State v. Harris

The discretionary appeal is allowed.

The judgment of the court of appeals is reversed on the authority of State v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905.

dissenting. I respectfully dissent. The state argues that the court of appeals erroneously relied on State v. Swortcheck (1995), 101 Ohio App.3d 770, 656 N.E.2d 732, when it should have relied on State v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905. Swortcheck held that courts should accept as true affidavits in support of a petition for post-conviction relief when deciding whether to hold a hearing. But this court recently held in Calhoun that, when considering whether to hold a hearing on a petition, a trial court may discount such affidavits under certain circumstances.

Though the court of appeals here did cite Swortcheck and not Calhoun, it nevertheless explicitly acknowledged a trial court’s power to discount affidavits as set forth in Calhoun. The appeals court grounded its decision to reverse on several of the factors enumerated in Calhoun, such as whether the judge reviewing a post-conviction relief petition is the same judge who presided at trial, whether the affidavits contain or rely on hearsay, and whether the affiants are relatives of the petitioner or other interested persons. Id. at 285, 714 N.E.2d at 911-912. The court of appeals even cited the case from which Calhoun adopted that list of factors, State v. Moore (1994), 99 Ohio App.3d 748, 651 N.E.2d 1319. Moreover, the Calhoun factors not mentioned by the court of appeals, namely, whether the language of the affidavits is identical or otherwise indicates that they *320were drafted by the same person and whether the affidavits contradicted evidence proffered by the defense at trial, do not appear to tip the balance in favor of discounting these affidavits. The appellate court’s discussion of the affidavits suggests that they varied in content and contained information that would not likely have been contradicted by the defense at trial. Calhoun mentions internal inconsistency in an affidavit, as well as inconsistency between an affidavit and any trial testimony by the same witness, as factors tending to indicate weakness in an affidavit’s credibility. But the affiants here did not testify at trial, and there is no indication that the affidavits were internally inconsistent.

Thus, the court of appeals correctly analyzed the issue despite having cited Swortcheck and not Calhoun. I would, therefore, affirm the judgment of the court of appeals.