[Cite as State v. Martin, 2018-Ohio-3244.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                       :         OPINION

                 Plaintiff-Appellee,                 :
                                                               CASE NO. 2017-T-0014
        - vs -                                       :

DAVID MARTIN,                                        :

                 Defendant-Appellant.                :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CR
00735.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, Christopher Becker and Ashleigh
Musick, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street,
N.W., Warren, OH 44481 (For Plaintiff-Appellee).

John B. Juhasz, and Lynn Maro, Maro and Schoenike Co., 7081 West Boulevard, #4,
Youngstown, OH 44512 (For Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant,        David   Martin,   appeals   the   denial   of   his

postconviction relief petition in the Trumbull County Court of Common Pleas.                 The

issues before this court are whether res judicata bars a postconviction petitioner from

raising claims that trial counsel was constitutionally ineffective during voir dire and jury

selection when those claims are decided adversely to the petitioner by the state

supreme court; whether trial counsel renders ineffective assistance by choosing to
present some but not all of the information available regarding a petitioner’s childhood

during the mitigation phase of a death penalty trial; and whether a petitioner may be

denied discovery when his postconviction petition fails to set forth sufficient operative

facts establishing substantive grounds for relief. For the following reasons, we affirm

the decision of the court below.

        {¶2}    On September 11, 2014, Martin was found guilty of the following:

Aggravated Murder with specifications of Aggravating Circumstances and a Firearm

Specification in violation of R.C. 2903.01(A) and (F), R.C. 2941.14(C), R.C.

2929.04(A)(5) and (7), and R.C. 2941.145 (Count Two); Attempted Aggravated Murder

with a Firearm Specification in violation of R.C. 2923.02(A) and (E)(1), R.C. 2903.01(B)

and (F), and R.C. 2941.145 (Count Three); two counts of Aggravated Robbery with

Firearm Specifications in violation of R.C. 2911.01(A)(1), (3), and (C) (Counts Four and

Five); two counts of Kidnapping with Firearm Specifications in violation of R.C.

2905.01(A)(2) and (C)(1) and R.C. 2941.145 (Counts Six and Seven); and Tampering

with Evidence in violation of R.C. 2921.12(A)(1) and (B) (Count Eight).1

        {¶3}    On September 17, 2014, the jury returned a verdict finding that the

aggravating circumstances outweighed the mitigating factors and recommending the

imposition of the death penalty for Aggravated Murder.

        {¶4}    On September 24, 2014, the trial court similarly determined that the

aggravating circumstances outweighed the mitigating factors and that the sentence of




1.   Martin was additionally convicted of Aggravated Murder with specifications of Aggravating
Circumstances and a Firearm Specification in violation of R.C. 2903.01(B) and (F), R.C. 2941.14(C), R.C.
2929.04(A)(5) and (7), and R.C. 2941.145 (Count One). The State elected to proceed on Count Two.


                                                   2
death was an appropriate penalty for Aggravated Murder. For the remaining charges,

the court sentenced Martin to an aggregate prison term of 61 years.2

       {¶5}    On March 22, 2016, Martin filed a Petition to Vacate or Set Aside

Conviction and Sentence, based on the following grounds: “[t]he death sentence

imposed * * * is void or voidable because [Martin] did not receive effective assistance of

counsel during the trial phase of his capital trial, and the result was a less than impartial

jury that returned a death verdict”; Martin “was denied due process of law, and liberties

guaranteed by [the Ohio Constitution] when counsel failed to present mitigation

evidence which had been discovered and by counsel’s failure to discover some

mitigation evidence”; and “[b]ecause [Martin] was denied the effective assistance of

counsel in the selection of a jury and in the presentation of mitigation evidence, [his]

sentence of death is ‘cruel and unusual’ because not reliably determined.”

       {¶6}    On August 23, 2016, the State filed a Motion for Summary Judgment

pursuant to Section 2953.21(D) of the Revised Code.

       {¶7}    On October 11, 2016, Martin filed a Response to State’s Motion for

Summary Judgment.

       {¶8}    On October 31, 2016, the State filed a Renewed Motion for Summary

Judgment and Response to Petitioner’s Response.

       {¶9}    On January 19, 2017, the trial court ruled as follows: “(1) Martin was

represented by competent trial counsel during both phases of the trial in this matter; (2)



2. Martin was sentenced to the following terms of imprisonment: 11 years for Attempted Aggravated
Murder and 3 years for the Firearm Specification (Count Three); 11 years for each count of Aggravated
Robbery with 3 years for the Firearm Specifications (Counts Four and Five); 11 years for each count of
Kidnapping with 3 years for the Firearm Specifications (Counts Six and Seven); and 36 months for
Tampering with Evidence (Count Eight). The sentences for the Firearm Specifications were merged into
a single three-year sentence to be served consecutively with the remaining sentences.


                                                  3
Trial counsel for Martin conducted an appropriate voir dire examination of all potential

jurors through either the written jury questionnaire or through verbal voir dire; (3) Martin

has not set forth evidence to demonstrate substantive grounds sufficient to grant a

hearing on his post-conviction request for relief; (4) Martin is not entitled to a hearing on

his post-conviction request for relief; (5) There are no genuine issues of material fact on

which reasonable minds can disagree and therefore, summary judgment in favor of the

State is appropriate.”

       {¶10} On February 13, 2017, Martin filed a Notice of Appeal.

       {¶11} On September 13, 2017, the Ohio Supreme Court affirmed Martin’s

convictions and sentence. State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90

N.E.3d 857.

       {¶12} On appeal, Martin raises the following assignments of error:

       {¶13} “[1.] The trial court erred in denying the petition without a hearing, for the

petition and the evidentiary material appended to it clearly made out a prima facie case

of a constitutional violation, thus depriving Appellant of the liberty secured by the United

States Constitution, Amendment Six and Fourteen, and Ohio Constitution Article I,

Sections 1, 2, 10 and 16, including meaningful access to the courts of this state.”

       {¶14} “[2.] The trial court erred in dismissing the petition for post conviction relief

without permitting discovery to be conducted, thus depriving Appellant of the liberties

secured by U.S. Const. Amend. XIV and Ohio Const. Art. 1 §§ 1, 2, 10, and 16 including

meaningful access to the courts of this state.”

       {¶15} Martin’s first assignment of error asserts that trial counsel rendered

constitutionally ineffective assistance.




                                              4
       {¶16} “[A]ny person who has been convicted of a criminal offense and

sentenced to death and who claims that there was a denial or infringement of the

person’s rights under either [the Ohio or United States] Constitutions that creates a

reasonable probability of an altered verdict, * * * 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.” R.C.

2953.21(A)(1)(a).

       {¶17} “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 journalized records of the clerk of the court, and the court

reporter’s transcript.” R.C. 2953.21(D).

       {¶18} “Unless the petition and the files and records of the case show the

petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the

issues even if a direct appeal of the case is pending.” R.C. 2953.21(F). “[E]ither party

may move for summary judgment,” provided that “[t]he right to summary judgment shall

appear on the face of the record.” R.C. 2953.21(E).

       {¶19} In the present case, the trial court availed itself of divisions (D) and (E) of

the postconviction relief statute, determining that there were neither substantive

grounds for relief nor genuine issues of material fact. The standards for dismissing a

petition under each division are distinguishable:




                                             5
                   The trial court was entitled to dismiss [the] petition without

            hearing if the court found that “the petition, the supporting affidavits,

            the documentary evidence, the files, and the records d[id] not

            demonstrate that petitioner set forth sufficient operative facts to

            establish substantive grounds for relief.” [State v.] Calhoun, 86

            Ohio St.3d 279, 714 N.E.2d 905, paragraph two of the syllabus. In

            making this analysis, the trial court has a limited ability to weigh the

            evidence proffered in support of the petition. “[A] trial court * * *

            may, in the sound exercise of discretion, judge the credibility of the

            affidavits in determining whether to accept the affidavits as true

            statements of fact.” Id. at paragraph one of the syllabus.          The

            analysis for dismissing a petition without hearing focuses on the

            evidence proffered in support of the petition, not the evidence

            proffered in the state’s response.

                   In a summary-judgment exercise, the court must construe

            conflicting evidence in petitioner’s favor. Civ.R. 56(C). The state is

            entitled to summary judgment if “there is no genuine issue as to any

            material fact” and “reasonable minds can come to but one

            conclusion and that conclusion is adverse to the party against

            whom the motion for summary judgment is made.” Id.

State v. Williams, 165 Ohio App.3d 594, 2006-Ohio-617, 847 N.E.2d 495, ¶ 22-23 (11th

Dist.); State v. Hartman, 2d Dist. Montgomery No. 27162, 2017-Ohio-7933, ¶ 16 (cases

cited).




                                            6
       {¶20} “[A] trial court’s decision regarding a postconviction petition filed pursuant

to R.C. 2953.21 will be upheld absent an abuse of discretion when the trial court’s

finding is supported by competent and credible evidence.” State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 60; State v. Clark, 11th Dist. Trumbull No.

2017-T-0081, 2018-Ohio-794, ¶ 6 (purely legal issues, however, are reviewed de novo).

       {¶21} “In a petition for post-conviction relief, which asserts ineffective assistance

of counsel, the petitioner bears the initial burden to submit evidentiary documents

containing sufficient operative facts to demonstrate the lack of competent counsel and

that the defense was prejudiced by counsel’s ineffectiveness.” State v. Jackson, 64

Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus. Specifically, a petitioner must show

“(1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

that, but for counsel’s errors, the proceeding’s result would have been different.” Martin,

151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, at ¶ 48.

       {¶22} Also, relevant to the disposition of this appeal is the applicability of res

judicata to petitions for postconviction relief. State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967), paragraph seven of the syllabus (“[c]onstitutional issues cannot be

considered in postconviction proceedings under Section 2953.21 et seq., Revised

Code, where they have already been or could have been fully litigated by the prisoner

while represented by counsel, either before his judgment of conviction or on direct

appeal from that judgment, and thus have been adjudicated against him”); State v. Cole,

2 Ohio St.3d 112, 443 N.E.2d 169 (1982), syllabus.




                                             7
        {¶23} Martin’s claims regarding trial counsel’s ineffectiveness with respect to voir

dire and jury selection have been adjudicated against him by the Ohio Supreme Court in

the direct appeal of his conviction and sentence. See Martin.3 Considering the same

issues raised by Martin in his postconviction petition, the Ohio Supreme Court

concluded: “In no claim has he shown that his trial counsel performed deficiently, nor

has he established prejudice.” Id. at ¶ 74. Thus, there was no error in dismissing

Martin’s petition to the extent it claimed counsel was ineffective as to jury selection.

State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994) (“[p]ostconviction review

is a narrow remedy, since res judicata bars any claim that was or could have been

raised at trial or on direct appeal”).

        {¶24} With respect to the ineffective assistance of counsel claim involving

mitigation, Martin contends that trial counsel “had investigated Martin’s childhood,

upbringing and influences on his life” and that this information “certainly should have

been presented and considered by the jury when deciding life or death.” Appellant’s

brief at 27.

        {¶25} At the mitigation hearing, the following testimony was presented on

Martin’s behalf:




3. Specifically, Martin, 2017-Ohio-7556, at ¶ 49 (“defense counsel rendered ineffective assistance by
failing to inquire on voir dire as to prospective jurors’ knowledge of [Martin’s] alleged involvement in the
hostage-taking incident” and “should have asked juror No. 6, whose husband was a Trumbull County
reserve deputy sheriff, whether she had discussed the hostage situation with her husband and whether
he had had contact with Martin”), ¶ 54 (“defense counsel did not question four jurors (Nos. 4, 8, 10, and
12) on pretrial publicity”), ¶ 59 (“defense counsel should have questioned juror Nos. 5 and 7 more deeply
about their attitudes on the death penalty”), ¶ 63 (potential personal bias of Juror No. 9 who “had been a
co-worker of [the victim] for about a month and had seen him at work on the day of the murder”), ¶ 69
(potential personal bias of Juror No. 2 who “lived ‘a couple of streets’ from the murder scene”), and ¶ 71
(“counsel did not exercise any peremptory challenges, even against the four jurors whom they had
unsuccessfully challenged for cause”).


                                                     8
              Martin made an unsworn statement and called three witnesses:

              Alegra Martin, Lucretia Norton, and Landon Nicholson.           Alegra

              Martin and Norton, Martin’s cousins, remembered him as a child

              and testified briefly about his family, but neither witness had seen

              much of him in recent years.       Nicholson testified about Martin’s

              youth from approximately 1996 to 2000. Martin also introduced a

              586-page Cuyahoga County Division of Children and Family

              Services (“CFS”) file on his family covering the period 1986 through

              1998.

Martin, 2017-Ohio-7556, at ¶ 148. The substance of this testimony is described at ¶

149-162 of the Supreme Court’s opinion.

       {¶26} In his postconviction petition, Martin asserted that trial counsel was aware

of “multiple family members who could have testified that * * * Martin was present when

his mother was killed,” or, “whether he was actually present or not, [to his] lack of grief

or other counseling.” Moreover, “evidence from a number of family members of the

anger and frustration which [Martin] felt, which often caused him to act out, [was]

discovered by * * * trial counsel, but * * * not presented to the jury.” Also “not presented

to the jury was evidence that [Martin] may have had gang involvement,” which is

significant because “research shows that gangs serve as psychological surrogate

families.” Finally, there was evidence “discovered but undeveloped and not presented

to the trial jury * * * that both of [Martin’s] parents were substance abusers who, like

most substance abusers, focused only on their own physical, physiological, and

psychological needs for the substance for which they are addicted.”




                                             9
       {¶27} Martin’s characterization of the mitigation evidence actually presented is

misleading.     That his parents abused drugs was well attested in the testimony

presented to the jury. Martin at ¶ 150 (“both parents had drug habits”). Allegra Martin

testified that her father would use drugs with Martin’s father and that many of her

cousins abused drugs. Norton testified that she had seen Martin’s father high. Of

Martin’s father, Nicholson testified that, “besides staying high all the time,” he “was

[always] at a crack house somewhere.” When asked if he was a positive influence on

Martin, Nicholson replied “hell no.”

       {¶28} Martin’s exposure to gang culture, if not his actual participation therein,

was before the jury. Martin at ¶ 158 (“[t]he CFS file speaks of ‘gang violence,’ ‘peer

pressure,’ and a community with ‘areas * * * undesirable for [the] youth’s well being’”).

Nicholson gave explicit testimony regarding gang activity involving Donald Ray and “one

of Cleveland’s biggest gangs, [the] Dynamite Devils, [or] the DDs.” Ray operated a

boxing gym where Martin trained, “but all the activities that we [Nicholson and Ray] was

[sic] in, it wasn’t like we was hiding it or it wasn’t like they couldn’t see what we was

doing.” Nicholson also asserted that he was trying to serve as a role model for Martin,

as it appeared that no one in particular looked out for Martin and that “he belonged to

the streets.”

       {¶29} While Martin’s trial counsel did not expressly state that his parents’

substance abuse issues compromised their ability to parent him or that gang culture

filled the void left by parental incompetence, such is the impression created by the

evidence presented.     Martin at ¶ 165 (“Martin lost his mother at an early age and




                                           10
received little or no help dealing with that issue” and “at some point in Martin’s teenage

years, his father virtually gave up and consigned him to the influence of the streets”).

        {¶30} With respect to whether Martin witnessed his mother’s murder at age four,

both Alegra and Norton stated before the jury that he did witness the murder. On both

occasions the State raised objections which were sustained. The trial court did not

instruct the jury to disregard the testimony, but defense counsel clarified through

subsequent questioning that neither witness knew this through firsthand knowledge.

During a subsequent sidebar, the State proffered the detective who investigated the

mother’s murder as a rebuttal witness.             Counsel for Martin offered to stipulate that

Martin did not witness the murder, but wished to consult with his client before doing so.

Ultimately, neither rebuttal testimony nor a stipulation was introduced into the record.

There is no indication that the statements from Martin’s father, brother, and aunt that

Martin witnessed his mother’s murder were of different quality than the testimony of

Alegra and Norton, i.e., their knowledge was based on what they had “heard.”4

        {¶31} We agree with the trial court that the facts presented in Martin’s

postconviction petition fail to establish substantive grounds for relief and that summary

dismissal of the petition was warranted for that reason as well as for the absence of

material facts regarding trial counsel’s constitutional effectiveness. Martin essentially

asserts that counsel’s presentation of mitigation evidence was deficient in light of the

evidence that was available to counsel. The Ohio Supreme Court has recognized that



4. The unpresented statements regarding the mother’s murder, as with the statements regarding Martin’s
gang activity, are not entirely consistent. For example, an aunt heard that Martin witnessed his mother’s
murder and walked home afterwards. His father heard that someone dropped Martin off at home after the
murder. His father stated that Martin told him that the mother was murdered by a boyfriend but Martin’s
brother does not think so. Martin’s girlfriend stated that Martin was a member of the Crips since
childhood but his brother did not think he was in a gang.


                                                  11
“the mere failure to present mitigating evidence at the penalty phase of a capital trial

does not itself constitute proof of ineffective assistance of counsel” and that “the

omission of such evidence in an appropriate case could be in response to the demands

of the accused or the result of a tactical, informed decision by counsel, completely

consonant with his duties to represent the accused effectively.” State v. Johnson, 24

Ohio St.3d 87, 91, 494 N.E.2d 1061 (1986); State v. Keith, 79 Ohio St.3d 514, 530, 684

N.E.2d 47 (1997) (“the presentation of mitigating evidence is a matter of trial strategy”).

       {¶32} In the present case, the additional information Martin claims should have

been presented was wholly cumulative to information that was actually presented. It

was certainly within trial counsel’s prerogative to decide which witnesses would be most

effective in presenting the circumstances of Martin’s upbringing. State v. Jackson, 8th

Dist. Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 42 (“out-of-record evidence that is

merely cumulative of, or alternative to, other mitigation evidence defense counsel

presented does not provide substantive grounds for a claim of ineffective assistance of

counsel at mitigation”).

       {¶33} Nor is there any indication that the failure to present additional cumulative

information on Martin’s childhood prejudiced Martin.       The Ohio Supreme Court has

acknowledged on more than one occasion that, in the estimation of mitigating factors, it

has “seldom accorded strong weight to a defendant’s childhood.” Martin at ¶ 165, citing

State v. Murphy, 91 Ohio St.3d 516, 547, 747 N.E.2d 765 (2001).

       {¶34} In sum, our conclusion must be that of the Ohio Supreme Court in a case

decided this year:




                                            12
               It is unclear why defense counsel did not present additional

               testimony about appellant’s background. But nothing in the record

               suggests that the absence of additional testimony was the result of

               inadequate investigation. Moreover, it is highly speculative whether

               additional testimony from these witnesses would have added

               anything to appellant’s mitigation case or made any difference in

               the outcome of the penalty phase. See State v. Elmore, 111 Ohio

               St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 124.

State v. Wilks, __ Ohio St.3d __, 2018-Ohio-1562, __ N.E.3d __, ¶ 209.

       {¶35} The first assignment of error is without merit.

       {¶36} In his second assignment of error, Martin argues “the trial court erred in

dismissing the petition without permitting Appellant to conduct discovery.” Appellant’s

brief at 39.

       {¶37} The Ohio Supreme Court “has never held that there is a right to discovery

in postconviction proceedings,” “[a]nd because R.C. 2953.215 is silent about discovery,

the decision to grant or deny a request for discovery rests with a trial court’s sound

discretion.” State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28.

       {¶38} Martin’s postconviction petition states that “Petitioner must be afforded the

opportunity to conduct discovery to further substantiate the allegations and claims

asserted in this petition.” Martin does not, however, make specific discovery requests

or otherwise describe what discovery is necessary to support his claims.                     To the

contrary, he claims elsewhere in the petition that it is supported “with evidence de hors


5. Effective April 6, 2017, R.C. 2953.21 was amended to expressly provide for discovery in conjunction
with the filing of postconviction petitions.


                                                 13
the record that contains sufficient operative facts to demonstrate the lack of competent

counsel and the prejudice resulting from counsel’s ineffectiveness.”        Rather, further

discovery is sought so that, in the event an evidentiary hearing is granted, “the hearing

is meaningful.” As we affirm the dismissal of Martin’s petition without a hearing, the

claim that he was entitled to discovery in anticipation of such a hearing is without merit.

       {¶39} The second assignment of error is without merit.

       {¶40} For the foregoing reasons, the dismissal of Martin’s petition for

postconviction relief without a hearing is affirmed.      Costs to be taxed against the

appellant.



TIMOTHY P. CANNON, J., concurs,

THOMAS R. WRIGHT, P.J., concurs in judgment only.




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