[Cite as State v. Smith , 2019-Ohio-4483.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. SHAWN D. SMITH, JR. Defendant-Appellant : : : : : : : : : : Appellate Case No. 28127

Trial Court Case No. 2016-CR-487/2 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 1st day of November, 2019.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, P.J.-2- {¶ 1} Defendant-appellant, Shawn D. Smith, Jr., appeals from the judg ment of the Montgomery County Court of Common Pleas dismissing his petition for post-conviction relief. For the reasons outlined below, the judgment of the tr ial court will be affirmed.

Facts and Course of Proceedings {¶ 2} On March 16, 2017, a jury found Smith guilty of two counts of f elony murder, six counts of felonious assault, one count of discharging a fir earm on or near a prohibited premises, and several firearm specifications. Following a benc h trial, the trial court also found Smith guilty of having weapons while under disability. A fter his conviction, Smith received an aggregate sentence of 37 years to life in prison fo r his offenses. Smith then filed a direct appeal from his conviction. On June 29, 2018, t his court affirmed Smith’s

conviction in State v. Smith , 2d Dist. Montgomery No. 27585, 2018-Ohio-2567. {¶ 3} On June 14, 2018, while Smith’s direct appeal was pending, Smit h filed a pro se petition for post-conviction relief. In support of his peti tion, Smith alleged that the trial court’s bailiff committed misconduct during deliberations by ha ving a discussion with the jury about the jury instructions. Specifically, Smith alleged that the bailiff told his trial counsel that the jurors had indicated they could not reach a ve rdict because the jury instructions were confusing. According to Smith, the bailiff t hen told his trial counsel that she advised the jury that “the answers” were on a certain page of the jury instructions.

Smith asserted that his trial counsel notified him about the ba iliff’s statements to the jury “days after” his trial. Smith also alleged that certain blood evidence was not tested and that the trial court should have given a jury instruction perta ining to the lack of testing. Smith attached no supporting affidavits to his petition nor did he provide any evidence in-3- support of the claims raised therein. {¶ 4} On August 24, 2018, a visiting judge who had been assigned to t he case issued a judgment entry dismissing Smith’s petition for post-co nviction relief. In dismissing the petition, the visiting judge found that Smith ha d provided no evidence to support the alleged communication between the trial court’s bai liff and the jury. The visiting judge also found that even if there were evidence of t he alleged communication, Smith failed to provide the court with any evidence establishin g that the communication prejudiced him. The visiting judge further found that any issu e regarding the blood testing was a matter that should have been raised in Smith’s di rect appeal and was therefore barred by res judicata. {¶ 5} Smith now appeals from the dismissal of his petition for post-c onviction relief, raising one assignment of error for review.

Assignment of Error {¶ 6} Under his sole assignment of error, Smith contends that the tri al court erred in dismissing his petition for post-conviction relief without h olding an evidentiary hearing. In support of this claim, Smith does not raise any argument wit h regard to the trial court’s decision on the blood testing issue. Rather, Smith only argues that the allegation of misconduct by the bailiff in his petition constituted substanti al grounds for relief that warranted an evidentiary hearing. We disagree. {¶ 7} “ ‘[A] criminal defendant seeking to challenge his conviction t hrough a petition for post[-]conviction relief is not automatically entitled to a hearing.’ ” State v. Clark , 2017-Ohio-120, 80 N.E.3d 1251, ¶ 19 (2d Dist.), quoting State v. Calhoun , 86 Ohio St.3d-4- 279, 282, 714 N.E.2d 905 (1999). Instead, the trial court must first determine whether there are substantive grounds for relief, i.e., “whether there are grounds to believe 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 Constitutio n of the United States.’ ”

Calhoun at 282-283, quoting R.C. 2952.21(A); R.C. 2953.21(D). Accord State v.

Stoermer , 2d Dist. Clark No. 2019-CA-23, 2019-Ohio-3804, ¶ 16. “[N]o h earing is necessary, if the petition and its supporting evidentiary docum ents do not contain operative facts that would, if proven, establish a substantive ground for relief.” State v.

Kuck , 2d Dist. Darke No. 2017-CA-15, 2018-Ohio-3290, ¶ 6, citing State v. Armstrong , 56 Ohio App.3d 105, 108, 564 N.E.2d 1070 (8th Dist.1988). Therefo re, in order to be entitled to a hearing, the petitioner bears the initial burden to provide evidentiary materials containing sufficient operative facts to demonstrate a claim of constitutional error. State

v. Wood , 2d Dist. Clark No. 2018-CA-1, 2018-Ohio-3204, ¶ 23, citing State v. Kapper , 5 Ohio St.3d 36, 38-39, 448 N.E.2d 823 (1983). {¶ 8} “Broad assertions of prejudice and general conclusory allegatio ns * * * are an inadequate basis upon which to impose an evidentiary hearing .” State v. Padgett , 2d Dist. Montgomery No. 17658, 1999 WL 1127398, *3 (Dec. 10, 1999) , citing Kapper at 38

and State v. Jackson , 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980). Accord State v.

Jordan , 2d Dist. Montgomery No. 27208, 2017-Ohio-7342, ¶ 12 (“[b]road conclusory allegations are insufficient, as a matter of law, to require a hearing”). When a petition does not include any affidavits or other evidentiary materials supporting the claims in the petition, the trial court is authorized to dismiss the petition without a hearing. State v.

Wilkins , 127 Ohio App.3d 306, 310, 712 N.E.2d 1255 (2d Dist.1998), cit ing State v.-5- Pankey , 68 Ohio St.2d 58, 59, 428 N.E.2d 413 (1981). See also Kapper at 39 and Kuck at ¶ 17-19. {¶ 9} A trial court’s decision granting or denying a petition for pos t-conviction relief should be upheld absent an abuse of discretion. State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion “m ost often involves an ‘unreasonable’ decision that is not supported by a sound reason ing process.” State v. Mackey , 2018-Ohio-516, 106 N.E.3d 241, ¶ 8 (2d Dist.), citing Gondor at ¶ 58. {¶ 10} In this case, the allegation of the bailiff’s misconduct raised in Smith’s petition for post-conviction relief is based on nothing more th an Smith’s broad, conclusory allegation that the bailiff had an improper conversation with t he jurors about the jury instructions. Smith’s petition does not include any affidavit or other evidence supporting the allegation. The allegation is not even based on Smith’s ow n personal knowledge, as it is based on a double hearsay statement that Smith allegedly received from his trial counsel. Moreover, even if Smith had provided evidence of the bailiff’s alleged communication with the jurors, Smith’s petition does not set fo rth any operative facts establishing how he was prejudiced by the communication. {¶ 11} For the foregoing reasons, the trial court reasonably concluded that Smith’s petition for post-conviction relief failed to set forth suffici ent operative facts demonstrating substantive grounds for relief. Therefore, the trial court did not abuse its discretion in dismissing Smith’s petition without holding an evidentiary hear ing. {¶ 12} Smith’s assignment of error is overruled.

Conclusion-6- {¶ 13} Having overruled Smith’s sole assignment of error, the judgment of the trial

court is affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and TUCKER, J., concur.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Charles M. Blue Hon. Dale A. Crawford