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State v. Kemp4/29/2005
im-wife did not adversely affect his performance. In fact, the court noted that the victim-wife's relationship with the defendant's attorney likely helped defendant's case since she did not testify at his trial. Id. at 3.
{ } Assuming there was an actual conflict of interest in Morley's representation of Lori, there was no adverse affect in Morley's performance. As in Petrowski, supra, there is nothing in the record indicating that Appellant's and Lori's interests diverged placing Morley under inconsistent duties. In fact, the evidence supports that Morley's relationship with Lori likely worked to Appellant's advantage.
{ } Based on the foregoing, this Court finds no actual conflict of interest adversely affecting trial counsel's performance and overrules all aspects of Appellant's second assignment of error.
{ } Appellant's final assignment of error asserts:
{ } "The trial court erred to Appellant's detriment in dismissing Appellant's Petition when the trial court made unsubstantiated conclusions that had nothing to do with the matters in consideration of Petitioner's claims of ineffective assistance of counsel."
{ } Appellant in this assigned error attacks the trial court's judgment entry for setting forth findings relative to Appellant's other pending motions.
{ } As earlier discussed, Appellant had several outstanding motions at the time the trial court issued its entry at issue in this appeal. The motions included Appellant's request for the trial court to disregard his counsel's brief, Appellant's motion for summary judgment, and his request for the trial court to proceed as if the matter was uncontested as well as his motion to strike the state's reply brief.
{ } These motions were all overruled by the March 5, 2004, entry even though the trial court did not address each pending motion by name. A pending motion is impliedly overruled when a trial court enters judgment without expressly determining the specific motion. Maust v. Palmer (1994), 94 Ohio App.3d 764, 769, 641 N.E.2d 818.
{ } Here, the trial court did state that Appellant's pending motions were overruled, even though it did not specifically list them. Certainly, if a court can implicitly overrule pending motions upon entering judgment, it can explicitly overrule them within that judgment. The trial court was well within its discretion in considering Appellant's other pending motions in the same entry as its denial of his post-conviction petition. As such, the trial court's brief references to the facts surrounding the other pending motions were not in error.
{ } Appellant's third assignment of error simply restates the arguments set forth and previously addressed in his second assignment of error, i.e., his ineffective trial counsel based on the alleged conflict of interest. We will not readdress those arguments herein.
{ } Appellant's third assignment of error lacks merit and is overruled.
{ } Based on the foregoing, the trial court's judgment is hereby affirmed in its entirety.
Vukovich, J., concurs.
DeGenaro, J., concurs.
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