State v. Tenney

2021-Ohio-3676

STATE OF OHIO, Plaintiff-Appellant, v. RICHARD TENNEY, ET AL., Defendants-Appellees.

Nos. 109797, 109798, 109799, 109800

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 14, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-618532-A, CR-17-618532-B CR-17-618532-C, and CR-17-618532-D

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Kevin Filiatraut and Daniel Van, Assistant Prosecuting Attorneys, for appellant.

Gina A. Kuhlman, for appellee Richard Tenney.

Russell S. Bensing, for appellee Anthony Metz.

Kimberly Kendall Corral, for appellee Jaustin Browning.

Steven Delchin, for appellee Anthony Bergant.

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, JUDGE

{¶ 1} In these consolidated cases, plaintiff-appellant state of Ohio ("the state") appeals the trial court's decision to grant defendants-appellees Richard Tenney's ("Tenney"), Anthony Metz's ("Metz") Jaustin Browning's ("Browning"), and Anthony Bergant's ("Bergant") petitions for postconviction relief without holding an evidentiary hearing. The trial court's decision is reversed and remanded for an evidentiary hearing in the postconviction matter.

{¶ 2} In 2017, the appellees, after a bench trial, were found guilty of rape and kidnapping. More specifically, Browning was found guilty of two counts of rape, one count of kidnapping, one count of pandering obscenity, and one count of misdemeanor assault. He was sentenced to 31 years in prison. Bergant was found guilty of two counts of rape, one count of kidnapping, and one count of misdemeanor assault. Bergant was sentenced to 30 years' imprisonment. Metz was found guilty of one count of rape and one count of kidnapping. Metz was subsequently sentenced to 15 years' imprisonment. Lastly, Tenney was found guilty of two counts of rape and one count of kidnapping. Tenney was sentenced to 30 years' imprisonment.

I. Facts and Procedural History

A. Current Appeal to the Ohio Supreme Court

{¶ 3} In 2018, all four appellees filed separate appeals to this court. This court consolidated the appeals and issued one decision affirming the appellees' convictions with a two-to-one panel decision, but reversed their consecutive sentences by a separate two-to-one panel decision and remanded the matter to the trial court for resentencing. State v. Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 1 (8th Dist.). The state filed a motion for reconsideration and an application for en banc, and this court denied both. The state then filed an appeal to the Supreme Court of Ohio. On September 15, 2020, the Supreme Court of Ohio accepted the appeal. The appeal was scheduled for oral argument on May 11, 2021. However, the Supreme Court of Ohio canceled the oral argument on May 7, 2021. This appeal is still pending before the Supreme Court of Ohio.

B. State's Appeal on Postconviction Petition

{¶ 4} On July 2, 2019, the appellees filed petitions for postconviction relief pursuant to R.C. 2953.21. In the petitions, the appellees alleged that the trial court unfairly convicted them. Specifically, the appellees argued that Bergant's trial counsel had a conversation with the trial court judge that led her to believe that the trial court judge was subjected to outside influence prior to the trial court's guilty verdict. Trial counsel stated that the trial court judge referenced comments about the case that his wife made to him. Specifically, the judge's wife allegedly told him, "you are not going to acquit those animals" (or words to that effect). In the conversation, the lawyer states that the trial court judge indicated he assured his wife that he would not. The state filed a motion requesting that the trial judge recuse himself from consideration of the postconviction relief petition. However, the appellees filed a motion requesting that all of the Cuyahoga County judges recuse themselves. The state's motion was granted, and the trial court judge recused himself, while another Cuyahoga County Common Pleas Court judge was assigned to review the petition.

{¶ 5} On October 15, 2019, the public defender that filed the postconviction petition for the appellees filed a motion to withdraw from further litigation on the petition. Two days later, the state filed a motion requesting an order finding that the trial court judge's testimony was necessary to the adjudication of the pending postconviction relief petition. The state argued that it could not adequately or effectively respond to the petition without this finding. On October 22, 2019, the appellees, through the public defender, filed a response to the state's motion, concurring that the trial court judge's testimony was necessary to the adjudications of the petitions.

{¶ 6} On November 13, 2019, the trial court held a status conference regarding the petition. The state presented its argument, and the appellees did not object. At the conclusion of the status hearing, the trial court "indicated that it can be fair and impartial in handling these proceedings both procedurally and substantively." On January 2, 2020, another status conference was held, and the state reminded the trial court that it needed the motion for the trial court judge's testimony to be ruled upon before it could respond to the postconviction petitions. The trial court responded, "I know there is a motion pending that the State has filed that requires disposition from your standpoint before that response comes so we'll address all of that." (Tr. 48.)

{¶ 7} On February 6, 2020, at the status hearing, the state reminded the trial court again that they could not respond to the pending postconviction petitions without a ruling on their motion to proffer the trial court judge's testimony. The trial court replied, "As I understand it, before the State can present a formal pleading, a responsive pleading to the petition that is forth coming, they need - they want to proffer testimony from the judge just as the Defendants proffered testimony from a couple, maybe even more, affiants as I recall." (Tr. 69.)

{¶ 8} The state then informed the trial court that the original trial court judge's position is that he could not be compelled to testify without a court order. The trial court informed the parties that it wanted to have all of the information and pleadings before making its decision. The next status conferences and hearings were suspended for 30 days due to the COVID-19 global pandemic, and the next hearing was held on June 12, 2020, where the trial court acknowledged the state's motion to compel the original trial judge's testimony.

{¶ 9} The trial court asked the state if it could respond to the petition without the original trial court judge's testimony, to which the state replied that it could not. The trial court replied, stating,

Okay. And one reason I ask is because of the language in Section 2953.21(D) of the Revised Code which says that before granting a hearing on a petition for post-conviction relief, the court needs to determine whether there's substantial grounds - substantive grounds for relief.

So it sounds like on the record as it stands that - I infer from your position that in light of that statute, in order to have a response, you would agree that there's substantive grounds at the moment and there might not be once the trial judge provides evidence.

(Tr. 81.)

{¶ 10} The trial court did not make a ruling on the state's motion, but promised that it would, stating,

I will get through that renewed motion as promptly as possible. I can't give you a promise about a specific date by which I will do that, but I'm not putting it off. It's been on my plate and I want to get it off my plate as promptly as I can. I'm reluctant to give you a specific date only because, one, I don't know how long it will take me in the time I have to do it, and, two, every time I make specific promises these days, events in the world intervene and, you know, the court gets closed or for all I know there will be another wave of the pandemic and that will interfere as well. So I don't want to raise expectations unnecessarily, but those were the issues on my agenda.

(Tr. 82.)

{¶ 11} Again, at this hearing, the state reminded the trial court it needed a ruling on its motion, stating, "So what I'm looking for is the court's order, decision, opinion, however you want to put it, that the judge's testimony would be necessary in order to resolve the issue." (Tr. 89.) To which the trial court responded,

I will get you that ruling as promptly as I can. I would like to tell you I would do it in a particular time frame, except having just kind of gotten back into resuming proceedings only to have riots shut down the court for a week threw a lot of that into disarray.

I am hesitant in this of all years to make some promises, but I will do my best. I assure you of that.

(Tr. 90-91.)

{¶ 12} The trial court never ruled on the state's motion, and on June 29, 2020, the trial court granted the petitions for postconviction relief without holding an evidentiary hearing. The trial court issued an opinion and stated:

In addressing this petition for post-conviction relief, the Court assumes that the trial judge would deny the allegations, consistent with the representations of the State. With that assumption, there is no evidence before the Court that the trial judge harbored any actual bias or in any way failed in his duty to preside fairly at trial. But the constitutional guarantee of a fair trial demands more. It requires not just proceedings before a fair and impartial finder of fact, but the appearance of fairness and impartiality as well. This is so because the parties and the public more broadly must have confidence in the administration of justice. Given the nature of the defendants'

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