[Cite as State v. Kiley, 2013-Ohio-634.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                         C.A. No.      12CA010254

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
THOMAS E. KILEY                                       COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   08CR075579

                                  DECISION AND JOURNAL ENTRY

Dated: February 25, 2013



        BELFANCE, Presiding Judge.

        {¶1}     Defendant-Appellant Thomas Kiley appeals from the decision of the Lorain

County Court of Common Pleas denying his petition for postconviction relief. For the reasons

set forth below, we affirm.

                                                 I.

        {¶2}     A jury found Mr. Kiley guilty of rape, kidnapping, and domestic violence in 2008.

Mr. Kiley was sentenced to a total of five years in prison. He appealed, and this Court dismissed

his appeal because his sentence contained an improper post-release control notification. We

vacated the trial court’s sentencing entry and remanded the matter for a new sentencing hearing.

On December 15, 2009, Mr. Kiley, through counsel, filed a petition for postconviction relief. On

December 23, 2009, the trial court dismissed Mr. Kiley’s petition concluding that, because his

sentence was void, there was no conviction upon which to request relief. That same day, a new

sentencing entry was journalized. Mr. Kiley again appealed, challenging both his conviction and
                                                  2


the dismissal of his petition for postconviction relief.        See State v. Kiley, 9th Dist. No.

10CA009757, 2011-Ohio-1156. We affirmed his conviction but concluded that “this Court

should not have vacated Mr. Kiley’s sentence[ and] * * * remand[ed] th[e] matter for

consideration of his petition for post-conviction relief.” Id. at ¶ 34.

       {¶3}    Mr. Kiley filed an amended petition for postconviction relief which included

several additional affidavits and three new arguments.1 The trial court denied Mr. Kiley’s

petition without a hearing and concluded that all Mr. Kiley’s arguments were barred by res

judicata. Mr. Kiley has appealed, pro se, raising three assignments of error for our review.

                                                  II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED IT[S] DISCRETION BY DENYING MR.
       KILEY’S PETITION FOR POST CONVICTION RELIEF BASED ON JUROR
       MISCONDUCT OF TALKING ON THEIR CELL PHONES ABOUT THE
       CASE AND AMONGST THEMSELVES DURING TRIAL IN VIOLATION OF
       THE OHIO AND UNITED STATES CONSTITUTIONS[.]

                                   ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED IT[S] DISCRETION BY DENYING MR.
       KILEY’S PETITION FOR POST CONVICTION RELIEF THAT CONFIRMED
       HE WAS CONVICTED WITH THE USE OF PERJURED TESTIMONY IN
       VIOLATION OF THE OHIO AND UNITED STATES CONSTITUTIONS[.]

                                  ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED IT[S] DISCRETION BY DENYING MR.
       KILEY’S PETITION FOR POST CONVICTION RELIEF BASED ON
       INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE OHIO
       AND UNITED STATES CONSTITUTIONS[.]



       1
          The record also indicates that Mr. Kiley filed an additional petition for postconviction
relief in 2010. However, that document is not part of the record on appeal. Nonetheless, from
the trial court’s entry ruling on the instant matter it does not appear that the trial court was
considering the 2010 filing in its ruling, nor does it appear that this appeal involves any
challenges related to that document.
                                                3


       {¶4}    Mr. Kiley asserts in his three assignments of error that the trial court abused its

discretion in denying his petition for postconviction relief based upon his three new arguments

contained in his amended petition and accompanying evidentiary materials. He does not appear

to challenge the trial court’s conclusion that his original four arguments were barred by res

judicata because they were identical to the arguments he made in his prior appeal.

       {¶5}    We review a trial court’s decision denying a petition for post-conviction relief for

an abuse of discretion. State v. Wesson, 9th Dist. No. 25874, 2012-Ohio-4495, ¶ 10. Petitions

for postconviction relief are governed by R .C. 2953.21, which provides in pertinent part:

       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.

       {¶6}    Before granting a hearing on a petition for postconviction relief, “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 * * *.”

R.C. 2953.21(C). If the trial court finds no grounds for granting relief, it must make findings of

fact and conclusions of law supporting its denial of relief. R.C. 2953.21(G).

       The petitioner is not automatically entitled to a hearing on the petition. The trial
       court serves a gatekeeping function in postconviction relief cases—it determines
       whether the petitioner will even receive a hearing. A trial court may dismiss a
       petition without a hearing where the petition, the supporting affidavits, the
       documentary evidence, the files, and the records do not demonstrate that
       petitioner set forth sufficient operative facts to establish substantive grounds for
       relief. The gatekeeping function includes the trial court’s decision regarding the
       sufficiency of the facts set forth by the petitioner and the credibility of the
                                                 4


       affidavits submitted. On appeal, a court reviewing the trial court’s decision in
       regard to its gatekeeping function should apply an abuse-of-discretion standard.

(Internal quotations and citations omitted.) Wesson at ¶ 9.

       {¶7}    “Even assuming a defendant is able to state a cognizable claim of a constitutional

error, a trial court may deny a defendant’s petition for postconviction relief if the claim[] raised

in the petition is barred by the doctrine of res judicata.” (Internal quotations omitted.) State v.

Smith, 9th Dist. No. 02CA0068, 2003-Ohio-4264, ¶ 10. “Under the doctrine of res judicata,

constitutional issues cannot be considered in postconviction proceedings under R.C. 2953.21 et

seq. where they have already been or could have already been litigated by the convicted

defendant, while represented by counsel, either before conviction or on direct appeal.” State v.

Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, ¶ 19.       “Res judicata applies if the petition for post-

conviction relief does not include any material dehors the record in support of the claim for

relief.” (Internal quotations and citations omitted.) State v. Fry, 9th Dist. No. 26121, 2012-

Ohio-2602, ¶ 4. To defeat the application of res judicata, the evidence presented from outside

the record “must demonstrate that the claims advanced in the petition could not have been fairly

determined on direct appeal based on the original trial court record without resorting to evidence

outside the record.” (Internal quotations and citation omitted.) Id.

       {¶8}    In his amended petition, Mr. Kiley asserted that he was entitled to postconviction

relief because of (1) alleged juror misconduct concerning jurors talking on their cell phones

about the case; (2) the failure to call witnesses who could exonerate him; and (3) ineffective

assistance of counsel for failing to investigate and call witnesses and for failing to object to the

juror misconduct or bring it to the court’s attention. Mr. Kiley submitted five affidavits in

support of his amended petition.
                                                  5


       {¶9}    With respect to Mr. Kiley’s assertion of juror misconduct, the trial court

concluded that, because the affidavits he presented make it clear that he was aware of the issue

prior to his direct appeal, that argument was barred by res judicata.           With respect to the

arguments related to the failure to call witnesses and Mr. Kiley’s claim of ineffective assistance

of counsel, the trial court concluded that those arguments could have been raised on direct appeal

and, thus, were barred by res judicata as well. We cannot say that Mr. Kiley’s arguments are

barred by res judicata.

       {¶10} Given that the issues of the alleged juror misconduct and the failure to call

witnesses were not discussed at trial, we fail to see how Mr. Kiley could have raised these issues

on direct appeal as doing so would involve information outside the record. See State v. Garfield,

9th Dist. No. 09CA009741, 2011-Ohio-2606, ¶ 59. The fact that Mr. Kiley was aware of the

issues at the time of his direct appeal does not mean that he could successfully have raised the

issues in his direct appeal when he had no evidence in the record to support his assertions. See

id. Nonetheless, “this Court will not reverse a correct judgment merely because of a flaw in the

trial court’s analysis.” Wesson, 2012-Ohio-4495, at ¶ 31. Because this Court concludes that Mr.

Kiley failed to “set forth sufficient operative facts to establish substantive grounds for relief[]” to

warrant a hearing, we conclude the trial court did not err in denying Mr. Kiley’s petition without

a hearing. (Internal quotations and citation omitted.) Id. at ¶ 9.

       {¶11} Mr. Kiley’s supporting affidavits do not present sufficient facts to support his

claims for relief. Instead, the affidavits are conclusory in nature and lack specific information to

support Mr. Kiley’s assertions. See State v. Calhoun, 86 Ohio St.3d 279, 284 (1999); see also

State v. Clutter, 9th Dist. No. 24096, 2008-Ohio-3954, ¶ 11. With respect to Mr. Kiley’s

argument concerning alleged juror misconduct, the affiants only assert that the jurors were
                                                 6


observed talking on their cell phones about Mr. Kiley’s case. There are no facts in the affidavits

evidencing the content of the conversations or facts evidencing that Mr. Kiley was prejudiced by

what was said. See Calhoun, 86 Ohio St.3d at 283 (“[I]t is not unreasonable to require the

defendant to show in his petition for postconviction relief that such errors resulted in prejudice

before a hearing is scheduled.”).

       {¶12} With respect to Mr. Kiley’s assertion that he was entitled to postconviction relief

based upon a failure to call certain witnesses, the affidavits related to that argument also do not

allege sufficient facts to warrant a hearing. The affidavits of the proposed witnesses simply

indicate that they have information that will exonerate Mr. Kiley but do not indicate what

information they have or how it would exonerate him. Further, to the extent that the affidavit of

one proposed witness does offer what evidence she would testify to, there is nothing in the

affidavit which indicates that that evidence would have materially affected the outcome of Mr.

Kiley’s trial. See id. at 283. It appears the witness would testify to the manner in which Mr.

Kiley left the crime scene in his truck. It is not apparent how the inclusion of this evidence

would have altered the result of Mr. Kiley’s trial.

       {¶13} As for Mr. Kiley’s argument that he is entitled relief based upon trial counsel’s

failure to raise the issue of juror misconduct and trial counsel’s failure to fully investigate and

call certain witnesses, that argument is essentially founded upon the merits of Mr. Kiley’s other

two arguments. As noted above Mr. Kiley’s evidentiary materials do not contain sufficient facts

to establish substantive grounds for relief. Wesson, 2012-Ohio-4495, at ¶ 9. Mr. Kiley has not

presented sufficient facts demonstrating that he was prejudiced by his trial counsel’s failures to

object or call witnesses. See State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 62. Thus,
                                                 7


Mr. Kiley has not demonstrated that the trial court abused its discretion in denying his petition

without a hearing. Accordingly, Mr. Kiley’s three assignments of error are overruled.

                                                III.

       {¶14} In light of the foregoing, we affirm the judgment of the Lorain County Court of

Common Pleas.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



WHITMORE, J.
CONCURS.
                                                  8



CARR, J.
DISSENTING.

       {¶15} I respectfully dissent. In light of this Court’s determination that the issues raised

by Mr. Kiley’s petition were not barred by the doctrine of res judicata, I would remand this

matter to the trial court to consider those issues and render a judgment in the first instance.


APPEARANCES:

THOMAS KILEY, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
