State v. Boyd

1

2023-Ohio-4725

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

No. 23 MA 0012

Court of Appeals of Ohio, Seventh District, Mahoning

December 18, 2023

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2017 CR 01381

Atty Ralph M. Rivera, Chief, Criminal Division, Office of the Mahoning County Prosecutor, Atty. Gina DeGenova, Mahoning County Prosecutor for Plaintiff-Appellee and

Robert Boyd, pro se.

BEFORE: Carol Ann Robb, David A. D'Apolito, Mark A Hanni, Judges.

OPINION AND JUDGMENT ENTRY

Robb J.

{¶1} Defendant-Appellant Robert Boyd appeals the decision of the Mahoning County Common Pleas Court dismissing his petition for post-conviction relief without an evidentiary hearing. In eleven assignments of error, Appellant sets forth various claims on which he believes the trial court should have conducted an evidentiary hearing. His twelfth assignment of error argues the court should have granted access to grand jury transcripts and funds for a private investigator. For the following reasons, the trial court's judgment denying post-conviction relief is affirmed.

STATEMENT OF THE CASE

{¶2} After a jury trial, Appellant was convicted of multiple offenses, including two counts of rape for purposely compelling two victims to submit to sexual conduct by force or threat of force. Count one was based on the testimony regarding anal rape provided by victim A, who was 17 years old at the time of the March 31, 2017 incident. Count two was based on the testimony regarding anal rape provided by victim B, who was 14 years old at the time of the April 17, 2016 incident. The gross sexual imposition conviction in count three also related to victim B. Appellant was additionally convicted of nine fifth-degree felony counts of the illegal use of a minor in nudity-oriented material due to photographs on a hard drive recovered during the execution of search warrants and two misdemeanor counts of disseminating matter harmful to juveniles for texting photographs of his penis to victim C, who was 16 years old.

{¶3} The trial court sentenced Appellant to maximum consecutive sentences for the rapes and the gross sexual imposition and to a combination of concurrent and consecutive sentences for the other offenses, for a total sentence of 24.5 years. (12/2/20 J.E.). This court affirmed his convictions. State v. Boyd, 2022-Ohio-3523, 198 N.E.3d 514 (7th Dist.), reconsideration denied, 7th Dist. Mahoning No. 20 MA 0131, 2022-Ohio-4749, reopening denied, 7th Dist. Mahoning No. 20 MA 0131, 2023-Ohio-271.

{¶4} On January 14, 2022, Appellant filed a timely pro se post-conviction relief petition, which he amended on April 25, 2022 (as permitted by the trial court). (10/28/22 J.E.). The state responded and filed a motion for summary judgment.

{¶5} On December 22, 2022, the trial court dismissed the petition without an evidentiary hearing, making various findings and conclusions as to each ground raised in the petition. The within timely appeal followed.^[1]

POST-CONVICTION RELIEF LAW

{¶6} As Appellant recognizes, we review the decision to dismiss the petition without a hearing under an abuse of discretion standard of review. State v. Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773, ¶ 25; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51-52, citing State v. Calhoun, 86 Ohio St.3d 279, 286, 714 N.E.2d 905 (1999). An abuse of discretion occurs if the trial court's attitude was unreasonable, arbitrary or unconscionable. Gondor, 112 Ohio St.3d 377 at ¶ 60.

{¶7} A petition for post-conviction relief may be filed by a convicted criminal defendant who claims "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 * * *." R.C. 2953.21 (A)(1)(a)(i). The petition shall state the grounds for relief relied upon and may ask the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. Id.

{¶8} The prosecutor can move for summary judgment. R.C. 2953.21(E). Regardless, "a criminal defendant seeking to challenge his conviction through a petition for postconviction relief is not automatically entitled to a hearing." Calhoun, 86 Ohio St.3d at 282. Before granting a hearing on the petition for post-conviction relief, "the court shall determine whether there are substantive grounds for relief." R.C. 2953.21 (D). See also R.C. 2953.21(F) (proceed to a prompt hearing on the issues unless the petition and the files and records of the case show the petitioner is not entitled to relief). In addition to the petition with its supporting affidavits and documentary evidence, the court shall consider all files and records pertaining to the case. R.C. 2953.21 (D).

{¶9} In general, "a trial court properly denies a defendant's petition for postconviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief." Calhoun, 86 Ohio St.3d at 286 at paragraph two of syllabus. Before a hearing is scheduled, the petitioner must meet his burden of submitting evidentiary documents with sufficient operative facts to show the raised errors resulted in prejudice. Id. at 283, 289. Notably, "if the information in the affidavit, even if true, does not rise to the level of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential." Id. at 284.^[2]

{¶10} An ineffective assistance of counsel claim involves both deficient performance and prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 694,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In general, the deficiency in performance must be a serious error falling outside the wide range of reasonable assistance so that the attorney no longer functioned as constitutionally guaranteed counsel. Id. Prejudice means a reasonable probability the result would have been different. Id. at 693-694 ("It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding."). If the facts related to deficient performance are lacking, then there is no need to review for prejudice and vice versa. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

{¶11} Specifically, before a hearing on a petition alleging ineffective assistance of trial counsel, "the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness." Calhoun, 86 Ohio St.3d at 286. As Appellant emphasizes, the Ohio Supreme Court recently remanded a case to the trial court upon holding a hearing is required where the defendant proffered evidence outside the record that if true, would show counsel was ineffective, unless the record on its face disproved the petitioner's claim. Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723 at ¶ 24, 27. This case is reviewed further below where raised.

{¶12} Pursuant to the doctrine of res judicata, the petitioner cannot raise issues that were raised or could have been raised at trial or in the direct appeal. State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus; State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus. The direct appeal from a criminal conviction is limited to the trial court record, and thus, prejudicial errors appearing in the record should be raised in the direct appeal rather than in a post-conviction petition. See State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982) (a post-conviction relief petition must avoid the res judicata bar by asserting claims based on evidence de hors the record). A post-conviction petition is properly dismissed without a hearing where the claims are barred by res judicata. State v. West, 7th Dist. Jefferson No. 07 JE 26, 2009-Ohio- 3347, ¶ 24-25, 34.

{¶13} Appellant sets forth twelve assignments of error. The first eleven assignments set forth claims he believes warrant an evidentiary hearing. We note although his petition enumerated 36 claims for relief, Appellant's brief does not cite the claim in the petition corresponding to each assignment of error. See App.R. 16(A)(7),(D). His twelfth assignment of error argues the court should have granted access to grand jury transcripts and funds for a private investigator.

ASSIGNMENT OF ERROR ONE

{¶14} Appellant's first assignment of error contends:

"[T]he trial court err[ed] in denying an evidentiary hearing where Boyd showed that failure to use a bi-polar expert was ineffective assistance of counsel."

{¶15} Victim A was 17 years old at the time of the rape in count 1. At the trial four years later, the victim testified to meeting Appellant online, conversing with him for a time, and then deciding to meet in person because he was curious about experiencing a sexual encounter with a man (noting he had a girlfriend). (Tr. 317-318). He said he initially consented to try anal sex but within seconds asked Appellant to stop because it hurt so much. (Tr. 326-328, 344, 360). Appellant refused to stop until he ejaculated inside the victim at least five minutes later. (Tr. 328-329).

{¶16} On cross-examination, victim A said he became an alcoholic after the incident. He noted he was released from rehabilitation treatment three months before trial and after treatment, "I forgot - I don't remember the past few years of my life too much. * * * Unless I think very hard on them." He then said he thought hard on...