[Cite as State v. Tullis, 2014-Ohio-1286.]




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

 STATE OF OHIO                                   :
                                                 :     Appellate Case No. 2013-CA-55
          Plaintiff-Appellee                     :
                                                 :     Trial Court Case No. 12-CR-607
 v.                                              :
                                                 :
 DAMERICK TULLIS                                 :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
          Defendant-Appellant                    :
                                                 :
                                             ...........
                                             OPINION
                               Rendered on the 28th day of March, 2014.
                                             ...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by NATHANIEL R. LUKEN, Atty. Reg.
#0087864, Greene County Prosecuting Attorney, 61 Greene Street, Xenia, Ohio 45385
      Attorneys for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. #0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385
      Attorney for Defendant-Appellant

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

HALL, J.,

        {¶ 1}     Damerick Tullis appeals the trial court’s entry of summary judgment for the state

on his petition for postconviction relief. Finding no error, we affirm.
[Cite as State v. Tullis, 2014-Ohio-1286.]
                                              I. FACTS

        {¶ 2}     The trial court overruled Tullis’s motion to suppress the statements and

confessions he made to detectives, and Tullis pleaded no-contest to two counts of voyeurism, two

counts of burglary, two counts of kidnaping, one count of attempted rape, and one count of rape.

Tullis appealed to this Court, arguing that the trial court erred in overruling his motion to

suppress. Our opinion recited the following facts, pertinent here:

                 On the morning of October 17, 2011, Detective Daniel Foreman called

        Tullis at Wright-Patterson Air Force Base, where Tullis worked, and asked him to

        come to the [Fairborn] police department to discuss some cases. Tullis agreed and

        arrived at the department a little after noon the same day. Detective Foreman and

        Detective Ryan Whittaker met Tullis and took him to an interview room. Foreman

        told Tullis that he was not under arrest and that he was free to leave at anytime. *

        **

                 The detectives questioned Tullis about an incident of voyeurism. They told

        Tullis that a witness had reported seeing him peering into a neighbor’s windows.

        At first, Tullis denied that he had done this, but later, he confessed. Tullis also

        confessed to a second incident of voyeurism and confessed to burglary, kidnaping,

        and rape. The interview lasted about two hours. When the interview was

        completed, Tullis was allowed to leave the police department.

State v. Tullis, 2d Dist. Greene No. 2012-CA-59, 2013-Ohio-3051, ¶ 2-3.

        {¶ 3}     Tullis argued in his direct appeal that his confession was involuntarily given:

                 Tullis contends that the detectives induced him to confess by promising

        that if he confessed, his employer would not be told. Tullis initially denied that he
                                                                                                  3


       had done anything wrong, but later he confessed to an instance of voyeurism.

       Tullis says that he confessed because one of the detectives told him that “this

       doesn’t even have to be something that the Base finds out about since it’s

       relatively minor” and that “the Base doesn’t have to get involved in all this.”

       Later, says Tullis, when the detective confronted him with allegations of another

       instance of voyeurism, burglary, and rape, the detective said to him, “If I feel like

       you’re being dishonest with me, then I gotta get a hold of the Base and stuff like

       that.” Tullis says that the threat to contact the Base induced him to confess

       because he did not want the Base to find out, which would ruin his military career.

       In other words, says Tullis, this threat communicated hope that if he confessed, he

       would receive the benefit of continuing his life and career without interruption.

Id. at ¶ 20. We rejected Tullis’s argument, concluding that “[n]othing in these facts and

circumstances suggests improper coercion leading to an involuntary confession.” Id. at ¶ 23. We

said that there was “nothing unduly coercive here in the detectives’ conduct or language,” id., and

we found that Tullis’s will was not overborne:

       It was unreasonable of Tullis to infer from the detectives’ statements that a

       confession would mean that the Base would not find out. Even someone

       unfamiliar with the statutory penalties for the potential offenses would realize that

       the matter had serious consequences. Tullis should have realized that the Base was

       bound to find out, in fact he said he had already sought counseling related to his

       tendencies that led to the offenses. Given what the evidence reveals about Tullis,

       we do not think that his will was overborne by the detectives’ conduct and
                                                                                                  4


        language.

Id. at ¶ 22.

        {¶ 4}   While we were deciding his direct appeal, Tullis filed with the trial court a

petition for postconviction relief, arguing that new evidence shows that the detective’s statements

quoted above were unconstitutionally coercive. Tullis claims in the petition that Detective

Foreman’s statement that “stated or implied that the military may never need to know about (the)

interview and the contents” “ultimately contributed” to his confessions. (Petition for

Post-Conviction Relief). The statement, says Tullis, “was not only not accurate but there is no

chance that it would have been true given the process that is employed by the Wright Patterson

Air Force Base.” (Id.). In support, Tullis attached to the petition copies of agreements that the

88th Security Forces Squadron at Wright-Patterson has with area law enforcement, including the

Fairborn police department. Under these agreements, law enforcement must give the Security

Forces Squadron any criminal information that it collects involving active duty military personnel

and must tell the squadron if it incarcerates or charges any base personnel with a crime. Tullis

asserts that Detective Foreman, who testified at the motion-to-suppress hearing that he had been

in the military, must have known what the agreements required and therefore that what he was

telling Tullis was untrue.

        {¶ 5}   The state moved for summary judgment. Attached to its motion is an affidavit

from Detective Foreman in which he avers, “At the time of the interview, I was unaware of any

mutual aid agreement between the Fairborn Police Department and Wright Patterson Air Force

Base Security Forces calling for the Fairborn Police to apprise Base Security Forces about all

criminal investigations regarding active duty personnel.” (Affidavit of Dan Foreman, Detective
                                                                                                       5


Fairborn Police Department, ¶ 3). Instead, avers Detective Foreman, “* * * I was operating

under a policy wherein the Base Security Forces would be notified if any personnel were arrested

and placed in custody. * * *” (Id. at ¶ 4).

       {¶ 6}    While the trial court was deciding the summary-judgment motion, we entered

judgment in Tullis’s direct appeal. Based on our Tullis opinion, the trial court granted the state

summary judgment. The court cited our determination (quoted above) that it was unreasonable

for Tullis to infer from Detective Foreman’s statements that a confession would mean the

military would not find out about the situation. And the court cited our determination that there

was nothing unduly coercive in the detective’s conduct or language that overbore Tullis’s will.

Given our conclusion that Tullis’s confession was voluntarily made, said the court, no genuine

issue of material fact remains.

       {¶ 7}    Tullis appealed.



                                              II. ANALYSIS

       {¶ 8}    Tullis alleges that the trial court erred by entering summary judgment for the state

on his petition for post-conviction relief. He contends that the trial court failed to address the

issues presented in the petition and should not have relied solely on our direct-appeal opinion.

       {¶ 9}    Tullis says that the trial court does not refer to any of the petition’s arguments or

mention the new evidence presented. Instead, says Tullis, the court “essentially ratifies” our

decision on a “tangentially related assignment of error.” (Brief of Appellant). He says that the trial

court’s decision “simply makes generic conclusive statements that because another court decided

an issue of similar import that there need be no further examination of the issue presented.” (Id.).
                                                                                                      6


       {¶ 10} “[A] petition for postconviction relief ‘is not an appeal of a criminal conviction

but, rather, a collateral civil attack on the judgment,’ in which a claimant asserts that either actual

innocence or deprivation of constitutional rights renders the judgment void.” State v. Silsby, 119

Ohio St.3d 370, 2008-Ohio-3834, 894 N.E.2d 667, ¶ 16, quoting State v. Calhoun, 86 Ohio St.3d

279, 281, 714 N.E.2d 905 (1999). The governing statute, R.C. 2953.21, provides that “[a]ny

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 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.” R.C. 2953.21(A)(1)(a).

       {¶ 11} Summary judgment must be entered if the summary-judgment evidence “show[s]

that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Civ.R. 56(C). Here the key question is whether any issue of fact

exists as to whether there has been a denial or infringement of Tullis’s rights. In Tullis, we

concluded that his constitutional rights were not denied or infringed upon by Detective

Foreman’s statements because the statements were not unconstitutionally coercive. The new facts

asserted by Tullis in his petition do not affect this conclusion. Detective Foreman’s affidavit

shows that, at the time of the interview, he did not know that the Fairborn police were required to

tell the base about criminal investigations involving base personnel. Also, the accuracy of the

detective’s statements is irrelevant to the analysis. As we said in Tullis, “ ‘ “[t]he line to be drawn

between permissible police conduct and conduct deemed to induce or tend to induce an

involuntary statement does not depend upon the bare language of inducement but rather upon the
                                                                                                 7


nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the

police.” ’ Police use of tactics like admonitions to tell the truth are not improper.” (Emphasis

added.) (Citations omitted.) Tullis, 2013-Ohio-3051, at ¶ 22, quoting State v. Jackson, 2d Dist.

Greene No. 02CA0001, 2002-Ohio-4680, ¶ 28, quoting People v. Flores, 144 Cal.App.3d 459,

192 Cal.Rptr. 772 (1983). Here, “[t]he detectives * * * simply urged Tullis, in a variety of ways,

to tell the truth.” Id.

        {¶ 12} The trial court is correct that no issue of material fact remains. The entry of

summary judgment for the state was proper.

        {¶ 13} The sole assignment of error is overruled.

        {¶ 14} The trial court’s judgment is affirmed.

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



FROELICH, P.J., and WELBAUM, JJ., concur.



Copies mailed to:

Stephen K. Haller
Jay A. Adams
Nathaniel R. Luken
Hon. Stephen Wolaver
