State v. Pugh

2014 Ohio 1533

• Court: Ohio Court of Appeals
• Decided: April 11, 2014
• Docket: 25819
• Status: Published

Opinion

[Cite as State v. Pugh, 2014-Ohio-1533.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25819

v. : T.C. NO. 11CR4050

JOHN W. PUGH : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 11th day of April , 2014.

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOHN W. PUGH, #659-806, Lebanon Correctional Institute, P. O. Box 56, Lebanon, Ohio 45036 Defendant-Appellant

DONOVAN, J.

{¶ 1} Defendant-appellant John W. Pugh appeals, pro se, a decision of the 2

Montgomery County Court of Common Pleas overruling his petition for post-conviction

relief. Pugh filed his motion for post-conviction relief on January 29, 2013. In a decision

and entry issued on May 24, 2013, the trial court overruled Pugh’s petition. Pugh filed a

timely notice of appeal on July 15, 2013.1

{¶ 2} Initially we note that the instant case has already been the subject of an

appeal before this Court in State v. Pugh, 2d Dist Montgomery No. 25223, 2013-Ohio-1238

(hereinafter “Pugh I”). Thus, we set forth the history of the case in Pugh I, and repeat it

herein in pertinent part:

The present appeal stems from the armed robbery of a drive-thru. The

business was robbed at gunpoint three times in the fall of 2011. During the

first robbery, three masked men took cash, cigars, and cigarettes. They also

took a cigar box full of change. A surveillance video showed one of the

masked men wearing a black jacket with distinctive white stitching. During

the second robbery, three masked men stole cash from the business. One of

the robbers again wore a black jacket with distinctive white stitching. The

third robbery involved only two gunmen. On that occasion, the robbery in

progress caught the attention of police officer Shawn Humphrey, who was

driving past. Upon seeing Humphrey, the robbers fled on foot without taking

anything.

1 Pugh did not file his notice of appeal within thirty days of the issuance of the trial court’s decision overruling his petition for post-conviction relief. However, in a decision and entry issued on August 16, 2013, we found Pugh’s notice of appeal to be timely filed because the trial court did not comply with Civ. R. 58(B) when it issued the decision from which the instant appeal is taken. [Cite as State v. Pugh, 2014-Ohio-1533.] Humphrey pursued the two men assisted by officer Phillip Adams.

After establishing a perimeter, Adams saw Pugh wearing a black jacket and

running away from the direction of the robbery. Adams watched as Pugh ran

inside a house at 1313 Kingsley Avenue. Police surrounded the house and

ordered the occupants out. Tiffany Selmon, a resident of the house, came

outside with her teenaged son. Selmon told police the only other person

inside was her eight-year-old son, who was sleeping. But police could see

Pugh, an adult male, looking out an upstairs window. Several minutes later,

he came outside as well.

Police then obtained Selmon’s written consent to search the house.

Once inside, they found a black jacket with distinctive white stitching that

matched the jacket shown on the surveillance video. They also found a black

bag containing a mask, gloves, and a money band with handwriting on it. The

drive-thru owner identified the money band as having been taken during the

second robbery. The black bag matched a bag carried by one of the gunmen

during the second robbery. Police also found a baseball cap that matched a

cap worn by one of the robbers during the second robbery. Police additionally

recovered bullets and a bullet-proof vest. Two days later, detective Debra

Ritchie returned to the house. She obtained Selmon’s consent to search the

house for the cigar box that was stolen during the first robbery. Police found

the box on the floor upstairs. The drive-thru owner identified the box based

on markings he had made inside the lid.

After being indicted for his role in the robberies, Pugh moved to 4

suppress the evidence obtained during the two searches. Pugh argued that

Selmon’s consent to search was involuntary. The trial court overruled the

motion after an evidentiary hearing. A jury subsequently found Pugh guilty

on three counts of aggravated robbery with firearm specifications. The trial

court imposed an aggregate eighteen-year prison term. ***

Id. at ¶¶ 3-6.

{¶ 3} Pugh advanced two assignments of error on direct appeal. First, he

contended that the trial court erred in denying his motion to suppress evidence which was

seized during a warrantless search of a house he shared with his girlfriend. Second, he

claimed his convictions were against the manifest weight of the evidence. We overruled

both of Pugh’s assignments of error and affirmed his conviction and sentence. On

November 4, 2013, we granted in part Pugh’s application to reopen his appeal in order to

allow him to pursue a possible claim that the trial court imposed consecutive sentences

without first making the requisite judicial findings pursuant to R.C. 2929.14(C)(4).

{¶ 4} On January 29, 2013, Pugh filed a petition to vacate or set aside his

judgment of conviction and sentence. Specifically, Pugh argued that his trial counsel was

ineffective for failing to present a better defense and for failing to call an expert witness to

testify regarding the unreliability of eyewitness identifications. Pugh further argued that the

trial court erred when it overruled his motion to suppress. Pugh asserted that the trial court

erred by not merging his convictions as allied offenses of similar import. Pugh, however,

failed to attach any evidence, affidavits, or supporting materials to substantiate his claims.

{¶ 5} The trial court overruled Pugh’s petition without a hearing in a decision 5

issued May 24, 2013. The trial court found that each of the arguments raised by Pugh in his

petition were issues that could or should have been raised on direct appeal and not in a

petition for post-conviction relief.

{¶ 6} It is from this judgment that Pugh now appeals.2

{¶ 7} Because they are interrelated, Pugh’s first and third assignments will be

discussed together as follows:

{¶ 8} “THE TRIAL COURT ERRED IN DEFENDANT-APPELLANT FIRST

ASSIGNMENT OF ERROR WHEN IT FAIL TO GIVE FINDINGS OF FACTS AND

CONCLUSION OF LAW.”

{¶ 9} “THE TRIAL COURT ERRED IN DEFENDANT-APPELLANT’S THIRD

ASSIGNMENT OF ERROR WHEN THE TRIAL COURT FAIL TO MAKE FINDING OF

FACTS AND CONCLUSION OF LAW ON DEFENDANT-APPELLANT’S

INEFFECTIVE ASSISTANCE CLAIMS.”

{¶ 10} In his first and third assignments, Pugh contends that the trial court erred

when it failed to issue any findings of fact and/or conclusions of law when it overruled his

{¶ 11} Post-conviction relief is governed by R.C. 2953.21. The statute provides,

in pertinent part, that:

Any person who has been convicted of a criminal offense * * * and

2 We note that Pugh filed his appellate brief on October 23, 2013. Additionally, Pugh filed a “supplemental amended brief” that was time stamped October 22, 2013. It is unclear from the record why Pugh’s supplemental brief was filed a day before his actual merit brief was filed. 6

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. R.C.

2953.21(A)(1)(a).

{¶ 12} “A post[-]conviction proceeding is not an appeal of a criminal conviction,

but, rather, a collateral civil attack on the judgment.” State v. Steffen, 70 Ohio St.3d 399,

410, 639 N.E.2d 67 (1994). See, also, State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶48. To prevail on a petition for post-conviction relief,

the defendant must establish a violation of his constitutional rights which renders the

judgment of conviction void or voidable. R.C. 2953.21.

{¶ 13} The post-conviction relief statutes do “not expressly mandate a hearing for

every post-conviction relief petition and, therefore, a hearing is not automatically required.”

State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). Rather, in addressing a

petition for post-conviction relief, a trial court plays a gatekeeping role as to whether a

defendant will receive a hearing. Gondor at ¶51. A trial court may dismiss a petition for

post-conviction relief without a 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.” State v. Calhoun, 86 7

Ohio St.3d 279, 714 N.E. 2d 905 (1999), paragraph two of the syllabus; Gondor at ¶51.

{¶ 14} We review the trial court’s denial of Pugh’s petition for an abuse of

discretion. Gondor at ¶52. As the Supreme Court of Ohio determined:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were

it deciding the issue de novo, would not have found that reasoning process to

be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result. AAAA Enterprises, Inc. v. River Place

Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 15} When a trial court dismisses a petition for post-conviction relief on its

merits, the court is required to state findings of fact and conclusions of law that support its

judgment. State v. Lester , 41 Ohio St.2d 51, 322 N.E.2d 656 (1975); State v. Mapson, 1

Ohio St.3d 217, 438 N.E.2d 910 (1982); State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d

905 (1999); R.C. 2953.21(C). Two main policy considerations underlie the requirement:

(1) to make the petitioner aware of the grounds for the trial court’s judgment, and (2) to

provide a sufficient record to enable meaningful appellate review of the trial court’s

decision. Mapson, supra. If the trial court dismisses a petition for post-conviction relief 8

without conducting an evidentiary hearing and without making the required findings of fact

and law, the trial court’s decision does not constitute a valid judgment and final order from

which an appeal can be taken. State ex rel. Ferrell v. Clark, 13 Ohio St.3d 3, 469 N.E.2d

843 (1984).

{¶ 16} In its May 24, 2013, judgment dismissing Pugh’s petition for

post-conviction relief, the trial court did not specifically identify with labels or headings its

“findings of fact and conclusions of law.” However, the trial court made findings. The

court’s explanation of its rationale for denying Pugh’s post-conviction relief is not a bare

one as suggested by Pugh. To the contrary, the trial court’s rationale for its decision is

clearly set forth in its judgment entry in sufficient detail to satisfy Mapson’s policy

considerations and enable meaningful appellate review of that decision. In its decision, the

trial court concluded that all of Pugh’s “complaints are matters for appeal.” The trial court

also noted that Pugh’s case had been previously appealed to this Court and that we had

“affirmed [the trial court’s] original findings of fact and law.” See Pugh I. While not stated

as such, the trial court essentially found that Pugh’s claims in his petition for post-conviction

relief were barred by the doctrine of res judicata, in that they could have been raised or were

raised on direct appeal. Accordingly, the trial court’s May 24, 2013, judgment satisfies the

requirement in R.C. 2953.21 for findings of fact and conclusions of law. State ex rel Carrion

v. Harris, 40 Ohio St.3d 19, 530 N.E.2d 1330 (1988).

{¶ 17} Pugh’s first and third assignments of error are overruled.

{¶ 18} Because they are interrelated, all of Pugh’s remaining assignments of error

will be discussed together as follows: [Cite as State v. Pugh, 2014-Ohio-1533.] {¶ 19} “THE TRIAL COURT ERRED IN DEFENDANT-APPELLANT SECOND

ASSIGNMENT OF ERROR WHEN TRIAL COURT FAIL TO PRESENT AN EXPERT

WITNESS TO TESTIFY AS TO THE UNRELIABLE NATURE OF EYEWITNESSES

IDENTIFICATION OR ANY OTHER WITNESSES SO-CALLED IT IDENTIFICATIONS

WHICH WAS UNDULY SUGGESTIVE.”

{¶ 20} “ALSO SET FORTH, THAT DEFENDANT-APPELLANT SHOULD BE

GRANTED A NEW TRIAL BECAUSE THE TRIAL TESTIMONY OF THE STATE

WITNESSES BASED ENTIRELY ON ITS HOLDING THAT THE IDENTIFICATION

TESTIMONY OFFERED BY BRIAN JONES AND SO-CALLED OTHERS STATE

WITNESSES VIOLATES DEFENDANT-APPELLANT DUE PROCESS RIGHTS

BECAUSE THE TESTIMONY WAS BASED ON AN IMPERMISSIBLY SUGGESTIVE

IDENTIFICATION PROCESS. SUPREME COURT OF OHIO 110 OHIO ST. 1230; 2006

OHIO 3667; 850 N.E.2D 1208; 2006 OHIO LEXIS 2173.”

{¶ 21} “ALSO THE ADMISSION OF IMPERMISSIBLY SUGGESTIVE

IDENTIFICATION EVIDENCE OBTAINED BY UNNECESSARY MEASURES

VIOLATES A DEFENDANT-APPELLANT’S CONSTITUTIONAL DUE PROCESS

RIGHTS IN CASES WHERE THE TOTALITY OF THE CIRCUMSTANCES DOES NOT

SUPPORT RELIABILITY OF THE VERDICT. ALSO DOES NOT SUPPORT THE

RELIABILITY OF THE IDENTIFICATION. SEE MANSON V. BRATH WAITE (1977).

432 U.S. 98 S.CT. 2243, 53 L.ED.2D 140. ALSO SEE 257 F.3D 122, 2001 U.S. APP.

LEXIS 156.30.”

{¶ 22} “IN THIS CASE DEFENSE COUNSEL MADE ERRORS THAT WAS

UNPROFESSIONALLY, UNREASONABLE UNDER ALL THE CIRCUMSTANCES, 10

DEFENDANT-APPELLANT HAS ESTABLISH PREJUDICE BUT FOR THE

UNREASONABLE ERRORS THERE IS A REASONABLE PROBABILITY THAT THE

RESULTS OF THE PROCEEDING WOULD HAVE BEEN DIFFERENT.”

{¶ 23} “DEFENDANT-APPELLANT MAINTAIN THAT HIS ROBBERY

CONVICTION OF MULTIPLE PUNISHMENTS ARE ALLIED OFFENSES OF SIMILAR

IMPORT AN PERMITS DEFENDANT-APPELLANT TO BE CHARGES WITH, AND

TRIED FOR, MULTIPLE OFFENSES BASED ON THE SAME CONDUCT BUT

PERMITS ONLY ONE CONVICTION BASED ON CONDUCT THAT RESULTS IN

SIMILAR CRIMINAL WRONG THAT HAVE SIMILAR CONSEQUENCES.”

{¶ 24} In State v. Goldwire, 2d Dist. Montgomery No. 20838, 2005-Ohio-5784, we

held the following:

“‘The most significant restriction on Ohio’s statutory procedure for

post-conviction relief is that the doctrine of res judicata requires that the

claim presented in support of the petition represent error supported by

evidence outside the record generated by the direct criminal proceedings.’

State v. Monroe, Franklin App. No. 04AP-658, 2005-Ohio-5242. ‘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.’ State v.

Perry (1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104. ‘Our statutes do not 11

contemplate relitigation of those claims in post conviction proceedings where

there are no allegations to show that they could not have been fully

adjudicated by the judgment of conviction and an appeal therefrom.’ Id. ‘To

overcome the res judicata bar, the petitioner must produce new evidence that

renders the judgment void or voidable, and show that he could not have

appealed the claim based upon information contained in the original record.’

State v. Aldridge (1997), [120] Ohio App.3d 122, 151, 697 N.E.2d 228.

‘Res judicata also implicitly bars a petitioner from “repackaging” evidence or

issues which either were, or could have been, raised in the context of the

petitioner’s trial or direct appeal.’” Id., at ¶ 11.

{¶ 25} Initially, we note that Pugh failed to provide a transcript of the proceedings

below, pursuant to App. R. 9(B); a statement of the evidence under App. R. 9(C); or an

agreed statement of the case under App. R. 9(D). It is the duty of the appellant to order

from the court reporter a transcript of the proceedings or part thereof that the appellant

considers necessary for inclusion in the record, and to file a copy of the order with the clerk.

App.R. 9(B). Here, Pugh failed to comply with that duty. Moreover, Pugh failed to attach

any evidence, affidavits, or supporting materials to substantiate his claims, and the issues

that he raises are all barred by res judicata.

{¶ 26} Because Pugh’s sentence, assuming his allied offense argument had merit,

would be voidable, he is barred by the doctrine of res judicata from challenging his sentence

on those grounds collaterally through his petition for post-conviction relief. Smith v.

Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10-11 (“allied-offense 12

claims are non-jurisdictional,” and, thus, barred by the doctrine of res judicata where they

were raised, or could have been raised, on direct appeal). We also note that we already

considered the issue of merger of Pugh’s three aggravated robbery convictions when he

advanced the same argument in his application to reopen his direct appeal. In an entry

issued on November 14, 2013, we found that Pugh’s merger argument had no merit and

overruled that portion of his application to reopen.

{¶ 27} Pugh’s arguments regarding the pre-trial identification procedures utilized

by the police are likewise barred by res judicata because they could have been raised in a

motion to suppress or on direct appeal. Pugh’s arguments rely on facts and evidence known

to him at the time of trial. Thus, res judicata bars them from being considered in a petition

for post-conviction relief. State v. Goldwire, 2005-Ohio-5784, ¶ 11.

{¶ 28} Pugh’s remaining claims in his supplemental brief regarding unsupported

allegations of prosecutorial misconduct, challenges to the strength of the evidence used to

convict him, and his ineffective assistance of counsel claims are only conclusory in nature,

and they are, therefore, barred by the doctrine of res judicata.

{¶ 29} Pugh’s remaining assignments of error are overruled.

{¶ 30} All of Pugh’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

FAIN, J. and HALL, J., concur.

Copies mailed to:

Andrew T. French John W. Pugh 13

Hon. Gregory F. Singer