[Cite as State v. Holmes, 2011-Ohio-5848.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96479




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   DESMON HOLMES
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-502442

        BEFORE: S. Gallagher, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: November 10, 2011
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: T. Allan Regas
         Kristen L. Sobieski
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant Desmon Holmes appeals the decision of the trial court in

Cuyahoga County Court of Common Pleas Case No. CR-502442 in which the trial court

dismissed Holmes’s petition for postconviction relief without an evidentiary hearing.

For the following reasons, we affirm.

      {¶ 2} On July 17, 2008, a jury found Holmes guilty of rape and kidnapping, and

the trial court sentenced him to a ten-year term of imprisonment.    Holmes directly

appealed his conviction in State v. Holmes, Cuyahoga App. No. 91948, 2009-Ohio-3736
(“Holmes I”).    Holmes included an assignment of error challenging the efficacy of his

trial counsel in Holmes I, because of his trial counsel’s alleged failure to subpoena two

EMS technicians who would have testified that the victim related a different version of

the incident than the one related at trial.   This court overruled his assignment of error,

holding that trial counsel made a tactical decision to introduce the inconsistencies through

the EMS report rather than through live testimony. Id. at ¶ 44.

       {¶ 3} Subsequent to his appeal, Holmes timely filed a petition for postconviction

relief pursuant to R.C. 2953.21, arguing that his trial counsel rendered ineffective

assistance by failing to retain an expert to review the state’s expert report from the Bureau

of Criminal Investigations (“BCI”) and medical records from the victim’s treating doctor.

 The trial court dismissed Holmes’s petition without hearing based on the doctrine of res

judicata.   Holmes timely appealed the decision, raising one assignment of error, which

provides as follows: “[Holmes] was denied due process of law when the court dismissed

his petition for post-conviction relief based upon a flawed analysis of res judicata.”

Holmes argues that the trial court improperly applied the doctrine of res judicata because

the grounds for granting relief upon Holmes’s petition for postconviction relief were

based on evidence outside the trial record. His argument is without merit.

       {¶ 4} A trial court’s decision to deny a postconviction petition without a hearing

is reviewed under the abuse of discretion standard. State v. Abdussatar, Cuyahoga App.

No. 92439, 2009-Ohio-5232, at ¶ 15.           The term “abuse of discretion” means “an

unreasonable, arbitrary, or unconscionable action.” State ex rel. Doe v. Smith, 123 Ohio
St.3d 44, 47, 2009-Ohio-4149, 914 N.E.2d 159. It is “a discretion exercised to an end or

purpose not justified by, and clearly against reason and evidence.”            (Citations and

quotations omitted.) State v. Hancock, 108 Ohio St.3d 57, 77, 2006-Ohio-160, 840

N.E.2d 1032.

       {¶ 5} R.C. 2953.21 (A)(1)(a), governing postconviction petitions, provides the

following:

       “Any person who has been convicted of a criminal offense * * * 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.”

       {¶ 6} The trial court must determine whether there are substantive grounds for relief,

when considering the supporting affidavit and other documentary evidence filed in support of

the claim, prior to setting the matter for hearing. R.C. 2953.21(C) and (E).

       {¶ 7} Trial courts may dismiss a petition for postconviction relief without hearing if the

petitioner fails to set out sufficient operative facts to establish substantive grounds for relief and

the operation of res judicata prohibits the claims advanced in the petition. State v. Betts,

Cuyahoga App. No. 92780, 2010-Ohio-438, ¶ 26-27.

       {¶ 8} “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.” State v. Perry (1967), 10 Ohio St.2d

175, 180, 226 N.E.2d 104. An exception exists, however, when a petitioner presents

competent, relevant, and material evidence outside the record that was not in existence

and available to the petitioner in time to support the direct appeal.                    Betts,

2010-Ohio-438, ¶ 25; State v. Lawson (1995), 103 Ohio App.3d 307, 315, 659 N.E.2d

362.

       {¶ 9} In Holmes I, Holmes raised as an assignment of error a claim for ineffective

assistance of counsel.     Holmes is prohibited from relitigating, in a postconviction

proceeding, any claim or defense that could have been raised in the direct appeal. Betts,

2010-Ohio-438, ¶ 25.        Therefore, the dispositive issue is whether the evidence

underlying Holmes’s claim of ineffective assistance of counsel, raised in his petition, was

in existence and available in time to support the direct appeal in Holmes I.

       {¶ 10} Holmes’s sole contention in his petition for postconviction relief is that his

trial counsel rendered ineffective assistance by failing to retain a defense expert to review

the state’s expert report from the BCI and medical records from the victim’s treating

hospital and instead solely relied on cross-examination to challenge the prosecution’s

expert evidence.    Holmes could have included this ineffective assistance of counsel

claim with the one raised on direct appeal.    The fact underlying the claim, that no expert

testified for the defense, was available at the time of his direct appeal.     In light of that,

he is precluded from raising the issue in his petition for postconviction relief.
       {¶ 11} We find that Holmes did not set forth sufficient operative facts to establish

substantive grounds for relief or any reason to avoid the application of res judicata.   The

trial court did not therefore err by dismissing Holmes’s petition for postconviction relief

without holding a hearing. Holmes’s sole assignment of error is overruled.

       {¶ 12} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from 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 common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
