Criminal appeal from Common Pleas Court T.C. NO. 09CR227
WESLEY E. SOMOGY, Atty. Reg. No. 0089037, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee
CARL RAY SIMONS, #625933, Defendant-Appellant
(¶ 1} Defendant-appellant Carl Simons, pro se, appeals a decision of the Champaign County Court of Common Pleas denying his petition for post-conviction relief On December 31, 2012, the trial court issued a decision denying Simons' petition for post-conviction relief. Simons filed a timely notice of appeal with this Court on January 23, 2013.
(¶ 2} In January of 2010, Simons was convicted of two counts of breaking and entering, in violation of R.C. 2911.13(A)(C), both felonies of the fifth degree; two counts of theft of property valued between $500.00 and $5, 000.00, in violation of R.C. 2913.02(A)(1)(B)(2), both felonies of the fifth degree; one count of burglary, in violation of R.C. 2911.12(A)(3)(C), a felony of the third degree; one count of grand theft, in violation of R.C. 2913.02(A)(1)(B)(4), a felony of the third degree; one count of theft, in violation of R.C. 2913.03(A)(1)(B)(2), a misdemeanor of the first degree; one count of having weapons under disability, in violation of R.C. 2923.13(A)(2)(B), a felony of the third degree; and one count of intimidation of a witness in a criminal case, in violation of R.C. 2921.04(B)(D), a felony of the third degree. The count of burglary contained a firearm specification.
(¶ 3} Simons was sentenced to an aggregate prison term of nineteen years in prison. Although we vacated his conviction and sentence for intimidation of a witness, we affirmed the judgment against Simons in all other respects. State v. Simons, 193 Ohio App.3d 784, 2011-Ohio-2071, 954 N.E.2d 176 (2d Dist.) (hereinafter " Simons I ").
(¶ 4} On December 21, 2010, Simons filed a petition for post-conviction relief in which he asserted five claims, to wit: 1) ineffective assistance of counsel; 2) denial of compulsory process and right to confront witnesses; 3) Brady violation, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); 4) prosecutor knowingly used perjured testimony to obtain Simons' convictions; and 5) there was a criminal conspiracy between the trial judge and the prosecutor against Simons. On January 12, 2011, the State filed a motion for summary judgment regarding Simons' petition. Simons filed an amendment to his petition on July 25, 2011. On October 23, 2012, Simons filed a supplement to his petition for post-conviction relief based on the new interpretation of the allied offenses statute, R.C. 2941.25, found in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. In an entry filed on December 31, 2012, the trial court dismissed Simons' petition, finding that he had failed to make a colorable claim of ineffective assistance of counsel, and the amended petition and supporting materials failed to set forth sufficient operative facts to establish substantive grounds for relief
(¶ 5} It is from this judgment that Simons now appeals.
(¶ 6} Because they are interrelated, Simons' first, fourth, and fifth assignments of error will be discussed together as follows:
(¶ 7} "THE COURT OF COMMON PLEAS ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN THE COURT SUMMARILY DISMISSED HIS PETITION FOR POST-CONVICTION RELIEF WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING IN VIOLATION OF THE DUE PROCESS OF LAW AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS."
(¶ 8} "THE COMMON PLEAS COURT COMMITTED PLAIN ERROR IN GRANTING THE STATE OF OHIO A SUMMARY JUDGMENT IN THIS CASE."
(¶ 9} "THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD AN EVIDENTIARY HEARING AFTER THE APPELLANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO NEWLY DISCOVERED EVIDENCE."
(¶ 10} Post-conviction relief is governed by R.C. 2953.21. The statute provides, in pertinent part, that:
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 ...