APPEAL from the Franklin County Court of Common Pleas, No. 02CR-06-3117
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Bieser, Greer & Landis, LLP, and James P. Fleisher; Marc S. Triplett, for appellant.
(¶ 1} Defendant-appellant, James T. Conway III ("appellant"), appeals from a judgment of the Franklin County Court of Common Pleas denying his second petition for post-conviction relief brought pursuant to R.C. 2953.23.
I. FACTS AND PROCEDURAL HISTORY
(¶ 2} In September 2001, appellant killed Andrew Dotson with a pickax. The grand jury indicted appellant on one count of aggravated murder with three death penalty specifications. On September 23, 2003, the jury returned guilty verdicts on all counts and specifications in the indictment. Appellant waived his right to a jury trial with respect to the repeat violent offender specifications and he was convicted by the court. The jury subsequently recommended the death penalty. On October 8, 2003, the trial court adopted the recommendation and sentenced appellant to death. The Supreme Court of Ohio affirmed the convictions in State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815 ("Conway I ").
(¶ 3} On August 23, 2004, appellant first initiated post-conviction proceedings in state court. His petition alleged 20 separate constitutional violations. On May 2, 2005, the trial court entered a decision and judgment entry overruling all 20 claims and denied relief We affirmed the decision of the trial court in State v. Conway, 10th Dist. No. 05AP-550, 2006-Ohio-6219 ("Conway II ").
(¶ 4} This appeal arises from appellant's second petition for post-conviction relief, filed November 2, 2011. Plaintiff-appellee, the State of Ohio ("the State"), filed an answer to the petition and a motion to dismiss on December 10, 2011. Appellant filed a motion for appointment of counsel on January 6, 2012, a response to the motion to dismiss on January 20, 2012, and a motion for leave to conduct discovery on February 21, 2012.
(¶ 5} On February 24, 2012, the trial court granted the State's motion to dismiss without holding an evidentiary hearing. Appellant's motions were denied. Appellant timely appealed to this court from the decision of the trial court.
(¶ 6} In his latest petition, appellant claims that: (1) his original trial counsel had a conflict of interest, (2) the State suppressed material exculpatory evidence, (3) his original trial counsel was ineffective, (4) each of his subsequent trial counsel were ineffective in conducting their investigation of his case, and (5) the cumulative affect of such errors warrants relief
II. ASSIGNMENTS OF ERROR
(¶ 7} Appellant raises the following assignments of error:
[I.] The Trial Court Erred When It Denied Appellant's Motion For Leave To Conduct Discovery.
[II.] The Trial Court Erred When It Did Not Declare R.C. § 2953.21 And 2953.23(A)(2) Constitutionally Infirm On Their Face And As Applied To Appellant.
[III.] The Trial Court Erred When Held That Appellant Had Not Met the Criteria Contained in R.C. § 2953.23(A).
[IV.] The Trial Court Erred When It Did Not Grant Appellant Relief on the First Ground for Relief; The State Suppressed Exculpatory, Material Evidence.
[V.] The Trial Court Erred When It Did Not Grant Appellant Relief on the Second Ground for Relief; The Attorney Who Initially Represented Appellant Suffered From A Conflict of Interest.
[VI.] The Trial Court Erred When It Did Not Grant Appellant Relief as to the Third Cause of Action; Attorney Cicero's Conflict Deprived Appellant of The Right to Effective Assistance of Counsel.
[VII.] The Trial Court Erred When It Did Not Grant Appellant Relief as to the Fourth Cause of Action; Trial Counsel Failed to Provide Appellant With Effective Assistance of Counsel.
[VIII.] The Trial Court Erred When It Did Not Grant Appellant Relief as to the Fifth Ground Relief; The Cumulative Impact of the Errors Identified in the First Through Fourth Grounds for Relief Denied Appellant a Fair Trial.
[IX.] The Trial Court Erred When It Overruled Appellant's Motion For Appointment Of Counsel.
III. STANDARD OF REVIEW
(¶ 8} The appropriate standard 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. Tucker, 10th Dist. No. 12AP-158, 2012-Ohio-3477, ¶ 9. This court must apply a manifest weight standard in reviewing 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.
(¶ 9} Similarly, "[w]hether a court of common pleas possesses subject-matter jurisdiction is a question of law, which appellate courts review de novo." Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-709, 2013-Ohio-2742, ¶ 9.
A. Subject-Matter Jurisdiction
(¶ 10} Inasmuch as appellant's third assignment of error speaks to the subject-matter jurisdiction of the trial court, we will consider it first. Pursuant to R.C. 2953.23(A), if a post-conviction relief petition is a second or successive petition for postconviction relief, a common pleas court may not entertain the petition unless both of the following conditions are met:
(a) [T]the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted.
R.C. 2953.23(A)(1)(a) and (b).
(¶ 11} If the conditions of R.C. 2953.23(A)(1) and (2) are not satisfied, a trial court lacks jurisdiction to entertain a second or successive petition for post-conviction relief. State v. Brown, 10th Dist. No. 08AP-747, 2009-Ohio-1805, citing State v. Hanks, 10th Dist. No. 98AP-70 (June 25, 1998).
(¶ 12} Appellant filed his second petition for post-conviction relief more than eight years after he filed his first petition and more than six years after the Supreme Court of Ohio affirmed his conviction. The trial court denied appellant's petition for post-conviction relief because it was his second petition for post-conviction relief and because appellant had not met either of the statutory criteria.
B. R.C. 2953.23(A)(1)
(¶ 13} To evaluate appellant's claim that he "was unavoidably prevented" from discovering the facts upon which his second petition relies, we must review the facts underlying appellant's convictions. In our opinion in Conway II at ¶ 9, we noted that "[t]he facts of this case were extensively developed in the Supreme Court of Ohio's decision on direct appeal." Accordingly, we reproduced those facts as follows:
[T]he state in appellant's criminal trial relied principally on the testimony of an admitted co-participant in the kidnapping and murder of Andrew Dotson, Mike Arthurs, a friend of appellant. The state also presented the testimony of a jailhouse informant, Ronald Trent, and the testimony of Dr. Patrick Fardal, the Chief Forensic Pathologist for the Franklin County Coroner's Office.
Arthurs testified that in September, 2001, appellant approached Arthurs and Shawn Nightingale, and asked if they would kill Andrew Dotson because Dotson was a witness to a previous incident in which appellant had shot and wounded another man. Arthurs and Nightingale agreed to do so, Arthurs testified, and on a manufactured pretext convinced Dotson to go to West Virginia, where they intended to kill him. They selected a rural wooded area to carry out the crime, but then got cold feet and did not carry through their scheme. The three drove back to Columbus, with Dotson taking some pills on the way and eventually passing out. On the drive home, Arthurs testified, he called appellant to state that they had been unable to kill Dotson.
Appellant met Arthurs, Nightingale, and the still-unconscious Dotson at a shopping center and they all drove to a rural cornfield. Appellant then ordered Arthurs to take Dotson out of the car and choke him. Arthurs testified that he pretended to strangle the unconscious Dotson by stepping on his throat, but that when he stopped doing so Dotson was still breathing. Arthurs and another man then dragged Dotson some distance into the cornfield, whereupon appellant took a pickax from the back of a vehicle and approached Dotson's inanimate body. Arthurs heard two dull thuds. Appellant then walked out of the cornfield and ...