2021 Ohio 1043 - State v. Struckman

      [Cite as State v. Struckman,

2021-Ohio-1043

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-200069
C-200210
Plaintiff-Respondent-Appellee, : TRIAL NO. B-1502231

vs. :

BUDDY EUGENE STRUCKMAN, : O P I N I O N.

Defendant-Petitioner-Appellant. :

Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in C-200069;
Appeal Dismissed in C-200210

Date of Judgment Entry on Appeal: March 31, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Respondent-Appellee,

Buddy Eugene Struckman, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Defendant-petitioner-appellant Buddy Eugene Struckman appeals the

Hamilton County Common Pleas Court’s judgments overruling his Crim.R. 33 motion for

a new trial and denying his petition under R.C. 2953.21 for postconviction relief. We

dismiss for lack of jurisdiction Struckman’s appeal from the overruling of his new-trial

motion. And we affirm the common pleas court’s judgment denying postconviction relief.

{¶2} In May 2018, Struckman was convicted upon jury verdicts finding him

guilty of two counts of unlawful possession of a dangerous ordnance. We affirmed

those convictions in the direct appeal. State v. Struckman, 1st Dist. Hamilton No. C-

180287,

2020-Ohio-1232

, appeal not accepted,

159 Ohio St.3d 1446

, 2020-Ohio-

3712,

149 N.E.3d 523

.

       {¶3}    Struckman also sought relief from his convictions by filing with the

common pleas court, in August 2018, motions for a new trial and for leave to move for a

new trial out of time and, in November 2019, a petition under R.C. 2953.21 et seq. for

postconviction relief. Here, in the case numbered C-200210, he appeals the judgment

overruling his motion for a new trial. And in the case numbered C-200069, he appeals the

judgment denying his postconviction petition.

                 App. No. C-200210—No Appeals Court Jurisdiction

       {¶4}    We address at the outset the state’s argument that Struckman’s appeal in

C-200210, from the common pleas court’s judgment overruling his motion for a new trial,

must be dismissed for lack of jurisdiction. We agree.

       {¶5}    A timely filed notice of appeal confers upon a reviewing court the

jurisdiction to entertain an appeal. See App.R. 3(A) and 4; State ex rel. Curran v.

Brookes,

142 Ohio St. 107

50 N.E.2d 995

 (1943), paragraph seven of the syllabus.




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Generally, the notice of appeal must be filed within 30 days of entry of the final

judgment sought to be appealed. App.R. 4(A)(1). If the notice of appeal is not timely

filed, the appellant in a criminal case may move under App.R. 5 for leave to file a

delayed appeal. In a civil case, “if the clerk has not completed service of the order

[appealed] within the three-day period prescribed in Civ.R. 58(B),” the 30-day

appeal period is tolled and does not “begin to run [until] the date when the clerk

actually completes service.” App.R. 4(A)(3).

         {¶6}   The notices of appeal in C-200210 and C-200069 were not filed within the

30 days prescribed by App.R. 4(A)(1). Struckman did not, in either appeal, seek leave

under App.R. 5 to file a delayed appeal. And neither the judgment denying postconviction

relief nor the judgment overruling the new-trial motion has been served on Struckman.

         {¶7}   Appeal from denial of postconviction petition was timely

filed.     The proceedings upon a petition under R.C. 2953.21 et seq. for

postconviction relief are civil in nature and governed by the Ohio Rules of Appellate

Procedure as they apply to a civil action. State v. Nichols,

11 Ohio St.3d 40

463 N.E.2d 375

 (1984), paragraph two of the syllabus. Thus, regardless of whether the

petitioner actually knows of the judgment denying postconviction relief, the time for

appealing that judgment is tolled under App.R. 4(A)(3) and begins to run only “upon

service of notice of the judgment and notation of service on the docket by the clerk of

courts.” State v. Young, 1st Dist. Hamilton No. C-140236,

2015-Ohio-774

, ¶ 4,

quoting Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C.,

141 Ohio St.3d 542

2015-Ohio-241

26 N.E.3d 806

, syllabus. Because Struckman was not

served with the judgment denying his postconviction petition, App.R. 4(A)(3) tolled

the time for appealing that judgment. Thus, his appeal from that judgment in C-




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200069 was filed within the time prescribed by App.R. 4(A)(1), and this court has

jurisdiction to review that judgment.

       {¶8}    Appeal from overruling of Crim.R. 33 motion was not

timely filed. But proceedings under Crim.R. 33 are not civil in nature. Therefore,

App.R. 4(A)(3) did not, as Struckman argues, toll the time for appealing the

overruling of his Crim.R. 33 motion for a new trial.

       {¶9}    Nor was the time for appealing the overruling of the new-trial motion

tolled under any exception to App.R. 4(A)(1)’s 30-day period provided under App.R.

4(B). App.R. 4(B)(3) speaks directly to the time for appealing a decision on a

“timely” filed “post-judgment” motion for a new trial in a criminal case. Under

App.R. 4(B)(3), when a criminal defendant moves under Crim.R. 33(A) for a new

trial, whether on grounds of newly discovered evidence or other grounds, and that

motion is filed within the time provided under Crim.R. 33(B) for filing a motion for a

new trial on grounds other than newly discovered evidence, the time for appealing

the judgment of conviction is tolled until the new-trial motion is decided, and the

decision on the new-trial motion is then reviewable in the direct appeal. Unless that

exception applies, an appeal from a judgment overruling a Crim.R. 33 motion must

be filed within App.R. 4(A)(1)’s 30-day period.

       {¶10} Struckman sought a new trial under Crim.R. 33(A)(1) through (4) and

33(A)(6).     A Crim.R. 33(A)(6) motion for a new trial on the ground of newly

discovered evidence must be filed within 120 days of the return of the verdict. A

motion for a new trial on other grounds must be filed within 14 days of the return of

the verdict. Crim.R. 33(B).




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       {¶11} Struckman’s verdicts were returned on May 3, 2018. He filed his

Crim.R. 33 motion more than three months later, on August 22, 2018. The trial

court overruled the motion on September 17, 2018. That judgment was appealed on

May 22, 2020. To the extent that the motion sought a new trial on the ground of

newly discovered evidence, it was timely filed for purposes of Crim.R. 33, but not for

purposes of App.R. 4(B)(3)’s tolling provision. To the extent the motion sought a

new trial on other grounds, it was not timely filed for either purpose.

       {¶12} Thus, App.R. 4(B)(3) did not operate to toll the time for appealing the

judgment overruling Struckman’s Crim.R. 33 motion. His notice of appeal from that

judgment in C-200210 was not filed within App.R. 4(A)(1)’s 30-day period. And he

was not granted, because he did not seek, leave under App.R. 5 to file a delayed

appeal. Therefore, this court has no jurisdiction to review that judgment, and the

appeal in C-200210 must be dismissed.

          App. No. C-200069—Postconviction Petition Properly Denied

       {¶13} In the case numbered C-200069, Struckman presents four

assignments of error that may fairly be read together to challenge the denial of his

postconviction petition without an evidentiary hearing. Finding no merit to any

aspect of this challenge, we overrule the assignments of error.

       {¶14} The trial.        Struckman was convicted of unlawfully possessing

dangerous ordnances upon evidence that he had constructively possessed a MAC-10

automatic weapon and suppressor that had been seized in a search pursuant to a

warrant of the house in which he was living. See Struckman, 1st Dist. Hamilton No.

C-180287,

2020-Ohio-1232, at ¶ 14

. Police Officer Drew Jones of the Lockland

Police Department testified that he and his partner, Sergeant Patrick Sublet, were

5
OHIO FIRST DISTRICT COURT OF APPEALS

dispatched to the area of 622 Maple Street upon a 911 call reporting “a shot fired.”

Their investigation led them to the house at 622 Maple Street, because Officer Jones

had had multiple prior contacts with Struckman there. No one responded when the

officers knocked on the door. Their observation of security cameras attached to the

house caused them concern for their safety and prompted them to obtain a warrant

to search the house and to summon a SWAT team to secure the premises before the

warrant was executed.

{¶15} When the SWAT team approached the front door, they saw Struckman

on the first floor of the house near the front door. The team used “flash bangs” to

encourage Struckman to come out of the house, and he was turned over to Lockland

police. The team then went through the house to secure the premises for Lockland

officers to conduct their search.

{¶16} Upon entering the house, police observed that the only habitable part

of the house was a small living area on the second floor, consisting of an eight-by-

ten-foot room, with a small closet and a walkout balcony to the front of the house.

The room was furnished with a sofa, coffee table, rug, television monitor, and

microwave. And it contained a trash bag full of men’s clothing, a suitcase, men’s

shoes, and empty drink cups and fast-food bags.

{¶17} Pursuant to the warrant, police seized from the living area multiple

loaded magazines and a holster for a .45-caliber semi-automatic handgun found

under the sofa cushions. Nine rounds of ammunition were found in the gun’s ten-

round magazine.

{¶18} The door to the closet was open, possibly by force by the SWAT team

in securing the premises. The closet contained a suit jacket and men’s dress clothes.

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OHIO FIRST DISTRICT COURT OF APPEALS

And police seized from the closet multiple boxes containing 600 rounds of .45-

caliber ammunition.

{¶19} The fire department was summoned to force open a safe found in the

closet. From the safe, police seized the MAC-10 and suppressor that Struckman was

charged with unlawfully possessing, along with a detached stock for the MAC-10, two

high-capacity magazines fully loaded with .45-caliber ammunition, and a bandolier

with three fully loaded magazines. A firearm examiner from the Hamilton County

Coroner’s Office determined that the MAC-10 was a functioning fully-automatic

weapon, and that the homemade suppressor had been made for the MAC-10.

{¶20} For the MAC-10 and suppressor, Struckman was charged with two

counts of unlawful possession of a dangerous ordnance in violation of R.C.

2923.17(A), along with two specifications under R.C. 2941.144 that he had possessed

an automatic firearm equipped with a suppressor. Struckman was arrested at 622

Maple Street. He represented himself at trial. The jury found him guilty as charged.

And the trial court sentenced him to prison terms totaling seven years.

{¶21} The appeal. In the direct appeal, we affirmed those convictions. In

doing so, we overruled assignments of error challenging the weight and sufficiency of

the evidence to prove that Struckman had constructively possessed the MAC-10 and

suppressor, the trial court’s failure to secure a waiver of counsel after rejecting

Struckman’s midtrial request for appointed counsel, and the trial court’s finding that

Struckman was competent to stand trial.

{¶22} The postconviction petition. In the postconviction petition

from which this appeal derives, Struckman sought relief from his convictions on

grounds of judicial bias and misconduct and alleged deprivations of the rights to

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OHIO FIRST DISTRICT COURT OF APPEALS

counsel and the effective assistance of counsel. The common pleas court denied the

petition upon concluding that the postconviction claims were barred under the

doctrine of res judicata, when they were or could have been raised on direct appeal.

{¶23} To prevail on a postconviction claim, the petitioner must demonstrate

a denial or infringement of his rights in the proceedings resulting in his conviction

that rendered the conviction void or voidable under the Ohio or United States

Constitution. See R.C. 2953.21(A)(1). In advancing that claim, the petitioner bears

the initial burden of demonstrating, through the petition and any supporting

affidavits and the files and records of the case, “substantive grounds for relief.” R.C.

2953.21(C).

{¶24} A postconviction claim is subject to dismissal without a hearing if the

petitioner fails to submit with his petition evidentiary material setting forth sufficient

operative facts to demonstrate substantive grounds for relief. See id.; State v.

Pankey,

68 Ohio St.2d 58

428 N.E.2d 413

 (1981); State v. Jackson,

64 Ohio St.2d 107

413 N.E.2d 819

 (1980).        Conversely, “the court must proceed to a prompt

hearing on the issues” if “the petition and the files and records of the case show the

petitioner is … entitled to relief.” R.C. 2953.21(E).

       {¶25} The common pleas court denied Struckman’s postconviction claims

under the doctrine of res judicata. “Under 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[,] except an appeal from that judgment,

any defense or any claimed lack of due process that was raised or could have been

raised by the defendant at the trial [that] resulted in that judgment of conviction, or




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on an appeal from that judgment.” State v. Perry,

10 Ohio St.2d 175

226 N.E.2d 104


(1967), paragraph nine of the syllabus.

       {¶26} A postconviction petitioner may resist dismissal of a postconviction

claim under the doctrine of res judicata by supporting his claim with evidence

outside the record of the proceedings resulting in the conviction. But submitting

outside evidence will not, by itself, preclude denying the claim under the doctrine of

res judicata. Outside evidence must be “competent, relevant and material” to the

claim. The evidence must “meet some threshold standard of cogency,” in the sense

that it is more than “marginally significant” and “advance[s] the … claim beyond

mere hypothesis and a desire for further discovery.” State v. Coleman, 1st Dist.

Hamilton No. C-900811,

1993 WL 74756

 (Mar. 17, 1993). The evidence must be

other than cumulative of or alternative to the evidence presented at trial. State v.

Combs,

100 Ohio App.3d 90, 98

652 N.E.2d 205

 (1995). Finally, submitting outside

evidence in support of a postconviction claim will not preclude denying the claim

under the doctrine of res judicata, if the claim could fairly have been determined on

direct appeal from the judgment of conviction, based upon the materials contained in

the trial record. State v. Cole,

2 Ohio St.3d 112, 114

443 N.E.2d 169

 (1982), syllabus;

Perry at paragraph nine of the syllabus.

       {¶27} Ineffective assistance of counsel—no outside evidence.

In his third postconviction claim, Struckman asserted that he had been denied the

effective assistance of counsel, because standby counsel appointed to assist him in

representing himself had failed to prepare a defense, investigate or request an

investigator, inquire into his competency, or investigate “exculpatory evidence” in

the form of firearm-registration requirements. Struckman did not support this claim




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                      OHIO FIRST DISTRICT COURT OF APPEALS



with evidence outside the record of the proceedings resulting in his convictions.

Therefore, the common pleas court properly denied the claim under the doctrine of

res judicata.

       {¶28} Ineffective assistance of counsel—motion to suppress.

In his fourth postconviction claim, Struckman asserted that he had been denied the

effective assistance of trial counsel, when previously appointed counsel, in moving to

suppress evidence seized in the search of 622 Maple Street, had “motioned the court

for a Franks hearing, but … did not raise the issue of the sworn statement for

probable cause [that is, the search-warrant affidavit] having false statements.” In

support of that claim, Struckman offered outside evidence consisting of a photocopy

of a portion of a letter directed to him, dated two months before he filed his

postconviction petition, from an unnamed person in the Office of the Hamilton

County Public Defender. The letter provided a response to Struckman’s question in

earlier correspondence concerning whether an unstated “stipulation should also put

into question the veracity of the [search-warrant affidavit].” The letter’s author

stated that “the issue of the veracity of the search warrant affidavit [was] raised in a

motion to suppress,” but “[t]he motion to suppress that was eventually presented in

this case did not address this issue, and when the testimony at trial later showed that

the affidavit was wrong, it was too late.”      The letter’s author added that “[t]he

falsehood in the affidavit does reflect poorly upon the credibility of the state’s

witnesses.”

       {¶29} Struckman also offered the municipal court’s “probable cause

checklist” to support his assertion that the affidavit “is not accurate to the checklist.”

And he pointed to evidence in the trial record. Struckman noted that the search-




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warrant affidavit, which was signed by Sergeant Sublet, stated that police responding

to the 911 call “attempted to contact the male but he has barricaded himself inside

the residence and is refusing to answer the door.” And Struckman insisted that

Officer Jones’s trial testimony showed that “there w[ere] not barricades [as]

fabricated in the [affidavit],” and that “it was stipulated … that no shots were fired

and the gun shot residue test was negative showing that no firearms were fired or

handled by the defendant.”

       {¶30} To prevail on a claim of ineffective assistance of trial counsel, a

postconviction petitioner must demonstrate (1) that counsel’s performance fell below

an objective standard of reasonableness, and (2) that counsel’s deficient performance

prejudiced him. See Strickland v. Washington,

466 U.S. 668, 694

104 S.Ct. 2052

80 L.Ed.2d 674

 (1984). To establish prejudice, the petitioner must demonstrate that

counsel’s deficient performance “so undermined the proper functioning of the

adversarial process that the trial could not have reliably produced a just result.”

State v. Powell,

90 Ohio App.3d 260, 266

629 N.E.2d 13

 (1993), citing Lockhart v.

Fretwell,

506 U.S. 364

113 S.Ct. 838

122 L.Ed.2d 180

 (1993), and Strickland.

       {¶31} The affidavit supporting the warrant to search 622 Maple Street stated

that two people in the vicinity of the house had seen a man on the second floor of the

house fire a single round from a “black firearm” and then retreat into the house; that

the victims had subsequently identified the man as Struckman; and that police

responding to the 911 call had “attempted to contact the male but he has barricaded

himself inside the residence and is refusing to answer the door.”           The warrant

authorized a search of the house for “[t]he firearm that was used to fire at the two

persons,” along with “any other property that is deemed contraband.” Pursuant to




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that warrant, police seized from the small second-floor living area multiple loaded

magazines and a holster for the .45-caliber semi-automatic handgun found under the

sofa cushions, 600 rounds of .45-caliber ammunition found in the closet, and the

MAC-10, detached stock, suppressor, and multiple loaded high-capacity magazines

found in the safe.

       {¶32} Counsel filed a motion to suppress the fruits of the search on the

ground that the affidavit for the warrant had included false statements material to

the finding of probable cause. The motion alleged that the victims’ reliability had not

been established, and that the affidavit had falsely stated that Struckman had fired a

round at the victims. No witnesses were presented at the hearing on the motion,

because, as counsel complained, the police officers who had been subpoenaed did not

appear. Counsel presented a copy of the affidavit and argued that it was overly broad

and vague, and that it was insufficient to show probable cause because the victims

were not named in the affidavit and were not otherwise established as reliable

witnesses.

       {¶33} In its entry overruling the motion, the trial court applied the probable-

cause analysis provided in Illinois v. Gates,

462 U.S. 213

103 S.Ct. 2317

76 L.Ed.2d 527

 (1983). The court noted that the Gates analysis includes an inquiry into the

informant’s veracity or the reliability of the informant’s report, and that for purposes

of the warrant affidavit, a person who reports that he or she was the victim of the

described criminal conduct is ordinarily considered sufficiently credible to merit

belief. The court found that “under the totality of the circumstances, the affidavit for

the search warrant creates a fair probability that evidence of a crime would be found

at 622 Maple St.” Upon that finding, the court concluded that the warrant had been




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properly issued upon probable cause, and that the warrant was not too broad, vague,

or unreasonable.

       {¶34} At trial, Struckman cross-examined Officer Jones concerning the

search-warrant affidavit signed by Sergeant Sublet. Asked by Struckman to look at

photographs of the premises and confirm that they did not show “a barricade,”

Officer Jones denied ever suggesting that there had been a barricade. Also during

Officer Jones’s cross-examination, the state stipulated that “no gunshot residue was

located or the results came back negative with regard to Mr. Struckman.” Struckman

overcame the state’s objection to this line of questioning by asserting that it was

relevant, and thus admissible, to show that he had not constructively possessed the

weapons found in the residence.

       {¶35} In his fourth postconviction claim, Struckman asserted, and offered

the public defender’s letter to show, that he had been denied the effective assistance

of counsel, when previous appointed counsel did not challenge the veracity of the

warrant affidavit with the “false” statements in the affidavit concerning “barricades”

and “shots fired.” But the trial court expressly found the affidavit credible based not

on Sergeant Sublet’s statement that Struckman had “barricaded himself inside the

residence barricade,” but on the presumed credibility of the victims who had

reported the criminal conduct described in the affidavit.       Moreover, the record

includes the transcript of the proceedings on the motion to suppress, along with the

testimony elicited at trial concerning the gunshot-residue test results and the

absence of “barricades.” Thus, the outside evidence offered in support of the fourth

claim, consisting of the public defender’s suggestion in his letter that a stronger case

for suppression could have been made if counsel had used the alleged “falsehoods”




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concerning “barricades” and “shots fired” to challenge the affidavit, was not “cogent”

in the sense that it could not fairly be said to advance beyond mere hypothesis the

claim of an outcome-determinative deficiency in trial counsel’s presentation of the

motion to suppress. Therefore, the submission of that evidence did not preclude the

common pleas court from applying the doctrine of res judicata to deny the claim.

       {¶36} Judicial bias and misconduct and rights to counsel and

the effective assistance of counsel.              In his first postconviction claim,

Struckman alleged judicial bias and misconduct and deprivations of the rights to

counsel and the effective assistance of counsel, when he continued to represent

himself with standby counsel after he had requested “full counsel” in the middle of

his trial. In his second postconviction claim, he asserted that standby counsel had

been ineffective in refusing, without a “proper explanation,” to take over the defense

when asked to do so “midway” through the trial; in failing to ask the public defender

about providing counsel; and in requesting, but then leaving it to him to use, trial

transcripts to impeach witnesses.

       {¶37} Struckman supported those claims with outside evidence in the form

of an email from the trial court to standby counsel that, Struckman asserted, showed

that the judge had forced him to continue representing himself. In that email, the

trial court outlined the procedure that it intended to follow at the upcoming hearing

on Struckman’s request, made toward the end of trial, that standby counsel take over

the defense.    And the court asked standby counsel to share the email with

Struckman.

       {¶38} The record of the proceedings at the hearing showed that the trial

court followed the procedure outlined in the email. The court recited the events




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prompting the hearing. Struckman declined the opportunity to hire private counsel.

He also declined the court’s offer to ask the public defender, or to ask standby

counsel to ask the public defender, to appoint an attorney to represent him. And he

stated that he was “comfortable with continuing with [standby counsel] as standby

counsel.”

         {¶39} In the direct appeal, this court overruled an assignment of error

alleging that Struckman had been denied his right to counsel, when following the

hearing on his midtrial request for counsel, he did not waive his right to counsel. In

our decision, we detailed how the trial court had substantially complied with the

Crim.R. 44 waiver requirement. And we concluded that Struckman had not been

denied his constitutional right to counsel, because he had, in fact, chosen self-

representation. Struckman, 1st Dist. Hamilton No. C-180287,

2020-Ohio-1232, at ¶ 21-38

.

         {¶40} In his first and second postconviction claims, Struckman alleged that

the trial court, in refusing his midtrial request for appointed counsel to take over his

defense, had been biased against him and had, along with standby counsel, denied

his rights to counsel and the effective assistance of counsel. The outside evidence

offered in support of those claims, consisting of the trial court’s email to standby

counsel (and through counsel, to Struckman), outlining the procedure for addressing

the request that “full counsel” take over the defense, essentially confirmed what this

court, in the direct appeal, determined that the record showed: that the trial court

had been committed to complying with the waiver requirement and ensuring that

Struckman was not denied his right to counsel.          Thus, the first and     second

postconviction claims either were or could have been fairly determined on direct




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appeal, based on matters disclosed in the trial record. Because the email was merely

cumulative of the evidence of record, its submission did not preclude the common

pleas court from applying the doctrine of res judicata to deny the first and second

postconviction claims.

   Appeal Dismissed in C-200210 and Judgment Affirmed in C-200069

       {¶41} To summarize, we hold that this court had no jurisdiction to review the

common pleas court’s judgment overruling Struckman’s motion for a new trial, because

the notice of appeal in the case numbered C-200210 was not timely filed. See App.R.

3(A) and 4; State ex rel. Curran,