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Date: 05-19-2020
Case Style:
STATE OF OHIO v.
AARON SMITH
Case Number: 19CA16
Judge: Michael D. Hess
Court: IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
Plaintiff's Attorney: Anneka P. Collins, Highland County Prosecuting Attorney, Adam J. King, Highland
County Assistant Prosecuting Attorney
Defendant's Attorney:
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After a jury convicted Smith of burglary, a second-degree felony, and theft,
a first-degree misdemeanor, the trial court sentenced him to a five-year prison term. Smith
appealed, contending that his sentence was unsupported by the record. He argued that
he should not have been sentenced to prison, but instead ordered to attend drug
rehabilitation for his substance abuse relapse and ordered to pay restitution to the victims.
We overruled his assignment of error and affirmed his convictions. State v. Smith, 4th
Dist. Highland No. 18CA13, 2019-Ohio-275.
{¶4} Smith filed a timely petition for postconviction relief. In the petition, Smith
contended that he was denied effective assistance of counsel because: (1) his attorney
failed in his essential duties of pretrial investigation, advisory and sentencing phases of
Highland App. No. 19CA16 3
trial and (2) his trial attorney failed to file a motion to withdraw or support Smith’s request
for substitute counsel.
{¶5} To support his first claim, Smith submitted the affidavits of his uncle, Ronald
L. Yates (a.k.a. Charlie Yates), and two cousins, April Yates and Stacey Calhoun. In his
affidavit Ronald Yates states that he lived in the residence Smith burglarized with his
daughter and her husband, Savannah and Travis Ecton. Smith is Yates’s nephew and
lived next door as a child growing up. During his youth Smith routinely entered Yates’s
home without permission and Yates had never told Smith he could not enter the house
unless invited. The affidavits of April Yates and Stacey Calhoun corroborated their father’s
affidavit.
{¶6} Smith contended that Yates’s affidavit testimony established that Smith was
not trespassing at the time he entered the home, trespass being an element of his
burglary conviction. Smith argued that although his trial attorney contacted Yates before
the trial, his attorney did not ask “reasonable questions” and adopted a trial strategy
different from the one Smith believed would be successful.
{¶7} As part of his first claim, Smith also contended that his trial attorney was
ineffective at the sentencing phase for failing to correct errors in Smith’s criminal history.
Smith argued that his record states that he was guilty of a 2015 attempted burglary when,
in fact, it was robbery, and that his record includes a 2014 illegal possession of drug
charge about which Smith has “no knowledge of this charge or why it would be part of my
record.”
{¶8} For his second claim, Smith contended that his trial counsel was ineffective
for failing to seek a continuance to retain a new attorney because he disagreed with his
Highland App. No. 19CA16 4
attorney’s trial strategy. Smith made an oral request for a continuance on the day of trial
and the trial court denied it.
{¶9} The trial court denied Smith’s petition for postconviction relief because he
failed to support his petition with evidence of sufficient operative facts to demonstrate
ineffective assistance of counsel. Specifically, the affidavits attached to Smith’s petition
established only that Yates had given Smith past consent during childhood to enter the
premises. The trial court reviewed the trial transcript and noted that Yates had surgery
and was not residing at the home at the time of the burglary or in the two months prior to
it. The sole residents at the time of the burglary were the victims, Savannah and Travis
Ecton. Travis Ecton testified that when he came home from work he discovered his front
door ajar and an “intruder” in his bedroom, who fled out the back door when Ecton
discovered him. The trial court found that any past privilege Smith may have had to enter
the residence was not relevant to whether he had permission from Ecton and his wife to
enter the residence, and specifically their bedroom, while they were not there. Thus, the
affidavit testimony lacked relevance and would have been inadmissible at trial. See July
12, 2019, Decision and Entry Denying Motion for Post Conviction Relief Without Hearing,
p. 2-4.
{¶10} Additionally, the trial court found that, even if affidavit testimony were
allowed, Smith did not demonstrate that there is a reasonable probability that the result
of the trial would have been different if trial counsel would have presented this testimony.
Past consent does not constitute current consent. Ecton testified that Smith was an
intruder whom he chased out of his bedroom and down the alley until Smith dropped
Ecton’s belongings and Smith’s own wallet in the process.
Highland App. No. 19CA16 5
{¶11} As to Smith’s contention that his trial counsel failed to effectively interview
Yates, the trial court found that the record showed that his attorney did speak with the
victims and Smith conceded that his attorney spoke to Yates. The trial court determined
that Smith’s attorney’s decision not to call Yates as a witness was trial strategy and not
generally grounds for finding that trial counsel’s performance constituted ineffective
assistance of counsel. See July 12, 2019, Decision and Entry Denying Motion for Post
Conviction Relief Without Hearing, p. 6.
{¶12} The trial court addressed Smith’s second claim that his attorney was
ineffective for failing to obtain a trial continuance and for not withdrawing as his attorney.
The trial court found that Smith failed to submit an affidavit setting forth the facts alleged
in his petition concerning this contention and failed to attach a transcript of the pretrial
hearing. The trial court stated that it had reviewed the transcripts of three other pretrial
hearings that were part of the record on appeal and found no reference to Smith’s request
for a continuance or for a new attorney. See July 12, 2019, Decision and Entry Denying
Motion for Post Conviction Relief Without Hearing, p. 3.
{¶13} The trial court found that Smith’s petition for postconviction relief did not
allege substantive grounds for relief as required to entitle him to postconviction relief
under R.C. 2953.21.
{¶14} Smith filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶15} Smith assigns the following errors for our review:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT PROPERLY
ISSUING SUFFICIENT FINDINGS OF FACT AND CORRECT LEGAL
ANALYSIS AND CONCLUSIONS OF LAW.
Highland App. No. 19CA16 6
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPROPERLY
CONCLUDED THAT THE TESTIMONY OF THE WITNESSES AS SET
FORTH IN THE AFFIDAVITS WOULD NOT HAVE BEEN ALLOWED
UNDER THE RULES OF EVIDENCE.
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
COLLECTIVELY CONSIDER THE INSTANCES OF INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS DURING PRE-TRIAL, ADVISORY
AND SENTENCING PHASES OF THE TRIAL.
IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MY
PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING.
III. LAW AND ANALYSIS
A. Standard of Review
{¶16} Generally we review decisions granting or denying a postconviction relief
petition filed pursuant to R.C. 2953.21 under an abuse of discretion standard. State v.
Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 58. In Gondor, the Court
recognized that the differences between a direct appeal and an appeal from a
postconviction relief petition warranted different appellate standards of review. Id. at ¶ 53-
54. The Court stated, “A postconviction claim is not an ordinary appeal: ‘A postconviction
proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on
the judgment.’ ” Id. at ¶ 48, quoting State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d
67 (1994). The holding in Gondor broadly applies to all appellate postconviction petition
review: “[A] trial court's decision granting or denying a postconviction petition filed
pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court's finding on a petition for postconviction relief that
is supported by competent and credible evidence.” Gondor at ¶ 58; State v. Black, 4th
Dist. Ross No. 15CA3509, 2016-Ohio-3104, ¶ 7. “A trial court abuses its discretion when
Highland App. No. 19CA16 7
its decision is unreasonable, arbitrary, or unconscionable.” State v. Knauff, 4th Dist.
Adams No. 13CA976, 2014–Ohio–308, ¶ 19, citing Cullen v. State Farm Mut. Auto Ins.
Co., 137 Ohio St.3d 373, 2013–Ohio–4733, 999 N.E.2d 614, ¶ 19.
{¶17} The postconviction relief process is a collateral civil attack on a criminal
judgment rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279,
281, 1999-Ohio-102, 714 N.E.2d 905. The postconviction relief proceeding is designed
to determine whether “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.” R.C. 2953.21(A)(1)(a). Postconviction review is not a constitutional
right; instead, it is a narrow remedy that gives the petitioner no more rights than those
granted by statute. Id. It is a means to resolve constitutional claims that cannot be
addressed on direct appeal because the evidence supporting the claims is not contained
in the record. State v. Teets, 4th Dist. Pickaway No. 17CA21, 2018-Ohio-5019, ¶ 14. “This
means that any right to postconviction relief must arise from the statutory scheme enacted
by the General Assembly.” State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744,
121 N.E.3d 351, ¶ 35.
{¶18} A criminal defendant seeking to challenge a conviction through a petition
for postconviction relief is not automatically entitled to an evidentiary hearing. Calhoun at
282, citing State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). Before granting an
evidentiary hearing, the trial court must determine whether substantive grounds for relief
exist. R.C. 2953.21(D). In making such a determination, the court shall consider the
petition, supporting affidavits, documentary evidence, and all the files and records from
Highland App. No. 19CA16 8
the case. Calhoun at 284 (noting that R.C. 2953.21 “clearly calls for discretion in
determining whether to grant a hearing” on a petition for postconviction relief).
{¶19} “Substantive grounds for relief exist and a hearing is warranted if the
petitioner produces sufficient credible evidence that demonstrates the petitioner suffered
a violation of the petitioner's constitutional rights.” In re B.C.S., 4th Dist. Washington No.
07CA60, 2008-Ohio-5771, ¶ 11. Moreover, before a hearing is warranted, the petitioner
must demonstrate that the claimed “errors resulted in prejudice.” Calhoun at 283. A court
may dismiss a petition for postconviction relief without a hearing when the petitioner fails
to submit evidentiary material “demonstrat[ing] that petitioner set forth sufficient operative
facts to establish substantive grounds for relief.” Id. at paragraph two of the syllabus. See
also State v. Lewis, 4th Dist. Ross No. 10CA3181, 2011-Ohio-5224, ¶ 11; State v. Slagle,
4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 14.
A petitioner is not entitled to a hearing if his claim for relief is belied by the
record and is unsupported by any operative facts other than Defendant's
own self-serving affidavit or statements in his petition, which alone are
legally insufficient to rebut the record on review. In reviewing petitions for
post-conviction relief, a trial court may, in the exercise of its sound
discretion, weigh the credibility of affidavits submitted in support of the
petition in determining whether to accept the affidavit as true statements of
fact. (Citations and internal quotations omitted.)
State v. Quinn, 2017-Ohio-8107, 98 N.E.3d 1184, ¶ 35 (2d Dist.).
B. Trial Court’s Finding of Fact and Conclusions of Law
{¶20} Smith contends that the trial court did not properly issue sufficient findings
of fact and conclusions of law. Smith challenges several of the trial court’s factual findings
and also contends that the trial court did not review the transcript of one of the pretrial
hearings as it was not filed with the clerk of courts until after the trial court issued its
decision denying his postconviction petition.
Highland App. No. 19CA16 9
{¶21} If a trial court dismisses a petition for postconviction relief, “it shall make and
file findings of fact and conclusions of law with respect to such dismissal.” R.C.
2953.21(D). This requirement is necessary “ ‘to apprise petitioner of the grounds for the
judgment of the trial court and to enable the appellate courts to properly determine
appeals in such a cause.’ ” Calhoun, 86 Ohio St.3d 279, at 291, quoting Jones v. State,
8 Ohio St.2d 21, 22, 222 N.E.2d 313 (1966). “A trial court need not discuss every issue
raised by appellant or engage in an elaborate and lengthy discussion in its findings of fact
and conclusions of law. The findings need only be sufficiently comprehensive and
pertinent to the issue to form a basis upon which the evidence supports the conclusion.”
Calhoun at 291–292, 714 N.E.2d 905; State v. Palmer, 9th Dist. Summit No. 28723, 2018-
Ohio-1486, 110 N.E.3d 981, ¶ 23; State v. Pordash, 9th Dist. Lorain No. 05CA008673,
2005-Ohio-4252, ¶ 6-7 (Under R.C. 2953.21, if a trial court dismisses a petition for postconviction relief without a hearing, it has to provide findings of fact and conclusions of law
as to why the petition was dismissed such that it informs the petitioner of the grounds for
denial); State v. Farley, 10th Dist. Franklin No. 03AP-555, 2004-Ohio-1781, ¶ 16. A trial
court properly denies a petition for postconviction relief, and issues proper findings of fact
and conclusions of law as required by R.C. 2953.21, “where such findings are
comprehensive and pertinent to the issues presented, where the findings demonstrate
the basis for the decision by the trial court, and where the findings are supported by the
evidence.” State v. Calhoun, 86 Ohio St.3d 279, 292, 714 N.E.2d 905 (1999).
{¶22} Here, the trial court issued a six-page judgment entry in which it discussed
the issues Smith raised, and the findings of fact were sufficient to satisfy the requirements
of R.C. 2953.21(D). See State v. Mayrides, 10th Dist. Franklin No. 03AP-347, 2004-Ohio-
Highland App. No. 19CA16 10
1623, ¶ 49. Smith challenges the trial court’s evaluation of the affidavits he submitted with
his petition, contending that the trial court: (1) did not consider the affidavit testimony of
his two cousins and (2) misstated the evidence concerning his uncle’s affidavit. However,
the trial court did review the affidavits and found that the testimony they contained would
be inadmissible under the rules of evidence because they established only prior consent
to enter the premises during Smith’s childhood. Yates was not living at the residence at
the time of the burglary; he had been living elsewhere for approximately two months while
he recovered from surgery. The only residents at the time of the burglary were the Ectons.
Travis Ecton described Smith as an intruder who ran when Ecton discovered him.
{¶23} Smith argues that Ecton’s “bedroom” is not really a bedroom but rather a
dining room/living room area of the residence, which can be walked through to get to
other areas of the house. He contends the trial court erred in finding that he was in Ecton’s
“bedroom.” This distinction is meritless because Smith did not have a privilege to be
anywhere inside the residence. Ecton testified at trial that he did not give Smith
permission to enter his residence:
Q. Did you give Aaron Smith permission to enter your home on December 21,
2017?
[Ecton]: No.
* * *
Q. Did you give Aaron Smith permission to take things from your home on
December 21, 2017?
[Ecton]: No.
{¶24} Smith also argues that the trial court is required to review all the files and
records pertaining to the proceedings and here the trial court failed to review the transcript
of the July 10, 2018 pretrial hearing. The record shows that the transcript of this hearing
Highland App. No. 19CA16 11
was not part of the appellate record, nor did Smith submit it with his postconviction
petition. The transcript of this hearing was not filed with the clerk of courts until September
27, 2019, approximately two months after Smith filed his postconviction petition and the
trial court denied it.1
{¶25} We find that even if an error occurred, the trial court’s failure to review the
July 10, 2018 pretrial hearing transcript was harmless. The trial court reviewed an earlier
June 22, 2018 pretrial hearing transcript in which Smith’s attorney stated that he was able
to locate and interview the victims. The July 10, 2018 pretrial hearing transcript supports
the trial court’s finding that Smith’s attorney conducted interviews of the witnesses and
decided not to call them as part of his trial strategy:
[Defense Counsel]: Just to protect the record. I did interview Charles Yates, I
tracked him down and have his phone number. After my interview I elected not to
call him as a witness.
Court: Your conclusion, he was not favorable to you client.
[Defense Counsel]: It would not have been favorable to my case Your Honor.
Court: Well, there you go.
[Defense Counsel]: I spoke to him several times on the phone.
* * *
[Defense Counsel]: I have interview three people in this case, Your Honor.
Court: And uh did you find that any of them might be helpful to your defense?
[Defense Counsel]: I spoke to the wife Savannah Yates as well, twice and once
yesterday and it was not going to be a witness I was going to call, Your Honor.
1 It is not clear from the record why the July 10, 2018 transcript was not part of the appellate record. The
clerk’s certification references that “all 3 pretrial hearings” were transcribed for purposes of the appellate
record, but there were four pretrial hearings, including the July 10, 2018 pretrial held on the day of trial.
Highland App. No. 19CA16 12
{¶26} We find no merit to Smith's contention that the trial court failed to issue
sufficient findings of fact and conclusions of law in its judgment entry. The trial court
issued proper findings of fact and conclusions of law as required by R.C. 2953.21, the
findings are comprehensive and pertinent to the issues presented, demonstrate the basis
for the trial court’s decision, and are supported by the record. Although the trial court did
not review the July 10, 2018 pretrial hearing transcript, any error was harmless. We
overrule Smith’s first assignment of error.
C. The Inadmissibility of the Affidavit Testimony
{¶27} For his second assignment of error Smith contends that the trial court
abused its discretion when it determined that the testimony of his affiants would be
inadmissible at trial. The state argues that the affiants’ testimony would be inadmissible
because it is not relevant under Evid.R. 402. The state argues that while all three affiants
testified that Smith grew up next door, was Yates’s nephew, and had been allowed in the
residence without permission during childhood, there is no timeframe in the affidavits and
no testimony about whether permission had been given since Yates moved out of the
residence for medical reasons.
{¶28} “While a trial court may, in its sound discretion, judge the credibility of
affidavits sworn under oath and filed in support of the petition, it must give them ‘due
deference.’ ” In re B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 40,
quoting State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999). “[I]t is the trial
court's province to determine whether, under the circumstances, testimony is ‘essentially
misleading or too remote’ to be deemed relevant. Trial courts have ‘broad discretion’ in
determining relevance, and we are correspondingly ‘slow to interfere’ with a trial court's
Highland App. No. 19CA16 13
exercise of that discretion.” (Citations omitted.) State v. Yarbrough, 95 Ohio St.3d 227,
2002-Ohio-2126, 767 N.E.2d 216, ¶ 35.
{¶29} Here the trial court gave the affiants’ testimony due deference and did not
abuse its discretion in determining that it was too remote to be deemed relevant. The trial
court did not discount the affiants’ testimony as less credible or deserving of less weight,
rather it was discounted for its lack of relevancy. The fact that Yates may have permitted
his nephew to enter his residence when he was a child growing up is not relevant to the
issue of whether Smith had permission to enter that same residence as an adult with
multiple prior felony convictions, substance abuse issues,2 and after Yates had moved
elsewhere several months prior to the burglary for medical reasons. “[P]ast consent does
not constitute current consent.” (Emphasis sic.) State v. Ray, 6th Dist. Lucas No. L-04-
1273, 2005-Ohio-5886, ¶ 20. In Ray, Ray argued that he had a privilege to be in his aunt’s
house and pointed to past instances when he was lawfully in her house for family events
and to assist with chores. The appellate court rejected this argument because such a
position would “improperly impose an evidentiary burden upon the premises owner to
establish they affirmatively denied future access to a trespasser.” Id. at ¶ 21; see also
State v. Butler, 8th Dist. Cuyahoga No. 94223, 2010-Ohio-5774, ¶ 12-13 (defendant
trespassed in his mother’s home even though he had permission to enter the home on
prior occasions); State v. Davis, 2d Dist. Montgomery No. 22780, 2009-Ohio-2539, ¶ 12-
13 (defendant trespassed in his grandmother’s home even though he had lived with her
sporadically during an eight-year period five years prior to the burglary).
2 See State v. Smith, 4th Dist. Highland No. 18CA13, 2019-Ohio-275, ¶ 10-12.
Highland App. No. 19CA16 14
{¶30} We find that the trial court gave the affidavits due deference and did not
abuse its discretion in finding the testimony irrelevant to whether Smith had a privilege to
enter the residence then occupied by the Ectons. We overrule Smith’s second assignment
of error.
D. Cumulative Errors by Trial Counsel
{¶31} For his third assignment of error, Smith contends that the trial court failed
to collectively consider the instances of ineffective assistance of counsel. Smith argues
that his trial counsel: (1) failed to interview and subpoena three out of three witnesses
that he had given him; (2) failed to withdraw as his trial attorney or successfully obtain a
continuance of the trial so that Smith could pursue other counsel; and (3) failed to correct
alleged mistakes in Smith’s criminal record at sentencing.
{¶32} We determined when addressing Smith’s first assignment of error that,
contrary to Smith’s assertions, Smith’s attorney did, in fact, interview three witnesses and
informed the trial court that he decided not to call the witnesses because they would not
provide favorable testimony in Smith’s defense. The trial court correctly found that the
decision whether to call a witness is a matter of trial strategy. “Counsel's decision to call
a witness is a matter of trial strategy. Such decisions will generally not be second-guessed
by a reviewing court.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d
810, ¶ 113. Smith failed to establish ineffective assistance of counsel on this ground.
{¶33} Smith’s contentions that his trial counsel was ineffective for failing to
withdraw or request a continuance and for failing to correct alleged errors in his criminal
record were part of the trial court record and, if meritorious, could have been raised in his
direct appeal. Thus, they are barred by res judicata.
Highland App. No. 19CA16 15
Postconviction relief is not warranted for claims that the petitioner raised or
could have raised on direct appeal. For a defendant to avoid dismissal of
the petition by operation of res judicata, the evidence supporting the claims
in the petition must be competent, relevant, and material evidence outside
the trial court record, and it must not be evidence that existed or was
available for use at the time of the trial. (Citations omitted.)
In re B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 14.
{¶34} Smith’s contention that his trial attorney failed to interview witnesses is
without merit and unsupported by the record, and the decision not to call witnesses is a
matter of trial strategy. Smith’s remaining two grounds for his ineffective assistance of
counsel claim are barred by res judicata. We overrule Smith’s third assignment of error.
E. Trial Court’s Decision not to Hold an Evidentiary Hearing
{¶35} For his fourth and final assignment of error, Smith contends that through his
first three assignment of errors, he has demonstrated that he was entitled to a hearing on
his postconviction relief petition. However, his first three assignments of error are
meritless. Smith failed to produce sufficient credible evidence to demonstrate that he
suffered a violation of his constitutional right to effective assistance of counsel; therefore,
he was not entitled to an evidentiary hearing. We overrule his fourth assignment of error.
Outcome: Smith was not entitled to the relief requested in his petition for
postconviction relief. The trial court did not abuse its discretion when it denied Smith’spostconviction relief petition without a hearing. Having overruled the assignmentsof error, we affirm the trial court’s judgment.
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