[Cite as State v. Howard,
2023-Ohio-2001.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-13
:
v. : Trial Court Case No. 2020 CR 0333
:
DANIEL C. HOWARD : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on June 16, 2023
...........
MEGAN HAMMOND, Attorney for Appellee
BRANDON A. MOERMOND & FRANK M. BATZ, Attorneys for Appellant
.............
HUFFMAN, J.
{¶ 1} Defendant-Appellant Daniel C. Howard appeals from a trial court judgment
denying his timely petition for post-conviction relief following his conviction for aggravated
possession of drugs and aggravated trafficking of drugs. Because Howard did not present
an affidavit or any other supporting evidentiary documents containing operative facts that
would, if proven, establish a substantive ground for relief, the trial court did not abuse its
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discretion in denying the petition without a hearing. The judgment of the trial court is
affirmed.
I. Factual and Procedural Background
{¶ 2} Howard was indicted on one count of aggravated trafficking of drugs and one
count of aggravated possession of drugs, both involving methamphetamine in an amount
equal to or exceeding 100 times the bulk amount, felonies of the first degree. He entered
a not guilty plea, and the matter proceeded to a jury trial in May 2021.
{¶ 3} At Howard’s trial, the State presented evidence about the suspicious delivery
of packages to Howard’s residences. A canine had alerted to one of the packages, and
the postal inspector obtained a search warrant to open it; methamphetamine was found
inside. After surveillance and some controlled deliveries, Howard was arrested. When
questioned by detectives, he claimed that the packages had been delivered to his address
for his girlfriend, Monica Foster.
{¶ 4} Foster testified for the State at trial. She testified that, several times a week
over a period of months, she drove Howard and certain packages to Mike Lyric’s house
in Dayton, Ohio, and, as payment, Howard received $40 from Lyric and gave Foster $20
and methamphetamine. Foster further testified that, after she became curious about what
the packages contained, Howard told her that the packages he delivered to Lyric
contained methamphetamine.
{¶ 5} The jury returned guilty verdicts as to both counts charged in the indictment,
and Howard was sentenced to an indefinite prison term of 11 to 16 ½ years.
{¶ 6} Howard appealed, alleging that his conviction was against the manifest
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weight of the evidence. We rejected Howard’s assignment of error and affirmed his
conviction. State v. Howard, 2d Dist. Montgomery No. 2021-CA-33, 2022-Ohio-1609.
{¶ 7} Thereafter, Howard filed a timely petition for post-conviction relief with a
request for a hearing, arguing that he had been denied due process as guaranteed by
the Fourteenth Amendment of the United States Constitution. In his petition, Howard
argued that Foster had made false statements at his trial and the State knew or should
have known that Foster’s testimony was false. The trial court denied Howard’s petition for
post-conviction relief without a hearing, finding that he had failed to submit any evidentiary
material in support of his petition and, thus, failed to provide sufficient facts to demonstrate
a constitutional deprivation.
{¶ 8} Howard now appeals from the judgment denying his petition for post-
conviction relief.
II. Assignment of Error
{¶ 9} Howard’s sole assignment of error is as follows:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
DENYING APPELLANT’S PETITION FOR POST-CONVICTION RELIEF
ON GROUNDS TESTIMONY GIVEN BY A MATERIAL WITNESS WAS
FALSE AND APPELLEE KNEW OR SHOULD HAVE KNOWN IT WAS
FALSE.
{¶ 10} According to Howard, over the course of several telephone conversations
between him and Foster while he was in prison, Foster became willing to admit and testify
that she had perjured herself at Howard’s trial when she alleged that Howard had been
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responsible for the delivery of the packages containing methamphetamine. However,
Howard asserts that Foster disappeared after she expressed her willingness to testify and
that his attorney has been unable to locate her in order to obtain her affidavit.
{¶ 11} R.C. 2953.21 governs petitions for post-conviction relief. R.C.
2953.21(A)(1)(a) provides:
A person in any of the following categories may file a petition in the court
that imposed sentence, stating the grounds for relief relied upon, and asking
the court to vacate or set aside the judgment or sentence or to grant other
appropriate relief:
(i) Any person who has been convicted of a criminal offense … and who
claims 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.
{¶ 12} “A petition for ‘postconviction relief is a means by which the petitioner may
present constitutional issues to the court that would otherwise be impossible to review
because the evidence supporting those issues is not contained in the record of the
petitioner’s criminal conviction.’ ” State v. Mott, 2d Dist. Clark No. 2021-CA-63, 2022-
Ohio-2894, ¶ 10, quoting State v. Monroe, 2015-Ohio-844,
29 N.E.3d 391, ¶ 37 (10th
Dist.). The postconviction relief process is a civil collateral attack on a criminal judgment
and is not an appeal of the judgment. State v. Calhoun,
86 Ohio St.3d 279, 281,
714
N.E.2d 905 (1999).
{¶ 13} The petitioner “may file a supporting affidavit and other documentary
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evidence in support of the claim for relief.” R.C. 2953.21(A)(1)(b). The trial court is
required to consider the petition and any supporting affidavits and documentary evidence.
R.C. 2953.21(D). “When the evidence a defendant relies upon [is] dehors the record that
evidence must meet a threshold of cogency. ….” State v. Hill, 2d Dist. Greene No. 2004-
CA-79, 2005-Ohio-3176, ¶ 8, quoting State v. Lawson,
103 Ohio App.3d 307,
659 N.E.2d
362 (12th Dist.). “Cogent evidence is that which is more than ‘marginally significant’ and
advances a claim ‘beyond mere hypothesis and desire for further discovery.’ ”
Id.
{¶ 14} A postconviction relief petitioner is not automatically entitled to a hearing.
Calhoun at 282. Instead, “a trial court has a gatekeeping role as to whether a defendant
will even receive a hearing.” State v. Gondor,
112 Ohio St.3d 377,
2006-Ohio-6679,
860
N.E.2d 77, ¶ 51. Before granting a hearing on a petition, the trial court shall determine
whether there are substantive grounds for relief. State v. Perry,
2016-Ohio-4582,
66
N.E.3d 1109, ¶ 24 (2d Dist.). It is the petitioner’s initial burden to provide evidence
containing sufficient operative facts to show a cognizable claim of constitutional error.
State v. Kapper,
5 Ohio St.3d 36, 37-38,
448 N.E.2d 823 (1983). A post-
conviction relief petition may be denied, and no hearing is necessary, if the petition and
its supporting evidentiary documents do not contain operative facts that would, if proven,
establish a substantive ground for relief. State v. Armstrong,
56 Ohio App.3d 105, 108,
564 N.E.2d 1070 (8th Dist.1988). “A petitioner is not entitled to a hearing if his claim for
relief is belied by the record and is unsupported by any operative facts other than [his]
own self-serving affidavit or statements in his petition, which alone are legally insufficient
to rebut the record on review.”
Kapper at 38. “Broad conclusory allegations are
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insufficient, as a matter of law, to require a hearing.” State v. Coleman, 2d. Dist. Clark
Nos. 2004-CA-43, 2004-CA-44, 2005-Ohio-3874, ¶ 17.
{¶ 15} “We review a trial court’s denial of post-conviction relief under R.C. 2953.21
for an abuse of discretion ….” State v. White, 118 Ohio St.3d 12,
2008-Ohio-1623,
885
N.E.2d 905, ¶ 45. “The term ‘abuse of discretion’ has been defined as a decision that is
unreasonable, arbitrary, or unconscionable.” (Citation omitted.) State v. Howard, 2d Dist.
Montgomery No. 26069,
2014-Ohio-4602, ¶ 8.
{¶ 16} Howard argues that Foster made false statements at Howard’s trial and that
the State knew or should have known her testimony was false. According to Howard,
Foster and Howard had multiple telephone conversations while he was in prison, which
were recorded. Howard alleges that his counsel subpoenaed those recorded telephone
conversations to serve as evidence for Howard’s post-conviction petition, but receipt of
the recordings was delayed and certain conversations were corrupted. Howard also
alleges that his counsel was unable to obtain the recorded conversations in time to meet
the post-conviction petition filing deadline and thus that evidence was not available for
consideration by the trial court. Howard argues that Foster’s testimony was the only
evidence presented at trial directly connecting Howard to the packages containing
methamphetamine. He further argues that the trial court committed prejudicial error in
denying his petition for post-conviction relief. We disagree.
{¶ 17} Howard filed his petition for post-conviction relief but did not offer any
affidavit or any other evidence to support his petition. While Howard argues that Foster
only offered perjured testimony at trial, he did not specify any details about the alleged
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nature of Foster’s untrue testimony or her claimed admission that she had lied at his trial.
Instead, Howard offered bare allegations that Foster admitted to making untrue
statements at trial. Moreover, although Howard claims that Foster admitted to perjuring
herself on a recorded prison call, Howard did not provide any details about the call,
including the date, time, participating parties, or the particulars of the conversation, and
he did not include a recording or synopsis of the call or his own affidavit as evidence.
Howard had the initial burden to provide evidence containing sufficient operative facts to
establish a cognizable claim of constitutional error, but the self-serving statements and
broad conclusory allegations in his petition were legally insufficient to rebut the record or
to require a hearing in the trial court.
{¶ 18} Additionally, while Howard alleges that the State was aware of Foster’s
untruthfulness, he presented no credible evidence to support this assertion, and his
petition stated that a hearing was necessary to determine if the State was aware of
Foster’s false statements. Howard presented no evidence demonstrating or suggesting
that the State knowingly allowed Foster to offer perjured testimony at trial. As a result,
Foster did not establish a violation of his constitutional rights.
{¶ 19} Howard’s sole assignment of error is overruled.
III. Conclusion
{¶ 20} The judgment of the trial court is affirmed.
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WELBAUM, P.J. and TUCKER, J., concur.
