[Cite as State v. Lavette,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108997 v. :

CARL O. LAVETTE, III :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 19, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-616035-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.

Mark A. Stanton, Cuyahoga County Public Defender, and Paul A. Kuzmins, Assistant Public Defender, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Carl O. Lavette, III, appeals the trial court’s

decision denying his petition for postconviction relief without conducting an

evidentiary hearing. For the reasons that follow, we affirm. In 2017, Lavette was convicted of multiple counts of aggravated

robbery, robbery, carrying a concealed weapon, possession of criminal tools, having

a weapon while under disability, and several firearm specifications accompanying

the base offenses. He was sentenced to 24 years in prison. This court affirmed his

convictions and sentence. See State v. Lavette, 8th Dist. Cuyahoga No. 103169,

, appeal not accepted,

,

,

.

While his direct appeal was pending, Lavette timely filed a petition for

postconviction relief contending that (1) “newly discovered previously unavailable

evidence of actual innocence renders [his] conviction and sentence void or

voidable”; and (2) “witness recantation demonstrates that [his] conviction is based

on insufficient evidence and violates his right to due process and thereby renders his

conviction and sentence void or voidable.” In support, Lavette attached to his

petition two handwritten statements purportedly from his codefendant, Christopher

Everette (“Everette”), in which he claims he gave perjured testimony at trial.

The trial court denied Lavette’s petition without conducting a hearing.

In its finding of fact and conclusions of law, the court concluded that Lavette’s

petition asserted claims of “actual innocence,” which is not a cognizable

constitutional claim for relief pursuant to R.C. 2953.21.

Lavette now appeals, raising two assignments of error for our review. I. Standard of Review

A petition for postconviction relief is a collateral civil attack on a

criminal judgment, not an appeal of the judgment. State v. Bell, 8th Dist. Cuyahoga

No. 105000,

. Postconviction relief is not a constitutional

right; it is a narrow remedy that gives the petitioner no more rights than those

granted by statute. State v. Calhoun,

,

(1999).

It is a means to resolve constitutional claims that cannot be addressed on direct

appeal because the evidence supporting the claims is outside the record. State v.

Milanovich,

,

(1975). The petitioner must state in

his petition all the grounds for relief on which he relies, and waives all other grounds

not identified. R.C. 2953.21(A)(4). To prevail on a petition for postconviction relief,

the petitioner must establish a violation of his constitutional rights that renders the

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

A trial court’s decision granting or denying a postconviction petition

filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State

v. Gondor,

,

,

.

II. Consolidation of Claims

In his first assignment of error, Lavette contends that the trial court

erred in combining his individual claims for relief into an omnibus claim of actual

innocence to avoid holding an evidentiary hearing. According to Lavette, the trial

court erred when it did not address each individual claim for relief. Lavette attached to his petition two handwritten statements

purportedly from his codefendant, Everette. The first document is an affidavit

notarized on February 16, 2018, in which Everette averred that he testified

untruthfully at Lavette’s trial to get less time in prison. He stated that Lavette was

not involved in the robberies and that the firearms he used in the robberies were toy

guns. The second document attached to Lavette’s petition is another handwritten

statement signed by Everette. Although a notary public signed the document and

affixed the notarial seal, it does not contain a date when the document was signed

or notarized. In that statement, Everette claimed that he testified untruthfully to

achieve a better plea deal and less prison time. He further claimed that Lavette was

not involved in the robberies and that the guns used in the robberies were fake.

In his postconviction claims for relief, Lavette contends that newly

discovered evidence reveals that he is actually innocent. The newly discovered

evidence is the two statements by Everette recanting his trial testimony.

Accordingly, because the two grounds for relief are inextricably interrelated, it was

not error for the trial court to combine the two grounds for relief in ruling on

Lavette’s petition.

Lavette contends that although he is actually innocent and believes

actual innocence should be a cognizable claim in postconviction proceedings, his

constitutional claim is purportedly grounded on due process. He contends that his

due process rights were violated because his conviction was secured with coerced

and perjured testimony; thus, his conviction is based on insufficient evidence. However, a violation of due process is not implicated merely because

a state’s trial witness recants his trial testimony. A conviction based upon perjured

testimony does not implicate constitutional rights absent a showing that the state

knew of the perjury. State v. Blalock, 8th Dist. Cuyahoga No. 100194, 2014-Ohio-

934, ¶ 50, citing State v. Kimble, 8th Dist. Cuyahoga No. 54154,

(Sept. 22, 1988). Moreover, courts are to examine recantation of prior

testimony with utmost suspicion. State v. Gray, 8th Dist. Cuyahoga No. 82841,

.

Everette does not contend in either his affidavit or statement that the

prosecution coerced his trial testimony or that the prosecution had knowledge he

was offering perjured testimony at trial. Accordingly, absent any averment that the

state had knowledge of Everette’s untruthful testimony, Lavette’s conviction based

on alleged perjured testimony does not amount to a due process violation.

Rather, we find that the trial court was correct in its conclusion that

Lavette’s petition for postconviction relief is actually premised on actual innocence.

A claim of actual innocence is not itself a constitutional claim, nor does it constitute

a substantive ground for postconviction relief. State v. Apanovitch,

,

,

, citing Herrera v. Collins,

,

,

(1993). Therefore, Lavette’s “actual innocence”

claim fails to raise “a denial or infringement of rights under the Ohio Constitution

or the Constitution of the United States” as required by R.C. 2953.21. Accordingly, we find that the trial court did not abuse its discretion in

consolidating Lavette’s individual claims for relief because whether reviewed

together or separately, the grounds for relief as presented are not cognizable claims

for relief under R.C. 2953.21. The first assignment of error is overruled.

Because Lavette did not raise any recognized constitutional claim or

substantive ground for relief, the trial court did not abuse its discretion in not

holding an evidentiary hearing on his petition. See State v. Abdussatar, 8th Dist.

Cuyahoga No. 92439,

, ¶ 15 (the trial court does not abuse its

discretion in dismissing a postconviction petition without a hearing if the petitioner

fails to set forth sufficient operative facts to establish substantive grounds for relief).

Accordingly, his second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

SEAN C. GALLAGHER J., CONCURS; EILEEN T. GALLAGHER, A.J., CONCURS WITH SEPARATE OPINION EILEEN T. GALLAGHER, A.J., CONCURRING:

I concur with the majority’s determination that (1) Lavette’s “actual

innocence” claim fails to raise “a denial or infringement of rights under the Ohio

Constitution or the Constitution of the United States” as required by R.C. 2953.21,

and (2) a violation of due process is not implicated merely because a state’s trial

witness recants his trial testimony. I write separately, however, to further address

Lavette’s assertion that “witness recantation demonstrates that [his] conviction is

based on insufficient evidence and violates his right to due process and thereby

renders his conviction and sentence void or voidable.”

There is no dispute that “the denial of due process may be a sufficient

basis for a petition for postconviction relief.” State v. Evans, 8th Dist. Cuyahoga No.

72330,

, 13 (Oct. 29, 1998). However, “to prevail on a

postconviction claim, the petitioner must demonstrate a denial or infringement of

his rights in the proceedings resulting in his conviction that rendered the conviction

void or voidable under the Ohio Constitution or the United States Constitution.”

(Emphasis added.) State v. Campbell, 1st Dist. Hamilton No. C-950746,

, 7 (Jan. 8, 1997). In other words, R.C. 2953.21 focuses on whether a

constitutional violation occurred during the underlying proceedings, such as the

trial that led to Lavette’s convictions in this case. See State v. Powell,

,

(1st Dist. 1993) (“[T]he violation upon which the

petitioner relies to establish his right to relief must be of constitutional dimension, and it must have occurred at the time the petitioner was tried and convicted of a

criminal offense.”).

Applying the foregoing, it is my position that a sufficiency of the

evidence challenge does not present a viable claim under R.C. 2953.21 where, as

here, it relies exclusively on evidence outside the record of the underlying

proceedings. Although Lavette’s second ground for relief is premised on principles

of due process, the evidence supporting his position does not establish substantive

grounds for postconviction relief because “‘it does not, standing alone, demonstrate

a constitutional violation in the proceedings that actually resulted in the

conviction.’” Evans at 13, quoting

. In short, because a sufficiency

claim challenges the quantum of proof adduced at trial, it cannot rely on evidence

outside the record. State v. Campbell, 1st Dist. Hamilton No. C-950746,

, 14 (Jan. 8, 1997) (“Evidence dehors the record is * * * not germane

to the constitutional issues presented by [petitioner]’s sufficiency challenges.”).

In my view, Lavette’s argument and reliance on Everette’s recantation

was better suited for a motion for new trial pursuant to Crim.R. 33. Nevertheless,

because Lavette’s petition and supporting documents did not adequately

demonstrate sufficient operative facts establishing substantive grounds for relief, he

was not entitled to a hearing, and the trial court did not err in denying the petition

without a hearing. Accordingly, I join the majority’s decision to overrule Lavette’s

first and second assignments of error.