State v. Fox

[Cite as State v. Fox, 2020-Ohio-5521.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 19AP-677
v. : (C.P.C. No. 15CR-5585)

Lewis R. Fox, : (ACCELERATED CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 3, 2020

On brief: Ron O'Brien, Prosecuting Attorney, and Daniel J.
Stanley, for appellee.

On brief: Lewis R. Fox, pro se.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} Defendant-appellant, Lewis R. Fox, appeals the September 5, 2019 decision

of the Franklin County Court of Common Pleas denying his timely petition for

postconviction relief without a hearing.

{¶ 2} Fox was indicted on November 13, 2015, with two counts of felonious assault

in violation of R.C. 2903.11, each with three-year firearm specifications. Following a jury

trial in January 2017, Fox was found guilty on all counts and sentenced to a total term of

ten years incarceration. This court affirmed his conviction and the Supreme Court of Ohio

did not accept jurisdiction over his case. See State v. Fox, 10th Dist. 17AP-295, 2018-Ohio-

501, discretionary appeal not allowed, 152 Ohio St.3d 1484, 2018-Ohio-1990.
 2
No. 19AP-677
{¶ 3} In its opinion affirming his conviction on direct appeal, this court

summarized the evidence presented at Fox's trial:

Mary Griffin testified as follows. During the evening of
October 29, 2015, Mary Griffin and her grandmother, Mary
Robinson, drove to Elaine Robinson's residence. When they
arrived, Elaine opened the door and they all talked, with Mary
Griffin and Mary Robinson standing just outside the front
door. At some point, Fox came down from the upstairs of the
residence, and "some words were exchanged" between Mary
Griffin and Fox. Fox called Mary Griffin and Mary Robinson
"bitch[es]," and said if they "didn't move off his porch that he
was going to shoot" them. Fox was only a few feet away from
Mary Griffin as they verbally confronted each other. Mary
Griffin heard two or three gunshots and then realized she had
been shot in her upper thigh. Mary Griffin did not see the
firearm in Fox's hand prior to hearing the gunshots, but she
observed Fox raise his arm when the shots were fired. Fox had
pointed the gun at Mary Griffin's leg. Mary Griffin denied
lunging at or touching Fox before the shooting. Mary Robinson
was standing close behind Mary Griffin at the time of the
shooting.

Mary Robinson testified as follows. On the day of the shooting,
she and Mary Griffin intended to pick up Elaine Robinson from
her home because she was having problems with her boyfriend,
Fox. After they arrived at Elaine's residence, Elaine told them
that Fox would not let her go with them. Elaine called for Fox,
and when he descended the stairs he was angry and possibly
drunk. Fox said, "I'm sick of you bitches." Mary Robinson saw
Fox's right "hand coming up," and then she heard one or two
gunshots. Fox was pointing the weapon at Mary Griffin. Prior
to the weapon being discharged, Mary Robinson did not see
Mary Griffin touch Fox in any manner, but they were in close
proximity to each other. Mary Robinson was within arm's reach
of Mary Griffin when Fox fired the shots. Fox "didn't make any
threats * * * He just shot [Mary Griffin]." No bullet struck Mary
Robinson.

Elaine Robinson, who was called as a witness on Fox's behalf,
testified as follows. Fox and Elaine were living together on the
day of the shooting. On that day, Mary Griffin and Mary
Robinson arrived at Elaine and Fox's residence upset because
of statements Fox had made regarding Mary Robinson. Elaine
called for Fox and told him that "Mary and them are at the
door." Fox came down the stairs and to the front door. Elaine
 3
No. 19AP-677
did not see Fox carrying a weapon until she heard two
gunshots. Fox did not point the weapon at anyone. When Fox
fired the weapon, he was falling backward in response to Mary
Griffin moving her hands toward Fox. Elaine characterized the
shooting as being an accidental consequence of Fox stumbling
backward. Elaine also testified that she told the police after the
shooting that Fox shot downward at the porch to scare away
Mary Griffin and Mary Robinson.

Fox testified on his own behalf. At approximately 8:00 p.m. on
the day of the shooting, Fox was upstairs at his residence when
he heard loud voices downstairs. Fox heard someone
screaming in anger and then heard Elaine call for him in a
distressed manner. Because he was concerned that there was
an intruder in the house, he grabbed a gun from his bedroom
closet and brought it with him down the stairs. Holding the gun
hidden behind his leg with his finger on the trigger, Fox stood
in the doorway to the home and told Mary Griffin and Mary
Robinson that they needed to leave. Mary Griffin then "lunged"
at him like she was going to grab him. Fox testified that he
accidentally shot the firearm twice. Fox "stumbled back * * *
and the firearm just discharged." He "even [saw] the [* * *
5] fire shoot out twice, shot twice." He did not either raise the
gun or shoot at the ground on purpose. After the weapon fired
twice, Fox dropped it on a chair inside the house. When asked
how the firearm discharged, Fox explained, "I guess I squeezed
the trigger or something. You know how you're - - an excited
moment. I mean, it surprised me."

After the shooting, and based on information Fox provided,
police recovered a five-shot revolver in the kitchen of Elaine
and Fox's residence. Two of the rounds were spent, and the
other three were unfired. Columbus Division of Police
Detective Steven Miller, who interviewed Fox on the night of
the shooting, testified that the gun recovered from the scene of
the shooting was a "double-action" firearm. For this type of
firearm, the hammer must be pulled back with a squeeze or pull
of the trigger in order to fire each bullet. The parties stipulated
that Mary Griffin sustained an injury consistent with a single
gunshot that entered her right thigh and exited her right
buttock at a down to up trajectory.

Id. at ¶ 3-8.

{¶ 4} While his direct appeal was pending in this court, Fox filed a pro se

postconviction petition arguing that his trial counsel was ineffective, based on (1) trial
 4
No. 19AP-677
counsel's alleged failure to advise Fox to accept a proffered plea agreement, (2) trial

counsel's alleged failure to investigate the scene of the crime for additional bullet-trajectory

evidence, (3) trial counsel's alleged failure to properly prepare Elaine Robinson to testify,

(4) trial counsel's alleged failure to investigate Fox's claim of disability in his hand and arm,

(5) trial counsel's alleged failure to call the doctors who examined his hand and arm and

who examined and treated Mary Griffin's injuries as witnesses, (6) trial counsel's alleged

failure to call a private investigator as a witness, (7) trial counsel's alleged failure to call a

ballistics expert as a witness, (8) trial counsel's alleged failure to call a "gun expert" as a

witness, (9) trial counsel's alleged failure to present evidence of the lesser-included offense

of reckless assault, (10) trial counsel's alleged failure to play additional recorded witness

interviews at trial, and (11) trial counsel's alleged failure to preserve Fox's right to a speedy

trial. Fox did not attach any evidence or affidavits to his petition, but alongside his petition

he filed a motion for appointment of counsel, as well as a motion for expert assistance, and

attached to his motion for expert assistance he included a copy of a police report, letters he

received from his trial counsel and appellate counsel, a copy of a photograph of himself and

Elaine Robinson, and three hand-drawn maps of the scene of the shooting and surrounding

areas. He did not, however, submit any witness affidavits or proposed experts or attach any

expert reports but, instead, repeatedly asserted in both his petition and his motions that

evidence to support his postconviction claims "is not attached because petitioner needs the

assistance of an attorney, investigator, and/or assistance of this Honorable Court to

produce the evidence."

{¶ 5} The state filed a timely answer and motion to dismiss Fox's postconviction

petition, but the trial court held its decision on the petition in abeyance until this court and
 5
No. 19AP-677
the Supreme Court of Ohio determined the merits of Fox's direct appeal. On September 5,

2019, the trial court denied Fox's petition without a hearing:

Upon careful review of defendant's petition and the record in
this matter, the Court finds defendant's petition lacks evidence
that a constitutional error occurred that would support the
Court's finding that defendant's conviction was void or
voidable. The correspondence from defendant's trial counsel
and appellate counsel do not advance defendant's claims of
ineffective assistance. To the contrary, trial counsel's letter
actually refutes defendant's position. The other evidence
submitted by defendant; namely, the police report and
drawings of the crime scene, likewise, do not support
defendant's position of ineffective assistance of counsel or
other constitutional error. Finally, the record is replete with
speedy-trial waivers containing defendant's signature. Without
evidence containing sufficient operative facts that demonstrate
defendant's constitutional rights were violated, the Court finds
defendant's motion is without merit.

Decision and Entry at 5. Fox has appealed to this court, and now asserts three assignments

of error with the trial court's decision:

[I.] The trial court abused its discretion when it dismissed
appellant's post-conviction [sic] petition based upon: A) "The
court [found] defendant's petition lacks evidence that a
constitutional error occurred;" [sic] and, (2) "[D]efendant's
petition [was] barred by the application of res judicata."

[II.] The trial court abused its discretion when it failed to hold
an evidentiary hearing on appellant's post conviction [sic]
petition.

[III.] Appellant's conviction and sentence is voidable because
appellant was denied the effective assistance of trial counsel in
violation of his rights under the Sixth Amendment of the
United States Constitution.

{¶ 6} R.C. 2953.21(A)(1)(a) authorizes a person who has been convicted of a

criminal offense "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 * * * [to] file a petition in the court that imposed sentence,
 6
No. 19AP-677
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." "[A] petition for postconviction

relief is a collateral civil attack on a criminal judgment, not an appeal of the judgment."

State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309, at ¶ 8, citing State v. Steffen,

70 Ohio St.3d 399, 410 (1994). Postconviction relief " 'is a means to reach constitutional

issues which would otherwise be impossible to reach because the evidence supporting those

issues is not contained in the record.' " Id., quoting State v. Murphy, 10th Dist. No. 00AP-

233, 2000 Ohio App. LEXIS 6129 (Dec. 26, 2000).

{¶ 7} A petitioner is not automatically entitled to an evidentiary hearing on a

postconviction petition. Sidibeh at ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107, 110-13

(1980). To warrant an evidentiary hearing, the petitioner bears the initial burden of

providing evidence demonstrating a cognizable claim of constitutional error. Id., citing R.C.

2953.21(C); Hessler at ¶ 24. Prior to granting a hearing on a petition for postconviction

relief, the trial court must determine if substantive grounds for relief exist—specifically,

whether the petition sets forth enough facts to support a claim of a constitutional issue.

State v. Kapper, 5 Ohio St.3d 36 (1983). The trial court may deny a postconviction petition

without an evidentiary hearing "if the petition, supporting affidavits, documentary

evidence, and trial record do not demonstrate sufficient operative facts to establish

substantive grounds for relief." Sidibeh at ¶ 13, citing State v. Calhoun, 86 Ohio St.3d 279

(1999), paragraph two of the syllabus.

{¶ 8} Fox's petition asserts the general claim that his counsel was constitutionally

ineffective. "To prevail on his claim, appellant must demonstrate: (1) defense counsel's

performance was so deficient he or she was not functioning as the counsel guaranteed

under the Sixth Amendment to the United States Constitution, and (2) defense counsel's
 7
No. 19AP-677
errors prejudiced defendant, depriving her of a trial whose result is reliable." State v.

Clinkscale, 10th Dist. No. 11AP-980, 2012-Ohio-2868, ¶ 22, citing, e.g., Strickland v.

Washington, 466 U.S. 668, 687 (1984). 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." State

v. Calhoun, 86 Ohio St.3d 279, 283 (1999). A defendant claiming ineffective assistance of

counsel must identify specific acts or omissions of counsel that are alleged not to be within

the realm of reasonable professional judgment. Strickland at 690. And "[t]here is a strong

presumption that licensed attorneys are competent and that the challenged action is the

product of sound trial strategy." State v. Nichols, 116 Ohio App.3d 759, 764 (1996). In order

for a claim of ineffective assistance to be successful, the court must find that the challenged

acts or omissions were "outside the wide range of professionally competent assistance,"

Strickland at 690, and also that defendant was prejudiced thereby.

{¶ 9} Finally, the doctrine of res judicata places a significant restriction on the

availability of postconviction relief, since it bars a convicted defendant from presenting

" '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 or conviction, or on an appeal

from that judgment.' " State v. Cole, 2 Ohio St.3d 112, 113 (1982), quoting State v. Perry, 10

Ohio St.2d 175 (1967), paragraph nine of the syllabus. We have also observed that res

judicata "implicitly bars a petitioner from 're-packaging' evidence or issues which either

were, or could have been, raised in the context of the petitioner's trial or direct appeal."

State v. Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321, ¶ 27.

{¶ 10} Appellate courts are extremely deferential to trial court decisions regarding

postconviction relief. A reviewing court will not overrule the trial court's finding on a
 8
No. 19AP-677
petition for postconviction relief if the decision is supported by "competent and credible

evidence." Sidibeh at ¶ 7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

¶ 58. And appellate courts should not overturn a trial court's denial of postconviction relief

unless an abuse of discretion has occurred. Gondor at ¶ 60. An abuse of discretion occurs

when a trial court's determination is "unreasonable, arbitrary, or unconscionable."

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 11} In sum, prior to dismissing Fox's petition without a hearing, the trial court

was required to determine that the evidentiary materials submitted with the petition for

postconviction relief did not provide or allege sufficient operative facts to indicate that Fox's

trial counsel was deficient and that Fox was prejudiced by this deficiency. See, e.g., State v.

Mengistu, 10th Dist. 03AP-1202, 2004-Ohio-3596, ¶ 14. And if the trial court did not abuse

its discretion in making this determination, its judgment should be affirmed.

{¶ 12} We also have little difficulty reaching the conclusion that the trial court's

decision to dismiss the petition was within its discretion. The trial court's decision

evaluated the record, as well as Fox's petition and evidentiary materials, and concluded that

there were insufficient facts presented to support his claims. We have similarly reviewed

the record and postconviction evidence submitted, and observe: (1) that Fox rejected the

proffered plea agreement on the record following a detailed back-and-forth discussion with

the trial court, see Decision at 2-3; (2) that Fox's petition contained no evidence other than

bare allegations to support its claims that trial counsel had failed to adequately investigate

the crime scene; (3) that defendant and the state had entered into a stipulation at trial

regarding the trajectory of the bullet; (4) that there was no clear basis to suggest that

counsel's witness preparation of Elaine Robinson was inadequate; (5) that Fox's testimony

was sufficient to establish his claims of injury and to support his claim of accidental weapon
 9
No. 19AP-677
discharge; (6) that there is no evidence to suggest that Fox was prejudiced by the decision

to forego calling Mary Griffin's doctor as a witness since the bullet's trajectory through her

right thigh and buttock is undisputed; (7) that Fox wholly failed to show how he was

prejudiced by trial counsel's alleged failure to hire a private investigator; (8) that Fox failed

to demonstrate how a ballistics expert would have benefited his defense; (9) that Fox's own

testimony rendered any "gun expert" unnecessary; (10) that a jury instruction for

misdemeanor reckless assault would have been inconsistent with Fox's own testimony and

accident defense; (11) that counsel's decisions regarding the presentation of evidence were

within the realm of a sound trial strategy; and (12) that Fox consented to and approved each

continuance entry and waiver of his right to speedy trial on the record.

{¶ 13} In short, we believe that the trial court correctly evaluated the evidentiary

materials with which it had been provided. When viewed in light of the evidence presented

at trial, we cannot say that the trial court abused its discretion in determining that Fox failed

to present "evidence containing sufficient operative facts that demonstrate [Fox's]

constitutional rights were violated," Decision at 5, and disposing of his petition without a

hearing. For all these reasons, Fox's three assignments of error are overruled, and the

judgment of the trial court dismissing his postconviction petition is affirmed.

Judgment affirmed.
DORRIAN and BRUNNER, JJ., concur.