCEDURALLY BARRED AND DENIED APPELLANT DISCOVERY, AN

EVIDENTIARY HEARING AND RELIEF.

{¶ 51} Assignment of Error No. 6:

{¶ 52} THE TRIAL COURT ERRED WHEN IT FOUND THE THIRD GROUND FOR

RELIEF PROCEDURALLY BARRED AND DENIED APPELLANT DISCOVERY, AN

EVIDENTIARY HEARING AND RELIEF.

{¶ 53} Assignment of Error No. 7:

{¶ 54} THE TRIAL COURT ERRED WHEN IT FOUND THE FOURTH GROUND FOR

RELIEF BARRED BECAUSE IT HAD BEEN RAISED ON DIRECT APPEAL AND DENIED

APPELLANT DISCOVERY, AN EVIDENTIARY HEARING AND RELIEF.

{¶ 55} Assignment of Error No. 8:
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{¶ 56} THE TRIAL COURT ERRED WHEN IT FOUND THE FIFTH AND SIXTH

GROUNDS FOR RELIEF BARRED BECAUSE THEY HAD BEEN RAISED ON DIRECT

APPEAL AND DENIED APPELLANT DISCOVERY, AN EVIDENTIARY HEARING AND

RELIEF.

{¶ 57} Assignment of Error No. 9:

{¶ 58} THE TRIAL COURT ERRED WHEN IT: A) FOUND THE SEVENTH AND

TWELFTH GROUNDS FOR RELIEF PROCEDURALLY BARRED BECAUSE THEY HAD

BEEN RAISED ON DIRECT APPEAL AND B) DENIED APPELLANT DISCOVERY, AN

EVIDENTIARY HEARING AND RELIEF.

{¶ 59} Assignment of Error No. 10:

{¶ 60} THE TRIAL COURT ERRED WHEN IT FOUND THE EIGHTH, THIRTEENTH,

AND FOURTEENTH GROUNDS BARRED BECAUSE THEY HAD BEEN RAISED ON

DIRECT APPEAL AND DENIED APPELLANT DISCOVERY, AN EVIDENTIARY HEARING

AND RELIEF.

{¶ 61} Assignment of Error No. 11:

{¶ 62} THE TRIAL COURT ERRED WHEN IT FOUND THE NINTH GROUND FOR

RELIEF PROCEDURALLY BARRED BECAUSE IT HAD BEEN RAISED ON DIRECT

APPEAL AND DENIED APPELLANT DISCOVERY, AN EVIDENTIARY HEARING AND

RELIEF.

{¶ 63} Assignment of Error No. 12:

{¶ 64} THE TRIAL COURT ERRED WHEN IT FOUND THE TENTH AND ELEVENTH

GROUNDS FOR RELIEF WERE PROCEDURALLY BARRED BECAUSE THEY WERE

RAISED ON DIRECT APPEAL AND DENIED APPELLANT DISCOVERY, AN EVIDENTIARY

HEARING AND RELIEF.

{¶ 65} Assignment of Error No. 13:
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{¶ 66} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT DISCOVERY, AND AN EVIDENTIARY HEARING ON THE SIXTEENTH

GROUND FOR RELIEF.

{¶ 67} In his fifth through twelfth assignments of error, appellant argues the trial court

improperly denied his PCR petitions on the basis of res judicata. In his thirteenth assignment

of error, appellant argues the trial court erred in denying relief on the ground "the allegations

one through fifteen of said petition do not present any error which can accumulate to justify

said relief." These assignments of error are moot given our holding and reversal in

appellant's third assignment of error. See State v. Guenther, 9th Dist. Lorain No.

06CA008914, 2007-Ohio-681; App.R. 12(A)(1)(c).

{¶ 68} Judgment affirmed in part and reversed in part, and the matter is remanded for

further proceedings consistent with this opinion.

HENDRICKSON, P.J., and RINGLAND, J., concur.

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