[Cite as State v. Lacy, 2020-Ohio-1556.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                   :         OPINION

                   Plaintiff-Appellee,            :
                                                            CASE NO. 2019-A-0058
         - vs -                                   :

 JAVONTE R. LACY,                                 :

                   Defendant-Appellant.           :


 Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 CR
 00099.

 Judgment: Affirmed.


 Cecilia M. Cooper, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jefferson Street, Jefferson,
 Ohio 44047 (For Plaintiff-Appellee).

 Michael J. Goldberg and Patrick J. Sennish, The Goldberg Law Firm, LLC, Lakeside
 Place, Suite 450, 323 West Lakeside Avenue, Cleveland, Ohio 44113 (For Defendant-
 Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Javonte R. Lacy (“Mr. Lacy”), appeals from the Ashtabula County

Court of Common Pleas’ judgment entry that denied his petition for postconviction relief

after finding the matters raised in his petition barred by the doctrine of res judicata.

        {¶2}      Mr. Lacy raises two assignments of error, contending the trial court abused

its discretion by denying his petition for postconviction relief because he supported his
petition with evidence dehors the record, i.e., affidavits from his brother, Jonah (“Jonah”),

and his sister, Janea (“Janea”), that demonstrate his trial counsel was ineffective for

failing to call Jonah as a witness at trial. Thus, he argues that (1) his claim of ineffective

assistance of counsel is not barred by the doctrine of res judicata since he could not have

raised this claim on direct appeal because the affidavits are evidence dehors the record;

and (2) the affidavits were sufficient evidence dehors the record to merit an evidentiary

hearing.

       {¶3}   We disagree with Mr. Lacy’s contentions since the affidavits of Jonah and

Jenea that Mr. Lacy contends are evidence de hors the record were available and his

claims could have been raised at the time he filed his motion for new trial and/or on direct

appeal. Thus, they are barred by the doctrine of res judicata. Further, a review of the

record reveals Mr. Lacy raised the same ineffective assistance of counsel claim based on

the failure of his trial counsel to call Jonah as a witness in his motion for a new trial and

on direct appeal. The only difference is that Mr. Lacy attached his own affidavit to his

motion for a new trial. The factual claims in the affidavits are the same, which the trial

court found not credible, and which we affirmed on direct appeal in State v. Lacy, 11th

Dist. Ashtabula No. 2018-A-0007, 2018-Ohio-3249 (“Lacy I”).

       {¶4}   Finding no abuse of discretion in the trial court’s denial of Mr. Lacy’s petition

for postconviction relief since it is barred by the doctrine of res judicata, we affirm the

judgment of the Ashtabula County Court of Common Pleas.

                          Substantive and Procedural History

       {¶5}   A jury found Mr. Lacy guilty of two counts of trafficking in heroin, felonies of

the second degree, in violation of R.C. 2925.03(A)(1) and (C)(6)(e).




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       {¶6}   After trial and before sentencing, Mr. Lacy filed a motion for a new trial and

requested an oral hearing, arguing, as is pertinent to this appeal, that his former trial

counsel had a professional conflict that prevented him from effectively defending Mr. Lacy

at trial. At the time of trial, his former attorney was also representing Mr. Lacy’s brother,

Jonah, in an unrelated matter. Mr. Lacy attached an affidavit to the motion in which he

averred that Jonah had been available to testify at trial and had been prepared to testify

that he, not Mr. Lacy, sold the heroin to the confidential informant in the case.

       {¶7}   The state contended in its brief in opposition to Mr. Lacy’s motion for a new

trial that if Jonah had testified in this case, he would have either testified truthfully and

incriminated Mr. Lacy or perjured himself. Either way, effective defense counsel could

not have called him as a witness. Jonah was not a state’s witness nor a co-defendant.

       {¶8}   The trial court denied Mr. Lacy’s motion for new trial after finding Mr. Lacy’s

claim lacked credibility. There was substantial evidence presented to the jury that Mr.

Lacy sold the drugs by way of the testimony of the confidential informant, the recordings

of the drug buys, and the testimony of detectives who were surveilling the scene.

       {¶9}   Mr. Lacy filed, and the trial court denied, a motion for reconsideration and

for an evidentiary hearing.

       {¶10} The trial court sentenced Mr. Lacy to an eight-year term of incarceration and

a fine of $7,500, which included restitution.

       {¶11} Mr. Lacy subsequently appealed, raising the same issues as in his motion

for a new trial. In relevant part, Mr. Lacy argued that the trial court erred to his prejudice

in denying his motion for a new trial because of his trial counsel’s representation of his




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brother in an unrelated case and that his brother should have been allowed to testify in

Mr. Lacy’s defense.

       {¶12} In Lacy I, using the same standard for assessing the credibility of affidavits

submitted in support of petitions for postconviction relief, we found no abuse of discretion

in the trial court’s determination that Mr. Lacy’s affidavit lacked credibility. Id. at ¶19. We

reviewed that Mr. Lacy’s convictions were based on two controlled buys of heroin with a

confidential informant. While Mr. Lacy contended that his brother was willing to testify

that he, not Mr. Lacy, sold the confidential informant the drug, the evidence proved

contrary on its face. Id. ¶21.

       {¶13} Quite simply, the informant testified that Mr. Lacy sold him the heroin. Id.

at ¶22. His testimony was supported by detectives working with the Trumbull Ashtabula

Group (“TAG”) law enforcement task force, who arranged for the informant to purchase

ten grams and fourteen grams, respectively, from Mr. Lacy on two separate occasions.

Id. at ¶23.

       {¶14} The drug buys were recorded, and while Jonah spoke with Mr. Lacy on the

phone to discuss the purchase price of the drugs and was present at the second heroin

buy, the voice of the person selling the heroin was clearly identified as Mr. Lacy on both

recordings. Id. at ¶24-27.

       {¶15} Unrelated to the purchase of heroin, the informant also discussed with Mr.

Lacy dogs that Mr. Lacy was breeding. Id. at ¶26. After the buy, Mr. Lacy led the

informant to the kennels where the dogs were kept on his property. Id. One of the

detectives observing the buy saw an informant exit with a “tall thin black male” who he

identified as Mr. Lacy. Id.




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       {¶16} In determining the claimed error to be without merit, we noted that the fact

it was “Lacy’s voice on the recordings of the heroin buys is virtually irrefutable. That voice

belongs to a dog breeder and Lacy’s mother’s testimony that he bred dogs on the property

renders the claim that the informant intentionally implicated Lacy rather than his brother

in the transactions wholly implausible.” Id. at ¶29. We further noted that “assuming

arguendo, as suggested in Lacy’s affidavit, that the heroin belonged to Jonah and that in

some sense he was the principal behind the transactions, these facts would not exculpate

Lacy as the person who actually sold the heroin to the informant.” Id. at ¶30.

       {¶17} In April of 2019, Mr. Lacy filed a petition to vacate or set aside his judgment

of conviction or sentence.    Mr. Lacy claimed his counsel was deficient in three respects,

including the argument he now raises on appeal, that his trial counsel was ineffective

because he had a conflict of interest that prevented him from calling Jonah as his witness.

Attached to his petition for postconviction relief were affidavits from Jonah and their sister,

Janea. The state filed a response in opposition to Mr. Lacy’s petition.

       {¶18} The trial court overruled Mr. Lacy’s petition, finding it barred by the doctrine

of res judicata since the information contained therein was available and his claims could

have been raised at the time he filed his motion for new trial and on direct appeal. Further,

the issues related to the petition were already raised and ruled upon.

       {¶19} Mr. Lacy now appeals, and raises two assignments of error:

       {¶20} “[1.] The trial court abused its discretion in its application of the doctrine of

res judicata to Lacy’s timely filed petition for post-conviction relief (pursuant to O.R.C. §

2953.21). This error was in violation of Lacy’s rights under the Fourth, Fifth, Sixth, and




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Fourteenth Amendments to the United States Constitution and Article I, Section 1 and 14

of the Ohio Constitution.

       {¶21} “[2.] The trial court erred in denying Lacy’s post-conviction relief petition

where he presented sufficient evidence dehors the record to merit an evidentiary hearing.”

                                  Postconviction Relief

       {¶22} We review a trial court's decision on a petition for postconviction relief for

abuse of discretion. State v. Hobbs, 11th Dist. Lake No. 2010-L-139, 2011-Ohio-5106,

¶14. An abuse of discretion is the trial court's “‘failure to exercise sound, reasonable, and

legal decision-making.’” Id., quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679; State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting

Black's Law Dictionary 11 (8 Ed.Rev.2004). In postconviction cases, “the trial court's

gatekeeping function in the postconviction process is entitled to deference.” Id., quoting

Gondor at ¶51.

       {¶23} R.C. 2953.21 provides, in relevant part:

       {¶24} “(A)(1)(a) Any person who has been convicted of a criminal offense * * * 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, * * * 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 appropriate relief. The petitioner may file a supporting affidavit and other

documentary evidence in support of the claim for relief.”

       {¶25} A petition for postconviction relief does not provide a petitioner a second

opportunity to litigate his or her conviction. Hobbs at ¶17, citing State v. Hessler, 10th




                                              6
Dist. Franklin No. 01AP-1011, 2002-Ohio-3321, ¶23. Pursuant to 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.” (Emphasis added.) Id., quoting State v. D'Ambrosio, 73 Ohio St.3d 141, 143

(1995), quoting State v. Perry, 10 Ohio St.2d 175, 180 (1967).

       {¶26} To avoid dismissal of a postconviction petition on res judicata grounds,

appellant must present competent, relevant, and material evidence outside of the trial

court's record in support of his claim. Id. at ¶18, citing State v. Adams, 11th Dist. Trumbull

No. 2003-T-0064, 2005-Ohio-348, ¶39, citing State v. Cole, 2 Ohio St.3d 112 (1982).

       {¶27} Mr. Lacy contends the trial court abused its discretion and erred in denying

his petition for postconviction relief because he submitted evidence dehors the record by

way of affidavits from Jonah and Janae. A review of those affidavits, however, does not

reveal evidence dehors the record since this information was available and his claims

could have been raised in Mr. Lacy’s motion for new trial and on direct appeal. Moreover,

the affidavits do not differ or contain any new, additional evidence from Mr. Lacy’s own

affidavit, which was attached to his motion for new trial.

       {¶28} Jonah’s affidavit avers that he was represented by the same trial counsel

as Mr. Lacy; that he informed their counsel he would like to be a witness, since he “had

some information and involvement with the incidents that my brother (Javonte) now

stands convicted of”; that their attorney told Jonah he would not be allowed to testify

because it could cause him [Jonah] to be criminally indicted for involvement in Mr. Lacy’s




                                              7
case; that the attorney reviewed the evidence offered by the state and told the brothers

that Jonah’s voice was in both of the drug buy recordings (in the first, via a telephone call

discussing drug prices, and in the second, Jonah was physically present).

       {¶29} Janea’s affidavit avers that she was present at Mr. Lacy’s trial and that Mr.

Lacy’s attorney would not let Jonah testify.        This is the same information that was

contained in Mr. Lacy’s own affidavit attached to his motion for a new trial, which the trial

court denied and which we affirmed in Lacy I.

       {¶30} In his affidavit, Mr. Lacy averred that his brothers’ former counsel refused

to let Jonah testify and that his brother had important information pertaining to the crime

that would in some way exculpate Mr. Lacy.

       {¶31} There is no new additional information in Jonah’s affidavit that was not

available and could have been raised in Mr. Lacy’s motion for new trial and/or on direct

appeal.

       {¶32} As to the underlying issue Mr. Lacy is attempting to relitigate, we succinctly

stated in Lacy I that: “assuming arguendo, as suggested in Lacy’s affidavit, that the heroin

belonged to Jonah and that in some sense he was the principal behind the transactions,

these facts would not exculpate Lacy as the person who actually sold the heroin to the

informant.” Id. at ¶30.

       {¶33} Thus, we can only conclude that Mr. Lacy is attempting to relitigate an issue

that was already addressed by this court without any evidence de hors the record. All of

the information in Jonah and Janea’s affidavits was available at the time Mr. Lacy filed

his motion for new trial and on direct appeal. Thus, the doctrine of res judicata bars the

relitigation of this issue in his postconviction petition.




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       {¶34} Mr. Lacy’s first assignment of error is without merit.

                                    Evidentiary Hearing

       {¶35} In his second assignment of error, Mr. Lacy contends the trial court abused

its discretion in denying his petition for postconviction relief without holding an evidentiary

hearing. He argues that the affidavits are evidence dehors the record that warrant an

evidentiary hearing since they demonstrate Mr. Lacy’s trial counsel had a conflict of

interest in representing both Mr. Lacy and his brother at the time of Mr. Lacy’s trial.

       {¶36} “A criminal defendant attempting to challenge his conviction through a

petition for postconviction relief is not entitled to a hearing simply by filing the petition.”

State v. Vinson, 11th Dist. Lake No. 2007-L-088, 2008-Ohio-3059, ¶30, quoting State v.

Delmonico, 11th Dist. Ashtabula No. 2004-A-0033, 2005-Ohio-2882, ¶13, citing State v.

Cole, 2 Ohio St.3d 112, 113 (1982). “The trial court has a duty to ensure that the petitioner

adduces sufficient evidence to warrant a hearing.”          Id., quoting Delmonico at ¶13.

Specifically, R.C. 2953.21(D) provides, in relevant part: “Before granting a hearing on a

petition [for postconviction relief], the court shall determine whether there are substantive

grounds for relief.” Where a petitioner fails to set forth substantive grounds for relief, he

or she has failed to adduce adequate evidence to warrant a hearing. Id.

       {¶37} Further, the doctrine of res judicata precludes a defendant from raising, in

a petition for postconviction relief, an ineffective assistance of counsel claim that was or

could have been raised at trial or on direct appeal. Delmonico at ¶14, citing Cole at 113.

A claim is not barred by operation of res judicata to the extent a petitioner sets forth

competent, relevant, and material evidence de hors the record.            Id., citing State v.

Burgess, 11th Dist. Lake No. 2003-L-069, 2004-Ohio-4395, ¶11.               To be genuinely




                                              9
relevant, the evidence dehors the record must materially advance the petitioner's claim

and “meet some threshold standard of cogency.” Id., quoting State v. Schlee, 11th Dist.

Lake No. 97-L-121, 1998 WL 964291, *5 (Dec. 31, 1998). “In the absence of such a

standard, it would be too easy for the petitioner to simply attach as exhibits ‘evidence

which is only marginally significant and does not advance the petitioner's claim beyond

mere hypothesis and a desire for further discovery.’” Id., quoting State v. Sopjack, 11th

Dist. Geauga No. 96-G-2004, 1997 WL 585904, *10 (Aug. 22, 1997), citing State v.

Coleman, 1st Dist. Hamilton No. C-900811, 1993 WL 74756, *21 (Mar. 17, 1993).

       {¶38} As we have already noted, Mr. Lacy provides no information that was not

previously available and recites the same argument he raised in his motion for a new trial

and on direct appeal. Namely and for the second time, Mr. Lacy alleges his counsel’s

representation was deficient because he represented his brother in another case and

counseled both brothers that it would not be in either one’s interest to have Jonah testify

in Mr. Lacy’s case.

       {¶39} As we reviewed in Lacy I, we cannot say Mr. Lacy’s trial counsel was

ineffective for not calling Jonah as a witness. The evidence overwhelmingly establishes

that Mr. Lacy was the voice on the drug buy recording. He was identified by the TAG

detectives who were surveilling the scene and by the confidential informant. “[C]ounsel's

decision whether to call a witness falls within the rubric of trial strategy and will not be

second-guessed by a reviewing court.” (Citation omitted.) State v. Treesh, 90 Ohio St.3d

460, 490 (2001).

       {¶40} Mr. Lacy also failed to demonstrate his trial counsel had an actual conflict

in representing both Mr. Lacy and Jonah in an unrelated case.




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       {¶41} “The term ‘conflict of interest’ bespeaks a situation in which regard for one

duty tends to lead to disregard of another. The obvious example of this is representation

of clients with incompatible interests.” State v. Hope, 11th Dist. Trumbull No. 2018-T-

0053, 2019-Ohio-2174, ¶107, quoting State v. Manross, 40 Ohio St.3d 180, 182 (1988).

“A lawyer represents conflicting interests when, on behalf of one client, it is his duty to

contend for that which duty to another client requires him to oppose.” Id., quoting Manross

at 182, citing Columbus Bar Assn. v. Grelle, 14 Ohio St.2d 208, 211 (1968).

       {¶42} “Where there is a right to counsel, the Sixth Amendment to the United

States Constitution also guarantees that representation will be free from conflicts of

interest.” Id. at ¶108, quoting State v. Dillon, 74 Ohio St.3d 166, 167 (1995). To establish

a Sixth Amendment violation due to a conflict of interest, a defendant “must demonstrate

that an actual conflict of interest adversely affected his lawyer's performance.” Id., quoting

State v. Getsy, 84 Ohio St.3d 180, 187 (1998), quoting Cuyler v. Sullivan, 446 U.S. 335,

348 (1980).

       {¶43} A possible conflict of interest is insufficient. Id. at ¶109, citing Getsy at 187,

citing Cuyler at 350. “A possible conflict of interest exists where the ‘interests of the

defendants may diverge at some point so as to place the attorney under inconsistent

duties.’” Id., quoting State v. Gillard, 78 Ohio St.3d 548, 552-53 (1997), quoting Cuyler

at 356. “[A]n actual conflict exists if ‘during the course of representation, the defendants'

interests do diverge with respect to a material fact or legal issue or to a course of action.’”

Id., quoting Gillard at 553, quoting Cuyler at 356.

       {¶44} To establish an actual conflict, a defendant must show two elements. Id. at

¶110, citing Gillard at 553. First, he must demonstrate some plausible alternative defense




                                              11
strategy or tactic might have been pursued. Id. Second, he must demonstrate the

alternative defense was inherently in conflict with or not undertaken due to the attorney's

other loyalties or interests. Id.

       {¶45} Mr. Lacy failed to show a plausible alternative defense strategy that his

former trial counsel should have pursued that was inherently in conflict with his former

counsel’s other loyalties.

       {¶46} After reviewing the documentary evidence attached to Mr. Lacy’s petition,

we believe he failed to set forth relevant evidence dehors the record that would materially

advance his claim. The information contained in the affidavits of Jonah and Janea was

available at the time Mr. Lacy filed his motion for new trial and/or on direct appeal, and

the affidavits were cumulative to the argument made by Mr. Lacy that we thoroughly

addressed in Lacy I. He failed to establish that an actual conflict existed from his trial

counsel’s representation of his brother in an unrelated case and that the decision to not

call Jonah as a witness was anything other than trial strategy.

       {¶47} Therefore, the trial court did not err by failing to hold an evidentiary hearing.

       {¶48} Mr. Lacy’s second assignment of error is without merit.

       {¶49} Based on the foregoing, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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