[Cite as State v. McGowan, 2020-Ohio-1304.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                :    JUDGES:
                                              :    Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :    Hon. Patricia A. Delaney, J.
                                              :    Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
JONATHAN MCGOWAN,                             :    Case No. 2019CA00171
                                              :
        Defendant - Appellant                 :    OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court
                                                   of Common Pleas, Case No. 2018-
                                                   CR-0283(A)



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT:                                  March 31, 2020



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRARO                                    JONATHAN C. MCGOWAN, pro se
Prosecuting Attorney                               Inmate No. A751-238
Stark County, Ohio                                 Ross Correctional Institution
                                                   P.O. Box 7010
By: KATHLEEN O. TATARKSY                           Chillicothe, Ohio 45601
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2019CA00171                                                   2


Baldwin, J.

       {¶1}   Jonathan C. McGowan appeals the denial of his motion for postconviction

relief. Appellee is the State of Ohio.

                        STATEMENT OF FACTS AND THE CASE

       {¶2}   On February 20, 2018, the Stark County Grand Jury secretly indicted

McGowan on three counts of attempt to commit murder, in violation of R.C. 2903.02(A),

with repeat violent offender and firearm specifications; three counts of felonious assault,

in violation of R.C. 2903.11(A)(2), with repeat violent offender and firearm specifications;

two counts of domestic violence, in violation of R.C. 2919.25(A); having weapons while

under disability, in violation of R.C. 2923.13(A)(2); discharge of a firearm on or near

prohibited premises, in violation of R.C. 2923.162(A)(3),(C)(1); improperly handling

firearms in a motor vehicle, in violation of R.C. 2923.16(A); child endangering, in violation

of R.C. 2919.22(A); and menacing by stalking, in violation of R.C. 2903.211(A)(1),

(B)(2)(b).

       {¶3}   McGowan appeared before the trial court on March 2, 2018, and entered a

plea of not guilty. He filed a motion to suppress on March 20, 2018, arguing the trooper

failed to advise him of his Miranda rights when he was detained in Summit County Jail on

an unrelated charge. The trial court denied the motion to suppress and the matter

proceeded to jury trial on April 30, 2018. The repeat violent offender specifications were

tried to the bench.

       {¶4}   A comprehensive review of the facts and the case from the underlying trial

is unnecessary for the resolution of this appeal; we find the following summary sufficient.
Stark County, Case No. 2019CA00171                                                 3


      {¶5}   At the trial of this matter, the state called several witnesses as well as an

expert to establish that McGowan was distraught and angered by Lakisha McGowan’s

plan to take their son and move out of state. The facts offered by the state demonstrated

that McGowan recruited Angela Briere to help him find Lakisha and his son. Briere drove

a borrowed car while McGowan rode in the passenger seat. McGowan saw the U-Haul

that Lakisha and McGowan’s son were using to move out of state on State Route 77 and

he told Briere to drive beside the vehicle. Once parallel with the U-Haul, McGowan fired

several shots into its cabin with a handgun and instructed Briere to drive off. The balance

of the state’s case revealed how McGowan attempted to conceal the weapon, how it was

discovered and the testimony of the witnesses to the pertinent events.

      {¶6}   McGowan did not call any witnesses on his behalf, and moved for a Crim.

R. 29 acquittal which the trial court denied. The jury found McGowan guilty of all counts.

      {¶7}   The trial court conducted a sentencing hearing on May 7, 2018, and

imposed an aggregate prison term of 52 years. McGowan filed an appeal asserting four

assignments of error:

      I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

      SUPPRESS THE JAILHOUSE INTERROGATION AND APPELLANT WAS

      PREJUDICED BY THE STATEMENT'S ADMISSION AT TRIAL.

      II. THE COURT ERRED BY NOT ALLOWING APPELLANT TO ADDRESS HIS

      DISPUTES WITH TRIAL COUNSEL FOR THE RECORD.

      III. INSUFFICIENT EVIDENCE WAS PRESENTED AT TRIAL TO EACH

      ELEMENT OF THE CRIMES ALLEGED AND THE COURT ERRED IN DENYING

      APPELLANT'S RULE 29 MOTION AND SUBMITTING THE CASE TO THE JURY.
Stark County, Case No. 2019CA00171                                                     4


      IV. THE MANIFEST WEIGHT OF THE EVIDENCE AT TRIAL SUPPORTED

      ACQUITTAL AND THE JURY FUNDAMENTALLY LOST ITS WAY IN

      RETURNING GUILTY VERDICTS.

      {¶8}   On June 25, 2019 we overruled the assignments of error and affirmed the

decision of the trial court. State v. McGowan, 5th Dist. Stark No. 2018CA00075, 2019-

Ohio-2554.

                     PETITION FOR POST CONVICTION RELIEF

      {¶9}   On June 14, 2019 McGowan filed a petition for post-conviction relief asking

that his conviction be vacated on three grounds:

      1. Ineffective assistance of counsel for failure to file a motion to suppress;

      2. Withholding of exculpatory evidence in violation of Brady v. Maryland

      (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215;

      3. Failure to allow him to confront witnesses against him.

      {¶10} The state opposed the petition on multiple grounds, including an assertion

that the claims were barred by res judicata. On October 19, 2019, the trial court denied

the petition, concluding that McGowan’s claims were barred by res judicata and that he

did not receive ineffective assistance of counsel. McGowan filed a timely appeal and

submitted three assignments of error:

      {¶11} “I. INEFFECTIVE ASSISTANCE OF COUNSEL. APPELLANT WAS

PREJUDICED BY THE ADMISSION OF THE FIREARM.”

      {¶12} “II. BRADY MATERIAL: THE VIOLATION OF APPELLANT’S DUE

PROCESS CLAUSE AND PREJUDICE WITH THE HOLD OF INFORMATION THAT

FAVORABLE TO THE APPELLANT. (SIC)”
Stark County, Case No. 2019CA00171                                                     5


       {¶13} “III. VIOLATION OF APPELLANT VI AMENDMENT RIGHT. NOT

ALLOWING APPELLANT TO CONFRONT ALL VICTIMS NOR CALL WITNESSES IN

HIS FAVOR. THAT THE VIOLATION OF APPELLANT CONFRONTATION CLAUSE OF

THE SIXTH AMENDMENT. (SIC)”

                                 STANDARD OF REVIEW

       {¶14} When a defendant files a post-conviction petition pursuant to R.C. 2953.21,

the trial court must grant an evidentiary hearing unless it determines the files and records

of the case show the petitioner is not entitled to relief. R.C. 2953.21(F). A trial court may

also dismiss a petition for post-conviction relief without holding a hearing when the

doctrine of res judicata bars the claims raised in the petition. State v. Szefcyk, 77 Ohio

St.3d 93, 671 N.E.2d 233. Under the doctrine of res judicata, a defendant who was

represented by counsel is barred from raising an issue in a petition for post-conviction

relief if the defendant raised or could have raised the issue at trial or on direct appeal. Id.

at 95. State v. Weaver, 5th Dist. No. CT2017-0075, 2018-Ohio-2509, 114 N.E.3d 766, ¶

17 appeal not allowed, 153 Ohio St.3d 1504, 2018-Ohio-4285, 109 N.E.3d 1260.

       {¶15} In this case, the trial court found the claims raised in the petition were barred

by res judicata and dismissed the petition without a hearing. This is a question of law, and

therefore we review the decision de novo. Id, at ¶ 20; State v. Crank, 5th Dist. Stark No.

2016CA00042, 2016-Ohio-7203, ¶ 12.

                                         ANALYSIS

                                              I.

       {¶16} In his first assignment of error, McGowan claims that his counsel was

ineffective for refusing to file a motion to suppress the firearm due to a discrepancy
Stark County, Case No. 2019CA00171                                                 6


between the serial number on the weapon and the serial number on a report filed by the

investigating officer.

       {¶17} The serial number discrepancy was addressed in the trial court by the officer

responsible for the error. Officer Daley photographed the Taurus .380 with a serial

number of 66455C, State's Exh. 20. Daley incorrectly recorded serial number on the

inventory and reported the first number as 5 instead of 6. Tr. II, 306, 354. The weapon

was properly identified and admitted as evidence. McGowan was aware of the conflict in

the serial numbers and had the opportunity to address this alleged error in his direct

appeal without resort to evidence outside the record and, therefore, the claim is barred

by res judicata. State v. Wilson, 5th Dist. Delaware No. 18CAA040035, 2018-Ohio-5167,

¶ 64 appeal not allowed, 155 Ohio St.3d 1422, 2019-Ohio-1421, 120 N.E.3d 868.

       {¶18} If, arguendo, res judicata did not apply, the outcome would remain

unchanged. An ineffective assistance of counsel claim will be rejected when counsel's

failure to file a suppression motion “was a tactical decision, there was no reasonable

probability of success, or there was no prejudice,” or where counsel could have

reasonably decided that filing such a motion would have been futile, even if there is

evidence in the record to support such a motion.” State v. White, 4th Dist. Washington

Nos. 17CA10& 17CA11, 2018-Ohio-18, ¶ 39, quoting State v. Nields, 93 Ohio St.3d 6,

2001-Ohio-1291, 752 N.E.2d 859. State v. Phelps, 5th Dist. Delaware No. 18 CAA 02

0016, 2018-Ohio-4738, ¶ 13. In the record before us, McGowan has failed to provide any

evidence that there was any probability of success and we find that it was reasonable for

counsel to decide that filing such a motion would have been futile. State v. Remillard, 5th
Stark County, Case No. 2019CA00171                                                   7


Dist. Knox No. 18CA16, 2019-Ohio-3545, ¶ 35, appeal not allowed, 157 Ohio St.3d 1524,

2019-Ohio-5327, 137 N.E.3d 107, (2019)

       {¶19} Appellant’s first assignment of error is overruled.

                                             II.

       {¶20} In his second assignment of error, McGowan alleges the appellee

committed a Brady violation by failing to provide him the results of a warrant for cell phone

records. McGowan now claims, for the first time, that he was out of town when the

shooting occurred. In support of his position, he has attached the affidavit of the officer

who sought the warrant for the records as well as a document with columns of numbers

which he claims demonstrates that he was in Akron at the time the offense occurred. He

does not include in his brief or in any of the attachments how or when he acquired these

documents.

       {¶21} We hold that this issue is also barred by the doctrine of res judicata.

McGowan is attempting to submit evidence of a telephone call he claims he made, from

Akron, to a third party who has not been identified. This information was in his possession

at trial and for reasons he has not disclosed, it was not presented at trial. “Under the

doctrine of res judicata, a final judgment of conviction bars a convicted defendant who

was represented by counsel 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 **234 the defendant at the trial, which resulted in that

judgment of conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio

St.3d 93, 1996-Ohio-337, 671 N.E.2d 233 (1996) (Citations omitted). The trial court was

correct to conclude that it is now barred by res judicata.
Stark County, Case No. 2019CA00171                                                  8


       {¶22} Even under Brady v. Maryland, supra, the result would remain unchanged.

In that case, the United States Supreme Court held that “suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” Brady, 373 U.S. at 87; See State v. Treesh (2001), 90 Ohio St.3d

460, 475, 739 N.E.2d 749. “In determining whether the prosecution improperly

suppressed evidence favorable to an accused, such evidence shall be deemed material

only if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. A ‘reasonable probability’

is a probability sufficient to undermine confidence in the outcome.” State v. Johnston

(1988), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph five of the syllabus (following United

States v. Bagley (1985), 473 U.S. 667, 105 S.Ct. 3375, 87L.Ed.2d 481).

       {¶23} McGowan has presented a document that is allegedly a response to a

subpoena for cell phone records and his unsworn statement that it reflects that he was in

Akron at the time of the offense, but he offers no cogent support for such a conclusion.

“Evidence presented outside the record must meet some threshold standard of cogency;

otherwise it would be too easy to defeat the holding of State v. Perry, 10 Ohio St.2d 175,

226 N.E.2d 104 (1967) by simply attaching 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. State v. Weaver, 5th Dist. No. CT2017-0075, 2018-Ohio-

2509, 114 N.E.3d 766, ¶ 26 appeal not allowed, 153 Ohio St.3d 1504, 2018-Ohio-4285,

109 N.E.3d 1260, ¶ 26 (2018), quoting State v. Lawson, 103 Ohio App. 3d 307, 315 659

N.E.2d 362 (12th Dist. Clermont 1995). The document McGowan offers in support of his
Stark County, Case No. 2019CA00171                                                  9


argument is incomprehensible and we cannot accept his speculation that it supports an

alibi that was not offered at trial, namely that he was using his phone in Akron at the time

of the offense. Considering the evidence that was presented by the witnesses at trial, we

cannot conclude that there was a reasonable probability that, had the evidence been

disclosed to the defense, and we are assuming that it was not, the result of the proceeding

would have been different.

       {¶24} The second assignment of error is denied.

                                                III.

       {¶25} In his third assignment of error, McGowan argues that he was prevented

from confronting the victims and was unable to call witnesses in his favor. In support he

offers the affidavit of Lakisha Rosser/McGowan who describes her knowledge of the

incident and her rational for not testifying.

       {¶26} McGowan’s arguments regarding the presentation of witnesses, including

the victims, were addressed in the prior direct appeal. During that appeal, he referenced

the concern he expressed at trial that “his witnesses would not be called,” and “how

certain counts could go to the jury when the victims *** had not appeared or testified.”

He questioned whether “he had a right to confront Ms. McGowan and Jonathan Jr.”

(Appellant’s Brief, p. 12, State v. McGowan, 5th Dist. Stark No. 2018CA00075, 2019-

Ohio-2554).

       {¶27} McGowan was represented at trial and in his direct appeal and his

comments at trial as emphasized in his appellate brief demonstrate that the allegations

of the third assignment of error were raised at trial and could have been raised at the

direct appeal. Those arguments, therefore, are barred by res judicata. Szefcyk, supra.
Stark County, Case No. 2019CA00171                                                10


      {¶28} Appellant’s third assignment of error is denied and the decision of the Stark

County Court of Common Pleas is affirmed.


By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
