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State v. Bennington

Court of Appeals of Ohio, Fourth District

August 27, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
ROBERT BENNINGTON, Defendant-Appellant.

Robert Bennington, Blue Creek, Ohio, for Pro Se Appellant.

Jessica A. Little, Special Prosecuting Attorney on behalf of Adams County Prosecutor, Georgetown, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Matthew W. McFarland Presiding Judge

(¶1} Robert Bennington appeals the denial of his petition for post-conviction relief filed in the Adams County Court of Common Pleas. Bennington (hereinafter "Appellant") was found guilty by a jury of his peers of (1) menacing by stalking, a violation of R.C. 2903.211(A)(1), a felony of the fourth degree, and (2) violation of a protection order, a violation of R.C. 2919.27(A), and a misdemeanor of the first degree. Appellant lists ten errors on appeal, but fails to present assignments of error and issues for review in accordance with the appellate rules. Appellant generally argues the trial court abused its discretion and denied him due process of law. In the interests of justice, we will address the errors Appellant has listed. For the reasons which will follow, we find the trial court did not abuse its discretion by its denial of the petition for post-conviction relief Accordingly, we overrule Appellant's assignments of error and dismiss this appeal.

FACTS

(¶2} Appellant and an adult female family friend, (hereinafter "the victim"), had a consensual sexual relationship for approximately two years, beginning in 2007. [1] The relationship was described, in emails exchanged between the two and in court testimony, as a "master/slave" relationship. There was an abundance of email correspondence which transpired between the two during the time period of their sexual relationship. Sometime in 2009, the victim decided to end the relationship with Appellant and informed him of her decision. On July 10, 2009, the victim filed a police report indicating she was attempting to terminate the relationship but Appellant refused to accept her decision, as indicated by repeated emails, visits, text messages, voice mails, and phone calls. The victim sought a civil stalking protection order. The Adams County Common Pleas Court issued the same on July 13, 2009. The order prohibited Appellant from any contact with the victim. Appellant did not abide by the order and was eventually arrested for actions which occurred on or about August 15, 2009. Appellant was later indicted and convicted of menacing by stalking and violation of a protection order.

(¶3} On May 3, 2011, Appellant was sentenced to 15 months in prison. Appellant filed a direct appeal but later dismissed it. On January 3, 2012, Appellant filed a motion to vacate or set aside judgment of conviction or sentence. Appellant also filed a motion for expert witness and a motion for appointment of counsel.

(¶4} Appellant's petition to vacate or set aside the judgment of conviction or sentence sets forth six claims of constitutional error:

1)Petitioner was deprived of his right to effective assistance of counsel due to counsel's failure to investigate the victim's perjury on the aggravated menacing charges she filed and the temporary protection order she acquired. [2]
2) Petitioner was denied his right to effective assistance of counsel due to counsel's failure to review and enter as evidence emails, text messages, and witness testimony, as requested by the Petitioner. Appellant argued the evidence would have shown the victim's character to be completely different as characterized by her testimony at trial. Appellant argued had the evidence been allowed, the victim would not have been allowed to commit perjury.
3)Petitioner was denied effective assistance of counsel due to counsel's failure to request an expert witness. Appellant argued without expert testimony, he was unable to enter the emails without being forced to give up his Fifth Amendment right not to testify. Appellant argued had the expert been available to authenticate the emails, the victim would not have been able to commit perjury and the verdict would have been different.
4) Petitioner was denied due process due to the prosecution's failure to disclose exculpatory evidence during discovery. Appellant argued the prosecution knew of an email account and text messages which contained possibly exculpatory evidence.
5)Petitioner was denied due process due to his counsel's failure to request the court to pay for an expert.

(¶5} The State of Ohio filed a memorandum in opposition. Appellant also filed a motion for summary judgment. On July 12, 2012, Appellant filed a petition for writ of procedendo in this court. [3] On August 21, 2012, the trial court held a hearing on Appellant's motions. The trial court verbally denied the motion for appointment of counsel and motion for expert witness. On October 9, 2012, the court denied Appellant's petition. Appellant timely filed a notice of appeal.

ASSIGNMENTS OF ERROR

(¶6} Appellant's petition to vacate and set aside judgment of conviction or sentence was filed pursuant to R.C. 2953.21. Appellant alleges the trial court made the following errors with regard to its denial of his petition for post-conviction relief

Error 1- Failure to address Appellant's post-conviction petition until faced with a writ of procedendo;
Error 2- Making multiple errors of fact during the August 21, 2012 hearing which showed a failure to prepare for the hearing;
Error 3- Holding a combined hearing on the post-conviction petition and related motions; Error 4-Verbal denial of Appellant's motions for expert witness and counsel;
Error 5- Lack of understanding of current technology;
Error 6- Failure to comply with statutory requirements for rendering findings of fact and conclusions of law in his denial of the post-conviction motion by failing to address Appellant's claims of constitutional error;
Error 7- Reference to the State's failure to secure email accounts in the judgment entry of sentencing dated October 9, 2012;
Error 8- Misconstrual of Appellant's issue with regard to his argument the victim perjured herself;
Error 9- Commenting on Appellant's choice not to testify during the trial, thereby showing evidence ...

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