2000 OHIO 339 - State v. Harris

[This opinion has been published in Ohio Official Reports at

88 Ohio St.3d 319

.]




             THE STATE OF OHIO, APPELLANT, v. HARRIS, APPELLEE.
                      [Cite as State v. Harris,

2000-Ohio-339

.]
Discretionary appeal allowed—Court of appeals’ judgment reversed on authority
        of State v. Calhoun.
      (No. 99-2087—Submitted February 8, 2000—Decided April 5, 2000.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 74518.
                                  __________________
        William D. Mason, Cuyahoga County Prosecuting Attorney, and Lisa Reitz
Williamson, Assistant Prosecuting Attorney, for appellant.
                                  __________________
        {¶ 1} The discretionary appeal is allowed.
        {¶ 2} The judgment of the court of appeals is reversed on the authority of
State v. Calhoun (1999),

86 Ohio St.3d 279

714 N.E.2d 905

.
        MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG
STRATTON, JJ., concur.
        PFEIFER and COOK, JJ., dissent.
                                  __________________
        COOK, J., dissenting.
        {¶ 3} I respectfully dissent. The state argues that the court of appeals
erroneously relied on State v. Swortcheck (1995),

101 Ohio App.3d 770

656 N.E.2d 732

, when it should have relied on State v. Calhoun (1999),

86 Ohio St.3d 279

714 N.E.2d 905

. Swortcheck held that courts should accept as true affidavits
in support of a petition for post-conviction relief when deciding whether to hold a
hearing. But this court recently held in Calhoun that, when considering whether to
hold a hearing on a petition, a trial court may discount such affidavits under certain
circumstances.
                              SUPREME COURT OF OHIO




        {¶ 4} Though the court of appeals here did cite Swortcheck and not
Calhoun, it nevertheless explicitly acknowledged a trial court’s power to discount
affidavits as set forth in Calhoun. The appeals court grounded its decision to
reverse on several of the factors enumerated in Calhoun, such as whether the judge
reviewing a post-conviction relief petition is the same judge who presided at trial,
whether the affidavits contain or rely on hearsay, and whether the affiants are
relatives of the petitioner or other interested persons.

Id. at 285

714 N.E.2d at 911

-
912. The court of appeals even cited the case from which Calhoun adopted that list
of factors, State v. Moore (1994),

99 Ohio App.3d 748

651 N.E.2d 1319

.
Moreover, the Calhoun factors not mentioned by the court of appeals, namely,
whether the language of the affidavits is identical or otherwise indicates that they
were drafted by the same person and whether the affidavits contradicted evidence
proffered by the defense at trial, do not appear to tip the balance in favor of
discounting these affidavits. The appellate court’s discussion of the affidavits
suggests that they varied in content and contained information that would not likely
have been contradicted by the defense at trial.          Calhoun mentions internal
inconsistency in an affidavit, as well as inconsistency between an affidavit and any
trial testimony by the same witness, as factors tending to indicate weakness in an
affidavit’s credibility. But the affiants here did not testify at trial, and there is no
indication that the affidavits were internally inconsistent.
        {¶ 5} Thus, the court of appeals correctly analyzed the issue despite having
cited Swortcheck and not Calhoun. I would, therefore, affirm the judgment of the
court of appeals.
        PFEIFER, J., concurs in the foregoing dissenting opinion.
                                __________________




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