[Cite as State v. Smith, 2019-Ohio-4483.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 28127
                                                 :
 v.                                              :   Trial Court Case No. 2016-CR-487/2
                                                 :
 SHAWN D. SMITH, JR.                             :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                            OPINION

                           Rendered on the 1st day of November, 2019.

                                            ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio
45429
      Attorney for Defendant-Appellant

                                            .............




WELBAUM, P.J.
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       {¶ 1} Defendant-appellant, Shawn D. Smith, Jr., appeals from the judgment of the

Montgomery County Court of Common Pleas dismissing his petition for post-conviction

relief. For the reasons outlined below, the judgment of the trial court will be affirmed.



                            Facts and Course of Proceedings

       {¶ 2} On March 16, 2017, a jury found Smith guilty of two counts of felony murder,

six counts of felonious assault, one count of discharging a firearm on or near a prohibited

premises, and several firearm specifications. Following a bench trial, the trial court also

found Smith guilty of having weapons while under disability. After his conviction, Smith

received an aggregate sentence of 37 years to life in prison for his offenses. Smith then

filed a direct appeal from his conviction. On June 29, 2018, this court affirmed Smith’s

conviction in State v. Smith, 2d Dist. Montgomery No. 27585, 2018-Ohio-2567.

       {¶ 3} On June 14, 2018, while Smith’s direct appeal was pending, Smith filed a pro

se petition for post-conviction relief. In support of his petition, Smith alleged that the trial

court’s bailiff committed misconduct during deliberations by having a discussion with the

jury about the jury instructions. Specifically, Smith alleged that the bailiff told his trial

counsel that the jurors had indicated they could not reach a verdict because the jury

instructions were confusing. According to Smith, the bailiff then told his trial counsel that

she advised the jury that “the answers” were on a certain page of the jury instructions.

Smith asserted that his trial counsel notified him about the bailiff’s statements to the jury

“days after” his trial. Smith also alleged that certain blood evidence was not tested and

that the trial court should have given a jury instruction pertaining to the lack of testing.

Smith attached no supporting affidavits to his petition nor did he provide any evidence in
                                                                                          -3-


support of the claims raised therein.

       {¶ 4} On August 24, 2018, a visiting judge who had been assigned to the case

issued a judgment entry dismissing Smith’s petition for post-conviction relief.            In

dismissing the petition, the visiting judge found that Smith had provided no evidence to

support the alleged communication between the trial court’s bailiff and the jury. The

visiting judge also found that even if there were evidence of the alleged communication,

Smith failed to provide the court with any evidence establishing that the communication

prejudiced him. The visiting judge further found that any issue regarding the blood

testing was a matter that should have been raised in Smith’s direct appeal and was

therefore barred by res judicata.

       {¶ 5} Smith now appeals from the dismissal of his petition for post-conviction relief,

raising one assignment of error for review.



                                    Assignment of Error

       {¶ 6} Under his sole assignment of error, Smith contends that the trial court erred

in dismissing his petition for post-conviction relief without holding an evidentiary hearing.

In support of this claim, Smith does not raise any argument with regard to the trial court’s

decision on the blood testing issue. Rather, Smith only argues that the allegation of

misconduct by the bailiff in his petition constituted substantial grounds for relief that

warranted an evidentiary hearing. We disagree.

       {¶ 7} “ ‘[A] criminal defendant seeking to challenge his conviction through a petition

for post[-]conviction relief is not automatically entitled to a hearing.’ ” State v. Clark,

2017-Ohio-120, 80 N.E.3d 1251, ¶ 19 (2d Dist.), quoting State v. Calhoun, 86 Ohio St.3d
                                                                                            -4-


279, 282, 714 N.E.2d 905 (1999). Instead, the trial court must first determine whether

there are substantive grounds for relief, i.e., “whether there are grounds to believe 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.’ ”

Calhoun at 282-283, quoting R.C. 2952.21(A); R.C. 2953.21(D). Accord State v.

Stoermer, 2d Dist. Clark No. 2019-CA-23, 2019-Ohio-3804, ¶ 16.               “[N]o hearing is

necessary, if the petition and its supporting evidentiary documents do not contain

operative facts that would, if proven, establish a substantive ground for relief.” State v.

Kuck, 2d Dist. Darke No. 2017-CA-15, 2018-Ohio-3290, ¶ 6, citing State v. Armstrong, 56

Ohio App.3d 105, 108, 564 N.E.2d 1070 (8th Dist.1988). Therefore, in order to be

entitled to a hearing, the petitioner bears the initial burden to provide evidentiary materials

containing sufficient operative facts to demonstrate a claim of constitutional error. State

v. Wood, 2d Dist. Clark No. 2018-CA-1, 2018-Ohio-3204, ¶ 23, citing State v. Kapper, 5

Ohio St.3d 36, 38-39, 448 N.E.2d 823 (1983).

       {¶ 8} “Broad assertions of prejudice and general conclusory allegations * * * are

an inadequate basis upon which to impose an evidentiary hearing.” State v. Padgett, 2d

Dist. Montgomery No. 17658, 1999 WL 1127398, *3 (Dec. 10, 1999), citing Kapper at 38

and State v. Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980). Accord State v.

Jordan, 2d Dist. Montgomery No. 27208, 2017-Ohio-7342, ¶ 12 (“[b]road conclusory

allegations are insufficient, as a matter of law, to require a hearing”). When a petition

does not include any affidavits or other evidentiary materials supporting the claims in the

petition, the trial court is authorized to dismiss the petition without a hearing. State v.

Wilkins, 127 Ohio App.3d 306, 310, 712 N.E.2d 1255 (2d Dist.1998), citing State v.
                                                                                             -5-


Pankey, 68 Ohio St.2d 58, 59, 428 N.E.2d 413 (1981). See also Kapper at 39 and Kuck

at ¶ 17-19.

       {¶ 9} A trial court’s decision granting or denying a petition for post-conviction relief

should be upheld absent an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion “most often involves an

‘unreasonable’ decision that is not supported by a sound reasoning process.” State v.

Mackey, 2018-Ohio-516, 106 N.E.3d 241, ¶ 8 (2d Dist.), citing Gondor at ¶ 58.

       {¶ 10} In this case, the allegation of the bailiff’s misconduct raised in Smith’s

petition for post-conviction relief is based on nothing more than Smith’s broad, conclusory

allegation that the bailiff had an improper conversation with the jurors about the jury

instructions. Smith’s petition does not include any affidavit or other evidence supporting

the allegation. The allegation is not even based on Smith’s own personal knowledge, as

it is based on a double hearsay statement that Smith allegedly received from his trial

counsel.      Moreover, even if Smith had provided evidence of the bailiff’s alleged

communication with the jurors, Smith’s petition does not set forth any operative facts

establishing how he was prejudiced by the communication.

       {¶ 11} For the foregoing reasons, the trial court reasonably concluded that Smith’s

petition for post-conviction relief failed to set forth sufficient operative facts demonstrating

substantive grounds for relief. Therefore, the trial court did not abuse its discretion in

dismissing Smith’s petition without holding an evidentiary hearing.

       {¶ 12} Smith’s assignment of error is overruled.



                                         Conclusion
                                                                                       -6-


       {¶ 13} Having overruled Smith’s sole assignment of error, the judgment of the trial

court is affirmed.

                                     .............



DONOVAN, J. and TUCKER, J., concur.




Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Charles M. Blue
Hon. Dale A. Crawford
