State v. Jackson

William B. Brown, J.,

dissenting. I must dissent because the hearing judge’s sua sponte dismissal of appellee’s petition for post-judgment relief without a hearing is neither consistent with the requirements of R. C. 2953.21 nor with State v. Milanovich (1975), 42 Ohio St. 2d 46 , and its progeny.

Herein, main trial counsel, by way of affidavit, informed the hearing judge that because he was appointed defense counsel only four days prior to the date trial commenced, he had “virtually no time* * * to do independent investigation, talk to the prosecution witness***or determine a trial strategy”; that he had “no time* * * to research applicable areas of the law which***might be helpful***or***to locate an automobile fitting witnesses’ description* **of that used by the perpetrators”; and that he had time “only* * *to speak to a few of the witnesses***and confer for one hour with***[his] client.”

In the finding of fact and conclusions of law required by R. C. 2953.21(C), the hearing judge (who was also the original trial judge) justified his dismissal of appellee’s petition without a hearing on the ground that he “ha[d] a good recollection of the facts and ha[d] no doubt that* ** [appellee] received ***[a]n extremely fair trial[;]***[w]herein he was represented by diligent, competent and talented counself;] * * *[a]nd in which the evidence was highly credible.” (Emphasis added.)

In my opinion, the hearing judge erred in relying on his recollections of what had transpired at trial for reason that the *114 Ohio Post-Conviction Remedy Act requires that a hearing judge dismiss a petition without a hearing only on the basis of files and records described in R. C. 2953.21(C).

Prior to 1967, there was considerable uncertainty as to which files and records a hearing judge could consider in deciding whether to dismiss a petition without a hearing. See, e.g., State v. Lloyd (1966), 8 Ohio App. 2d 155 . In 1967, R. C. 2953.21(C) was amended to specify more precisely the files and records that a hearing judge could properly consider. I do not believe that either the letter or spirit of this amendment permits us to sanction the hearing judge’s reliance on his recollections herein.

Additionally, the 1967 amendments added a. requirement that the hearing judge make findings of fact and conclusions of law if a petition were dismissed without a hearing. (Prior to 1967, findings of fact and conclusions of law were required only if a hearing were held.) This additional requirement was apparently added to assure effective appellate review of all post-convictions proceedings, not just those in which a hearing is held. See Comment, Operation of the Ohio Post-Conviction Remedy Act, 29 Ohio St. L.J. 727 , 731. The need for effective appellate review is particularly acute because the hearing judge will often be the same judge who heard the original trial. (A petition is filed in the court that imposed the sentence. R. C. 2953.21 [A].) A safeguard should thus be available to preclude the prejudice that can occur if the hearing judge either consciously or inadvertently considers aspects of the original trial that cannot be verified in the files and records included in the post-conviction challenge. See Note, 37 U. Cin. L. Rev. 310 , 320. The safeguard introduced by the General Assembly in 1967— that the hearing judge set forth in findings of fact and conclusions of law the reasons for his dismissal without a hearing— is undermined if appellate courts determine that a hearing judge’s recollections are sufficient to justify a dismissal.

Even if the hearing judge could lawfully rely on his recollections, I would still dissent. Since appellee’s facially sufficient constitutional claim depended upon factual allegations that could not be determined on the basis of the files and records included in his challenge (i.e., because his claim depended upon evidence outside the record), a hearing pur *115 suant to R. C. 2953.21(E), or a summary judgment proceeding pursuant to R. C. 2953.21(D), was necessary to dispose of his petition.

State v. Milanovich, supra, paragraph one of the syllabus, reads:

“Where a claim raised by a petition for post-conviction relief under R. C. 2953.21 is sufficient on its face to raise an issue that petitioner’s conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief [within the meaning of R. C. 2953.21(C)].”

Additionally, in State v. Milanovich, supra, at page 50, the following passage appears:

“Properly, a petition which states a substantive ground for relief [within the meaning of R. C. 2953.21(C)] and which relies upon evidence outside the record should be considered by the court, upon motion by the prosecuting attorney. This does not necessarily require that an evidentiary hearing [under R. C. 2953.21(E)] be held for every petitioner who relies upon matters outside the record, since evidence of such matters may be introduced by motion for summary judgment [under R. C. 2953.21(D)] by either the petitioner or the prosecuting attorney.***” *

Furthermore, we followed State v. Milanovich, supra, in State v. Mishelek (1975), 42 Ohio St. 2d 140, 141, fn. 2 ; and in State v. Hester (1976), 45 Ohio St. 2d 71, 76 .

Pursuant to R. C. 2953.21(C) as interpreted in State v. Milanovich, supra, paragraph one of the syllabus, the hearing judge should have docketed (see R. C. 2953.21[D], first sentence), and not dismissed sua sponte, this petition. Once docketed, pursuant to R. C. 2953.21(D) as interpreted in State *116 v. Milanovich, supra, at page 50, this petition could be dismissed without a hearing only if the prosecutor filed (and was granted) a motion for summary judgment. See, id., paragraph two of the syllabus, and pages 50-52. In my opinion, therefore, the majority’s failure to overrule the hearing judge’s sua sponte dismissal of this petition without a hearing on the facts present is inconsistent with State v. Milanovich .

For the foregoing reasons, I must respectfully dissent.

The majority relies on the portion of this passage which provides that not all petitions which state a substantive ground for relief under R. C. 2953.21 (C) and which rely on evidence outside the record must necessarily be given a hearing. The majority, however, ignores the qualification included in the succeeding sentence which indicates that a hearing may not be necessary (even though a favorable R. C. 2953.21 [C] determination has been made) because summary judgment might be granted. In my view, the hearing judge should have docketed the petition, see R. C. 2953.21(D), and thus permitted normal adversary procedures to transpire.