State v. Lavender

      [Cite as State v. Lavender, 

.]


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



STATE OF OHIO,                                       :   APPEAL NO. C-210151
                                                         TRIAL NO. B-1700948
      Plaintiff-Appellee,                            :

      vs.                                            :      O P I N I O N.

ANDREW LAVENDER,                                     :

      Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 8, 2021



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Office of the Ohio Public Defender, Patrick T. Clark, Chief Counsel, and Charlyn
Bohland, Supervising Attorney, for Defendant-Appellant.
                  OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Presiding Judge.

       {¶1}    Defendant-appellant Andrew Lavender appeals the Hamilton County

Common Pleas Court’s judgment denying his R.C. 2953.21 petition for

postconviction relief. We reverse the court’s judgment, because its findings of fact

and conclusions of law denying the petition did not conform with the requirements

of R.C. 2953.21(H) and prevent us from meaningfully reviewing Lavender’s appeal.

We remand the case so that the court can make the appropriate findings and

conclusions.

       {¶2}    In 2018, Lavender was convicted of aggravated murder and sentenced

to life in prison without the possibility of parole. In the direct appeal, we affirmed

his conviction. State v. Lavender, 

, 

 (1st Dist.),

appeal not accepted, 

, 

, 

.

       {¶3}    Lavender   also   challenged   his   conviction   in   a   timely   filed

postconviction petition. The common pleas court declined to conduct an evidentiary

hearing or permit discovery and entered findings of fact and conclusions of law

denying the petition.

       {¶4}    In this appeal from the denial of his postconviction petition, Lavender

presents two assignments of error, challenging the common pleas court’s conclusions

that his postconviction claims were barred under the doctrine of res judicata and

were not supported by credible evidence. To the extent that those challenges go to

the adequacy of the court’s findings of fact and conclusions of law, we find them to be

well taken.

       {¶5}    R.C. 2953.21(H) requires the common pleas court to make and file

findings of fact and conclusions of law when the court does not find grounds for

granting postconviction relief. Findings of fact and conclusions of law are “essential

in order to prosecute an appeal,” because “[w]ithout them, a petitioner knows no

more than [that] he lost and hence is effectively precluded from making a reasoned


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                 OHIO FIRST DISTRICT COURT OF APPEALS



appeal,” and the appeals court is precluded from “meaningful judicial review.” State

v. Calhoun, 

, 

 (1999), quoting State ex rel.

Carrion v. Harris, 

, 

 (1988), and State v. Mapson, 

, 

 (1982). Thus, the adequacy of those findings of

fact and conclusions of law is determined by reference to the purposes served by the

requirement: “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.”

Harris at 19, quoting Jones v. State, 

, 

 (1966).

Accord 

; State v. Poindexter, 1st Dist. Hamilton No. C-890734, 

, *13 (1991).

       {¶6}   Moreover, the postconviction statutes “mandate[] … a ‘deliberative

process,’ requiring the common pleas court to not just ‘make’ findings of fact and

conclusions of law, but to do so based upon its consideration of the petition,

supporting affidavits, documentary evidence, and the files and records of the

proceedings leading to the petitioner’s conviction, to determine whether ‘there are

substantive grounds for relief.’ ” State v. Pickens, 

, 

, ¶

18 (1st Dist.), quoting former R.C. 2953.21(C) and State v. Roberts, 

, 

, 

; see R.C. 2953.21(D) and (H).

Thus, findings of fact and conclusions of law are adequate to their purposes only if

“they cover and pertain to the material and determinative issues presented in the

petition and adequately apprise the petitioner and the reviewing court of the legal

and evidentiary bases for the decision denying the petition.” Id. at ¶ 18, citing

.

       {¶7}   In his petition as amended, Lavender advanced 12 grounds for relief.

He alleged that he had been denied the effective assistance of trial counsel, and that

the trial court had erred, concerning informant and eyewitness-identification

testimony and text-message evidence. And he alleged that his trial counsel had been


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                   OHIO FIRST DISTRICT COURT OF APPEALS



ineffective concerning the requirement under the Eighth Amendment to the United

States Constitution, of individualized sentencing for a child facing a prison term of

life without the possibility of parole.

       {¶8}    In the findings of fact and conclusions of law contained in the entry

denying Lavender’s petition, the common pleas court did not specify those grounds

for relief, but instead summarized them as follows: “Defendant claims he was denied

effective assistance of counsel at trial and other issues.” The court then set forth

alternative bases for denying postconviction relief without a hearing, concluding that

the petition was barred under the doctrine of res judicata, and that the petition and

its supporting evidence did not demonstrate substantive grounds for relief. We find

those findings of fact and conclusions of law inadequate to the purposes of the

statutory mandate, rendering it impossible for us to meaningfully review the

challenge on appeal.

       {¶9}    Findings of fact and conclusions of law that summarily dismiss

postconviction claims under the doctrine of res judicata must “specify the portions of

the files and records which establish the bar.” State v. Lester, 

,

 (1975). In denying Lavender’s petition, the common pleas court

stated that “[t]he doctrine of res judicata bars a court from conducting a hearing on a

post-conviction petition where the claims raised in the petition either were raised or

could have been raised at trial and on direct appeal.” But the court did not specify

which postconviction claims (if any) were barred by res judicata. Nor did the court

specify those parts of the record found to have established the bar. See State v.

Ketterer, 

, 

 (12th Dist.), appeals not accepted, 

, 

, 

 (holding that a “conclusory

finding” that petitioner was entitled to no relief because res judicata barred the

petition did not provide the appeals court with adequate reasons to evaluate whether

that conclusion was erroneous); State v. Canada, 10th Dist. Franklin No. 16AP-7,


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                  OHIO FIRST DISTRICT COURT OF APPEALS

, appeals not accepted, 

, 2017-Ohio-

4396, 

 (deeming inadequate findings of fact and conclusions of law

that did not specifically state which postconviction claims were barred by res

judicata); State v. Guenther, 9th Dist. Lorain No. 06CA008914, 

, ¶ 8-

9 (holding that findings of fact and conclusions of law were insufficient when the

appeals court could not determine what parts of the record were believed to have

established the bar of res judicata).

       {¶10} Similarly, in concluding that the petition and its supporting evidence
did not demonstrate substantive grounds for relief, the common pleas court did not

specify which of Lavender’s postconviction claims were subject to dismissal for that

reason. Nor did the court describe or discuss the substantive issues presented by, or

the evidence offered in support of, the claims.         Instead, the court summarily

concluded that “[n]o ineffective assistance of counsel is demonstrated,” because the

supporting affidavits were “entitled to little weight,” and because the credibility of

those affidavits was “inconsequential” when they “provide additional background

information or potential alternative strategies for trial, but do not rise to the level of

showing [a] constitutional violation.” Thus, the findings of fact and conclusions of

law were not adequate to their purposes, when they did not address the material and

determinative issues presented by the petition or apprise Lavender or this court of

the legal or evidentiary bases for the conclusion that the petition and its supporting

evidence did not demonstrate substantive grounds for relief. See State v. Issa, 1st

Dist. Hamilton No. C-000091, 

 (Sept. 29, 2000) (findings of fact

and conclusions of law did not “address a determinative issue and provide a basis for

a resolution of that issue”); State v. Crossley, 2d Dist. Clark No. 2020-CA-10, 2020-

Ohio-6640, ¶ 35, following Canada at ¶ 20 (findings of fact and conclusions of law

did not specifically address an ineffective-counsel claim or sufficiently explain

discounting the credibility of supporting affidavits); 

 (findings of fact


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                 OHIO FIRST DISTRICT COURT OF APPEALS



and conclusions of law “generically label[ed],” then summarily denied, multiple

postconviction claims and did not indicate review of supporting evidence); Guenther

at ¶ 8-9 (findings of fact and conclusions of law that did not specifically address

postconviction claims).

       {¶11} We hold that the common pleas court erred to the prejudice of
Lavender when it denied his postconviction petition upon findings of fact and

conclusions of law that did not satisfy the statutory mandate. We, therefore, sustain

the assignments of error in part, reverse the judgment denying the petition, and

remand for findings of fact and conclusions of law conforming with the requirements

of R.C. 2953.21(H) and for further proceedings consistent with the law and this

opinion.   See Issa at *1-2 (reversing and remanding because effective appellate

review of the denial of a postconviction petition was precluded by inadequate

findings of fact and conclusions of law). Accord Crossley at ¶ 45; 

;

Canada at ¶ 27 and 30; Guenther at ¶ 9.

                                             Judgment reversed and cause remanded.

BERGERON and CROUSE, JJ., concur.

Please note:

       The court has recorded its entry on the date of the release of this opinion.




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