The Akron Legal News

9th District denies post-conviction relief for convicted murderer

ANNIE YAMSON
Special to the Legal News
Published: August 21, 2013

The 9th District Court of Appeals recently affirmed the judgment of the Summit County Court of Common Pleas denying a convicted murderer his petition for post-conviction relief.

In 2011, a jury found Elohim El-Jones guilty of the 2009 murder of Michael Kirksey.

Kirksey was watching a football game on a couch when El-Jones shot him five times because of an argument the two men had the previous day.

El-Jones was sentenced to life in prison with the possibility of parole after 33 years.

Following a direct appeal to the 9th District, the court of appeals affirmed his convictions, but reversed and remanded the case in order for the trial court to correct errors at the sentencing hearing.

While his direct appeal was pending, El-Jones petitioned the trial court for post-conviction relief, arguing that his trial counsel failed to raise an alibi defense and that his trial was marked by police and prosecutorial misconduct.

The trial court denied the petition without a hearing and El-Jones again appealed to the Ninth District, arguing the trial court erred by denying his petition without a hearing.

The court of appeals released a decision, authored by Judge Donna Carr, affirming the trial court’s actions.

Under R.C. 2953.21(A)(1), a convicted criminal defendant may petition the trial court to vacate or set aside a judgment or sentence because it is void or voidable under the U.S. or Ohio Constitutions.

However, “a petitioner is not automatically entitled to a hearing,” according to Carr. “In that respect, the trial court has a ‘gatekeeping’ function.”

According to the statute, a trial court may properly deny a defendant’s post-conviction relief petition without holding an evidentiary hearing if the petition, the supporting affidavits, and the records do not demonstrate that the petitioner “set forth sufficient operative facts to establish substantive grounds for relief.”

“When a trial court exercises its ‘gatekeeping’ function by determining that the petitioner has not alleged sufficient operative facts that would establish grounds for relief, our review is a two-step process,” wrote Judge Carr.

First, Judge Carr wrote that the court of appeals generally determines whether the trial court’s findings of fact are supported by competent, credible evidence.

“If this court concludes that the findings are properly supported, then this court reviews the trial court’s decision in regard to its gatekeeping function for an abuse of discretion.”

In his petition for relief, El-Jones argued that his trial counsel was ineffective for failing to present an alibi defense, but the appeals court sided with the trial court when it found that El-Jones was represented by trial counsel of his choice.

“El-Jones was permitted to address the court directly on a number of occasions,” Judge Carr wrote. “But neither El-Jones or his attorney raised the issue of an alibi defense despite ample opportunity to do so.”

El-Jones also contended he was denied his right to a fair trial because several potential witnesses were threatened with criminal charges by the prosecution.

With respect to one of those witnesses, the appellate panel found they were provided with appointed counsel to represent their interests during trial, but they failed to raise the issue of coercion.

Another witness who alleged coercion on the part of the state did raise the issue at trial, but the trial court and court of appeals found the jury had ample opportunity to consider and weigh her testimony.

“The trial court’s findings are supported by competent and credible evidence,” held Judge Carr.

The trial court also found that the affidavits that El-Jones submitted in support of his petition were “suspect and not compelling.”

Along with the fact that he failed to raise an alibi defense at trial, most of the affidavits he submitted were from family members, alleging El-Jones was at a family reunion at the time of the shooting.

In addition, the appellate panel determined that, with respect to the witness’ claims of coercion, the alleged error could have been fully addressed on direct appeal and it was barred by res judicata.

“Having reviewed the trial court record and the evidence in support of El-Jones’ petition, we conclude that the trial court did not abuse its discretion with respect to El-Jones’ grounds for relief,” Judge Carr concluded.

The judgment of the Summit County Court of Common Pleas was affirmed.

Presiding Judge Carla Moore and Judge Jennifer Hensal concurred.

The case is cited State v. El-Jones, 2013-Ohio-3349.

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