Ohio Cases September 30, 2021: State v. Rickard

Case Description

Trial Court Nos. 2013 CR 0596, 2013 CR 0574

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Paul Croushore, for appellant.

DECISION AND JUDGMENT

DUHART, J.

{¶ 1} This is an accelerated, consolidated appeal filed by appellant, Cody Rickard, from the June 30, 2020 judgment of the Wood County Court of Common Pleas denying his petition for postconviction relief filed pursuant to R.C. 2953.21. For the reasons that follow, we affirm.

{¶ 2} Appellant sets forth two assignments of error:

I. The trial court erred in denying Mr. Rickard's post-conviction motion without a hearing.

II. The trial court erred in denying Mr. Rickard's post-conviction motion and concluding that his post-conviction petition was barred by the doctrine of res judicata where the cases on which the trial court based its decision lacked admissible and relevant evidence of falsification by state's witnesses.

Background

{¶ 3} The facts of this case are fully set forth in State v. Rickard, 6th Dist. Wood Nos. WD-17-011 and 012, 2019-Ohio-298, ¶ 2-28 (" Rickard II " ). Briefly, on October 28, 2013, appellant was driving a vehicle near Bradner in Wood County, Ohio, while at the same time and in the same general vicinity, a crew of railroad workers were repairing a railroad crossing ("the work site"). Appellant drove the vehicle into a parked truck in the work site, where several workers were standing; three workers were struck. Two of the workers sustained considerable injuries, and the third worker later died of his injuries.

{¶ 4} On November 6, 2013, appellant was indicted in case No. 2013CR0574 on two counts of vehicular assault in violation of R.C. 2903.08(A)(2)(a) and (C)(2), felonies of the fourth degree, and two counts of felonious assault in violation of R.C. 2903.11(A)(2) and (D)(1)(a), felonies of the second degree. After the death of the worker, appellant was indicted in case No. 2013CR0596 on one count of aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(b) and (B)(3), a felony of the third degree, one count of aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a) and (B)(3), a felony of the third degree, and one count of felony murder in violation of R.C. 2903.02(B), an unspecified felony. Appellant pled not guilty to all of the charges.

{¶ 5} In January 2014, a jury trial was held and appellant was found guilty on all counts, and sentenced to 29 years in prison. Appellant appealed and we affirmed appellant's convictions. See State v. Rickard, 6th Dist. Wood Nos. WD-14-016 and WD-14-017, 2015-Ohio-3298 (" Rickard I ").

{¶ 6} During the time that appellant's appeal was pending, he filed a petition for postconviction relief, arguing his trial counsel was ineffective for failing to investigate his mental status at the time of the incident. A hearing was held and the trial court denied the petition. Appellant appealed. On June 10, 2016, we reversed the denial of the postconviction relief petition and remanded the case. See State v. Rickard, 6th Dist. Wood Nos. WD-15-046 and WD-15-047, 2016-Ohio-3374.

{¶ 7} On remand, appellant entered a plea of not guilty by reason of insanity and was committed to psychiatric hospitals for mental health examinations. In February 2017, a second trial was held and appellant was found guilty on all counts of the indictments. Appellant was sentenced to a prison term of 29 years to life; he appealed. On February 1, 2019, we affirmed the convictions. See Rickard II.

{¶ 8} While the appeal of his second conviction was pending, appellant filed a second petition for postconviction relief on July 10, 2018, which he amended on January 8, 2019, and again on January 17, 2019. Appellant set forth nine claims, alleging six claims of ineffective assistance of counsel and the remaining claims, misconduct regarding the handling of the trial and jury. Appellant argued, in part, his trial counsel was ineffective for failing to retain an accident reconstruction expert to refute the state's theory regarding the placement of barricades around the work site.

{¶ 9} On March 25, 2019, the trial court dismissed appellant's second postconviction petition without a hearing, finding it was not timely. Appellant appealed. We reversed and remanded. See State v. Rickard, 6th Dist. Wood No. WD-19-030, 2020-Ohio-294.

{¶ 10} On remand, the trial court considered the merits of appellant's second petition, and denied it without a hearing. In its order, the trial court found, inter alia, appellant's arguments were barred by res judicata because at trial, defense counsel cross-examined the state's expert witness, and in appellant's previous appeal, he already raised the issue of ineffective assistance of counsel. The court cited Rickard II at ¶ 29, 43. The trial court also set forth appellant "knew the scene was not properly described by the state[']s witnesses, and he repeatedly asked his attorney to hire an expert to counter it." The court referred to the affidavits of appellant and his mother. The trial court observed "[t]his undercuts [appellant's] claim that the expert report [he] submitted raises a new issue, which could not have been raised on appeal." Appellant appealed.

Law

{¶ 11} R.C. 2953.21 sets forth the standard for postconviction relief in Ohio:

Any person who has been convicted of a criminal offense * * * and who claims that 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 * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief

{¶ 12} We review the denial of a postconviction petition for an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion means the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 13} Postconviction review is a narrow remedy and res judicata bars any claim which was raised or could have been raised at trial or on direct appeal. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994).

"Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from the judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from the judgment." State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

{¶ 14} A criminal defendant seeking to challenge his conviction by filing a petition for postconviction relief is not automatically entitled to a hearing. State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999). Before an evidentiary hearing on the petition is granted, the trial court "shall determine whether there are substantive grounds for relief." R.C. 2953.21(D). When making such a determination, the trial court shall consider the petition, supporting affidavits, evidence and all of the "files and records pertaining to the proceedings against the petitioner." Id.

Assignments of Error

{¶ 15} We will address appellant's second assignment of error first.

{¶ 16} Appellant contends the trial court, in denying his post-conviction motion, "held that defense counsel was not ineffective in not securing an expert witness, despite [appellant's] evidence that he had sought such assistance." Appellant observes "[t]he trial court * * * noted that failing to call an expert and relying on cross-examination is not ineffectiveness by counsel." Appellant argues the trial court "based its decision on caselaw which do not support its conclusion." Appellant further asserts his "trial counsel was unaware that the witnesses in the trial had tampered with the scene, and thus could not have effectively cross-examined the state's witnesses." Appellant maintains he "presented the trial court with admissible and relevant evidence that the testimony of the prosecution witnesses at trial was based upon a falsehood on the underlying premise of the entire case."

Analysis

{¶ 17} Upon review, appellant's arguments in support of his second assignment of error focus mainly on the trial court's denial of his petition without considering the issues raised by the expert report "demonstrating falsification of the alleged crime scene by the state's witnesses." Appellant did not present any arguments in this assignment as to claims in his petition concerning alleged misconduct with respect to the handling of the trial and jury. We will limit our analysis to appellant's arguments on appeal. See App.R. 12.

{¶ 18} In Rickard II, we set forth "[i]n his first assignment of error, appellant argues that his trial counsel was ineffective for failing to retain an expert witness in crash reconstruction * * *." Rickard, 6th Dist. Wood No. WD-17-011, 2019-Ohio-298, at ¶ 43. After considering the assignment of error, we found appellant did not satisfy the two prongs of the test needed to prevail on his claim of ineffective assistance of counsel. Id. at ¶ 44, 46. Specifically, we found "appellant's argument that an expert exists that would have reached those conclusions is purely speculative. * * * [And] the specific mechanics of how the crash occurred would not disprove that appellant acted knowingly where appellant admitted to intentionally closing his eyes and pressing unrelentingly on the accelerator." Id. at ¶ 46. We therefore held "appellant has failed to demonstrate that the favorable testimony of a crash reconstruction expert would have resulted in a different outcome in the proceedings, and his claim of ineffective assistance of counsel on this point must fail." Id.

{¶ 19} Following a thorough review of the relevant law and the record, including appellant's petition and amendments, we conclude the ineffective assistance of counsel arguments appellant offered were raised or could have been raised on direct appeal, and are barred by the doctrine of res judicata. We therefore conclude the trial court did not err when it denied appellant's petition for postconviction relief. Accordingly, we find appellant's second assignment of error is not well-taken.

{¶ 20} Since appellant did not state substantive grounds for relief in his petition or amendments, we conclude appellant's first assignment of error, that the trial court erred in denying his postconviction petition without a hearing, is moot. Accordingly, appellant's first assignment of error is not well-taken.

{¶ 21} The judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J., Myron C. Duhart J., Gene A. Zmuda, P.J. CONCURS IN DECISION ONLY JUDGE _ AND WRITES SEPARATELY.

ZMUDA, P.J.

{¶ 22} I concur with the majority's decision to affirm the trial court's denial of appellant's amended petition for postconviction relief. However, I write separately because I would affirm the trial court's judgment based on appellant's lack of statutory standing to file a petition for postconviction relief rather than through the application of res judicata.

Relevant Procedural History

{¶ 23} On October 28, 2013, appellant drove into a construction zone and struck three individuals replacing railroad tracks. One of the individuals died as a result of the accident while the other two suffered severe injuries. At trial, appellant was found guilty of two counts of aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(a) for causing injury to the workers in a construction zone; and two counts of felonious assault in violation of R.C. 2903.11(A)(2), charges unrelated to the status of the site as a construction zone. He was also found guilty on charges of aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(b) for killing a worker in a construction zone, aggravated vehicular homicide in violation of R.C. 2903.03(A)(2)(a) for killing the worker while driving recklessly, and for felony murder in violation of R.C. 2903.02(B).

{¶ 24} At sentencing, the trial court determined that the aggravated vehicular assault counts which were based on appellant's entering a construction zone merged with the felonious assault counts. Additionally, the trial court determined that both of the aggravated vehicular homicide counts merged with the felony murder count. The state elected to have appellant sentenced on the felonious assault counts and the felony murder counts. Notably, appellant was not sentenced on any offense related to the status of the accident site as a construction zone.

{¶ 25} This appeal arises from the trial court's denial of appellant's January 17, 2019 amended petition for postconviction relief. In his petition, appellant alleged that his trial counsel's failure to hire an accident reconstruction expert resulted in the denial of his right to effective assistance of counsel and rendered the judgment against him voidable. Specifically, appellant alleges that an accident reconstruction expert would have shown that the area where the accident occurred "was not a properly erected construction zone." This, he argues, would have negated the state's ability to prove an element of his aggravated vehicular homicide charge and his aggravated vehicular assault charges. The trial court denied appellant's petition on June 30, 2020. Appellant timely appealed the denial of his petition.

Law and Analysis

{¶ 26} The majority concludes that because issues related to the status of the construction zone, and the related expert reports, could have been raised at trial or on direct appeal, that appellant is barred from raising these issues in a petition for postconviction relief under the doctrine of res judicata. See State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). I agree that the record shows that these issues could have been raised at trial and on direct appeal. However, rather than addressing whether the doctrine of res judicata applies to appellant's petition, I would find that appellant's petition fails on the threshold issue of appellant's standing to file his petition.

Standing Is An Issue Properly Raised Sua Sponte On Appeal

{¶ 27} Initially, I note that neither party raised the issue of appellant's standing to file his petition for postconviction relief. However, "[t]he issue of standing is jurisdictional and may be raised by the court sua sponte." State v. Langston, 6th Dist. Lucas No. L-12-1014, 2012-Ohio-6249, ¶ 7 citing In re Foreclosure of Parcel of Land Encumbered with Delinquent Tax Liens, 11th Dist. Lake No. 2007-L-002, 2007-Ohio-4377. Based on the unique basis on which appellant filed his petition, I find it appropriate to raise this issue sua sponte as the lack of statutory authority granting appellant standing to file the petition precludes our review of appellant's petition on its merits.

Postconviction Relief Overview

{¶ 28} To determine whether appellant had standing to file his petition for postconviction relief, it is necessary to review both the nature of postconviction relief proceedings as well as R.C. 2953.21, the statute which authorizes an offender to file a petition. As to the general procedure, the postconviction relief process is not an appeal of the underlying criminal judgment but is a collateral civil attack on that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). The entire postconviction relief process is statutory and "[a] postconviction petitioner therefore 'receives no more rights than those granted by the statute.'" State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351 ¶ 35, citing Calhoun at 281, 714 N.E.2d 905 (1999). Because the entire process is statutory in nature, petitioner only has standing to file the petition where "the statute in question authorizes review at the behest of the [petitioner.]" City of Middletown v. Ferguson, 25 Ohio St.3d 71, 75-76, 495 N.E.2 380 (1986) citing Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S.Ct. 1361, 31 L.E.2d 636 (1972). Put simply, filing a petition for postconviction relief is only authorized for those individuals that are granted that right under R.C. 2953.21.

{¶ 29} R.C. 2953.21 states, in part:

(A)(1)(a) A person in any of the following categories may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief:

(i) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that 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[.]

(Emphasis added). Under the relevant terms of the statute, an offender is only authorized to file a petition for postconviction relief if they have been "convicted of an offense" which they are seeking to render void or voidable. Since appellant is only afforded the rights granted by the statute, he must, therefore, have been convicted of the criminal offenses he seeks to render voidable in order to have standing to file a petition for postconviction relief. See Apanovitch at ¶ 35. Although appellant was indeed found guilty of three criminal offenses and sentenced to a prison term for each, he lacked standing under R.C. 2953.21 to file his petition which sought relief for counts on which he was not convicted.

Appellant Was Not Convicted Of Any Offenses Related To The Status Of The Accident Site As A Construction Zone

{¶ 30} In his original indictment, appellant was charged with two counts of aggravated vehicular assault and two counts of felonious assault for each of the surviving victims. The vehicular assault charges were "aggravated" pursuant to R.C. 2903.08(A)(2)(a) because the victims were injured in a defined construction zone. The felonious assault charges arose from appellant's reckless conduct in operating his vehicle and did not require the state to prove that the incident occurred in a construction zone. At sentencing, the trial court determined that the aggravated vehicular assault charges and the felonious assault charges were allied offenses of similar import pursuant to R.C. 2941.25. The state elected to have the trial court sentence appellant on the felonious assault charges.

{¶ 31} Similarly, appellant was charged with two counts of aggravated vehicular homicide and one count of felony murder following the death of the third victim. One count of aggravated vehicular homicide was based on appellant having committed the offense in a construction zone as described in R.C. 2903.06(A)(2)(b). The other aggravated vehicular homicide count did not require the state to prove that the incident occurred in a construction zone. Appellant was also charged with one count of felony murder which was unrelated to the status of the accident site as a construction zone. The jury found appellant guilty on all three counts related to the death of the third worker. At sentencing, the trial court determined that all three counts were allied offenses under R.C. 2941.25 and the state elected to have appellant sentenced on the felony murder offense. Based on the state's elections, appellant was never sentenced on an offense related to the status of the accident site as a construction zone.

{¶ 32} In his petition for postconviction relief, appellant asked the trial court to reverse his conviction based on his counsel's alleged ineffective assistance in failing to retain and utilize an accident reconstruction expert at trial. Specifically, appellant argued that an accident reconstruction expert would have shown that it was impossible for his vehicle to have traveled between the "road closed" sign and the edge of the pavement without having left the pavement before entering the construction zone. At trial, the state introduced evidence that appellant's vehicle's tire marks did not leave the roadway. As a result, appellant argues, the sign had to have been moved closer to the edge of the roadway after the accident. This, he argues, created a question of credibility for the state's witnesses that testified regarding the location of the construction zone signage. Appellant believes that if expert testimony on this issue had been introduced at trial, it would have resulted in an acquittal because the state was unable to show that the accident site was "a properly erected construction zone." Appellant attached an expert report to his petition that reflected the conclusions on which he based his argument.

{¶ 33} Without regard to the merits of his argument, it is evident that appellant's petition sought to overturn the findings of guilt for aggravated vehicular assault and aggravated vehicular homicide which were based on the accident having occurred in a construction zone. However, appellant was not convicted on these counts and therefore was not authorized to file a petition under R.C. 2953.21.

{¶ 34} At sentencing, each of the counts which were based on the accident having occurred in a construction zone were determined to be allied offenses with the more serious offenses of felonious assault and felony murder, respectively. R.C. 2941.25 establishes that when an individual is charged with conduct that constitutes "two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." (Emphasis added). The Ohio Supreme Court previously determined that a defendant is only "convicted" for purposes of R.C. 2941.25 if they have been both found guilty and sentenced for an offense. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 319. Appellant was not sentenced on either of the "construction zone"-related offenses and, therefore, was not convicted of either offense. Under R.C. 2953.21, only an offender who has been convicted of an offense is authorized to file a petition for postconviction relief. Appellant does not meet this requirement and therefore lacks standing to have even filed the petition with the trial court.

{¶ 35} As a practical matter, I believe this is the required result in this case. Assuming that appellant was authorized to file his petition, and that his petition was granted, the trial court would have been without authority to have provided any relief. Appellant was sentenced for, and thereby convicted of, two counts of felonious assault and one count of felony murder. A meritorious argument showing that the jury's finding of guilt on two unsentenced charges would have no effect on appellant's ultimate sentence or this court's resolution of his direct appeal. See State v. Rickard, 6th Dist. Wood Nos. WD-17-011 and WD-17-012, 2019-Ohio-298 (affirming appellant's felonious assault and felony murder convictions). Put simply, there is no relief appellant could have obtained had he been successful in his petition because there is no conviction to overturn based on his arguments.

Conclusion

{¶ 36} In sum, while I agree with the majority's conclusion to affirm the trial court's denial of appellant's petition for postconviction relief, I would have dismissed appellant's petition on the threshold issue of standing under R.C. 2953.21. As a result, I concur with the majority in affirming the trial court's judgment but would do so for different reasons.

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Notes:

Appellant raised 9 issues for the trial court's review in his petition for postconviction relief. However, he only raises the issues addressed herein on appeal.

R.C. 2953.21(A)(1)(a)(ii - iv) identify additional categories of offenders that are permitted to file a petition for postconviction relief. The remaining categories are not applicable to appellant.

Appellant's petition does not explain how the location of the sign or its potential movement would have rendered the area an improperly designated construction zone.

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