State v. King

[Cite as State v. King, 2022-Ohio-676.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- : Case No. 2021CA00140
:
DENY L. KING :
: OPINION
Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2019-
CR-1460

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 9, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE DENY L. KING
Stark County Prosecutor # A772161
BY: TIMOTHY E. YAHNER North East Ohio Correctional Center
Assistant Prosecutor 2240 Hubbard Road
110 Central Plaza South Youngstown, OH 44505
Canton, OH 44702
Stark County, Case No. 2021CA00140 2

Gwin, P.J.

{¶1} Appellant Deny King appeals the November 9, 2021 judgment entry of the

Stark County Court of Common Pleas denying his petition for post-conviction relief.

Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On February 12, 2020, appellant was found guilty by a jury of one count of

aggravated murder, a violation of R.C. 2903.01(A), one count of felonious assault, a

violation of R.C. 2903.11, and one count of having a weapon while under disability, a

violation of R.C. 2923.13. The counts contained firearm specifications and repeat

offender specifications. The trial court sentenced appellant on February 18, 2020, and

issued a judgment entry on March 6, 2020.

{¶3} Appellant appealed his convictions and sentence to this Court, arguing: (1)

the verdict was against the manifest weight of the evidence; (2) the verdict was insufficient

as a matter of law; and (3) the trial court’s sentencing was in error, depriving appellant of

his constitutional rights. In State v. King, 5th Dist. Stark No. 2020 CA 00064, 2021-Ohio-

1636, this Court overruled appellant’s assignments of error and affirmed appellant’s

convictions and sentence.

{¶4} On August 6, 2021, appellant filed an application for reopening of his direct

appeal pursuant to Appellate Rule 26, arguing ineffective assistance of appellate counsel.

Appellant listed four assignments of errors that were not considered on appeal due to

appellate counsel’s alleged deficient performance. First, appellant alleged appellate

counsel should have argued that trial counsel was ineffective. Appellant stated trial

counsel was ineffective for the following reasons: he failed to conduct a meaningful pre-
Stark County, Case No. 2021CA00140 3

trial investigation, he failed to object to prejudicial testimony, he failed to request a self-

defense instruction, he failed to view the entire video of the incident, and he failed to

object to alleged prosecutorial misconduct. Second, appellant asserted appellate counsel

failed to assign as error the trial court’s incorrect placement of the burden on appellant on

his self-defense claim. Third, appellant argued his appellate counsel should have

included prosecutorial misconduct as an assignment of error. Finally, appellant asserted

appellate counsel was ineffective for failing to assign as error that the trial court abused

its discretion in not declaring a mistrial.

{¶5} This Court issued a detailed denial of appellant’s application for reopening

of his direct appeal on September 29, 2021. Appellant appealed our denial of his

application to reopen to the Ohio Supreme Court. The Ohio Supreme Court declined

jurisdiction of appellant’s appeal in State v. King, 165 Ohio St.3d 1524, 2022-Ohio-258,

179 N.E.3d 1287.

{¶6} On April 30, 2021, appellant filed a petition for post-conviction relief.

Appellee filed a response on May 28, 2021. Appellant filed a reply on July 16, 2021.

{¶7} In his petition, appellant lists three grounds for relief. First, appellant alleges

his trial counsel was ineffective for failing to conduct a meaningful pre-trial investigation.

Specifically, appellant states his counsel failed to present the fact that many of the state’s

witnesses had criminal records, including Mr. Garner. Second, appellant asserts his trial

counsel was ineffective for failing to have an expert independently examine the video

recording of the events at the bar on the night of the incident. Third, appellant contends

his case was compromised because the victim’s family and friends were dining in direct

proximity to the jurors on February 11, 2020.
Stark County, Case No. 2021CA00140 4

{¶8} Attached to his petition is the affidavit of appellant, stating the following: his

trial counsel did not conduct a meaningful pre-trial investigation in his case; trial counsel

did not hire an expert witness; and his trial was not fair. Appellant also filed the affidavit

of Bertram McCleskey (“McCleskey”). McCleskey avers he reviewed the transcripts and

was concerned about “someone’s testimony” regarding the video in the case. He believes

the jury should have viewed the unedited video, “since doing so may have confirmed the

defendant’s assertion that the victim was shot in the back by someone else.” Appellant

also attached photographs and a timeline, allegedly of the victim’s family dining near the

jurors on February 11, 2020.

{¶9} The trial court issued a judgment entry on November 9, 2021, denying and

dismissing appellant’s petition. The trial court addressed the arguments contained in

appellant’s petition. First, as to appellant’s claims of ineffective assistance of counsel for

not conducting a meaningful pre-trial investigation and for failing to hire an expert to

examine the video submitted at trial, the trial court found the claims were not supported

by the evidence presented at trial. The trial court additionally noted potential testimony,

from an expert or other witness, that Mr. Garner removed the firearm possessed by the

victim, or that portions of the video were missing, were purely speculative arguments. The

trial court determined it is unlikely that a different presentation of videos or evidence would

have made a difference in the outcome of the trial. Finally, the trial court found appellant’s

claims of ineffective assistance are barred by the doctrine of res judicata.

{¶10} The trial court next addressed appellant’s claim that he obtained

surveillance video showing jurors and the victim’s family eating at the same restaurant on

February 11, 2020. The trial court reviewed the transcript and determined the court
Stark County, Case No. 2021CA00140 5

instructed the jurors throughout the trial that they were not to talk about the case among

themselves or with anyone else, and this admonishment was given to the jurors before

they took their lunch break on February 11, 2020. Further, before taking the verdict and

before allowing spectators into the courtroom on February 12, 2020, the trial court asked

the jurors whether or not anyone had attempted to speak with them or attempted to

influence their verdict. The jurors confirmed that no one had. Finally, the trial court noted

that appellant did not provide any affidavits from jurors or restaurant employees

authenticating the purported photographs.

{¶11} Appellant appeals the November 9, 2021 judgment entry of the Stark

County Court of Common Pleas Court and assigns the following as error:

{¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PREJUDICIAL ERROR BY NOT MAKING FINDINGS OF FACT AND CONCLUSIONS

OF LAW TO EACH GROUND SET FORTH IN APPELLANT’S PETITION ACCORDING

TO STATE V. MAPSON, 1 OHIO ST.3D 217, 219, 438 N.E.2D 910 AND STATE V.

LESTER, 41 OHIO ST.2D 51.”

{¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PREJUDICIAL ERROR BY NOT ORDERING AN EVIDENTIARY HEARING THAT

WOULD HAVE PROVEN, INTER ALIA, INEFFECTIVE ASSISTANCE OF COUNSEL,

JURY IMPROPRIETY AND TAMPERING WITH EVIDENCE, AND FURTHER

COMMITTED PREJUDICIAL ERROR IN HOLDING THAT APPELLANT’S GROUNDS

WERE BARRED BY RES JUDICATA.”
Stark County, Case No. 2021CA00140 6

I.

{¶14} In his first assignment of error, appellant contends the trial court abused its

discretion and committed error in not making findings of fact and conclusions of law when

it denied his petition. We disagree.

{¶15} R.C. 2953.21(H) states, “if the court does not find grounds for granting relief,

it shall make and file findings of fact and conclusions of law and shall enter judgment

denying relief on the petition.” If a court fails to do so, the decision is subject to reversal

on appeal. State v. Reese, 5th Dist. Muskingum No. CT2017-0017, 2017-Ohio-4263.

The findings of fact and conclusions of law should be explicit enough to give the appellate

court a clear understanding of the basis of the trial court’s decision and enable it to

determine the grounds on which the trial court reached its decision. State v. Jacks, 5th

Dist. Licking No. 99 CA 113, 2000 WL 329740 (Feb. 29, 2000), citing State v. Lester, 41

Ohio St.2d 51, 322 N.E.2d 656 (1975). The purpose of requiring the trial court to include

findings of fact and conclusions of law in its judgment entry is to sufficiently apprise both

the petitioner and the potential appellate court of the grounds for its decision. State v.

Staats, 5th Dist. Stark No. 2015CA00207, 2016-Ohio-2921.

{¶16} Appellant cites State v. Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910 (1982),

in support of his argument. We find the judgment entry in this case satisfies the policy

considerations contained in Mapson. The trial court did not label its entry as “findings of

fact and conclusions of law,” but that is what its words import. State ex rel. Carrion v.

Harris, 40 Ohio St.3d 19, 530 N.E.2d 1330 (1988). We have previously held, “as long as

the basis for the court’s ruling can be gleaned from the entry, R.C. 2953.21 has been

complied with.” State v. Wells, 5th Dist. Licking No. 94 CA 113, 1995 WL 495308; State
Stark County, Case No. 2021CA00140 7

v. Somers, 5th Dist. Muskingum No. CT2019-0020, 2019-Ohio-3157. In this case, the

trial court issued a detailed entry, including factual information and citations to caselaw.

Additionally, the trial court specifically stated it was “making findings of fact and

conclusions of law” prior to its “analysis” section. The trial court sufficiently apprised

appellant and this Court of the grounds for its decision.

{¶17} Appellant’s first assignment of error is overruled.

II.

{¶18} In his second assignment of error, appellant argues the trial court committed

error in denying his petition for post-conviction relief and in denying his request for an

evidentiary hearing. We disagree.

{¶19} R.C. 2953.21 affords a petitioner post-conviction relief “only if the court can

find that there was such a denial or infringement on 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). The appropriate

standard of review for reviewing a trial court’s decision to dismiss a petition for post-

conviction relief, without an evidentiary hearing, involves a mixed question of law and fact.

State v. Durr, 5th Dist. Richland No. 18CA78, 2019-Ohio-807. This Court must apply a

manifest weight standard in reviewing a trial court’s findings on factual issues underlying

the substantive grounds for relief, but we must review the trial court’s legal conclusions

de novo. Id.

{¶20} Under R.C. 2953.21, a petitioner seeking post-conviction relief is not

automatically entitled to an evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279, 714

N.E.2d 905 (1999). The Ohio Supreme Court has recognized, “[i]n post-conviction cases,
Stark County, Case No. 2021CA00140 8

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, 2006-Ohio-6679, 860 N.E.2d 77.

Ineffective Assistance

{¶21} Appellant set forth three claims in his petition for post-conviction relief. In

the first and second claims, appellant alleged trial counsel rendered ineffective assistance

because he failed to conduct a pre-trial investigation and failed to hire an expert to review

the video of the incident.

{¶22} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). In an ineffective assistance analysis, we must

determine whether counsel’s assistance was ineffective; whether counsel’s performance

fell below an objective standard of reasonable representation and was violative of any of

his essential duties to the client. Id. If we find ineffective assistance of counsel, we must

then determine whether or not the defense was actually prejudiced by counsel’s

ineffectiveness such that the reliability of the outcome of the trial is suspect. Id. This

requires a showing there is a reasonable probability that, but for counsel’s unprofessional

error, the outcome of the trial would have been different. Id.

{¶23} Trial counsel is entitled to a strong presumption that all decisions fall within

the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

693 N.E.2d 267 (1998). Even debatable trial tactics and strategies do not constitute

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189

(1980).

{¶24} Appellant contends the trial court committed error in denying the petition

without an evidentiary hearing as to his ineffective assistance claims. However, before a
Stark County, Case No. 2021CA00140 9

petitioner can be granted a hearing in proceedings for post-conviction 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, citing State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The

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 (Oct. 29, 1987).

{¶25} Appellant’s evidence as to alleged insufficient pre-trial investigation by his

counsel is his own affidavit. As self-serving testimony, the trial court could give little or

no weight to his affidavit. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).

A petitioner’s self-serving affidavit generally does not meet his or her required minimum

level of cogency. State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823 (1983). Appellant’s

affidavit does not demonstrate a substantial violation of his trial counsel’s essential duty,

or demonstrate prejudice arising from that ineffectiveness, particularly since there is no

demonstration that the prior criminal charges of Mr. Garner were admissible at trial, or

that any of the other witnesses would have stated Mr. Garner removed the firearm

possessed by the victim.

{¶26} As to the alleged ineffective assistance for the failure to hire an expert to

examine the video of the incident, appellant opines in his affidavit that the State’s witness

altered the footage and, if it were left intact, “the footage would have revealed that

someone other than me fired the fatal shot,” as the victim’s back was never turned
Stark County, Case No. 2021CA00140 10

towards him. As stated above, a petitioner’s self-serving affidavit generally does not meet

his or her required minimum level of cogency. State v. Kapper, 5 Ohio St.3d 36, 448

N.E.2d 823 (1983). Further, appellant does not explain how a defense expert would have

changed the result of the trial. State v. Whitman, 5th Dist. Stark No. 2018CA00134, 2019-

Ohio-377. This is particularly true because appellant’s defense at trial was defense of

others, not that he did not fire the fatal shot. At trial, appellant identified the person he

was allegedly defending. In his direct appeal, appellant argued the evidence

demonstrated he shot the victim in defense of another.

{¶27} Appellant also relies on the affidavit of McCleskey in support of his claim.

McCleskey averred that “the jury must be able to view the entire unedited unredacted

version as anything else has the potential of having probative evidence truncated whether

inadvertently or otherwise.” However, there is no indication that McCleskey viewed the

video footage, and any claim that a portion of the video was missing at trial is speculative.

Further, McCleskey opined only that the alleged unredacted footage, “may have

confirmed [appellant’s] assertion that the victim was shot in the back by someone else.”

However, appellant never made the assertion that he did not shoot the victim in the back

at trial, and this assertion was contradicted by the evidence, including appellant’s own

testimony that he shot the victim in defense of himself or others. Thus, there is not a

reasonable probability that, but for the lack of expert or a different presentation of the

video, the outcome of the trial would have been different.

{¶28} We thus find appellant failed to support his petition with evidentiary quality

materials supporting his contention that trial counsel failed to perform any of his essential

duties, or that any prejudice arose from this alleged ineffectiveness.
Stark County, Case No. 2021CA00140 11

{¶29} Additionally, we also find the trial court correctly rejected these two claims

on the basis of res judicata. 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 the

judgment of conviction or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967).

{¶30} The arguments about his trial counsel’s alleged failure to conduct a

meaningful pre-trial investigation and alleged failure to hire a video expert could have

been raised on direct appeal. State v. Norris, 5th Dist. Muskingum No. CT2016-0037,

2017-Ohio-1570. Additionally, appellant did raise the issue of ineffective assistance of

trial counsel in his Appellate Rule 26 application for re-opening with regards to pre-trial

investigation and the alleged failure of his trial counsel to impeach several of the State’s

witnesses due to their criminal history. We overruled his argument. Specifically, with

regard to Mr. Garner, we stated, “the record does not show Henderson Garner has any

criminal conviction which would be admissible under Evid.R. 609.”

Jury Impropriety

{¶31} Appellant’s final claim is that there was jury impropriety because he

obtained surveillance video showing the jurors and the victim’s family ate at the same

restaurant on February 11, 2020, smiling and/or waving at each other. We find the trial

court did not commit error in overruling this claim. As detailed by the trial court, the

transcript reveals the trial court instructed the jurors throughout the trial that they were not

to talk about the case among themselves or with anyone else, and this admonishment
Stark County, Case No. 2021CA00140 12

was given to the jurors before they took their lunch break on February 11, 2020.

Additionally, prior to taking the verdict and before allowing spectators into the courtroom

on February 12, 2020, the trial court asked the jurors whether or not anyone had

attempted to speak with them or attempted to influence their verdict. The jurors confirmed

that no one had.

{¶32} Appellant contends the trial court committed error in denying the petition

without an evidentiary hearing as to this claim. We disagree. A defendant advancing a

post-conviction petition is required to present evidence which meets a minimum level of

cogency to support their claims. State v. Scott, 5th Dist. Licking No. 15 CA 81, 15 CA 82,

2016-Ohio-3488.

{¶33} Appellant attached photographs purportedly taken from restaurant security

cameras and a “timeline” of the alleged video. However, the notes and photographs were

not authenticated. Appellant did not provide any affidavits from jurors or restaurant

employees authenticating the purported video, photographs, or timeline. The remaining

information about the alleged juror misconduct came from appellant’s affidavit. As self-

serving testimony, the trial court could give little or no weight to his affidavit. State v.

Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). Despite appellant’s assertion that

he will rectify the issue at an evidentiary hearing, it is appellant’s burden to present

evidence in his petition which meets a minimum level of cogency to support his claims.

Appellant fails to support his petition with evidentiary quality materials with regard to jury

impropriety.

{¶34} Finally, we find appellant’s final claim is barred by the doctrine of res

judicata. Appellant states in his petition that an investigator he hired went to the
Stark County, Case No. 2021CA00140 13

restaurant on February 14, 2020 and obtained the video footage and/or photographs of

the jurors and victim’s family eating near each other and being friendly. This was prior to

when the trial court sentenced appellant on February 18, 2020, prior to when the trial

court entered final judgment against appellant, and prior to when he filed his direct appeal.

Accordingly, he could have brought this claim before the trial court, and on direct appeal.

{¶35} The affidavits, documentary evidence, files, and the records do not

demonstrate appellant set forth sufficient operative facts to establish substantive grounds

for relief. Accordingly, the trial court properly denied appellant’s petition for post-

conviction relief without holding an evidentiary hearing. Appellant’s second assignment

of error is overruled.

{¶36} Based on the foregoing, appellant’s assignments of error are overruled.
Stark County, Case No. 2021CA00140 14

{¶37} The November 9, 2021 judgment entry of the Stark County Court of

Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur