[Cite as State v. Clark,

.]

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

STATE OF OHIO, : : Case No. 15CA12 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY DALLAS P. CLARK, : : Defendant-Appellant. : Released: 04/21/16 _____________________________________________________________ APPEARANCES:

Dallas P. Clark, London, Ohio, Pro Se Appellant.

Anneka Collins, Highland County Prosecuting Attorney, and James Roeder, Assistant Prosecuting Attorney, Hillsboro, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} Dallas P. Clark appeals the Highland County Common Pleas

Court's denial of his petition for postconviction relief. On appeal, Appellant

contends that 1) the trial court abused its discretion in finding that his trial

counsel did not violate Prof. Cond. Rule 1.12(a) and thereby deprive him of

the effective assistance of counsel; 2) the trial court abused its discretion

when it misapplied the law of R.C. 2925.041; 3) the trial court abused its

discretion when it agreed with him regarding his entitlement to discharge

after the State violated R.C. 2945.73, yet still refused to order a hearing; and Highland App. No. 15CA12 2

4) the trial court abused its discretion when it held that his trial counsel did

not concede guilt despite transcript testimony to the contrary. Because we

find that Appellant failed to set forth sufficient operative facts in his petition

for postconviction relief to support his ineffective assistance of counsel

claims, we affirm the judgment of the trial court.

FACTS

{¶2} We set forth the facts as determined as part of our consideration

of Appellant's prior direct appeal. On September 9, 2014, Appellant Dallas

P. Clark was indicted on one count of illegal assembly or possession of

chemicals for the manufacture of drugs, a violation of R.C. 2925.041(A), a

felony of the third degree. The indictment arose from activities which

occurred on or about August 13, 2014 when officers executed a search

warrant at 6172 Holaday Road in Highland County, Ohio, and found various

items used in the production of methamphetamine. Kevin Colville lived at

the address. Appellant and Amanda Campanero, with whom he was

romantically involved, also stayed there on occasion. Appellant, Colville,

and Campanero were charged and arrested.

{¶3} Appellant was tried on the sole count on November 13, 2014.

The State presented testimony from the following individuals: Kelsey

Degan, a forensic scientist employed by the Ohio Bureau of Criminal Highland App. No. 15CA12 3

Identification and Investigation (BCI&I); Detective Daniel Croy of the

Highland County Sheriff's Department; Detective Jennifer Swackhammer,

Deputy Vinny Antinore, Detective Randy Sanders, and Detective Chris

Bowen, all of the sheriff's department. Co-defendant Kevin Colville

testified on behalf of Appellant. Appellant also testified in his own defense.

{¶4} In closing, the State argued that circumstantial evidence showed

Appellant possessed pseudoephedrine and lithium, necessary chemicals in

the manufacture of drugs, and that he possessed the items with the intent to

manufacture drugs. The State pointed out Appellant purchased

pseudoephedrine at least twice a month on average in the year 2014. The

State emphasized Appellant knew Colville cooked methamphetamine. The

State noted the room in which Appellant was located contained a majority of

the items found for the manufacture of drugs. At the conclusion of the one-

day trial, the jury returned a verdict of guilty.

{¶5} Appellant timely filed a direct appeal of his conviction. We note

that Appellant had the same counsel on appeal as he had at the trial court

level. After his direct appeal was filed, but was still pending, Appellant filed

a pro se petition for postconviction relief in the trial court, alleging multiple

instances of ineffective assistance of trial counsel at the trial court level, and

also the appellate level. As a result, Appellant's appellate counsel, who was Highland App. No. 15CA12 4

also his trial counsel, filed a request to withdraw, which we permitted. On

direct appeal, Appellant challenged the weight and sufficiency of the

evidence introduced at trial. Appellant also argued that his mandatory five-

year sentence was improper.1 Prior to the issuance of our decision related to

Appellant's direct appeal, the trial court issued an order denying Appellant's

petition for postconviction relief. In denying Appellant's petition, the trial

court noted that some of the arguments were barred by res judicata, but went

on to address and deny each of the arguments on their merits.

{¶6} This Court then subsequently issued our decision related to

Appellant's direct appeal, determining that Appellant's conviction was

supported by the sufficiency of the evidence and was not against the

manifest weight of the evidence and therefore overruling those assignments

of error. However, we found that the five-year mandatory sentence imposed

upon Appellant was clearly and convincingly contrary to law, and thus we

reversed and remanded the matter, in part, for further proceedings. State v.

Clark, 4th Dist. Highland No. 14CA20,

.

{¶7} Appellant has now filed an appeal from the trial court's denial of

his petition for postconviction relief, setting forth four assignments of error

for our review.

1 Appellant's appellate brief in his direct appeal was prepared by his appellate counsel prior to her withdrawal. Highland App. No. 15CA12 5

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE TRIAL COUNSEL DID NOT VIOLATE PROF. COND. RULE 1.12(a) AND DEPRIVE APPELLANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL, DESPITE OVERWHELMING EVIDENCE TO THE CONTRARY.

II. TRIAL COURT ABUSED ITS DISCRETION WHEN IT MISAPPLIED THE LAW OF R.C. 2925.041.

III. TRIAL COURT ABUSED ITS DISCRETION WHEN IT AGREED WITH APPELLANT REGARDING HIS ENTITLEMENT TO DISCHARGE AFTER THE STATE VIOLATED R.C. 2945.73 YET STILL REFUSED TO ORDER AN EVIDENTIARY HEARING.

IV. TRIAL COURT ABUSED ITS DISCRETION WHEN IT HELD THAT THE DEFENDANT'S COUNSEL DID NOT CONCEDE GUILT DESPITE TRANSCRIPT TESTIMONY TO THE CONTRARY.”

STANDARD OF REVIEW

{¶8} The postconviction relief process is a collateral civil attack on a

criminal judgment rather than an appeal of the judgment. State v. Calhoun,

,

(1999). Postconviction relief is not

a constitutional right; instead, it is a narrow remedy that gives the petitioner

no more rights than those granted by statute.

It is a means to resolve

constitutional claims that cannot be addressed on direct appeal because the

evidence supporting the claims is not contained in the record. State v.

Sidibeh, 10th Dist. Franklin No. 12AP-498,

, ¶ 8. Highland App. No. 15CA12 6

{¶9} “[A] trial court's decision granting or denying a postconviction

relief petition filed pursuant to R.C. 2953.21 should be upheld absent an

abuse of discretion; a reviewing court should not overrule the trial court's

finding on a petition for postconviction relief that is supported by competent

and credible evidence.” State v. Gondor,

, 2006-Ohio-

6679,

;

(“the [postconviction relief

statute] clearly calls for discretion in determining whether to grant a

hearing”); State v. Lewis, 4th Dist. Ross No. 10CA3181,

; quoting State v. Hicks, 4th Dist. Highland No. 09CA15,

, ¶

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

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

court abuses its discretion when its decision is unreasonable, arbitrary, or

unconscionable. Cullen v. State Farm Mut. Auto. Ins. Co.,

,

,

.

{¶10} A criminal defendant seeking to challenge the conviction

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

evidentiary hearing. Calhoun,

; citing State v. Cole,

, 443 N .E.2d 169 (1982). Before granting an evidentiary

hearing, the trial court must consider the petition, supporting affidavits,

documentary evidence, files and records pertaining to the proceedings Highland App. No. 15CA12 7

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, to determine whether there are substantive

grounds for relief. R.C. 2953.21(C). “Pursuant to R.C. 2953.21(C), a trial

court properly denies a defendant's petition for postconviction relief without

holding an evidentiary hearing where the petition, the supporting affidavits,

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

petitioner set forth operative facts to establish substantive grounds for

relief.” Calhoun,

, at paragraph two of the syllabus; see

also State v. Slagle, 4th Dist. Highland No. 11CA22,

;

quoting State v. Bradford, 4th Dist. Ross No. 08CA3053,

.

INEFFECTIVE ASSISTANCE OF COUNSEL

{¶11} All four of the assignments of error raised by Appellant claim

ineffective assistance of counsel. Criminal defendants have the

constitutional right to counsel, which includes the right to the effective

assistance of counsel. Evitts v. Lucey,

,

(1985) (“we have held that the trial-level right to counsel, created by the

Sixth Amendment and applied to the States through the Fourteenth Highland App. No. 15CA12 8

Amendment, * * * comprehends the right to effective assistance of

counsel”); Article I, Section 10, Ohio Constitution.

{¶12} To prevail on a claim of ineffective assistance of counsel, a

criminal defendant must establish (1) deficient performance by counsel, i.e.,

performance falling below an objective standard of reasonable

representation, and (2) prejudice, i.e., a reasonable probability that, but for

counsel's errors, the result of the proceeding would have been different.

State v. Short,

,

,

; Strickland v. Washington,

,

(1984);

State v. Warren, 4th Dist. Ross No. 12CA3324,

.

On the issue of ineffectiveness, the petitioner has the burden of proof

because in Ohio, a properly licensed attorney is presumed competent.

Gondor,

. Failure to satisfy either part of the test

is fatal to an ineffective-assistance claim.

; State v. Bradley,

,

(1989).

{¶13} For the first part of the test, the deficient performance requires

that the defendant show that counsel's errors were so serious that counsel

was not functioning as the counsel guaranteed by the Sixth Amendment.

Calhoun,

; citing

. The United States

Supreme Court has emphasized that judicial scrutiny of counsel's Highland App. No. 15CA12 9

performance is highly deferential, dependent upon an evaluation from

counsel's perspective at the time the conduct occurred, and requiring the

application of a strong presumption that counsel's conduct constituted sound

trial strategy, even if ultimately unsuccessful:

"Judicial scrutiny of counsel's performance must be highly

deferential. It is all too tempting for a defendant to second-

guess counsel's assistance after conviction or adverse sentence,

and it is all too easy for a court, examining counsel's defense

after it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable. A fair assessment of

attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate

the conduct from counsel's perspective at the time. Because of

the difficulties inherent in making the evaluation, 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.' There are countless ways to provide Highland App. No. 15CA12 10

effective assistance in any given case. Even the best criminal

defense attorneys would not defend a particular client in the

same way." (Citations omitted.) Strickland,

.

{¶14} Further, “[d]ebatable trial tactics generally do not constitute a

deprivation of effective counsel.” State v. Lang,

, 2011-

Ohio-4215,

, ¶ 192. “There are numerous ways to provide

effective assistance of counsel, and debatable trial tactics and strategies do

not constitute a denial of that assistance.” State v. Cloud, 5th Dist. Delaware

No. 06CAA090068,

. Questioning witnesses is

manifestly within the realm of trial strategy, and “we will not question

counsel's strategic decision to engage, or not to engage, in a particular line of

questioning as these decisions are presumed to be the product of sound trial

strategy.” State v. Davis, 12th Dist. Butler No. CA2012-12-258, 2013-Ohio-

3878, ¶ 25 (appeal from judgment dismissing petition for postconviction

relief); see also Cloud at ¶ 37 (“The decision to introduce evidence falls

within the realm of trial strategy and does not rise to the level of deficient

performance on these facts”); In the Matter of Riley, 4th Dist. Washington

No. 03CA19,

, ¶ 21 (“Failing to question witnesses on cross

examination and choosing not to present witnesses fall within the realm of

trial strategy”); State v. Messer-Tomak, 10th Dist. Franklin No. 10AP-847, Highland App. No. 15CA12 11

, ¶ 32; quoting State v. Treesh,

,

(2001) (“counsel's decision about whether to call a witness

generally ‘falls within the rubric of trial strategy and will not be second-

guessed by a reviewing court’ ”).

RES JUDICATA PRINCIPLES

{¶15} “The doctrine of res judicata bars the relitigation of issues that

were raised on appeal or could have been raised on appeal.” State v. Cruz,

8th Dist. Cuyahoga No. 101544,

; quoting In re A.I.,

8th Dist. Cuyahoga No. 99808,

. Further, we note that

the doctrine of res judicata is generally applicable to petitions for

postconviction relief in that the doctrine "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. Howard, 4th Dist. Scioto No.

96CA2470,

(Aug. 11, 1997); citing State v. Perry (1967),

,

, at paragraph nine of the syllabus. A

review of the record reveals that the State, in its memorandum in opposition

to Appellant's petition, argued that each and every claim raised by Appellant

was barred by the doctrine of res judicata. However, as indicated above, the

trial court denied all seven of Appellant's claims raised in his petition based

upon the merits, but included additional language that two of Appellant's Highland App. No. 15CA12 12

claims were also barred by the doctrine of res judicata. At first blush, it

appears that most if not all of Appellant's claims should be barred by the

doctrine of res judicata because not only were they capable of being raised in

his direct appeal of his conviction, the matters complained of do not depend

upon evidence outside of the record. However, based upon the following,

we conclude that the doctrine of res judicata is inapplicable to Appellant's

petition for postconviction relief, both at the trial court level and now on

appeal.

{¶16} First, this Court has previously held that a trial court cannot

"rely on the doctrine of res judicata to bar consideration of post-conviction

claims while a first appeal of right remained pending." State v. Seal, 4th

Dist. Highland No. 13CA15,

; citing State v. Keeley,

,

(4th Dist.). In Keeley, we reasoned that res

judicata may be invoked to bar postconviction claims only after the first

appeal of right has been determined, or when no appeal is taken. Id.; citing

Keeley at ¶ 7. We have further noted that "invoking the doctrine of res

judicata while a first appeal of right is pending would render R.C.

2953.21(C) meaningless, because a trial court could always avoid ruling on

the petition's merits as long as no decision had been rendered on the appeal.

Id.; citing Keeley at ¶ 8. Highland App. No. 15CA12 13

{¶17} As set forth above, Appellant filed his petition for

postconviction relief while his direct appeal was still pending and the trial

court issued its decision before the appeal had been concluded. Fortunately,

the trial court did not primarily rely on the doctrine of res judicata in

determining Appellant was not entitled to a hearing and in denying

Appellant's claims. As set forth above, despite argument to the contrary by

the State, the trial court only cited res judicata as an alternative basis for

denying two of the seven claims raised by Appellant in his petition. The

decision of the trial court denied each of the claims on their merits,

providing detailed findings of fact and conclusions of law for each. Thus,

we find no error by the trial court in this regard.

{¶18} At this stage in the proceedings, however, we would be inclined

to now apply the doctrine of res judicata in the current appeal, as Appellant's

direct appeal has been determined, in accordance with our reasoning set

forth in State v.

(applying res judicata to appeal from

denial of postconviction relief where the trial court denied the petition on the

merits, rather than the basis of res judicata, and Seal's direct appeal had been

concluded). However, we find that another exception to the doctrine of res

judicata precludes us from doing so. Highland App. No. 15CA12 14

{¶19} In State v. Miller, 4th Dist. Ross No. 01CA2614, 2002-Ohio-

407, *2, this Court noted that "an exception to the general rule can be

asserted in cases where the petitioner is claiming ineffective assistance of

counsel in a post-conviction relief proceeding." We explained that "[u]nder

the exception, res judicata is not a bar to a defendant's claim of ineffective

assistance of counsel in a post-conviction relief proceeding if he was

represented by the same counsel at both the trial and on direct appeal." Id.;

citing State v. Lentz,

,

(1994);

State v. Cole,

,

(1992). A review

of the record in the case sub judice indicates that Appellant had the same

counsel at trial and upon appeal.

{¶20} In the trial court's decision denying Appellant's petition for

postconviction relief, the trial court noted that Appellant's direct appeal was

pending and that appellate counsel had filed a request in the appeal to

withdraw from representation. A review of the file from Appellant's direct

appeal reveals that Appellant's trial counsel, who was also counsel on

appeal, prepared and filed the brief on Appellant's behalf, raising four

assignments of error, none of which involved ineffective assistance of

counsel. Appellant's counsel was permitted to withdraw upon her request,

however no additional briefing occurred and new counsel was not appointed. Highland App. No. 15CA12 15

Thus, Appellant was effectively foreclosed from raising any arguments

based upon alleged ineffective assistance of counsel.

{¶21} For these reasons, we find that the doctrine of res judicata,

while generally applicable in postconviction cases, is inapplicable to the case

presently before us. Therefore, we will review the dismissal of Appellant's

petition with the understanding that his claims were not barred by an

application of this doctrine.

ASSIGNMENT OF ERROR I

{¶22} In his first assignment of error, Appellant contends that the trial

court abused its discretion in finding that trial counsel did not violate Prof.

Cond. Rule 1.12(a) and deprive Appellant of effective assistance of counsel,

despite overwhelming evidence to the contrary. Specifically, Appellant

argues that his trial counsel served as acting judge in the Hillsboro

Municipal Court in the cases of two co-defendants prior to being appointed

as Appellant’s trial counsel in the Municipal Court and then later in the

Common Pleas Court. The trial court denied this claim on its merits, finding

that Appellant’s trial counsel did not violate Prof. Cond. Rule 1.12(a), and

that even if counsel did violate the rule, Appellant failed to demonstrate that

he had been prejudiced as a result. For the following reasons, we find no

prejudice herein. Highland App. No. 15CA12 16

{¶23} Prof. Cond. Rule 1.12(a) provides as follows:

“Except as stated in division (d), a lawyer shall not represent

anyone in connection with a matter in which the lawyer

participated personally and substantially as a judge, or other

adjudicative officer or law clerk to such a person or as an

arbitrator, mediator, or other third-party neutral, unless all

parties to the proceeding give informed consent, confirmed in

writing.”

Further, the Official Comment to this rule states as follows:

“The term “personally and substantially” signifies that a judge

who was a member of a multimember court, and thereafter left

judicial office to practice law, is not prohibited from

representing a client in a matter pending in the court, but in

which the former judge did not participate. So also the fact that

a former judge exercised administrative responsibility in a court

does not prevent the former judge from acting as a lawyer in a

matter where the judge had previously exercised remote or

incidental administrative responsibility that did not affect the

merits.” Highland App. No. 15CA12 17

{¶24} Claimed ineffective assistance of counsel based upon an alleged

violation of a professional rule of conduct was also raised in State v.

Robinson, 2nd Dist. Greene No. 2013-CA-33,

. In that case,

Robinson argued that his defense counsel violated Rule 1.8(f)(1) of the Ohio

Rules of Professional Conduct, which requires that a lawyer obtain a client’s

informed consent when accepting compensation from a third party on behalf

of a client. Id. at ¶ 24. The Robinson court went on to provide a concise

summary of relevant caselaw on the issue of ineffective assistance of

counsel claims based upon professional conduct rules, which we set forth

verbatim:

“Appellate courts do ‘not have jurisdiction over the issue of

whether an attorney violated the Rules of Professional Conduct

even when it is raised in the context of an appeal.’ (Citations

omitted.) State v. Snyder, 6th Dist. Williams No. WM-08-004,

; see also State ex rel. Buck v. Maloney,

,

,

(the

Supreme Court of Ohio has exclusive and absolute jurisdiction

over the discipline of attorneys); State v. Montgomery, 2013-

Ohio-4193,

, ¶ 36 (8th Dist.) (appellate courts

‘have no authority to address claimed violations of the Rules of Highland App. No. 15CA12 18

Professional Conduct-that authority rests solely with the Ohio

Supreme Court’); Rice v. Lewis, 4th Dist. Scioto No.

09CA3307,

, ¶ 51 (finding appellate court did

not have jurisdiction over whether an attorney violated the

Rules of Professional Conduct due to a conflict of interest);

State v. Frazier, 8th Dist. Cuyahoga No. 62557,

, *9 (Feb. 17, 1994) (‘Appellant may not rely upon a rule

meant as a guide for attorneys to follow to maintain the

professionalism of the practice of law to support his assertion of

error in the trial proceedings’). In turn, ‘the issue of ineffective

assistance based upon a violation of the Rules of Professional

Conduct * * * is outside [the appellate court's] jurisdiction * *

*.’ Snyder at ¶ 51; see also Diing v. Howes, W.D. Michigan No.

1:09-cv-1058,

, *10 (Mar. 29, 2012)

(‘Conduct mandated by the Rules of Professional Conduct

clearly cannot support a claim of ineffective assistance of

counsel’).” State v. Robinson at ¶ 24.

{¶25} The Robinson court then went on to determine that the rules of

professional conduct may be used by courts “as a guideline to assess

whether an attorney renders ineffective assistance of counsel because the Highland App. No. 15CA12 19

first component of that determination is whether counsel’s conduct fell

below an objective standard of reasonableness for an attorney.” Id. at ¶ 25.

Thus, we are persuaded by the reasoning set forth in Robinson that we may

look to the ethical rules for guidance when determining whether Appellant

received ineffective assistance of trial counsel. As indicated above, we

agree with the trial court’s determination that Appellant did not receive

ineffective assistance of counsel.

{¶26} Appellant argues that trial counsel’s acts of “presiding” over

two co-defendants’ cases at the municipal court level “alone is sufficient to

constitute such a conflict of interest as to render her representation of him

ineffective.” Appellant also seems to argue that his counsel was required to

obtain his “informed consent in writing” and that she failed to do so because

she was “conspiring” with the trial court and prosecutor to keep the alleged

violation of the professional rules from Appellant. Such an argument is not

supported by the record.

{¶27} Here, we affirm the trial court’s denial of this claim contained

in Appellant’s petition for postconviction relief concerning the alleged

conflict of interest. The trial court made factual findings that determined

there was no conflict. Highland App. No. 15CA12 20

{¶28} As noted in the trial court’s decision, Appellant’s trial counsel,

as acting judge in the co-defendants’ cases, “heard no evidence and all

actions that she took were by agreement of the parties.” Despite Appellant’s

arguments to the contrary, we agree with the trial court’s determination that

her actions as acting judge “were more of a ministerial action as opposed to

judicial decision making in an adversarial proceeding.” This finding is

supported by the record in that one of the co-defendants simply waived

counsel, waived a preliminary hearing and was bound over to the grand jury.

The other co-defendant’s case was dismissed by agreement of the parties

without a preliminary hearing.

{¶29} Moreover, and importantly, Appellant has failed to demonstrate

how he was prejudiced by this alleged conflict of interest. Appellant raised

sufficiency and manifest weight of the evidence in his direct appeal of his

convictions. This Court determined that his convictions were supported by

sufficient evidence and were not against the manifest weight of the evidence.

As will be discussed in more detail below, Appellant’s convictions were

supported in large part by his own testimony at trial, which included

admissions that he used methamphetamine, had purchased Sudafed in hopes

to obtain methamphetamine, and that he was aware that Kevin Colville,

whose residence he was at, cooked meth and had done so before. As such, Highland App. No. 15CA12 21

we fail to see how, even if Appellant’s trial counsel had a conflict of interest,

such conflict affected the outcome of the proceedings.

{¶30} In light of the foregoing we cannot conclude that Appellant

received ineffective assistance of trial counsel in this regard. Thus, we

cannot conclude that the trial court erred or abused its discretion in denying

this claim. Accordingly, Appellant’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

{¶31} In his second assignment of error, Appellant contends that the

trial court abused its discretion when it misapplied R.C. 2925.041. More

specifically, Appellant argues that he should not have been sentenced to a

mandatory five-year prison term because his two prior drug convictions

occurred as part of the same criminal case. We initially note that in his

petition for postconviction relief, Appellant argued that he received

ineffective assistance of counsel in that his counsel incorrectly represented

the law and facts, with respect to his prior convictions, during plea

negotiations, at a status conference, at sentencing, and then again on appeal.2

Appellant now seems to argue error on the part of the trial court in imposing

sentence, rather than ineffective assistance of counsel.

2 We note, however, at this juncture that “[c]laims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21.” State v. Miller, 4th Dist. Ross No. 01CA2614,

, *3; quoting State v. Murnahan,

,

, syllabus (1992). Rather, “[t]he proper procedure is to file an application for reopening under App.R. 26(B).”

Highland App. No. 15CA12 22

{¶32} However, a review of the record, including Appellant’s prior

direct appeal, indicates that Appellant’s five-year mandatory sentence has

already been reversed and the matter has been remanded back to the trial

court for further proceedings. State v.

Thus, any argument

regarding the correctness or validity of the sentence imposed by the trial

court has been rendered moot. Accordingly, we do not reach the merits of

this assignment of error.

ASSIGNMENT OF ERROR III

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

trial court abused its discretion when it agreed with Appellant regarding his

entitlement to discharge after the state violated R.C. 2945.73 yet still refused

to order an evidentiary hearing. A review of the trial court’s decision

denying Appellant’s petition for postconviction relief indicates that the trial

court concluded this claim was barred by res judicata. However, the trial

court also addressed and denied this claim on its merits, determining as

follows:

“Even though it appears that the Defendant was not afforded a

preliminary hearing within ten days as required by R.C.

2945.71(C)(1), trial counsel’s performance in not requesting a

dismissal of the charge and discharge pursuant to R.C. Highland App. No. 15CA12 23

2945.73(A) was not deficient and would not have affected the

outcome of the proceedings in this case because pursuant to

R.C. 2945.73(D) such a dismissal would have been without

prejudice and was not a bar to further prosecution such as an

indictment.”

For the following reasons, we agree with the trial court and therefore cannot

conclude that the trial court erred or abused its discretion in denying this

claim without an evidentiary hearing.

{¶34} This Court has previously noted, with respect to the entitlement

to a timely preliminary hearing, as follows:

“R.C. 2945.73(A) provides that a felony charge must be

dismissed if the defendant is not accorded a preliminary hearing

within the time required by section 2945.71 of the Revised

Code. R.C. 2945.71(C)(1) states that a person against whom a

felony charge is pending must be accorded a preliminary

hearing within ten consecutive days after his arrest if the

defendant is held in jail in lieu of bail on the pending charge.[3]

Finally, we note that Crim.R. 5(B) states that ‘The preliminary

hearing shall not be held, however, if the defendant is 3 “See, also, Crim.R. 5(B) which states that if a defendant in a felony case does not waive a preliminary hearing, one shall be scheduled within a reasonable time, but in any event no later than ten consecutive days following arrest if the defendant is in custody.” State v. Kinney, supra, at FN.2. Highland App. No. 15CA12 24

indicted.’ ” State v. Kinney, 4th Dist. Ross No. 96CA2176,

, *2.

We further noted that the application of R.C. 2945.73(A) presents us with a

question of law.

{¶35} As discussed in Kinney, [t]he purpose of a preliminary hearing

is merely to determine whether sufficient evidence, i.e., probable cause,

exists to warrant the court in binding the defendant over to the grand jury.”

(internal citations omitted). Thus, we concluded, “there is no

constitutional right to a preliminary hearing once an indictment has been

returned against a defendant since a probable cause determination has

already been made by a grand jury.”

(internal citations omitted). The

Ninth District has also spoken on this issue in State v. Zaffino, 9th Dist.

Summit No. 21514,

. The Zaffino court concluded that

although Crim.R. 5(B) and R.C. 2945.73 “prescribe that a preliminary

hearing shall be held within a designated time period, the failure to provide a

preliminary hearing within the specified time periods does not automatically

entitle a defendant to a dismissal of the charges against him.” Zaffino at ¶ 9.

The Zaffino court explained that “any dismissal resulting from exceeding the

time limits of Crim.R. 5(B) or R.C. 2945.73 is not self-executing[,]” but

rather a “defendant must take ‘some timely and proper action’ to secure such Highland App. No. 15CA12 25

a dismissal.” Id. at ¶ 11; quoting State v. Wood,

,

(8th Dist. 1976). Here, Appellant was ultimately provided

a preliminary hearing before he was indicted, but it was not within the time

limits prescribed.

{¶36} However, as noted in Zaffino at ¶ 12, “[t]he Ohio Supreme

Court has indicated that no rights or defenses are lost for failure to have a

preliminary hearing.” Citing White v. Maxwell,

, 188,

(1963), certiori denied,

,

. As further

discussed in Zaffino, a subsequently issued indictment is a valid charging

instrument and need not be dismissed “merely because it was returned after

the time limits imposed on a preliminary hearing.” Zaffino at ¶ 13; citing

State v. Parker, 10th Dist. Franklin Nos. 80 AP-67 and 68,

; See also, State v. Aberle, 5th Dist. Muskingham No. CA91-33,

; citing State v. Pugh,

,

(1978) (holding that a defendant who was not accorded a timely preliminary

hearing could subsequently be indicted for the same offense for which he

was originally arrested); State v. Hayslip (May 6, 1991), 12th Dist. Clinton

No. CA90-05-012,

; citing State v. Bonarrigo,

,

(1980) and State v.

(The failure to

provide a preliminary hearing to an accused within the time limits of R.C. Highland App. No. 15CA12 26

2945.71 “is not fatal to a conviction based on a subsequent indictment for

the same offense.”).

{¶37} The Zaffino court further stated that “[t]he remedy for failure to

timely bring a person to trial is a ‘discharge,’ whereas the failure to provide

a timely preliminary hearing is a ‘dismissal’ of the charges.” Zaffino at ¶ 15.

The court further noted that the Committee Comments to R.C. 2945.73

indicate that while a failure to afford a timely trial for a misdemeanor or

felony requires a dismissal “with prejudice,” a failure to afford a timely

preliminary hearing only requires “that the case be dismissed as on a nolle

prosequi.”

Finally, Zaffino noted “Ohio courts have held that where a

charge is dismissed pursuant to a nolle prosequi, another prosecution for the

same offense is permissible.” Zaffino at ¶ 16 (internal citations omitted).

{¶38} Here, the record indicates, and the trial court found, that

Appellant was not afforded a preliminary hearing within ten days of his

arrest. His preliminary hearing was held twenty-one days after his arrest and

no objection was made at that time. Appellant was indicted by the grand

jury six days after his preliminary hearing, on September 9, 2014. Based

upon the foregoing statutory and case law, despite the fact that Appellant

was not afforded a preliminary hearing within ten days of his arrest, the

State was not barred from further prosecution by way of indictment. Thus, Highland App. No. 15CA12 27

even had counsel objected at the time of the preliminary hearing and the

charge against Appellant had been dismissed at that time, the charge would

have been dismissed without prejudice. Counsel’s performance, therefore,

was not deficient, in that such error did not affect the outcome of the

proceedings as the State was not barred from further prosecution by way of

indictment. More simply stated, counsel’s failure to object to a time

violation related to the preliminary hearing did not affect the ultimate

outcome of the proceedings, in which Appellant was convicted by a jury

pursuant to a subsequently brought indictment.

{¶39} Having determined that counsel’s error did not affect the

outcome of the proceedings or otherwise prejudice Appellant, we cannot

conclude that Appellant received ineffective assistance of trial counsel in

this regard. As such, we cannot conclude that the trial court erred or abused

its discretion in denying this claim. Accordingly, Appellant’s third

assignment of error is overruled.

ASSIGNMENT OF ERROR IV

{¶40} In his fourth assignment of error, Appellant contends that the

trial court abused its discretion when it held that his counsel did not concede

guilt despite transcript testimony to the contrary. Appellant directs this

Court to four specific instances which he claims demonstrates that his trial Highland App. No. 15CA12 28

counsel conceded his guilt. Two of the statements counsel made were

during opening statements and the other two statements were made during

closing arguments.

{¶41} Appellant points to two statements made by trial counsel during

closing arguments. First, Appellant directs us to the following statement

made by counsel: “And what he [Appellant] told you was why he possessed

the methamphetamine, or the Sudafed.” Next, Appellant complains that trial

counsel also stated during closing arguments that Appellant was not

innocent.

{¶42} Appellant also points to two statements made during opening

statements. First, Appellant directs our attention to the following statement

made by counsel: “Perhaps you’ll hear testimony that previously [sic] years

past he [Appellant] had participated in a cook.” Next, Appellant complains

that trial counsel conceded that he possessed pseudoephedrine. The trial

transcript indicates Appellant’s trial counsel stated as follows during

opening statements:

“So, again, I want you to pay attention like you did hopefully at

the very beginning when Mr. Greer started his statement and he

said to you: Mr. Clark is guilty of possession of Highland App. No. 15CA12 29

pseudoephedrine. Okay, but what’s the rest of it? Let’s not

forget that its every single element.”

{¶43} A review of the transcript reveals that Appellant’s trial counsel

did indeed make a statement indicating Appellant had possessed

methamphetamine, however, as is plainly evident from a review of the

transcript, and as found by the trial court, trial counsel immediately

corrected herself and said Sudafed. We find no error with respect to this

statement. With respect to the other statements, we conclude that

Appellant’s trial counsel did not concede guilt, and more importantly, did

not concede anything more than Appellant himself conceded when he

testified at trial. For example, in our consideration of this matter as part of

Appellant’s prior direct appeal, we noted that Appellant himself testified that

he had purchased Sudafed the day before his arrest. At trial, he denied

manufacturing methamphetamine, but conceded that he had used

methamphetamine on the day of his arrest and that he knew that Kevin

Colville, who lived at the address, cooked meth and had done so before.

Appellant further testified that his purpose in purchasing Sudafed the day

before was for the purpose of giving it to his girlfriend to obtain

methamphetamine. Importantly, Appellant also admitted he had a prior

conviction for illegal assembly. Highland App. No. 15CA12 30

{¶44} Appellant’s trial counsel was not deficient in making the

statements at issue. It was sound trial strategy to concede the uncontroverted

points, that Appellant used methamphetamine, had previously purchased and

been in possession of Sudafed, and had previously been involved in the

manufacturing of methamphetamine by virtue of his prior conviction. State

v. Wade, 4th Dist. Ross No. 14CA3435,

, ¶ 23; See also,

State v. Young, 5th Dist. Fairfield No. 30-CA-85,

, *4

(Apr. 19, 1999) (“Clearly, any concession as to appellant's guilt or as to the

credibility of witnesses constituted trial strategy, rather than ineffective

assistance of counsel”). The remarks by Appellant’s trial counsel did not

constitute a concession of guilt, but to the contrary, attempted to persuade

the jury that although he had had a previous conviction, was a meth user,

and had purchased Sudafed, he had no intent to manufacture

methamphetamine. As we explained in Wade, supra, “ ‘ “There is a

distinction which can and must be drawn between a statement or remark

which amounts to a tactical retreat and one which has been called a complete

surrender. ” ’ ” Wade at ¶ 23; quoting State v. Goodwin,

,

(1999); in turn quoting Clozza v. Murray,

(4th Cir. 1990). Thus, we conclude trial counsel's statement Highland App. No. 15CA12 31

represented a tactical retreat based on sound trial strategy rather than an

admission of guilt or surrender.

{¶45} Further, it is well settled that statements of counsel are not to be

considered as evidence. State v. Canterbury, 4th Dist. Athens No. 13CA34,

, ¶ 23. Here, the trial court instructed the jury as follows:

“Opening statements themselves are not evidence, they are simply a preview

of the claims of each party designed to help you follow evidence as it is

presented during the trial.” The trial court further instructed the jury that

“The evidence does not include the Indictment, the Opening Statements, or

Closing Arguments of counsel. The Opening Statements and closing

Arguments, as the Court has indicated previously, are designed to assist you,

but they are not evidence.” “ ‘ “A presumption always exists that the jury

has followed the instructions given to it by the trial court.” ’ ” Id.; quoting

State v. Murphy, 4th Dist. No. 09CA3311,

; in turn

quoting Pang v. Minch,

,

(1990),

paragraph four of the syllabus.

{¶46} Based upon the foregoing, we cannot conclude that trial counsel

conceded Appellant’s guilt, or that her performance was otherwise deficient.

Rather, the actions of counsel appear to have been sound trial strategy,

especially in light of the concessions Appellant himself made when he Highland App. No. 15CA12 32

testified at trial. Thus, Appellant has failed to demonstrate ineffective

assistance with respect to this claim. Accordingly, because we cannot

conclude that the trial court erred or abused its discretion in denying this

claim, Appellant’s fourth assignment of error is overruled.

CONCLUSION

{¶47} In our view, Appellant’s petition for postconviction relief did

not set forth sufficient operative facts regarding his trial counsel’s alleged

ineffectiveness to establish substantive grounds for relief. As such,

Appellant was not entitled to a hearing. In light of these conclusions, we

affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Highland App. No. 15CA12 33

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.

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.

Harsha, J. & Abele, 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.