[Cite as State v. Blankenburg, 2012-Ohio-6175.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Respondent-Appellee,                      :     CASE NO. CA2012-04-088

                                                  :           OPINION
   - vs -                                                      12/28/2012
                                                  :

MARK E. BLANKENBURG, M.D.,                        :

        Petitioner-Appellant.                     :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2009-03-0368



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for respondent-appellee

Fred S. Miller, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011 and Christopher
J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for petitioner-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Mark E. Blankenburg, M.D., appeals the decision of the

Butler County Court of Common Pleas denying his petition for postconviction relief ("PCR").

        {¶ 2} In October 2009, appellant, a pediatrician, was convicted by a jury of various

sexual offenses involving his minor patients. This court affirmed the convictions on March

26, 2012. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289 (12th Dist.). On
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November 20, 2010, appellant filed a petition for PCR with the trial court pursuant to R.C.

2953.21, asserting that his Sixth Amendment right to a jury trial had been violated due to

juror bias.1

        {¶ 3} The state moved for summary judgment on December 20, 2010, arguing that

the claim of juror bias was not tenable under the "aliunde rule." Attached to appellant's

memorandum in opposition to summary judgment were two affidavits from coworkers of the

allegedly biased juror, T.M. According to the affidavits, T.M. had made statements that (1)

her son had been a patient of appellant's; (2) she wanted to be a juror in the case so that she

could see appellant "fry;" and (3) she wanted to be the jury foreman so that she could deliver

the guilty verdict. In its reply brief, the state, again, argued that this information was barred

by the "aliunde rule" but also asserted that the averments in the affidavits were inadmissible

hearsay.

        {¶ 4} On April 5, 2012, the trial court filed an "Order Denying Petition for Post

Conviction Relief," granting the state's motion for summary judgment and denying appellant's

petition without a hearing. In its order, the trial court found that appellant's claim was barred

by the doctrine of res judicata. Appellant appeals the trial court's decision, raising a single

assignment of error:

        {¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF [APPELLANT] WHEN

IT DISMISSED HIS PETITION FOR POST-CONVICTION RELIEF.

        {¶ 6} In his sole assignment of error, appellant argues that the trial court improperly

granted the state's motion for summary judgment and dismissed his PCR petition on res

judicata grounds because his petition was supported by material evidence outside the record




1. Appellant also asserted a claim that his Sixth Amendment rights were violated due to ineffective assistance of
counsel. This claim was later dismissed with prejudice by appellant and is not before this court.
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which was not known to appellant during trial or at the time of his direct appeal.2 In its

response, the state argues that the trial court was correct in applying the doctrine of res

judicata to this case but contends that, even if res judicata does not apply, the trial court

ruling should still stand, as the trial court ruled on the merits of the petition by finding that the

affidavits supporting the petition contained inadmissible hearsay and are prohibited by

Evid.R. 606(B).

        {¶ 7} "A prosecuting attorney may move for summary judgment in postconviction

proceedings pursuant to R.C. 2953.21(D)[.]" State v. Benge, 12th Dist. No. CA97-08-163,

1998 WL 204941, * 3 (Apr. 27, 1998). If a motion for summary judgment is made, the trial

court must satisfy the procedural requirements of Civ.R. 56 by reviewing the pleadings,

affidavits, files, and other records to determine whether genuine issues of material fact exist

and whether a substantial constitutional issue is established. Id., citing State v. Milanovich,

42 Ohio St.2d 46, 51-52 (1975). "Summary judgment in favor of the state and against a

petitioner in postconviction proceedings is proper under Civ.R. 56 when (1) the state is

entitled to judgment as a matter of law, (2) the state points to affirmative evidence showing

no genuine issues as to any material fact, and (3) reasonable minds could come to but one

conclusion, which is adverse to the [petitioner] against whom the motion is made, who is

entitled to have the evidence construed most strongly in his favor." Id. at * 4, citing State v.

DePew, 97 Ohio App.3d 111, 113 (12th Dist.1994).

        {¶ 8} PCR petitions are governed by R.C. 2953.21, which states, in pertinent part:

                 (A)(1) Any person who has been convicted of a criminal offense *
                 * * and who claims that there was such a denial or infringement
                 of the person's rights as to render the judgment void or voidable

2. Appellant also contends that the trial court could not sua sponte raise the issue of res judicata, as it is an
affirmative defense that must be raised in the answer or waived. However, pursuant to the Ohio Supreme Court
in State v. Lester, 41 Ohio St.2d 51, 55 (1975), "if the trial court finds, on the facts of a case, that a petitioner's
claim was fully litigated at trial or upon appeal, or that the claim could have been fully litigated in an appeal, the
court can summarily dismiss the claim as barred by res judicata." As such, we find that the trial court was
permitted to raise the issue of res judicata sua sponte as to appellant's petition.
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              under the Ohio Constitution or the constitution of the United
              States may file a petition in the court that imposed sentence,
              stating the grounds for relief relied upon, and asking the court to
              vacate or set aside the judgment or sentence or to grant other
              appropriate relief.

       {¶ 9} A postconviction proceeding is not an appeal of a criminal conviction, but a

collateral civil attack on a criminal judgment. State v. Calhoun, 86 Ohio St.3d 279, 281,

1999-Ohio-102; State v. Bell, 12th Dist. No. CA2001-08-197, 2002-Ohio-1341, ¶ 5. Under

R.C. 2953.21, a criminal defendant challenging his conviction through a PCR petition is not

automatically entitled to a hearing. Calhoun at 282; State v. Hicks, 12th Dist. No. CA2004-

07-170, 2005-Ohio-1237, ¶ 9. A trial court properly denies a PCR petition without a hearing if

the supporting affidavits, the documentary evidence, the files, and the records of the case do

not demonstrate that the petitioner set forth sufficient operative facts to establish substantive

grounds for relief. Hicks at ¶ 9; State v. Jackson, 64 Ohio St.2d 107, 110 (1980). The

decision to grant or deny an evidentiary hearing is left to the sound discretion of the trial

court. Hicks at ¶ 9; Calhoun at 284.

                                        Res Judicata

       {¶ 10} A trial court may dismiss a PCR petition without a hearing on the basis of the

doctrine of res judicata. State v. Lindsey, 12th Dist. No. CA2002-02-002, 2003-Ohio-811, ¶

21; State v. Perry, 10 Ohio St.2d 175, 179 (1967). "Under the doctrine of res judicata, a final

judgment of conviction bars a convicted defendant who was represented by counsel 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. Flanklin, 12th Dist. No. CA2002-07-183, 2003-Ohio-1770, ¶ 11; State v.

Szefcyk, 77 Ohio St.3d 93, 96, 1996-Ohio-337; Perry at paragraph nine of the syllabus.

       {¶ 11} There is an exception to the application of res judicata where the petitioner
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presents competent, relevant, and material evidence outside the record that did not exist and

was, therefore, unavailable at the time he filed his direct appeal. State v. Benge, 12th Dist.

No. CA97-08-163, 1998 WL 204941, * 3 (Apr. 27, 1998); State v. Lawson, 103 Ohio App.3d

307, 315 (12th Dist.1995). However, for this exception to apply, the evidence outside the

record must meet some threshold standard of cogency, must be genuinely relevant, and

must materially advance a petitioner's claim that there has been a denial or infringement of

his constitutional rights. Id.; Lawson at 315; Lindsey at ¶ 22. Furthermore, the doctrine of

res judicata will still apply to the claim if the evidence outside the record is only "marginally

significant and does not advance the petitioner's claim beyond a mere hypothesis and a

desire for further discovery." Id.; Lindsey at ¶ 22.

       {¶ 12} In his PCR petition, appellant alleges that his Sixth Amendment right to a jury

trial was abridged due to the bias of one juror, T.M. According to the affidavits of two of

T.M.'s coworkers, T.M. harbored a bias towards appellant and was obsessed with becoming

a juror on the case. The first affiant, Dale, averred on April 6, 2011, that (1) he and T.M.

worked together at a pharmacy and often filled prescriptions from appellant; (2) T.M. told him

that her son was a patient of appellant's; (3) T.M. expressed a great interest in being a juror

in the case; (4) T.M. was obsessed with appellant's case, talking about it every day and

frequently stating that she was "determined to be on that jury;" and (5) T.M. stated that she

wanted to be the foreman of the jury so that she could deliver a guilty verdict to appellant.

The second affiant, Timothy, averred on March 22, 2011, that (1) he and T.M. regularly filled

prescription requests from appellant; (2) Dale told Timothy that T.M.'s child was a patient at

appellant's pediatric office; (3) T.M. told Dale that she was determined to get on the jury for

appellant's trial; and (4) T.M. told Dale that she wanted to see appellant "fry" for what he had

allegedly done to the victims.

       {¶ 13} In its Order Denying Petition for Postconviction Relief, the trial court determined
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that appellant "failed to meet his burden to show that the evidence he presented is more than

marginally significant and that it advances his claim beyond a mere hypotheses that the

result would be different if this evidence had been submitted at trial." Further, the trial court

held that appellant's claims "were either raised or could have been raised on direct appeal,

and are thus barred by res judicata." There were no facts in evidence to determine whether

the information provided in the affidavits was known to appellant prior to his direct appeal.

       {¶ 14} Having carefully reviewed the evidence, the issues raised by the affidavits, and

appellant's arguments with regard to this evidence, we find that the trial court erred in

granting summary judgment in the state's favor without first holding a hearing on the PCR

petition. The bias or prejudice of even one juror may cause the violation of one's right to a

fair trial. See Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.1998); United States v. Hendrix,

549 F.2d 1225, 1227 (9th Cir.1977); Stone v. United States, 113 F.2d 70, 77 (6th Cir.1940).

Appellant's evidence demonstrates the potential bias of a juror in a case that resulted in a

more than 20-year prison term. There is no evidence in the original trial record or from the

parties that the information contained in the two affidavits was known to appellant at the time

of the direct appeal to this court. On the contrary, the affidavits are dated over one year after

the original appeal was filed. Therefore, if true, this outside evidence is more than marginally

relevant to support appellant's claim that he did not receive a fair trial. Accordingly, it was

error for the trial court to summarily dismiss appellant's petition. As such, further exploration

of this issue was warranted and a hearing on appellant's petition should be held.

                                    Inadmissible Hearsay

       {¶ 15} We now turn to the state's argument that the trial court not only determined that

appellant's petition should be denied on the basis of res judicata, but also on the merits of the

case, with a finding that the affidavits were comprised of inadmissible hearsay. In support of

this argument, the state relies on one sentence in the trial court's Order Denying Petition for
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Postconviction Relief: "Both affidavits are from co-workers of a seated juror and are

comprised of inadmissible hearsay."

       {¶ 16} Although the trial court should give due deference to affidavits sworn to under

oath, it may exercise its discretion and determine that the affidavit testimony lacks credibility

"without first observing or examining the affiant." State v. Calhoun, 86 Ohio St.3d 279, 284

(1999); State v. Hoop, 12th Dist. No. CA2004-02-003, 2005-Ohio-1407, ¶ 11. "[W]here a

petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief,

and the information in the affidavit, even if true, does not rise to the level of demonstrating a

constitutional violation, then the actual truth or falsity of the affidavit is inconsequential."

Calhoun at 284, citing State v. Perry, 10 Ohio St.2d 175 (1967). In determining the credibility

of supporting affidavits in PCR proceedings, the trial court should consider all relevant factors

including:

             (1) whether the judge reviewing the [PCR] petition also presided at
                 the trial,

             (2) whether multiple affidavits contain nearly identical language, or
                 otherwise appear to have been drafted by the same person,

             (3) whether the affidavits contain or rely on hearsay,

             (4) whether the affiants are relatives of the petitioner, or otherwise
                 interested in the success of the petitioner's efforts, and

             (5) whether the affidavits contradict evidence proffered by the
                 defense at trial.

Id. at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-756 (1st Dist.1994).

       {¶ 17} "Depending on the entire record, one or more of these or other factors may be

sufficient to justify the conclusion that an affidavit asserting information outside the record

lacks credibility." Id. "A trial court that discounts the credibility of sworn affidavits should

include an explanation of its basis for doing so in its findings of fact and conclusions of law, in

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order that meaningful appellate review may occur." Id.

       {¶ 18} Essentially, the state is arguing that, because the trial court stated that the

affidavits contain inadmissible hearsay, the trial court determined that the affiants lacked

credibility and, therefore, denial of the PCR petition was appropriate. However, the trial court

did not find that the affiants were not credible. Rather, the trial court merely stated that the

affidavits were comprised of inadmissible hearsay. Consideration of only one factor, without

explanation, is not a sufficient basis for denying the PCR petition. Therefore, we find that the

trial court did not make a credibility determination regarding the affidavits but, instead, simply

stated that the affidavits contained hearsay.

                                      The Aliunde Rule

       {¶ 19} The state also argues that Evid.R. 606(B), the "aliunde rule," was applied in this

case by the trial court to bar the use of Dale's and Timothy's affidavits. The state maintains

that the trial court relied upon this rule when it cited briefly to Evid.R. 606(B): "See also,

Evid.R. 606(B)."

       {¶ 20} Evid.R. 606(B) embodies the "aliunde rule" and governs the competency of a

juror to testify at a subsequent proceeding concerning the original verdict. The rule provides,

in pertinent part:

              Upon an inquiry into the validity of a verdict or indictment, a juror
              may not testify as to any matter or statement occurring during the
              course of the jury's deliberations or to the effect of anything upon
              that or any other juror's mind or emotions as influencing the juror
              to assent to or dissent from the verdict or indictment or
              concerning the juror's mental processes in connection therewith.
              A juror may testify on the question whether extraneous
              prejudicial information was improperly brought to the jury's
              attention or whether any outside influence was improperly
              brought to bear on any juror, only after some outside evidence of
              that act or event has been presented.

"The rule is intended to preserve the integrity of the jury process and the privacy of

deliberations, to protect the finality of the verdict, and to insulate jurors from harassment by
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dissatisfied or defeated parties by prohibiting a court from questioning a juror about what

occurred during deliberations, or about anything else that may have affected the juror's mind

or emotions in the deliberations process once a final verdict is rendered." State v. Reiner, 89

Ohio St.3d 342, 341, 2000-Ohio-190, reversed on other grounds, 532 U.S. 17 (2001); State

v. Schiebel, 55 Ohio St.3d 71, 75 (1990).

       {¶ 21} "In order to permit juror testimony to impeach the verdict, a foundation of

extraneous, independent evidence [i.e., evidence aliunde] must first be established."

Schiebel at 75. "This foundation must consist of information from sources other than the

jurors themselves, and the information must be from a source which possesses firsthand

knowledge of the improper conduct." Id., citing Wicker v. Cleveland, 150 Ohio St. 434

(1948).

       {¶ 22} Although the trial court alludes to the aliunde rule by generally citing Evid.R.

606(B), the trial court's decision is not based on that rule. Rather, the decision focuses

primarily on the application of res judicata. Further, appellant did not raise the aliunde rule

on appeal and, therefore, the issue is not before this court. Consequently, we decline to

address the application of the aliunde rule to this case.        Therefore, appellant's sole

assignment of error is sustained and this cause is reversed and remanded for proceedings

consistent with this opinion.

       {¶ 23} Judgment reversed and remanded.


       POWELL, P.J., and HENDRICKSON, J., concur.




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