[Cite as State v. Lampley,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 10-CA-106 THOMAS LAMPLEY : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas Case No. 09-CR-650 D

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 9, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant: JAMES J. MAYER, JR. THOMAS J. LAMPLEY, pro se Richland County Prosecutor Inmate No. 582-243 38 S. Park St. Lorain Correctional Institution Mansfield, Ohio 44902 2075 S. Avon Belden Rd. Grafton, Ohio 44044 BRENT ROBINSON 0063166 Assistant Prosecuting Attorney Counsel of Record [Cite as State v. Lampley,

.]

Delaney, J.

{¶1} Defendant-Appellant, Thomas Lampley, appeals the judgment and

conviction of the Richland County Court of Common Pleas, denying his post-conviction

petition alleging ineffective assistance of counsel.

{¶2} Appellant was originally indicted on and convicted of murder with a gun

specification, having a weapon under disability, and tampering with evidence. On

March 2, 2010, Appellant was sentenced to 15 years to life with a three year gun

specification, plus three years for the weapon under disability charge and two years for

the tampering with evidence charge, all to be run consecutively.

{¶3} On March 10, 2010, Appellant filed a notice of Appeal with this Court in

case no. 10-CA-30. Subsequently, on April 26, 2010, Appellant filed in the trial court a

petition to vacate or set aside his sentence with accompanying motions for appointment

of counsel and expert witnesses.

{¶4} The motion for post-conviction relief did not contain any affidavits in

support of his petition. The hearing was set for June 15, 2010.

{¶5} On August 10, 2010, the trial court overruled Appellant’s petition for post-

conviction relief. On October 29, 2010, this Court dismissed Appellant’s direct appeal

for failure to prosecute because Appellant failed to submit a brief.

{¶6} Appellant now appeals the trial court’s August 10, 2010, denial of his

motion for post-conviction relief.

{¶7} Appellant raises one Assignment of Error, though he does not couch it as

an “ASSIGNMENT OF ERROR.” Appellant repeatedly argues throughout his brief that

trial counsel was ineffective for numerous reasons, which he attempts to discuss in his Richland County, Case No. 10-CA-106 3

brief. Accordingly, we will address Appellant’s assignment of error as though he is

raising a claim of ineffective assistance of trial counsel.

I.

{¶8} In Appellant’s assignment of error, he argues that trial counsel was

ineffective in representing Appellant at trial. We disagree.

{¶9} Ohio R.C. 2953.21 governs the filing of post-conviction petitions as

follows:

{¶10} “(A)(1)(a) Any person who has been convicted of a criminal offense or

adjudicated a delinquent child and who claims 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 Constitution of the United States, and any person who has

been convicted of a criminal offense that is a felony, who is an inmate, and for whom

DNA testing that was performed under sections 2953.71 to 2953.81 of the Revised

Code or under section 2953.82 of the Revised Code and analyzed in the context of and

upon consideration of all available admissible evidence related to the inmate's case as

described in division (D) of section 2953.74 of the Revised Code provided results that

establish, by clear and convincing evidence, actual innocence of that felony offense or,

if the person was sentenced to death, establish, by clear and convincing evidence,

actual innocence of the aggravating circumstance or circumstances the person was

found guilty of committing and that is or are the basis of that sentence of death, may file

a petition in the court that imposed sentence, stating the grounds for relief relied upon,

and asking the court to vacate or set aside the judgment or sentence or to grant other Richland County, Case No. 10-CA-106 4

appropriate relief. The petitioner may file a supporting affidavit and other documentary

evidence in support of the claim for relief.

{¶11} “(b) As used in division (A)(1)(a) of this section, “actual innocence” means

that, had the results of the DNA testing conducted under sections 2953.71 to 2953.81 of

the Revised Code or under section 2953.82 of the Revised Code been presented at

trial, and had those results been analyzed in the context of and upon consideration of all

available admissible evidence related to the inmate's case as described in division (D)

of section 2953.74 of the Revised Code, no reasonable factfinder would have found the

petitioner guilty of the offense of which the petitioner was convicted, or, if the person

was sentenced to death, no reasonable factfinder would have found the petitioner guilty

of the aggravating circumstance or circumstances the petitioner was found guilty of

committing and that is or are the basis of that sentence of death.

{¶12} “(2) Except as otherwise provided in section 2953.23 of the Revised

Code, a petition under division (A)(1) of this section shall be filed no later than one

hundred eighty days after the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct

appeal involves a sentence of death, the date on which the trial transcript is filed in the

supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of

the Revised Code, the petition shall be filed no later than one hundred eighty days after

the expiration of the time for filing the appeal.

{¶13} * * *

{¶14} “(4) A petitioner shall state in the original or amended petition filed under

division (A) of this section all grounds for relief claimed by the petitioner. Except as Richland County, Case No. 10-CA-106 5

provided in section 2953.23 of the Revised Code, any ground for relief that is not so

stated in the petition is waived.”

{¶15} Having had a prior opportunity to litigate all of the claims that Appellant

sets forth in his latest motion, via a timely direct appeal, Appellant's most recent round

of arguments are barred under the doctrine of res judicata. State v. Perry (1967),

,

. The Perry court explained the doctrine as follows:

{¶16} “Under the doctrine of res judicata, a final judgment of conviction bars the

convicted defendant 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.”

{¶17} The trial court determined that the doctrine of res judicata applies in the

instant case, as Appellant did not set forth competent, credible, relevant and material

evidence from outside the record. The trial court further determined that Appellant’s

complaints were available to raise both at the time of trial and on direct appeal.

{¶18} Because post-conviction relief is a collateral attack on judgment, and

provided there was no substantive grounds for relief, Appellant was not entitled to court-

appointed counsel, an expert, or a hearing. Trial courts may dismiss petitions for post-

conviction relief without a hearing “where the petition, the supporting affidavits, the

documentary evidence, the files, and the records do not demonstrate that petitioner set

forth sufficient operative facts to establish substantive grounds for relief.” State v.

Calhoun (1999), 86 Ohio.St.3d 279, 286,

,

, Richland County, Case No. 10-CA-106 6

{¶19} In State v. Wilcox, the court held that constitutional issues cannot be

considered in post-conviction proceedings when they could have been litigated prior to

or during trial or on direct appeal. State v. Wilcox (1984),

,

.

{¶20} Res judicata applies even though Appellant never pursued his direct

appeal. “The res judicata bar applies even where, as here, no direct Appeal was taken.”

State v. Barfield, 6th Dist. No. Nos. L-06-1262, L-06-1263,

.

{¶21} In his post-conviction petition, Appellant argues various reasons that trial

counsel was ineffective. The basis for his claims revolve around trial counsel’s alleged

failure to investigate mitigating circumstances, to examine other lines of defense (self-

defense), to investigate “all evidence within the scope of his duty proceeding to trial,”

and the Court’s declination to order a PSI prior to sentencing.

{¶22} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that his trial counsel acted incompetently.

Strickland v. Washington (1984),

,

. In assessing such

claims, “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.’”

, quoting Michel v. Louisiana (1955),

,

.

{¶23} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in Richland County, Case No. 10-CA-106 7

the same way.” Strickland,

. The question is whether counsel acted

“outside the wide range of professionally competent assistance.”

.

{¶24} Even if a defendant shows that his counsel was incompetent, the

defendant must then satisfy the second prong of the Strickland test. Under this “actual

prejudice” prong, the defendant must show that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland,

.

{¶25} We find nothing in the record indicating that trial counsel acted

ineffectively, nor has Appellant provided any credible evidence outside the record to

support his claims.

{¶26} For the foregoing reasons, Appellant’s arguments are overruled.

{¶27} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, J.

Wise, P.J. and

Edwards, J. concur.

HON. PATRICIA A. DELANEY

HON. JOHN W. WISE

HON. JULIE A. EDWARDS [Cite as State v. Lampley,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : THOMAS LAMPLEY : : Defendant-Appellant : Case No. 10-CA-106 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to Appellant

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. JOHN W. WISE

_________________________________ HON. JULIE A. EDWARDS