[Cite as State v. Slagle,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA22 : vs. : Released: April 27, 2012 : JOHN W. SLAGLE, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

John W. Slagle, Nelsonville, Ohio, Appellant, pro se.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee. _____________________________________________________________

McFarland, J.:

{¶1} This is an appeal from a Highland County Court of Common

Pleas decision and entry denying Appellant’s motion for postconviction

relief without an evidentiary hearing. On appeal, Appellant contends that 1)

the lower court erred when it found that it was unnecessary to appoint an

attorney for Appellant following a proper request, for good and sufficient

reasons; 2) the lower court erred when it violated R.C. 2953.21, claiming

that it requires hearings on postconviction relief motions to be scheduled Highland App. No. 11CA22 2

promptly and that the trial court failed to so in Appellant’s case; and 3) the

lower court erred when it failed to comply with R.C. 2929.11(B).

{¶2} In light of our conclusion that Appellant’s petition did not

warrant an evidentiary hearing and that, as such, Appellant was not entitled

to appointment of counsel, we overrule Appellant’s first and second

assignments of error. Further, as the argument raised under Appellant’s

third assignment of error was also raised in the direct appeal of this matter

and rejected by this court, Appellant’s third assignment of error is overruled

on the basis of res judicata. Accordingly, the trial court’s denial of

Appellant’s petition for postconviction relief is affirmed.

FACTS

{¶3} We previously stated the facts of this case in State v. Slagle, 4th

Dist. No. 10CA4 and 10CA5,

:

{¶4} On March 19, 2010, the Highland County Court of

Common Pleas sentenced Appellant to a total of six years in prison

after a jury found him guilty of five felony theft offenses and one

count of misdemeanor falsification. Appellant's convictions were

based upon his theft of monies held in trust for various different

clients, by virtue of his position as their attorney. Highland App. No. 11CA22 3

{¶5} Specifically, Appellant was convicted and sentenced as

follows in Highland County Case No. 09CR047:

Count 1: Aggravated Theft/third degree felony in violation of R.C.

2913.02(A)(1)/sentenced to three years in prison and ten thousand

dollar fine/to be served consecutively to count two herein and

consecutively to the four year sentence imposed by the Montgomery

County Court of Common Pleas

Count 2: Grand Theft /fourth degree felony in violation of R.C.

2913.02(A)(1)/sentenced to one year in prison and five thousand

dollar fine/to be served consecutively to count one herein and to the

four year sentence imposed by the Montgomery County Court of

Common Pleas

Count 3: Grant Theft/fourth degree felony in violation of R.C.

2913.02(A)(1)/sentenced to one and a half years in prison, a five

thousand dollar fine and $82,241.78 in restitution/to be served

concurrently

Count 5: Falsification/first degree misdemeanor in violation of R.C.

2921.13(A)(10)/sentenced to six months in jail/to be served

concurrently Highland App. No. 11CA22 4

{¶6} Further, Appellant was convicted and sentenced as follows

in Highland County Case No. 09CR086:

Count 2: Grant Theft/fourth degree felony in violation of R.C.

2913.02(A)(1)/sentenced to one and a half years in prison, a five

thousand dollar fine and $73,576.00 in restitution/to be served

concurrently with count three herein and consecutively with Case No.

09CR047 and the Montgomery County Sentence

Count 3: Theft from an Elderly Person/third degree felony in violation

of R.C. 2913(A)(1)/sentenced to two years in prison, a ten thousand

dollar fine, and $18,546.00 in restitution/to be served concurrently

with count two herein and consecutively with Case No. 09CR047 and

the Montgomery County sentence.

{¶7} Thus, Appellant was sentenced to a total of six years by

the Highland County Court of Common Pleas, to be served

consecutively to a four year prison term previously imposed in

Montgomery County, for a total of ten years. State v. Slagle, ¶ 3-6.

We affirmed Appellant’s sentences on appeal. Id., ¶ 26.

Subsequently, Appellant filed an application to reopen his appeal on May

12, 2011. In his application, Appellant contended, among other things, that

his appellate counsel was ineffective for failing to assign as error on appeal Highland App. No. 11CA22 5

the argument that the statute of limitations as to count one in his indictment

had expired. In support of his argument, he attached several documents

purporting to be investigative notes from Montgomery County from 2002.

This Court, however, rejected Appellant’s argument, based in part on the

fact that these documents were not part of the record on appeal and were not

properly before us.

{¶8} During the time that his direct appeal was pending, Appellant

filed a petition for postconviction relief in the trial court on January 18,

2011. In his petition, Appellant alleged that the statute of limitations as to at

least one count had expired. Appellant additionally filed motions for the

appointment of counsel and for expert assistance in the form of an

investigator and a psychiatrist. Although Appellant’s original petition failed

to include an affidavit or any evidence supporting his claim, Appellant

subsequently filed an affidavit, and two supplemental memorandums in

support of his petition, on May 2, 2011, and May 23, 2011, respectively.

Attached to his first supplemental memorandum was a copy of the same

documents attached to his application for reopening.

{¶9} The trial court held a hearing on Appellant’s petition on July 7,

2011. During the hearing, the trial court explained to Appellant that an

evidentiary hearing would only be held if it was determined that there were Highland App. No. 11CA22 6

substantive grounds to support the petition. The trial judge further explained

that hearings were not normally held during the first stage of the

proceedings, but that he liked to give petitioners an opportunity to be heard

with respect to their petitions. After holding a preliminary oral hearing, the

trial court issued findings of fact and conclusions of law denying Appellant’s

petition on July 11, 2011. It is from this denial of his petition for

postconviction relief that Appellant now brings his timely appeal, assigning

the following errors for our review.

ASSIGNMENTS OF ERROR

“I. THE LOWER COURT ERRED WHEN IT FOUND THAT IT WAS UNECESSARY TO APPOINT AN ATTORNEY FOR APPELLANT FOLLOWING A PROPER REQUEST FOR SAME BY APPELLANT, FOR GOOD AND SUFFICIENT REASONS.

II. THE LOWER COURT ERRED WHEN IT VIOLATED SECTION 2953.21 OF THE OHIO REVISED CODE WHICH REQUIRES THAT HEARINGS ON A POST-CONVICTION RELIEF MOTION BE SCHEDULED PROMPTLY, BY FAILING TO DO SO IN APPELLANT’S CASE.

III. THE LOWER COURT ERRED WHEN IT FAILED TO COMPLY WITH SECTION 2929.11(B) OF THE OHIO REVISED CODE.”

ASSIGNMENTS OF ERROR I AND II

{¶10} For ease of analysis, we address Appellant’s first and second

assignments of error in conjunction with one another. Appellant contends Highland App. No. 11CA22 7

that the trial court erred by not holding a prompt hearing on his petition for

postconviction relief, and in failing to appoint counsel.

{¶11} Although the trial court did afford Appellant an oral hearing on

his petition for postconviction relief, the trial court dismissed Appellant’s

petition for postconviction relief without holding an evidentiary hearing. As

such, we will review Appellant’s appeal under an abuse-of-discretion

standard. State v. Lewis, 4th Dist. No. 10CA3181,

,

citing, State v. Hicks, 4th Dist. No. 09CA15,

, ¶ 10 (stating that

“abuse of discretion is the most prevalent standard for reviewing the

dismissal of a petition for postconviction relief without a hearing”). An

abuse of discretion is more than an error of judgment; “it implies that the

court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore (1983),

,

.

{¶12} R.C. 2953.21 governs postconviction relief and “provides a

remedy for a collateral attack upon judgments of conviction claimed to be

void or voidable under the Constitutions of the United States or Ohio.” State

v. Bradford, 4th Dist. No. 08CA3053,

, citing State v.

Hatton, 4th Dist. No. 00CA10,

(Aug. 4, 2000). In order to

prevail on a postconviction relief petition, the petitioner must establish that

he has suffered an infringement or deprivation of his constitutional rights. Highland App. No. 11CA22 8

See R.C. 2953.21(A)(1); State v. Calhoun,

,

(1999).

{¶13} A criminal defendant seeking to challenge his conviction

through a petition for postconviction relief is not automatically entitled to an

evidentiary hearing. See State v. Cole,

,

(1982); State ex rel. Jackson v. McMonagle,

,

(1993). “Before granting a hearing on a petition * * *, the

court shall determine whether there are substantive grounds for relief. In

making such a determination, the court shall consider, in addition to the

petition, the supporting affidavits, and the documentary evidence, all the

files and records pertaining to the proceedings against the petitioner,

including, but not limited to, the indictment, the court's journal entries, the

journalized records of the clerk of the court, and the court reporter's

transcript.” R.C. 2953.21(C).

{¶14} Thus, R.C. 2953.21(C) imposes a duty on the trial court to

ensure that the petitioner adduces sufficient evidence to warrant a hearing.

State v.

; State v. Weddington, 4th Dist. No. 10CA19, 2011-Ohio-

1017, ¶ 9. Further, “[t]he court may dismiss a petition for post-conviction

relief without a hearing when the petitioner fails to submit evidentiary

material setting forth sufficient operative facts to demonstrate substantive Highland App. No. 11CA22 9

grounds for relief.” State v. Bradford at ¶ 10, citing State v. Jackson,

,

(1980); See also State v. Hicks, 4th

Dist. No. 09CA15,

, ¶14.

{¶15} Here, because the evidence Appellant offered to support his

claim was not in the trial record, on the surface it appears that a petition for

postconviction relief was the proper vehicle for its consideration. State v.

Stedman, 8th Dist. No. 83531,

. However, as discussed

by the Twelfth District in State v. Lawson:

{¶16} The presentation of competent, relevant, and

material evidence dehors the record may defeat the application

of res judicata. See State v. Smith (1985),

, 17 OBR 219, 221,

.

However, a petition for postconviction relief is not the proper

vehicle to raise issues that were or could have been determined

on direct appeal. State v. Perry, supra, 10 Ohio St.2d at 182, 39

O.O.2d at 193, 226 N.E.2d at 109. “[E]vidence presented

outside the record 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 which is only

marginally significant and does not advance the petitioner's Highland App. No. 11CA22 10

claim beyond mere hypothesis and a desire for further

discovery.” Coleman, supra, Hamilton App. No. C-900811, at

7. To overcome the res judicata bar, evidence offered dehors the

record must demonstrate that the petitioner could not have

appealed the constitutional claim based upon information in the

original record. [Ohio v. Franklin, 1st Dist. No. C-930760,

(Jan. 25, 1995), *7.] State v. Lawson,

,

(12th Dist. 1995); See, also,

State v. Hicks, supra, ¶ 15.

{¶17} After considering the evidence at issue in Lawson, the court

was “unconvinced” that the issues raised in the petition for postconviction

relief could not have been determined without resort to evidence “dehors”

the record.

; citing State v. Cole,

,

, ( 1982), syllabus. In reaching this conclusion, the court

reasoned that the information contained in Lawson’s exhibits did not contain

new evidence that was unavailable in the original record.

;

See also State v. Stedman, 8th Dist. No. 83531,

(reasoning that the evidence at issue, a police statement, was not sufficient to

demonstrate defense counsel’s ineffectiveness as it was clearly not new

evidence and was available at the time of trial.). Further, in support of its Highland App. No. 11CA22 11

decision, the Lawson court characterized the affidavits at issue as

“repackaged information already available in the record.” Id. at 315.

{¶18} In support of his petition, Appellant primarily relied upon a

four-page document, dated December 17, 2002, which purported to be

investigative notes from the Montgomery County Prosecutor’s Office, Fraud

and Economic Crimes Division. A review of these notes reveals that an

investigator named Nelson Grover interviewed an attorney by the name of

Susan Davis regarding various different legal matters in which she

collaborated with Appellant. Specifically, it appears that attorney Davis

provided various different facts and figures regarding checks drawn on her

trust account, payable to Appellant. One of the four pages is completely

illegible, and the only reference to count one is a notation that attorney

Davis provided the investigator with copies of the following related to the

Cundiff matter: 1) “Statement of Clarification of Settlement and Deposit of

Funds (Jessee E. Cundiff), filed in Highland County Probate Court,

3/27/01[;]” and 2) “Report of Distribution and Entry of Minor’s Claim

(Jessee E. Cundiff), filed in Highland County Probate Court, 3/27/01[.]”

{¶19} These investigative notes reveal no wrongdoing on the part of

Slagle in and of themselves, but rather simply indicate that an investigation

did occur with regard to several client files, one of which related to Jessica Highland App. No. 11CA22 12

Cundiff, victim of count one in the later filed Highland County indictment.

The trial court, after reviewing the record and affording Appellant an oral

hearing that was not even required, determined that the petition, affidavit

and record did not present any substantive grounds for relief. The trial court

also suggested that the doctrine of res judicata may be applicable, as a full

evidentiary hearing was held prior to trial on Appellant’s motion to dismiss

based upon the statute of limitation defense, which issue was not raised on

direct appeal. Additionally, although not a basis for the trial court’s

decision, we further note that these investigative notes dated in December of

2002 were clearly available at the time of Appellant’s trial and thus do not

constitute new evidence.

{¶20} As such, and in light of the foregoing, we cannot conclude that

the trial court abused its discretion by dismissing Appellant’s petition for

postconviction relief without an evidentiary hearing. Thus, Appellant’s

second assignment of error is overruled.

{¶21} Our analysis, however, does not end here. As set forth above,

Appellant further contends that the trial court erred in failing to appoint

counsel. “[A]n indigent petitioner has neither a state nor a federal

constitutional right to be represented by an attorney in a postconviction

proceeding.” State v. Crowder,

,

Highland App. No. 11CA22 13

(1982), citing Pennsylvania v. Finley,

,

,

(1987); See also State v. Hicks, supra, ¶ 24. Additionally,

“appointed counsel is not required for the initial burden of preparing and

presenting petitions for post-conviction relief.” Id., citing State v. Barnes,

,

(3rd Dist. 1982); See, also, State v.

Sheets, 4th Dist. No. 03CA24,

; State v. Johnson, 8th

Dist. No. 82632,

, ¶ 37. However, a petitioner is entitled to “

‘the appointment of counsel if two conditions are met. First, the trial court

must determine whether the petitioner's allegations warrant an evidentiary

hearing. * * * Second, the public defender must assess whether [the]

petitioner's allegations have arguable merit.’ ” State v. Hicks at ¶ 24, quoting

State v. Smith, Richland App. No. 02CA67,

, citing

Crowder at paragraphs one and two of the syllabus. See, also, R.C.

120.16(A)(1) and (D).

{¶22} In light of our finding that the trial court did not abuse its

discretion in dismissing Appellant’s petition without an evidentiary hearing,

Appellant was not entitled to the appointment of counsel. State v. Hicks,

supra, ¶ 25. Thus, Appellant’s first assignment of error is also overruled. Highland App. No. 11CA22 14

ASSIGNMENT OF ERROR III

{¶23} In his third assignment of error, Appellant contends that the

lower court erred when it failed to comply with R.C. 2929.11(B), which

essentially requires that sentences be reasonably calculated to achieve the

overriding purposes of felony sentencing and, with respect to Appellant’s

argument, that they are consistent with sentences imposed for similar crimes

committed by similar offenders. However, not only did Appellant raise this

issue on direct appeal, he again raised the issue in his application to reopen

his direct appeal. We affirmed the trial court’s sentence on direct appeal in

State v.

and further rejected this exact argument in our

decision denying Appellant’s application for reopening.

{¶24} As set forth above, the doctrine of res judicata is applicable to

postconviction relief matters. “[T]he doctrine of res judicata bars claims for

post-conviction relief based on allegations which the petitioner raised, or

could have raised, in the trial court or on direct appeal.” State v. Hicks,

supra, ¶ 16, quoting State v. Howard, 4th Dist. App. No. 96CA2470,

(Aug. 11, 1997), citing State v. Perry, supra, paragraph nine of

the syllabus. Thus, as Appellant already raised the issue contained in his

third assignment of error in both his direct appeal and his application for

reopening, it is barred by the doctrine of res judicata. As such, Appellant’s Highland App. No. 11CA22 15

third assignment of error is overruled. Accordingly, the decision of the trial

court denying Appellant’s petition for postconviction relief is affirmed.

JUDGMENT AFFIRMED. Highland App. No. 11CA22 16

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Highland County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P. J. and Harsha, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.