Ohio State Reports
Unpublished
STATE v. GONDOR, Unpublished Decision (12-26-2006)
2006-Ohio-6679 THE STATE OF OHIO, APPELLEE, v. GONDOR,
APPELLANT. THE STATE OF OHIO, APPELLEE, v. RESH,
APPELLANT. Nos. 2005-0329, 2005-0336. Supreme Court of
Ohio. Submitted January 25, 2006. Decided December 26,
2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from the Court of Appeals for Portage
County, No. 2002-P-0073, 2004-Ohio-7219.
APPEAL from the Court of Appeals for Portage County, No.
2002-P-0074, 2004-Ohio-7220.
PFEIFER, J.
{¶ 1} The question presented in these two cases,
consolidated sua sponte, is whether the court of appeals
applied the correct standard of review when it reviewed de
novo the trial court’s judgment granting the appellants’
petitions for postconviction relief. We hold that the court
of appeals should have applied an abuse-of-discretion
standard rather than a de novo standard in reviewing the
trial court’s decisions on the two postconviction
petitions. We therefore reverse the judgments of the court
of appeals. Because we also hold that the trial court did
not abuse its discretion when it granted postconviction
relief and ordered new trials for the two appellants, we
remand these cases to the trial court for retrial.
Factual Background
{¶ 2} These cases arise from the August 14, 1988
murder of Connie Nardi. She was beaten and then strangled
to death; her body was dumped in a pond, where it was
discovered the following day. Troy Busta, Robert Gondor,
and Randy Resh were charged with Nardi’s murder. In 1989,
Busta pleaded guilty; in 1990, Resh and Gondor were
convicted of Nardi’s murder in separate trials.
{¶ 3} With some variations, the state presented the
same evidence at both Resh’s and Gondor’s trials. Busta was
the prosecution’s key witness at both proceedings. He
testified to the following events. Around 5:30 p.m., on
Sunday, August 14, 1988, Busta went to Ed’s Upper Deck, a
bar in Mantua. While at the bar, he met and danced with
Nardi. About 30 to 45 minutes later, Resh and Gondor
arrived at the bar. At around 7:00 p.m., Busta took Nardi
on a motorcycle ride to cool off. They traveled to a
washed-out bridge that formerly crossed the Cuyahoga River
on Allyn Road. After about 45 minutes, they returned to the
bar.
{¶ 4} After returning to the Upper Deck, Busta and
Resh talked about Nardi. Busta falsely bragged that he had
had sex with Nardi. Resh asked Busta to persuade Nardi to
return to the washed-out bridge area and have sex with him.
Busta agreed, and the two planned for Busta to buy some
beer and take Nardi back to the washed-out bridge. Resh and
Gondor were to arrive 15 to 20 minutes later.
{¶ 5} Later that evening, Busta bought a “split six”
pack of beer — three Coronas and three Pabsts. Busta
and Nardi then left the Upper Deck on Busta’s motorcycle
and returned to the washed-out bridge. Busta’s stated
departure time from the Upper Deck differed at the two
trials. At Resh’s trial, Busta testified that he and Nardi
had left the Upper Deck between 8:00 and 8:30 p.m. At
Gondor’s trial, Busta testified that they had left between
9:00 and 9:30 p.m. At both trials, Busta testified that
Resh and Gondor arrived at the bridge in Gondor’s white
pickup truck 15 to 20 minutes after Busta and Nardi.
{¶ 6} Resh and Gondor joined Busta and Nardi near
the bridge. After a short conversation, Resh asked Nardi to
have sex with the three of them. Nardi refused, and Resh
became angry. Resh grabbed Nardi and told Gondor and Busta
to hold her hands and feet. Resh sat on Nardi’s stomach
while she struggled to free herself. Gondor took off
Nardi’s shorts and underwear. Nardi freed a leg and kicked
Gondor. Resh responded by striking Nardi several times on
her head and then strangled her.
{¶ 7} According to Busta, Resh and Gondor put
Nardi’s body in the back of Gondor’s truck on top of a pile
of two-by-four pieces of wood. Gondor and Resh drove the
truck, and Busta followed on his motorcycle, to a parking
area near a pond. Gondor and Resh then dumped Nardi’s body
into the pond. Busta left Resh and Gondor, and he later
discarded Nardi’s purse in a ditch and disposed of the beer
cans and bottles near the intersection of Abbot and Allyn
Roads.
{¶ 8} At around 11:00 or 11:15 p.m. that evening,
Busta returned to the Upper Deck and met Resh and Gondor,
who had already arrived. They remained until the bar
closed. After leaving the bar, they noticed blood on some
of the wood in the back of Gondor’s truck. The three of
them started tossing the wood into the parking lot of the
bar across the street. Gondor and Resh then followed Busta
to his residence. However, Gondor and Resh did not stop at
Busta’s house. Other testimony established that Resh and
Gondor returned to Resh’s trailer and at 12:42 a.m. on
August 15, 1988, ordered a pizza from Domino’s.
{¶ 9} During the trials of Resh and Gondor, the
state relied on blood evidence and false-alibi evidence.
Investigators had examined suspected bloodstains found on
the black plastic bedliner of Gondor’s truck because Busta
had claimed that Nardi’s bloodstains were left on wood in
the back of the truck. Dale Laux, a criminalist with the
Ohio Bureau of Criminal Identification and Investigation
(“BCI”), testified that the stains were human bloodstains.
However, Laux could not determine the blood type because of
the age and small size of the samples. During
cross-examination at Gondor’s trial, Laux testified that the
stains were also sent for testing to the Serological
Research Institute (“SERI”). Laux testified that SERI tests
to type the stains were unsuccessful.
{¶ 10} The state also presented testimony that Resh
and Gondor had attempted to establish an alibi for Nardi’s
murder before they had been identified as suspects. At both
trials, the owner of Domino’s Pizza testified that Gondor
had contacted him on Monday, August 15, 1988, to make sure
that his name was added to a receipt for the pizza that had
been ordered by Resh the night before. Brenda Holcomb,
another Domino’s employee, testified that both Resh and
Gondor went into Domino’s on Tuesday, August 16, 1988, to
verify their early Monday morning order because they were
being investigated for a murder.
{¶ 11} Resh and Gondor denied any involvement in
Nardi’s murders. During his trial, Resh testified that upon
arriving at the Upper Deck, he saw Nardi dancing on the
bar. Resh claimed that he saw Busta and Nardi leave the bar
together and return about 30 to 45 minutes later. Around
9:00 p.m., Resh saw Busta and Nardi leave again. According
to Resh, around 10:00 p.m., he and Gondor left the Upper
Deck and went to the Village Tavern. They stayed there for
about an hour and then returned to the Upper Deck. Resh
noticed that Busta had also returned to the Upper Deck and
was sitting alone at the bar. Resh testified that he left
the bar when it closed and that he, Gondor, and Busta threw
some pieces of wood from the bed of Gondor’s truck into the
parking lot across the street. However, Resh denied seeing
any blood on the wood. Afterwards, according to Resh, he
and Gondor drove to Resh’s trailer and ordered the pizza.
{¶ 12} At his trial, Gondor testified that upon
arriving at the Upper Deck, he sat with Resh, who told him
about a woman who had been dancing on the bar and had left
with Busta. Sometime later, Busta and Nardi returned.
Around 10:00 p.m., according to Gondor, he and Resh left
the Upper Deck and went to the Village Tavern. They
remained there for 30 to 40 minutes and then went back to
the Upper Deck. After they returned, Gondor noticed that
Busta came back to the Upper Deck. When the Upper Deck
closed at midnight, Gondor stated that he, Resh, and Busta
went out to the parking lot and threw pieces of wood from
the bed of his truck across the street. Gondor denied
seeing any blood on the wood. Afterwards, Gondor followed
Resh to Resh’s trailer, and they ordered the pizza.
{¶ 13} During the defense case at Gondor’s trial,
the bartender at the Village Tavern testified that Resh and
Gondor were at the Village Tavern for about 30 minutes
between 9:45 and 10:45 p.m. on August 14. Resh’s defense
team presented similar evidence at his trial.
{¶ 14} Resh was convicted of murder and attempted
rape. He was sentenced to five to 15 years for attempted
rape and 15 years to life for murder, the sentences to be
served consecutively. Gondor was convicted of involuntary
manslaughter, kidnapping, and obstructing justice. He was
sentenced to ten to 25 years for both involuntary
manslaughter and kidnapping, and 18 months for obstructing
justice, all sentences to run consecutively.
Procedural History
{¶ 15} The court of appeals separately affirmed
Resh’s and Gondor’s convictions. State v. Resh (Dec. 11,
1992), Portage App. No. 90-P-2256, 1992 WL 366992; State v.
Gondor (Dec. 11, 1992), Portage App. No. 90-P-2260, 1992 WL
366988. On May 5, 1993, this court declined to review
Resh’s discretionary appeal. State v. Resh (1993), 66 Ohio
St.3d 1473, 611 N.E.2d 835. On July 21, 1993, this court
likewise declined to review Gondor’s discretionary appeal.
State v. Gondor (1993), 67 Ohio St.3d 1408, 615 N.E.2d
1043.
{¶ 16} On September 20, 1996, Resh and Gondor filed
separate petitions for postconviction relief. Both alleged
that the state had withheld exculpatory material and that
they had received ineffective assistance of counsel. On
October 10, 1996, the trial court denied both petitions
without issuing findings of fact or conclusions of law. On
November 12, 1996, Resh and Gondor appealed and also filed
with the trial court motions to reconsider, as well as
amended petitions for postconviction relief and attached
evidentiary materials.
{¶ 17} On January 7, 1997, the court of appeals
remanded both cases to the trial court with instructions to
enter findings of fact and conclusions of law. On January
30, 1997, the trial court made findings of fact and
conclusions of law on both cases and dismissed Resh’s and
Gondor’s amended petitions. The court of appeals reversed
and remanded for an evidentiary hearing on Gondor’s
petition for postconviction relief. State v. Gondor (Dec.
19, 1997), Portage App. Nos. 96-P-0261, 97-P-0017, 1997 WL
799575. On December 22, 1997, the court of appeals also
reversed and remanded for an evidentiary hearing on Resh’s
petition for postconviction relief. State v. Resh (1997),
124 Ohio App.3d 694, 706, 707 N.E.2d 531.
{¶ 18} On March 30, 1999, Busta filed a motion to
intervene in both Resh’s and Gondor’s postconviction
proceedings and a motion to disqualify counsel for Resh and
Gondor. Busta’s motion to disqualify petitioners’ counsel
was based on his interest in protecting certain privileged
attorney-client matters that might be disclosed in
connection with Resh’s and Gondor’s cases. The trial court
denied Busta’s motion, and further postconviction
proceedings were stayed pending Busta’s appeal. The court
of appeals reversed the trial court’s decision denying
Busta’s motion to intervene and remanded the matter to the
trial court. State v. Resh (June 29, 2001), Portage App.
No. 99-P-0035, 2001 WL 735788; State v. Gondor (June 29,
2001), Portage App. No. 99-P-0034, 2001 WL 735781.
Postconviction Evidentiary Hearing
{¶ 19} On May 8, 2002, the trial court began an
eight-day joint evidentiary hearing. During the
postconviction hearing, James Draper, Resh’s trial counsel,
testified that he began representing Resh in April 1990.
Draper was in the process of trying a case in federal court
at the time he represented Resh. Draper said that he had
moved for continuances in the federal case and Resh’s case,
but that both motions were denied.
{¶ 20} Draper testified that the prosecutor informed
him that discovery in Resh’s case would be conducted though
an “open file” procedure. Draper admitted reviewing the
prosecutor’s file. However, Draper explained that he did
not review each page of the prosecutor’s “voluminous files”
due to his trial schedule and because he relied on “the
things that were pointed out to [him] that went to the
theory of the State’s case.”
{¶ 21} Gary Levine, Gondor’s trial counsel,
testified that he began representing Gondor before Gondor’s
April 5, 1990 indictment. Prosecutors notified Levine
“[e]arly on” that discovery would be conducted through an
“open file” procedure. Nevertheless, Levine testified that
he expected a formal response to his discovery requests
pursuant to Crim.R. 16. Levine also testified that he
personally viewed the prosecutor’s file at the Portage
County Prosecutor’s Office and was never refused an
appointment to do so.
{¶ 22} During the postconviction hearing, Resh and
Gondor presented evidence from the prosecutor’s file that
was favorable to the defense but that was never introduced
at their trials. First, Resh and Gondor presented a July 6,
1990 report from Brian Wraxall, Chief Forensic Serologist
at the Serological Research Institute. Wraxall’s affidavit,
dated November 12, 1996, and Wraxall’s April 30, 2001
deposition were also introduced. Wraxall’s July 6, 1990
report set forth the test results of the suspected
bloodstains found on Gondor’s bedliner. He wrote that gamma
markers and kappa markers “are found in blood serum as well
as other body fluids” and that they “are very stable in
dried bloodstains.” However, Wraxall reported that his
tests detected no gamma markers or kappa markers in the
samples submitted. He further reported that DNA “is found
in nucleated cells, e.g. white blood cells, spermatozoa,
salivary, vaginal and tissue epithelial cells,” but that he
detected no DNA in the stains submitted. In his November 12,
1996 affidavit, Wraxall stated, “The body fluid that best
fits [the test results] is perspiration.” Wraxall testified
at his deposition that he did not remember, and his
telephone logs do not show, that he was contacted by either
Resh’s or Gondor’s counsel before the two trials.
{¶ 23} Second, Resh and Gondor presented evidence
challenging the prosecution’s theory that they attempted to
establish an alibi before they were considered suspects.
Resh and Gondor introduced a March 6, 1990 statement of
Rick Hollibaugh, a Domino’s employee, which established
that Hollibaugh and Brenda Holcomb had worked together on
the evening that Resh and Gondor returned to confirm their
order. Domino’s work records from Monday, August 15, 1988,
through Sunday, August 21, 1988, were also introduced. They
showed that Holcomb and Hollibaugh first worked together
again on Friday, August 19, 1988. This date was after the
police had contacted both Resh and Gondor about the Nardi
homicide.
{¶ 24} Holcomb’s grand jury testimony and her
testimony at the postconviction hearing indicated that it
was raining when Resh and Gondor returned to confirm their
order. Resh and Gondor presented a climatological report
from the Akron-Canton Airport for August 1988, which showed
thunderstorms on August 5, 15, 18, 19, 25, and 28. Resh and
Gondor claimed that this report, in conjunction with
Hollibaugh’s testimony and the work records, showed that
Friday, August 19, 1988, was the only date when they could
have returned to Domino’s. By that date, the police had
identified Resh and Gondor as suspects, and their efforts
to establish their whereabouts on the night of the murder
would not have been as incriminating as trial testimony
that Resh and Gondor had tried to establish an alibi just
hours after the crime.
{¶ 25} During the postconviction hearing, the April
26, 1999 testimony of former Domino’s owner Timothy Hayes
was presented. Hayes testified that he thought that Gondor
had phoned him about his pizza receipt on Monday, August
15, 1988, because Hayes did not have to search for the
Sunday receipts and “it would have been right there.” Hayes
testified that his testimony about the Monday date was
based on the logic of what happened and not on his memory
of when the phone call was actually made.
{¶ 26} Third, Resh and Gondor presented evidence
about Busta’s credibility that was not presented at their
trials. The petitioners introduced a transcript of a
September 14, 1988 interview between Busta, his lawyers,
and his investigator that took place before Busta’s trial.
Busta stated during that 1988 interview that Lieutenant
David Easthon, the police investigator, had told him that
Busta’s assistance was needed to implicate Resh and Gondor
in Nardi’s murder. During the interview, Busta denied
seeing anyone strike Nardi. Busta also said that he did not
know why Gondor and Resh were throwing wood from Gondor’s
truck, but he indicated that it was “good wood.”
{¶ 27} As the interview progressed, Busta’s
attorneys asked him whether he would be willing to set up
Resh and Gondor for Lieutenant Easthon. Busta replied, “I’d
do anything I have to do to get myself out of this. I ain’t
sitting in no chair for somebody else. I’m not going to sit
in jail for somebody else.” Busta also said, “I’m not going
down for it. If I do when I do get out, I’m going to find
out who did it. * * * If they did do it 100%, I’m going to
prove it some way. I don’t know how.” Busta also asked,
“Has anything been checked on her husband or * * * anything
like that? Would he have anything to do with this?”
{¶ 28} During postconviction proceedings, Resh and
Gondor also presented a police report dated September 11,
1988, concerning an attempt by Busta’s mother, Kay Busta,
to smuggle a knife into jail to her son. Charges against
his mother were dropped as part of the plea agreement with
Busta. Neither Resh’s nor Gondor’s counsel used this
incident during their cross-examination of Busta at the
defendants’ trials.
{¶ 29} Finally, Resh and Gondor presented
postconviction evidence that was not used during their
trials, showing that others may have been involved in
Nardi’s homicide. First, Donna Sabarese provided police
with a statement about an encounter that she had with three
men in the general vicinity of Nardi’s body. Early Monday,
August 15, 1988, Sabarese was delivering newspapers when
she was approached by three men in their twenties who told
her that they had been fishing and that “a girl was missing
* * * [and she] was a friend of theirs.” Sabarese said that
the men appeared agitated, and she told them to stay away
from her. Sabarese thought they were carrying pipes because
she heard a “tinny” sound when one of them dropped
something on the pavement. A month later, during a search
of the area of the encounter, the police found a metal
strut and a broom handle.
{¶ 30} Second, Resh and Gondor presented a police
report containing statements from Pauline and Fred Green.
The Greens lived on the corner of Allyn and Abbot Roads.
The Greens said that around 6:00 or 7:00 p.m. on August 14,
1988, they saw a man and a woman on a motorcycle, a man on
a dirt bike, and a man on another motorcycle down by the
river. Around 11:30 p.m. that evening, Pauline saw two
people on a motorcycle that she believed was the same
motorcycle she had seen earlier, and they threw something
into the weeds near her home. The next day, she retrieved
two full cans and one empty can of Pabst beer, and one full
bottle and one empty bottle of Corona beer.
{¶ 31} Third, Resh and Gondor presented the
transcript of a September 20, 1988 telephone interview
conducted by Lieutenant Easthon with Ed Douglas, the owner
of the Upper Deck bar. Douglas reported during that
telephone interview that he received information that Busta
and Nardi had gone to a party the night of August 14, 1988,
where two other men, Eddie Price and Bennett Nelson, were
present. Easthon replied, “Well we haven’t spoken to these
two guys. Yeah, we’re beyond that. We’re in more critical
stages now.”
{¶ 32} Fourth, Resh and Gondor presented a statement
that Mr. and Mrs. Thomas provided to the police on October
18, 1988. They resided on the first piece of property north
of the alleged location of the homicide. The Thomases
reported that on Sunday, August 14, 1988, they never saw
Busta on his motorcycle and never saw a white pickup truck.
{¶ 33} During the postconviction hearing, James
Draper, Resh’s trial attorney, testified that before Resh’s
trial, he did not see or receive Wraxall’s report, the
Domino’s work records, the Hollibaugh interview, or
Holcomb’s grand jury testimony. Additionally, Draper did not
see or receive the transcript of Busta’s interview with his
attorneys and did not remember receiving the police report
about Busta’s mother. According to Draper, he also did not
see or receive the police investigative reports containing
Donna Sabarese’s statements, Douglas’s telephone interview,
or the Green and Thomas statements.
{¶ 34} Gary Levine, Gondor’s trial attorney,
testified at the postconviction hearing that before
Gondor’s trial, he did not see or receive the transcript of
Busta’s interview with his attorneys or the police report
concerning Busta’s mother. Further, Levine did not see or
receive police investigative reports relating to Sabarese’s
statements, Douglas’s telephone interview, or the Green and
Thomas statements. Levine also did not see or receive
Domino’s work records or Holcomb’s grand jury testimony,
and he did not recall seeing Hollibaugh’s interview.
{¶ 35} Levine testified that he first learned about
Wraxall’s report during his cross-examination of Dale Laux.
Levine stated at the postconviction hearing that he was
“astounded” at trial when Laux testified that another
laboratory had conducted testing on the stains. Although
Laux discussed the results of those tests during further
cross-examination, Levine explained at the postconviction
hearing that he did not see or receive a copy of Wraxall’s
report before the end of Gondor’s trial.
{¶ 36} Both Draper and Levine testified at the
postconviction hearing that all of these reports would have
assisted the defense in refuting Busta’s testimony at trial
and could have helped to suggest to the juries that other
individuals might have murdered Nardi. Draper and Levine
also testified that there would have been no reasonable
strategic reason for them to fail to use such reports, and
they believe that they would have rendered ineffective
assistance to their clients had they known about the
evidence and failed to present it.
{¶ 37} Ron Craig, an investigator with the Portage
County Prosecutor’s Office, testified that he was
responsible for gathering and organizing all the evidence
pertaining to the Nardi homicide at the time of the
investigation and the trials. Craig testified that the
prosecutor’s office had an “open file” discovery policy.
According to Craig, Draper and Levine were informed that
“the open file” discovery applied to discovery in the Resh
and Gondor cases, which meant that the defense was going to
receive everything the prosecutor’s office had in its
files. Craig testified at the postconviction hearing that
Draper and Levine came to the prosecutor’s office on
several occasions to review the prosecutor’s master file
before the trials.
{¶ 38} Craig organized the evidence in the Resh and
Gondor cases into a master file before the trials. He also
prepared notebook binders containing all the information
from the master file. Craig testified that Draper and
Levine were each provided a copy of these notebooks before
trial. As the cases progressed, Draper and Levine were also
provided with supplemental evidence that was not included in
the original notebooks.
{¶ 39} During postconviction proceedings, Craig
remembered much of the evidence that he had included in the
master file and the notebooks. Craig testified that
Wraxall’s July 6, 1990 report, Holcomb’s grand jury
testimony, Domino’s work records, and the climatological
data report from the Akron-Canton Airport for August 1988
were made part of the master file and were included in the
notebooks. He also testified that the police report
containing the Greens’ statements, the Douglas telephone
interview, and the police report relating to Busta’s mother
were in the master file and the notebooks. Craig also
recalled that the transcript of Busta’s interview with his
attorneys was supplementary evidence that was driven by Ted
Hornyak, an investigator, to Draper’s Cleveland office.
According to Craig, the transcript of Busta’s interview was
also provided to Levine before Gondor’s trial.
{¶ 40} David Norris, the Portage County Prosecutor
at the time of the trials, testified that he had informed
Draper and Levine that “open file discovery” would be in
effect for the Resh and Gondor cases. Norris testified that
“open file discovery” meant, “Our files were open for
review, for copying. Our files, our preparation, our work
product, other than some of our handwritten notes, but
other than that, just pretty much * * * everything else”
was accessible. According to Norris, both defense attorneys
were also provided with trial notebooks that contained the
“[p]olice reports, witness statements, scientific reports,
scientific lab work, Grand Jury testimony, [and] just pretty
much anything” needed before trial.
{¶ 41} Norris testified that Wraxall’s July 6, 1990
report was received by the prosecutor’s office shortly
before Resh’s trial. Norris remembered providing Draper
with the report during jury selection. Norris also
testified that he personally provided Levine with a copy of
Wraxall’s report before Gondor’s trial.
{¶ 42} On June 14, 2002, after the postconviction
hearing had concluded, the trial court denied Resh’s and
Gondor’s Brady claim, finding that the prosecution did not
withhold material, exculpatory evidence. See Brady v.
Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215. However, the trial court found that both Resh and
Gondor had received ineffective assistance of counsel
because their attorneys had failed to properly examine the
prosecutor’s file and present evidence in it to the trial
juries. The trial court concluded that “had such evidence
been disclosed to the juries that decided these cases,
there is a reasonable probability that the result of the
proceedings would have been different.” The trial court
therefore vacated Resh’s and Gondor’s convictions and
ordered new trials.
{¶ 43} On appeal, the court of appeals conducted a
de novo review of the trial court’s postconviction findings
of fact and conclusions of law. State v. Resh, Portage App.
No. 2002-P-0074, 2004-Ohio-7220, ¶ 23; State v.
Gondor, Portage App. No. 2002-P-0073, 2004-Ohio-7219,
¶ 25. The court of appeals reversed, holding that
neither Resh nor Gondor had received ineffective assistance
of counsel. Resh, 2004-Ohio-7220, ¶ 121; Gondor,
220-Ohio-7219, ¶ 115.
{¶ 44} The cause is now before this court upon the
acceptance of discretionary appeals filed by both Gondor
and Resh.
Standard of review
{¶ 45} In proposition of law II, Gondor argues that
the Court of Appeals for the Eleventh District erred when
it reviewed de novo the trial court’s postconviction
findings. Gondor argues that the court of appeals should
have reviewed the trial court’s findings under an
abuse-of-discretion standard. We agree.
{¶ 46} The appellate court wrote, “It is important
to note the standard of review we apply in determining this
appeal, i.e., we review the trial court’s judgment granting
[the defendant’s] petition for post conviction relief de
novo. State v. Braden, 10th Dist. No. 02AP-954,
2003-Ohio-2949, ¶ 13.” Gondor, 2004-Ohio-7219,
¶ 23; Resh, 2004-Ohio-7220, ¶ 23. However,
Braden does not stand for the proposition that all appeals
from postconviction relief hearings are to be reviewed de
novo. Braden merely states — as an aside —
that the standard of appellate review for postconviction
proceedings brought pursuant to R.C. 2953.08, which
involves sentencing matters, is de novo. Braden added that
for postconviction relief brought pursuant to R.C. 2953.21,
the standard of review is different:
{¶ 47} “[I]n the interest of providing finality to
judgments of conviction, courts construe the
post-conviction relief allowed under R.C. 2953.21(A)(1)
narrowly. See State v. Steffen (1994), 70 Ohio St.3d 399,
410, 639 N.E.2d 67. Further, when a trial court rules on a
petition for post-conviction relief after a hearing, an
appellate court will give deference to the trial court’s
findings of fact.” Braden, 2003-Ohio-2949, ¶ 13.
{¶ 48} Braden’s statements regarding the standard of
review in postconviction claims brought pursuant to R.C.
2953.21 are correct. A postconviction claim is not an
ordinary appeal: “A postconviction proceeding is not an
appeal of a criminal conviction, but, rather, a collateral
civil attack on the judgment.” Steffen, 70 Ohio St.3d at
410, 639 N.E.2d 67.
{¶ 49} Further, the Eleventh District Court of
Appeals has itself applied an abuse-of-discretion standard
of review in a postconviction case where the defendant
alleged ineffective assistance of counsel. In State v.
Pierce (Dec. 22, 2000), Lake App. No. 98-L-232, 2000 WL
1876592, *5, the court held that “[a]s a postconviction
relief proceeding is a collateral civil attack on a
judgment, the judgment of the trial court is reviewed under
the abuse of discretion standard.” The court concluded in
Pierce that the trial court did not abuse its discretion in
finding that there was a lack of credible evidence
establishing that the defendant’s trial counsel’s
performance had been deficient. Id. at *8.
{¶ 50} We also find persuasive the ruling of the
court in State v. Mitchell (1988), 53 Ohio App.3d 117, 119,
559 N.E.2d 1370, in which the court held in a
postconviction case involving a claim of ineffective
assistance of trial counsel that “[a]bsent a showing of
abuse of discretion, a reviewing court will not overrule
the trial court’s finding on a petition for post-conviction
relief which is supported by competent and credible
evidence.” See also State v. Mullins (June 25, 1996),
Franklin App. No. 96APA01-32, WL 362073, *3.
{¶ 51} In postconviction cases, a trial court has a
gatekeeping role as to whether a defendant will even
receive a hearing. In State v. Calhoun (1999), 86 Ohio
St.3d 279, 714 N.E.2d 905, paragraph two of the syllabus,
this court held that a trial court could dismiss a petition
for postconviction relief without a 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.” This court
reversed the judgment of the appellate court in Calhoun,
holding that “the trial court did not abuse its discretion
in dismissing the credibility of [the] affidavits,” which
served as the basis for his petition. (Emphasis added.) Id.
at 286, 714 N.E.2d 905.
{¶ 52} We thus determined in Calhoun that the trial
court’s gatekeeping function in the postconviction relief
process is entitled to deference, including the court’s
decision regarding the sufficiency of the facts set forth
by the petitioner and the credibility of the affidavits
submitted. We established in Calhoun that a court reviewing
the trial court’s decision in regard to its gatekeeping
function should apply an abuse-of-discretion standard. The
consistent approach is to grant that same level of
deference to the trial court in regard to its post-hearing
decision.
{¶ 53} Upon direct appeal, appellate courts
generally review ineffective assistance of counsel claims
on a de novo basis, simply because the issue originates at
the appellate level; no trial court has held forth on the
issue. Appellate courts review the trial record and are
left to judge from the bare record whether the assistance
was effective.
{¶ 54} On postconviction petitions, however, the
trial judge holds a hearing and receives testimony on the
very issue of ineffective assistance. The trial judge can
delve into the motivation or reasoning of trial counsel
through trial counsel’s testimony. The court can hear the
testimony of witnesses that were never called to testify at
the original trial, and can determine the worth of their
testimony as well as the witnesses’ credibility. The trial
judge can ask what the counsel knew, when he knew it, and
whether a mistake was not strategic, but was instead
careless. As here, in a postconviction hearing, a judge can
hear testimony about what evidence was made available to
trial counsel and when it was made available. A trial court
in a postconviction proceeding thus plays a unique role in
the consideration of ineffective assistance of counsel
claims. It is the only court that actually hears testimony
on that issue.
{¶ 55} In many cases, the judge presiding over the
postconviction hearing will be the same judge that presided
over the underlying trial and stands in an especially
strong position to determine the significance of a trial
counsel’s errors in the original trial. The state contends
that the de novo standard of review was appropriate here
because a visiting judge had presided over the evidentiary
hearing. The state argues that the hearing court possessed
only second-hand knowledge of the original trial from
reading the trial transcripts and stood in no better a
position than a court of review in assessing the credibility
of the witnesses. We reject this argument. Such a rule, if
adopted, would require an appellate court to apply two
different standards of review, depending upon the trial
judge’s prior experience in the case. Moreover, a visiting
judge at a postconviction hearing is in a totally different
position from the appellate judges. The postconviction judge
sees and hears the live postconviction witnesses, and he or
she is therefore in a much better position to weigh their
credibility than are the appellate judges.
{¶ 56} A de novo review by appellate courts would
relegate the postconviction trial court to a mere
testimony-gathering apparatus. Nothing in R.C. 2953.21
indicates that that should be the case. Further, a clean
slate on appeal would encourage every petitioner to seek
another day in court, which would not benefit the overall
administration of justice in Ohio:
{¶ 57} “[C]ases of postconviction relief pose
difficult problems for courts, petitioners, defense counsel
and prosecuting attorneys alike. Cases long considered to
be fully adjudicated are reopened, although memories may be
dim and proof difficult. The courts justifiably fear
frivolous and interminable appeals from prisoners who have
their freedom to gain and comparatively little to lose.”
State v. Milanovich (1975), 42 Ohio St.2d 46, 51, 71 O.O.2d
26, 325 N.E.2d 540.
{¶ 58} We thus conclude that proposition of law II
has merit. The Court of Appeals erred by using a de novo
standard of review in reversing the trial court’s findings.
We hold that a trial court’s decision granting or denying a
postconviction petition filed pursuant to R.C. 2953.21
should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court’s finding on a
petition for postconviction relief that is supported by
competent and credible evidence.
Trial Court’s Findings of Fact and Conclusions of Law
{¶ 59} In his propositions of law I and III, Gondor
argues that the trial court did not abuse its discretion
when it held that he received ineffective assistance of
counsel. In his sole proposition of law, Resh makes a
similar argument.
{¶ 60} As stated above, a trial court’s decision
regarding a postconviction petition filed pursuant to R.C.
2953.21 will be upheld absent an abuse of discretion when
the trial court’s finding is supported by competent and
credible evidence. “The term `abuse of discretion’ connotes
more than an error of law or of judgment; it implies that
the court’s attitude is unreasonable, arbitrary or
unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151,
157, 16 O.O.3d 169, 404 N.E.2d 144; State v. Keenan (1998),
81 Ohio St.3d 133, 137, 689 N.E.2d 929.
{¶ 61} The trial court employed the correct legal
standard in resolving the defendants’ ineffective
assistance of counsel claims. In evaluating claims of
ineffective assistance of counsel, a two-step process is
used. “First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the `counsel’ guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial * * *.” Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136,
538 N.E.2d 373, paragraph two of the syllabus.
{¶ 62} On the issue of counsel’s ineffectiveness,
the petitioner has the burden of proof because in Ohio, a
properly licensed attorney is presumed competent. Calhoun,
86 Ohio St.3d at 289, 714 N.E.2d 905, citing Vaughn v.
Maxwell (1965), 2 Ohio St.2d 299, 31 O.O.2d 567, 209 N.E.
164. In order to overcome this presumption, the petitioner
must submit sufficient operative facts or evidentiary
documents that demonstrate that the petitioner was
prejudiced by the ineffective assistance. State v. Davis,
133 Ohio App.3d at 516, 728 N.E.2d 1111. To demonstrate
prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80
L.Ed.2d 674.
{¶ 63} Here, the trial court found that the
assistance of Draper and Levine was ineffective because
they both failed to use evidence available to them at the
1990 trials. The trial court concluded:
{¶ 64} “[H]ad such evidence been disclosed to the
juries that decided these cases, there is a reasonable
probability that the result of the proceedings would have
been different. Certainly the juries should have been given
this evidence for their consideration for their verdicts to
be worthy of confidence. Without the benefit of such
evidence this Court finds that the verdicts are not worthy
of confidence.
{¶ 65} “It is therefore determined that the
Petitioners herein were denied their Constitutional right
to the effective assistance of counsel at their trials.”
{¶ 66} In finding that Draper and Levine were
ineffective, the trial court examined four categories of
evidence that neither counsel had used during the trials.
First, the trial court stated that counsel were ineffective
because they had failed to utilize the Domino’s records and
the climatological reports. The trial court found that this
evidence was “clearly exculpatory” because it showed that
Brenda Holcomb was wrong in testifying that Gondor and Resh
had contacted Domino’s on Tuesday, August 16, before they
became suspects in Nardi’s murder.
{¶ 67} Second, the trial court found that Draper and
Levine were ineffective because they had failed to utilize
the SERI report to cast doubt on Laux’s testimony that
bloodstains were found on the bedliner of Gondor’s truck.
In reaching this conclusion, the trial court noted, “This
report was not used at either trial, although the testimony
established that both defense counsel, by phone call from
Ron Craig * * * and in person by David Norris, * * * were
notified of its existence.” Although the trial court
incorrectly wrote that the 1990 SERI report “stated that
the stains were `most likely perspiration,'” the report did
present findings that were inconsistent with blood. Further,
when Brian Wraxall was asked to interpret his 1990 report,
he wrote in his 1996 affidavit that “[t]he body fluid that
best fits this scenario is perspiration. In summary, the
interpretation of this evidence should be approached with
extensive caution.” The court correctly found that the SERI
report would have cast doubt on Laux’s testimony.
{¶ 68} Third, the trial court found that Draper and
Levine were ineffective because they failed to use several
statements showing that other people might have been
involved in the murder. This evidence included Sabarase’s
statements, Douglas’s phone interview, Pauline and Fred
Green’s statements, and the Thomases’ statements.
{¶ 69} Fourth, the trial court found that both
counsel were ineffective because they had failed to use the
police report showing that Busta’s mother had tried to
smuggle a knife into the jail where Busta was confined.
This report was completed shortly before Busta implicated
Resh and Gondor. Thus, the trial court found that the
defense attorneys could have used this report to show that
Busta’s statements implicating Gondor and Resh were
motivated by his concern that his mother might be
prosecuted for smuggling contraband into the jail.
{¶ 70} Finally, the trial court found that Draper
and Levine were ineffective because they had failed to use
the transcript of Busta’s pretrial interview with his
lawyers and defense investigator. This interview revealed
that Busta said that he was uncertain about the facts of
Nardi’s murder and that pressure that was being exerted on
him prior to his own trial. In emphasizing the importance
of this information, the trial court pointed out, “Draper
testified that, in his opinion, it `would have changed the
outcome of the trial.'”
{¶ 71} In an 11-page opinion prepared after the
postconviction hearing, the trial court set forth the
appropriate legal standards and addressed Resh’s and
Gondor’s claims. Having reviewed the petition and
supporting documentation, the trial court concluded that
Resh and Gondor had received ineffective assistance of
counsel at their trials in 1990.
{¶ 72} The trial court properly considered the
cumulative effect of trial counsels’ errors. Strickland
directs us to look at the “totality of the evidence before
the judge or jury,” keeping in mind that “[s]ome errors
will have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary
picture * * *.” Strickland, 466 U.S. at 695-696, 104 S.Ct.
2052, 80 L.Ed.2d 674. We therefore consider these errors in
the aggregate. State v. DeMarco (1987), 31 Ohio St.3d 191,
196, 509 N.E.2d 1256. See, also, Moore v. Johnson (C.A.5,
1999), 194 F.3d 586, 619 (court should examine cumulative
effect of errors committed during both trial and
sentencing); Stouffer v. Reynolds (C.A.10, 1999), 168 F.3d
1155, 1163-1164 (“Taken alone, no one instance establishes
deficient representation. However, cumulatively, each
failure underscores a fundamental lack of formulation and
direction in presenting a coherent defense”).
{¶ 73} Gondor’s first and third propositions of law
and Resh’s proposition of law have merit. The trial court
properly weighed the credibility of the evidence, properly
found that the defendants had set forth sufficient
operative facts to obtain postconviction relief, and
properly issued sufficient findings of fact and conclusions
of law. Accordingly, we conclude that the trial court did
not abuse its discretion when it found that Resh and Gondor
received ineffective assistance of counsel, vacated the
convictions and sentences, and ordered new trials.
Therefore, we reverse the judgment of the court of appeals.
Disposition
{¶ 74} In case No. 2005-0329 (Robert Gondor) and
case No. 2005-0336 (Randy Resh), the judgments of the
Portage County Court of Appeals are reversed. Gondor and
Resh are remanded to the trial court for retrial.
Judgment accordingly.
MOYER, C.J., RESNICK, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL and LANZINGER, JJ., concur.
Victor V. Vigluicci, Portage County Prosecuting Attorney,
and Pamela J. Holder, Assistant Prosecuting Attorney, for
appellee in case Nos. 2005-0329 and 2005-0336.
Steven L. Bradley and David F. Hanson, for appellant in
case No. 2005-0329.
James D. Owen, and Samuel Porter, for appellant in case No.
2005-0336.