[Cite as State v. Mack,
2024-Ohio-6102.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
: Case No. 24CA25
:
JOHN H. MACK, JR. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No.
2021CR0221R
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 31, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JODIE M. SCHUMACHER JOHN H. MACK, JR., PRO SE
RICHLAND CO. PROSECUTOR #794-244
PHILIP D. BOGDANOFF Allen Correctional Institution
Special Assistant Prosecutor 2338 North West Street
38 South Park St. Lima, OH 45801
Mansfield, OH 44902
Richland County, Case No. 24CA25 2
Delaney, P.J.
{¶1} Appellant John H. Mack, Jr. appeals from the May 3, 2024 judgment entry
of the Richland County Court of Common Pleas overruling his petition for post-conviction
relief. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose when appellant’s fiancée Jane Doe disappeared on or
around February 24, 2021. Doe and appellant were estranged and Doe and her children
had recently moved out of a residence she shared with appellant. Doe told friends and
family members she intended to return to the residence briefly to retrieve her personal
belongings. Friends and family were apprehensive and contacted police when they were
unable to reach Doe.
{¶3} A subsequent investigation found telling clues at the residence. Neighbors
noticed appellant had two large outdoor fires despite a cold day. Blood spatter was found
inside the residence and the blood was identified as Doe’s. Burnt glasses and underwear,
also determined to be Doe’s, were found in the firepit. A family member living at the
residence told police a rug was missing and a smear mark had appeared on the wall;
parts of walls had been suddenly repainted. Doe’s cell phone was found in a park. The
residence and garage smelled of bleach and ammonia.
{¶4} Finally, Doe’s abandoned vehicle was located in the parking lot of an
apartment complex a short distance from the residence. Police found Doe’s remains in
the trunk; her ankles were bound with a belt; her hair had been cut off; and her body
showed signs of strangulation including a fractured neck vertebra and petechial
Richland County, Case No. 24CA25 3
hemorrhaging. A forensic pathologist determined Doe’s cause of death was multiple blunt
force trauma.
{¶5} An extensive review of the parties’ cell phones and video evidence
demonstrated appellant’s movements after Doe disappeared and connected him to her
abandoned car and the cleanup of the residence.
{¶6} Appellant was charged with numerous offenses including Doe’s aggravated
murder; kidnapping; abduction; tampering with evidence; gross abuse of a corpse; theft
of a motor vehicle; domestic violence; and obstructing official business. Appellant entered
pleas of not guilty and sought to suppress various pieces of appellee’s evidence. The
motion to suppress was overruled, as was a motion to dismiss for lack of a speedy trial.
Prior to trial, appellee dismissed the death penalty specification. Appellant was found
guilty as charged and sentenced to an aggregate term of life in prison.
{¶7} Appellant filed a direct appeal of his conviction and sentence, which remains
pending in 5th District Court of Appeals, Richland Case Number 22CA83.
{¶8} Appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21
which was overruled by the trial court. Appellant now appeals from the trial court’s
decision of May 3, 2024 overruling his petition for post-conviction relief.
{¶9} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING
TO INCLUDE IN THE DECISION AND ENTRY A SUFFICIENT EXPLANATION FOR ITS
BASIS FOR DISCOUNTING THE CREDIBILITY OF THE SWORN AFFIDAVIT
Richland County, Case No. 24CA25 4
(DOCUMENTS) IN SUPPORT OF THE INMATE’S PETITION FOR POST-CONVICTION
RELIEF UNDER R.C. 2953.21.”
{¶11} “II. TRIAL COURT ERRED BY DENYING THE MOTION FOR RELIEF
FROM JUDGMENT WITHOUT AN EVIDENTIARY HEARING BECAUSE THE MOTION
SET FORTH OPERATIVE FACTS ARGUABLE DEMONSTRATING ENTITLEMENT TO
RELIEF.”
ANALYSIS
I., II.
{¶12} Appellant’s two assignments of error are related and will be considered
together. Appellant argues the trial court erred in overruling his petition for post-conviction
relief without a hearing and failed to properly support its rationale in the entry overruling
the petition. We disagree.
{¶13} R.C. 2953.21(A) states in pertinent part:
(1) Any person who has been convicted of a criminal offense
or adjudicated a delinquent child and who claims 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 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.
{¶14} We review a decision to grant or deny a petition for postconviction relief,
including the decision whether to afford the petitioner a hearing, under an abuse-of-
Richland County, Case No. 24CA25 5
discretion standard. State v. Hatton, 2022-Ohio-3991, ¶ 38, citing State v. Gondor, 2006-
Ohio-6679, ¶ 51-52, 58.
{¶15} A post-conviction proceeding is a collateral civil attack on a criminal
conviction. State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). In order to obtain post-
conviction relief, a petitioner must show “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 [.]” R.C. 2953.21.
{¶16} A petitioner seeking post-conviction relief is not automatically entitled to an
evidentiary hearing. Calhoun, 86 Ohio St.3d at 282. The Ohio Supreme Court has held
that the proper basis for dismissing a petition for post-conviction relief without holding an
evidentiary hearing include the failure of the petitioner to set forth sufficient operative facts
to establish substantive grounds for relief, and the operation of res judicata to bar the
constitutional claims raised in the petition.
Calhoun, supra, at paragraph two of the
syllabus; State v. Lentz,
70 Ohio St.3d 527, 530 (1994).
{¶17} R.C. 2953.21 does not expressly mandate a hearing for every post-
conviction relief petition and a hearing is not automatically required. In State v. Jackson,
64 Ohio St.2d 107 (1980), the Ohio Supreme Court in stated the pivotal concern in
determining whether a hearing must be held is whether there are substantive grounds for
relief based upon the petition, supporting affidavits, and files and records of the case. As
the Supreme Court further explained in Jackson, “[b]road assertions without a further
demonstration of prejudice do not warrant a hearing for all post-conviction relief petitions.”
Id. at 111. Rather, a petitioner must submit evidentiary documents containing sufficient
operative facts to support his claim before an evidentiary hearing will be granted.
Richland County, Case No. 24CA25 6
Accordingly, “a trial court properly denies a defendant's petition for post-conviction relief
without holding an evidentiary hearing where the petition, the supporting affidavits, the
documentary evidence, the files, and the records do not demonstrate that petitioner set
forth sufficient operative facts to establish substantive grounds for relief.” Calhoun, 86
Ohio St.3d at paragraph two of the syllabus; see R.C. 2953.21(C).
{¶18} When reviewing a post-conviction petition a trial court “should give due
deference to affidavits sworn to under oath and filed in support of the petition, but may, in
the sound exercise of discretion, judge their credibility in determining whether to accept
the affidavits as “true statements of fact” or “discard frivolous claims.” State v. Hamm,
2024-Ohio-1621, ¶ 36 (5th Dist.), citing
Calhoun, supra,86 Ohio St.3d 279, 282 (1999).
{¶19} In the instant case, the trial court overruled appellant’s petition via a 37-
page judgment entry meticulously reciting the facts and procedural history of the case,
and examining appellant’s arguments and supporting documentary evidence for post-
conviction relief. The trial court ultimately determined appellant’s documentation
contained only “broad assertions and speculations without a demonstration of prejudice
and without operative facts to support his claims.”
{¶20} Upon our review of appellant’s arguments before the trial court and on
appeal, we agree with the trial court that appellant’s arguments arising from the record at
trial could have been argued on direct appeal and are therefore res judicata. We
recognize this is an unusual procedural posture in which we review a petition for post-
conviction relief as the direct appeal is still pending, but appellant’s claims arising from
the trial record are not properly before us on a petition for post-conviction relief. Those
claims may properly be considered in the direct appeal.
Richland County, Case No. 24CA25 7
{¶21} Res judicata is a proper basis upon which to deny a petition for post-
conviction relief without holding an evidentiary hearing. State v. Lentz, 70 Ohio St.3d 527,
530 (1994); State v. Perry,
10 Ohio St.2d 175 (1967). 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, which resulted in that judgment of conviction, or
on an appeal from that judgment. State v. Szefcyk,
77 Ohio St.3d 93 (1996), syllabus. It
is well settled that, “pursuant to res judicata, a defendant cannot raise an issue in a
[petition] for post-conviction relief if he or she could have raised the issue on direct
appeal.” State v. Reynolds,
79 Ohio St.3d 158, 161 (1997).
{¶22} Appellant’s claims arising outside the trial record [suppression of favorable
evidence by appellee; prosecutorial misconduct], on the other hand, are not supported by
substantive evidence or by sworn affidavits demonstrating his claims. The sole affidavit
presented--of a Captain with the Richland County Sheriff’s Department--does not support
appellant’s claims of suppression of evidence and prosecutorial misconduct.
{¶23} Generally, appellant’s allegations of ineffective counsel arising from
evidence outside the record would be reviewable in a petition for post-conviction relief
pursuant to the two-part analysis set forth in Strickland v. Washington, 466 U.S. 668
(1984). The petitioner must prove that counsel's performance fell below an objective
standard of reasonable representation and there exists a reasonable probability that,
were it not for counsel's errors, the result of the trial would have been different.
Id. Again,
before a hearing is granted in proceedings for post-conviction relief upon a claim of
Richland County, Case No. 24CA25 8
ineffective assistance of trial counsel, the petitioner bears the initial burden to submit
evidentiary material containing sufficient operative facts that demonstrate a substantial
violation of any of defense counsel's essential duties to his client and prejudice arising
from counsel's ineffectiveness. Calhoun,
86 Ohio St.3d at 289.
{¶24} The Ohio Supreme Court has stated that where a defendant is represented
by different counsel on direct appeal and “fails to raise [in the direct appeal] the issue of
competent trial counsel and said issue could fairly have been determined without resort
to evidence dehors the record, res judicata is a proper basis for dismissing defendant's
petition for post-conviction relief.” State v. Cole, 2 Ohio St.3d 112 (1982), syllabus.
{¶25} Appellant argues defense trial counsel was ineffective in failing to
investigate all evidence seized in the case, citing the affidavit of the captain of the
Richland County Sheriff’s Department. The affidavit does not support appellant’s
conclusion that counsel failed to properly investigate the evidence.
{¶26} Ultimately review of this case as a petition for post-conviction relief is
stymied by its procedural posture. Nevertheless, we are required to determine whether
the trial court abused its discretion in overruling the petition as supported by the
documentation appellant chose to submit. Upon our review of the petition, appellant’s
supporting materials, and the trial court’s well-reasoned, comprehensive decision, we are
unable to find an abuse of discretion.
Richland County, Case No. 24CA25 9
CONCLUSION
{¶27} Appellant’s two assignments of error are overruled and the judgment of the
Richland County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Gwin, J. and
Hoffman, J., concur.
