[Cite as State v. McKelton,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2015-10-183

: OPINION - vs - 5/31/2016 :

CALVIN MCKELTON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-02-0189

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Calvin McKelton, #A638877, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601, defendant-appellant, pro se

RINGLAND, J.

{¶ 1} This cause is an appeal by defendant-appellant, Calvin McKelton, from a

decision of the Butler County Court of Common Pleas denying his pro se petition for

postconviction relief. We affirm the decision of the trial court.

I. Facts and Procedural History

{¶ 2} In 2010, McKelton was convicted and sentenced to death for the murders of Butler CA2015-10-183

Margaret Allen and Germaine Lamar Evans. The facts and procedural history underscoring

McKelton's convictions were relayed in this court's prior opinion affirming the denial of his first

petition for postconviction relief. State v. McKelton, 12th Dist. Butler No. CA2015-02-028,

(McKelton I). McKelton strangled Allen, an attorney with whom he was

romantically involved, following an argument. Evans, a possible witness to the murder and

accomplice in disposing of the body, was found shot in the back of the head after being

contacted by law enforcement during their investigation into Allen's death.

{¶ 3} Following a lengthy jury trial, McKelton was found guilty. The direct appeal of

his conviction and capital sentence remains pending before the Ohio Supreme Court. State

v. McKelton, No. 2010-2198. McKelton timely sought postconviction relief in December

2011, amending his initial petition four times to assert a total of 34 grounds for relief. The

trial court denied the motion without a hearing, and this court affirmed. McKelton's appeal of

our decision also remains pending before the Ohio Supreme Court. State v. McKelton, No.

2015-1917.

{¶ 4} In October 2015, just one day after we affirmed the denial of McKelton's initial

petition for postconviction relief, McKelton filed a successive petition. Once again, the trial

court summarily denied relief. This appeal followed.

II. Analysis

A. Standard of Review

{¶ 5} We review a trial court's decision denying a motion for postconviction relief

under an abuse of discretion standard. State v. Simon, 12th Dist. Butler No. CA2014-12-255,

, ¶ 11. An abuse of discretion connotes more than an error of law or

judgement. State v. Thompson,

,

. Rather, the

term implies that the court's decision was unreasonable, arbitrary, or unconscionable.

-2- Butler CA2015-10-183

B. The Law Governing Postconviction Relief

{¶ 6} R.C. 2953.21 through 2953.23 set forth the means by which a convicted

defendant may seek to have the trial court's judgment or sentence vacated or set aside

pursuant to a petition for postconviction relief. State v. Hibbard, 12th Dist. Butler No.

CA2013-03-051,

. Distinct from an appeal of a criminal conviction, a

petition for postconviction relief is a collateral civil attack on a criminal judgment. State v.

Calhoun,

,

. It does not represent a second occasion

to litigate one's conviction. State v. Ibrahim, 10th Dist. Franklin No. 14AP-355, 2014-Ohio-

5307, ¶ 8.

{¶ 7} R.C. 2953.21 sets forth the general guidelines for postconviction relief and

provides that petitions must be filed within 180 days1 of the date on which the trial transcript

is filed in the direct appeal. R.C. 2953.21(A)(2); Hibbard at ¶ 21. If a defendant fails to file

his petition within the prescribed time period, R.C. 2953.23(A)(1)(a) permits the trial court to

entertain an untimely motion for postconviction relief so long as the petitioner demonstrates

either: (1) he was unavoidably prevented from discovering the facts necessary to assert his

claim for relief, or (2) he is invoking a new federal or state right recognized by the United

States Supreme Court that is retroactively applicable to persons similarly situated. R.C.

2953.23(A)(1)(a); State v. Kent, 12th Dist. Preble No. CA2013-05-003,

.

{¶ 8} If the petitioner satisfies one of these threshold requirements, he must then

offer clear and convincing evidence demonstrating that, but for the constitutional error at trial,

no reasonable factfinder would have found him guilty of the offenses of which he was

convicted. R.C. 2953.23(A)(1)(b); Hibbard at ¶ 22.

1. Effective March 23, 2015, this deadline was extended to 365 days. 2014 Am.Sub.H.B. No. 663. -3- Butler CA2015-10-183

{¶ 9} A person seeking postconviction relief is not automatically entitled to an

evidentiary hearing. Calhoun, 86 Ohio St.3d at 282-283. Rather, the petitioner must show

that there are substantive grounds for relief requiring a hearing as demonstrated by the

petition, supporting affidavits, documentary evidence, files, and records pertinent to the case.

See R.C. 2953.21(C); State v. Jackson,

(1980). Substantive grounds

for relief exist where there was a denial or infringement of the petitioner's constitutional rights

of a magnitude sufficient to render the judgment void or voidable. See R.C. 2953.21(A);

Calhoun at 282-283.

C. The Merits of the Present Appeal

{¶ 10} In appealing the denial of his successive petition for postconviction relief,

McKelton submits three assignments of error for our review. For ease of analysis, we shall

address them slightly out of order.

{¶ 11} Assignment of Error No. 2:

{¶ 12} THE TRIAL COURT ERRED IN DISMISSING MCKELTON'S POST-

CONVICTION PETITION WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS TO

MERIT RELIEF OR, AT MINIMUM [SIC], AN EVIDENTIARY HEARING.

{¶ 13} McKelton's second assignment of error challenges the trial court's denial of his

successive motion for postconviction relief without a hearing, though his pro se appellate

brief offers sparse argument in support. Instead, McKelton refers this court back to the

motion itself, generally asserting that the arguments presented therein and attendant exhibits

present sufficient evidence of constitutional error warranting relief or, at a minimum, a

hearing.

{¶ 14} McKelton does not ask the court to entertain his untimely petition because the

United States Supreme Court recognized some right retroactively applicable to his case.

Rather, his arguments are premised upon the other threshold requirement for belated -4- Butler CA2015-10-183

postconviction relief, namely, that he was unavoidably prevented from discovering the facts

necessary to posit his current claims for relief. R.C. 2953.23(A)(1)(a). We have thoroughly

reviewed the seven exhibits affixed to McKelton's successive petition for postconviction relief.

None present evidence adequate to satisfy this threshold requirement for disturbing a

criminal conviction under R.C. 2953.23.

{¶ 15} Exhibits one, two, and three merely duplicate exhibits attached to McKelton's

initial petition. These exhibits were thus incorporated into the record prior to the petition

underlying the present appeal. Exhibit four appears to be a letter from a forensic handwriting

analyst authenticating exhibit three, a five-page handwritten letter with no signature. As

stated, exhibit three was attached to McKelton's initial petition and thereby incorporated into

the record. Authentication of this exhibit does little to support McKelton's current petition or

otherwise warrant relief.

{¶ 16} The remaining exhibits reference proceedings against other inmates who

received reduced sentences on their respective charges subsequent to testifying against

McKelton at trial. Without stating a direct connection in his appellate brief, McKelton implies

that these witnesses were given favorable treatment in exchange for their testimony. We

rejected the same speculative intimations in our decision affirming the trial court's denial of

McKelton's first postconviction petition. McKelton I,

. Indeed, the

proceedings against these men were referenced in exhibits attached to McKelton's initial

petition. None qualify as newly-discovered evidence.

{¶ 17} In view of the fact that McKelton's successive petition for postconviction relief

was not based upon new evidence previously inaccessible to him, his proffered arguments

are barred by the doctrine of res judicata. State v. Gann, 12th Dist. Butler No. CA2004-01-

028,

(res judicata precludes a convicted defendant who was

represented by counsel from raising an issue that was or could have been raised either -5- Butler CA2015-10-183

before the conviction or on direct appeal). Moreover, because the successive petition failed

to satisfy either the timeliness requirement of R.C. 2953.21 or the R.C. 2953.23 exceptions to

the timeliness requirement, the trial court lacked jurisdiction to consider the merits of the

petition. State v. Strunk, 12th Dist. Butler No. CA2010-09-085,

, ¶ 14.

{¶ 18} McKelton's second assignment of error is overruled.

{¶ 19} Assignment of Error No. 1:

{¶ 20} THE TRIAL COURT ERRED WHEN IT DENIED THE PRO-SE POST-

CONVICTION PETITION WITHOUT FIRST ALLOWING MCKELTON TO CONDUCT

DISCOVERY.

{¶ 21} Amidst a series of motions filed in the wake of his conviction, McKelton moved

for leave to conduct discovery. In his first assignment of error, McKelton decries the trial

court's failure to allow him to conduct discovery prior to denying his successive petition for

postconviction relief.

{¶ 22} We have already considered and rejected McKelton's challenge to the propriety

of the trial court's decision denying him leave to conduct discovery. In McKelton I, we noted

that the statutory scheme governing postconviction relief does not entitle a petitioner to

conduct discovery. McKelton I,

; State ex rel. Love v. Cuyahoga Cty.

Prosecutor's Office,

, 159,

. See also State v. Steffen,

,

("postconviction state collateral review itself is not a

constitutional right, even in capital cases"); State v. Byrd,

(1st

Dist. 2001).

{¶ 23} Nonetheless, our decision in McKelton I opined that discovery may be proper

where a petitioner sets forth operative facts outside the record that reveal a constitutional

error in his or her case.

, citing State v. Lawson, 12th Dist. Clermont No.

CA2011-07-056,

, ¶ 18. As discussed in our disposition of McKelton's second -6- Butler CA2015-10-183

assignment of error, however, the documentary evidence appended to McKelton's

successive petition did not meet this standard. Accordingly, the trial court did not abuse its

discretion in declining to grant leave to conduct discovery. State v. Stojetz, 12th Dist.

Madison No. CA2009-06-013,

, ¶ 75.

{¶ 24} McKelton's first assignment of error is overruled.

{¶ 25} Assignment of Error No. 3:

{¶ 26} INEFFECTIVE ASSISTANCE OF APPELLANT COUNSEL. [SIC]

{¶ 27} While the petition underlying the case sub judice is being pursued pro se,

McKelton was represented by counsel from the Ohio Public Defender's Office in all

proceedings relevant to his initial petition. In his third assignment of error, McKelton claims

that he suffered ineffective assistance of appellate counsel due to the deficient and

prejudicial representation by his attorneys in McKelton I. In particular, he emphasizes the

fact that appellate counsel omitted to assign as error the prosecutors' alleged failure to

disclose potentially exculpatory evidence to trial counsel in violation of Brady v. Maryland,

,

(1963).

{¶ 28} Of note, "[p]ostconviction review is not a constitutional right but, rather, is a

narrow remedy which affords a petitioner no rights beyond those granted by statute."

Ibrahim,

. Ohio statutory law dictates that an indigent criminal

defendant sentenced to death is entitled to appointed counsel in postconviction proceedings.

R.C. 2953.21(I)(1). Even so, McKelton's claim of ineffectiveness is not cognizable under the

statutory scheme governing said proceedings. R.C. 2953.21(I)(2) provides in pertinent part:

The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

{¶ 29} By implementing this language, the General Assembly evinced its unambiguous -7- Butler CA2015-10-183

intent to bar collateral attacks on the performance of appointed counsel in postconviction

proceedings. See State v. Marcum, Slip Opinion No.

, __ Ohio St.3d __,

. Bearing in mind the noncriminal nature of such proceedings, this

statutory prohibition accords with the notion that a civil litigant is not entitled to the effective

assistance of appointed counsel. As reasoned by Justice Cook writing in concurrence for the

Ohio Supreme Court:

[A] civil litigant should not have two chances to defeat his opponent at trial because the counsel that he originally employed was ineffective. Unlike a criminal defendant, a civil litigant has no constitutional right to the effective assistance of counsel. Accordingly, an unsuccessful civil litigant whose attorney has fallen below the professional standard of representation may recover losses caused by the deficiency in an action for legal malpractice against his attorney, but has no right to subject the opposing party to a new trial.

(Citations omitted.) Goldfuss v. Davidson,

,

(Cook, J.,

concurring in judgment only).

{¶ 30} A number of Ohio appellate courts have reached the same conclusion. See,

e.g., State v. Brown, 7th Dist. Mahoning No. 01CA229,

, ¶ 12-15; In re Sharf,

6th Dist. Ottawa No. OT-01-044,

, ¶ 7; State v. Sheppard, 1st Dist. Hamilton

No. C-000665,

, *2 (Apr. 6, 2001); State v. Scudder,

(10th Dist. 1998); State v. D'Ambrosio, 8th Dist. Cuyahoga No. 75076,

,

*1-2 (Mar. 16, 2000). Accord Coleman v. Thompson,

,

(1991).

{¶ 31} We join our sister courts and hold that the Sixth Amendment right to the

effective assistance of counsel does not extend to state postconviction relief proceedings.

As indicated in R.C. 2953.21(I)(2), an Ohio petitioner is explicitly prohibited from challenging

his attorney's performance in pursuit of postconviction relief, regardless of whether the

argument is asserted at any phase of postconviction relief proceedings or by way of an

-8- Butler CA2015-10-183

application to reopen a direct appeal.

{¶ 32} McKelton's third assignment of error is overruled.

III. Conclusion

{¶ 33} Having determined that the submitted arguments lack merit, we conclude that

the trial court did not abuse its discretion in denying McKelton's successive petition for

postconviction relief.

{¶ 34} Judgment affirmed.

M. POWELL, P.J., and HENDRICKSON, J., concur.

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