State v. Clark

[Cite as State v. Clark, 2021-Ohio-2771.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110037
v. :

DARIUS CLARK, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 12, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-10-536300-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine Mullin and Anthony T. Miranda,
Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and
Erika B. Cunliffe, Assistant Public Defender; and David
W. Neel, for appellant.

LARRY A. JONES, SR., P.J.:

Defendant-appellant, Darius Clark (“Clark”), appeals the trial court’s

denial of his postconviction-relief petition. We affirm.
 In 2010, Clark was charged with multiple counts of felonious

assault, endangering children, and domestic violence in relation to the abuse of

Clark’s girlfriend’s two children: A.T. and L.P. The trial court subsequently

sentenced Clark to 28 years in prison.1

Briefly, the record reflects that Clark lived with his girlfriend, T.T.,

and her three-year-old son, L.P., and one-year-old daughter, A.T. On March 8,

2010, T.T. left her children in Clark’s care for a few days while she went to visit a

friend. When T.T. picked up the children around March 12, A.T. had burn marks

on her face, arm, and chest. On March 16, according to T.T., she again left her

children with Clark and went to Washington D.C. to prostitute herself under

Clark’s orders. The next day, March 17, L.P.’s teachers observed obvious injuries to

L.P. L.P. disclosed to his teacher that “Dee” (Clark’s nickname) caused the

injuries. When social services picked up both children from relatives on March 18,

both children had additional serious injuries, which were attributed to Clark.

In Clark I, this court reversed Clark’s convictions and ordered a new

trial, finding that the trial court’s ruling that L.P. was incompetent to testify was

incompatible with the admissibility of L.P.’s out-of-court statements identifying

Clark as L.P.’s abuser. This court ruled that the police detective’s, social workers’,

and teachers’ testimonies violated the Sixth Amendment Confrontation Clause to

1For a thorough recitation of the facts and procedural history of this case, see State v.
Clark, 8th Dist. Cuyahoga No. 96207, 2011-Ohio-6623 (“Clark I”); State v. Clark, 137
Ohio St.3d 346, 2013-Ohio-4731, 999 N.E.2d 592 (“Clark II”); Ohio v. Clark, 576 U.S.
237, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015) (“Clark III”); and State v. Clark, 8th Dist.
Cuyahoga No. 96207, 2016-Ohio-2825 (“Clark IV”).
the United States Constitution and that L.P.’s relatives’ testimonies were

inadmissible under Evid.R. 807. Id. This court also found that there was sufficient

evidence in the record to support a finding that L.P. suffered serious physical

harm, an element of the felonious assault and endangering children convictions.

Id.

The Ohio Supreme Court accepted the state’s appeal of Clark I,

challenging

whether the trial court violated Darius Clark’s constitutional right to
confront the witnesses against him when it admitted a hearsay
statement that three-and-a-half-year-old L.P. made to his preschool
teachers * * * in response to questions asked about his injuries to his
eye and marks on his face observed upon his arrival at a preschool day
care.

Clark II at ¶ 1. In affirming Clark I, the Ohio Supreme Court held that “the

statement L.P. made to his preschool teacher is testimonial in nature, and its

admission into evidence violated Clark’s right to confront witnesses under the

Sixth Amendment to the United States Constitution.” Clark II at ¶ 4.

The United States Supreme Court disagreed and reversed Clark II,

holding that “the Sixth Amendment did not prohibit the state from introducing

L.P.’s statements at trial * * * [because] L.P.’s statements to his teachers were not

testimonial.” Clark III at 2182-2183. The Court held that when a statement is not

testimonial in nature, its admissibility “is the concern of state and federal rules of

evidence, not the Confrontation Clause.” Clark III at 2180, citing Michigan v.

Bryant, 562 U.S. 344, 359, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).
 The case was remanded to this court to review the assignments of

error rendered moot in Clark I, specifically, L.P.’s statements to his teachers;

whether Clark’s convictions were against the manifest weight of the evidence; the

jury instructions; claims of duplicitous indictment and multiple, undifferentiated

counts; allied offenses; and court costs. This court found that L.P.’s statements

were admissible under Evid.R. 807, affirmed Clark’s convictions in all other

respects, and remanded the case for a limited resentencing hearing to address

court costs. Clark IV. Clark appealed to the Ohio Supreme Court that denied his

discretionary appeal. State v. Clark, 147 Ohio St.3d 1474, 2016-Ohio-8438, 65

N.E.3d 778.

Meanwhile, in 2011, Clark filed a postconviction-relief petition,

attaching several affidavits from family members who, Clark argued, his attorney

failed to call as defense witnesses. In 2020, the state filed proposed findings of fact

and conclusions of law. Clark sought leave to amend his petition with several new

claims of ineffective assistance of counsel. The trial court denied Clark’s motion

for leave to amend his petition and denied Clark’s postconviction-relief petition

without a hearing, issuing findings of fact and conclusions of law.

It is from these two denials that Clark now appeals, raising the

following assignments of error:

I. The court’s decision to summarily dismiss Darius Clark’s petition
for postconviction relief violated R.C. 2953.21 and his state and
federal rights to due process where his petition included new evidence
supporting a cognizable claim which required an evidentiary hearing.
 II: The court’s refusal to permit Mr. Clark to amend his petition or
postconviction relief to allow additional information in support of his
ineffective assistance of counsel based on the conclusion that the
amendment was jurisdictionally barred violated R.C. 2953.21 and
Clark’s state and federal rights to due process.

III: Due process requires that the postconviction provisions the
General Assembly enacted allow individuals challenging the validity of
their convictions a meaningful opportunity to do so. Where the law is
construed in such a way that it frustrates the ability to present such
cognizable constitutional challenges it violates the postconviction
relief statute and the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution.

Clark’s right to postconviction relief arises from R.C.

2953.21(A)(1)(a), which provides:

(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.

The postconviction relief process is a collateral civil attack on a

criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994).

Clark does not have a constitutional right to postconviction review. Rather,

postconviction relief is a narrow remedy that affords appellant no rights beyond

those granted by statute. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905

(1999). A postconviction-relief petition does not provide Clark a second

opportunity to litigate his conviction. State v. Raver, 10th Dist. Franklin No.
05AP-374, 2006-Ohio-645, ¶ 9, citing State v. Hessler, 10th Dist. Franklin No.

01AP-1011, 2002-Ohio-3321.

In his 2011 postconviction-relief petition, Clark claimed that his trial

counsel was ineffective because counsel failed to (1) fully investigate recorded

jailhouse phone calls, (2) call certain witnesses for his defense, (3) present

documentary evidence, (4) thoroughly cross-examine T.T. and the police detective,

and (5) argued that counsel as a whole deprived him of a fair trial.

Ineffective assistance of counsel claims are reviewed using the two-

pronged approach set forth in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s

performance was deficient. * * * Second, the defendant must show that the

deficient performance prejudiced the defense.” Id. ‘“[T]here is no reason for a

court deciding an ineffective assistance claim to approach the inquiry in the same

order or even to address both components of the inquiry if the defendant makes an

insufficient showing on one.”’ State v. Bradley, 42 Ohio St.3d 136, 143, 538

N.E.2d 373 (1989), quoting Strickland at 697. If one part cannot be proved,

regardless of which or in which order, the analysis ends, and the claim for

ineffective assistance of counsel fails. Bradley at id.

“In evaluating counsel’s performance, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances the
challenged action “might be considered sound trial strategy.””’
Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100

L.Ed. 83 (1955). “To show that a defendant has been prejudiced by counsel’s

deficient performance, the defendant must prove that there exists a reasonable

probability that, were it not for counsel’s errors, the result of the trial would have

been different.” Bradley at paragraph three of the syllabus.

In support of his petition, Clark attached the following evidence:

(1) Affidavit from Clark, in which he maintained his innocence. He
claimed not to “whoop” children, and claimed that T.T. often
physically disciplined her children. Clark stated that he spoke to T.T.
from the county jail and T.T. admitted that she “whooped” L.P. the
night before she left for Washington D.C. He also claimed that his
brother, D.S., watched the kids in March 2010, and D.S. told Clark
that A.T. fell and hit her head.

(2) Affidavit from Elaine Scales, Clark’s mother. Scales claimed that
T.T. threw L.P. in July 2008 and smacked him in the head. She also
claimed that her other son, D.S., spent time at Clark’s home in March
2010, which resulted in A.T. having a bruise and black eyes. Scales
states that she told Clark’s attorney this information but counsel did
not call her as a witness to testify.

(3) Affidavit from Mia Clark, Clark’s sister. She claims that she saw
T.T. “whooping” her children. Mia states that she told Clark’s attorney
this information and he did not call her as a witness to testify.

(4) Affidavit from April Davis, the mother of Clark’s other children.
She claims that Clark has never hit his kids but she has seen T.T. slap
her kids. Clark’s attorney never spoke to Davis.

(5) Affidavit from D.S, Clark’s brother. He claims that he stayed at
Clark’s home in March 2010. A.T. fell off the bed and hit her head.
A.T. had a bloody nose and the next morning had two black eyes. D.S.
was twelve years old when he signed the affidavit.

(6) Affidavit from Clark’s trial counsel, who averred that he received
recordings of phone calls made by Clark while in the Cuyahoga
County jail. He “reviewed some, but not all” of these recordings.
 (7) One page of a medical record relating to A.T.’s treatment on March
18, 2010.

(8) Audio recordings between Clark and T.T.’s grandmother.

(9) Audio recordings of Clark’s jail phone calls.

(10) Video recording of police detective’s interview of T.T.

In the first assigned error, Clark contends that the trial court’s

decision to summarily dismiss his postconviction-relief petition violated R.C.

2953.21 and his state and federal rights to due process because his petition

included new evidence that required an evidentiary hearing.

A defendant is not automatically entitled to an evidentiary hearing

on a postconviction-relief petition. State v. Jackson, 64 Ohio St.2d 107, 110, 413

N.E.2d 819 (1980). R.C. 2953.21(C) provides that, “[b]efore granting a hearing on

a petition * * * the court shall determine whether there are substantive grounds for

relief.” The petitioner bears the initial burden of offering evidence that

demonstrates a cognizable claim of constitutional error. State v. Ibrahim, 10th

Dist. Franklin No. 14AP-355, 2014-Ohio-5307, ¶ 9. Because the burden is the

petitioner’s, a postconviction-relief petition may be denied without an evidentiary

hearing when the petition, the supporting affidavits, the documentary evidence,

the files, and the records do not demonstrate that the petitioner has offered

sufficient operative facts to establish substantive grounds for relief. State v.

Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus.

Appellate review of a trial court’s denial of a postconviction-relief petition without
a hearing is for abuse of discretion. State v. McBride, 10th Dist. Franklin No.

14AP-237, 2014-Ohio-5102, ¶ 11.

Clark argues that his trial counsel was ineffective in failing to call his

relatives as witnesses to testify that (1) Clark would never purposely hurt a child

and would especially not burn a baby, (2) the children’s mother was physically

violent with her children, and (3) the children’s mother is a liar.

Several family members signed affidavits saying Clark was generally

not violent with children. The trial court, however, correctly determined that

calling Clark’s family members created “obvious credibility issues” for a jury given

their incentive to testify in his favor. Additionally, the content of the witnesses’

testimony related to Clark’s general good behavior would have opened the door for

the state to admit Clark’s prior drug-trafficking convictions. These are justifiable

reasons a trial attorney might not have used the witnesses’ testimony.

Clark cites this court’s decision in State v. Owens, 8th Dist.

Cuyahoga No. 1990 Ohio App. LEXIS 754 (Mar. 1, 1990), for the proposition that

his attorney was ineffective for failing to call witnesses to testify on Clark’s behalf.

In Owens, the defendant was convicted of raping and kidnapping a woman. He

filed a motion for new trial supported by statements from six potential witnesses

that were not called at trial. Id. at 13-15.

The victim in Owens claimed at trial that the defendant kept her in

the home and she was not able to leave because the house door had special locks.

Id. at 8. In his motion for new trial, the defendant provided potential testimony
from multiple witnesses that the victim was free to leave the defendant’s house, use

the defendant’s telephones, was left alone in the house, the house did not have any

special locks on the doors, and the victim was often seen outside the home on the

porch or walking with just her child. Id. at 13-15.

This case is distinguishable. As it relates to L.P.’s injuries, as the

trial court found, “[n]one of the family members claim to have observed the

infliction of the injuries to L.P.” Findings of Fact and Conclusions of Law, ¶ 31

(Oct. 19, 2020). Several affiants claimed that they observed the children’s mother,

T.T., being violent towards her children. Clark’s mother claimed that T.T. threw

L.P. in July 2008 and smacked him in the head. April Davis, the mother to Clark’s

other children, stated that she saw T.T. “slapping her kids” but did not state when

the incident occurred. None of these family members’ statements relate to L.P.’s

injuries documented at trial; the affiants did not claim that they saw T.T. or anyone

else physically assault L.P. on or around the dates of the incident.

With regard to the injuries to A.T., Clark’s sister claimed that T.T.

slapped A.T. in November 2008. Clark’s brother, D.S., who was 12 years old at the

time he submitted his affidavit, claimed he saw A.T. fall off a bed sometime in

March 2010, which resulted in A.T. having two black eyes and a bloody nose.

Scales averred that she noticed a bump and bruise on A.T.’s forehead in March

2010. D.S.’s observation, however, does not explain the burn marks on A.T.’s face,

arm, and chest. T.T. testified that Clark told her he put a “hot comb on the stove”

and A.T. accidentally burned herself. But A.T. also sustained cigarette burns and
numerous other injuries. The affidavits submitted in support of Clark’s

postconviction-relief petition do not explain the numerosity or severity of the

infant’s injuries; therefore, nothing observed by Clark’s family members, even if

believed, would have changed the outcome of the trial.

L.P. identified Clark to his teachers as the person who inflicted his

injuries. His injuries, as well as those of his sister, were extensive and well

documented. Clark had access to the children at the time of the injuries and

brought L.P. to and from school on the day L.P.’s injuries were discovered. When

confronted with the injuries, Clark provided inconsistent explanations and fled the

school with L.P. There is simply no evidence that testimony from Clark’s family

members would have materially affected the weight of the evidence against him at

trial.

Finally, Clark contends in his petition that his family members

would have testified that T.T. is a “liar.” T.T.’s credibility, or lack thereof, was

already called into question during trial. Clark’s trial counsel asked social worker

Sarah Bolog (“Bolog”) if she had “a hard time believing anything [T.T.] says

regarding this” case. Bolog replied, “Yes.” (Tr. 527.) During T.T.’s cross-

examination, defense counsel questioned T.T. if she admitted to Detective

Remington that she was not truthful with social worker Bolog (tr. 565), and T.T.

admitted that she lied to her grandmother about being in school. (Tr. 571.) We

agree with the trial court’s finding that further attacks on T.T.’s credibility would

not have changed the outcome of trial.
 Clark claims that his witnesses’ motives are only relevant when there

is an evidentiary hearing on a postconviction-relief petition. We disagree. A trial

court may discount self-serving affidavits presented by a petitioner and the

petitioner’s family members without an evidentiary hearing. State v. Moore, 99

Ohio App.3d 748, 752, 651 N.E.2d 1319 (1st Dist.1994). See also State v. Jones,

10th Dist. Franklin No. 06AP-62, 2006-Ohio-5953, ¶ 20 (holding trial court did

not err in discounting an affidavit from defendant’s sister); State v. Stedman, 8th

Dist. Cuyahoga No. 83531, 2004-Ohio-3298, ¶ 29 (a trial court may “discount self-

serving affidavits” from a petitioner’s parents).

The trial court did not err in deciding that Clark’s petition did not

warrant an evidentiary hearing and in dismissing his postconviction-relief petition.

The first assignment of error is overruled.

In the second assignment of error, Clark argues that the trial court

erred in refusing to allow him to amend his postconviction-relief petition.

Pursuant to R.C. 2953.21(G)(2), a petitioner may only amend a

petition for postconviction relief without leave before the answer is filed. Here,

Clark sought leave after the state’s responsive pleading was filed. Thus, he had to

seek leave of the court. R.C. 2953.21(G)(3). Trial courts have discretion to grant or

deny leave to amend a postconviction-relief petition. State v. Campbell, 8th Dist.

Cuyahoga No. 99936, 2014-Ohio-499, ¶ 19.

Clark sought to amend his petition to add the following claims that

his trial counsel was ineffective for failing to (1) emphasize L.P.’s credibility issues,
(2) properly argue that L.P.’s statements were hearsay, and (3) object to T.T.’s

testimony that Clark was her “pimp” and made her travel to Washington D.C. to

engage in prostitution.

Clark sought leave to amend his petition with these new claims more

than nine years after its initial filing, claiming, in part, that the delay was caused by

the court’s stay of his petition. But the fact that disposition of the petition was

stayed (with, we note, the parties’ consent) is irrelevant to the court’s granting

Clark leave to amend his petition. In other words, the trial court’s decision to stay

its ruling on Clark’s postconviction-relief petition did not suspend Clark’s

obligation to amend his petition with reasonable diligence. The claims Clark raises

all could have been raised in his original petition or shortly thereafter as they all

related to issues he had with defense counsel’s effectiveness during trial. Instead,

Clark waited more than nine years after he filed his postconviction-relief petition

to seek leave to amend the petition. We find no error in the court’s denial of his

motion for leave to amend his postconviction-relief petition.

In light of the above, the second assignment of error is overruled.

In the third assignment of error, Clark contends that the

postconviction-statute, R.C. 2953.21, is unconstitutional as applied to him because

it allows a trial court to dismiss a postconviction-relief petition without an

evidentiary hearing.

Clark did not raise the constitutionality issue at the trial-court level;

therefore, he has waived this issue on appeal. The question of the constitutionality
of a statute must generally be raised at the first opportunity and, in a criminal

prosecution, this means in the trial court. State v. Awan, 22 Ohio St.3d 120, 122,

489 N.E.2d 277 (1986). Statutes are afforded a strong presumption of

constitutionality. Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d

633, ¶ 4. Failure to raise an issue in the trial court constitutes waiver of the issue

on appeal. Awan at syllabus.

Clark did not preserve this issue for review, and does not argue plain

error here. Appellate courts may, but are not required to, review constitutional

challenges to the application of a statute for plain error. State v. Quarterman, 140

Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. We decline to address this

issue for the first time on appeal.

Accordingly, Clark’s third assignment of error is overruled.

The trial court did not abuse its discretion in denying Clark’s motion

for leave to amend his postconviction-relief petition, filed nine years after his

original petition was filed. The trial court also did not abuse its discretion in

denying Clark’s postconviction-relief petition without an evidentiary hearing.

The assignments of error being hereby overruled, judgment is

affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR