Opinion
No. 76031
Decided May 2, 1967.
Postconviction relief — Section 2953.21 et seq., Revised Code — Res judicata — Effect of prior litigation — Principle of finality of judgments — Constitutional issues previously litigated.
1. Section 2953.21 et seq., Revised Code, provide for a postconviction review of judgments of conviction only upon constitutional grounds.
2. A petition for postconviction relief under Section 2953.21 et seq., Revised Code, will be dismissed on a defense of res judicata, upon a showing that it is based upon only such constitutional issues as were raised in the trial which resulted in the conviction and pursued by appeals which were unsuccessful in the Supreme Court of Ohio, and as to which the United States Supreme Court denied a writ of certiorari.
3. The necessity of the principle of finality of judgments is such that a court should not review previously litigated constitutional issues, despite a change in these concepts, where the Supreme Court of the United States has limited such decisions to prospective application.
Mr. Ronald M. Benjamin and Messrs. Benjamin Womer, for petitioner.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Harvey R. Monck, for the state.
Under the postconviction determination of constitutional rights sections of the Revised Code of Ohio, Sections 2953.21, 2953.22, 2953.23 and 2953.24, Revised Code, this petitioner has filed her petition to vacate judgment. She was tried to a jury before this court, commencing on February 25, 1963. On March 7, 1963, the jury returned a verdict finding the defendant guilty as charged on all ten counts, involving two forged deeds, two forged wills, a forged partnership agreement, three forged notes, and two embezzlements. She was sentenced to the Ohio Reformatory for Women where she is presently confined.
In her petition she contended that her constitutional rights to a fair and impartial trial were violated in that her conviction was based in part on evidence that was the product of an illegal search and seizure; that an illegally admitted written statement was used; that prejudicial remarks of the prosecutor were allowed; and further that the court erred in entertaining two counts solely within the jurisdiction of the Probate Court, in not granting a speedy trial, and in its charge to the jury.
In response, the Prosecuting Attorney of Cuyahoga County, on behalf of the respondent, filed a motion asking the court for an order dismissing the petition to vacate judgment and for a finding that all the issues raised in the petition have been presented to and considered by all the appropriate courts of Ohio and by the Supreme Court of the United States and are therefore res judicata.
The fifty-one page transcript of the proceedings at the hearing on the petition to vacate consists of the arguments and citations offered by counsel for the petitioner and for the state. In addition the court received into evidence the respective briefs filed by the parties in the Supreme Court of Ohio.
At the conclusion of the prosecutor's remarks the court invited counsel for the petitioner to respond primarily to the argument advanced by the prosecutor that this matter is res judicata. He referred "to the recent Sheppard case where adverse trial publicity was raised in the initial instance by trial counsel, William Corrigan, with other grounds." He pointed out that the conviction was affirmed and certiorari denied by the United States Supreme Court, but eventually that court when the issues were presented again "took a different view, an enlarged view."
The following exchange then took place:
"The Court: * * * but aren't you in effect just merely saying that although all of these issues have been raised and have been decided by the courts, that at this time you are asking us to take another look at these particular matters? Isn't that what you are saying?
"Mr. Benjamin: Yes. That is right, your Honor.
"The Court: In other words, you are advancing no additional constitutional claims, or, you are claiming no other constitutional violations that you did not already raise in one of the other proceedings?
"Mr. Benjamin: That is right, your Honor.
"The Court: There is nothing new being offered; you merely are asking for a second look?
"Mr. Benjamin: I am enlarging on my original argument, that is true. Which is done regularly. And the Supreme Court of the United States has changed its position on the matter of a second look."
In short, the petitioner herein is not claiming the violation of any constitutional provisions that were not previously raised and ruled upon by the Court of Common Pleas, the Court of Appeals, the Ohio Supreme Court and the United States Supreme Court.
With the enactment of Sections 2953.21 to 2953.24, inclusive, Revised Code, effective July 21, 1965, this state adopted postconviction review as an established part of the criminal process. These sections provided a remedy for a collateral attack upon judgments of conviction claimed to be void or voidable under the Ohio Constitution or the Constitution of the United States. ( Freeman v. Maxwell, Warden, 4 Ohio St.2d 4.) Changes in criteria governing criminal prosecutions handed down by the United States Supreme Court provided the impetus necessitating a system of postconviction remedies which granted a remedy to "persons still confined in prison under procedures no longer permissible or tolerable" and, at the same time, relieved the appellate courts, both state and federal, of an engulfing tidal wave of habeas corpus actions.
Although many prisoners apparently viewed the adoption of these new postconviction remedies as the means to retry their cases, no such upheaval was intended. The legislatures and the courts were interested only in redressing the wrongs resulting from denials or infringements of basic constitutional rights. While the framers of the Ohio statutes failed to explicitly refer to the effect of the course of litigation in the proceedings leading to conviction and ultimate imprisonment, the mere absence of the appropriate language must not be construed as an abandonment of the time-honored principles of finality. Ordinary rules of finality of judgments must apply on all questions or issues that have been fully litigated.
"* * * Although the postconviction procedure is new to Ohio, it is no stranger to the law of other jurisdictions, particularly the federal jurisdiction, Illinois and Oregon. Courts in these three jurisdictions have had considerable experience in interpreting and administering postconviction statutes. * * * Although the cases deal with statutes somewhat different in phraseology from the Ohio statute, the cases are quite relevant because they attempt to resolve the basic problem inhering in any postconviction remedy: accommodating the goal of a procedure adequate to preserve all meritorious cases with the conflicting goal of a procedure that either will discourage or will quickly and accurately sift frivolous petitions." (27 Ohio State Law Journal 237, at pages 241 and 242.)
Common sense would seem to dictate that postconviction remedies exist to try fundamental issues of constitutional guarantees that have not been tried before. Ordinary principles of finality of judgments must apply to all questions which have been completely litigated. This general rule of necessity is applicable to criminal as well as civil processes.
In the petition herein some of the grounds advanced clearly relate to procedural matters which are not within the scope of the remedy because they raise no constitutional rights to due process. To re-echo the words of the Illinois and Oregon Supreme Courts:
"* * * It certainly was not the intent of the General Assembly by the new act in question, to enable a person convicted of a crime to have a review of ordinary questions of procedure, for which the law already provides a remedy, by charging that they constitute a denial of constitutional rights." ( People v. Hartman, 408 Ill. 133, at page 137, 96 N.E.2d 449.)
"The grounds for postconviction relief are limited. Error at the trial, even though it be considered reversible, prejudicial or materially affecting the rights of the party, is not necessarily a sufficient basis upon which to grant postconviction relief. Postconviction is not a delayed appeal. The basic purpose of the Act was not to enlarge the grounds for postconviction relief; it was to end the confusion over which of the common-law writs was the proper vehicle to seek relief by providing a single exclusive remedy." ( Parker v. Gladden, Warden, 407 P.2d 246, at page 247.)
In handling a postconviction petition the court can require that the petition must allege a denial of a constitutional right and that only those procedural errors, for example, lack of jurisdiction or a denial of adequate means for appellate review, which violate constitutional rights can properly be a basis for relief under the statute.
The language of the Ohio statute, using the words "such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States," requires in its ultimate effect that the petition be based on a constitutional right.
The contentions of the petitioner alleged specific violations of her constitutional rights which required a hearing by this court to determine whether said petitioner was entitled to the relief sought. In view of the pleading by the state requesting an order dismissing the petition to vacate on the ground that all the issues have been previously adjudicated, the court afforded counsel for the petitioner an opportunity during the postconviction hearing to respond to the state's claim that his client is now barred from raising such issues under the statute.
To the prosecutor's assertion and in response to the court's inquiry, counsel for the petitioner unequivocally admitted that all the issues now presented had previously been raised and considered by the Court of Appeals, by the Supreme Court of Ohio, and by the Supreme Court of the United States. In other words, counsel for the petitioner conceded that the same grounds advanced for postconviction relief had already been passed on by the appellate courts. Certainly any issues which have been fully and finally litigated in the proceedings leading to the judgment of conviction should not be relitigated in postconviction remedy proceedings. All the questions raised by the petitioner herein have been fully and finally litigated by the highest court of the state to which the petitioner can appeal as of right. The Supreme Court of Ohio has ruled on the merits of the questions and a motion for certiorari has been denied by the United States Supreme Court. Clearly the remedy provided by the postconviction statute may not prevail where the issues are res judicata.
"The remedy provided for under the act cannot be employed to obtain another hearing upon claims of denial of constitutional rights as to which a full and final hearing on the merits has already been had." ( People v. Dale, 406 Ill. 238, at page 244.)
However, while the doctrine of res judicata must be accorded due consideration within the postconviction remedy, its use cannot be an automatic barrier to an investigation of the alleged denials of constitutional rights if the purpose of the statute is to be served. The Illinois courts have ruled that the doctrine must not be mechanically applied in a postconviction case except where the identical issues which are raised in the post conviction petition have received a full and final hearing on the merits by the Illinois Supreme Court. ( People v. Jennings, 411 Ill. 21.)
An interesting commentary appended to proposed standards dealing with postconviction remedies reads as follows:
"At common law, res judicata did not apply to applications for writ of habeas corpus. The interest in finality of litigation was subordinate to the interest in freedom. Although the writ has developed into a much broader remedy in most jurisdictions than it was at common law, this rule of non-finality continues to have influence. Modern post-conviction remedies, enacted by legislation or rule of court, tend to be cautious in the application of principles of finality that would prevent consideration of the merits of a claim, even though prior applications have been unsuccessful." ( Post-Conviction Remedies, ABA, Tentative Draft, January 1967.)
It is suggested that a judgment should not bar relief where it rests on an incomplete record, on an issue inadequately or improperly tried in the process leading to conviction, or on a defect rendering appellate consideration questionable.
A review of the record in this lengthy trial, the extensive briefs filed, and a transcript of the postconviction hearing reveal that the petitioner was represented by very competent counsel who performed his duties so capably that there are no defects or omissions upon which to base this action. All the grounds advanced for relief by the petitioner have been properly asserted, adequately raised and finally adjudicated.
True to his role as an advocate, counsel for petitioner, while acknowledging that the issues have been litigated, advanced the argument that there have been significant changes in criminal law since her conviction and that she is entitled to benefit from the changed legal standards. In his reference to the Sheppard case he made no reference to the fact that the later order for a new trial arose not out of error proceedings but as a result of a habeas corpus action. The extraordinary writ has not been abolished at either the federal or state level by the creation of the new remedy, but legal scholars are looking with interest toward future developments in this area.
Under Article I, Section 8 of the Ohio Constitution, the writ of habeas corpus is still available to an Ohio prisoner wishing to collaterally attack his judgment of conviction. One recent Ohio Court of Appeals opinion states:
"While the Court of Appeals has unquestioned constitutional authority to entertain procedures in habeas corpus cases, it may, in the exercise of sound discretion, determine in a proper case that the petitioner should first exhaust his direct remedies provided in the trial court, and where such remedies have not been exhausted, this court may, in the exercise of such discretion, dismiss the petition for writ of habeas corpus, subject, however, to the right of the petitioner to make a further application for such relief." ( Kott v. Maxwell, Warden, 3 Ohio App.2d 337, Syl. 2.)
One can only speculate, however, on the effectiveness of any such application in the light of the following language handed down by the Ohio Supreme Court two months later:
"Until recently, this court held that relief should not be given to a prisoner in habeas corpus where it appeared that the prisoner was being held pursuant to a judgment of conviction of a court of record which had jurisdiction to render that judgment. * * *
"Section 2725.05, Revised Code, which is declaratory of the common law in this state, reads as follows:
"`If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed. * * *'
"In recent years, decisions of the Supreme Court of the United States have permitted prisoners to collaterally attack their judgments of conviction. See Linkletter v. Walker, Warden (1965), 14 L. Ed. 2d 601. The Supreme Court of the United States has suggested that a state must permit such a collateral attack on a judgment of conviction where such judgment was based on a denial of the prisoner's rights under the Constitution of the United States. See Case v. Nebraska (1965), 14 L. Ed. 2d 422.
"Because there was no other adequate means of collaterally attacking such a judgment of conviction, this court has recently been permitting such attacks in habeas corpus proceedings. * * * After enactment of Sections 2953.21 to 2953.24, inclusive, Revised Code, that reason for permitting such an extension of the right to relief in habeas corpus no longer exists.
"* * * Our conclusion is that the availability of the postconviction remedies provided by Sections 2953.21 to 2953.24, inclusive, Revised Code, is ground for denial of such remedies in pending as well as future habeas corpus actions." ( Freeman v. Maxwell, Warden, 4 Ohio St.2d 4, at pages 5 and 6.)
Counsel for the petitioner herein has urged this court to take another look at the issues he presented despite rulings handed down by the United States Supreme Court limiting retroactivity. Under his theory of "a second look" or "an enlarged view" every prisoner conceivably could make repetitive applications ad infinitum.
In an old Ohio case, our Supreme Court has said:
"The time should come, in the history of a cause, when litigation must end. If the failing party was allowed to prosecute a new petition in error, on the same record, whenever he imagined he had discovered a new ground of error not previously assigned, litigation would be interminable. Such practice would violate well-settled principles of law and be against public policy. * * *" ( Pollock v. Cohen, 32 Ohio St. 514, at pages 519, 520.)
In 32 Ohio Jurisprudence 2d, at page 28, the following language, dealing generally with the finality of actions, appears:
"The doctrine of res judicata may be said to inhere in the legal systems of all civilized nations as an obvious rule of expediency, public policy, public tranquility, and natural justice, which do not favor a multiplicity of actions and which require that litigation shall not be interminable. To hold otherwise might be dangerous, often oppressive, and would open an endless avenue to contention and vexation. Without this fundamental doctrine in full force and effect, it is declared that the proper enforcement of law would be quite impossible, as it would unsettle all the determinations of law."
After a thorough consideration of the pleadings and the arguments and the admissions of counsel and an application of the law as called upon to interpret it, this court concludes that any grounds for postconviction relief which have been fully and finally litigated in the proceedings leading to the judgment of conviction should not be relitigated in postconviction proceedings. The records of proceedings leading to the judgment are available and every question or issue raised in this petition to vacate has been decided on the merits by the highest court of this state and the motion for certiorari denied by the highest court of the United States. The affirmative defense of res judicata has been pleaded and proven by the state. Accordingly, the petition to vacate judgment is hereby dismissed at the petitioner's costs.
Petition dismissed.