[Cite as State v. Curtis,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2018-0014 RODNEY A. CURTIS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No.CR2015-0117

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 13, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX RODNEY A. CURTIS Prosecuting Attorney #A721-152 BY GERALD V. ANDERSON II Noble Correctional Institution Assistant Prosecuting Attorney 15708 McConnelsville Road 27 North Fifth St., Box 189 Caldwell, OH 43724 Zanesville, OH 43701 [Cite as State v. Curtis,

.]

Gwin, P.J.

{¶1} Appellant Rodney A. Curtis [“Curtis”] appeals from the February 13, 2018

judgment entry of the Muskingum County Court of Common Pleas overruling his petition

for post-conviction relief.

Facts and Procedural History

{¶2} On August 20, 2014, Detective Welker of the Muskingum County Sheriff's

Office filed an affidavit to receive a search warrant allowing the Sheriff's Office to seize

the cell phone of Curtis. The affidavit cites to allegations from a minor female resident at

Avondale Youth Center where Curtis worked as a Child Care worker. The victim alleged

that they had sexual contact in numerous locations and that she had taken nude pictures

of herself on Curtis’ cell phone. Detective Welker talked to Curtis about these allegations

and asked to see Curtis’ cell phone. Curtis declined to show Detective Welker his cell

phone but did admit that the victim sometimes takes his cell phone and has taken pictures

of herself with it.

{¶3} After retrieving the phone, Detective Welker filed for another search warrant

on August 21, 2014, to be able to search the phone's data for evidence of the criminal

allegations. The Sheriff’s Office searched the phone on August 22, 2014, but was unable

to download the data because their cable was not compatible with the newer phone. The

Sheriff’s Office continued and completed downloading the data on September 8, 2014.

{¶4} Curtis was indicted on or about March 18, 2015, on 63 counts of Illegal Use

of Minor in Nudity Oriented Material or Performance, each a felony of the second degree

and 11 counts of Sexual Battery, each a felony of the third degree. He retained counsel

to represent him. Muskingum County, Case No. CT2018-0014 3

{¶5} On May 22, 2015, Curtis filed a motion to suppress the evidence. A hearing

was held and on June 12, 2015, the Court denied Curtis’ motion to suppress the evidence.

{¶6} On or about October 5, 2015, Curtis entered a negotiated pled guilty to

counts 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 64, 68, and 74. In exchange for his plea, the state

dismissed the remaining counts.

{¶7} On November 23, 2015, Curtis was sentenced to an aggregate prison

sentence of eleven years. Curtis did not file a direct appeal, though he attempted to file

a delayed appeal on November 23, 2016. This Court denied Curtis’ motion to file a

delayed appeal by Judgment Entry filed January 3, 2017 in Case No. 16-62.

{¶8} On November 23, 2016, Curtis also filed a Petition for Post-Conviction

Relief in the trial court. On February 13, 2018, the trial court issued a seven-page entry

denying Curtis’ petition for post-conviction relief.

Assignments of Error

{¶9} Curtis raises two assignments of error,

{¶10} “I. TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING

DEFENDANT'S POSTCONVICTION RELIEF PETITION WHEN IT FOUND THAT

DEFENDANT'S COUNSEL WAS NOT DEFICIENT NOR DEFENDANT PREJUDICE

WITHOUT CONDUCTING DISCOVERY, THUS CONTRARY TO THE UNITED STATES

SUPREME COURTS HOLDING IN STRICKLAND V. WASHINGTON.

{¶11} “II. TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT

CONDUCTING DISCOVERY BEFORE DENYING A POSTCONVICTION RELIEF.” Muskingum County, Case No. CT2018-0014 4

Pro se Litigants

{¶12} We understand that Curtis has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022,

.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154,

, ¶4 (internal quotation omitted).

{¶13} In State v. Hooks,

,

,

(2001),

the Supreme Court noted, “a reviewing court cannot add matter to the record before it

that was not a part of the trial court's proceedings, and then decide the appeal on the

basis of the new matter. See, State v. Ishmail,

,

(1978).”

It is also a longstanding rule "that the record cannot be enlarged by factual assertions in

the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411,

(Feb. 28, 1980),

citing Scioto Bank v. Columbus Union Stock Yards,

,

(1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler,

,

,

, quoting Dzina v. Celebrezze,

,

,

. Therefore, we have disregarded facts and documents in the parties’

briefs that are outside of the record.

{¶14} In the interests of justice, we shall attempt to consider Curtis’ assignments

of error. Muskingum County, Case No. CT2018-0014 5

I. & II.

{¶15} Each of Curtis’ assignments of error arises from the trial court’s denial of his

petition for post-conviction relief. Curtis claims he was denied effective assistance of trial

counsel and he should have been permitted to conduct discovery in his petition for post-

conviction relief.

Standard of Appellate Review - Post-conviction relief.

{¶16} R.C. 2953.21(A) states in part,

(A)(1)(a) Any 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 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.

{¶17} A petition for post-conviction relief is a means to reach constitutional issues

that would otherwise be impossible to reach because the evidence supporting those

issues is not contained in the record of the petitioner's criminal conviction. State v.

Murphy, 10th Dist. Franklin No. 00AP-233,

(Dec. 26, 2000); Accord,

State v. Zich, 6th Dist. Lucas No. L-15-1263,

, ¶9. Although designed to

address claimed constitutional violations, the post-conviction relief process is a civil

collateral attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun, Muskingum County, Case No. CT2018-0014 6

,

(1999); State v. Steffen,

,

(1994). A petition for post-conviction relief, thus, does not provide a

petitioner a second opportunity to litigate his or her conviction, nor is the petitioner

automatically entitled to an evidentiary hearing on the petition. State v. Jackson,

,

(1980). State v. Lewis, 5th Dist. Stark No. 2007CA00358,

.

{¶18} In post-conviction cases, a trial court has a gatekeeping role as to whether

a defendant will receive a hearing. In State v. Calhoun, the Ohio Supreme Court held

that a trial court could 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.”

,

(1999), paragraph two

of the syllabus.

{¶19} In State v. Phillips, the court noted,

Significantly, evidence outside the record alone will not guarantee

the right to an evidentiary hearing. State v. Combs (1994),

,

. Such evidence “‘must meet some

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

holding of [State v. Perry (1967),

] 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.’” (Citation omitted.) State v. Lawson (1995),

,

. Thus, the evidence must not be merely Muskingum County, Case No. CT2018-0014 7

cumulative of or alternative to evidence presented at trial. Combs,

,

.

9th Dist. Summit No. 20292,

.

{¶20} In State v. Gondor, the Court held that 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 and credible evidence.”

,

,

(2006), ¶ 58.

{¶21} An abuse of discretion exists where the reasons given by the court for its

action are clearly untenable, legally incorrect, or amount to a denial of justice, or where

the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827,

; In re Guardianship

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54.

ISSUES FOR APPEAL

A. Whether the trial court abused its discretion in denying Curtis’ petition for post-

conviction relief.

{¶22} Curtis retained counsel to represent him during the trial court proceedings.

Curtis contends he was denied effective assistance of trial counsel. Specifically, Curtis

submits that he was coerced into entering his guilty pleas and further that his attorney

failed to investigate his case.

1). Ineffective Assistance of Counsel in post-conviction relief claims. Muskingum County, Case No. CT2018-0014 8

{¶23} In order for an indigent petitioner to be entitled to an evidentiary hearing in

a post- conviction relief proceeding on a claim that he was denied effective assistance of

counsel, the two-part Strickland v. Washington,

,

, 122 L.Ed.2d

(1984) test is to be applied. Lockhart v. Fretwell,

,

,

(1993); State v. Bradley,

,

(1989).

{¶24} The petitioner must therefore prove that: 1). counsel’s performance fell

below an objective standard of reasonable representation; and 2). there exists a

reasonable probability that, were it not for counsel's errors, the petitioner would not have

plead guilty and would have insisted on going to trial. Hill v. Lockhart,

,

,

(1985).

{¶25} Furthermore, before a hearing is granted in proceedings for post-conviction

relief upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial

burden to submit evidentiary material containing sufficient operative facts that

demonstrate a substantial violation of any of defense counsel's essential duties to his

client and prejudice arising from counsel's ineffectiveness. Calhoun,

,

; State v. Jackson,

,

(1980),

syllabus; see, also Strickland v. Washington,

,

,

(1984).

a. Coercion in the plea bargaining process.

{¶26} Curtis submits that he had no choice but to enter a guilty plea because his

attorney told him that he would receive a life sentence if he were convicted after a jury

trial; however if he pleaded guilty he would receive a lighter sentence. See, Appellant’s

Brief at 15-17. Muskingum County, Case No. CT2018-0014 9

{¶27} In the case at bar, the trial court found,

Defendant was charged with 63, F2 counts and 11, F3 (60 months)

counts, which meant he faced up to 504 years plus 660 months in prison

— or essentially 559 years in prison. While Defendant would have unlikely

received a half-century prison sentence, any comment that Defendant

faced a life sentence was accurate in regards to effect, if not in regards to

terminology. Most importantly, while an effective way to communicate the

situation to Defendant, informing him that he faced a life sentence is not a

threat. Furthermore, a defense attorney is required to evaluate a case and

inform their client of their opinion and status of a case.

Journal Entry, filed Feb 13, 2018 at 4.

{¶28} The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” An

element of this right is the right of a defendant who does not require appointed counsel

to choose who will represent him. See Wheat v. United States,

,

,

(1988). The erroneous denial of counsel of choice

constitutes structural error. United States v. Gonzalez–Lopez,

,

,

(2006); State v. Chambliss,

, 2011–Ohio–

1785,

, ¶18. Such an error requires an automatic reversal of a conviction.

Chambliss, ¶ 18; Gonzalez–Lopez,

.

{¶29} Curtis was represented by retained counsel of Curtis’ choosing in the trial

court. Curtis has not submitted affidavits or evidentiary materials to substantiate his claim

that he and his attorney had any misunderstandings concerning the plea offer by the state Muskingum County, Case No. CT2018-0014 10

as explained in open court by the trial judge. No affidavits or evidentiary materials were

submitted to substantiate Curtis’ claim that his retained counsel coerced him to plead

guilty.

{¶30} The right to competent counsel does not require that a criminal defendant

develop and share a "meaningful relationship" with his attorney. Morris v. Slappy,

,

,

(1983); State v. Blankenship,

,

(12th 1995); State v. Burroughs, 5th Dist. Delaware No.

04CAC03018,

. In State v. Cowans,

, 1999-Ohio-

250,

(1999) the Court noted,

“A lawyer has a duty to give the accused an honest appraisal of his

case. * * * Counsel has a duty to be candid; he has no duty to be optimistic

when the facts do not warrant optimism.” Brown v. United States

(C.A.D.C. 1959),

(en banc), quoted in McKee v. Harris

(C.A.2, 1981),

. “‘If the rule were otherwise, appointed

counsel could be replaced for doing little more than giving their clients

honest advice.’” McKee,

, quoting McKee v. Harris

(S.D.N.Y. 1980),

.

Cowans,

,

,

.

{¶31} In a similar vein, it has been held that hostility, tension, or personal conflicts

between an attorney and a client that do not interfere with the preparation or presentation

of a competent defense are insufficient to justify a change in appointed counsel. See

State v. Henness,

,

(1997). Furthermore,

"[m]erely because appointed counsel's trial tactics or approach may vary from that which Muskingum County, Case No. CT2018-0014 11

appellant views as prudent is not sufficient to warrant the substitution of counsel.” State

v. Glasure,

,

(7th Dist. 1999); State v. Evans,

,

,

(7th Dist.); State v.

Newland, 4th Dist. Ross No. 02CA2666,

, ¶11.

{¶32} In Jones v. Estelle,

(5th Cir. 1978), the Fifth Circuit addressed

its habeas corpus petitioner’s claim that “his attorney’s impatience and stern demand for

a quick answer, when added to the threat of a life sentence if the case went to trial,

produced an involuntary plea.” Jones,

. The Fifth Circuit rejected its

petitioner’s claim, however, stating:

These allegations are not sufficient for us to find that the plea was

coerced. Trial counsel’s irritation and impatience, although certainly not

commendable, do not amount to mental coercion sufficient to overbear

Jones’ free will. Moreover, a plea is not involuntary solely because a

defendant pleads guilty out of a desire to limit the possible penalty.

[Citations omitted.] To establish coercion Jones must show that the fear of

the greater penalty destroyed his ability to weigh rationally, with aid of

counsel, the advantages of proceeding to trial against those of pleading

guilty. [Citation omitted.] There has been no showing that petitioner’s

guilty plea was coerced.

Jones,

. See also Rankins v. State,

Rankins argues that his plea was not voluntarily or intelligently made

because he was coerced by his counsel. Specifically, Rankins asserts his

counsel induced him to plead guilty by telling him that if he did not take the Muskingum County, Case No. CT2018-0014 12

plea bargain of eight years he could get the maximum sentence of thirty

years. * * * In regard to Rankins’s impression that his attorney wrongly

persuaded him to plead guilty, we find no suggestion that his attorney

threatened or provided improper inducements. It is obvious that Rankins’s

attorney gave him only advice as to what the situation could entail if he did

not plead. Advising a client of the possibility of receiving the maximum

sentence if the case goes to trial is not a form of coercion”; Simons v. State,

(Mo.App. 1986) (“movant first argues that his

counsel’s advice of a possible 100–year sentence coerced him into an

involuntary plea of guilty. * * * For counsel to predict the possibility of a

lengthy sentence following a jury trial does not amount to a coerced and

involuntary plea”).

(Miss.App. 2003). Accord, People v. Barnslater,

,

.

{¶33} In the case at bar, Curtis could have, but did not, dismiss his retained

counsel if he was dissatisfied with counsel’s advice. Curtis has failed in his initial burden

to submit evidentiary materials to establish his claim that he was coerced by counsel’s

candid appraisal of his chances at trial.

{¶34} The petition, the documentary evidence, the files, the transcript and the

records do not demonstrate that Curtis set forth sufficient operative facts to establish

substantive grounds for relief concerning counsel's effectiveness during plea

negotiations. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C.

2953.21(C). Muskingum County, Case No. CT2018-0014 13

b. Failure to investigate.

{¶35} Curtis next contends that his retained trial attorney did not properly

investigate his case. Specifically, Curtis attempts to argue that the trial court’s ruling on

his motion to suppress that challenged the search warrant was erroneous. Appellant’s

Brief at 17-20. Curtis also attacks the veracity of the victim.

{¶36} In the case at bar, the trial court found,

In contrast, the record shows that his defense attorney requested

and received discovery, negotiated with the Prosecutor's Office for a plea deal

with significantly less exposure and a joint recommendation of seven (7) years,

fought to suppress evidence for his client, hired an expert to review the

evidence, and argued at length on behalf of his client at sentencing.

Journal Entry, filed Feb 13, 2018 at 4.

{¶37} The right to competent counsel does not require that a criminal defendant

develop and share a "meaningful relationship" with his attorney. Morris v. Slappy,

,

,

(1983); State v. Blankenship,

,

(12th 1995); State v. Burroughs, 5th Dist. Delaware No.

04CAC03018,

.

{¶38} When there is no demonstration that counsel failed to research the facts or

the law or that counsel was ignorant of a crucial defense, a reviewing court defers to

counsel's judgment in the matter. State v. Clayton,

,

(1980), citing People v. Miller (1972),

,

,

; State v. Wiley, 10th Dist. No. 03AP-340, 2004- Ohio-1008, ¶ 21. Muskingum County, Case No. CT2018-0014 14

{¶39} Our review of the record in Curtis’ case demonstrates that his retained trial

counsel was thoroughly prepared. Curtis did not dismiss his retained counsel; nor did he

request the trial court appoint substitute counsel. Curtis has failed to submit any

documentary evidence or affidavits to substantiate his claim that trial counsel was

unprepared. As Curtis retained his trial attorney Curtis was free to discharge him if Curtis

felt he was not doing a complete and through job on Curtis’ behalf.

{¶40} The petition, the documentary evidence, the files, the transcript and the

records do not demonstrate that Curtis set forth sufficient operative facts to establish

substantive grounds for relief concerning counsel's effectiveness during plea

negotiations. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C.

2953.21(C).

2). Denial of discovery during the post-conviction appeal process.

{¶41} Curtis next contends that the trial court erred and abused its discretion in

not conducting discovery before denying his petition.

{¶42} There is no provision for conducting discovery in the post-conviction

process. State ex Rel. Love v. Cuyahoga County Prosecutor’s Office,

,

281,

,

. The power to conduct and compel discovery in

post-conviction is not included within a trial court’s statutorily defined authority.

{¶43} In State v. Conway, the Court of Appeals noted,

Because there is no federal constitutional right to a post-conviction

review process, Ohio’s post-conviction proceedings afford only a narrow

remedy strictly defined by statute and granting no rights to a petitioner

beyond those spelled out in R.C. 2953.21. State v. Campbell, Franklin Muskingum County, Case No. CT2018-0014 15

App. No. 03AP-147,

. While the statute explicitly

provides for appointment of counsel in post-conviction proceedings when

the petitioner has been sentenced to death, the statute nowhere provides

a right to funding or appointment of expert witnesses or assistance in a

post-conviction petition. State v. Tolliver, Franklin App. No. 04AP-591,

, citing State v. Smith (2000), Ninth Dist. App. 98CA-

007169, and State v. Hooks (1998), Second Dist. App. No. CA 16978.

10th Dist. Franklin No. 05A

. Denial of discovery before

dismissing a post-relief-conviction petition does not violate due process or equal

protection,

This same argument has been rejected by this and other Ohio

appellate courts. See Braden, at ¶ 40; Hessler, at ¶ 85;

; State v. Scudder (1998),

,

, appeal dismissed (1999),

,

;

State v. Coleman, Clark App. No.2001-CA-42,

, at ¶ 111-112,

discretionary appeal not allowed (2003),

,

;

State v. Hoffner, Lucas App. No. L-01-1281,

, at ¶ 36. See,

also, State ex rel. Love v. Cuyahoga Cty. Prosecutor’s Office (1999),

, 159,

, certiorari denied (2000),

,

,

(determining a defendant is not entitled to

discovery in post-conviction proceedings).

State v. Campbell, 10th Dist. Franklin No. 03AP-147,

. Accord,

State v. Elmore, 5th Dist. Licking No. 2005-CA-32,

. Muskingum County, Case No. CT2018-0014 16

{¶44} Further, Curtis has not demonstrated any prejudice by the court's failure to

grant him discovery. Curtis submitted dozens of pages in support of his petition for post-

conviction relief. It does not appear that Curtis' presentation of materials in support of his

petition was hampered in any way by the court's failure to allow him to conduct discovery.

State v. Ashworth, 5th Dist. Licking No. 99-CA-60,

(Nov 8, 1999); See

also, Williams v. Bagley,

(6th Cir. 2004).

CONCLUSION.

{¶45} As self-serving testimony, the trial court could give little or no weight to

Curtis contentions. See, State v. Calhoun,

,

(1999);State v. Kapper,

,

(1983) (letter or affidavit

from the court, prosecutors, or defense counsel alleging a defect in the plea process might

be sufficient to warrant a hearing, although defendant's own affidavit alleging same defect

would not, because the former are not self-serving declarations);State v. Elmore, 5th Dist.

No. 2005-CA-32,

. The judge who reviewed defendant's post-

conviction relief petition was the same judge who presided at the plea and sentencing of

Curtis. Thus, the trial judge was familiar with the underlying proceedings and was in the

best position to assess the credibility of Curtis. Calhoun, supra,

.

{¶46} The petition, the documentary evidence, the files, the transcript and the

records do not demonstrate that Curtis set forth sufficient operative facts to establish

substantive grounds for relief. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus;

see R.C. 2953.21(C).

{¶47} The trial court’s findings are supported by competent and credible evidence. Muskingum County, Case No. CT2018-0014 17

{¶48} For the forgoing reasons, Curtis’ First and Second Assignments of Error are

overruled. The judgment of the Muskingum County Court of Common Pleas is affirmed.

By Gwin, P. J.,

Delaney, J., and

Baldwin, J., concur