State v. Chandler

[Cite as State v. Chandler, 2018-Ohio-3560.]

COURT OF APPEALS
STARK 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- :
: Case Nos. 2018CA00046
: 2018CA00056
KENYAN CHANDLER :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2016CR2058A

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 4, 2018

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JOHN D. FERRERO, JR. KENYAN CHANDLER, PRO SE
STARK CO. PROSECUTOR Inmate No. A693-139
KRISTINE W. BEARD Belmont Correctional Institution
110 Central Plaza South, Ste. 510 P.O. Box 540
Canton, OH 44702-1413 St. Clairsville, OH 43950
Stark County, Case Nos. 2018CA00046, 2018CA00056 2

Delaney, J.

{¶1} Appellant Kenyan Chandler appeals from the April 18, 2018 Judgment Entry

of the Stark County Court of Common Pleas overruling his petition for post-conviction

relief.1 Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are taken in part from our decision in State v. Chandler,

5th Dist. Stark No. 2017CA00053, 2017-Ohio-9279, appeal not allowed, 152 Ohio St.3d

1466, 2018-Ohio-1795, 97 N.E.3d 501.

{¶3} Appellant was charged by indictment with one count of aggravated robbery

pursuant to R.C. 2911.01(A), accompanied by a firearm specification pursuant to R.C.

2941.145. The following evidence is adduced from the record of appellant's jury trial.

Evidence at trial: Investigation leads to appellant

{¶4} Brandie McGowan testified that she was working at the Gameroom, a

skilled game center on October 14, 2016, when two men came in the front door with a

gun. McGowan testified that one of the men made the people at the Gameroom stay

where they were while the other man took her into the office where he shattered the

register and took the money. McGowan then testified that the man made her open the

safe and he took all the money from the safe. McGowan also testified that a woman who

had come into the Gameroom earlier stood out in her mind because the woman had told

her she needed help playing the games and the woman received multiple phone calls.

McGowan further testified that the Gameroom had a video surveillance system and the

1 This appeal is consolidated from two case numbers: 2018CA00046 and 2018CA00056.
Stark County, Case Nos. 2018CA00046, 2018CA00056 3

video showed that the men who had come into the Gameroom were wearing gloves and

their faces were covered. Upon cross-examination, McGowan testified that she did not

recognize appellant and she did not recall seeing him on October 14, 2016.

{¶5} Officer Chad Kanouff of the Jackson Police Department testified that he was

dispatched to the Gameroom on October 14, 2016 in regards to a robbery. Officer Kanouff

testified that he met Brandie McGowan and she gave him the name of Shania

Summerville as someone he should talk to about his investigation. Officer Kanouff then

made contact with Summerville. Summerville denied both verbally and in a written

statement that she was involved in the crime or that she was familiar with the robbers.

Officer Kanouff asked if he could see the call history on her cell phone. Summerville

agreed and Officer Kanouff documented the numbers on his police report. One of the

recent numbers was 330–356–xxxx1 a call Summerville received at approximate 10:08

P.M. that evening. Summerville advised the officers that the cell phone number belonged

to her boyfriend, Marshawn Oliver. Officer Kanouff did not process the scene for DNA or

fingerprints because the men were wearing masks and gloves and no scientific evidence

was likely to be found at the scene.

{¶6} The next day, Detective Joshua Escola began his investigation. Detective

Escola retrieved and reviewed the videos from the Gameroom. Escola observed that

there was a significant height and weight difference between the two male perpetrators.

Detective Escola also observed that they were wearing dark clothing, masks and gloves,

which indicated that they were experienced and made it hard to collect any scientific

evidence.
Stark County, Case Nos. 2018CA00046, 2018CA00056 4

{¶7} As part of the investigation, Detective Escola typed the cell phone number

from Summerville's cell phone call history into the Facebook site. Escola found a

Facebook account registered to appellant with the same cell phone number. Appellant's

Facebook account also showed that Summerville was listed as being one of his friends.

Detective Escola also discovered that Marshawn Oliver is actually Summerville's family

member and not her boyfriend. As a result, Detective Escola attempted to contact

Summerville. Initially Detective Escola was unable to contact Summerville because she

had given the officers a fake telephone number. Detective Escola then contacted Amber

Walters. Walters advised Escola that she knew both Summerville and Appellant. She

provided Escola with Summerville's number and verified that 330–356–xxxx was the cell

phone number for appellant. At trial, Walters testified that on October 18, 2017, four days

after the robbery, appellant called Walters and told her the cell phone number was no

longer good. Walters also testified that appellant was on a GPS monitor on the night of

the robbery and that the monitor had not been charged. Therefore, appellant's

whereabouts were unsupervised when the robbery occurred.

{¶8} Escola contacted Summerville who agreed to come to the Jackson Police

Department for a second interview. Initially, Summerville denied knowing anything about

the robbery. However, after being confronted with the cell phone and Facebook

information, Summerville admitted that she was the lookout for the two men at the

Gameroom the night of the robbery. Summerville also advised Detective Escola that the

man holding the gun in the video was her boyfriend: appellant. Summerville also identified

Taronn Jeffries as the other male accomplice. Detective Escola further testified that

Jeffries and appellant's height and weight were consistent with the men in the Gameroom
Stark County, Case Nos. 2018CA00046, 2018CA00056 5

video. Detective Escola placed Summerville under arrest for complicity to commit

aggravated robbery.

{¶9} Summerville was subsequently indicted for a felony five theft, in exchange

for her testimony against appellant. At trial, Summerville testified that in October of 2016

she and her four-year-old son were living with appellant. She stated that on October 14,

2016, appellant asked her to scope out the Gameroom. She stated that when she arrived

at the Gameroom the owner walked her around and taught her how to play the games.

While she was there she received two calls from appellant asking her who was there

including how many men and how many women were present.

{¶10} At approximately 10:15, she saw appellant and Jeffries come through the

front door of the Gameroom. She admitted that she saw Jeffries take the owner upstairs,

while appellant stayed at the front door holding the patrons at gunpoint. After the men left,

she stayed seated until the police arrived. She testified that she told the officers that she

did not know anything about the robbery, and gave them a fake name and number. She

testified she did agree to let the officers look at the call history on her phone. She then

left the Gameroom, picked up her son and went home.

{¶11} Summerville testified that when appellant and Jeffries got to the house they

were wearing different clothes. Taronn asked her what she told the police. A couple of

days later she got a call from Detective Escola and agreed to meet with him at the Jackson

Police Department. Summerville testified that initially she did not tell the truth but later

admitted knowing about the robbery and gave Escola the names of the other two men.

She stated that because of her confession she was arrested and charged with complicity

to commit aggravated robbery.
Stark County, Case Nos. 2018CA00046, 2018CA00056 6

{¶12} At the time of trial, Summerville testified that she originally testified to the

Grand Jury that she did not know that appellant and Jeffries were involved with the

robbery at the Gameroom until after they got home. She also admitted she told the Grand

Jury that she could not recognize them by their voices. Summerville further stated that

she gave the police the wrong phone number in order to hide from them.

Conviction and sentence

{¶13} After the presentation of evidence, appellant was found guilty as charged in

the indictment. Appellant was sentenced to serve a 6–year prison sentence for the

aggravated robbery and a 3–year mandatory consecutive sentence for the firearm

specification.

Defense trial counsel files motion for new trial: Alibi witness

{¶14} On February 13, 2017, via counsel, appellant filed a Motion for New Trial

pursuant to Crim.R. 33(A)(6). Attached to the motion is affidavit signed by Charlotte Long

stating that appellant was with her “continuously” at her house from 8:00 p.m. “until after

12:00 a.m.” on the date of the robbery; she saw appellant use his cell phone during this

time; and she left town before the trial and didn’t realize she was needed as an alibi

witness. Appellee responded with a motion in opposition. On May 18, 2017, the trial

court overruled the motion for new trial because appellant had knowledge of the alibi at

the time of trial and had knowledge of the witness “for an extended period of time,” thus

the purported alibi was not newly-discovered evidence.
Stark County, Case Nos. 2018CA00046, 2018CA00056 7

Direct appeal: convictions and sentence affirmed

{¶15} Our decision affirming appellant’s conviction and sentence was announced

on December 26, 2017. State v. Chandler, 5th Dist. Stark No. 2017CA00053, 2017-Ohio-

9279, appeal not allowed, 152 Ohio St.3d 1466, 2018-Ohio-1795, 97 N.E.3d 501.

Petition for post-conviction relief: Same alibi witness

{¶16} On March 20, 2018, appellant filed a petition for post-conviction relief

asserting that trial counsel was ineffective in “failing to investigate Ms. Long.” Appellant

attached an affidavit from Long stating that he was at her house “overnight” on the night

of the robbery and she tried to “reach out” to defense trial counsel several times.

Appellant also attached an affidavit of his own to the motion, stating he told defense trial

counsel about Long “to no avail” and that her testimony would have been exculpatory

because appellee could not prove his whereabouts due to a malfunction of the ankle

bracelet he was wearing at the time. Appellee filed a response in opposition. The trial

court overruled appellant’s petition by judgment entry dated April 4, 2018.

{¶17} Appellant now appeals from the trial court’s entry of April 4, 2018.

{¶18} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶19} “I. A TRIAL COURT ABUSES ITS DISCRETION WHEN IT FAILS TO TAKE

INTO CONSIDERATION THE AFFIDAVITS SET FORTH IN A PETITIONER’S PETITION

FOR POST-CONVICTION RELIEF.”

{¶20} “II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

INVESTIGATE THE TESTIMONY OF CHARLOTTE LONG.”
Stark County, Case Nos. 2018CA00046, 2018CA00056 8

ANALYSIS

I., II.

{¶21} Appellant’s two assignments of error are interrelated and will be considered

together. In his first assignment of error, appellant argues the trial court should have

considered the affidavits of appellant and Long in ruling upon his petition for post-

conviction relief. In his second assignment of error, he argues he received ineffective

assistance of defense trial counsel. We disagree with both arguments.

{¶22} Appellant argues the trial court erred in denying his petition for post-

conviction relief filed pursuant to R.C. 2953.21, which states in pertinent part:

(A)(1)(a) 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.

{¶23} A defendant may only seek post-conviction relief for violations of his State

and Federal Constitutional rights. Both the United States Constitution and the Ohio

Constitution provide for the right to assistance of counsel. Counsel's performance will not

be deemed ineffective unless and until counsel's performance is proved to have fallen

below an objective standard of reasonable representation and, in addition, prejudice
Stark County, Case Nos. 2018CA00046, 2018CA00056 9

arises from counsel's performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). To show a defendant has been prejudiced by counsel's

deficient performance, the defendant must demonstrate, but for counsel's errors, the

result of the trial would have been different. State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989).

{¶24} In order for an indigent petitioner to be entitled to an evidentiary hearing in

a post-conviction relief proceeding on a claim that he was denied effective assistance of

counsel, the two-part Strickland test is to be applied. Lockhart v. Fretwell, 506 U.S. 364,

113 S.Ct. 838, 122 L.Ed.2d 180(1993); Bradley, supra, 42 Ohio St.3d 136. The petitioner

must therefore prove that: 1) counsel's performance fell below an objective standard of

reasonable representation; and 2) there exists a reasonable probability that, were it not

for counsel's errors, the result of the trial would have been different. Id.

{¶25} Furthermore, before a hearing is granted in proceedings for post-conviction

relief upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial

burden to submit evidentiary material containing sufficient operative facts that

demonstrate a substantial violation of any of defense counsel's essential duties to his

client and prejudice arising from counsel's ineffectiveness. State v. Calhoun, 86 Ohio

St.3d 279, 289, 714 N.E.2d 905 (1999); State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d

819 (1980), syllabus; see, also Strickland v. Washington, supra, 466 U.S. at 687.

{¶26} We have previously held that our standard of review is de novo when

reviewing a trial court's dismissal or denial of a petition for post-conviction relief without a

hearing. State v. Johnson, 5th Dist. Guernsey No. 12 CA 19, 2013-Ohio-1398, ¶ 27, citing
Stark County, Case Nos. 2018CA00046, 2018CA00056 10

State v. Volgares, 4th Dist. Lawrence No. 05CA28, 2006-Ohio-3788, ¶ 8, internal citation

omitted.

{¶27} The Ohio Supreme Court has also recognized: “In post-conviction cases, a

trial court has a gatekeeping role as to whether a defendant will even receive a

hearing.” State v. Gondor, 112 Ohio St.3d 377, 388, 860 N.E.2d 77, 2006–Ohio–6679, ¶

51. A petition for post-conviction relief does not provide a petitioner a second opportunity

to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary

hearing on the petition. State v. Wilhelm, 5th Dist. Knox No. 05–CA–31, 2006–Ohio–

2450, ¶ 10, citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). As

an appellate court reviewing a trial court's decision in regard to the “gatekeeping” function

in this context, we apply an abuse-of-discretion standard. See Gondor, supra, at ¶ 52,

citing State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999); accord State v.

Scott, 5th Dist. Stark No.2006CA00090, 2006–Ohio–4694, ¶ 34. In order to find an abuse

of discretion, we must determine that the trial court's decision was unreasonable, arbitrary

or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore,

5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶28} Both of appellant’s arguments in the instant case are premised upon his

assertion that he was denied effective assistance of trial counsel because defense trial

counsel failed to “investigate” a potential alibi witness--Long, the subject of the motion for

new trial. Appellant attached two affidavits to his post-conviction petition, his own and

Long’s.

{¶29} Long’s states in pertinent part:
Stark County, Case Nos. 2018CA00046, 2018CA00056 11

* * * *. I am writing this letter on behalf of [appellant]. He’s been a

friend of mine for a few years. I’ve tried to reach out to his lawyer

since he was being held in the County. On the day in question

[appellant] was at my house on 632 Young St. S.E. Massillon, Ohio

44646, if you look at his phone record and location you can see that.

He was at my house overnight. If you have any questions feel free

to call me at [redacted]. * * * *.

{¶30} Appellant’s own affidavit states in pertinent part:

* * * *. Before my trial, I informed [defense trial counsel] my alibi and

the name and number of Ms. Charlotte Long who lives at 632 Young

Street Massillon Ohio and informed him that I was with her all night.

Ms. Long tried to contact [defense trial counsel] to no avail. After my

trial, which Ms. Long was unaware of, Ms. Long delivered an affidavit

stating that I was with her throughout the night to [defense trial

counsel]. [Defense trial counsel] failed to request a new trial due to

new evidence. * * * *.

{¶31} First, appellant’s claim that defense trial counsel failed to file a motion for

new trial based upon the Long alibi is belied by the record. Counsel filed a motion for

new trial, accompanied by an affidavit completed by “Charlotte Brown,” but the trial court

overruled the motion because Long’s identity and purported alibi was not newly-

discovered evidence.

{¶32} Appellant's own affidavit is self-serving in addition to being factually wrong.

Affidavits which merely set forth legal conclusions or opinions without stating supporting
Stark County, Case Nos. 2018CA00046, 2018CA00056 12

facts are insufficient. Tolson v. Triangle Real Estate, 10th Dist. Franklin No. 03AP–715,

2004–Ohio–2640, paragraph 12. Appellant's self-serving affidavit presumes prejudice

and is insufficient to demonstrate he suffered any prejudice by his counsel's alleged

failure.

{¶33} Long’s affidavit avers she attempted to contact defense trial counsel about

the possibility of testifying on behalf of appellant, and yet she simultaneously claims not

to have known when the trial took place. She states counsel failed to contact her prior to

the end of the trial and she could have helped appellant be found not guilty. The

corroboration of this statement, apparently, is the fact that appellant’s ankle bracelet could

not reliably establish his whereabouts on the night of the robbery. We note, though, that

evidence at trial directly contradicts appellant’s purported alibi, and Long’s statement,

because Summerville identified appellant as one of the robbers on the videotape and

other circumstantial evidence tied him to the robbery. The ineffectiveness of the ankle

bracelet was not insurmountable for appellee at trial and appellee was able to place

appellant at the scene of the robbery.

{¶34} Even if we accept Long’s affidavit as true, therefore, appellant has not

demonstrated how her testimony would have changed the outcome of the trial because it

would have been her word against Summerville and the circumstantial evidence

otherwise tying appellant to the robbery. The weight of the evidence and the credibility

of the witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d

227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. Appellant’s assertion that Long’s

testimony would have resulted in his acquittal is purely speculative.
Stark County, Case Nos. 2018CA00046, 2018CA00056 13

{¶35} We therefore find appellant has not demonstrated that but for the alleged

failures of defense trial counsel, the outcome of the trial would have been different. See,

State v. Poulton, 5th Dist. Muskingum No. CT2016-0023, 2017-Ohio-60, appeal not

allowed, 149 Ohio St.3d 1421, 2017-Ohio-4038, 75 N.E.3d 238.

{¶36} We further find the trial court did not abuse its discretion in denying

appellant’s petition for post-conviction relief. As self-serving testimony, the trial court

could give little or no weight to appellant’s own affidavit. State v. Church, 5th Dist. Stark

No. 2017CA00216, 2018-Ohio-368, ¶ 33, appeal not allowed, 152 Ohio St.3d 1483, 2018-

Ohio-1990, 98 N.E.3d 296, citing Calhoun, supra, 86 Ohio St.3d at 281; State v. Elmore,

5th Dist. No. 2005–CA–32, 2005–Ohio–5740, ¶ 109. The judge who reviewed defendant's

post-conviction relief petition was the same judge who presided at the jury trial and the

sentencing hearing. Thus, the trial judge was familiar with the underlying proceedings and

was in the best position to assess appellant’s credibility in his affidavit, having presided

over appellant's jury trial. Calhoun, supra, 86 Ohio St.3d 279, 286.

{¶37} Appellant vaguely contends that defense trial counsel did not properly

“investigate” Long. In ruling upon the motion for new trial, the trial court found “* * *

*[appellant] had knowledge of the alibi at the time of the trial and had had knowledge of

the witness for an extended period of time.” When there is no demonstration that counsel

failed to research the facts or the law or that counsel was ignorant of a crucial defense, a

reviewing court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio St.2d

45, 49, 402 N.E.2d 1189 (1980), citing People v. Miller, 7 Cal.3d 562, 573-574, 102

Cal.Rptr. 841, 498 P.2d 1089 (1972); State v. Wiley, 10th Dist. Franklin No. 03AP-340,

2004-Ohio-1008, ¶ 21.
Stark County, Case Nos. 2018CA00046, 2018CA00056 14

{¶38} The petition, the documentary evidence, the files, the transcript and the

record do not demonstrate that appellant set forth sufficient operative facts to establish

substantive grounds for relief concerning counsel's effectiveness. See, State v. Curtis,

5th Dist. Muskingum No. CT2018-0014, 2018-Ohio-2822, citing Calhoun, 86 Ohio St.3d

at paragraph two of the syllabus; see R.C. 2953.21(C).

{¶39} Appellant has not established ineffective assistance of defense trial counsel

and the trial court did not abuse its discretion in overruling his petition for post-conviction

relief. Appellant’s two assignments of error are therefore overruled.

CONCLUSION

{¶40} Appellant’s two assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.