[Cite as State v. Bennington,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 12CA956 : vs. : : DECISION AND JUDGMENT ROBERT BENNINGTON, : ENTRY : Defendant-Appellant. : Released: 08/27/13 _____________________________________________________________ APPEARANCES:

Robert Bennington, Blue Creek, Ohio, for Pro Se Appellant.

Jessica A. Little, Special Prosecuting Attorney on behalf of Adams County Prosecutor, Georgetown, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.

{¶1} Robert Bennington appeals the denial of his petition for post-

conviction relief filed in the Adams County Court of Common Pleas.

Bennington (hereinafter “Appellant”) was found guilty by a jury of his peers

of (1) menacing by stalking, a violation of R.C. 2903.211(A)(1), a felony of

the fourth degree, and (2) violation of a protection order, a violation of R.C.

2919.27(A), and a misdemeanor of the first degree. Appellant lists ten errors

on appeal, but fails to present assignments of error and issues for review in

accordance with the appellate rules. Appellant generally argues the trial Adams App. No. 12CA956 2

court abused its discretion and denied him due process of law. In the

interests of justice, we will address the errors Appellant has listed. For the

reasons which will follow, we find the trial court did not abuse its discretion

by its denial of the petition for post-conviction relief. Accordingly, we

overrule Appellant’s assignments of error and dismiss this appeal.

FACTS

{¶2} Appellant and an adult female family friend, (hereinafter “the

victim”), had a consensual sexual relationship for approximately two years,

beginning in 2007. 1 The relationship was described, in emails exchanged

between the two and in court testimony, as a “master/slave” relationship.

There was an abundance of email correspondence which transpired between

the two during the time period of their sexual relationship. Sometime in

2009, the victim decided to end the relationship with Appellant and

informed him of her decision. On July 10, 2009, the victim filed a police

report indicating she was attempting to terminate the relationship but

Appellant refused to accept her decision, as indicated by repeated emails,

visits, text messages, voice mails, and phone calls. The victim sought a civil

stalking protection order. The Adams County Common Pleas Court issued

the same on July 13, 2009. The order prohibited Appellant from any contact

1 At the time this case was tried, the victim was 31 years of age, Appellant was 63 years old. The victim testified she had known Appellant since age 16, as he was her karate instructor. Adams App. No. 12CA956 3

with the victim. Appellant did not abide by the order and was eventually

arrested for actions which occurred on or about August 15, 2009. Appellant

was later indicted and convicted of menacing by stalking and violation of a

protection order.

{¶3} On May 3, 2011, Appellant was sentenced to 15 months in

prison. Appellant filed a direct appeal but later dismissed it. On January 3,

2012, Appellant filed a motion to vacate or set aside judgment of conviction

or sentence. Appellant also filed a motion for expert witness and a motion

for appointment of counsel.

{¶4} Appellant’s petition to vacate or set aside the judgment of

conviction or sentence sets forth six claims of constitutional error:

1) Petitioner was deprived of his right to effective assistance of counsel due to counsel’s failure to investigate the victim’s perjury on the aggravated menacing charges she filed and the temporary protection order she acquired. 2

2) Petitioner was denied his right to effective assistance of counsel due to counsel’s failure to review and enter as evidence emails, text messages, and witness testimony, as requested by the Petitioner. Appellant argued the evidence would have shown the victim’s character to be completely different as characterized by her testimony at trial. Appellant argued had the evidence been allowed, the victim would not have been allowed to commit perjury.

2 With Appellant’s claims of constitutional error, Appellant stated he could not attach supporting evidence due to his need for assistance of an attorney and an expert witness to produce the evidence. Appellant did attach the emails purportedly supporting his arguments of the victim’s perjury. Adams App. No. 12CA956 4

3) Petitioner was denied effective assistance of counsel due to counsel’s failure to request an expert witness. Appellant argued without expert testimony, he was unable to enter the emails without being forced to give up his Fifth Amendment right not to testify. Appellant argued had the expert been available to authenticate the emails, the victim would not have been able to commit perjury and the verdict would have been different.

4) Petitioner was denied due process due to the prosecution’s failure to disclose exculpatory evidence during discovery. Appellant argued the prosecution knew of an email account and text messages which contained possibly exculpatory evidence.

5) Petitioner was denied due process due to his counsel’s failure to request the court to pay for an expert.

{¶5} The State of Ohio filed a memorandum in opposition. Appellant

also filed a motion for summary judgment. On July 12, 2012, Appellant filed

a petition for writ of procedendo in this court. 3 On August 21, 2012, the trial

court held a hearing on Appellant’s motions. The trial court verbally denied

the motion for appointment of counsel and motion for expert witness. On

October 9, 2012, the court denied Appellant’s petition. Appellant timely

filed a notice of appeal.

ASSIGNMENTS OF ERROR

{¶6} Appellant’s petition to vacate and set aside judgment of

conviction or sentence was filed pursuant to R.C. 2953.21. Appellant

3 On July 17, 2012, by Magistrate’s Order, this court struck Appellant’s filings of July 12, 2012 from the record. The Magistrate noted Appellant intended to commence a new action. Therefore, any new petition for writ of procedendo and associated future filings would need to include a new case number. The record indicates Appellant did not re-file his petition for the writ. Adams App. No. 12CA956 5

alleges the trial court made the following errors with regard to its denial of

his petition for post-conviction relief:

Error 1- Failure to address Appellant’s post-conviction petition until faced with a writ of procedendo;

Error 2- Making multiple errors of fact during the August 21, 2012 hearing which showed a failure to prepare for the hearing;

Error 3- Holding a combined hearing on the post-conviction petition and related motions;

Error 4-Verbal denial of Appellant’s motions for expert witness and counsel;

Error 5- Lack of understanding of current technology;

Error 6- Failure to comply with statutory requirements for rendering findings of fact and conclusions of law in his denial of the post-conviction motion by failing to address Appellant’s claims of constitutional error;

Error 7- Reference to the State’s failure to secure email accounts in the judgment entry of sentencing dated October 9, 2012;

Error 8- Misconstrual of Appellant’s issue with regard to his argument the victim perjured herself;

Error 9- Commenting on Appellant’s choice not to testify during the trial, thereby showing evidence of bias against Appellant;

Error 10- Condoning perjury in order to guide the jury to the desired verdict.

{¶7} Upon review, we find Appellant’s errors can be categorized as

those errors which arguably relate to the denial of his petition and the

remaining errors which relate to the manner in which the hearing on his Adams App. No. 12CA956 6

post-conviction motion was conducted. We begin by setting forth the

appropriate standard of review as to the denial of Appellant’s post-

conviction motion.

STANDARD OF REVIEW

{¶8} In filing an R.C. 2953.21(A)(1)(a) motion asking a trial

court to vacate or set aside the judgment of conviction or sentence, a

petitioner must state all grounds for relief on which he relies, and he waives

all other grounds not so stated. R.C. 2953.21(A)(4). In determining

whether substantive grounds for relief exist, the trial court must consider,

among other things, the petition, the supporting affidavits, and the

documentary evidence filed in support of the petition. R.C. 2953.21(C). If

the trial court finds no grounds for granting relief, it must make findings of

fact and conclusions of law supporting its denial of relief. R.C. 2953.21(G).

A trial court’s decision granting or denying a post-conviction petition filed

pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a

reviewing court should not overrule the trial court’s finding on a petition for

post-conviction relief that is supported by competent credible evidence.

State v. Gondor,

,

,

.

The term ‘abuse of discretion’ connotes more than an error of law or of

judgment; it implies the court’s attitude is unreasonable, arbitrary, or Adams App. No. 12CA956 7

unconscionable. State v. Adams,

,

(1980).

LEGAL ANALYSIS

{¶9} Generally, a petitioner cannot raise, for purposes of post-

conviction relief, an error that could have been raised on direct appeal. State

v. Hobbs, 4th Dist. No. 09CA1,

,

,¶ 5;

see, e.g. State v. Reynolds,

,

(1997), (internal citations omitted.). In other words, if a petitioner fails to

bring an appeal as of right, he cannot raise in a petition for post-conviction

relief, those issues that should have been raised in a direct appeal. Hobbs,

supra; see, State v. Franklin, 4th Dist. No. 05CA9,

,

, at ¶ 10; State v. Houser, 4th Dist. No. 03CA7, 2003-Ohio-

6461,

, at ¶ 7; State v. Evans, 4th Dist. No. 01CA715,

,

.

{¶10} In the trial court’s judgment entry denying Appellant’s petition

to vacate or set aside judgment, the trial court listed Appellant’s claims of

constitutional violation, as set forth above. We note initially, that pro se

litigants are bound by the same rules and procedures as litigants who retain

counsel. Seymour v. Hampton, 4th Dist. No. 11CA821,

,

, ¶ 33. Only three of Appellant’s listed errors, arguably, Adams App. No. 12CA956 8

relate to the trial court’s denial of the motion for post-conviction relief. The

remaining alleged errors have more to do with the manner in which the

hearing on his post-conviction motion for relief was conducted than they do

with the court’s actual ruling upon his motion. Consistent with the wide

latitude given pro se appellants, we address Appellant’s issues upon the

merits. Upon review of the record, we find there were no substantive

grounds for granting the relief requested. Therefore, the trial court did not

abuse its discretion in denying Appellant’s post-conviction motion.

A. Appellant’s issues relating to the denial of his motion to vacate or set aside judgment of conviction or sentence.

{¶11} Appellant argues (1) the trial court made multiple errors of fact

during the August 21, 2012 hearing; (2) the trial court failed to comply with

statutory requirements for rendering findings of fact and conclusions of law

by failing to address Appellant’s claims of constitutional error; and, (3) the

trial court misconstrued Appellant’s issue with regard to his argument the

victim perjured herself. In State v. Calhoun,

,

(1999), the Supreme Court of Ohio discussed the Post-

Conviction Remedy Act of 1965. The high court held:

“State collateral review itself is not a constitutional right.

citing State v. Steffen,

,

, (1994), citing Murray v. Giarratano,

,

(1989). Further, a post-conviction proceeding is not an appeal of a criminal conviction but, rather, Adams App. No. 12CA956 9

a collateral civil attack on the judgment. See

,

, citing State v. Crowder,

,

(1991). Therefore, a petitioner receives no more rights than those granted by the statute.”

{¶12} Initially, Appellant argues the trial court made multiple errors

of fact during the hearing. We note, the trial court acknowledged various

times on the record that Appellant and the court were having a “disconnect”

as to what the relevant facts and issues were at trial. Appellant referenced

various pages and lines of the transcript without explaining exactly how any

were errors of fact. Our review of the transcript reveals Appellant appears to

be complaining of at least one typo, (not the trial court’s fault); one instance

in which Appellant and the court actually came to an agreement after

discussion; and, four instances in which any mistake of the court would be

irrelevant. The remaining “mistakes of fact” Appellant complains of are

seemingly instances where Appellant simply did not agree with the evidence

or the issues as construed by the trial court- a difference of opinion.

{¶13} Further, Appellant argued the “multiple errors of fact”

evidenced a failure to prepare for the hearing. Upon review of the record,

we find this argument meritless. Appellant’s jury trial was held on February

14 and 15, 2011. The post-conviction motion hearing was held on August

21, 2012. The record reflects if the trial court did make a mistake in

remembering specific dates or occurrences, he leafed through the documents Adams App. No. 12CA956 10

and corrected himself. We do not find the trial court abused its discretion

with regard to Appellant’s alleged mistakes of fact or any failure to prepare

for the hearing on Appellant’ s post-conviction motion. We do not find

Appellant’s allegations in this regard to be substantive grounds for granting

relief.

{¶14} Appellant also argues the trial court failed to comply with the

statutory requirements for rendering findings of fact and conclusions of law

in his denial of the post-conviction motion, by failing to address Appellant’s

claims of constitutional error. The Supreme Court of Ohio, in Calhoun, cited

above, also held:

“This court echoed the language of the statute in State v. Lester,

,

(1975), paragraph two of the syllabus, where we held that findings of fact and conclusions of law are mandatory under R.C. 2953.21 if the trial court dismisses the petition…’The exercise of findings and conclusions are essential in order to prosecute an appeal. Without them, a petition knows no more than[that] he lost and hence is effectively precluded from making a reasoned appeal. In addition, the failure of a trial judge to make the requisite findings prevents any meaningful judicial review, for it is the findings and the conclusions which an appellate court review for error.’” State ex rel. Carrion v. Harris,

,

(1988), quoting State v. Mapson,

,

(1982).

{¶15} Calhoun further held the trial court “need not discuss

every issue raised by appellant or engage in an elaborate and lengthy

discussion in its findings of fact and conclusions of law. The findings need Adams App. No. 12CA956 11

only be sufficiently comprehensive and pertinent to the issue to form a basis

upon which the evidence supports the conclusion.”

citing State v.

Clemmons,

,

(2nd.

Dist. 1989), citing 5A Moore, Federal Practice (2 Ed. 1990) 52-142, Section

52.06(1).

{¶16} Appellant’s claims of constitutional errors have been set forth

above. The journal entry denying Appellant’s post-conviction motion

consisted of a three-page opinion. The trial court summarized Appellant’s

constitutional arguments in his petition, and at the hearing, as follows:

The gravamen of Petitioner’s claims for relief is that the victim had been less than truthful regarding the allegations which secured the original civil protection order, and further that the victim was less than truthful in admitting to emails, text messages, etc., exchanged between the parties when their unusual relation was fully consensual ( prior to issuance of the protection order). Petitioner wishes this court to believe that had any of his multiple counsel secured an expert to testify to the technical aspects of email systems and the recovery of messages exchanged prior to the issuance of the civil protection order, then the victim’s credibility as a witness would have been gravely damaged. Petitioner also claims that the State of Ohio should have secured the history of the email accounts, specifically the victims ***, which may have provided exculpatory evidence of some unknown origin.

{¶17} The trial court also summarized the relevant facts surrounding

Appellant’s conviction as follows:

1) For approximately two years prior to July 10, 2009, the Defendant and victim had an unusual but fully consensual Adams App. No. 12CA956 12

personal and sexual relationship, whereby Defendant was the master and the victim was the servant/slave;

2) On July 10, 2009, the victim filed a police report alleging that she had been attempting to terminate the relationship , but that Defendant refused to accept same;

3) On July 13, 2009, the victim secured a civil stalking protection order against defendant, requiring defendant to terminate all contact;

4) The Defendant was indicted and convicted for his actions which occurred on or about August 15, 2009, for Menacing by Stalking with two specifications within said indictment that Defendant was the subject of a protection order (July 13, 2009), and that prior to committing the offense the Defendant had been determined to represent a substantial risk of physical harm to others as manifested by evidence of then recent homicidal or other violent behavior, evidence of then recent threats that place another in reasonable fear of violent behavior and serious physical harm….

{¶18} The trial court then opined that Petitioner refused to recognize

the above relevant facts surrounding his conviction by a jury of his peers.

The trial court also noted the only relevant evidence for consideration at trial

was “what did or did not happen between the period of July 13, 2009 (civil

protection order issued) and or about August 15, 2009, the date of the

alleged violations.

{¶19} Additionally, in its opinion, the trial court referenced the fact

that the victim testified and the State offered other supporting witnesses. The

trial court found “the production of disputed emails (concerning the parties’ Adams App. No. 12CA956 13

bizarre yet consensual exploits prior to issuance of the civil protection order)

at trial would have not been relevant nor would the outcome of the trial been

different.” The trial court concluded by noting that he had considered the

petition itself, Petitioner’s arguments and evidence at the post-conviction

relief hearing, the supporting affidavits, the documentary evidence, all the

files and records pertaining to the proceedings against petitioner, including

but not limited to the indictment, the court’s journal entries, and the

journalized records of the clerk of courts, and found no grounds for granting

relief.

{¶20} Upon review, we find although the trial court did not single out

each of Appellant’s constitutional claims, his arguments were addressed in

summary form. The trial court did not abuse its discretion nor did it deny

Appellant due process of law. We find the trial court complied with the

statutory requirements for rendering findings of fact and conclusions of law.

Thus, this is not a substantive ground upon which to grant Appellant relief.

{¶21} Finally, we find the trial court did not err or abuse its discretion

with regard to Appellant’s argument that the trial court misconstrued

Appellant’s chief issue: the victim’s alleged perjury. Appellant consistently

argued his proffered email and text message evidence would show the jury

Appellant’s character and prove she committed perjury. The trial court Adams App. No. 12CA956 14

pointed out the victim testified and admitted to their consensual relationship.

However, at his post-conviction hearing, Appellant admitted to the trial

court he did not have any texts from the victim after July 13, 2009, when she

obtained the protection order. He also admitted he did not have any emails

from her between July 13th and August 15th, 2009.

{¶22} As indicated above, the record reflects the trial court’s

acknowledgement that there was a “disconnect” between Appellant and the

trial court as to the relevance of the proffered emails. In his brief, Appellant

continues to argue he needed an expert to authenticate the emails and where

they originated, and this evidence would have demonstrated to the jury the

victim was committing perjury. We find, as did the trial court, that

Appellant’s emails, all prior to the time the victim was issued a protection

order and Appellant continued to force contact with her, were not relevant to

the issues the jury deliberated at trial: (1) whether Appellant committed

menacing by stalking; and (2) whether he violated the protection order. We

are mindful that the admission or exclusion of evidence is at the sound

discretion of the trial court. State v. Craig, 4th Dist. No. 01CA8,

(Mar. 26, 2002), citing State v. Sage,

,

(1987), paragraph two of the syllabus. We are also mindful of

the doctrine of res judicata, which bars claims for post-conviction relief Adams App. No. 12CA956 15

based on allegations which the petitioner raised, or could have raised, in the

trial court or on direct appeal.

, citing

. Any issues with regard to the admission or exclusion of

evidence should have been objected to at trial and/or addressed in a direct

appeal. As such, we do not find the trial court abused its discretion with

regard to “misconstrual” of Appellant’s issues.

B. Appellant’s issues relating to the manner in which the August 20,2012 hearing was conducted.

{¶23} Appellant’s remaining assigned errors essentially relate to the

way in which the trial court conducted the hearing on Appellant’s post-

conviction motion. These alleged errors are not properly within the scope

of Appellant’s appeal of the denial of his motion. However, we will attempt

to construe the merits of each. Appellant argues the trial court abused its

discretion and/or denied him due process of law by: (1) failing to address

the post-conviction motion until faced with a writ of procedendo; (2)

holding combined hearings on the post-conviction petition and related

motions for appointment of counsel and appointment of an expert; (3)

verbally denying Appellant’s motion for appointment of counsel and an

expert witness; (4) failing to demonstrate understanding of current

technology; (5) referencing in the judgment entry of sentencing dated

October 9, 2012, the State’s failure to secure email accounts; (6) Adams App. No. 12CA956 16

commenting on Appellant’s choice not to testify during the trial, thereby

showing evidence of bias against Appellant; and (7) condoning perjury in

order to guide the jury to the desired verdict.

{¶24} Initially, Appellant argues the trial court failed to address his

post-conviction petition until faced with a writ of procedendo. A writ of

procedendo is appropriate when a court has either refused to render a

judgment or has unnecessarily delayed proceeding to judgment. State ex rel.

Hazel v. Bender, 10th Dist. No. 09AP-377,

,

, ¶ 18, citing State ex rel. Miley v. Parrott,

,

(1996). An “ ‘inferior court’s refusal or failure to timely

dispose of a pending action is the ill a writ of procedendo is designed to

remedy.’” Bender, supra at 19, quoting State ex rel. Dehler v. Sutuala,

,

(1995), quoting State ex rel. Levin v.

Sheffield Lake,

,

(1994). In

Appellant’s brief, he argues his motions were properly filed and pending and

the trial court’s failure to act was “unreasonable arbitrary or unconscionable.

Appellant’s argument after this is difficult to follow. We find it sufficient to

say Appellant was granted a writ of procedendo and received his remedy.

The fact that he petitioned for the writ of procedendo had no bearing on the Adams App. No. 12CA956 17

outcome of his petition for post-conviction relief. There is nothing more this

court can do for him.

{¶25} Appellant next argues the trial court abused its discretion

by holding a combined hearing on the post-conviction petition and related

motions. The Calhoun court also noted, a criminal defendant seeking to

challenge his conviction through a petition for post-conviction relief is not

automatically entitled to a hearing.

citing State v. Cole,

,

(1982). Here, the trial court allowed

Appellant a full hearing on August 21, 2012 . The record reflects at the

August 21, 2012 hearing, the trial court heard Appellant’s arguments on his

request for expert witness and request for appointed counsel. The trial court

stated at one point: “Well and we can continue the hearing for the actual 4 cause.” The trial court proceeded to deny both motions on the record. The

trial court further inquired of Appellant:

Do you wish to have a further hearing on the contention that you were entitled to a post-conviction relief, because you were denied your constitutional right to effective assistance of counsel, or are you ready to proceed on that?

4 We note an indigent petitioner has neither a state nor a federal constitutional right to be represented by an attorney in a post-conviction proceeding. State v. Sheets, 4th Dist. no. 03CA24, 2005 Ohio-803,

, ¶ 22, quoting State v. Crowder,

,

, citing Pennsylvania v. Finley,

,

(1987). Further, R.C. 2953.21 does not provide a right to funding or appointment of expert witnesses or assistance in a post-conviction petition.” Hicks, supra, at 22, quoting State v. Madison, 10th Dist. No. 08AP-246,

,

, at ¶ 16, citing State v. Tolliver, 10th dist. No. 04AP-591,

,

, at ¶ 25. Adams App. No. 12CA956 18

Appellant responded: “I can proceed at this time sir.” Arguably, based on

the arguments made in Appellant’s petition for post-conviction relief,

Appellant was not even entitled to a hearing. However, Appellant was given

the option whether or not to proceed to the hearing on his motion for post-

conviction relief. He chose to proceed, therefore, waiving any right to object

to combined hearings. We find the trial court did not abuse its discretion by

holding a combined hearing on motions.

{¶26} Appellant also argues the trial court abused its discretion by

verbally denying his motions for expert witness and counsel. We disagree.

“[M]otions that a trial court fails to explicitly rule upon are deemed denied

once a court enters final judgment.” State v. Hicks, 4th Dist. No. 09CA15,

,

,¶ 19. In this case, the trial court did in

fact issue a verbal denial of the motions. Although it is preferable to have a

journal entry for clarification of the record, the trial court’s verbal denial

suffices.

{¶27} Appellant also argues the trial court abused its discretion by its

lack of understanding of current technology. Appellant contends the trial

court refused to use or review the technology. This argument is without

merit. At the hearing, Appellant argued he was not provided the best

evidence of email and photographs submitted by the State at trial. The trial Adams App. No. 12CA956 19

court stated: “[T]here is not a statute that says you have to get the original

pixels or whatever you referred to.” The court went on to reiterate that no

objections were raised at trial that [the photographs and emails] were not the

best evidence. Further, the trial court humbly acknowledged he was not

familiar with some aspects of digital photographic technology. Appellant’s

vague argument that the trial court’s lack of knowledge of technology

somehow denied him due process should have been raised on a direct

appeal.

{¶28} Appellant also argues the trial court denied him due process by

its reference to the State’s failure to secure email accounts in the judgment

entry of sentencing dated October 9, 2012. Appellant argues in his brief

“This email account would have shown the witness was deleting evidence

that was damaging to her credibility. Also the contents would have shown

the true nature of the witness to the prosecution and resulted in the charges

being dismissed even before trial.” The control of discovery and sanctions

for violations of that process are generally left to the discretion of the trial

court. State v, Craig, 4th Dist. No. 01CA8,

(Mar. 26,

2002), ¶ 33; see, also, State v. Otte,

,

(1996). Again, the record reflects no objection or motion to

compel as to discovery issues. Appellant could have raised any discovery Adams App. No. 12CA956 20

issue on direct appeal. We find no error or abuse of discretion by the trial

court.

{¶29} Appellant next argues the trial court commented on Appellant’s

choice not to testify during the trial, thereby showing evidence of bias. As

previously indicated, Appellant argued at length that he needed an expert to

explain data systems and authenticate emails which would prove the victim

was perjuring herself. The August 21, 2012 hearing transcript reveals the

following exchange:

Court: Do you understand twelve (inaudible) and jurors listened to all the evidence?

Mr. Bennington: Yes sir.

Court: You had an opportunity to testify.

Mr. Bennington: Yes sir.

Court: And you also had a constitutional right not to testify.

Mr. Bennington: Yes sir. Right you can’t I didn’t there is no evidence that I did, other than what she submitted.

Court: She testified.

Mr. Bennington: Sure.

Court: And the jury believed it.

Mr. Bennington: Sure, because the attorney whose lack of technical knowledge accepted it. When Adams App. No. 12CA956 21

the date on the recording is Thursday and she’s alleging something happened on a Saturday, why isn’t that questioned by anybody, why is not her perjury, prior perjury for all this stuff brought in and say what a minute she messed with the recording, she’s committed this perjury and you want us to believe that this is real.

Court: You could have been one of those people to of testified to that could you not?

Mr. Bennington: Yes sir, I thought that my attorney recommended that I not do it, I chose not to do it, yes it was my final decision yes based on, but at that point in the trial I knew that he could not bring in emails, I knew he couldn’t’ got out and call witnesses, by this point and time you can’t just bring in, wait a minute judge lets go get this evidence because she’s testifying to this. The attorney did no research none of them.

The trial court also addressed Appellant:

Court: And again I’m not suggesting that you should have not exercised you Fifth Amendment right but those were opportunities to say you have heard her but I’m telling you I have never had a password, those were emails from her, and you declined that opportunity.

{¶30} We find no merit to Appellant’s argument the trial court erred

by commenting on Appellant’s choice not to testify at trial. In fact, we do

not construe the trial court’s remarks as “comments” but rather, Adams App. No. 12CA956 22

“explanation” to the Appellant of the ramifications of his choice not to

testify i.e., the victim’s testimony was allowed to stand unrefuted for the

jury’s consideration. The trial court’s statements were explanatory in nature

and were not made in the presence of the jury prior to its deliberations. The

court’s statements had no detrimental effect on Appellant’s conviction or the

post-conviction motion.

{¶31} Finally, Appellant argues the trial court erred by condoning

perjury. Appellant contends these remarks of the trial court “illustrated a

predetermination of guilty and a willingness to guide the jury to the desired

verdict.” As noted above, the record reveals Appellant repeatedly suggested

the victim perjured herself in the obtaining of the protection order and in her

trial testimony. Appellant argued introducing his email evidence would call

her character and credibility into issue. The trial court repeatedly tried to

explain to Appellant the subjective nature of the protection order and how,

even if the victim had been untruthful, a protection order was in place on

July 13, 2009, and the jury found Appellant violated it on August 15, 2009.

The hearing transcript reflects at no time during the lengthy exchanges with

Appellant, did the trial court indicate it condoned perjury. We find no merit

to Appellant’s argument. Adams App. No. 12CA956 23

CONCLUSION

{¶32} Based on the above, we find the trial court did not err or abuse

its discretion by the denial of Appellant’s petition to vacate or set aside the

judgment of conviction. We find Appellant was not denied due process.

The discourse between Appellant and the trial court reveals through the

hearing, the trial court, with professionalism and courtesy, attempted to

construe Appellant’s arguments and explain the legal proceedings to

Appellant. There is no factual support for Appellant’s legal arguments.

There is no evidence in the record that the trial court’s rulings were

arbitrary, unreasonable or unconscionable. There was simply no substantive

basis upon which to grant Appellant’s post-conviction motion for relief.

Therefore, we overrule Appellant’s assignments of error and affirm the

judgment of the trial court.

JUDGMENT AFFIRMED. Adams App. No. 12CA956 24

JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. Hoover, J.: Concurs in Judgment Only. For the Court,

BY: _________________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.