[Cite as State v. Hogan,
2013-Ohio-5708.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-301
v. : (C.P.C. No. 08CR-8615)
Tremain R. Hogan, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
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D E C I S I O N
Rendered on December 24, 2013
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Ron O'Brien, Prosecuting Attorney, and Barbara Farnbacher,
for appellee.
Tremain R. Hogan, pro se.
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APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Tremaine R. Hogan, appeals from the March 15, 2013
judgment of the Franklin County Court of Common Pleas denying appellant's petition to
vacate or set aside judgment. For the following reasons, we affirm.
{¶ 2} Appellant has been before this court twice, and we have previously
summarized the facts which led him here in State v. Hogan, 10th Dist. No. 09AP-1182,
2010-Ohio-3385 ("Hogan I"), and State v. Hogan, 10th Dist. No. 11AP-644, 2012-Ohio-
1421 ("Hogan II"). In Hogan I, appellant filed a direct appeal of his conviction of one
count of rape, two counts of attempted rape, and one count of kidnapping. He challenged
the denial of his motion to suppress, the admission of what he alleged to be evidence of
prior bad acts, the weight and sufficiency of the evidence, and the trial court's claimed
failure to merge appellant's kidnapping offense with his rape and attempted rape offenses.
We sustained the assignments of error pertaining to the denial of the motion to suppress
No. 13AP-301 2
and merger but overruled his remaining assignments of error. We ordered a limited
remand with instructions to address the question of whether or not the prosecuting
witness had a reliable, independent recollection of her attacker and that appellant was her
attacker. We further instructed that, "[i]f such an independently reliable basis is proven,
then the initial jury verdicts and judgment of guilt can be reinstated." Hogan II at ¶ 5.
{¶ 3} Upon remand, the trial court conducted an evidentiary hearing to determine
whether the prosecuting witness had a reliable basis for her identification. On May 25,
2011, the court determined that she did. The court then reinstated the initial jury verdicts.
On July 6, 2011, the trial court conducted resentencing proceedings and merged
appellant's sentence as we instructed. Appellant again appealed. In Hogan II, appellant
assigned as error: (1) failure to suppress the victim's in-court eyewitness identification of
appellant on remand, and (2) reinstatement of the jury verdicts. We overruled both
assignments of error.
{¶ 4} Prior to the March 30, 2012 release of our decision in Hogan II, on
February 7, 2012, appellant filed a petition for post-conviction relief, along with requests
for appointment of counsel, a complete transcript at no expense, and appointment of
expert assistance. The basis of the petition for relief was that: (1) counsel was ineffective
at the remand hearing; and (2) evidence of the identification was obtained from the fruits
of a poisonous tree.
{¶ 5} On March 15, 2013, the trial court denied the requests for counsel,
transcript, and experts. The court also denied the petition to vacate as to the issue of
identification on the basis of res judicata, noting that appellant raised the issue in both
direct appeals. As to the issue of ineffective assistance of counsel, the trial court found no
merit to the claim.
{¶ 6} Defendant filed this appeal and asserts the following two assignments of
error:
[1.] The trial court erred to the prejudiced [sic] of defendant
appellant when it failed to make findings of fact and
conclusions of law to the second claim of post conviction
petition with respect to the denying petition as required by
section 2953.21 Ohio revised code.
[2.] The trial court erred when it denied petition res judicata
and did not warrant a hearing on ineffective counsel claim.
No. 13AP-301 3
{¶ 7} We begin by affirming the trial court on the second assignment of error. In
his second assignment of error, appellant asserts that the trial court erred in applying the
doctrine of res judicata to the identification issue. In State v. Steward, 10th Dist. No.
10AP-838, 2011-Ohio-2272, we stated that, " '[u]nder 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 ¶ 22, quoting State v. Thompkins, 10th Dist. No. 08AP-
454,
2008-Ohio-5373, ¶ 12.
{¶ 8} In this case, appellant was represented by counsel in Hogan II. Therefore,
consistent with our holding in Steward, we find the trial court did not err in determining
that the identification issues could have been raised on direct appeal. Consequently, the
court did not err in barring appellant from raising these same issues in his petition for
post-conviction relief pursuant to the doctrine of res judicata.
{¶ 9} Appellant also asserts that the trial court erred in not holding a hearing on
his ineffective-assistance-of-counsel claim. The trial court, applying Strickland v.
Washington, 466 U.S. 668, 687 (1984), found this claim to be completely without merit.
The court noted that the record reflects counsel's diligent efforts addressing the issue of
identification both at trial and during the hearing on remand. We agree.
{¶ 10} Furthermore, according to the post-conviction relief statute, a criminal
defendant seeking to challenge his conviction through a petition for post-conviction relief
is not automatically entitled to a hearing. State v. Calhoun 86 Ohio St.3d 279, 282-83
(1999), citing State v. Cole,
2 Ohio St.3d 112 (1982). Before granting an evidentiary
hearing on the petition, the trial court shall determine whether there are substantive
grounds for relief (R.C. 2953.21(C)), i.e., whether there are grounds to believe that "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." (Emphasis
added.) R.C. 2953.21(A)(1). Therefore, when an ineffective-assistance-of-counsel claim is
made, before a hearing is granted, " 'the petitioner bears the initial burden to submit
evidentiary documents containing sufficient operative facts to demonstrate the lack of
competent counsel and that the defense was prejudiced by counsel's ineffectiveness.' "
No. 13AP-301 4
(Emphasis added.)
Calhoun at 283, quoting State v. Jackson,
64 Ohio St.2d 107, 112,
syllabus.
{¶ 11} Appellant provided the trial court with an affidavit which was attached to
his motion for appointment of counsel. The affidavit addresses the alleged facts when the
police took appellant into custody and interrogated him. It does not address any deficient
performance by counsel outside the record. Nor does it attest that appellant was
prejudiced by deficient performance of counsel, if any. In his motion for appointment of
counsel filed the same day, appellant included a statement that:
The following special circumstances about Petitioner and/or
Petitioner's case further support this request:
I am incarcerated and unable to get the reqired evidence to
prove the claims in this petition. I would need counsel to
prove the ineffective assistance of counsel and the Constitutional errors, and that Petitioner was denied constitutional
rights.
{¶ 12} This statement does not allege deficient performance or prejudice. It also
does not present any evidence outside the record. Rather, he requests the appointment of
counsel to research evidence outside the record, if any.
{¶ 13} Appellant's affidavit does not rise to the level of demonstrating ineffective
assistance of counsel as it does not contain any, let alone sufficient, operative facts to
demonstrate ineffective assistance of counsel and that he was prejudiced by counsel's
ineffectiveness, if any.
{¶ 14} With all this in mind, we determine that it was appropriate for the trial
court to deny appellant's ineffective-assistance-of-counsel claim.
{¶ 15} Accordingly, we overrule appellant's second assignment of error.
{¶ 16} In his first assignment of error, appellant asserts that the trial court erred by
failing to make findings of fact and conclusions of law when it denied his petition for post-conviction relief. R.C. 2953.21(G) states that, "[i]f the court does not find grounds for
granting relief, it shall make and file findings of fact and conclusions of law and shall enter
judgment denying relief on the petition." We find no merit to appellant's contention that
the trial court failed to issue sufficient findings of fact and conclusions of law in its
judgment entry. In State v. Mayrides, 10th Dist. No. 03AP-347, 2004-Ohio-1623, ¶ 49,
No. 13AP-301 5
we noted that the Supreme Court of Ohio has held that a trial court properly denies a
petition for post-conviction 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.' "
Id., quoting
Calhoun at
292. In State v. Farley, 10th Dist. No. 03AP-555,
2004-Ohio-1781, ¶ 15, we referred to the
Supreme Court's holding in State v. Mapson,
1 Ohio St.3d 217, 219 (1982), wherein it
stated:
The obvious reasons for requiring findings are "… 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." Jones v. State (1966), 8 Ohio St.2d
21, 22,
222 N.E.2d 313. The existence of findings and
conclusions are essential in order to prosecute an appeal.
Without them, a petitioner knows no more than he lost and
hence is effectively precluded from making a reasoned appeal.
In addition, the failure of a trial judge to make the requisite
findings prevents any meaningful judicial review, for it is the
findings and the conclusions which an appellate court reviews
for error.
{¶ 17} In this case, we find that the trial court's decision denying appellant's
petition for post-conviction relief satisfies the policy considerations announced
in Mapson. Even though the trial court does not specifically label its entry as findings of
fact and conclusions of law, it serves that purpose.
{¶ 18} Accordingly, appellant's first assignment of error is overruled.
{¶ 19} Having overruled both of appellant's assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
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