Court of Appeals of Ohio, Fourth District, Highland
Smith, Chillicothe, Ohio, pro se.
P. Collins, Highland County Prosecuting Attorney, Adam J.
King, Highland County Assistant Prosecuting Attorney,
Hillsboro, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
Michael D. Hess, Judge.
Aaron Smith appeals the trial court's denial of his
petition for postconviction relief. Smith contends that the
trial court did not issue sufficient findings of fact, legal
analysis, and conclusions of law. Smith argues that the trial
court failed to properly consider the affidavits he
submitted, which he contends supported an evidentiary hearing
on his petition. Smith also contends that the trial court
erred when it determined that the affidavit testimony he
submitted to support his petition was inadmissible evidence,
when it rejected his claim of ineffective assistance of
counsel, and when it failed to hold an evidentiary hearing.
We reject Smith's contentions. The trial court's
findings of fact and conclusions of law are sufficiently
comprehensive, pertinent to the issues, and demonstrate the
basis for the trial court's decision. The trial court
gave the affidavits due deference and did not abuse its
discretion in finding that the affiants' testimony lacked
relevance. Smith failed to establish ineffective assistance
of counsel on the ground that his attorney failed to
interview or call certain witnesses. The record shows that
his attorney did interview the witnesses Smith identified and
determined that their testimony would not be helpful to his
defense. Smith's other two grounds for his ineffective
assistance of counsel claim - failure to request a
continuance so Smith could retain a new attorney and failure
to correct alleged errors in Smith's criminal record -
are barred by res judicata. If meritorious, they could have
been raised in his direct appeal. Finally, because Smith
failed to produce sufficient credible evidence to demonstrate
a violation of his constitutional right to effective
assistance of counsel, he was not entitled to an evidentiary
hearing. The trial court did not abuse its discretion when it
denied Smith's petition for postconviction relief without
a hearing. Consequently, we affirm the judgment of the trial
After a jury convicted Smith of burglary, a second-degree
felony, and theft, a first-degree misdemeanor, the trial
court sentenced him to a five-year prison term. Smith
appealed, contending that his sentence was unsupported by the
record. He argued that he should not have been sentenced to
prison, but instead ordered to attend drug rehabilitation for
his substance abuse relapse and ordered to pay restitution to
the victims. We overruled his assignment of error and
affirmed his convictions. State v. Smith, 4th Dist.
Highland No. 18CA13, 2019-Ohio-275.
Smith filed a timely petition for postconviction relief. In
the petition, Smith contended that he was denied effective
assistance of counsel because: (1) his attorney failed in his
essential duties of pretrial investigation, advisory and
sentencing phases of trial and (2) his trial attorney failed
to file a motion to withdraw or support Smith's request
for substitute counsel.
To support his first claim, Smith submitted the affidavits of
his uncle, Ronald L. Yates (a.k.a. Charlie Yates), and two
cousins, April Yates and Stacey Calhoun. In his affidavit
Ronald Yates states that he lived in the residence Smith
burglarized with his daughter and her husband, Savannah and
Travis Ecton. Smith is Yates's nephew and lived next door
as a child growing up. During his youth Smith routinely
entered Yates's home without permission and Yates had
never told Smith he could not enter the house unless invited.
The affidavits of April Yates and Stacey Calhoun corroborated
their father's affidavit.
Smith contended that Yates's affidavit testimony
established that Smith was not trespassing at the time he
entered the home, trespass being an element of his burglary
conviction. Smith argued that although his trial attorney
contacted Yates before the trial, his attorney did not ask
"reasonable questions" and adopted a trial strategy
different from the one Smith believed would be successful.
As part of his first claim, Smith also contended that his
trial attorney was ineffective at the sentencing phase for
failing to correct errors in Smith's criminal history.
Smith argued that his record states that he was guilty of a
2015 attempted burglary when, in fact, it was robbery, and
that his record includes a 2014 illegal possession of drug
charge about which Smith has "no knowledge of this
charge or why it would be part of my record."
For his second claim, Smith contended that his trial counsel
was ineffective for failing to seek a continuance to retain a
new attorney because he disagreed with his attorney's
trial strategy. Smith made an oral request for a continuance
on the day of trial and the trial court denied it.
The trial court denied Smith's petition for
postconviction relief because he failed to support his
petition with evidence of sufficient operative facts to
demonstrate ineffective assistance of counsel. Specifically,
the affidavits attached to Smith's petition established
only that Yates had given Smith past consent during childhood
to enter the premises. The trial court reviewed the trial
transcript and noted that Yates had surgery and was not
residing at the home at the time of the burglary or in the
two months prior to it. The sole residents at the time of the
burglary were the victims, Savannah and Travis Ecton. Travis
Ecton testified that when he came home from work he
discovered his front door ajar and an "intruder in his
bedroom, who fled out the back door when Ecton discovered
him. The trial court found that any past privilege Smith may
have had to enter the residence was not relevant to whether
he had permission from Ecton and his wife to enter the
residence, and specifically their bedroom, while they were
not there. Thus, the affidavit testimony lacked relevance and
would have been inadmissible at trial. See July 12,
2019, Decision and Entry Denying Motion for Post Conviction
Relief Without Hearing, p. 2-4.
Additionally, the trial court found that, even if affidavit
testimony were allowed, Smith did not demonstrate that there
is a reasonable probability that the result of the trial
would have been different if trial counsel would have
presented this testimony. Past consent does not constitute
current consent. Ecton testified that Smith was an intruder
whom he chased out of his bedroom and down the alley until
Smith dropped Ecton's belongings and Smith's own
wallet in the process.
As to Smith's contention that his trial counsel failed to
effectively interview Yates, the trial court found that the
record showed that his attorney did speak with the victims
and Smith conceded that his attorney spoke to Yates. The
trial court determined that Smith's attorney's
decision not to call Yates as a witness was trial strategy
and not generally grounds for finding that trial
counsel's performance constituted ineffective assistance
of counsel. See July 12, 2019, Decision and Entry
Denying Motion for Post Conviction Relief Without Hearing, p.
The trial court addressed Smith's second claim that his
attorney was ineffective for failing to obtain a trial
continuance and for not withdrawing as his attorney. The
trial court found that Smith failed to submit an affidavit
setting forth the facts alleged in his petition concerning
this contention and failed to attach a transcript of the
pretrial hearing. The trial court stated that it had reviewed
the transcripts of three other pretrial hearings that were
part of the record on appeal and found no reference to
Smith's request for a continuance or for a new attorney.
See July 12, 2019, Decision and Entry Denying Motion
for Post Conviction Relief Without Hearing, p. 3.
The trial court found that Smith's petition for
postconviction relief did not allege substantive grounds for
relief as required to entitle him to postconviction relief
under R.C. 2953.21.
Smith filed a timely appeal.
ASSIGNMENTS OF ERROR
Smith assigns the following errors for our review:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT PROPERLY
ISSUING SUFFICIENT FINDINGS OF FACT AND CORRECT LEGAL
ANALYSIS AND CONCLUSIONS OF LAW.
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPROPERLY
CONCLUDED THAT THE TESTIMONY OF THE WITNESSES AS SET FORTH IN
THE AFFIDAVITS WOULD NOT HAVE BEEN ALLOWED UNDER THE RULES OF
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
COLLECTIVELY CONSIDER THE INSTANCES OF INEFFECTIVE ASSISTANCE
OF COUNSEL CLAIMS DURING PRE-TRIAL, ADVISORY AND SENTENCING
PHASES OF THE TRIAL.
IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MY
PETITION FOR POST-CONVICTION ...