^ CASE NO. 2012-1762 IN THE SUPREME COURT OF OHIO COLUMBUS, OHIO STATE OF OHIO9 Plaintiff-Appellee, vs. DOUGLAS EDWARD HADDIX, Defendant-Appellant. ON MOTION FOR LEAVE TO APPEAL FROM THE OHIO COURT OF APPEALS FOR STARK COUNTY, FIFTH APPELLATE DISTRICT, CASE NO. 2011-CA-00276 MEMORANDUM IN RESPONSE OF PLAINTIFF-APPELLEE, STATE OF OHIO JOHN D. FERRERO, PROSECUTING ATTORNEY, STARK COUNTY, OHIO By: RONALD MARK CALDWELL Ohio Sup. Ct. Reg. No. 0030663 Assistant Prosecuting Attorney 110 Central Plaza, South Suite 510 Canton, Ohio 44702-1413 (330) 451-7897 ^^^ 16 NtvZ CLERK OF COURT REME Cot..1^^ OF M^lr for Plaintiff-Appellee DOUGLAS EDWARD HADDIX, pro se Inmate No. 304-270 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, Ohio 44430-0901 Defendant-Appellant pro se ic,e= D NOV., 0 %a? r^ CLERK OF COlJRT SUPREME COURT OF OHIO
TABLE OF CONTENTS Pa^e WHY THE CASE SHOULD NOT BE ACCEPTED FOR REVIEW...................... 1 STATEMENT OF THE CASE AND FACTS........................................ 2 ARGUMENT........ 6-7 PROPOSITION OF LAW NO. I THE STATE MUST SHOW PROOF THAT ANY ELEMENT OF AN OFFENSE TOOK PLACE IN OHIO BEFORE A TRIAL COURT CAN OBTAIN SUBJECT MATTER JURISDICTION OVER THE CASE. PROPOSITION,OF LAW NO. II THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT BARS THE ADMISSION OF TESTIMONIAL HEARSAY STATEMENTS WITHOUT PRIOR OPPORTUNITY TO CROSS-EXAMINE THE WITNESS AT TRIAL. PROPOSITION OF LAW NO. III THE SIXTH AMENDMENT STANDS AS A JURISDICTIONAL BAR AGAINST THE ADMISSION OF A PRIOR OUT-OF-COURT IDENTIFICATION STATEMENT INTO TRIAL WITHOUT CONDUCTING A HEARING TO CROSS-EXAMINE THE DECLARANT. PROPOSITION OF LAW NO. IV THE SIXTH AMENDMENT GUARANTEES THE APPELLANT THE RIGHT TO MEET THE WITNESS FACE-TO-FACE AT TRIAL. PROPOSITION OF LAW NO. V THE SIXTH AND FOURTEENTH AMENDMENT [S] GUARANTEE[] THE RIGHT OF THE APPELLANT TO CROSS-EXAMINE THE WITNESS IN-CHIEF AT TRIAL. PROPOSITION OF LAW NO. VI THE TRIAL COURT IS WITHOUT JURISDICTION WHEN THE EVIDENCE IS ILLEGALLY INSUFFICIENT TO SUSTAIN A CONVICTION OF GUILT BEYOND A REASONABLE DOUBT.
PROPOSITION OF LAW NO. VII THE JUDGMENT OF CONVICTION IS CONTRARY TO LAW. PROPOSITION OF LAW NO. VIII THE SENTENCE IMPOSED ON THE APPELLANT IS CONTRARY TO LAW AND VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT. The Motion Constituted a PCR Petition 8 Haddix's Motion-Petition Was Untimely and Successive 9 Haddix's Claims Were Res Judicata Conclusion 11 12 PROOF OF SERVICE....................................................... 14
WHY THIS CASE SHOULD NOT BE ACCEPTED FOR REVIEW The Supreme Court of Ohio should not accept this case for review because it does not involve a substantial constitutional question, and is not of public or great general interest. Douglas Edward Haddix, defendant-appellant herein, filed with the court of common pleas another of his many post-conviction pleadings to overturn his 1995 criminal convictions for child rape and his life sentence. In this pleading, Haddix raised a plethora of claims attacking the validity of his convictions and sentences, ignoring the procedural bars to raising these claims. The trial court appropriately dismissed the pleading, and Haddix appealed. The court of appeals properly affirmed the trial court on the basis that Haddix's pleading constituted yet another petition for post-conviction relief, and as such was properly dismissed for being a successive petition, as well as a grossly untimely petition, that raised claims that were res judicata. Haddix now appeals that ruling, without addressing the rationale and holding of the appellate court, other than to simply assert that the court was wrong not to address the merits of his individual claims. Haddix's stubbornness in ignoring the procedural requirements and bars to his claims and seeking review of the merits of his claims defeats any likelihood of success for purposes of this appeal. Haddix seeks review of the merits which the courts below never reached. The law applied by those courts is well established. Post-conviction relief pleadings filed by criminal defendants, most pro se, constitute petitions for post-conviction relief under R.C. 2953.21 when the pleading seeks to have the criminal conviction or sentence vacated on constitutional grounds after conviction. Haddix's pleading to vacate his convictions and sentences clearly met this standard. And his pleading also did not met the time requirements, the requirements governing successive petitions, or avoid the preclusive doctrine ofresjudicata. Therefore, this Court 1
should deny the request to accept this case for review. STATEMENT OF THE CASE AND FACTS In 1995, Douglas Edward Haddix, defendant-appellant, was charged by indictment returned by the Stark County Grand Jury with three counts of statutory rape,' one count of felonious sexual penetration,2 one count of gross sexual imposition,3 and one count of child endangering.4 Haddix was charged with sexually molesting Lita Webster5 between June 1, 1994 and June 11, 1995, after he moved in with Lita and her mother. Haddix pleaded not guilty to these charges, and the case proceeded to trial by jury in the Stark County Court of Common Pleas. The jury, after the presentation of evidence, found Haddix not guilty of one of the statutory rape counts,6 but guilty of the remaining charges.' The trial court, after accepting the jury's verdict, immediately imposed sentence. The court sentenced Haddix to two concurrent indeterminate terms of incarceration of ten to twenty-five years on the statutory rape convictions, a consecutive indeterminate term of five to 'R.C. 2907.02. 2R.C. 2907.12. 3R.C. 2907.05. 4R.C. 2919.22(B). 5The alleged abuse included fellatio, cunnilingus, sexual intercourse, vaginal penetration, digital penetration of the vagina, and rnutual fondling involving a victim who was three and four years old during the period of abuse. 6The three statutory rape counts charged separately for fellatio, cunnilingus, and vaginal intercourse. The jury acquitted appellant of the rape count pertaining to fellatio, but convicted him for the other conduct. 'The child endangering charge was dismissed by the trial court at the conclusion of the State's case-in-chief, in response to Haddix's Crim. R. 29(A) motion for judgment for acquittal. 2
twenty-five years on the felonious sexual penetration conviction, and, a consecutive determinate term of two years on the gross sexual imposition conviction.8 Haddix thereafter appealed his convictions and sentences to this Court. Haddix raised five assignments of error in his appeal. In these assignments of error, Haddix challenged inter alia the evidence of his guilt, the admission of hearsay evidence, the effectiveness of trial counsel, and the consecutive nature of his sentences. This Court overruled these assignments of error, and affirmed Haddix's convictions and sentences.9 In 1997, Haddix next filed a petition for post-conviction relief pursuant to R.C. 2953.21, seeking to have his convictions and sentences vacated and a new trial ordered. The trial court, however, summarily dismissed the petition, and Haddix once again appealed to this Court. In his pro se appeal, Haddix raised three assignments of error, all of which were overruled by this Court. In so ruling, this Court upheld the trial court's dismissal of the petition.'o In 1999, Haddix next filed a Civ. R. 60(B)(5) motion to have his sentence for the felonious sexual penetration merge with one of his statutory rape sentences. The trial court, construing this motion as a post-conviction relief petition per R.C. 2953.21, dismissed the petition as an untimely successive petition. Haddix appealed this dismissal to this Court, which overruled the lone ghaddix's total sentence was a period of seventeen to fifty years. 9State v. Haddix (June 3, 1996), Stark App. No. 95-CA-0175, unreported, 1996 WL 363510, delayed appeal denied (1999), 85 Ohio St.3d 1478, 709 N.E.2d 850. zostate v. Haddix (Sept. 28, 1998), Stark App. No. 1998-CA-0096, unreported, 1998 WL 753263, appeal denied (1999), 84 Ohio St.3d 1471, 704 N.E.2d 579.
assignment of error and affirmed the dismissal." In October of 2006, the trial court reviewed Haddix's case in order to rule on the prison warden's recommendation that Haddix be classified a sexual predator. A hearing was conducted, after which the trial court found clear and convincing evidence that Haddix qualifies as a sexual predator. The court noted the young age of the child during the period of repeated abuse -- the victim was between the ages of three and four during this period. The court found that the acts of an adult committed against a child of such tender years was cruel. The court concluded: I find the age of the Defendant [25-26 years old] versus the age of the victim to be a significant factor; I find that type of sexual conduct [oral and vaginal] and the length of time the sexual abuse occurred [more than six months] to be a significant factor; I find the relationship between the Defendant and the victim [live-in boyfriend of the girl's mother] to be a significant factor; I find the lack of evidence in regards to the treatment to be a significant factor. Haddix thereafter appealed the classification ruling to this Court, which dismissed the appeal for want of adequate prosecution.12 Haddix's next attempt to vacate his convictions and sentences took place in 2011 with a motion to dismiss. In this 2011 motion, Haddix claimed that his rights under the Sixth and Fourteenth Amendments were violated during his 1995 trial through the admission of improper hearsay evidence. His claim was once again an attack on the credibility of the victim of his heinous crimes, a claim that he has litigated repeated times. Without wa'iting for a response from the "State v. Haddix (Nov. 15, 1999), Stark App. No. 1999-CA-00227, unreported, 1999 WL 1071980, appeal denied (2000), 88 Ohio St.3d 1434, 724 N.E.2d 810. 12State v. Haddix, Stark App. No. 2006-CA-00349. 4
prosecution, the trial court overruled the motion the day after its filing. Haddix thereafter appealed this dismissal to the Court of Appeals for Stark County (Fifth Appellate District). In pursuing this appeal, Haddix has raised eight assignments of error. All of them went to the heart of his 1995 criminal trial, arguing a plethora of errors with that trial that he alleges deprived him of due process of law. None of these claims, however, addressed the procedural and substantive flaws of his 2011 motion - the motion constituted another post-conviction relief pleading in which Haddix seeks the reversal of his criminal convictions and sentences. As such, the pleading was governed by the procedural requirements for such proceedings, i.e., R.C. 2953.21. And under this statute and its requirements, Haddix's 2011 motion was filed out of time, and thus was properly dismissed summarily by the trial court. Furthermore, all of Haddix's claims raised in this motion were res judicata, i.e., they were barred from collateral review. None of the assignments of error raised by Haddix in this appeal addressed these preclusive doctrines and their application to his case. Haddix, in fact, proceeded as if this appeal is the original direct appeal from his convictions and sentences. This appeal, of course, was not. And the court of appeals accordingly overruled the eight assignments of error on the post-conviction relief procedural grounds,13 from which Haddix now prosecutes the instant appeal. Thus, this memorandum in opposition will address the propriety of the trial court's summary dismissal of the 2011 motion to dismiss on the basis that the motion constituted a successive and untimely petition for post-conviction relief under R.C. 2953.21, whose claims are all res judacata. The brief will not rehash a discussion of the specific legal claims raised by Haddix in his eight assignments of error. Since the trial court properly dismissed this post-conviction motion 13State v. Haddix, Stark App. No. 2011-CA-00276, 2012-Ohio-4259, 2012 WL 4097264.
summarily, and the court of appeals properly affirmed the trial court, this Court should reject Haddix's appeal. ARGUMENT PROPOSITION OF LAW NO. I THE STATE MUST SHOW PROOF THAT ANY ELEMENT OF AN OFFENSE TOOK PLACE IN OHIO BEFORE A TRIAL COURT CAN OBTAIN SUBJECT MATTER JURISDICTION OVER THE CASE. PROPOSITION OF LAW NO. II THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT BARS THE ADMISSION OF TESTIMONIAL HEARSAY STATEMENTS WITHOUT PRIOR OPPORTUNITY TO CROSS-EXAMINE THE WITNESS AT TRIAL. PROPOSITION OF LAW NO. III THE SIXTH AMENDMENT STANDS AS A JURISDICTIONAL BAR AGAINST THE ADMISSION OF A PRIOR OUT-OF-COURT IDENTIFICATION STATEMENT INTO TRIAL WITHOUT CONDUCTING A HEARING TO CROSS-EXAMINE THE DECLARANT. PROPOSITION OF LAW NO. IV THE SIXTH AMENDMENT GUARANTEES THE APPELLANT THE RIGHT TO MEET THE WITNESS FACE- TO-FACE AT TRIAL. PROPOSITION OF LAW NO. V THE SIXTH AND FOURTEENTH AMENDMENT[S] GUARANTEE[] THE RIGHT OF THE APPELLANT TO CROSS-EXAMINE THE WITNESS IN-CHIEF AT TRIAL. 6
PROPOSITION OF LAW NO. VI THE TRIAL COURT IS WITHOUT JURISDICTION WHEN THE EVIDENCE IS ILLEGALLY INSUFFICIENT TO SUSTAIN A CONVICTION OF GUILT BEYOND A REASONABLE DOUBT. PROPOSITION OF LAW NO. VII THE JUDGMENT OF CONVICTION IS CONTRARY TO LAW. PROPOSITION OF LAW NO. VIII THE SENTENCE IMPOSED ON THE APPELLANT IS CONTRARY TO LAW AND VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT. As noted above, this brief will not address this plethora of legal claims raised by Haddix in his eight assignments of error. All of these claims go to the validity of his 1995 trial, which has been reviewed by this Court and the trial court on more than one occasion. Haddix apparently attempted to avoid the preclusive application of R.C. 2953.21 to his most recent attempt to vacate his criminal convictions and sentences in his case by styling his pleading before the trial court as a "Motion to Dismiss." In his motion, Haddix essentially moved the trial court to dismiss the criminal convictions and sentences that had been entered against him in 1995. He argued in this motion that he had been denied a fair trial, primarily through the introduction of hearsay evidence, i.e., statements his victim made against him. Regardless of the styling or caption of the pleading, Haddix's motion constituted yet again a petition for post-conviction relief under R.C. 2953.21, and was therefore subject to all of the limitations and requirements of such proceedings. On these grounds, his 2011 motion was untimely and only raised claims that were res judicata. On these grounds, all eight assignments of 7
error should be overruled, and the judgment of the trial court summarily dismissing his motion to dismiss should be affirmed. The Motion Constituted a PCR Petition The styling of a particular pleading by a criminal pro se defendant does not define the true nature of that pleading. Similarly, a defendant's assertion in the motion that the motion is not a PCR petition does not control what the pleading actually is. It is the substance of the pleading itself that defines its true nature. In the context of criminal defendants and their myriad of pno se pleadings, the Ohio Supreme Court has held, "Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief ("PCR") as defined in R.C. 2953.21."14 In analyzing the pleading, the reviewing court should determine whether the pleading "is a motion that was (1) filed subsequent to [the defendant's] direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked for vacation of the judgment and sentence."'s In the instant case, Haddix's motion was filed subsequent to his direct appeal. In addition, he claims a denial of a constitutional right, i.e., his right to due process of law and his right to confront the witnesses against him, per the Sixth and Fourteenth Amendments to the United States Constitution. Haddix's motion, therefore, meets the second prong of the Reynolds test. Finally, Haddix sought to have the trial court render the judgment of conviction and sentence void by 14State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131, at syllabus. 'greynolds, 79 Ohio St.3d at 160, 679 N.E.2d at 1133. 8
vacating his convictions and sentences. Haddix's motion, therefore, qualified as a petition for postconviction relief under R.C. 2953.21. As a result, the pleading was entitled to all of the protections of R.C. 2953.21 proceedings, as well as being circumscribed by all of the limitations of such actions. With regard to the latter, Haddix's motion-petition suffered from both timeliness and res judicata limitations. Haddix's Motion-Petition Was Untimely and Successive Ohio's post-conviction relief statute prohibits untimely and successive post-conviction relief petitions. According to the statute, a PCR petition must be filed within 180 days from the filing of transcript of proceedings in the direct appeal from conviction and sentence.16 In the instant case, Haddix was tried by jury and convicted and sentenced in 1995. Haddix's motion, however was not filed until November of 2011, some 16 years after his convictions and sentences. Without the necessity of calculation, it is clear that Haddix's motion-petition was untimely. This requirement to file the petition within the statutorily prescribed time limit is jurisdictional." Thus, a criminal defendant must file his post-conviction relief conviction petition within this time period in order to properly invoke the trial court's jurisdiction. In other words, the 16R.C. 2953.21(A)(2). "See, e.g., State v. Fields, 183 Ohio App.3d 647, 2009-Ohio-4187, 918 N.E.2d 204, at 9; State v. Smith, 180 Ohio App.3d 684, 2009-Ohio-335, 906 N.E.2d 1191, at 9-10; State v. Fuller, 171 Ohio App.3d 260, 2007-Ohio-2018, 870 N.E.2d 255, at 5 ("Thus, a common pleas court has jurisdiction to entertain a postconviction petition only if the petitioner meets either the time strictures of R.C. 2953.21 or the jurisdictional requirements of R.C. 2953.23."); State v. Halliwell, 134 Ohio App.3d 730, 734, 732 N.E.2d 405, 408 (1999); State v. Sanders, Summit App. No. 22457, 2005-Ohio-4267, 2005 WL 1962964, at 10, appeal denied, 107 Ohio St.3d 1700, 2005-Ohio-6763, 840 N.E.2d 205, cert. denied, 549 U.S. 850 (2006). 9
trial court is without jurisdiction to review the merits of the PCR petition if that petition is not filed within time. Bell has failed to file his PCR petition within this time period, being many years out of time, and thus this Court lacks jurisdiction to review the merits of his claim. Ohio's post-conviction relief statutory scheme does allow for untimely petitions, but only in very narrow circumstances. The savings statute of this scheme, R.C. 2953.23, allows for late PCR petitions only upon a showing that the defendant was unavoidably prevented from discovering the facts that give rise to the claim for relief or the United States Supreme Court has recognized a new federal or state right that applies retroactively, and a showing by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the defendant guilty.18 Thus, Haddix would have had to show that either he was unavoidably prevented from discovery the facts underlying this allied offenses of similar import claim (which he cannot, since those facts were evident at the trial) or that the United States Supreme Court has recognized a new retroactive federal or state right; and, he must have shown by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found him guilty (which he cannot, since his claim is a question of law and not related to the factfinding of the jury in his case). Haddix, however, did not even attempt to qualify his motion-petition under these provisions. And none of them apply to Haddix's claims since he has pursued this proceeding as if he had a right to raise his trial-error claims anew as of right. Accordingly, Haddix cannot claim favor of the savings statute. The trial court's dismissal ruling was properly upheld by the court of appeals on this ground. ' R C. 2953.23(A)(1). 10
Haddix's Claims Were Res Judicata Another limitation to PCR petitions is the preclusive doctrine of res judicata. This doctrine, applicable to post-conviction relief proceedings,19 precludes a defendant from raising legal claims in his petition that either were raised or could have been raised at trial or on direct appeal.20 In his motion-petition, as well as in this appeal, Haddix has raised a plethora of legal claims that all focus on whether he received a fair trial under due process principles. These claims were the following: failure of proof on the elements of the charged offenses; erroneous admission of hearsay statements in violation of the Sixth Amendment; erroneous admission of identification evidence in violation of the Sixth Amendment; the lack of face-to-face confrontation with his accuser in violation of the Sixth Amendment; prosecutorial misconduct at trial that deprived Haddix his Sixth and Fourteenth Amendment rights to cross-examine his accuser; lack of sufficient evidence of his guilt presented at trial; lack of a final, appealable order in the 1995 judgment entry of conviction and sentence on Crim. R. 32(C) grounds; and, a violation of double jeopardy due to the imposition of consecutive sentences in violation of R.C. 2941.25 (as recently interpreted by the Ohio Supreme Court in 19State v. Perry, 10 Ohio St.2d 175, 39 0.O.2d 189, 226 N.E.2d 104 (1967), paragraph eight of the syllabus ("The Supreme Court of Ohio will apply the doctrine of res judicata in determining whether postconviction relief should be given under Section 2953.21 et seq., Revised Code."). 20See, e.g., State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233, syllabus ("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.") (approving and following State v. Perry, 10 Ohio St.2d 175, 39 0.O.2d 189, 226 N.E.2d 104 (1967), paragraph nine of the syllabus). 11
Johnson,21 a case that was not even extant at the time of Haddix's original trial and direct appeal). All of these claims went to the validity-of Haddix's criminal convictions and sentences as a result of decisions made by the trial court at the time of trial. They were all claims, therefore, that could have been raised either at trial or on direct appeal (and many of which were so raised). They therefore fit the classic definition of res judicata. As a result, furthermore, the trial court's summary dismissal of Haddix's motion-petition was properly upheld on this alternative ground by the court of appeals. Conclusion Haddix's motion constituted another post-conviction relief petition, filed out of time, and was therefore properly dismissed summarily by the trial court. Such pleadings, filed out of time, deprive the trial court of jurisdiction to rule on the merits of the claims raised therein. In addition, the various claims raised in Haddix's motion-petition were claims that could have been raised at the original criminal trial and subsequent direct appeal, some of which were. All of these claims, therefore, were res judicata for purposes of this collateral proceeding. The trial court's summary dismissal ruling, therefore, was proper on this ground as well. This Court should accordingly rej ect the various claims raised by Haddix and affirm the court of appeals on the grounds that the appellate court used to affirm the trial court - that Haddix's motion constituted a petition for post-conviction relief under R.C. 2953.21, that the motion-petition 2'State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. In Johnson, the supreme court overruled its earlier Rance decision and held, "When determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered." Johnson, supra, at syllabus (overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999)). 12
was not timely filed and constituted an improper successive petition, and that the claims raised in this motion-petition were barred from collateral review under the preclusive doctrine of res judicata. The Court should therefore dismiss the appeal. JOHN D. FERRERO, PROSECUTING ATTORNEY, STARK COUNTY, OHIO By: R NALD MARK CALDWELL Ohio Sup. Ct. Reg. No. 0030663 Assistant Prosecuting Attorney 110 Central Plaza, South Suite 510 Canton, Ohio 44702-1413 (330) 451-7897 FAX: (330) 451-7965 Counsel for Plaintiff-Appellee 13
PROOF OF SERVICE A copy of the foregoing MEMORANDUM IN RESPONSE was sent by ordinary U.S. mail this 13th day of November, 2012, to DOUGLAS EDWARD HADDIX, defendant-appellant pro se, at Inmate No. 304-270, Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, Ohio 44430-0901. R NALD MARK CALDWELL Ohio Sup. Ct. Reg. No. 0030663 Assistant Prosecuting Attorney 110 Central Plaza, South Suite 510 Canton, Ohio 44702-1413 (330) 451-7897 FAX: (330) 451-7965 Counsel for Plaintiff-Appellee 14