[Cite as State v. Cassano, 2013-Ohio-1783.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : AUGUST CASSANO : Case No. 12CA55 : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 1998-CR- 0171
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 11, 2013
APPEARANCES:
For Appellant: For Appellee: MICHAEL J. BENZA JILL M. COCHRAN 17850 Geauga Lake Road Assistant Richland County Prosecutor Chagrin Falls, OH 44023 38 South Park Street Mansfield, OH 44902 Baldwin, J.
{¶1} Appellant August Cassano appeals a judgment of the Richland County
Common Pleas Court dismissing his petition for postconviction relief. Appellee is the
State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On May 25, 1976, appellant was convicted of aggravated murder in
Summit County. On January 31, 1992, appellant stabbed another inmate thirty-two
times with a shank that appellant tied to his hand with a shoestring. The victim, Troy
Angelo, escaped when a corrections officer opened the locked cell door. As appellant
was led away, he looked at Angelo and said, “I hope you die.” Appellant was
convicted of felonious assault for the stabbing of Angelo.
{¶3} Appellant’s cellmate in 1996 was Gerald Duggan. Appellant threatened
to kill Duggan if Duggan ever snitched on him. Appellant told Duggan that he didn’t
fight anymore, he stabbed.
{¶4} In 1997, appellant was serving his sentence in the Mansfield Correctional
Institution (MANCI). On October 17, 1997, appellant sent a written message to the
unit manager asking for Alfred Gibson to be his cellmate. That same day, Walter
Hardy was moved into appellant’s cell. Hardy had been in segregation for two days
under suspicion of possessing a shank, but he had been exonerated.
{¶5} Appellant told Ollie King, a counselor at MANCI, that he “didn’t want that
snitching ass faggot in his cell and that we better check [appellant’s] record.”
Appellant was very upset at having Hardy in his cell and told authorities, “You just
can’t put any type of motherfucker in my cell” and to check his record. {¶6} After Hardy moved into appellant’s cell, appellant’s friend Michael Cruz
commented that appellant had a new roommate. Appellant replied, “Not for long.” On
October 18, 1997, appellant told an inmate that Hardy was driving him nuts and if he
wasn’t moved out of the cell, appellant would remove Hardy himself.
{¶7} At 2:35 a.m. on October 21, 1997, Donald Oats, a MANCI corrections
officer, heard a commotion and hurried to appellant’s cell. He saw two inmates
fighting and signaled a “man down” alarm. Oats heard Hardy yelling that appellant
had a knife and was trying to kill him. Oats saw appellant standing over Hardy,
stabbing him with a shank. Although Oats ordered him to stop, appellant continued to
stab Hardy. Two officers responded to the man down alarm, and saw appellant
stabbing Hardy with the shank.
{¶8} Oats opened the door and ordered appellant to the back of the cell.
Appellant obeyed the order. Appellant continued to hold the shank, which was tied to
his right hand with a laundry bag string. Appellant wore a glove on his right hand.
{¶9} Hardy was taken to the hospital where he was pronounced dead at 3:37
a.m. Dr. Keith Norton, a pathologist, concluded that Hardy bled to death and that
collapsed lungs contributed to his death. Dr. Norton found seventy-five knife wounds,
including one that pierced his heart.
{¶10} In the spring of 1998, appellant told a fellow inmate that he acted in self-
defense and blacked out after stabbing Hardy eight times. Appellant stated that Hardy
was smoking crack and jumping up and down on the bunk and appellant “just went off
on him.” Appellant asked Duggan to testify that he saw Hardy with the shank used to kill him so appellant could plead self-defense, but Duggan had never seen Hardy with
a shank.
{¶11} Appellant was indicted with aggravated murder with prior calculation and
design with two death penalty specifications. The case proceeded to jury trial in the
Richland County Common Pleas Court.
{¶12} At trial, appellant testified that at 2:30 a.m. on October 21, 1997, Hardy
showed appellant a knife. Appellant testified that he snatched it out of Hardy’s hand
and said it was going out the window. Appellant claimed that Hardy grabbed him by
the left shoulder, hit him in the face and kneed him in the groin. Appellant testified
that Hardy then retrieved the knife. Appellant reclaimed the knife from Hardy, stabbed
him once, and told him to settle down. However, according to appellant, Hardy kept
coming at him so he stabbed him four times. He testified that Hardy tried to hit him
with a chair, and then he “totally lost it.” He denied that the knife had been tied to his
wrist, that he had worn a glove on his right hand, or that he had planned to kill Hardy.
He denied that he continued to stab Hardy when the corrections officers arrived at the
cell and denied making the statements other inmates and staff had attributed to him
related to Hardy. During cross-examination, appellant stated that while in prison he
had been in over one hundred fights and stabbed four people. He also admitted
writing to a family member that he would “never have to worry about having a cellmate
ever again.”
{¶13} Appellant was convicted as charged and the jury recommended the
death penalty. The trial court sentenced appellant to death and the Ohio Supreme Court affirmed the conviction and sentence on direct appeal. State v. Cassano, 96
Ohio St. 3d 94, 2002-Ohio-3751, 772 N.E.2d 81.
{¶14} On December 9, 1999, appellant filed a pro se motion to waive all
postconviction relief. The trial court granted the motion without a hearing. On January
17, 2001, February 26, 2004 and February 28, 2007, appellant filed motions to
reinstate postconviction relief. The court denied his motions to reinstate
postconviction relief. This Court reversed, finding that the court erred in failing to
conduct a Berry hearing before granting appellant’s motion to waive postconviction
relief in 1999. State v. Cassano, 5th Dist. No. 07CA27, 2008-Ohio-1045.
{¶15} On remand, the trial court allowed appellant to file a petition for
postconviction relief. Appellant filed a petition on May 3, 2011. Judge Patrick Kelly
was assigned by the Ohio Supreme Court to hear the case on November 3, 2011. On
June 18, 2012, the court dismissed appellant’s petition, finding all arguments either
barred by res judicata or insufficient to raise a cognizable claim of constitutional error.
{¶16} Appellant assigns the following errors on appeal to this Court:
{¶17} “I. THE TRIAL COURT ERRED BY DISMISSING APPELLANT’S POST-
CONVICTION PEITION, WHERE HE PRESENTED SUFFICIENT OPERATIVE
FACTS AND SUPPORTING EXHIBITS TO MERIT AN EVIDENTIARY HEARING AND
DISCOVERY.”
{¶18} “II. THE TRIAL COURT ERRED IN NOT PROVIDING RESOURCES TO
CASSANO TO DETERMINING CASSANO’S COMPETENCY, FAILING TO
EVALUATION [SIC] CASSANO’S COMPETENCY, AND TO RENDER AN OPINION
AS TO CASSANO’S COMPETENCY TO PROCEED IN POST-CONVICTION.” {¶19} “III. THE TRIAL COURT ERRED IN DIMISSING CASSANO’S CLIAM
THAT JUDGE HENSON DEPRIVED CASSANO OF HIS RIGHT TO A FAIR TRIAL
DUE TO HIS BIAS AND PREJUDICE.”
{¶20} “IV. THE TRIAL COURT ERRED IN DENYING RELIEF ON THE BASIS
OF INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶21} “V. THE TRIAL COURT ERRED IN DENYING RELIEF ON THE BASIS
OF PROSECUTORIAL MISCONDUCT.”
{¶22} “VI. THE TRIAL COURT ERRED IN DENYING RELIEF ON THE BASIS
OF JUROR MISCONDUCT.”
{¶23} “VII. THE TRIAL COURT ERRED IN DENYING RELIEF, OR EVEN
REVIEWING THE MERITS OF, CASSANO’S CHALLENGE TO THE ONGOING
EIGHTH AMENDMENT VIABILITY OF OHIO’S DEATH PENALTY SCHEME.”
{¶24} “VIII. THE TRIAL COURT ERRED IN DENYING RELIEF ON THE
DENIAL OF CASSANO’S RIGHT OF SELF-REPRESENATION.”
POSTCONVICTION RELIEF STANDARD OF REVIEW
{¶25} A postconviction petition is a special statutory proceeding governed by
R.C. 2953.21. This statute provides in section (A)(1) that “[a]ny 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 may file a petition * * *.” See, also, State v. Perry (1967), 10 Ohio St.2d 175,
226 N.E.2d 104, paragraph four of the syllabus. {¶26} Pursuant to R.C. 2953.21(C), before granting a hearing, the trial court
shall determine whether there are substantive grounds for relief. The petitioner bears
the burden of specifically demonstrating prejudice before a hearing is warranted. E.g.
State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819.
{¶27} R.C. 2953.21(C) expressly provides that the initial determination of
whether a postconviction petition states substantive grounds for relief is to be made
based upon the petition and any supporting affidavits, together with the case files and
records. Therefore, a petitioner for postconviction relief is not entitled to discovery
during the initial stages of postconviction proceedings. E.g., State v. Gillard, 5th Dist.
Nos. 1997CA00318, 1997CA00410, 1998 WL 351442 (June 22, 1998).
{¶28} The Ohio Supreme Court explained in State v. Perry, 10 Ohio St.2d 175,
226 N.E.2d 104 (1967), that constitutional issues cannot be considered in
postconviction proceedings where they have already been or could have been fully
litigated by the prisoner while represented before his or her judgment of conviction or
on direct appeal from that judgment. Id. at paragraph seven of the syllabus. Therefore,
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 that 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 that judgment. Id.
at paragraph nine of the syllabus.
{¶29} Thus, a trial court may apply res judicata if the petition for postconviction
relief does not include any materials outside of the original record to support the claim for relief. Id.; State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982). In order to
overcome the res judicata bar, the evidence must show that the petitioner could not
have appealed the constitutional claim based on the information in the original trial
record. Id. at syllabus.
{¶30} It is pursuant to this standard that we review appellant’s assignments of
error.
I.
{¶31} Appellant argues that the postconviction procedure set forth in R.C.
2953.21 is a “meaningless ritual” and therefore unconstitutional. He argues that he
was improperly denied discovery and the appointment of experts to help him
investigate his claims. He also argues that several of his claims were supported by
evidence outside the record and the trial court erred in dismissing these claims as res
judicata.
{¶32} Several appellate courts have rejected the argument that the procedure
set forth for postconviction relief is constitutionally infirm simply because the statute
places a heavy burden on the defendant to show entitlement to relief and petitions are
often dismissed on the grounds of res judicata. See State v. LaMar, 4th Dist. No. 98
CA 23, 2000 WL 297413 (March 17, 2000); State v. Murphy, 10th Dist. No. 00AP-233,
2000 WL 1877526 (December 26, 2000). Further, there is no constitutional right to
postconviction state collateral review, even in death penalty cases. State v. Steffen,
70 Ohio St. 3d 399, 410, 639 N.E.2d 67, 76 (1994), citing Murray v. Giarratano, 492
U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551,
107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Based on this authority, we reject appellant’s claim that the postconviction procedure set forth in R.C. 2953.21 is constitutionally
infirm.
{¶33} We next turn to appellant’s claim that he was improperly denied the right
to discovery and the appointment of investigators and other experts to aid in preparing
his petition. This Court has previously held:
{¶34} “A petition for post-conviction relief is a civil proceeding. State v.
Milanovich (1975), 42 Ohio St.2d 46, 325 N.E.2d 540. As the Supreme Court of Ohio
stated in State ex rel. Love v. Cuyahoga County Prosecutor's Office, 87 Ohio St.3d
158, 159, 718 N.E.2d 426, 1999–Ohio314, ‘there is no requirement of civil discovery in
postconviction proceedings.’ This court has issued numerous opinions consistent with
this holding. State v. Sherman (October 30, 2000), Licking App. No. 00CA39; State v.
Elmore, Licking App. No.2005–CA–32, 2005–Ohio–5940; State v. Muff, Perry App.
No. 06–CA–13, 2006–Ohio–6215; State v. Lang, Stark App. No.2009 CA 00187,
2010–Ohio–3975 (‘the procedure to be followed in ruling on such a petition is
established by R.C. 2953.21, and the power to conduct and compel discovery under
the Civil Rules is not included within the trial court's statutorily defined authority’ and
‘R.C. 2953.21 itself does not specifically provide for a right to funding or the
appointment of an expert witness in post-conviction petition proceedings’).” State v.
Mammone, 5th Dist. No. 2012CA00012, 2012-Ohio-3546, ¶50.1
{¶35} We therefore reject appellant’s claim that he was entitled to discovery
and the appointment of experts to prepare his petition.
1 Mammone, like the instant case, was an appeal from a postconviction proceeding in a case in which the death penalty had been imposed. {¶36} We will address appellant’s argument that the trial court erred in
dismissing several of his claims without a hearing because they were supported by
evidence outside the record when we reach these specific issues in subsequent
assignments of error.
{¶37} The first assignment of error is overruled.
II.
{¶38} In his second assignment of error, appellant argues that the court erred
in failing to determine whether he was competent to proceed in postconviction review.
{¶39} In State v. Berry, 80 Ohio St. 3d 371, 696 N.E.2d 1097(1997), the Ohio
Supreme Court held that a competency determination must be made before a capital
defendant may waive his rights to seek postconviction review of his conviction and
sentence. However, Ohio Courts of Appeals have held that Berry does not require a
determination as to whether a capital defendant who chooses to seek postconviction
review is competent to proceed. For example, the Seventh District held in State v.
Eley, 7th Dist. No. 99 CA 109, 2001-Ohio-3447:
{¶40} “In a post-conviction relief proceeding, the petitioner's life is at stake.
Thus, it is tempting for this court to grant Eley the requested competency hearing
considering the nature of this case. However, we must exercise judicial restraint and
acknowledge that a petitioner receives no more rights than those granted by the
statute. State v. Calhoun, (1999), 86 Ohio St.3d 279.
{¶41} “Consequently, we cannot find that a post-conviction proceeding should
be treated as a quasi-criminal proceeding where the petitioner must be competent to
participate. Inasmuch as the post-conviction statute does not provide for a competency hearing at this stage, and guided by Berry, we conclude the trial court did
not abuse its discretion by refusing a competency hearing. We specifically hold a
capital defendant is neither statutorily nor constitutionally entitled to a competency
hearing as a part of his or her post-conviction proceedings.” Id. Accord, State v.
Moreland, 2nd Dist. No. 20331, 2004-Ohio-5778.
{¶42} We agree with the conclusion reached by the Seventh and Second
Districts. Appellant has no constitutional right to postconviction proceedings and
therefore receives no more rights than those granted by statute. Because the
postconviction statute does not provide for a competency hearing at this stage, we
conclude the court did not err in refusing appellant a competency evaluation and
hearing.
{¶43} The second assignment of error is overruled.
III.
{¶44} In his third assignment of error, appellant argues that the court erred in
dismissing his petition for postconviction relief on the grounds that the judge was not
biased and impartial.
{¶45} Bias on the part of a judge will not be presumed. In re Disqualification of
Olivito, 74 Ohio St.3d 1261,1263, 657 N.E.2d 1361. In fact, the law presumes that a
judge is unbiased and unprejudiced in the matters over which he presides. Id. The
appearance of bias or prejudice must be compelling to overcome these presumptions.
Id.
{¶46} Judge James Henson, the judge who presided over appellant’s trial and
sentenced appellant to death on the jury’s recommendation, is on the Citizen’s Advisory Counsel at MANCI. Appellant argues that comments made by the judge
during the trial concerning his contact with MANCI coupled with minutes of the
Advisory Counsel’s meetings demonstrate that the judge had ex parte contact which
gave him an appearance of being biased and might have exposed him to information
about the case which appellant did not have the opportunity to contest or rebut.
{¶47} The minutes of the committee meetings reflect comments by Judge
Henson about the trial on two separate occasions. In one meeting, which occurred
during the trial while the State was presenting its case in chief, Judge Henson thanked
the staff of MANCI for their assistance with the trial, and commended staff that had to
testify and be present in the courtroom for a job well done. He expressed gratification
for how smoothly the trial was conducted. In a second meeting, Judge Henson
mentioned that the trial would continue another week or so, that appellant cried during
the film showing the murder scene, and there was good security surrounding the trial.
{¶48} During trial, the judge commented to counsel when discussing security
issues, specifically the shackling of appellant during trial, that he had talked to a
former employee at MANCI who told the judge there was a rumor that the Aryan
Brotherhood intended to show up at the trial in support of appellant. Tr. 26. When
the prosecutor indicated at a conference with the court and defense counsel that the
warden at MANCI could not produce a roster of inmates until a later date, the court
indicated that he would call to see if the roster could be produced earlier, and further
indicated to defense counsel that he would check to see if counsel could get more
time at the prison to confer with appellant. Tr. 468. During a discussion with counsel
about locking down MANCI for the jury view, the court commented that he goes out there all the time and they don’t lock it down for him. Tr. 757. The judge later
commented, again to counsel, that he knows how many inmates are at MANCI
because he goes out there all the time. Tr. 1038. Prior to the sentencing phase,
defense counsel asked if they could get someone from MANCI to talk about
classification and sentencing and the court indicated to counsel that he would call and
check on this for defense counsel. Tr. 2803.
{¶49} While perhaps the court showed poor judgment in commenting on the
conduct of the trial at committee meetings while the trial was still going on, nothing in
the comments made at the meetings or in the comments made from the bench
concerning the judge’s contact with MANCI demonstrates that the judge was biased or
partial. There is no evidence that the judge had any ex parte information directly
bearing on the issue of guilt or sentencing. From the evidence submitted of minutes of
the committee meetings and from the citations to the transcript, the judge’s contact
with MANCI related to security issues surrounding the trial and to aiding counsel for
both parties in dealing with the prison.
{¶50} Appellant points to nothing in the record that demonstrates bias on the
part of the trial judge or possession of ex parte information related to issues of guilt
and sentence which affected his right to a fair trial. Appellant generally argues that
the judge ultimately imposed the death sentence on him and was perhaps influenced
in doing so by his relationship with MANCI. However, the jury initially recommended
the death sentence and the Ohio Supreme Court conducted an independent review of
the sentence and found the sentence to be appropriate. The Supreme Court noted
that appellant’s history and background provided little mitigation, and appellant made a choice early in life to live outside the law. Cassano, 96 Ohio St. 3d 94 at ¶127. The
court found that appellant made “deliberate choices in his life and must bear the
consequences of those choices,” and appellant “by his acts has demonstrated that he
is a menace to the life, health, and safety of others, even when he is in prison.” Id. at
¶128-129.
{¶51} The trial court did not err in finding that appellant had not demonstrated
bias or prejudice against appellant or favoritism toward appellee. The third
assignment of error is overruled.
IV.
{¶52} In his fourth assignment of error, appellant argues that the court erred in
dismissing his petition on the basis of ineffective assistance of counsel. Specifically,
he argues that counsel was ineffective for failing to seek disqualification of Judge
Henson, failing to object to incidents of prosecutorial misconduct and jury misconduct,
and failing to present more extensive evidence of appellant’s mental illness in
mitigation.
{¶53} A properly licensed attorney is presumed competent. State v. Hamblin,
37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell
below an objective standard of reasonable representation and but for counsel’s error,
the result of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d
136, 538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. Where a defendant,
represented by new counsel upon direct appeal, fails to raise therein the issue of
competent trial counsel and said issue could fairly have been determined without
resort to evidence outside the record, res judicata is a proper basis for dismissing
defendant's petition for postconviction relief. State v. Cole, 2 Ohio St. 3d 112, 443
N.E.2d 169, at syllabus (1982).
{¶54} Appellant first claims that counsel was ineffective for failing to seek
disqualification of Judge Henson based on his contact with MANCI. For the reasons
stated in the third assignment of error, appellant has not demonstrated that the result
of the proceeding would have been different had counsel successfully sought
disqualification of Judge Henson. Nothing in the record supports appellant’s claim that
the judge was biased against him or had outside information on which he based his
decision in accepting the jury’s recommendation of death, and the sentence was
independently reviewed by the Ohio Supreme Court and found to be appropriate.
{¶55} Appellant next claims that counsel was ineffective for failing to object to
prosecutorial misconduct and juror misconduct, which are assigned as error in
appellant’s fifth and sixth assignments of error. Appellant has not supported this
claim with any evidence outside the record; therefore, these issues could have been
raised as ineffective assistance of counsel on direct appeal and are now res judicata.
{¶56} Finally, appellant argues that counsel should have submitted evidence of
his extensive mental illness in mitigation. Appellant attached documents concerning
his mental illness treatment history in prison to his petition, as well as printouts from
the Ohio Supreme Court web site showing that one of his trial attorneys was suspended after the trial and one was placed on medical leave and later suspended
for failure to register.
{¶57} Appellant has presented no evidence that his trial attorneys’ later
disciplinary proceedings had any effect on his representation at trial.
{¶58} “A postconviction petition does not show ineffective assistance because
it presents a new expert opinion that is different from the theory used at trial.” State v.
Combs (1994), 100 Ohio App.3d 90, 103, 652 N.E.2d 205, citing State v. Jamison
(Sept. 19, 1990), Hamilton App. No. C-910736, unreported. Further, mitigation
theories that are merely cumulative of the evidence presented at trial will not support a
claim of ineffective assistance of counsel. Id.
{¶59} The medical records attached to appellant’s petition concerning mental
illness were almost all prepared after appellant was convicted and placed on death
row, and thus counsel was not ineffective for failing to present this evidence which did
not exist at the time of trial. Defense counsel did present evidence in mitigation that
appellant was troubled when he was sentenced to a youth detention facility and came
out even more anti-social, evidence that appellant’s nine suicide attempts and hunger
strikes while incarcerated were a plea for help, and evidence that the state’s mistakes
in their treatment of appellant throughout his incarceration led to his murder of Hardy.
Evidence that appellant was treated for mental illness would have been mostly
cumulative of this evidence.
{¶60} Further, as noted by the trial court, the strategy during sentencing was
that society would be sufficiently protected by keeping appellant in prison, and more
evidence of the likelihood that appellant would exhibit dangerous and unpredictable behavior was not helpful to that strategy. A petition does not show ineffective
assistance simply because it sets forth a different strategy from that used at trial.
Combs, supra.
{¶61} The fourth assignment of error is overruled.
V.
{¶62} In his fifth assignment of error, appellant argues that the trial court erred
in denying relief on the basis of prosecutorial misconduct.
{¶63} Appellant first argues that the prosecutor used peremptory challenges to
exclude women from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69. Appellant cites to no evidence outside the record in
support of his claim. Therefore, this issue could have been raised on direct appeal
and is now res judicata.
{¶64} Appellant next argues that the record reflects that the State made inmate
James Pharner a state agent and inserted him near appellant to obtain statements,
citing to the transcript where Pharner states that when he gave police information from
appellant, he asked to be transferred to Lorain to be closer to his family. Appellant
argues that the full scope of the agreement with Pharner and any information related
to the state’s agreement with him should have been disclosed in discovery. However,
appellant has presented no evidence that any agreement existed with the State
outside of what Pharner testified to at trial.
{¶65} Appellant refers to five pieces of information the prosecutor used during
the trial which were not disclosed in discovery: appellant’s prison file used to justify
keeping him shackled (Tr. 52, 86); the journal of a prison nurse containing a statement by appellant (Tr. 59, 1468); a tape of a hearing shortly after the incident in which
appellant made incriminating statements (Tr. 83-84); notes from the above-mentioned
hearing (Tr. 117), and tapes of phone calls made by Hardy (Tr. 215). Again, appellant
has cited to no evidence outside the record to establish this claim, and appellant’s
claim that this evidence was withheld from him in discovery could have been raised on
direct appeal.
{¶66} Finally, appellant argues the prosecutor had ex parte communication
with the jurors. Prosecutor Ava Rotell stated during the trial, “Also, Judge, the one
juror, I can’t remember his name, the first juror on the right, he asked can we ask
questions. I said you better ask the Judge.” Tr. 2092. First, this comment does not
reflect that the prosecutor had any inappropriate ex parte communication with the
jurors. One of the jurors asked her a question and she referred the juror to the judge.
Any error related to this claim could have been raised on direct appeal, as appellant
has provided no evidence outside the record.
{¶67} The fifth assignment of error is overruled.
VI.
{¶68} Appellant argues that the court erred in denying his request for relief on
the basis of juror misconduct.
{¶69} Appellant first argues that a juror committed misconduct in speaking to
the prosecutor, as outlined in the fifth assignment of error. As noted above, this claim
could have been raised on direct appeal and is res judicata.
{¶70} Appellant also argues that it was discovered that two of the alternate
jurors were sitting with the family when the verdict was read. {¶71} At the time it came to the court’s attention that alternate jurors were seen
interacting with the family, the court asked his bailiff Smokey to reiterate to the jury
that if they want to be in the courtroom they have every right to be there, but they will
not be allowed to have contact with the family of the victim or anyone else related to
the case. Tr. 2813. Appellant has presented no evidence outside the record in
connection with this claimed error. Any error in the court’s handling of the alternate
jurors could have been raised on direct appeal.
{¶72} The sixth assignment of error is overruled.
VII.
{¶73} In his seventh assignment of error, appellant argues that the court erred
in failing to review his Eighth Amendment challenge to Ohio’s death penalty scheme
on the merits.
{¶74} Appellant’s claim that the death penalty scheme currently in place in
Ohio is unconstitutional could have been raised on direct appeal. Appellant attached
an article to his petition in which Justice Paul Pfeifer of the Ohio Supreme Court
suggested that the death penalty needs to be abolished in Ohio.2 This article has no
bearing on the issue of whether appellant could have raised his constitutional claims
on direct appeal. Appellant’s argument that the death penalty violates the Eighth
Amendment is res judicata.
{¶75} The seventh assignment of error is overruled.
VIII.
{¶76} In his final assignment of error, appellant argues that the court erred in
dismissing his claim that he was denied his right to self-representation. Appellant 2 Justice Pfeifer authored the Supreme Court’s opinion affirming appellant’s conviction and sentence. admits that this issue was raised and rejected by the Ohio Supreme Court. However,
appellant argues that the Supreme Court found that he raised the issue of self-
representation in the trial court for purposes of delay, and he has presented evidence
to rebut this conclusion.
{¶77} Appellant attached an affidavit of Stacey Lane to his petition. In this
affidavit, Lane states that he received a letter from appellant in 1997 or 1998
describing the killing of his cellmate at MANCI and asking for advice. Lane had
represented himself after he was indicted for murdering his cellmate in Lebanon
Correctional Institution. Lane asserted a defense of self-defense and was acquitted.
He stated that he provided appellant with information as to how to defend himself.
{¶78} The Ohio Supreme Court found that appellant did not unequivocally and
explicitly invoke his right to self-representation, even on April 23, 1999, three days
before trial. Cassano, supra, at ¶38-39. Prior to that time appellant filed a pro se
motion in September of 1998 focusing solely on hybrid representation. Further,
appellant was represented by the same counsel for over ten months and never
requested that counsel be discharged and he be permitted to proceed pro se until
three days before trial. Id. at ¶41. The affidavit submitted by Stacey Lane only
demonstrates that appellant had received information about representing himself in
1997 or 1998. The time for appellant to demonstrate that he was serious about
representing himself was prior to trial, and the issue was fully litigated in the trial court
and in the Ohio Supreme Court. The trial court did not err in denying this claim for
relief.
{¶79} The eighth assignment of error is overruled. {¶80} The judgment of the Richland County Common Pleas Court is affirmed.
Costs to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
rad/CRB IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: STATE OF OHIO : : Plaintiff - Appellee : JUDGMENT ENTRY : : -vs- : : Case No. 12CA55 AUGUST CASSANO : : Defendant - Appellant : :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.