[Cite as State v. Whitman, 2019-Ohio-377.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :      JUDGES:
                                             :      Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :      Hon. W. Scott Gwin, J.
                                             :      Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
RICHARD S. WHITMAN                           :      Case No. 2018CA00134
                                             :
        Defendant-Appellant                  :      OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case. No. 2018CR0134




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   February 4, 2019




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     RICHARD S. WHITMAN, PRO SE
Prosecuting Attorney                                Inmate No 694-724
By: KRISTINE W. BEARD                               Belmont Correctional Institution
110 Central Plaza South, Suite 510                  P.O. Box 540
Canton, OH 44702                                    St. Clairsville, OH 43950
Stark County, Case No. 2018CA00134                                                         2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Richard S. Whitman, appeals the August 21, 2018

judgment entry of the Court of Common Pleas of Stark County, Ohio, denying his petition

for postconviction relief. Plaintiff-Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶ 2} On April 27, 2017, appellant was found guilty of one count of murder with a

firearm specification in violation of R.C. 2903.02 and 2941.145 and one count of having

weapons under disability in violation of R.C. 2923.13. By judgment entry filed May 5,

2017, the trial court sentenced appellant to an aggregate term of twenty-one years to life

in prison. His conviction was affirmed on appeal with a limited remand for resentencing.

State v. Whitman, 5th Dist. Stark No. 2017CA00079, 2017-Ohio-2924.1

       {¶ 3} On July 24, 2018, appellant filed a petition for postconviction relief, claiming

ineffective assistance of counsel. By judgment entry filed August 21, 2018, the trial court

denied the petition, finding appellant was "just requesting a second bite of the apple," and

it did not find any trial counsel deficiency.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                                I

       {¶ 5} "A TRIAL COURT ABUSES ITS DISCRETION WHEN IT FAILS TO

PROPERLY CONSIDER A PETITION FOR POST CONVICTION RELIEF."




1The opinion contains a very lengthy and thorough account of the facts. We hereby
incorporate the facts by reference.
Stark County, Case No. 2018CA00134                                                           3




                                              II

       {¶ 6} "DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE VIOLATED DUE

TO INEFFECTIVE ASSISTANCE OF COUNSEL."

                                              III

       {¶ 7} "DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE VIOLATED DUE

TO INNEFFECTIVE ASSISTANCE OF COUNSEL."

                                              IV

       {¶ 8} "DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE VIOLATED DUE

TO INNEFFECTIVE ASSISTANCE OF COUNSEL."

                                               I

       {¶ 9} In his first assignment of error, appellant claims the trial court abused its

discretion in failing to properly consider his petition for postconviction relief. We disagree.

       {¶ 10} It appears appellant is arguing the trial court should have afforded him an

evidentiary hearing. R.C. 2953.21 governs petition for postconviction relief. Subsection

(D) states the following in pertinent part:



              Before granting a hearing on a petition filed under division (A) of this

       section, the court shall determine whether there are substantive grounds for

       relief. In making such a determination, the court shall consider, in addition

       to the petition, the supporting affidavits, and the documentary evidence, all

       the files and records pertaining to the proceedings against the petitioner,

       including, but not limited to, the indictment, the court's journal entries, the
Stark County, Case No. 2018CA00134                                                         4


       journalized records of the clerk of the court, and the court reporter's

       transcript.



       {¶ 11} In State v. Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980), the

Supreme Court of Ohio held the following:



              Before a hearing is granted, the petitioner bears the initial burden in

       a post-conviction proceeding to submit evidentiary documents containing

       sufficient operative facts to demonstrate the lack of competent counsel and

       also that the defense was prejudiced by counsel's ineffectiveness.

              Broad assertions without a further demonstration of prejudice do not

       warrant a hearing for all post-conviction petitions.     General conclusory

       allegations to the effect that a defendant has been denied effective

       assistance of counsel are inadequate as a matter of law to impose an

       evidentiary hearing. See Rivera v. United States (C.A. 9, 1963), 318 F.2d

       606.



       {¶ 12} In its judgment entry filed August 21, 2018, the trial court denied appellant's

petition without hearing, stating the following:



              In this case, the Defendant's self-serving statements do not establish

       that counsel was ineffective and do not support granting a petition for post

       conviction relief.* * *From a review of the case, the Defendant is just
Stark County, Case No. 2018CA00134                                                         5


       requesting a second bite at the apple.           The Court did not find the

       Defendant's attorney's representation as deficient. It's always possible to

       second guess counsel, but often it is due to trial strategy.



       {¶ 13} Based upon our review of appellant's arguments, affidavit, and documents

in support of his petition for postconviction relief as discussed in the following

assignments of error, we find the trial court did not abuse its discretion in failing to hold

an evidentiary hearing.

       {¶ 14} Assignment of Error I is denied.

                                          II, III, IV

       {¶ 15} In his second, third, and fourth assignments of error, appellant claims his

rights were violated due to ineffective assistance of trial counsel. We disagree.

       {¶ 16} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. Appellant must establish the following:



              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
Stark County, Case No. 2018CA00134                                                           6


             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a

      reasonable probability that, were it not for counsel's errors, the result of the

      trial would have been different.



      {¶ 17} Appellant argues his trial counsel was deficient in failing to investigate and

present evidence of police misconduct (moving the body), failing to investigate, prepare,

and present evidence regarding potential testimony from the victim's son that would have

supported his claim of self-defense, and failing to bring forth exculpatory evidence (phone

records and text messages).

                        EVIDENCE OF POLICE MISCONDUCT

      {¶ 18} Appellant argues photographs admitted into evidence prove that the police

moved the victim's body. This action "altered the crime scene" which prohibited appellant

from presenting a complete defense at trial.

      {¶ 19} In his appellate brief, appellant argues the victim was shot three times, in

the head, chest, and arm. While appellant agrees with the state as to "how the bullet

angle was," he disagrees with the order of the three shots and challenged how many feet

away the victim was from appellant when he was actually shot. Appellant argues his trial

counsel failed to investigate these issues and should have hired an expert to challenge

the state's theories. Appellant does not elaborate as to how the lack of a defense expert

prejudiced his trial or how a defense expert would have changed the result of the trial.

      {¶ 20} In his affidavit attached to his petition, appellant averred his trial counsel did

not pursue the issue of the moved body at trial. The officers on the scene were wearing
Stark County, Case No. 2018CA00134                                                       7


body cams. The body cam videos were played for the jury. According to appellant's

affidavit, the videos showed the officers moving the body. The jury was able to see for

themselves that the officers had moved the body and during deliberations, could have

considered whether the moving of the body had any bearing on the case. Furthermore,

appellant testified in his own defense and did not raise the issue of the body's placement.

                            TESTIMONY OF VICTIM'S SON

       {¶ 21} Appellant argues his trial counsel should have presented evidence of

statements made by the victim's son Nicholas because the statements would have

supported his claim of self-defense.

       {¶ 22} In his appellate brief, appellant cites the report of Patrolman Scott Jones

who interviewed Nicholas following his father's death. This report was also attached to

appellant's petition for postconviction relief. In the report, Patrolman Jones indicated

Nicholas stated his father and appellant had bad blood between them and "[i]t appeared

that [Nicholas] was not surprised by the fact the suspect had killed his father." Appellant

argues this information, if presented to the jury, would have supported his claim of self-

defense. The information would have shown that the victim behaved aggressively toward

appellant. Appellant does not elaborate as to how the lack of Nicholas's testimony

prejudiced his trial or how the testimony would have changed the result of the trial.

       {¶ 23} In his affidavit, appellant averred his trial counsel did not pursue the

statements made by Nicholas.       Appellant stated Nicholas would have been able to

"provide insight into why his father had such a hostile attitude toward me from our first

meeting as well as what he knew about his father's demeanor and what his father had

told him about why he was going to confront me." It is very possible that Nicholas's
Stark County, Case No. 2018CA00134                                                          8


statements could have been more inculpatory than exculpatory. This court must accord

deference to defense counsel's strategic choices made during trial and "requires us to

eliminate the distorting effect of hindsight." State v. Post, 32 Ohio St.3d 380, 388, 513

N.E.2d 754 (1987). Furthermore, appellant testified and raised the issue of the "bad

blood" between him and the victim. He was able to advance his self-defense claim by

testifying that the victim was the aggressor and he was fearful of the victim.

                               EXCULPATORY EVIDENCE

       {¶ 24} Appellant argues his trial counsel failed to present evidence of the phone

calls and/or text messages between his sister and the victim.

       {¶ 25} Appellant argues the evidence would have shown that his sister "agitated"

the entire situation and incited violence. Again, appellant argues his trial counsel should

have hired an expert to examine the phones of his sister and the victim. Appellant does

not elaborate as to how the lack of a defense expert and the phone evidence prejudiced

his trial or how they would have changed the result of the trial.

       {¶ 26} In his affidavit, appellant averred his sister's agitation of the victim was the

proximate cause of the victim coming over and attacking him violently and the phone

records would have proven that. However, appellant did not indicate the relevance of this

argument. Appellant's sister testified for the defense. She explained how she contacted

the victim several times during the day and asked him to come over to help her with

appellant because appellant was drunk and causing problems and she was concerned

that he was going to commit suicide. On direct she testified how after the victim arrived,

he pinned her brother against the bedroom wall and was screaming at him and head-

butting him. At one point the victim was on top of appellant and had his hand around
Stark County, Case No. 2018CA00134                                                         9


appellant's throat. The two then separated for several minutes with appellant upstairs

and the victim downstairs. When the victim went back upstairs, she did not hear any

arguing or words before appellant shot the victim. This testimony helped to advance

appellant's claim of self-defense and appellant's fear of the victim.

       {¶ 27} We note each of appellant's arguments on ineffective assistance of counsel

could have been raised on direct appeal and are therefore barred under the doctrine of

res judicata. "Under the doctrine of res judicata, a final judgment of conviction bars the

convicted defendant from raising and litigating in any proceeding, except an appeal from

that judgment, any defense or any claimed lack of due process that was raised or could

have been raised by the defendant at the trial which resulted in that judgment of conviction

or on an appeal from that judgment." State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph nine of the syllabus. See Grava v. Parkman Twp., 73 Ohio St.3d 379,

653 N.E.2d 226 (1995).

       {¶ 28} Appellant failed in his burden "to submit evidentiary documents containing

sufficient operative facts to demonstrate the lack of competent counsel and also that the

defense was prejudiced by counsel's ineffectiveness" to warrant an evidentiary hearing.

Appellant did not present substantive grounds for relief.

       {¶ 29} Upon review, we find the trial court did not err or abuse its discretion in not

holding an evidentiary hearing and in denying appellant's petition for postconviction relief.

       {¶ 30} Assignments of Error II, III, and IV are denied.

       {¶ 31} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.
Stark County, Case No. 2018CA00134   10


Delaney, P.J. and

Gwin, J. concur.




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