[Cite as State v. Norris, 2018-Ohio-3079.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
CLARENCE NORRIS : Case No. CT2017-0067
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2016-0042
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 2, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ELIZABETH N. GABA
Prosecuting Attorney 1231 East Broad Street
By: GERALD V. ANDERSON II Columbus, OH 43205
Assistant Prosecuting Attorney
27 N. Fifth Street, 2nd Floor
Zanesville, OH 43702
Muskingum County, Case No. CT2017-0067 2
Wise, Earle, J.
{¶ 1} Petitioner- appellant Clarence P. Norris appeals the September 25, 2017
judgment of the Muskingum County Court of Common Pleas which denied his petition for
post-conviction relief. Plaintiff-appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} On April 26, 2014, appellant, along with several other individuals, invaded
a home. They entered with a firearm and a taser gun, and one of them stole a gun from
a kitchen drawer inside the house. After kicking in the door, they searched the home and
threatened the owner and her two young children. They tased the homeowner and
demanded money.
{¶ 3} Appellant was later indicted on eleven felony counts: one count of
aggravated burglary, three counts of aggravated robbery, six counts of kidnapping and
one count of theft. All counts except the theft carried firearm specifications. Following
negotiations with the state, appellant elected to enter a pleas of guilty. The State agreed
to recommend a sentence of ten years incarceration, and appellant agreed to testify
against the others involved in the home invasion.
{¶ 4} At the plea hearing, there was some confusion between the parties as to
how appellant would be required to serve the firearm specifications. Before taking
appellant's pleas of guilty, however, the trial court determined not only that appellant
understood each of the charges against him, but that ten counts of the indictment carried
a firearm specification, and that a firearm specification carries a three-year mandatory
sentence, to be served consecutively to any other sentence. Additionally, the court
determined that appellant understood the court was not bound by the prosecutor's
Muskingum County, Case No. CT2017-0067 3
sentencing recommendation. Appellant's signed plea form further recited that appellant
understood that any sentencing recommendation did not have to be followed by the court.
Counsel for appellant argued that the firearm specifications should merge into a single
three-year sentence. The trial court asked counsel to submit his argument in writing. After
accepting appellant's pleas of guilty, the trial court ordered a pre-sentence investigation,
and set the matter over for sentencing.
{¶ 5} At sentencing, the issue of the merger of the firearm specifications was
further discussed. Counsel for appellant argued that the firearm specifications should
merge, and only one three-year mandatory sentence should be served. The State
disagreed. The court noted that if they all had to be consecutive, the State could not live
up to its plea negotiations. The State then argued that the court must impose two
consecutive firearm specifications pursuant to statute, and after that, it was within the
court's discretion to impose any additional specifications. When counsel for appellant
noted that it did not make a difference if the time served was pursuant to the firearm
specifications or the underlying crime, the court stated that it did make a difference, as
the firearm specifications were mandatory time as opposed to regular time. The court
stated that it wanted to make sure appellant understood this difference. Counsel for
appellant informed the court that appellant did understand that the second three years
would make a difference as to his eligibility for earned days of credit and some programs
he could participate in. The court then clarified once again that two firearm specifications
are the minimum, especially when there were three victims.
{¶ 6} Before imposing sentence, the trial court asked appellant if there was
anything he wanted to say in his own behalf, and appellant apologized to his family. The
Muskingum County, Case No. CT2017-0067 4
court then merged three of the kidnapping counts into the other three kidnapping counts,
and sentenced appellant to ten years incarceration on each of the convictions for
aggravated burglary, aggravated robbery, and kidnapping, and eighteen months
incarceration on the theft conviction, to be served concurrently. The court sentenced
appellant to three-year mandatory terms of incarceration on the firearm specifications
accompanying the aggravated burglary charge and one of the kidnapping charges, to be
served consecutively, for an aggregate term of sixteen years.
{¶ 7} Appellant filed an appeal with this court raising four assignments of error
challenging the consecutive nature of the firearm specifications, the fact that the trial court
did not suspend the plea hearing when it because apparent that the plea negotiations
overlooked consecutive imposition of the firearm specifications, and that trial counsel was
ineffective in his deficient understanding of sentencing for the specifications, by his failure
to object to the trial court's lack of an appropriate colloquy, and by his failure to move to
withdraw the plea at sentencing when warned by the court that a ten year sentence was
not possible. We affirmed appellant's convictions and sentence. State v. Norris, 5th Dist.
Muskingum No. CT2016-0037, 2017-Ohio-1570.
{¶ 8} On September 7, 2017, appellant filed a timely petition for post-conviction
relief. He raised three arguments alleging ineffective assistance of counsel, including an
argument that his trial counsel rendered ineffective assistance because he never explored
appellant's alleged intellectual deficits/mental retardation. According to appellant, these
deficits rendered him incapable of being the "mastermind" of these crimes and of
understanding his plea and sentence. In support of this claim, appellant attached to his
Muskingum County, Case No. CT2017-0067 5
petition, evidence that he had an individualized education program (IEP) during his senior
year of high school.
{¶ 9} The trial court denied the petition without a hearing, finding all of appellant's
claims were barred by the doctrine of re judicata.
{¶ 10} Appellant filed an appeal, and the matter is now before this court for
consideration. He raises two assignments of error:
I
{¶ 11} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND
ABUSED ITS DISCRETION WHEN IT DISMISSED APPELLANT’S PETITION FOR
POSTCONVICTION RELIEF BASED ON “RES JUDICATA”. THE DOCTRINE OF RES
JUDICATA DOES NOT BAR POSTCONVICTION CLAIMS THAT ARE SUPPORTED BY
EVIDENCE THAT IS OUTSIDE THE RECORD OF THE MERIT APPEAL.”
II
{¶ 12} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND
ABUSED ITS DISCRETION WHEN IT DISMISSED APPELLANT’S PETITION FOR
POSTCONVICTION RELIEF BASED ON “RES JUDICATA”. APPELLANT SUBMITTED
EVIDENTIARY DOCUMENTS CONTAINING SUFFICIENT OPERATIVE FACTS TO
DEMONSTRATE THE LACK OF COMPETENT COUNSEL AND THAT THE DEFENSE
WAS PREJUDICED BY COUNSEL’S INEFFECTIVENESS.”
{¶ 13} Because they are interrelated, we address appellant's assignments of error
together. Appellant argues the trial court erred when it dismissed his petition for
postconviction relief on the basis of res judicata because he submitted evidentiary quality
documents outside the record which were sufficient to support his claim of ineffective
Muskingum County, Case No. CT2017-0067 6
assistance of trial counsel. He argues trial counsel was ineffective because he failed to
investigate his background and discover he is severely intellectually challenged/mentally
retarded. We agree in part, and disagree in part.
Standard of Review
{¶ 14} R.C. 2953.21(A) states in part:
(A)(1)(a) Any person who has been convicted of a criminal offense
or adjudicated a delinquent child 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.
{¶ 15} We note that appellee cites State v. Gondor, 112 Ohio St. 3d 377, 2006-
Ohio-6679, 860 N.E.2d 77 for our standard of review in this matter. Gondor found a trial
court's decision to grant or deny a postconviction petition filed pursuant to R.C. 2953.21
should be upheld absent an abuse of discretion and a reviewing court should not overrule
the trial court's finding on a petition for postconviction relief if it is supported by competent
Muskingum County, Case No. CT2017-0067 7
and credible evidence. Id. ¶ 58. We recently noted however, in State v. Weaver, 5th Dist.
Muskingum No. CT2017-0075, 2018-Ohio-2509 at ¶18:
[A]s the Fourth District Court of Appeals has discussed, the question
of the standard of review to apply when the petition is dismissed
without a hearing was not addressed by Gondor:
As we noted in State v. Harrington, 172 Ohio App.3d 595, 2007-
Ohio-3796, 876 N.E.2d 626, at ¶ 9, there is some uncertainty
concerning the appropriate standard of review used by an appellate
court when reviewing a trial court's decision to dismiss a petition for
postconviction relief without an evidentiary hearing. See also State
v. Hoffner, Lucas App. No. L-01-1281, 2002-Ohio-5201, at ¶ 6.
Appellate courts, including this one, have applied varying standards,
including de novo, see State v. Gibson, Washington App. No.
05CA20, 2005-Ohio-5353, abuse of discretion, see State v.
McKnight, Vinton App. No. 07CA665, 2008-Ohio-2435, and a mixed
question of fact and law, see Harrington, supra. While the Supreme
Court of Ohio held in State v. Gondor, 112 Ohio St.3d 377, 2006-
Ohio-6679, 860 N.E.2d 77, that courts of appeals are to apply an
abuse of discretion standard in the context of reviewing a trial court's
decision on a petition after it conducts an evidentiary hearing, it did
not address the appropriate standard on this type of proceeding, i.e.,
Muskingum County, Case No. CT2017-0067 8
where the trial court summarily dismisses a petition without a
hearing. Because decisions denying such petitions involve both
factual and legal questions, we apply a mixed question of law and
fact standard of review to determine whether the petition states
substantive grounds for relief. See Harrington, supra. Thus, we
review the trial court's decision on factual issues using a manifest
weight standard of review, and we review the trial court's decision on
legal issues on a de novo basis. See Hoffner, supra.
{¶ 16} Citing In re B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶
9.
{¶ 17} As in Weaver, the trial court here found appellant's claim of ineffective
assistance of counsel raised in the petition was barred by res judicata. This presents a
question of law which we review de novo.
Postconviction Relief
{¶ 18} A petition for postconviction relief under R.C. 2953.21 is a civil collateral
attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun, 86 Ohio
St.3d 279, 281, 714 N.E.2d 905 (1999). A petition for postconviction relief is a means to
reach constitutional issues that would be impossible to reach in a direct appeal because
the evidence supporting the petitioner's claims are not contained in the record of the
petitioner's criminal conviction. State v. Zich, 6th Dist. Lucas No. L-15-1263, 2017-Ohio-
414, ¶ 9, quoting State v. Murphy, 10th Dist. Franklin App. No. 00AP–233, 2000 WL
1877526 (Dec. 26, 2000). R.C. 2953.21 affords a petitioner postconviction relief “only if
Muskingum County, Case No. CT2017-0067 9
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.
Res Judicata
{¶ 19} Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that was raised or could
have been raised by the defendant at the trial which resulted in that judgment of conviction
or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104
(1967), paragraph nine of the syllabus.
Ineffective Assistance of Trial Counsel
{¶ 20} The standard for ineffective assistance of counsel is set forth in State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), certiorari denied 497 U.S. 1011, 110
S.Ct. 3258, 111 L.Ed.2d 768. Appellant must establish two criteria. First that counsel's
performance fell below an objective standard of reasonable representation and second
that prejudice arises from counsel's performance. Id. 142. In other words, appellant must
establish “... but for counsel's unprofessional errors, the result of the proceedings would
have been different.” Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
Appellant's Petition for Postconviction Relief
{¶ 21} Appellant set forth three claims in his petition for postconviction relief. In the
first, appellant alleged that trial counsel rendered ineffective assistance because he failed
Muskingum County, Case No. CT2017-0067 10
to discover appellant's alleged severe intellectual disabilities/mental retardation.
According to appellant, counsel should have recognized his challenges and enlisted
experts to perform I.Q and adaptive behavior testing on appellant. He argued his alleged
disability impacted not only whether he had a defense to the allegations against him, but
also whether he entered a knowing, intelligent and voluntary plea. Appellant supported
these claims with a copy of an IEP from his senior year of high school. Petition at 8-12.
{¶ 22} In his second claim, appellant alleged trial counsel rendered ineffective
assistance because he did not understand how the firearm specifications were to be
served, and that the trial court compounded counsel's error by accepting appellant's pleas
and asking trial counsel to submit his arguments in regard to sentencing before the
sentencing hearing. Petition at 12-14.
{¶ 23} In his third claim, appellant argued counsel rendered ineffective assistance
when he went forward with appellant's sentencing despite the fact that the state and trial
counsel could not "live up to" their original 10-year plea negotiation. He further argued the
trial court compounded this error by failing to correct counsel's misunderstanding of the
law. Petition at 14-18.
Analysis
{¶ 24} First, we find the trial court correctly rejected appellant's second and third
postconviction petition claims on the basis of res judicata. Not only could these complaints
have been raised in a direct appeal, they were raised, and we rejected them. State v.
Norris, 5th Dist. Muskingum No. CT2016–0037 2017-Ohio-1570 at ¶ 27.
{¶ 25} Next, as for appellant's first petition claim, we find the trial court erred in
granting summary judgement on the basis of res judica. However, after a review of the
Muskingum County, Case No. CT2017-0067 11
evidence submitted by appellant in support of his ineffective assistance claim, the trial
record, and the PSI we nonetheless affirm the trial court's grant of summary judgement.
{¶ 26} Appellant did submit evidence outside the record in support of his first claim.
However, before a petitioner can be granted a hearing in proceedings for postconviction
relief upon a claim of ineffective assistance of trial counsel, petitioner bears the initial
burden to submit evidentiary quality material containing sufficient operative facts that
demonstrate a substantial violation of any of trial counsel's essential duties, in addition to
prejudice arising from that ineffectiveness. State v. Church, 5th Dist. Stark No.
2017CA00216, 2018-Ohio-368 ¶ 23, citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714
N.E.2d 905 (1999) and State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980).
Failure to present essential operative facts in supporting evidentiary quality materials
warrants dismissal of the petition for post-conviction relief without a hearing. State v.
Murphy, 5th Dist. Tuscarawas No. 87AP050039, 1987 WL 19835 (October 29, 1987).
{¶ 27} As noted above, appellant submitted evidence consisting solely of his IEP
from his senior year of high school. Nothing in this document, nor in the record, supports
a conclusion that appellant is mentally retarded, nor so intellectually incapacitated that
that he was incapable of understanding the proceedings. Appellant therefore failed to
produce any evidence to support a conclusion that trial counsel knew, or should have
known of appellant's alleged challenges. We thus find appellant failed to support his
petition with evidentiary quality materials supporting his contention that counsel failed to
perform any of his essential duties.
{¶ 28} The first and second assignments of error are overruled.
Muskingum County, Case No. CT2017-0067 12
{¶ 29} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Wise, Earle, J.
Wise, John, P.J. and
Delaney, J. concur.
EEW/rw