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State v. Smith

Court of Appeals of Ohio, Fourth District, Highland

January 7, 2020

STATE OF OHIO, Plaintiff-Appellee,
v.
AARON SMITH, Defendant-Appellant.

          Aaron Smith, Chillicothe, Ohio, pro se.

          Anneka 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.

         {¶1} 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.

         {¶2} 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 court.

         I. PROCEDURAL HISTORY

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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."

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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. 6.

         {¶12} 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.

         {¶13} 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.

         {¶14} Smith filed a timely appeal.

         II. ASSIGNMENTS OF ERROR

         {¶15} 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 EVIDENCE.
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 ...

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