[Cite as State v. Baughman, 2010-Ohio-4951.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 1-10-34

        v.

JESSICA BAUGHMAN,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR2009 0055

                                    Judgment Affirmed

                          Date of Decision: October 12, 2010




APPEARANCES:

        Eric J. Allen for Appellant

        Jana E. Emerick for Appellee
Case No. 1-10-34


WILLAMOWSKI, P.J.

      {¶1} Defendant-appellant Jessica Baughman (“Baughman”) brings this

appeal from the judgment of the Court of Common Pleas of Allen County denying

her petition for post-conviction relief.     For the reasons set forth below, the

judgment is affirmed.

      {¶2} On February 12, 2009, the Allen County Grand Jury issued an

indictment against Baughman for one count of child endangering and one count of

obstructing justice as a result of the death of her son. A bench trial was held on

June 29, 2009, and the trial court found Baughman guilty of both counts. The trial

court then sentenced Baughman to a total prison term of eight years. On July 21,

2009, Baughman filed an appeal of that judgment.          This court affirmed the

judgment of the trial court on March 29, 2010.

      {¶3} On February 22, 2010, Baughman filed a petition for post-conviction

relief. This petition was overruled without a hearing on April 7, 2010. Baughman

appeals from that judgment and raises the following assignments of error.

                           First Assignment of Error

       The trial court erred in finding that defense counsel provided
       effective assistance to [Baughman] under the Sixth Amendment
       to the United States Constitution made applicable to the states
       by the Fourteenth Amendment.




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                           Second Assignment of Error

       The trial court erred in denying the post-conviction petition
       without holding an evidentiary hearing.

       {¶4} Baughman argues in the first assignment of error that she was

denied effective assistance of counsel because her counsel failed to investigate,

prepare and present the defense of duress. “Reversal of convictions on ineffective

assistance requires the defendant to show ‘first that counsel’s performance was

deficient and, second that the deficient performance prejudice the defense so as to

deprive the defendant of a fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002-

Ohio-3751, ¶105, 772 N.E.2d 81. The defendant must show that there was a

reasonable probability that but for counsel’s error, the result of the trial would

have been different. Id. at ¶108.

       {¶5} Duress is an affirmative defense and as such, Baughman would

have the burden of proving the defense. State v. Cross (1979), 58 Ohio St.2d 482,

391 N.E.2d 319. Baughman would have to prove that the force which compelled

the criminal contact was 1) an immediate and imminent threat of serious bodily

harm, 2) present throughout the time period of the crime, and 3) could not

reasonably be avoided. Id. Fear of future harm is not sufficient to prove the

affirmative defense of duress. State v. Good (1960), 110 Ohio App. 415, 165

N.E.2d 28.




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      {¶6} In order for Baughman’s counsel to be ineffective, she would need

to show that had counsel presented the defense, the outcome of the trial would

have likely been different. Baughman argues that since counsel only met with her

four times, failed to discuss the psychological evaluation with her, and failed to

discuss trial strategy with her, counsel was ineffective. She claims that had

counsel investigated, counsel would have discovered her prior history of

attempted suicides, bad relationships and depression and would have concluded

that Baughman’s actions were the result of extreme fear of Jacob Jones (“Jones”).

However, a review of the record indicates that a defense of duress was not

supported by the facts of the case. Jones beat her child over a period of a week

and left him unconscious without medical treatment for more than a day.

Baughman did not seek medical treatment for a long period of time. When the

police arrived to investigate the call to St. Rita’s Medical Center concerning an

unconscious child, Baughman lied to them as to what happened. Baughman went

with the paramedics to the hospital and repeatedly lied when questioned about

what happened to the child. It was not until the child was at the hospital and the

police confronted her with the injuries to the child that she finally admitted what

Jones had done. She also admitted that the acts occurred in her presence, that she

did nothing to stop him, and she did not actively seek medical help for her son.

Baughman does not claim that Jones threatened her with serious bodily injury or



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that she was unable to contact the police or a doctor for help. Thus, her claim of

duress would not have been supported by the facts. Baughman’s counsel was not

ineffective for failing to present the defense as it would not have changed the

outcome of the trial.

       {¶7} Additionally, the claim of ineffective assistance of counsel could

have been raised on direct appeal, but was not. Thus, it is barred by 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.        As stated in 18 American
        Jurisprudence 2d 505, Section 33:

        ‘Just as the petitioner’s knowledge, at the time of trial, or the
        error of fact relied upon, or his fault in not discovering such
        error previously, will bar relief under a common-law writ of
        error coram nobis, such factors will also bar a comparable
        statutory (postconviction) remedy.’

State v. Perry (1967), 10 Ohio St.2d 175, 180-81, 226 N.E.2d 104. This doctrine

includes all issues that were either raised or could have been raised on direct

appeal. Grava v. Parkman (1995), 73 Ohio St.3d 379, 653 N.E.2d 226. The

alleged errors that Baughman claims all arose from the trial and should have been

raised on the direct appeal. A review of the record indicates that Baughman had

different trial and appellate counsel. Thus there is no reason that the alleged


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ineffective assistance of counsel could not have been raised. Since the claim of

ineffective assistance of counsel was not previously raised, it cannot be raised in a

petition for post-conviction relief. For these reasons, the first assignment of error

is overruled.

       {¶8} In the second assignment of error, Baughman alleges that the trial

court erred in denying her petition for post-conviction relief without holding an

evidentiary hearing. Before the trial court holds a hearing on a petition for post-

conviction relief, the court must first determine if there are substantive grounds

for the relief. R.C. 2953.21(C).      The trial court is to consider the petition,

supporting affidavits, documentary evidence, and all files and records pertaining

to the proceedings. Id. If the trial court finds no basis for the hearing, it can

dismiss the petition and make findings of fact and conclusions of law regarding

the dismissal. Id. In addition, no hearing is required for claims barred by the

doctrine of res judicata. State v. Maag, 3d Dist. No. 5-08-35, 2009-Ohio-90, ¶15.

A review of the record in this case reveals that the trial court considered the

substantive grounds of the claim. The trial court then made findings of fact and

conclusions of law indicating that no prejudicial error occurred and that the claim

of ineffective assistance of counsel was barred by the doctrine of res judicata.

Since these findings are supported by the record, the trial court did not err in




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denying a hearing on the petition for post-conviction relief.     The second

assignment of error is overruled.

       {¶9} Having found no error prejudicial to Baughman, the judgment of the

Court of Common Pleas of Allen County is affirmed.

                                                           Judgment Affirmed

ROGERS, J., concurs.

PRESTON, J., concurs in Judgment Only.

/jlr




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