[Cite as State v. Garner, 2011-Ohio-5582.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


THE STATE OF OHIO,                             :     JUDGES:
                                               :
                                               :     Hon. W. Scott Gwin, P.J.
                       Plaintiff-Appellee,     :     Hon. Julie A. Edwards, J.
                                               :     Hon. Patricia A. Delaney, J.
v.                                             :
                                               :     Case No. 2011-CA-00075
MARCUS GARNER,                                 :
                                               :
                                               :
                       Defendant-Appellant.    :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas Case No. 2009-CR-0855


JUDGMENT:                                          AFFIRMED

DATE OF JUDGMENT ENTRY:                            October 24, 2011


APPEARANCES:

For Plaintiff-Appellee:                              For Defendant-Appellant:

JOHN D. FERRERO 0018590                              CLAIRE R. CAHOON 0082335
Stark County Prosecutor                              Office of the Ohio Public Defender
110 Central Plaza, South, Ste. 510                   250 East Broad Street, Ste. 1400
Canton, Ohio 44702                                   Columbus, Ohio 43215

RENEE M. WATSON 0072906
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Garner, 2011-Ohio-5582.]


Delaney, J.

        {¶ 1} Defendant-Appellant, Marcus Garner, appeals the judgment of the Stark

County Court of Common Pleas, denying his petition for postconviction relief. The State

of Ohio is Plaintiff-Appellee.

        {¶ 2} On May 21, 2009, Appellant was at a bar, The Spot, in Canton, Ohio. At

the bar, Appellant got into a heated argument with Monaray Jones. Jones left the patio

area of the bar and walked back into the bar. Appellant followed. A fight then erupted

inside the bar between Appellant and Jones, and several others. The bar's bouncers

broke up the fight and the participants subsequently left the bar.

        {¶ 3} Outside of the bar, witnesses testified Appellant and Jones arguing in the

parking lot. Appellant then pointed a gun and fired a shot at Jones’ feet and then again

into the air. Appellant turned around and walked back toward the bar. As he did, Jones

obtained a gun and fired at Appellant as he was walking away. Appellant shot back,

shooting Jones in the face. Appellant then got on his motorcycle and fled the scene.

Jones died as a result of his injuries.

        {¶ 4} In July, 2009, Appellant was indicted on one count of voluntary

manslaughter, a felony of the first degree, with a firearm specification, and one count of

having a weapon under disability. In October, 2009, Appellant exercised his right to a

jury trial and was found guilty as charged. He was then sentenced to an aggregate of

15 years in prison.

        {¶ 5} Appellant filed a direct appeal with this Court, and raised four assignments

of error. In his first assignment of error, he argued that the trial court erred in refusing to

issue a jury instruction on self-defense. In his second and third assignments of error, he
Stark County, Case No. 2011-CA-00075                                                     3


challenged the weight and sufficiency of the evidence. In his fourth assignment of error,

he argued that he received the ineffective assistance of trial counsel for failing to call

witnesses or to provide evidence in support of his self-defense claim.

       {¶ 6} This Court, in State v. Garner, 5th Dist. No. 2009CA286, 2010-Ohio-3891,

affirmed Appellant’s convictions, finding no error in the trial proceedings below. This

Court noted that Appellant argued to the jury the case was about mistaken identity, not

self-defense.    After reviewing the law in regards to self-defense, including the

requirement that a defendant must prove he is not at fault for creating the situation

giving rise to the affray, this Court stated that “numerous witnesses testified they

witnessed Appellant brandish a gun, point at Jones and make intimidating statements.

The testimony established Appellant brandished and shot his gun first.” Id. at ¶ 20.

Accordingly, we concluded “* * * the trial court did not abuse its discretion in not

instructing the jury as to self defense. The evidence demonstrates Appellant was at fault

in creating the situation giving rise to the shooting of Monaray Jones.” Id. at ¶ 112.

       {¶ 7} On June 25, 2010, Appellant filed a petition for postconviction relief,

claiming ineffective assistance of trial counsel. Specifically, Appellant argued trial

counsel was ineffective for failing to investigate exculpatory eyewitnesses to support a

self-defense theory. In support, Appellant submitted the affidavit of Christopher Huff, a

bar bouncer, who did not testify at trial. Appellee filed a response to the petition and a

motion to dismiss and for summary judgment.

       {¶ 8} The trial court dismissed Appellant’s petition, finding his claim of

ineffective assistance to be res judicata. Additionally, the court stated that even if the

claim were not barred by res judicata, Appellant’s complaint was without merit.
Stark County, Case No. 2011-CA-00075                                                      4


       {¶ 9} Appellant appealed the denial of the postconviction petition, and argued

that the trial court erred in failing to give him fourteen days to respond to the Appellee’s

motion for summary judgment. This Court reversed and remanded the case in State v.

Garner, 5th Dist. No. 2010-CA-236, 2011-Ohio-1209, finding that the trial court violated

Appellant’s rights in denying him the opportunity to respond to the Appellee’s motion

within the time limit proscribed by law.

       {¶ 10} The trial court again denied Appellant’s petition and dismissed it without

an evidentiary hearing, finding Appellant’s ineffective assistance claim to be barred and

also without merit.

       {¶ 11} It is from that judgment that Appellant now appeals, raising three

Assignments of Error:

       {¶ 12} “I.     THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S

POSTCONVICTION PETITION AS BARRED BY RES JUDICATA WHEN THE

PETITION INCLUDED EVIDENCE DEHORS THE RECORD.

       {¶ 13} “II.    THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S

POSTCONVICTION          PETITION,      BECAUSE      MR.     GARNER       PRESENTED        A

SUBSTANTIVE GROUND FOR RELIEF IN OFFERING SUFFICIENT EVIDENCE

THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 14} “III.   THE TRIAL COURT ERRED IN DISMISSING MR. GARNER’S

POSTCONVICTION PETITION WITHOUT AN EVIDENTIARY HEARING WHEN THE

PETITION DEMONSTRATED SUFFICIENT OPERATIVE FACTS TO ESTABLISH

SUBSTANTIVE GROUNDS FOR RELIEF.
Stark County, Case No. 2011-CA-00075                                                      5


                                         I., II., III.

       {¶ 15} In Appellant’s assignments of error, he argues that the trial court erred in

dismissing his postconviction petition because his claim was not barred by res judicata.

He further argues that he presented sufficient evidence to warrant an evidentiary

hearing and for relief to be granted.

       {¶ 16} When a defendant files a postconviction petition pursuant to R.C. 2953.21,

the trial court must grant an evidentiary hearing unless it determines that the files and

records of the case show that the petitioner is not entitled to relief. R.C. 2953.21(E). A

trial court may also dismiss a petition for postconviction relief without holding a hearing

when the doctrine of res judicata bars the claims raised in the petition. State v. Szefcyk

(1996), 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233. “Res judicata is applicable in

all postconviction relief proceedings.” Id. at 95. Under the doctrine of res judicata, a

defendant who was represented by counsel is barred from raising an issue in a petition

for postconviction relief if the defendant raised or could have raised the issue at trial or

on direct appeal. Id. “Generally, the introduction in an R.C. 2953.21 petition of evidence

dehors the record of ineffective assistance of counsel is sufficient, if not to mandate a

hearing, at least to avoid dismissal on the basis of res judicata.” State v. Cole (1982) 2

Ohio St.3d 112, 114, 443 N.E.2d 169.

       {¶ 17} We apply an abuse of discretion standard when reviewing a trial court's

decision to deny a postconviction petition without a hearing. An abuse of discretion

connotes more than an error of law or judgment; it entails a decision that is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219.
Stark County, Case No. 2011-CA-00075                                                       6


       {¶ 18} Appellant filed a direct appeal, arguing that trial counsel was ineffective for

failing to present sufficient evidence that Appellant acted in self-defense and for failing

to call certain witnesses to testify on his behalf. However, Appellant did not specify the

evidence or witness testimony that trial counsel failed to submit to demonstrate

Appellant acted in self-defense. Accordingly, this Court made a determination that “this

argument relies upon evidence outside the record and not properly before this Court”.

Garner, supra, at ¶ 126.

       {¶ 19} Subsequently, Appellant submitted the affidavit of Christopher Huff in

support of the postconviction petition. In the affidavit, Huff avers in relevant part:

       {¶ 20} “ 1. I was employed at The Spot, 2600 8th Street Northeast, Canton, Ohio

44704, as a bouncer for approximately one year. I was working as a bouncer at The

Spot on the night of May 21, 2009.

       {¶ 21} “ 2. Both Monaray Jones and Marcus Garner were at The Spot that night.

I attended high school with Monaray and am acquainted with Marcus Garner from the

neighborhood. I am not friendly with either man.

       {¶ 22} “3. A fight broke out in the bar that night around 11 p.m., which involved

both Monaray Jones and Marcus Garner. The other bouncers and I broke up the fight

by having Mr. Jones and his group leave The Spot, while Mr. Garner and his friends

stayed inside.

       {¶ 23} “4. “After several minutes, Mr. Garner and his friends became concerned

that Mr. Jones and his friends might be vandalizing their motorcycles. I accompanied

the group outside along with Darren Moreland, who was another bouncer at The Spot.
Stark County, Case No. 2011-CA-00075                                                      7


       {¶ 24} “5. Mr. Jones was still outside with his friends. Mr. Garner approached

him and they had a verbal argument.

       {¶ 25} “6. At that point, Mr. Garner produced a gun and fired a warning shot.

       {¶ 26} “7. Mr. Garner then turned and began walking back toward the front of

The Spot where his motorcycle was parked.

       {¶ 27} “8. As Mr. Garner was walking away, a man approached Monaray Jones

and embraced him. Mr. Jones then produced a gun and fired at Mr. Garner.

       {¶ 28} “9.    At that point, I ran back into the bar with Darrell Mooreland and

several bar patrons.

       {¶ 29} “10. I heard several more shots fired, but I did not see any of them.

       {¶ 30} “ * * *.”

       {¶ 31} In this petition, Appellant concedes that self-defense is generally

eliminated under Ohio law if the defendant is the first aggressor. However, he argues

that the Ohio Supreme Court has recognized an exception – that a defendant’s right to

self defense is revived when the defendant withdraws as far as he can from the affray in

good faith, citing Ohio Jury Instructions (2010), Section 421.19(4).

       {¶ 32} Appellant contends that Huff, a credible neutral eyewitness who was not

called at trial, defeats the bar of res judicata because the affidavit dehors the record.

Appellant contends this supports his claim of ineffective assistance of counsel because

trial counsel did not investigate and discover Huff’s exculpatory observation pretrial.

       {¶ 33} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that his trial counsel acted incompetently.

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. In assessing such
Stark County, Case No. 2011-CA-00075                                                     8


claims, “a court must indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’” Id. at 689, quoting Michel v. Louisiana (1955), 350

U.S. 91, 101, 76 S.Ct. 158, 164.

       {¶ 34} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶ 35} Even if a defendant shows that his counsel was incompetent, the

defendant must then satisfy the second prong of the Strickland test. Under this “actual

prejudice” prong, the defendant must show that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

       {¶ 36} The trial court, in denying Appellant’s petition, found that Appellant failed

to meet his initial burden of providing sufficient evidentiary documentation containing

sufficient operative facts to demonstrate the lack of competent counsel or that he was

prejudiced by the alleged ineffectiveness of counsel.

       {¶ 37} The trial court, in rejecting Appellant’s petition, found that even if his

claims were not barred procedurally, they were substantively without merit. Specifically,

the court stated, “The Court had the opportunity to view the testimony and videotape at

trial. The Court finds it difficult to second guess Petitioner’s counsel’s strategy and is

not persuaded that counsel’s strategy was outside the range of professionally
Stark County, Case No. 2011-CA-00075                                                         9


competent assistance. From the Court’s review of the testimony, Petitioner pulled out a

gun and fired shots in the direction of the deceased. The deceased then produced a

gun and fired at Petitioner. Petitioner then fired the fatal shots which caused the death

of the deceased. As the evidence showed that Petitioner was the initiator of the gun

fight, the Court understands counsel’s decision not to call Petitioner as a witness at trial.

       {¶ 38} “More importantly the Court finds Petitioner’s claim that the jury should

have been given an instruction on self-defense to be disingenuous where the evidence

showed that Petitioner pulled out a gun and fired the first shots. The Court is not

persuaded that Petitioner can show that his counsel’s performance was lacking and that

the outcome of the trial would have been different had counsel chosen a different

strategy.

       {¶ 39} “The Court has considered Petitioner’s July 22, 2010 Reply to the State’s

Motion to Dismiss and for Summary Judgment and the Court reiterates its previous

position. After watching the evidence unfold at trial, it is clear that an instruction on self-

defense was inappropriate, as Petitioner was the aggressor.              After reviewing the

evidence, the Court would not have allowed such an instruction to be submitted to the

jury. It was obvious to the Court that there was no good-faith intention on the part of the

Petitioner to withdraw from the situation.       While Petitioner now tries to submit the

Affidavit of Christopher Huff to bolster his claim, the Court had the opportunity to view

the videotape and hear the testimony at trial.” (Emphasis added).

       {¶ 40} In determining the credibility of supporting affidavits in postconviction relief

proceedings, the Ohio Supreme Court determined that a trial court, in assessing the

credibility of affidavit testimony in so-called paper hearings, should consider all relevant
Stark County, Case No. 2011-CA-00075                                                       10

factors. State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905. Among

those factors are “(1) whether the judge reviewing the postconviction relief 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. Moreover, a trial court

may find sworn testimony in an affidavit to be contradicted by evidence in the record by

the same witness, or to be internally inconsistent, thereby weakening the credibility of

that testimony. (Citation omitted).

       {¶ 41} “Depending on the trial court 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. Such a decision should be within the discretion of the trial

court. 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 order

that meaningful appellate review may occur.” Id. at 285.

       {¶ 42} Upon review, we do not find that the trial court abused its discretion in

discounting Huff’s affidavit and in denying Appellant’s petition without a hearing. The

affidavit of Huff does not provide any exculpatory information that would have altered

the outcome of Appellant’s trial. Appellant concedes that Huff’s affidavit is consistent

with the testimony of two witnesses for the State, Daryle Bryant and Brandon Isles, who

testified Appellant turned away from the victim and started walking back towards the

motorcycles.    In fact, the State remarked in closing argument “it is clear from the
Stark County, Case No. 2011-CA-00075                                                       11


testimony the Defendant walked away and Monaray produced his own gun and started

to fire at the Defendant.” T. Vol. 4, p. 77.

       {¶ 43} If defense counsel was ineffective in failing to present a retreat theory to

the jury and requesting a specific jury instruction in that regard, it is this Court’s opinion

such a claim could have been raised on direct appeal or upon an application for

reopening. We would note that defense counsel did request a self-defense instruction

because “my client had walked away from the dispute”. T. Vol. 4, p. 50. Thus, the trial

court correctly concluded that res judicata applies and bars Appellant’s petition.

       {¶ 44} The trial court also was within its discretion in determining that Huff’s

affidavit was inconsequential, assuming its truthfulness, because the judge who

reviewed the petition was the same judge who presided at the trial and was in the best

position to observe the evidence, and thus determine Appellant did not set forth

substantive grounds for relief.

       {¶ 45} Appellant’s first, second, and third assignments of error are overruled.
Stark County, Case No. 2011-CA-00075                                               12


      {¶ 46} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and Edwards, J. concur.




                                     HON. PATRICIA A. DELANEY



                                     HON. W. SCOTT GWIN



                                     HON. JULIE A. EDWARDS
[Cite as State v. Garner, 2011-Ohio-5582.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

THE STATE OF OHIO,                             :
                                               :
                       Plaintiff-Appellee,     :
                                               :
                                               :
v.                                             :    JUDGMENT ENTRY
                                               :
MARCUS GARNER,                                 :
                                               :
                       Defendant-Appellant.    :    Case No. 2011-CA-00075
                                               :




     For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

Appellant.



                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY


                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. JULIE A. EDWARDS
