State v. Palmer

2022 Ohio 2339

Opinion

[Cite as State v. Palmer, 2022-Ohio-2339.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

JEFFREY PALMER,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 21 MA 0052

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2018 CR 660

BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT: Affirmed.

Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant Chief Prosecuting Attorney, Criminal Division, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee

Jeffrey Palmer, Pro se, #764663, North Central Correctional Complex, P. O. Box 1812, Marion, Ohio 43302, Defendant-Appellant. –2–

Dated: June 28, 2022

WAITE, J.

{¶1} Appellant, Jeffrey Palmer, appeals the decision of the Mahoning County

Court of Common Pleas to overrule the motion to vacate or set aside his judgment of

conviction or sentence. Based on the following, the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} T.B. lived in Boardman, Ohio along with her three children. In May of 2015,

T.B. met Appellant through an online dating site where he went by the name “Israel.”

Appellant moved into T.B.’s apartment sometime in June or July of 2015 and lived there

until May or June of 2016.

{¶3} T.B.’s child, A.B., was ten years old when Appellant moved into the

apartment. T.B. was employed as a home health aide. Appellant was unemployed. At

trial in this matter, T.B. stated that she worked two hours in the morning from 8:00 to 10:00

a.m. and two hours in the evening, from around 8:00 to 10:00 p.m. She explained that

while she only worked two hours at a time, she was away from home longer than that

because she used public transportation to get to and from work. She worked seven days

a week and was off every other weekend. While T.B. was at work and when she ran

errands, Appellant was home alone with her children. T.B. noticed that A.B.'s behavior

began to change after Appellant moved in. She became quiet and kept to herself. T.B.

questioned A.B. about her change in behavior but A.B. denied that there was a problem.

T.B. testified that her sexual relationship with Appellant was not typical. Eventually, the

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relationship ended and Appellant moved out. Subsequently, Appellant asked T.B. to move

with her children into his house in Cleveland, but she refused.

{¶4} In April of 2018, A.B. told her mother that Appellant had been sexually

abusing her the entire time he lived in their apartment. T.B. took the child to the emergency

room to be examined. A.B. told her mother that Appellant had different types of sex with

her multiple times a day, every day. She said the abuse occurred while T.B. was at work.

At trial, A.B. testified that at night, while getting ready to shower or getting her clothes out

for the next day, Appellant would comment on her clothing and compliment A.B. on her

appearance. A.B. testified that she stopped wearing nightgowns and wore pajamas

because Appellant's comments made her feel uncomfortable. A.B. testified that the abuse

almost always occurred in her mother's room because it was the only room with a lock on

the door, however, Appellant abused her multiple times in other rooms while her mother

and the younger children were sleeping. Appellant offered to buy her toys and snacks as

the abuse continued but threatened A.B. not to tell her mother. A.B. said she never told

anyone about the abuse while Appellant was living in the apartment. She testified that

the abuse lasted for about one year until Appellant moved out. After Appellant moved to

Cleveland, he continued to contact A.B. and talked about having her family move in with

him. She finally told her mother after she had a nightmare about her mother leaving her.

{¶5} In Appellant's direct appeal we summarized the testimony offered at trial as

follows:

The testimony of A.B. and her mother provided additional details of the

sexual acts. A.B. testified that when she was ten years old, appellant came

to live with them, and he watched her and her siblings while her mother

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worked. (Tr. at 175). She testified that the first time that appellant touched

her, she was on the couch in the living room on her tablet when he started

asking her about the birds and the bees. (Tr. at 179). She stated he told

her to get up and go to her mom's room, he shut the door, laid her down on

the bed, and touched her vaginal area. (Tr. at 180).

She testified that appellant's conduct then escalated each time, such as

taking out his penis and rubbing it against her “private part.” (Tr. at 81). She

testified that they went into her mother's room because it was the only door

that locked. While initially she stated that appellant did not put his penis or

his fingers inside her vagina, she testified that it hurt when appellant touched

her “private part.” (Tr. at 183-185). She later testified that it would hurt when

appellant kept forcing his penis inside of her vagina and he did this at least

ten times. (Tr. at 190-193). She also testified that sometimes when he

rubbed his fingers on her “privates,” it would hurt and this happened more

than five times. (Tr. at 193). She stated that appellant put his mouth on her

“private area” more times than she could count, but then narrowed it to more

than 10 times but less than 15 times. (Tr. at 191-192). She also provided

detail about times when the acts would occur, such as once when she came

inside to get a glass of water while her siblings were outside and appellant

called her into her mother's room, pulled her pants down, bent her over the

bed, and put his penis “between her legs.” (Tr. at 185). She further testified

that sexual acts would occur twice a week and sometimes more than once

per day. (Tr. at 191). A.B. also related that appellant would rub Vaseline on

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his penis and told her that if he could continue with her, he would never touch

her mom again. (Tr. at 189).

State v. Palmer, 7th Dist. Mahoning No. 19 MA 0108, 2021-Ohio-4639, ¶ 21-22.

{¶6} Appellant was indicted by direct presentment to the Mahoning County Grand

Jury on twelve counts of rape of a minor under the age of thirteen and one count of gross

sexual imposition of a minor under the age of thirteen. A jury trial began on September 3,

2019. Along with the testimony of A.B. and her mother, the State's witnesses included a

neighbor, Boardman Township police officers, a social worker employed by Akron Children's

Hospital, a nurse practitioner at Akron Children's Hospital in the Child Advocacy Center, and

a second social worker from the Child Advocacy Center who had interviewed A.B. Appellant

was the only witness to testify for the defense.

{¶7} At the conclusion of the trial, the jury returned guilty verdicts on all counts.

Appellant was sentenced to 10 years to life in prison on each of the twelve rape

convictions and 5 years on the gross sexual imposition conviction. The court ran Counts

1, 2 and 3 for rape concurrently with each other; Counts 4, 5 and 6 for rape concurrently

with each other but consecutively to Counts 1, 2, and 3; Counts 7, 8 and 9 for rape

concurrently with each other but consecutively to Counts 1, 2 and 3, and Counts 4, 5, and

6; Counts 10, 11 and 12 for rape concurrently with each other; but consecutively to Counts

1, 2, and 3, 4, 5 and 6, and 7, 8, and 9; and Count 13 for gross sexual imposition

concurrently with all sentences. In total, Appellant was sentenced to 40 years to life in

prison.

{¶8} Appellant appealed his convictions and sentence. Id. He challenged the

sufficiency of the indictment, the jury instructions, sufficiency of the evidence, and raised

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evidentiary errors. Appellant also claimed to have received ineffective assistance of

counsel, and alleged that there was cumulative error in reaching his guilty verdict. On

September 29, 2021, we affirmed the judgment of the trial court. While his direct appeal

was pending, Appellant filed a motion to vacate or set aside the judgment of conviction

or sentence on February 1, 2021. On March 11, 2021, the state filed a motion for

judgment on the pleadings and on April 23, 2021, Appellant filed a reply. On May 4, 2021,

the trial court issued a judgment entry, without a hearing, overruling Appellant's motion

and granting the state’s motion for judgment on the pleadings.

{¶9} In this appeal of the denial of his motion for postconviction relief, Appellant

advances eight assignments of error. Assignments one through seven allege ineffective

assistance of counsel. Assignment of error number eight argues cumulative error.

ASSIGNMENT OF ERROR NO. 1

Appellant was denied due process and the effective assistance of counsel,

a violation of the 5, 6, and 14th Amendment to the U.S. Constitution; Section

16 Article 1 of the Ohio Constitution, when trial counsel misleads Appellant

into unknowingly and involuntarily waived his speedy trial right.

ASSIGNMENT OF ERROR NO. 2

Appellant was denied effective assistance of counsel, a violation of due

process of the 6th and 14th Amendment to the United States const. and

Section 16, Article 1 of the Ohio Const., when trial counsel failed to conduct

a reasonable investigation to determine possible defenses.

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ASSIGNMENT OF ERROR NO. 3

Trial counsel was constitutionally ineffective for failing to present expert

testimony to rebut the prosecution's case and expert testimony, and failing

to provide expert testimony regarding Petitioner's erectile dysfunction and

medication side effects, violating his 6th and 14th Amendments of due

process.

ASSIGNMENT OF ERROR NO. 4

Petitioner was denied due process and the effective assistance of counsel

when his trial attorney failed to raise a timely carbon copy objection on the

12 rape counts pursuant to Crim.R.12(C) in violation of his 6th and 14th

Amendment, Section 16, 10, art 1.

ASSIGNMENT OF ERROR NO. 5

Petitioner was denied effective assistance of counsel, a violation of due

process of the 6th and 14th amendment of the U.S. Constitution and section

10 and 16 of the Ohio Constitution, when counsel failed to use information in

discovery to make a defense and assist him in preparing the case before trial.

ASSIGNMENT OF ERROR NO. 6

Petitioner was denied effective assistance of counsel, a violation of due

process of the 6th and 14th amendments to the U.S. Constitution and Section

16 Art. 1 of the Ohio Constitution, when trial counsel failed to argue and make

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a record that the state had exercised its peremptory strikes in a racially

discriminatory manner.

ASSIGNMENT OF ERROR NO. 7

Appellant was denied due process and the effective assistance of counsel,

a violation of the 6th and 14th Amendment to the U.S. Constitution and

Section 16 Article 1 of the Ohio Constitution, when counsel failed to convey

the state's plea offer to Appellant.

ASSIGNMENT OF ERROR NO. 8

Appellant was denied a fair trial because of cumulative errors.

{¶10} Postconviction relief allows a petitioner to collaterally attack a criminal

conviction by filing a petition to set aside the judgment where the petitioner's constitutional

rights were denied to such an extent the conviction is void or voidable under the Ohio or

United States Constitutions. R.C. 2953.21(A); State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967); paragraph four of the syllabus. A common pleas court may grant

relief from a conviction pursuant to R.C. 2953.21 et seq., the postconviction statutes,

where petitioner proves that he suffered a violation of his constitutional rights during the

proceedings resulting in the conviction. See R.C. 2953.21(A)(1).

{¶11} The petitioner has the initial burden to demonstrate in the petition, supporting

affidavits, and the files and records of the case, that there are “substantive grounds for

relief.” R.C. 2953.21(C). Substantive grounds for relief exist if the petition presents a prima

facie claim there was a constitutional violation. The petition must contain factual allegations

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that cannot be determined by an examination of the trial record. State v. Milanovich, 42

Ohio St.2d 46, 50, 325 N.E.2d 540 (1975).

{¶12} In resolving a postconviction petition, a trial court may exercise one of three

options:

The first is to deny the petition without hearing, in accordance with the law as

set forth in R.C. 2953.21 and the Ohio Supreme Court's decision in State v.

Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The second is to act

on the state's motion for summary judgment by applying the standards set

forth in Civ.R. 56. The third is to schedule an evidentiary hearing on [the

defendant's] petition, at which time the trial court, as the trier of fact, is

authorized to weigh the evidence and enter judgment.

State v. Paige, 7th Dist. Mahoning No. 17 MA 0146, 2018-Ohio-2782, ¶ 16.

{¶13} Appellate courts review a trial court's ruling on a petition for postconviction

relief for abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 58. Abuse of discretion implies that the court's attitude is unreasonable,

arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980); see also Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). Moreover, abuse of discretion describes a judgment that comports with neither

the record nor with reason. See, e.g., State v. Ferranto, 112 Ohio St. 667, 676-678, 148

N.E. 362 (1925).

{¶14} A postconviction petition may also be dismissed without hearing where the

claims are barred by res judicata. State v. West, 7th Dist. Jefferson No. 07 JE 26, 2009-

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Ohio-3347, ¶ 24. Res judicata bars any claim or defense that was raised, or could have

been raised, in an earlier proceeding:

Under the doctrine of res judicata, a final judgment of conviction bars the

convicted defendant 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.

Perry, 10 Ohio St.2d at 180-181.

{¶15} A trial court may dismiss a petition for postconviction based on res judicata

when the defendant, represented by new counsel in the direct appeal, fails to raise the

issue of trial counsel’s competence when the issue could have been determined without

resort to evidence outside of the record. State v. Carosiello, 7th Dist. Columbiana No. 18

CO 0018, 2019-Ohio-2705, ¶ 28. The Twelfth District has stated:

[E]vidence presented outside the record must meet some threshold

standard of cogency; otherwise it would be too easy to defeat the holding

of Perry by simply attaching as exhibits evidence which is only marginally

significant and does not advance the petitioner's claim beyond mere

hypothesis and a desire for further discovery. [State v.] Coleman, [1st Dist.

No.] C-900811, [1993 WL 74756] at 7.

State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362 (12th Dist.1995).

Case No. 21 MA 0052 – 11 –

{¶16} Appellant’s postconviction petition was filed with the trial court while his direct

appeal was pending in this Court. Appellant raises many of the same errors in his petition

that were addressed in his direct appeal. For example, Appellant's fourth assignment of

error regarding trial counsel's alleged failure to object to the multiple rape counts in the

indictment was addressed on direct appeal where we concluded that the indictment was

sufficient to support multiple charges. Palmer, ¶ 31.

{¶17} It is apparent Appellant's claims regarding ineffective assistance set forth in

his fourth assignment of error are barred by res judicata and are overruled.

{¶18} Regarding the remaining assignments of error, Appellant presents no

evidence outside of the record in support of these claims. Instead, Appellant refers to

multiple parts of the trial transcript and other evidence already in the record to support his

arguments. As Appellant relies on no evidence outside of the record and all of the

remaining claims in his petition could and should have been raised and addressed in his

direct appeal, these claims were properly dismissed on the basis of res judicata.

Carosiello, ¶ 28.

{¶19} Appellant’s petition appears to be merely a restatement and embellishment

of the clams he argued on direct appeal. Not only does Appellant fail to provide any

evidence in support of these claims dehors the record, the petition contains allegations that

have no evidentiary or factual support at all. Appellant's claims amount to his speculation

that a constitutional violation may have occurred and a desire for additional discovery, and

are in no way based on any real evidence not contained in his record of trial. Lawson, 315.

{¶20} All of the errors alleged, whether in the multiple claims of ineffective

assistance of counsel or in the cumulative error allegations, are based on information

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already in the existing record in this case. These issues could and should have been

raised by Appellant's new counsel in his direct appeal of this matter. Therefore, all of

Appellant's assignments of error are barred by res judicata and are overruled. Carosiello,

¶ 28. The trial court's denial of Appellant’s postconviction relief petition without a hearing

is hereby affirmed.

Donofrio, P.J., concurs.

Robb, J., concurs.

Case No. 21 MA 0052 [Cite as State v. Palmer, 2022-Ohio-2339.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against

the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

JUDGE CHERYL L. WAITE

JUDGE GENE DONOFRIO

JUDGE CAROL ANN ROBB

NOTICE TO COUNSEL

This document constitutes a final judgment entry.