Opinion
No. 108646
04-16-2020
STATE OF OHIO, Plaintiff-Appellee, v. RICHARD LENARD, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel Van, Assistant Prosecuting Attorney, for appellee. Richard Lenard, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-15-602274-A and CR-15-602350-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel Van, Assistant Prosecuting Attorney, for appellee. Richard Lenard, pro se. KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Richard Lenard, appeals from the judgment of the common pleas court dismissing his petition for postconviction relief without a hearing. For the reasons that follow, we affirm.
I. Background
{¶ 2} The facts of the underlying cases were set forth in State v. Lenard, 8th Dist. Cuyahoga Nos. 105342 and 105343, 2018-Ohio-2070, as follows:
The victim and Lenard had a tumultuous and, at times, a violent relationship. In October 201[5], the two fought over social media postings that led to [a] physical altercation in which the victim [K.H.] was injured. After being punched, the victim ran into the kitchen of the residence where both were living and grabbed a knife to defend herself. Lenard disarmed the victim. He then dragged her into the living room where he forced her to strip and lie on the floor. Lenard then beat her with his belt. After the beating, Lenard took a knife and threatened to cut the victim's hair in [an] attempt to end the altercation (according to Lenard) or to terrorize the victim into further psychological submission (according to the state).
More than a month later, the couple fought again. This time the altercation was more violent, and the victim ended up in the hospital, although at trial they both claimed to have mutually fought with fists and heavy objects used as weapons. Lenard testified that the victim threw a jar of pennies and a dresser at him, so Lenard began punching the victim in the face. At one point during the altercation, the victim was bleeding enough that blood spattered on the wall and the carpet. Lenard put rubber gloves on before punching the victim further.
The fight ended with both allegedly falling down a flight of stairs, as an explanation for the victim's serious injuries. Lenard had sprained his wrist and ankle, and claimed to have scars on his forehead from the victim's conduct. The next day, the victim was walking on the street and a passerby called the police because of the victim's appearance. Her injuries from the second altercation were far more serious than the first. After being admitted to the hospital, the victim was diagnosed with a concussion, bleeding in her brain, and multiple bruises over her body.
Lenard was separately indicted for the two altercations, but the cases were consolidated for trial. At trial the victim minimized the extent of Lenard's conduct but corroborated portions of her statement made to the police following the events. Her original statements implicated Lenard as the aggressor and confirmed the belt-beating and hair-cutting incidents. In addition, the medical records included statements made by the victim as to how her injuries occurred. Those
statements also painted Lenard as an abuser. Lenard claim[ed] to have been acting in self-defense at all relevant times.Id. at ¶ 2-6.
The state introduced correspondence between the victim and Lenard, some of which was prohibited by a non-contact order, in which the victim professed her love and devotion to Lenard and her willingness to do anything for him. Lenard also told the victim not to identify him at trial or not show up.
{¶ 3} With respect to the second altercation, Lenard was convicted of felonious assault in violation of R.C. 2903.11(A)(1) and kidnapping in violation of R.C. 2905.01(A)(3). The trial court imposed seven-year concurrent sentences on both counts to be served consecutive to an unrelated case in which Lenard was sentenced to 16 months in prison. Id. at ¶ 7. With regard to the first altercation, Lenard was convicted of kidnapping in violation of R.C. 2905.01(A)(3) and a separate kidnapping under R.C. 2905.01(B)(2). The trial court imposed six-year concurrent sentences on both counts to be served consecutive to the other sentences, for an aggregate term of 14 years, 4 months. Id.
{¶ 4} On appeal, Lenard claimed that the trial court erred by (1) imposing court costs in the judgment entry of conviction without providing him an opportunity to object at the sentencing hearing; (2) failing to merge the two kidnapping charges related to the first altercation; and (3) permitting the state to admit testimony from a detective that was not based on his personal experience or expert knowledge. Id. at ¶ 8. This court found no error and affirmed Lenard's convictions. Id. at ¶ 18.
{¶ 5} On February 1, 2018, while his appeal was pending, Lenard filed a petition to vacate his convictions and sentence pursuant to R.C. 2953.21. On February 22, 2018, he filed an amended petition for postconviction relief pursuant to R.C. 2953.21. On June 15, 2018, he filed yet another petition for postconviction relief. When the trial court had not ruled on any of his petitions, he filed a request on January 25, 2019, to compel the trial court to rule on his June 15, 2018 petition. The trial court then ordered the state to file a response to Lenard's petition, which it did. On May 19, 2019, the trial court issued a judgment entry and findings of fact and conclusions of law denying Lenard's petitions.
{¶ 6} Lenard's June 15, 2018 petition reasserted the three claims he made in his earlier petitions and included one additional claim. In Claim 1, Lenard asserted that his trial counsel was ineffective for failing to subpoena the doctors who treated him for mental health issues while he was in jail awaiting trial. In Claim 2, Lenard contended that the police and prosecutor unlawfully obtained K.H.'s medical records without her written authorization and improperly used those records before the grand jury and at trial. Claim 3 asserted that the state unlawfully withheld evidence that the altercations occurred in Kentucky and thus, that venue and jurisdiction were improper in Cuyahoga County. In Claim 4, Lenard challenged the jury deliberation process.
{¶ 7} The trial court dismissed Lenard's petitions without an evidentiary hearing, finding that Claims 1, 2, and 3 were barred by res judicata, and that Claim 4 was without merit. The trial court also ruled that any claim of ineffective assistance of counsel had no merit. Finally, the court ruled that the affidavits attached to Lenard's petition were not credible and could be discounted, and that none of the other evidence attached to his petition supported his claims. This appeal followed.
II. Law and Analysis
A. Standard of Review
{¶ 8} A postconviction proceeding is not an appeal of a criminal conviction; it is a collateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). To prevail on a petition for postconviction relief, a defendant must establish a violation of his constitutional rights that renders the judgment of conviction void or voidable. R.C. 2953.21.
{¶ 9} It is well settled that a hearing is not automatically required whenever a petition for postconviction relief is filed. State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). Rather, in considering a petition for postconviction relief, a trial court acts as a gatekeeper in determining whether a defendant will receive a hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51. A trial court may dismiss a petition for postconviction relief without a hearing "where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief." State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905, paragraph two of the syllabus.
{¶ 10} With respect to the trial court's conclusion that several of Lenard's claims were barred by res judicata, we note that "[t]he most significant restriction on Ohio's statutory procedure for postconviction relief is that the doctrine of res judicata requires that the claim presented in support of the petition represent error supported by evidence outside the record generated by the direct criminal proceedings." State v. Monroe, 10th Dist. Franklin No. 04AP-658, 2005-Ohio-5242, ¶ 9. Under the doctrine of res judicata, constitutional issues cannot be considered in postconviction proceedings brought pursuant to R.C. 2953.21 where they have already or could have been fully litigated by the defendant, either before the judgment of conviction or on direct appeal from that judgment. State v. Stedman, 8th Dist. Cuyahoga No. 83531, 2004-Ohio-3298, ¶ 17, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph seven of the syllabus. Issues properly raised in a petition for postconviction relief are those that could not have been raised on direct appeal because the evidence supporting such issues is outside the record. Stedman at id., citing State v. Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975). If an issue has, or should have been, raised on direct appeal, the trial court may dismiss the petition on the basis of res judicata. Stedman at id., citing State v. Spisak, 8th Dist. Cuyahoga No. 67229, 1995 Ohio App. LEXIS 1567 (Apr. 13, 1995).
{¶ 11} We review the trial court's denial of Lenard's petition for an abuse of discretion. Gondor at ¶ 52. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Id. at ¶ 60, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
B. Claim 1 — Testimony of Jail Doctors
{¶ 12} In Claim 1 of his petition, Lenard asserted that due to the ineffectiveness of his counsel, the jury failed to consider mitigation evidence that he suffers from PTSD. Specifically, Lenard asserted that he was sexually assaulted in 1993 when he was 15 years old, and was diagnosed with PTSD after that trauma. He contended that he had a difficult time adjusting to jail after his arrest in December 2015, and was prescribed medication to treat his mental health issues and PTSD. Lenard asserted that his counsel was ineffective for not subpoenaing the doctors who treated him while he was in jail to testify about his mental health issues. He argued that their expert testimony would have assisted the jury in determining "an extremely important mitigating factor": i.e., whether he was under the influence of a sudden passion or fit of rage as a result of his PTSD during his altercations with K.H. The trial court ruled that this claim was barred by res judicata.
The trial court instructed the jury on felonious assault and aggravated assault, an inferior-degree offense of felonious assault. Aggravated assault is distinguished from felonious assault by the presence of sudden passion or a fit of rage by the defendant brought on by serious provocation by the victim. R.C. 2903.12(A)(1). The jury found Lenard guilty of felonious assault and not guilty of aggravated assault.
{¶ 13} In his first assignment of error, Lenard contends that the trial court erred in finding that Claim 1 was barred by res judicata because the evidence supporting this claim was outside the record, and thus this claim could not have been raised on direct appeal. He further contends that the newly discovered evidence appended to his petition demonstrated that his counsel was ineffective for not raising the issue of his mental health with the jury.
{¶ 14} We agree and the state concedes that the trial court erred in finding this claim barred by res judicata. Indeed, in this court's decision denying Lenard's application for reopening, in which he raised the same claim regarding counsel's alleged ineffectiveness, this court found that the evidence supporting the claim was outside the record and therefore the claim should be pursued in postconviction relief proceedings. State v. Lenard, 8th Dist. Cuyahoga Nos. 105342 and 105343 (Dec. 5, 2018), Motion No. 520301.
{¶ 15} Nevertheless, we find no merit to Lenard's assertion that counsel was ineffective for not subpoenaing his jail doctors. When a defendant asserts a claim of ineffective assistance of counsel in a petition for postconviction relief, the defendant bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his counsel's ineffectiveness and the fact that he was prejudiced thereby. State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus. If a petitioner fails to meet this burden, the trial court may dismiss the petition for postconviction relief without a hearing. Id.
{¶ 16} In support of his claim that counsel was ineffective for not subpoenaing the jail doctors, Lenard attached his own affidavit, in which he averred that he was sexually assaulted at age 15 and thereafter diagnosed with PTSD. He further averred that he was prescribed Celexa, and later Effexor, by two doctors while he was awaiting trial in the Cuyahoga County Jail. He averred that these two doctors could have testified as expert witnesses that he suffers from PTSD, and that their testimony would have assisted the jury in determining whether he was acting under the influence of sudden passion or in a fit of rage during the altercations with K.H. He averred that he told his counsel of his PTSD issues and the medicines prescribed for him while he was in jail, but counsel did not subpoena his jail doctors.
{¶ 17} Lenard also attached to his petition copies of documents that showed he paid $5.00 each for Mirtazapine, prescribed for him on June 15, 2017, and Venlapaxine, prescribed on February 21, 2017 and February 28, 2017, while he was in jail awaiting trial. (Exhibits B-D.) He also attached copies of documents showing that he paid $10.00 each for two "psych sick call[s]" while he was in jail. (Exhibits E and F.)
{¶ 18} These documents, admittedly outside the record, are insufficient to demonstrate counsel's ineffectiveness. First, with regard to Lenard's affidavit, when assessing whether to grant a hearing, the trial court should examine the contents of the affidavits offered in support of the petition. State v. Nelson, 8th Dist. Cuyahoga No. 77094, 2000 Ohio App. LEXIS 4279 (Sept. 21, 2000). A trial court may discount self-serving affidavits from the petitioner or his family members. Stedman, 8th Dist. Cuyahoga No. 83531, 2004-Ohio-3298 at ¶ 29, citing State v. Moore, 99 Ohio App.3d 748, 651 N.E.2d 1319 (1st Dist.1994). Although a trial court should give deference to affidavits filed in support of a postconviction relief petition, it may exercise its discretion when assessing the credibility of the affidavits. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905, (1999), at paragraph one of the syllabus.
{¶ 19} Lenard's affidavit is obviously self-serving and thus insufficient to support his claims. And other than Lenard's self-serving affidavit, there is no evidence whatsoever to demonstrate that the doctors who treated Lenard while he was in jail would have testified that he suffers from PTSD, and no evidence they would have testified that his alleged PTSD was somehow connected to his violent conduct with K.H. The exhibits attached to Lenard's petition — evidence of his $5.00 copays for two prescriptions and his payments of $10 for two "psych sick calls" while he was in jail — demonstrate nothing more than that Lenard was treated for mental health issues while he was in jail. Without any evidence regarding what the doctors would have testified to, Lenard cannot demonstrate that he was prejudiced by counsel's failure to subpoena them to testify.
{¶ 20} Moreover, trial tactics and strategies do not constitute a denial of effective assistance of counsel. State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-2371, ¶ 38, citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980). Lenard's trial strategy — as evidenced by his testimony — was that he was merely acting in self-defense during his altercations with K.H. Lenard, 8th Dist. Cuyahoga Nos. 105342 and 105343 at ¶ 5. Any claim that Lenard was acting under the influence of a sudden passion or fit of rage would have been inconsistent with his claim that he was acting in self-defense. State v. Smith, 8th Dist. Cuyahoga No. 100204, 2014-Ohio-2057, ¶ 52 ("The mental states of fear as required for self-defense and rage as required for aggravated assault are incompatible.") Accordingly, it cannot be said that counsel was ineffective for not calling Lenard's jail doctors to testify about his alleged PTSD. The first assignment of error is overruled.
C. Claim 2 - The Victim's Medical Records
{¶ 21} In Claim 2 of his petition, Lenard claimed that the police and prosecutor obtained K.H.'s medical records without her authorization and used those records at the grand jury hearing and during trial in violation of his due process rights. He further contended that trial counsel was ineffective because counsel stipulated to the authenticity of the records at trial without Lenard's consent and outside his presence after he was excused for the day by the trial court. As support for his claim, Lenard submitted K.H.'s affidavit, in which she averred that she never signed a release of her medical records and did not authorize the use of her medical records by the police or prosecutor. (Exh. G.) He also attached pages from the trial transcript. (Exh. H.) The trial court ruled that Claim 2 was barred by res judicata.
Lenard attached two forms to his brief on appeal that purport to be copies of K.H.'s written refusal to authorize the Garfield Heights police and Parma police to release her medical records to the prosecutor. We will not consider the forms for any purpose because they were not submitted to the trial court with Lenard's postconviction petitions and thus are outside the record. --------
{¶ 22} In his second assignment of error, Lenard contends that the trial court erred in finding this claim barred by res judicata because he did not obtain K.H.'s affidavit until after the trial. He further contends that the evidence attached to his petition was sufficient to demonstrate his claim.
{¶ 23} Even if Claim 2 is not barred by res judicata, it has no merit. First, Lenard has no standing to challenge the use of K.H.'s medical records because "in Ohio, the patient is the holder of the physician-patient privilege. A person other than the patient cannot assert the privilege." State v. Bourdess, 8th Dist. Cuyahoga No. 74842, 1999 Ohio App. LEXIS 4785, 31 (Oct. 7, 1999). Accord State v. Jenkins, 2d Dist. Montgomery No. 18551, 2001 Ohio App. LEXIS 4600, 12 (Oct. 12, 2001) (defendant could not assert the physician-patient privilege on the patient's behalf).
{¶ 24} Furthermore, K.H.'s affidavit, in which she averred that she had not authorized the release of her medical records to the police and prosecutor, can be discounted because it is from a party who is obviously "interested in the success of the petitioner's efforts," a factor the court may properly consider when determining the credibility of supporting affidavits. Calhoun, 86 Ohio St.3d at 285, 714 N.E.2d 905. K.H. is clearly not a disinterested party regarding Lenard; indeed, in one of her letters to Lenard while he was in jail, she expressed her love for him and stated that she would "continue doing everything and anything I can for you." (Def. Exh. C.)
{¶ 25} With respect to trial counsel's stipulations to the authenticity of the victim's medical records, we find the stipulations were trial tactics that this court will not second-guess, especially because Lenard has failed to demonstrate any prejudice that resulted from trial counsel's stipulation. And finally, the transcript of proceedings clearly provides that Lenard was present in the courtroom during the admission into evidence of the victim's medical records. (Tr. 497-498.)
{¶ 26} Accordingly, the trial court did not err in dismissing Claim 2 without an evidentiary hearing, and the second assignment of error is overruled.
D. Claim 3 — Venue and Jurisdiction in Cuyahoga County
{¶ 27} In Claim 3 of his petition for postconviction relief, Lenard asserted that the police and prosecutor withheld evidence that the two altercations occurred in Boone County, Kentucky, where he allegedly lived, and thus "the trial court lacked venue and jurisdiction to arrest, indict and try Lenard in Cuyahoga County." Lenard argued further that his trial counsel was ineffective for not investigating where the offenses occurred.
{¶ 28} To support his claim, Lenard attached to his petition a copy of a ticket for a traffic offense issued to him in 2015 in Valley View, Ohio, showing he had a Kentucky driver's license. (Exh. I.) He also attached an affidavit from K.H. in which she averred that both altercations occurred while she and Lenard were in Kentucky, and that she reported the offenses to the police after they came back to Ohio the day after each offense. (Exh. J.) K.H. also averred that she "began both fights" and "initiated the physical contact each time by pushing, spitting, and hitting Richard," and that Lenard was simply acting in self-defense when he hit her back. She further averred that she signed a "no prosecution" form and "want[ed] all charges [against Lenard] dropped."
{¶ 29} In addition to K.H.'s affidavit, Lenard attached to his petition a copy of a letter dated March 3, 2016, from Lenard to the Cuyahoga County Prosecutor's Office, in which he stated that the offenses occurred in Kentucky (Exh. K), and a "complaint" dated May 31, 2016, sent by Lenard to the Cuyahoga County Sheriff's Department, in which Lenard asserted that the Cuyahoga County Common Pleas Court did not have jurisdiction over his cases because the offenses occurred in Kentucky. (Exh. L.) Finally, he attached a copy of a "motion to arrest pursuant to R.C. 2947.02" that he filed in the trial court after trial, in which he asserted that his convictions were not valid because the events giving rise to the indictments occurred in Kentucky. (Exh. N.) The trial court ruled that Claim 3 was barred by res judicata.
{¶ 30} In his third assignment of error, Lenard contends that the trial court erred in dismissing this claim. He argues that K.H.'s affidavit was "virtually a confession" by K.H. of her involvement in the altercations that led to his convictions, especially because she signed a "no prosecution" form before he was indicted, a form he contends the prosecutor improperly withheld from the defense. He further contends that the evidence attached to his petition established that the offenses occurred in Kentucky and, therefore, venue and jurisdiction were not proper in Cuyahoga County.
{¶ 31} The trial court did not abuse its discretion in finding this claim barred by res judicata. As the defendant, Lenard knew where the offenses occurred and could have raised any issue regarding venue and jurisdiction at trial. In fact, Lenard testified at trial but did not raise the issue. Likewise, Lenard could have cross-examined K.H. at trial regarding where the offenses occurred. And Lenard's Kentucky driver's license was available to him at trial and thus is not new evidence to support his claim. Because Lenard did not raise the issue at trial, it is barred by res judicata.
{¶ 32} Furthermore, even if the issue were not barred by res judicata, Claim 3 is without merit. Venue refers to the "appropriate place of trial for a criminal prosecution as between different geographical subdivisions within a state." State v. Morrar, 12th Dist. Madison No. CA2013-08-027, 2014-Ohio-3663, ¶ 9. Jurisdiction, on the other hand, refers to the power of a court to hear and determine a case on its merits. Id. Under R.C. 2901.11(A), a person is subject to criminal prosecution and punishment in this state when "the person commits an offense under the laws of this state, any element of which takes place in this state." The right to proper venue is codified in R.C. 2901.12(A), which provides that the "trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed."
{¶ 33} It is apparent that the trial court had jurisdiction over Lenard's cases and that venue was proper in Cuyahoga County because the record reflects that the offenses occurred in Cuyahoga County, Ohio, not Kentucky. K.H. testified at trial that she had been in a relationship with Lenard for two years at the time of the altercations, and that she lived with him at 9627 Plymouth Road, Garfield Heights, Ohio. (Tr. 287, 289.) She testified unequivocally that the first altercation occurred in Garfield Heights. (Tr. 289.) She testified further that the second altercation occurred at 6506 Gilbert, Parma, Ohio. (Tr. 328.)
{¶ 34} Lenard produced no evidence outside the record demonstrating that the offenses occurred in Kentucky. The fact that Lenard had a Kentucky driver's license does not demonstrate the offenses occurred in Kentucky. And as discussed earlier, both Lenard and K.H.'s affidavits, in which they averred that the offenses happened in Kentucky, can be discounted as not credible. Moreover, whether K.H. signed a "no prosecution" form, or whether Lenard was aware of the alleged "no prosecution" form before trial, are irrelevant issues given R.C. 2931.03, which provides that a case may not be dismissed solely at the request of the complaining witness if the state objects. See also State v. Hollins, 8th Dist. Cuyahoga No. 103864, 2016-Ohio-5521, ¶ 19.
{¶ 35} In light of Lenard's failure to produce any evidence supporting his claim that the offenses occurred in Kentucky, rather than Ohio, the trial court did not abuse its discretion in dismissing Claim 3 without an evidentiary hearing. And the trial court properly found that Lenard's counsel was not ineffective, as Lenard contends, for not investigating where the offenses occurred. The third assignment of error is therefore overruled.
Claim 4 — Irregularities with the Jury Deliberations
{¶ 36} In Claim 4 of his petition, Lenard asserted that his counsel was ineffective because he did not adequately voir dire one of the jurors to determine if the juror was biased against him. In addition, Lenard asserted that the same juror had reported there were irregularities during jury deliberations requiring that his convictions be vacated. Specifically, Lenard asserted that the jury was confused about the inferior-degree and lesser-included offenses of felonious assault, there was pressure to convict, the verdict was rushed, and one of the jurors no longer "stood by" his verdict. In support of his arguments, Lenard submitted as Exhibit O the transcript of a recorded conversation between the juror at issue and Brenda Bickerstaff, a private investigator. The trial court found that Claim 4 had no merit because Lenard had not produced sufficient evidence to support his claim.
{¶ 37} In his fourth assignment of error, Lenard contends that the trial court erred in dismissing Claim 4 because the evidence attached to his petition supported his claim. We disagree.
{¶ 38} Evid.R. 606(B), regarding an inquiry into the validity of a verdict, forbids a juror from testifying as to "any matter or statement occurring during the course of the jury deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict * * * or concerning his mental processes in connection therewith." A juror may testify, however, regarding "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented." Evid.R. 606(B). Thus, under the rule, "[i]n order to permit juror testimony to impeach the verdict, a foundation of extraneous, independent evidence must first be established." State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d 54 (1990). "This foundation must consist of information from sources other than the jurors themselves * * * and the information must be from a source that possesses firsthand knowledge of the improper conduct." Id. at 76.
{¶ 39} Obviously, Evid.R. 606(B) would have prohibited consideration of an affidavit from the juror himself. Lenard attempted to circumvent the rule by supplying a transcript of a recorded conversation between a criminal investigator and the juror. Under Evid.R. 606(B), however, the transcript is not admissible and the evidence contained within it — the juror's statements to the investigator about the jury deliberations — is incompetent because the information does not come from a source other than the juror with firsthand knowledge of any improper conduct. Accordingly, Lenard failed to provide evidence to demonstrate he was entitled to relief on this claim.
{¶ 40} Furthermore, even if we were to consider the transcript, we would find it does not support Lenard's claims. The transcript reflects that the juror at issue said he "never had a problem with [Lenard]," and did not even realize until after deliberations that he went to high school with him. (Tr. 3, 37-38.) "When a defendant bases an ineffective assistance of counsel claim on an assertion that his counsel allowed the impanelment of a biased juror, the defendant 'must show that the juror was actually biased against him.'" State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 67, quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir.2001). The transcript demonstrates that Lenard cannot make such a showing. Furthermore, the transcript demonstrates that the only reason the juror is "not as comfortable" now with his verdict is because subsequent to the verdict in Lenard's cases, the juror was involved in a domestic violence situation and is now on probation, a situation he said might have caused him to think differently about Lenard's cases. (Tr. 28-29.) The juror's newly realized empathy for defendants accused of domestic violence does not demonstrate there were any irregularities in the jury deliberations in Lenard's cases, however.
{¶ 41} The trial court did not abuse its discretion in finding that counsel was not ineffective and that Lenard failed to offer evidence to support his claim of alleged irregularities during jury deliberations. The fourth assignment of error is overruled.
{¶ 42} In sum, we hold that the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that Lenard set forth sufficient operative facts to establish substantive grounds for relief, and therefore, the trial court did not abuse its discretion in dismissing Lenard's petition without an evidentiary hearing. Calhoun, 86 Ohio St.3d 279 at paragraph two of the syllabus.
{¶ 43} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, JUDGE MARY J. BOYLE, P.J., and
RAYMOND C. HEADEN, J., CONCUR