Opinion
CT2024-0062
08-29-2024
STATE OF OHIO Plaintiff-Appellee v. JOHN T. THOMPKINS Defendant-Appellant
For Plaintiff-Appellee JOSEPH A. PALMER For Defendant-Appellant JOHN T. THOMPKINS PRO SE
Appeal from the Muskingum County Court of Common Pleas, Case No. CR2022-0294
For Plaintiff-Appellee JOSEPH A. PALMER
For Defendant-Appellant JOHN T. THOMPKINS PRO SE
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J.
OPINION
GWIN, J.,
{¶1} Appellant John Thompkins appeals the April 16, 2024 judgment entry of the Muskingum County Court of Common Pleas which denied his petition for post-conviction relief without a hearing. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On June 22, 2022, appellant was charged with the following: possession of drugs (cocaine) in an amount equal to or greater than one hundred grams, in violation of R.C. 2925.11(A), with a forfeiture specification and major drug offender specification; trafficking in drugs (cocaine) in the vicinity of a school, in violation of R.C. 2925.03(A)(2), with a forfeiture specification and a major drug offender specification; tampering with evidence (cocaine), in violation of R.C. 2921.12(A)(1); possession of drugs (methamphetamine) in an amount equal to or greater than five times the bulk amount but less than fifty times the bulk amount, in violation of R.C. 2925.11(A), with a forfeiture specification and a firearm specification; three counts of having a weapon while under disability, in violation of R.C. 2923.13(A)(3); possession of drugs (methamphetamine), in an amount equal to or greater than five times the bulk amount but less than fifty times the bulk amount in violation of R.C. 2925.11 (A); possession of drugs (cocaine) in an amount less than five grams, in violation of R.C. 2925.11(A); possession of drugs (fentanyl-related compound) in an amount less than one gram, in violation of R.C. 2925.11 (A); possession of drugs (alprazolam), in an amount less than the bulk amount, in violation of R.C. 2925.11(A); and two counts of possession of drugs (oxycodone hydrochloride), in an amount less than the bulk amount, in violation of R.C. 2929.11 (A).
{¶3} Appellant waived his right to a jury on the three counts of having weapons while under disability. The trial court held a jury trial beginning on September 20, 2022 on the remaining charges.
{¶4} The jury found appellant guilty of count one, possession of cocaine in an amount equal to or greater than 100 grams, guilty of the major drug offender specification to count one, guilty of count two, trafficking in cocaine in the vicinity of a school and in an amount equal to or exceeding 100 grams, guilty of the major drug offender specification to count two, guilty of count three, tampering with evidence, guilty of count four, possession of methamphetamine in an amount equal to or greater than five times the bulk amount, but less than fifty times the bulk amount, guilty of the firearm specification for count four, guilty of count nine, possession of oxycodone hydrochloride, and guilty of count ten, possession of oxycodone hydrochloride. The trial court found appellant guilty of the weapons under disability counts. The trial court memorialized the jury's verdict in a September 26, 2022 judgment entry.
{¶5} The trial court sentenced appellant on November 9, 2022 to an aggregate prison term as follows: minimum twenty-six years to a maximum indefinite thirty-one and ½ years, with twenty years being mandatory time. The trial court issued a judgment entry of sentence on November 16, 2022.
{¶6} Appellant filed a direct appeal of his conviction and sentence, and was represented by counsel in his direct appeal. In his direct appeal, he argued as follows: his conviction for possession of cocaine was against the sufficiency of the evidence; his conviction for possession of cocaine was against the manifest weight of the evidence; and his trial counsel was ineffective when he failed to file a motion to suppress evidence. This Court overruled his assignments of error and affirmed appellant's conviction and sentence in State v. Thompkins, 2023-Ohio-2871 (5th Dist.). Appellant filed both a motion for reconsideration and a motion to re-open his direct appeal with this Court. We denied both motions. Appellant appealed our decision to the Ohio Supreme Court. The Ohio Supreme Court declined jurisdiction of appellant's appeal in State v. Thompkins, 2024-Ohio-163.
{¶7} On September 20, 2023, appellant filed a Petition to Vacate or Set Aside his Conviction and Sentence pursuant to R.C. 2953.21. He argued the following: his trial counsel was ineffective in failing to file a motion to unseal the GPS tracking search warrant to investigate the existence of probable cause to support it and to examine the warrant for deficiencies; his trial counsel was ineffective in failing to request a copy of the GPS tracking search warrant and supporting affidavit; ineffective assistance of trial counsel for failing to ensure the unredacted versions of the body and dash cam recording were properly filed on the record; appellant was denied due process when the State failed to disclose materials pursuant to Brady v. Maryland; and his trial counsel was ineffective when he failed to file a motion to suppress regarding the traffic stop.
{¶8} Appellant attached his own sworn affidavit to the petition. He also attached the following: an unauthenticated "memo to file," dated September 15, 2022, allegedly written by his trial counsel; report of the Zanesville Police Department dated June 2, 2022"; Task Force Report dated May 31, 2022 and marked "Discovery,"; Task Force Statements of Fact dated June 2, 2022 and marked "Discovery"; and Task Force Reports dated June 2, 2022 and marked "Discovery."
{¶9} Appellee filed a response to appellant's petition on November 3, 2023. Appellee attached to its response an email dated July 6, 2022, demonstrating a GPS search warrant and accompanying affidavit were provided to trial counsel on that date. The GPS warrant and affidavit in support are attached, under seal, and marked "Counsel Only."
{¶10} On April 16, 2024, the trial court issued a judgment entry issuing findings of fact and conclusions of law in accordance with R.C. 2953.21(D), and denying appellant's petition to vacate or set aside judgment without a hearing.
{¶11} Appellant appeals the April 16, 2024 judgment entry of the Muskingum County Court of Common Pleas and assigns the following as error:
{¶12} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S POST-CONVICTION AND FAILED TO HOLD AN EVIDENTIARY HEARING, WHEN APPELLANT PROVED HE WAS PROVIDED INEFFECTIVE ASSISTANCE, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO FILE A MOTION TO SUPPRESS OR REQUEST TO REVIEW A COPY OF THE GPS TRACKING SEALED SEARCH WARRANT AND SUPPORTING AFFIDAVIT OR TO UNSEAL IT OR TO GET THE GPS WARRANT TO INVESTIGATE THE EXISTENCE OF PROBABLE CAUSE TO SUPPORT IT, TO EXAMINE THE WARRANT FOR DEFICINCIES, OR INVESTIGATE THE VALIDITY OF THE WARRANT.
{¶13} II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S POST-CONVICTION AND FAILED TO HOLD AN EVIDENTIARY HEARING, WHEN APPELLANT PROVED HE WAS PROVIDED INEFFECTIVE ASSISTANCE [BECAUSE] TRIAL COUNSEL FAILED TO PREPARE A COMPLETE DEFENSE AND ENSURE THE UN-REDACTED VERSION OF THE BODY AND DASH CAM VIDEO RECORDING WAS PROPERLY FILED ON THE RECORD.
{¶14} III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S POST-CONVICTION AND FAILED TO HOLD AN EVIDENTIARY HEARING WHEN APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS WHEN THE STATE FAILED TO DISCLOSE MATERIALS PURSUANT TO BRADY, 438 U.S. 154.
{¶15} IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S POST-CONVICTION AND FAILED TO HOLD AN EVIDENTIARY HEARING WHEN APPELLANT PROVED HE WAS PROVIDED INEFFECTIVE ASSISTANCE [BECAUSE] HIS TRIAL COUNSEL FAILED TO CHALLENGE THE BASIS OF THE TRAFFIC STOP WHEN THE EVIDENCE IN THE DASH CAM AND BODY CAM VIDEO, AND BASED ON THE STATEMENT OF DEPUTY DUSTIN PROUTY, SHOW APPELLANT DID NOT COMMIT A TRAFFIC VIOLATION AND NO PROBABLE CAUSE WAS EVER ESTABLISHED.
Post-Conviction Review
{¶16} When a defendant files a post-conviction petition pursuant to R.C. 2953.21, the trial court must grant an evidentiary hearing unless it determines the files and records of the case show the petitioner is not entitled to relief. R.C. 2953.21 (F). A trial court may also dismiss a petition for post-conviction relief without holding a hearing when the doctrine of res judicata bars the claims raised in the petition. State v. Szefcyk, 1996-Ohio-337. Under the doctrine of res judicata, a defendant who was represented by counsel is barred from raising an issue in a petition for post-conviction relief if the defendant raised or could have raised the issue at trial or on direct appeal. Id. at 95; State v. Weaver, 2018-Ohio-2509 (5th Dist.) ¶ 17.
{¶17} A trial court's decision to deny a petition for post-conviction relief without holding an evidentiary hearing is within the sound discretion of the trial court. State v. King, 2020-Ohio-1373 (5th Dist.) ¶8, citing State v. McKelton, 2015-Ohio-4228 (12th Dist.). "Abuse of discretion" means an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985).
{¶18} Additionally, a petitioner must support his claims with evidentiary-quality documents. In State v. Jackson, 64 Ohio St.2d 107, 111 (1980), the Supreme Court of Ohio held the following:
Before a hearing is granted, the petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness. Broad assertions without a further demonstration of prejudice do not warrant a hearing for all post-conviction petitions. General conclusory allegations to the effect that a defendant has been denied effective assistance of counsel are inadequate as a matter of law to impose an evidentiary hearing. See Rivera v. United States (C.A. 9, 1963), 318 F.2d 606.
{¶19} It is within the purview of the trial court judge to judge the credibility of any affidavits presented. State v. Calhoun, 86 Ohio St.3d 279, 284 (1999). In assessing the credibility of an affidavit, a trial court should consider relevant factors including "whether the judge reviewing the postconviction relief petition also presided at the trial." Id. at 285, citing State v. Moore, 99 Ohio App.3d 748 (1st Dist. 1994).
{¶20} In this case, appellant's claimed errors are ineffective assistance of his trial counsel. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell below an objective standard of reasonable representation, and (2) that counsel's errors prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-688 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. "Reasonable probability" is "probability sufficient to undermine the confidence in the outcome." Strickland at 694.
{¶21} Because there are countless ways to provide effective assistance in any given case, judicial scrutiny of a lawyer's performance must be highly deferential. Strickland, at 694. "Decisions on strategy and trial tactics are granted wide latitude of professional judgment, and it is not the duty of a reviewing court to analyze trial counsel's legal tactics and maneuvers." State v. Quinones, 2014-Ohio-5544 (8th Dist.).
{¶22} Further, pursuant to the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, other than a direct appeal from the judgment, any defense or lack of due process that was raised or could have been raised at the trial which resulted in the judgment of conviction, or on appeal from that judgment. State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233. Further, it is "well-settled that, 'pursuant to res judicata, a defendant cannot raise an issue in a [petition] for postconviction relief if he or she could have raised the issue on direct appeal.'" State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, quoting State v. Reynolds, 79 Ohio St.3d 158, 161 (1997).
I.
{¶23} In his first assignment of error, appellant contends the trial court committed error in denying his petition without a hearing because his trial counsel was ineffective for failing to review a copy of the GPS tracking sealed search warrant, examine the warrant for deficiencies, or investigate the validity of the warrant.
{¶24} Appellant submits a letter from his trial counsel dated September 15, 2022, explaining how his trial counsel spent a certain amount of time examining the search warrant for appellant's home. Appellant contends that since his trial counsel did not specifically state in this letter that he examined the GPS search warrant, it means he did not examine it.
{¶25} However, simply because the letter does not specifically state trial counsel reviewed the GPS search warrant and affidavit does not mean trial counsel did not examine or review the search warrant. In fact, the letter specifically states, "there is substantial evidence from confidential sources and GPS coordinates that indicated a high probability of illegal drugs located in [appellant's] apartment." This language indicates trial counsel did review the GPS search warrant and affidavit, as the affidavit contained detailed information about confidential sources. Further, the search warrant and affidavit were provided to trial counsel in an e-mail prior to trial with a "counsel only" designation due to the information contained in the affidavit about confidential sources. Appellant could have raised these issues in a direct appeal; thus, his argument is barred by res judicata. Further, appellant has presented no "newly-discovered" evidence in his motion.
{¶26} Appellant additionally contends trial counsel was ineffective for failing to file a motion to suppress the GPS warrant. Appellant could have raised this issue in a direct appeal. His argument is barred by res judicata, and he has presented no "newly-discovered evidence" in his motion. To the extent that appellant relies on his own affidavit, a petitioner's self-serving affidavit generally does not meet his required minimum level of cogency. State v. Kapper, 5 Ohio St.3d 36 (1983). Neither his affidavit nor any of the other materials attached to his petition demonstrate a substantial violation of trial counsel's essential duty, nor do that demonstrate prejudice arising from that ineffectiveness. As this Court previously stated in a judgment entry denying appellant's motion to reopen, "it is clear from the record that trial counsel for appellant determined it would not be beneficial to challenge the search warrant. There is nothing in the record that would suggest this decision was anything but a reasonable exercise of professional judgment." State v. McClendon, 2022-Ohio-1441 (12th Dist.).
{¶27} Appellant's first assignment of error is overruled.
{¶28} II.
{¶29} In his second assignment of error, appellant contends his trial counsel was ineffective because he failed to ensure the unredacted version of the body cam and dash cam video recordings were "properly filed on the record."
{¶30} To the extent appellant is arguing the unredacted body and dash cam videos were not in the record, State's Exhibit B and Exhibit C (the entirety of the videos) were admitted into evidence at trial, which were both part of the record on appellant's direct appeal. As to appellant's argument that trial counsel should have introduced the entirety of the videos to the jury: (1) this issue existed at the time of appellant's direct appeal and thus is barred by res judicata; and (2) there is nothing in the record that would suggest this decision was anything but a reasonable exercise of professional judgment. Accordingly, the trial court did not commit error in denying appellant's petition without a hearing.
{¶31} Appellant also argues in this assignment of error that his conviction is against the manifest weight of the evidence because the evidence showed he was framed by the police. Because appellant could have raised these complaints in his direct appeal, the trial court did not err in denying appellant's petition without a hearing.
{¶32} Appellant's second assignment of error is overruled.
III.
{¶33} In appellant's third assignment of error, appellant argues the trial court committed error in denying his post-conviction petition because he demonstrated his trial counsel was ineffective because trial counsel never objected or raised the question as to why appellee failed to disclose materials (specifically the GPS search warrant and the "evidence relating to the alleged traffic violation supporting the Terry stop") pursuant to Brady v. Maryland.
{¶34} Under Brady v. Maryland, 373 U.S. 83 (1963), the State violates a defendant's right to due process if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment. Matter of P.K., 2019-Ohio-2311 (5th Dist.). The Supreme Court has explained, "evidence is 'material' within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Cone v. Bell, 556 U.S. 449 (2009). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. State v. Johnson, 39 Ohio St.3d 48 (1988).
{¶35} In State v. Wickline, 50 Ohio St.3d 114 (1990), the Ohio Supreme Court rejected a claim that the state's failure to provide exculpatory information to the defendant prior to trial was a reversible Brady violation. The Court noted that in United States v. Agurs, 427 U.S. 97 (1976), the United States Supreme Court held that the rule of Brady applies to situations involving the discovery, after trial, of information which was known to the prosecution but unknown to the defense. Id.
{¶36} With regard to the "evidence relating to the alleged traffic violation supporting the Terry stop," the officers testified to the circumstances surrounding the stop of appellant, and the stop was shown on the dash cam video and introduced into evidence. Because this evidence was presented at trial, the evidence was not "unknown" to the defense at trial, and Brady does not apply. State v. Wickline, 50 Ohio St.3d 114 (1990). Further, because this evidence was presented at trial, this issue existed at the time of appellant's direct appeal and thus is barred by res judicata.
{¶37} Additionally, the materials appellant provided in his post-conviction petition were all dated prior to the trial in his case. Further, all of the materials except for the letter from trial counsel to appellant were stamped "Discovery." Thus, the information was not "unknown" to the defense at the time of trial, and no Brady violation occurred. Appellant has presented no newly-discovered evidence to support his motion.
{¶38} To the extent that appellant relies on his own affidavit, a petitioner's self-serving affidavit generally does not meet his required minimum level of cogency. State v. Kapper, 5 Ohio St.3d 36 (1983). Neither his affidavit nor any of the other materials attached to his petition demonstrate a substantial violation of trial counsel's essential duty, nor do they demonstrate prejudice arising from that ineffectiveness.
{¶39} As to the GPS search warrant, the GPS warrant and affidavit were provided to appellant's trial counsel. The affidavit was provided under seal due to the confidential informant. Thus, the information was not "unknown" to the defense at the time of trial, and no Brady violation occurred. Additionally, since the issue existed at the time of appellant's direct appeal, this argument is barred by res judicata. Appellant's third assignment of error is overruled.
IV.
{¶40} In appellant's final assignment of error, he argues the trial court committed error when it denied his petition without a hearing because his trial counsel was ineffective in failing to challenge the basis of the traffic stop. Appellant asserts the written report and statement of facts attached to his petition (dated June 2, 2022) demonstrate Deputy Prouty's testimony was false, and thus no probable cause existed for the traffic stop.
{¶41} The written report and statement of facts were dated June 2, 2022, prior to appellant's trial. Accordingly, this issue was cognizable upon direct appeal, and is therefore barred by res judicata. To the extent that appellant relies on his own affidavit, a petitioner's self-serving affidavit generally does not meet his required minimum level of cogency. State v. Kapper, 5 Ohio St.3d 36 (1983). Neither his affidavit nor any of the other materials attached to his petition demonstrate a substantial violation of trial counsel's essential duty, nor do they demonstrate prejudice arising from that ineffectiveness. Appellant's fourth assignment of error is overruled.
{¶42} Based on the foregoing, appellant's assignments of error are overruled. The April 16, 2024 judgment entry of the Muskingum County Court of Common Pleas is affirmed.
By Gwin, J., Delaney, P.J., and Baldwin, J., concur.