[Cite as State v. Wilson, 2013-Ohio-180.]




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

STATE OF OHIO                                   :
                                                :     Appellate Case No. 23129
        Plaintiff-Appellee                      :
                                                :     Trial Court Case No. 2007-CR-2134
v.                                              :
                                                :
ANTHONY WILSON                                  :     (Criminal Appeal from
                                                :     (Common Pleas Court)
        Defendant-Appellant                     :
                                                :
                                             ...........

                                            OPINION

                             Rendered on the 25th day of January, 2013.

                                             ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ANTHONY WILSON, #567-649, London Correctional Institution, 1580 State Route 56 SW,
Post Office Box 69, London, Ohio 43140
       Defendant-Appellant, pro se

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

FAIN, P.J.

        {¶ 1}     Defendant-appellant Anthony L. Wilson appeals from the overruling of his
                                                                                           2


petition for post-conviction relief, without a hearing. Many of the claims for relief from his

conviction that Wilson makes in this appeal were not raised in the trial court. The claims

Wilson made in the trial court either could have been raised in his direct appeal from his

conviction, or were not supported by allegations of fact. Accordingly, the trial court’s order

overruling Wilson’s petition for post-conviction relief is Affirmed.



        I. Wilson Is Convicted of Felonious Assault, with a Firearm Specification

       {¶ 2}    In 2007, Wilson was tried on two counts of complicity to commit Felonious

Assault, with a firearm specification. Wilson was alleged to have provided a firearm to his

co-defendant, Timmesha Manson, who shot the victim. According to Wilson, Manson pled

guilty to one count of Felonious Assault, without a firearm specification, and was sentenced

accordingly. According to Wilson, Manson declined to testify at Wilson’s jury trial, invoking

her Fifth Amendment privilege against self-incrimination.

       {¶ 3}    Wilson was convicted of both counts, including both specifications. The

counts and specifications were merged for sentencing purposes, and Wilson was sentenced to

four years for Felonious Assault and three years for the firearm specification, to be served

consecutively, for a total of seven years.

       {¶ 4}    Wilson appealed. We affirmed. State v. Wilson, 2d Dist. Montgomery No.

22581, 2009-Ohio-525 (Wilson I). Additional facts are set forth in that opinion.

       {¶ 5}    Wilson sought to re-open his appeal, under App.R. 26(B), setting forth fifteen

proposed assignments of error. By entry filed in Montgomery App. No. 22581 on July 27,

2009, we denied his application to re-open his direct appeal.
                                                                                                                                    3




                                        II. Wilson Moves for a New Trial

         {¶ 6}       In 2010, Wilson moved for a new trial, based upon a claim of newly

discovered evidence. When the trial court overruled that motion, and two other motions,

Wilson appealed. We consolidated all three appeals, and affirmed. State v. Wilson, 2d Dist.

Montgomery Nos. 24461, 24496, and 24501, 2012-Ohio-1660 (Wilson II).



                             III. Wilson’s Petition for Post-Conviction Relief

         {¶ 7}       Wilson’s petition for post-conviction relief, with which this appeal is

concerned, was filed in 2008, while his direct appeal was pending. His first claim for relief in

his petition was the violation of his rights under Article I, Sections 2, 10, 10a, 14, and 18, of

the Ohio Constitution. As facts supporting this claim, Wilson cited: “The misconduct of City

Officials, State Officials and Counsel.”

         {¶ 8}       The second claim for relief in Wilson’s petition was the violation of his rights

under the Fourth, Fifth, Sixth, Eleventh,1 Fourteenth and Fifteenth Amendments to the United

States Constitution. As facts supporting this claim, Wilson cited: “Misstating, maipulating

(sic) of witnesses and evidence by Counsel and Prosecutor’s (sic) and other city, County, and

State Officials.” No other facts were cited in Wilson’s petition to support either claim.

         {¶ 9}       Subsequently, Wilson filed a memorandum in support of his petition. In it,

he raised additional arguments, which will be discussed later in this opinion.


           1
             The Eleventh Amendment to the United States Constitution limits the jurisdiction of the federal courts by excluding suits in
 which a state and citizens of another state or foreign country are adverse parties. It obviously has no application to Wilson.
[Cite as State v. Wilson, 2013-Ohio-180.]
        {¶ 10} The trial court, without a hearing, overruled Wilson’s petition for

post-conviction relief, in an entry filed November 12, 2008. In the same entry, the trial court

overruled Wilson’s motions for the appointment of counsel, for an oral hearing, and for expert

assistance.

        {¶ 11} Wilson timely appealed from the trial court’s order overruling his petition for

post-conviction relief. Numerous procedural motions and motions for extension of time to

file Wilson’s brief resulted in Wilson’s original brief being filed herein in June 2012, one

supplemental brief in July 2012, and another supplemental brief in October 2012. The State

filed its answer brief at the end of October, and Wilson filed a reply brief November 21, 2012.



    IV. Many of Wilson’s Assignments of Error Were Not Raised in the Trial Court;

                       Therefore, They Cannot Be Considered on Appeal

        {¶ 12} Wilson’s First Assignment of Error is as follows:

                         TRIAL COURT ERRED IN NOT CONDUCTING A [SIC]

        EVIDENTIARY HEARING WHERE APPELLANT WAS DEPRIVED FROM

        UTILIZING CONSTITUTIONAL PROVISIONS OF DUR [sic] PROCESS WHICH

        THE DOCTRINE OF RES JUDICATA DOES NOT APPLY DUE TO APPELLANT

        BEING UNDER A INVALID JUDGMENT ENTRY/ORDER IN VIOLATION OF

        EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW, EQUEAL

        [sic] PROTECTION OF LAW, CONFRONTATION OF THE STATES EVIDENCE,

        AND FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT PURSUANT

        U.S.    CONSTITUTION            AMENDMENTS      V,   VI,   VIII AND      XIV;    OHIO

        CONSTITUTION ARTICLE 1 §§ 1, 2, 5, 9, 10, 16, 20.
[Cite as State v. Wilson, 2013-Ohio-180.]
         {¶ 13} As with most of Wilson’s arguments, his argument in support of this

assignment of error is barely comprehensible. He seems to be arguing that because his

co-defendant, Manson, was convicted of one count of Felonious Assault, with the other count

having been dismissed, he could not be convicted of either of the counts of which he was

convicted. Also, he argues that the trial court, in entering his original conviction, did not

specify under which count of Felonious Assault he was being sentenced. Finally, he argues

that the judgment entry of conviction lacked the signatures of counsel, and contained an error

pertaining to post-release control, which the trial court improperly fixed with a nunc pro tunc

entry while Wilson’s original, direct appeal was pending.

         {¶ 14} None of these issues were raised in Wilson’s petition for post-conviction

relief.2 All of them could have been raised in Wilson’s direct appeal from his conviction, and

are therefore inappropriate for post-conviction relief. State v. Call, 2d Dist. Montgomery No.

15280, 1996 WL 27830 (Jan. 24, 1996). Accordingly, Wilson’s First Assignment of Error is

overruled.

         {¶ 15} Wilson’s Second Assignment of Error is as follows:

                    TRIAL COURT VIOLATED DUE PROCESS RIGHTS UNDER UNITED

         STATES CONSTITUTION AMENDMENTS V, VI, VIII AND XIV; OHIO

         CONSTITUTION ARTICLE I §§1, 2, 5, 9, 10, 16, 20 FOR NOT CONDUCTING A

         COMPETENCY EVALUATION AND EVIDENTIARY HEARING.

         {¶ 16} Here, Wilson argues that the trial court, before his trial and conviction, should

have held a competency hearing, since he had raised the issue of his competency to stand trial.

           2
                The trial court, in considering Wilson’s petition for post-conviction relief, generously considered his memorandum in support
 of that petition as a supplement to the petition, raising additional claims for relief. So shall we.
                                                                                              6


 This issue could have been raised in his direct appeal. It was also not raised in the trial court

in support of Wilson’s petition for post-conviction relief. Accordingly, Wilson’s Second

Assignment of Error is overruled.

       {¶ 17} Wilson’s Sixth Assignment of Error is as follows:

               THE TRIAL COURT VIOLATED DUE PROCESS                              CLAUSE BY

       ADMITTING INTO EVIDENCE THE TESTIMONY OF SECURITY GUARD

       JASON MORRIS, DETECTIVE DEBORDE AND OFFICER THORNTON

       REGARDING THE ERASED SURVEILLANCE VIDEOS IN VIOLATION OF

       EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW, EQUEAL

       [sic] PROTECTION OF LAW, CONFRONTATION OF THE STATES [sic]

       EVIDENCE, AND FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT

       PURSUANT U.S. CONSTITUTION AMENDMENTS V, VI, VIII AND XIV; OHIO

       CONSTITUTION ARTICLE I §§1, 2, 5, 9, 10, 16, 20.

       {¶ 18} Here, Wilson argues that the trial court, during his original trial, erred by

permitting testimony concerning the contents of a video recording of the assault, by a

surveillance video camera, despite the fact that the State had neither produced the video

recording, nor presented any reasonable explanation for its absence. Wilson argues that:

“The materiality of the videotape in this case became obvious in law enforcement reports and

at the preliminary hearing.”

       {¶ 19} This issue could have been raised in Wilson’s direct appeal. And this issue

was not raised in support of Wilson’s petition for post-conviction relief.          Accordingly,

Wilson’s Sixth Assignment of Error is overruled.
                                                                                            7


       {¶ 20} Wilson’s Ninth Assignment of Error is as follows:

               TRIAL COURT VIOLATED DUE PROCESS CLAUSE WHEN IT

       ORDERED THAT ALL PERSONS OTHER THAN THE JURY ARRAY LEAVE

       THE COURT ROOM WHILE JURY SELECTION BE CONDUCTED WITHOUT

       ALLOWING THE PUBLIC ACCESS TO THE PROCEEDING IN VIOLATION OF

       EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW, AND

       EQUEAL [sic] PROTECTION OF LAW PURSUANT TO U.S. CONSTITUTION

       AMENDMENTS V, VI, VIII AND XIV; OHIO CONSTITUTION ARTICLE I §§1, 2,

       5, 9, 10, 16, 20.

       {¶ 21} This issue, also, could have been raised in Wilson’s direct appeal. It was not

raised in the trial court in support of his petition for post-conviction relief. Accordingly,

Wilson’s Ninth Assignment of Error is overruled.

       {¶ 22} Wilson’s Tenth Assignment of Error is as follows:

               TRIAL COURT VIOLATED DUE PROCESS RIGHTS BY CONDUCTING

       A HEARING WITHOUT DOCUMENTARY EVIDENCE TO SUPPORT THE

       RESTITUTION ORDER IN VIOLATION OF UNITED STATES CONSTITUTION

       AMEND. V, VI, VIII AND XIV; OHIO CONST. ART. I §§1, 2, 5, 9, 10, 16, 20.

       {¶ 23} Here, Wilson contends that the trial court, at his original trial, entered a

restitution order without sufficient evidence to support it. Again, this issue could have been

raised in Wilson’s direct appeal. And this issue was not raised in the trial court in support of

his petition for post-conviction relief. Accordingly, Wilson’s Tenth Assignment of Error is

overruled.
                                                                                                   8


       {¶ 24} Wilson’s Eleventh Assignment of Error is as follows:

                THE TRIAL COURT ERRED BY IMPOSING A HARSHER SENTENCE

       UPON APPELLANT THAT IS DISPROPORTIONATE, THEN [sic] HIS

       CO-DEFENDANT, VIOLATING DUE PROCESS RIGHTS UNDER UNITED

       STATES CONSTITUTION AMENDMENTS V, VI, VIII AND XIV; OHIO

       CONSTITUTION ARTICLE I §§1, 2, 5, 9, 10, 16, 20.

       {¶ 25} This issue could have been raised in Wilson’s direct appeal. It was not raised

in support of his petition for post-conviction relief.       Accordingly, Wilson’s Eleventh

Assignment of Error is overruled.

       {¶ 26} Wilson’s Twelfth Assignment of Error is as follows:

                THE TRIAL COURT’S SENTENCE WAS EXCESSIVE AND VIOLATED

       DUE      PROCESS      RIGHTS      UNDER       UNITED      STATES      CONSTITUTION

       AMENDMENTS V, VI, VIII AND XIV; OHIO CONSTITUTION ARTICLE I §§1, 2,

       5, 9, 10, 16, 20.

       {¶ 27} Wilson’s argument that his seven-year sentence is excessive and contrary to

law could have been raised in his direct appeal. It was not raised in the trial court in support

of his petition for post-conviction relief. Accordingly, Wilson’s Twelfth Assignment of Error

is overruled.

       {¶ 28} Wilson’s Thirteenth Assignment of Error is as follows:

                THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN

       ASSESSING COURT COSTS AGAINST MR. WILSON WITHOUT COMPLYING

       WITH R.C. 2947.23(A), VIOLATING DUE PROCESS UNDER UNITED STATES
                                                                                                         9


        CONSTITUTION AMENDMENTS V, VI, VIII AND OHIO CONSTITUTION

        ARTICLE I §§1, 2, 5, 9, 10, 16, 20.

        {¶ 29} Here, Wilson asserts plain error by the trial court at his original trial. If he is

correct that the error in the assessment of court costs constituted plain error, then he would not

have had to have preserved this error in the trial court to have raised it, for the first time, in his

direct appeal. He could have raised this issue in his direct appeal, but did not. He did not

raise this issue in the trial court in support of his petition for post-conviction relief.

Accordingly, Wilson’s Thirteenth Assignment of Error is overruled.

        {¶ 30} Wilson’s Fourteenth Assignment of Error is as follows:

                TRIAL COURT DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR

        TRIAL BY ALLOWING THE PROBATION DEPARTMENT AND PROSECUTOR

        TO DICTATE WHICH CLOTHING APPELLANT WAS TO WEAR AT TRIAL;

        AND, REFUSING TO PERMIT APPELLANT THE CONSTITUTIONAL RIGHT OF

        WEARING CLOTHING FURNISHED, WHICH WOULD NOT INFER THAT THE

        APPELLANT WAS IN CUSTODY OF THE MONTGOMERY COUNTY

        SHERIFF’S OFFICE. THE FAILURE OF COUNSEL TO PROCEED TOWARD

        AGGRESSIVELY           ARGUING         A     VIOLATION         OF     CONSTITUTIONAL

        PROTECTIONS;         [sic]   GIVES      RISE    TO    A    CLAIM      OF     INEFFECTIVE

        ASSISTANCE OF COUNSEL; DUE PROCESS OF LAW; EQUAL PROTECTION

        OF LAW; AND FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT

        PURSUANT U.S. CONSTITUTION AMENDMENTS V, VI, VIII AND XIV; OHIO

        CONSTITUTION ARTICLE I §§10, 16.
[Cite as State v. Wilson, 2013-Ohio-180.]
        {¶ 31} Wilson argues that although he was given civilian clothing to wear at his trial,

he was only provided with one set of clothing to wear during his five-day trial, which would

have made it obvious to the jury that he was in custody. It is not clear whether this fact would

have been apparent from the record of his original trial; therefore, he may not have been able

to have raised this issue in his direct appeal. But he did not raise this issue in the trial court in

support of his petition for post-conviction relief. Therefore, the trial court did not err by

failing to consider it. Wilson’s Fourteenth Assignment of Error is overruled.



       V. Wilson’s Petition Sets Forth No Substantial Claims Requiring a Hearing

        {¶ 32} There remain four assignments of error raising issues that were raised, and

were considered, in the trial court in connection with Wilson’s petition for post-conviction

relief, and one assignment of error setting forth a claim of procedural error by the trial court

during the post-trial proceedings themselves. The latter assignment of error is Wilson’s Third

Assignment of Error:

                 TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ALLOWED

        PROSECUTORS FAILED [sic] TO PROVIDE SERVICE IN RESPONDING TO

        THE POST-CONVITION [sic] PETITION AND PROSECUTORS [sic] FAILURE

        TO HAVE THE ISSUES MADE UP PURSUANT TO O.R.C. §2953.21(d), AND

        FAILURE TO CONDUCT AN EVIDENTIARY HEARING VIOLATING DUE

        PROCESS RIGHTS UNDER UNITED STATES CONSTITUTION AMENDMENTS

        V, VI, VIII AND XIV; OHIO CONST. ARTICLE 1 §§1, 2, 5, 9, 10, 16, 20.

        {¶ 33} Here, Wilson argues that the State moved for summary judgment without

having “made up the issues” by first filing a pleading responsive to Wilson’s petition.
                                                                                             11


Wilson also argues that the State did not serve him with a copy of its filings, which included

the State’s motion for summary judgment and its subsequent response to Wilson’s

memorandum in support of his petition.

       {¶ 34} That Wilson was at least aware that the State had moved for summary

judgment is apparent from the fact that he referred to it in a request for an oral hearing on his

petition. In that request, he raised, in the trial court, the issue of the State’s failure to have

served him.

       {¶ 35} It is unclear from the record whether the State served Wilson with copies of its

motion for summary judgment and its response to Wilson’s memorandum in support of his

petition. Assuming, for purposes of analysis, that the State failed to serve Wilson with copies

of these documents, we conclude that its failure to do so did not prejudice Wilson under the

particular circumstances of this case.

       {¶ 36} In its decision denying Wilson’s petition for post-conviction relief, in which it

analyzed each claim that Wilson had made, the trial court correctly noted that although the

State may use a motion for summary judgment as a vehicle to urge the trial court to dismiss a

petition for post-conviction relief, unlike in other civil summary judgment proceedings, the

burden remains upon the defendant to establish that there are substantive grounds for relief.

If the defendant fails to establish, through affidavits and other supporting evidentiary material,

that there are substantive grounds for relief, a hearing on the petition is not required. “ * * *

the pivotal concern is whether there are substantive grounds for relief which would warrant a

hearing based upon the petition, the supporting affidavit and the files and records of [the

case].” State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980).
[Cite as State v. Wilson, 2013-Ohio-180.]
        {¶ 37} Therefore, regardless of the fact that the State had moved for summary

judgment, the trial court was not obliged to hold an evidentiary hearing on Wilson’s petition

unless he met his burden of establishing that there were substantive grounds to support the

petition. After careful consideration of Wilson’s grounds, the trial court concluded that he

had failed to meet his burden. Thus, any arguments set forth in the State’s filings were

immaterial – Wilson had failed in his threshold duty to establish substantive grounds for his

petition, and the trial court could have dismissed his petition sua sponte.

        {¶ 38} The State did argue, in its filing subsequent to its motion for summary

judgment, that the grounds set forth in Wilson’s memorandum in support should not be

considered, because they were not included in his petition. Assuming that this argument was

not made known to Wilson, because this document was not served upon him, he was not

prejudiced. The trial court considered, and rejected, each of the grounds for relief set forth in

his memorandum, despite the State’s argument that it should not do so.

        {¶ 39} Wilson’s Third Assignment of Error is overruled as harmless.

        {¶ 40} The issues set forth in Wilson’s remaining assignments of error were all raised

in the trial court, and properly rejected by the trial court.

        {¶ 41} Wilson’s Fourth and Fifth Assignments of Error are as follows:

                 CITY,     COUNTY           AND   STATE     OFFICIALS    SELECTIVELY       AND

        VINDICTIVELY PROSECUTED APPELLANT FOR ALLEGED PARTICIPATION

        IN THE INCIDENT IN VIOLATION OF EFFECTIVE ASSISTANCE OF

        COUNSEL, DUE PROCESS OF LAW, EQUEAL [sic] PROTECTION OF LAW,

        CONFRONTATION OF THE STATES [sic] EVIDENCE, AND FREEDOM FROM

        CRUEL AND UNUSUAL PUNISHMENT PURSUANT U.S. CONSTITUTION
                                                                                 13


AMENDMENTS V, VI, VIII AND XIV; OHIO CONST. ART. I §§ 1, 2, 5, 9, 10, 16,

20.

        THE        MISCONDUCT        OF      PROSECUTORS            MANIPULATING,

MISSTATING,         AND    WITHHOLDING         OF    EVIDENCE         DURING     THE

DISCOVERY PROCESS WAS NOT HARMLESS ERROR AND SO INFECTED

THE TRIAL WITH UNFAIRNESS AS TO MAKE THE APPELLANT’ [sic]

CONVICTION A DENIAL OF DUE PROCESS AND FAIR TRIAL, NO ACTION

BY THE JUDGE COULD HAVE REMOVED THE EFFECT OF THE

PROSECUTORS [sic] PERSISTENT AND CUMULATIVE MISCONDUCT FROM

ESSES      [sic]    ALTERNATIVE        SUSPECTS,       OBTAIN       EXCULPATORY

DISCOVERY,          AND   FAILURE     TO    PROVIDE         DEFENSE    [sic]   WHICH

CUMULATIVE EFFECT THE ACTIONS AND OMISSIONS OF COUNSEL IN

VIOLATION OF EFFECTIVE ASSISTANCE OF COUNSEL DUE PROCES [sic]

JURORS THEREBY DENYING APPELLANT CONSTITUTIONAL RIGHTS OF A

FAIR TRIAL IN VIOLATION OF EFFECTIVE ASSISTANCE OF COUNSEL, DUE

PROCESS OF LAW, EQUEAL [sic] PROTECTION OF LAW, CONFRONTATION

OF THE STATES [sic] EVIDENCE, AND FREEDOM FROM CRUEL AND

UNUSUAL            PUNISHMENT      PURSUANT         TO       U.S.   CONSTITUTION

AMENDMENTS V, VI, VIII AND XIV; OHIO CONST. ART. I §§1, 2, 5, 9, 10, 16,

20.

{¶ 42} Concerning these issues, the trial court reasoned:

        In his petition, Defendant/Petitioner essentially raises for the court’s
                                                                                                   14


       consideration the argument that numerous constitutional violations occurred as a result

       of “city officials, state officials, and counsel,” and “misstating, manipulating of

       witnesses and evidence by Counsel and Prosecutor’s, and other city, county and state

       officials.” A review of Petitioner’s Petition makes clear that he has not suggested any

       facts to support the alleged Constitutional violations. The Petitioner has not attached

       an affidavit or any other supporting materials to his Petition. The allegations in his

       Petition are devoid of any specificity, and do not state the nature of the alleged

       misconduct by counsel or any other government officials. Further, the Petition does

       not suggest anything other than bald accusations relating to his claim regarding the

       manipulation of witnesses or misstatements by a witness.

       {¶ 43} We find no flaw in the trial court’s reasoning. We have examined Wilson’s

petition and other filings in support of his petition, and we find no facts alleged therein that

would constitute misconduct, misstatements, or manipulation of witnesses and evidence by

government officials or counsel.

       {¶ 44} As the trial court noted, broad conclusory statements, unsupported by

evidentiary documents containing sufficient operative facts, are insufficient to warrant a

hearing on a petition for post-conviction relief. State v. Pankey, 68 Ohio St.2d 58, 59, 428

N.E.2d 413 (1981).

       {¶ 45} Wilson’s Fourth and Fifth Assignments of Error are overruled.

       {¶ 46} Wilson’s Seventh Assignment of Error is as follows:

               APPELLANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF

       LAW WHEN COUNSEL FAILED TO INVESTIGATE MATERIAL WITNESSES,
                                                                                                  15


       ALTERNATE SUSPECTS, OBTAIN EXCULPATORY DISCOVERY, AND

       FAILURE TO PROVIDE DEFENSE WHICH CUMULATIVE EFFECT THE ACTS

       AND OMISSIONS OF COUNSEL IN VIOLATION OF EFFECTIVE ASSISTANCE

       OF COUNSEL, DUE PROCES [sic] JURORS THEREBY DENYING APPELLANT

       CONSTITUTIONAL RIGHTS OF A FAIR TRIAL IN VIOLATION OF EFFECTIVE

       ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW, EQUEAL [sic]

       PROTECTION OF LAW, CONFRONTATION OF THE STATES [sic] EVIDENCE,

       AND FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT PURSUANT

       U.S.   CONSTITUTION         AMENDMENTS          V,   VI,   VIII AND       XIV;   OHIO

       CONSTITUTION ARTICLE I §§1, 2, 5, 9, 10, 16, 20.

       {¶ 47} Concerning Wilson’s claim of ineffective assistance of trial counsel, the trial

court reasoned as follows:

              In his Memorandum, Petitioner argues that his counsel was ineffective for

       “(n)ot filling (sic) of motion[s] and the whole defense itself.” The court notes that

       Petitioner’s defense at trial was, essentially, that he was not complicit in the offense

       and he raised the defense of self defense and defense of other, although, given the

       evidence, the court did not instruct the jury on the defenses alleged by

       Petitioner/Defendant. The aforementioned matters are within the trial record and,

       thus, any claim of ineffective assistance of counsel as to matters contained within the

       record have been rendered res judicata and are more properly the subject of [direct]

       appeal [from Wilson’s conviction].

       {¶ 48} We agree with the trial court’s conclusion, and only add the following. In
                                                                                               16


Wilson’s petition for post-conviction relief, he did not raise the issue of ineffective assistance

of trial counsel.    In his memorandum in support of his petition, he discussed the law

pertaining to ineffective assistance of trial counsel, but did not allege that his trial counsel was

ineffective. Elsewhere in his memorandum, he argued that his trial counsel had a conflict of

interest due to his trial counsel having been hired by Manson, his co-defendant, to represent

him. Manson was represented by separate counsel. Although Wilson does not make the

conflict-of-interest argument in this appeal, the trial court considered it, and correctly

concluded that: “There is absolutely no evidence, whether by affidavit or otherwise, to support

Petitioner’s claim that [his trial counsel] had some conflict of interest in his representation.”

       {¶ 49} Wilson’s Seventh Assignment of Error is overruled.

       {¶ 50} Wilson’s only remaining assignment of error, his Eighth Assignment of Error,

is as follows:

                 TRIAL COURT DISREGARDED APPELLANT’S CONSTITUTIONAL

       RIGHTS BY NOT ALLOWING AN IMPARTIAL JURY OF HIS PEERS AND

       PERMITTED JURY MISCONDUCT WHICH RESULTED IN AN UNFAIR TRIAL

       AND DUE PROCESS VIOLATION, EQUEAL [sic] PROTECTION OF LAW, AND

       FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT PURSUANT TO U.S.

       CONST. AMEND. V, VI, VIII AND XIV; OHIO CONST. ART. I §§1, 2, 5, 9, 10, 16,

       20.

       {¶ 51} Concerning the issue raised in this assignment of error, the trial court reasoned

as follows:

                 Petitioner also appears, in his Memorandum, to allege jury misconduct.
                                                                                              17


       However, he does not state the substance or factual predicate to his argument. As

       such, the court is left to speculate on the nature of his allegations. Since Petitioner has

       failed to state the basis for his allegation of jury misconduct, the court finds that he has

       failed to support his allegations and, thus, he has failed to state a basis for

       post-conviction relief based upon juror misconduct.

       {¶ 52} Again, we find no flaw in the trial court’s reasoning. Juror misconduct was

not alleged in Wilson’s petition for post-conviction relief. In his memorandum in support of

his petition, he discussed the law applicable to juror misconduct, but did not allege that any

juror misconduct occurred at his trial.

       {¶ 53} Wilson’s Eighth Assignment of Error is overruled.



                                          VI. Conclusion

       {¶ 54} All of Wilson’s assignments of error having been overruled, the order of the

trial court denying his petition for post-conviction relief, from which this appeal is taken, is

Affirmed.

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

DONOVAN and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck
Andrew T. French
Anthony L. Wilson
Hon. Mary K. Huffman
