IN THE SUPREME COURT OF OHIO

STATE OF OHIO

Appellee,

V.

CASE NO:

1 ^ -018..

On Appeal from the EighthDistrict Court of Appeals,Case No. 94562

JOHN KENT

Appellant

MEMORANDUM IN SUPPORT OF JURISDICTION

John P. Parker0041243988 East 185'h StreetCleveland, Ohio 44119216-881-0900johnpparker@earthlink.net

Counsel for Appellant

FEO 0 1 2099

CLERK OF COURTSUPREME COURT OF OHIO

William MasonCuyahoga County Prosecutor1200 Ontario StreetJustice Center-9th FloorCleveland, Ohio 44113216-443-7800

Counsel for Appellee

Table of Contents

Page

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTTI'UTIONAL QUESTION..........2

STATEMENT OF THE CASE AND FACTS ...........................................................................3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law I. The doctrine of res judicata does not bar the appellant's claims andthe lower court's finding of res judicata is not supported by the recordand violates the 14' Amendment of the federal Constituflon ...............4

Proposition of Law II: An evidentiary hearing should have been conducted since theAppellant supported his petition with an affidavit with evidence

dehors the record that supported the relief he sought and thefailure to conduct such hearing violated R.C. 2953.21 and theFourteenth Amendment of the federal Consfitution ............................6

Proposition of Law III: A court must allow appellant to conduct discovery in postconviction and adopt the federal standard for when discoverytakes place otherwise it violates the Fourteenth Amendment of thefederal Constitution and Ohio law ......................................................7

Proposition of Law IV: The lower courts erred in denying the claim that trial counsel was

ineffective for failure to properly investigate the alibi claimbefore presenting it . ...........................................................................9

1

CONCLUSION ...........................................................................................................................11

PROOF OF SERVICE ................................................................................................................ 11

APPENDIX

Opinion and Judgment Entry of the Cuyahoga County Court of Appeals (CA 94562), December

23, 2010,

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST ANI) INVOLVES

A SUBSTANTIAL CONSTITUTIONAL QUESTION

Mr. Kent is serving a sentence of 33 years to life but his lawyer never investigated the

alibi he presented at trial. As a result, the State was able to destroy the alibi by effectively using

available telephone records which defense counsel never investigated or understood. Had defense

counsel understood the available telephone records, then he would not have presented the alibi

that was presented and his credibility with the jury would not have been destroyed. Moreover, the

appellant could have accepted the plea bargain that was offered or he would have been found not

guilty since the state's case relied primarily on "snitch" testimony from two alleged accomplices

and the state had no physical evidence linking appellant to the homicide. However, the credibility

of the defense was undermined by counsel's presentation of an alibi that was destroyed by the

state's use of available telephone records.

Given the increasing availability of cell phone records and their use in criminal cases, this

case presents the Court with the opportunity to emphasize the need for counsel to investigate and

understand cell phone records or risk being held to be constitutionally ineffective.

Statement of the Case and Facts

The appellant stands convicted of Aggravated Murder with a firearm specification and

multiple theories of Aggravated Robbery. He is serving a sentence of 33 years to life.

The appellant filed a timely Petition for Post Conviction Relief under R.C. 2953.21. The

trial court denied the petition without a hearing and without allowing for discovery.

The primary issue in post conviction concerr ►s trial counsel's failure to properly

investigate and prepare for trial. The appellant submitted an affidavit in support of his petition

which explains that his counsel failed to investigate and obtain and understand certain phone

records which the State obtained to effectively destroy the alibi defense presented by the

appellant. The failure to properly investigate the case denied the appellant the effective assistance

of counsel. The State presented no affidavits in support of its position. See Strickland v.

Washin tgton, 466 U.S. 668 (1984). The Sixth Circuit federal Court of Appeals recently granted

relief based on counsel's failure to investigate and present an alibi defense in a homicide case.

Poindexter v. Booker, 301 Fed. Appx. 522, 2008 U.S. App. LEXIS 24221 (Nov. 28, 2008). See

Towns v. Smith, 395 F.3d 251,258 (6"' Cir. 2005)(Counsel's duty includes the obligation to

investigate all witnesses who may have information concerning his or her client's guilt or

innocence); Clinkscale v. Carter, 375 F.3d 430, 443 (6' Cir. 2004)(Collecting cases where

counsel was ineffective for failing to investigate potential alibi witnesses) These cases

demonstrate it is objectively unreasonable not to interview key defense witnesses.

The Eighth District Court of Appeals failed to acknowledge or discuss the federal cases

presented by the appellant in support of his appeal.

3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I. The doctrine of res judicata does not bar the appellant's claims andthe lower court's finding of res judicata is not supported by the recordand violates the 14t' Amendment of the federal Constitution.

The lower court's conclusion that the doctrine of res judicata bars the relief requested is

incorrect. The Supreme Court of Ohio has specifically held "allegations of ineffectiveness based

on facts not appearing in the record should be reviewed through the post conviction remedies of

R.C. 2953.21." State v. Coleman (1999), 85 Ohio St. 3d 129, 134. See also, State v. Speed, 2005

Ohio 4423, para. 19.

The claim presented by the appellant concerns trial counsel's failure to investigate. The

only manner in which to raise a claim based on evidence outside the original trial record is

precisely the manner utilized by the appellant in this case. To hold otherwise deprives the

appellant of any means to present the issue of counsel's constitutional ineffectiveness. Ohio must

offer some procedure whereby such a claim can be made. Sixth and Fourteenth Amendments of

the federal Constitution.

A similar claim was reviewed in State v. Speed, 2005 Ohio 4423. In Speed, the petitioner

presented only his own affidavit in support of an alibi that was never presented by his trial

counsel. Here, in this case, the appellant has presented his own affidavit that defense counsel

failed to properly investigate a proposed alibi defense by obtaining and understanding phone

records. As a result of counsel's failure, the alibi presented was destroyed by the State when it

used the records to discredit the alibi. Had defense counsel obtained and understood the records,

4

then the appellant would not have used an alibi that was so easily destroyed.

In Speed, the Court held that the trial court had to conduct an evidentiary hearing to

properly assess, among other things, the credibility of the alibi witnesses. Here, there should be a

hearing to determine why defense counsel failed to obtain and understand the phone records that

undermined the appellant's alibi.

In addition, the state has filed no affidavit to rebut or contradict the affidavits provided by

the appellant. The State had the opportunity to rebut the appellant's affidavit but failed to do so.

It can not be "reasonable" trial strategy to not investigate an alibi. Defense counsel has an

essential duty to "make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary." Strickland v. Washinaton, 466 U.S. at 691 (1984). While

"strategic choices made after thorough investigation of law andfacts relevant to plausible

options are virtually unchallengeable" id at 690 (emphasis added), decisions made by counsel

after less than thorough investigations "are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation." Id at 691. In determining what

is objectively unreasonable, the court conducts "on objective review of counsel's performance,

measured for `reasonableness under prevailing professional nonns' which includes a context-

dependent consideration of the challenged conduct as seen `from counsel's perspective at the

time." Strickland at 688-89.

The Sixth Circuit federal Court of Appeals recently granted relief based on counsel's

failure to investigate and present an alibi defense in a homicide case. Poindexter v. Booker, 301

Fed. Appx. 522, 2008 U.S. App. LEXIS 24221 (Nov. 28, 2008). See Towns v. Smith, 395 F.3d

251,258 (6^' Cir. 2005)(Counsel's duty includes the obligation to investigate all witnesses who

5

may have information concerning his or her client's guilt or innocence); Clinkscale v. Carter, 375

F.3d 430, 443 (6`h Cir. 2004)(Collecting cases where counsel was ineffective for failing to

investigate potential alibi witnesses) These cases demonstrate it is objectively unreasonable to

not interview key defense witnesses

In this case, counsel had an obligation to investigate an potential alibi before presenting

it. The failure to obtain and understand the cell phone records here completely undermined the

defense.

The lower court's legal conclusion that the doctrine of res judicata prevents the claims in

this post conviction proceeding are incorrect

Proposition of Law II: An evidentiary hearing should have been conducted since theAppellant supported his petition with an affidavit with evidencedehors the record that supported the relief he sought and thefailure to conduct such hearing violated R.C. 2953.21 and theFourteenth Amendment of the federal Constitution.

A trial court may dismiss a petition for post conviction relief without an evidentiary

hearing when 1. The petitioner fails to present `sufficient operative facts to establish substantive

grounds for relief and 2. The petitioner raises claims barred by the doctrine of res judicata. See

State v. Calhoun, 86 Ohio St. 3d, para. 2 of syllabus. Courts have held that affidavits in support

of a post conviction petition that, if believed, would have exonerated the defendant, merit the

holding of an evidentiary hearing. State v. Swortcheck, 101 Ohio App.3d 770 (1995).

6

Ohio Revised Code Section 2953.21(E) states "...unless the files and records of the case,

viewed in light of the information of the petition, show that petitioner is not entitled to relief, the

court shall proceed to a prompt hearing on the issue..."

In this case, the appellant presented an affidavit supporting his claim that counsel failed to

investigate and understand the phone records used to destroy his alibi . The claim that counsel

was constitutionally ineffective is clearly supported by the affidavit and the claim is not barred by

res judicata.

The case law and the statute cited above require an evidentiary hearing. The trial court's

failure to conduct such hearing is reversible error. The ruling by the Court of Appeals is likewise

incorrect and an evidentiary hearing must be held.

Proposition of Law III: A court must allow appellant to conduct discovery in postconviction and adopt the federal standard for when discoverytakes place otherwise it violates the Fourteenth Amendment of thefederal Constitution and Ohio law.

Ohio law does not automatically allow a post conviction petitioner to conduct discovery.

The trial court has discretion to allow discovery. State ex rel Love v. Cuyahoga Countv

Prosecutor's Office (1999), 87 Ohio St.3d 158, 159. Ohio has not otherwise set forth the

standards by which a trial judge should allow discovery.

7

By way of comparison, the federal courts in federal post conviction have established that

discovery should be permitted "where specific allegations before the court show reason to

believe that petitioner may, if the facts are fully developed, be able to demonstrate that he ...is

entitled to relief." Bracy v. Gramley (1997), 520 U.S. 899, 909-909.

Ohio must adopt a similar standard if post conviction is to mean anything and survive

Due Process analysis under the Fourteenth Amendment of the federal Constitution.

In this case, the appellant requested discovery and wanted to take the depositions of his

defense counsel concerning their failure to properly investigate the phone records. In his

affidavit, the appellant presented specific allegations that if fully developed with the assistance of

the discovery tools that would have given him the relief he requested.

Discovery should have been permitted and the trial court erred in denying discovery.

Likewise, the Court of Appeals, without any analysis, simply held that the appellant was not

entitled to discovery and therefore the trial court did not err by denying appellant's discovery

requests. This case demonstrates the problem with having no standards for courts to use in

deciding whether to allow discovery. The trial court denied discovery and the court of appeals

held they are allowed to deny discovery without any analysis. Under Bracy v. Gramlev, sunra; the

appellant would have been entitled to discovery. Ohio must adopt such a test for when discovery

is allowed; otherwise there is no meaningful right to discovery and there is a violation of Due

Process under the Fourteenth Amendment of the federal Constitution.

8

Proposition of Law IV: The lower courts erred in denying the claim that trial counsel wasineffective for failure to properly investigate the alibi claimbefore presenting it.

It can not be "reasonable" trial strategy to not investigate an alibi. Defense counsel has an

essential duty to "make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary." Strickland v. Washin tg_on, 466 U.S. at 691 (1984). While

"strategic choices made after thorough investigation of law andfaets relevant to plausible options

are virtually unchallengeable" id at 690 (emphasis added), decisions made by counsel after less

than thorough investigations "are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation." Id at 691. In detennining what is objectively

unreasonable, the court conducts "on objective review of counsel's performance, measured for

`reasonableness under prevailing professional norms' which includes a context-dependent

consideration of the challenged conduct as seen `from counsel's perspective at the time."

Strickland at 688-89.

The Sixth Circuit federal Court of Appeals recently granted relief based on counsel's

failure to investigate and present an alibi defense in a homicide case. Poindexter v. Booker, 301

Fed. Appx. 522, 2008 U.S. App. LEXIS 24221 (Nov. 28, 2008). See Towns v. Smith, 395 F.3d

251,258 (6t` Cir. 2005)(Counsel's duty includes the obligation to investigate all witnesses who

may have information concerning his or her client's guilt or innocence); Clinkscale v. Carter, 375

F.3d 430, 443 (6*" Cir. 2004)(Collecting cases where counsel was ineffective for failing to

investigate potential alibi witnesses) These cases demonstrate it is objectively unreasonable not to

interview key defense witnesses.

9

Counsel has a duty to adequately investigate his client's representations. Johnson v.

Baldwin 114 F.3d 835 (9th Cir. 1997).

The case of English v. Romanowski, 602 F.3d 714 (6b Cir. 2010), decided April 15, 2010,

U.S. Court of Appeals for the Sixth Circuit is instructive concerning counsel's duty to properly

investigate. As in En ish, counsel in this case should have discovered the problems with the

witnesses before the trial commenced. Here, defense counsel completely failed to investigate and

understand the alibi evidence and how it would be affected by the phone records that counsel

never investigated or understood. Counsel could not have presented a reasonable trial strategy

without first investigating the facts. Further, counsel had a duty to investigate the alibi before

presenting it. Counsel's performance was objectively unreasonable.

The appellant was prejudiced by counsel's performance because the evidence against him

was not overwhelming. The State relied primarily of the snitch testimony of two co-defendants

who cut plea bargains with the State and who were both drug addicts and otherwise not credible.

Defense counsel promised the jury an alibi that was completely undermined by counsel's

failure to investigate and understand the phone records used by the State to destroy the alibi.

Competent counsel never would have presented the alibi given the phone records and their impact

on the alibi. Counsel promised a credible alibi that was completely undermined by objective

phone records that were available before trial. See n ish, supra, concerning negative inferences.

At least one juror may not have believed the State's case given the lack of physical

evidence and the State's reliance on bought testimony from drug addict co-defendants. No

unbiased witnessed linked the appellant to the homicide. See Enelish, supra.

10

Defense counsel was ineffective under the Sixth and Fourteenth Amendments of the

federal Constitution for failure to properly investigate pre-trial the phone records that undermined

the alibi presented and the testimony presented by the defense. A new trial must be granted.

Conclusion

For the foregoing reasons, this Court must accept this case and order briefing on the

merits.

Respectfully submitted,

ker

Service

A copy of the foregoing document was served on Wm. Mason, 1200 Ontario St., Justice

Ceneter-9th Floor, Cleveland, Ohio 44113 this`d y of February 2011.

John P. P

11

Appendix

12

[Cite as State v. Kent, 2010-Ohio-6368.1

Court of Appeals of OhioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 94562

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JOHN KENT

DEFENDANT-APPELLANT

JUDGMENT:,AFFIRMED

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-485882

BEFORE: Jones, J., Kilbane, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: December 23, 2010

ATTORNEY FOR APPELLANT

John P. Parker988 East 185'h StreetCleveland, Ohio 44119

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

BY: T. Allan RegasAssistant Prosecuting AttorneyThe Justice Center1200 Ontario StreetCleveland, Ohio 44113

LARRY A. JONES, J.:

{¶ 1} Defendant-appellant, John Kent ("Kent"), appeals the trial court's

denial of his postconviction petition. Finding no merit to the appeal, we affirm.

{¶2} In 2006, Kent was convicted of one count of aggravated murder and

two counts of aggravated robbery; all counts were accompanied by three-year

firearm specifications. The trial court sentenced Kent to 30-years-to-life, and this

court affirmed his conviction on appeal. State v. Kent, Cuyahoga App. No.

90795, 2009-Ohio-3889 ("Kent P'). We reopened his appeal for the limited

purpose of determining whether appellate counsel was ineffective for failing to

challenge the aggravated robbery charge. State v. Kent, Cuyahoga App. No.

90795, 2010-Ohio-1851. We determined that Kent had been afforded effective

assistance of appellate counsel as Kent failed to establish any error with regard

to his conviction for aggravated robbery under R.C. 2911.01 (A)(3). State v. Kent,

Cuyahoga App. No. 90795, 2010-Ohio-4343.

{¶3} In 2008, Kent moved for postconviction relief, which the trial court

denied. Kent filed his notice of appeal, and raises the following four assignments

of error for our review:

"I. The doctrine of res judicata does not bar the appellant's claims and thelower courts finding of res judicata is not supported by the record andviolates the 14th Amendment of the Federal Constitution.

"II. An evidentiary hearing should have been conducted since the appellantsupported his petition with an affidavit with evidence dehors the record thatsupported the relief he sought and the failure to conduct such a hearingviolated R.C. 2953.21 and the Fourteenth Amendment of the FederalConstitution.

"Ill. A court must allow appellant to conduct discovery in post conviction[sic]and the failure to adopt the federal standard for when discovery takesplace violated the Fourteenth Amendment of the Federal Constitution andOhio law.

"IV. The trial court erred in denying the claim that trial counsel was

ineffective for failure to properly investigate the alibi claim before presenting

it in violation of the Sixth and Fourteenth Amendments of the Federal

Constitution."

Postconviction Petition

{¶ 4} "A postconviction proceeding is not an appeal of a criminal conviction,

but, rather, a collateral civil attack on the judgment." State v. Hines, Cuyahoga

App. No. 89848, 2008-Ohio-1927, ¶8, quoting State v. Steffen, 70 Ohio St.3d 399,

1994-Ohio-111, 639 N.E.2d 67. R.C. 2953.21(A)(1)(a) allows Kent to file a

petition asking the trial court to vacate or set aside the judgment of conviction or

sentence. Kent, as petitioner, must state all grounds for relief on which he relies,

and he waives all other grounds not so stated. R.C. 2953.21(A)(4). In

determining whether substantive grounds for relief exist, the trial court must

consider, among other things, the petition, the supporting affidavits, and the

documentary evidence filed in support of the petition. R.C. 2953.21(C). If the

trial court finds no grounds for granting relief, it must make findings of fact and

conclusions of law supporting its denial of relief. R.C. 2953.21(G).

11151 A trial court may rule on a postconviction petition without first holding

a hearing. Proper grounds for dismissing a petition for postconviction relief

without holding an evidentiary hearing include: "1) the failure of the petitioner to

set forth sufficient operative facts to establish substantive grounds for relief, and 2)

the operation of res judicata to bar the constitutional claims raised in the petition."

State v. Thomas, Cuyahoga App. No. 87666, 2006-Ohio-6588, citing State v.

Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905, at paragraph two of

the syllabus; State v. Lentz, 70 Ohio St.3d 527, 1994-Ohio-532, 639 N.E.2d 784.

1116) "Under the doctrine of res judicata, a final judgment of conviction bars

a convicted defendant who was represented by counsel from raising and litigating

in any proceeding except an appeal from that judgment, any defense or any

claimed lack of due process that was raised or could have been raised by the

defendant at the trial, which resulted in that judgment of conviction, or on an

appeal from that judgment." State v. Peny (1967), 10 Ohio St.2d 175, 226

N.E.2d 104, at paragraph nine of the syllabus. In other words, a petition for

postconviction relief is not the proper vehicle to raise issues that were or could

have been determined on direct appeal.

{¶ 7} Evidence submitted in support of a postconviction petition "must meet

some threshold standard of cogency; otherwise it would be too easy to defeat the

holding of Perry by simply attaching as exhibits evidence that is only marginally

significant and does not advance the petitioner's claim beyond mere hypothesis

and a desire for further discovery." State v. Lawson (1995), 103 Ohio App.3d

307, 659 N.E.2d 362. The evidence submitted with the petition must be

competent, relevant, and material and not merely cumulative of or alternative to

evidence presented at trial. State v. Combs (1994), 100 Ohio App.3d 90, 652

N.E.2d 205.

{¶ 8} We review the trial court's ruling on a postconviction petition for an

abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N. E.2d 77, 145.

Kent's Postconviction Petition

{¶ 9} In his first, second, and fourth assignments of error, Kent argues that

his claims of ineffective assistance of counsel regarding the presentation of the

alibi defense at trial are not barred by the doctrine of res judicata.1

'Although Kent raised additional grounds for postconviction relief in his petition,including ineffective assistance of appellate counsel, cumulative error, constitutionalityof postconviction proceedings, and insufficient indictment, Kent does not raise thesegrounds for relief on appeal; therefore, we will not consider them. Even if we did suasponte review his claims, we would find they, too, are barred by res judicata orotherwise have no merit.

{¶ 10} In order to establish a claim of ineffective assistance of counsel, Kent

must demonstrate that counsel's performance was deficient and that the deficient

performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136,

538 N.E.2d 373, cert. denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d

768.

{¶ 11} In Strickland, the United States Supreme Court ruled that judicial

scrutiny of an attorney's work must be highly deferential. Id. at 689. The

Strickland court noted that it is very tempting for a defendant to question his

lawyer's performance after conviction and that it would be too easy for a court,

examining an unsuccessful defense in hindsight, to conclude that a particular act

or omission was deficient. Id. Therefore, "a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action 'might be considered sound

trial strategy."' Id.

{¶ 12} Kent argues that his trial counsel was ineffective for failing to

"investigate and understand the alibi evidence and how it would be affected by the

phone records that counsel never investigated or understood." Kent claims that if

counsel had investigated the phone records used at trial, Kent could have been in

a better position to accept a plea offer or abandon his alibi defense. While

generally the introduction in an R.C. 2953.21 petition of evidence dehors the

record of ineffective assistance of counsel is sufficient, if not to mandate a

hearing, at least to avoid dismissal on the basis of res judicata, State v, Cole

(1982), 2 Ohio St.3d 112, 443 N.E.2d 169, Kent failed to present any evidence

outside the record other than his own affidavit. The only other evidence Kent

offered to support his claims are the same telephone records that were used at

trial. Since by his own admission, those phone records were known to him during

trial, they cannot serve as evidence dehors the record. Moreover, Kent fails to

show how the phone records would have affected the outcome of the trial.

{¶ 13) Although not mentioned in his appellate brief, Kent also argued in his

postconviction petition that his trial counsel was ineffective for failing to object to

the jury instructions. This claim, too, should have been raised on direct appeal

and the failure to do so bars his claim from further review.

{¶ 141 In sum, Kent's argument that his trial counsel was ineffective could

have been made on direct appeal; therefore, we agree with the trial court that

Kent's claims are barred by the doctrine of res judicata.

{¶ 15} Thus, the trial court did not err in finding that res judicata bars his

petition and did not err in choosing not to hold a hearing on his petition. The first,

second, and fourth assignments of error are overruled.

Discovery

{¶ 161 In the third assignment of error, Kent argues that the trial court erred

when it did not afford him an opportunity to conduct discovery as to his

postconviction petition.

111171 The long-standing rule in Ohio is that a convicted criminal defendant

has no right to additional or new discovery, whether under Crim.R. 16 or any other

rule, during postconviction relief proceedings. State v. Bryan, Cuyahoga App.

No. 93038, 2010-Ohio-2088; State ex reL Love v. Cuyahoga Cty. Prosecutor's

Office (1999), 87 Ohio St.3d 158, 718 N.E.2d 426, certiorari denied (2000), 529

U.S. 1116, 120 S.Ct. 1977, 146 L.Ed.2d 806; see, also, State v. Taylor, Cuyahoga

App. No. 80271, 2002-Ohio-2742, ¶19 ("Courts are not required to provide

petitioners discovery in postconviction proceedings."). The trial court therefore

did not err by denying Kent's motion for discovery.

{¶ 181 The third assignment of error is overruled.

{¶ 19) Accordingly, judgment is affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

LARRY A. JONES, JUDGE

MARY EILEEN KILBANE, P.J., andFRANK D. CELEBREZZE, JR., J., CONCUR