[Cite as State v. Tucker, 2018-Ohio-4533.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-17-051

        Appellee                                 Trial Court No. 2016CR0401

v.

Robert Lee Tucker                                DECISION AND JUDGMENT

        Appellant                                Decided: November 9, 2018

                                             *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Alex K. Treece, for appellant.

                                             *****

        MAYLE, P.J.

        {¶ 1} Defendant-appellant, Robert Lee Tucker, appeals the September 27, 2017

judgment of the Wood County Court of Common Pleas denying his petition for

postconviction relief. For the reasons that follow, we affirm the trial court judgment.
                                      I. Background

       {¶ 2} Following a jury trial, Robert Lee Tucker was convicted of robbery, a

violation of R.C. 2911.02(A)(3), a third-degree felony, and obstructing official business,

a violation of R.C. 2921.31(A), a second-degree misdemeanor. The trial court sentenced

him to a prison term of 36 months on the robbery conviction, and 90 days on the

obstructing official business conviction, to be served concurrently. We affirmed

Tucker’s conviction in a decision dated May 11, 2018. State v. Tucker, 6th Dist. Wood

No. WD-16-063, 2018-Ohio-1869.

       {¶ 3} On March 15, 2017, Tucker filed a pro se petition for postconviction relief,

which he amended on August 24, 2017. The trial court denied Tucker’s motion on

September 17, 2017. Tucker timely appealed and assigns the following error for our

review:

              The trial court erred when it denied the Defendant/Appellant’s

       amended petition for post conviction relief under R.C. 2953.21 due to a

       violation of the Criminal Rule 16(B)(5) requirement to disclose “Any

       evidence favorable to the defendant and material to guilt or punishment.[“]

                                   II. Law and Analysis

       {¶ 4} While Tucker petitioned the trial court for postconviction relief on numerous

issues, he raises only one issue on appeal: whether the state violated Crim.R. 16(B) when

it failed to disclose exhibits, including a video depicting “the actual event giving rise to




2.
the charges,” later used at trial. He claims that he was unaware of the existence of the

exhibits until trial commenced.

       {¶ 5} Crim.R. 16(B) provides:

              Upon receipt of a written demand for discovery by the defendant

       * * *, the prosecuting attorney shall provide copies or photographs, or

       permit counsel for the defendant to copy or photograph, the following items

       related to the particular case indictment, information, or complaint, and

       which are material to the preparation of a defense, or are intended for use

       by the prosecuting attorney as evidence at the trial, or were obtained from

       or belong to the defendant, within the possession of, or reasonably available

       to the state, subject to the provisions of this rule:

              ***

              (5) Any evidence favorable to the defendant and material to guilt or

       punishment[.] (Emphasis added.)

       {¶ 6} Tucker acknowledges that he made no written request for discovery in the

trial court, but indicates that the state provided initial discovery responses on October 14,

2016. He maintains that the state proceeded as if discovery had been requested. He also

claims that the trial court treated this receipt of discovery responses as a tolling event for

speedy-trial purposes, but at trial, it “acted as if no request was ever made.” He

maintains that “the lower court cannot claim one thing at trial and the exact opposite in a

subsequent judgment entry.”




3.
       {¶ 7} The state responds that the trial record makes clear that Tucker made the

deliberate decision not to request discovery—despite knowing that the video recording

existed—because he did not want to toll the speedy-trial clock. It also argues that

Tucker’s argument is barred by res judicata because it could have been raised on direct

appeal.

       {¶ 8} The trial court in its judgment appears to have treated Tucker’s argument

concerning the non-disclosure of exhibits as a claim that new evidence had been

discovered. It concluded that “the discovery of new evidence of innocence after a

defendant has been tried, convicted and sentenced does not constitute a triable post-

conviction claim of substantive constitutional magnitude,” however, it noted that it had

“considered the argument and sees no merit in it under these facts.”

       {¶ 9} “[A] trial court’s decision to deny a petition for postconviction relief

involves mixed questions of law and fact. We review the trial court’s decision on factual

issues using a manifest weight standard of review, and we review the trial court’s

decision on legal issues de novo.” State v. Neyland, 6th Dist. Wood No. WD-12-014,

2013-Ohio-3065, ¶ 14, citing State v. Hoffner, 6th Dist. No. L-01-1281, 2002-Ohio-5201,

¶ 6.

       {¶ 10} Here, the record here is very clear that Tucker made the deliberate decision

not to request discovery. The October 26, 2016 trial transcript contains the following

exchange relative to this point:




4.
            The court: I need to address on the record, that the Court notes that

     the defense in this case did not request discovery. [Defense counsel], let’s

     address this issue.

            [Defense counsel]: Judge, I did not request discovery in this case

     and I advised the State that I did not. Mr. Tucker was represented at the

     arraignment by [former counsel] but had indicated at that time to this Court

     and through [former counsel] to me that he did not want to waive any of his

     speedy trial rights. * * * And so I explained to him that if I were to request

     discovery, pursuant to case law and rule, the speedy trial time is tolled

     based upon a request for discovery and stays tolled until reciprocal

     discovery is provided. With that understanding, he had agreed that he does

     not want to waive that speedy trial time, therefore, is in agreement with my

     not requesting discovery in this case. I explained to him in full that that put

     us at somewhat of a disadvantage because we are flying a little bit blind.

     We knew the facts of the case and we had discussed it previously, but there

     were evidentiary issues that could present themselves that I would not have

     access to because I had not requested discovery. My client indicated he

     was comfortable with going forward on that basis.

            The court: Mr. Tucker, is that correct?

            The defendant: Yes, Your Honor, it is.




5.
            The court: And you directed your attorney not to request discovery

     specifically for that reason?

            The defendant: Yes, Your Honor, I did.

            The court: So that his failure to request discovery is not any failing

     on his part to represent you effectively, that is following your direction?

            The defendant: That is correct, Your Honor. Yes.

            The court: All right.

            [The state]: * * * I would note that I have a second DVD that was

     available for inspection, and the DVD surveillance video from the parking

     lot of Walmart where the defendant allegedly tried to run over J.R.

            The court: All right, well this is apparently a tactical decision on the

     part of the defendant. * * *

            [Defense counsel]: Judge, I did want to put on the record just for

     information with regard to the tactical decision to not request discovery,

     Mr. Tucker and I had discussed tactically the potential for that video that

     the State talked about – of the parking lot – existing and us not having

     access to it. So we had discussed that possibility, and even with that

     understanding, he still was in agreement not to request discovery.

            The court: Is that right, Mr. Tucker?

            The defendant: Yes, Your Honor, it is.




6.
       {¶ 11} The record is clear that Tucker made a conscious, tactical decision, not to

request discovery and was advised by counsel of the potential consequences of that

decision. Accordingly, we find no error in the trial court’s denial of Tucker’s petition for

postconviction relief. We also agree with the state that this was an issue that could have

been raised on direct appeal, therefore, Tucker is barred by res judicata from raising this

issue now. See State v. Henson, 6th Dist. Erie No. E-11-068, 2012-Ohio-3730, ¶ 20

(“Under res judicata a convicted defendant is barred from litigating issues that were

raised or could have been raised at trial or on direct appeal from the judgment of

conviction.”).

       {¶ 12} Accordingly, we find Tucker’s sole assignment of error not well-taken.

                                      III. Conclusion

       {¶ 13} Tucker made the deliberate decision not to request discovery to avoid

tolling the speedy-trial time, therefore, the state did not violate Crim.R. 16(B) by failing

to disclose exhibits. Moreover, Tucker’s claim here could have been raised on direct

appeal. The trial court did not err in denying his petition for postconviction relief. We

find his sole assignment of error not well-taken, and we affirm the September 27, 2017

judgment of the Wood County Court of Common Pleas. Tucker is ordered to pay the

costs of this appeal under App.R. 24.


                                                                         Judgment affirmed.




7.
                                                               State v. Tucker
                                                               C.A. No. WD-17-051




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




8.
