[Cite as State v. Meyer, 2018-Ohio-3009.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2017-12-063

                                                   :           OPINION
    - vs -                                                      7/30/2018
                                                   :

RONALD MEYER,                                      :

        Defendant-Appellant.                       :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2016 CR 00250



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Ronald Meyer, #A731292, Madison Correctional Institution, P.O. Box 740, London, Ohio
43140-0740, defendant-appellant, pro se



        RINGLAND, J.

        {¶ 1} Petitioner-appellant, Ronald Meyer, appeals from the decision of the Clermont

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

detailed below, we affirm.

        {¶ 2} Meyer entered a guilty plea to one count of illegal manufacture of drugs in

violation of R.C. 2925.04(A), a first-degree felony, and one count of corrupting another with
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drugs in violation of R.C. 2925.02(A)(5), also a first-degree felony. The bill of particulars

provided factual background of the offense:

              Specifically, the co-defendant gave birth to a child on 3/28/16 in
              the bathtub at 4232 Clough Lane; Cincinnati, Ohio 45245. Prior
              to giving birth, the defendant manufactured methamphetamine at
              the residence where the defendant [sic] and her newborn baby
              were living.         The defendant and co-defendant used
              methamphetamine prior to the child's birth, and continued to use
              methamphetamine which the co-defendant passed on to her
              newborn baby when she breastfed him. The defendant would
              provide methamphetamine to the co-defendant after
              manufacturing it. This occurred prior to the child's birth when the
              co-defendant was pregnant, and subsequent to the child's birth.
              A search warrant for the premises was obtained, and officers
              uncovered pseudoephedrine pills, and lithium battery strips along
              with other components used to manufacture methamphetamine.
              Officers also discovered a pipe and cut straws that contained
              methamphetamine. Both the defendant and co-defendant
              admitted to consuming methamphetamine during the stated
              timeframe.        The defendant admitted to manufacturing
              methamphetamine inside the residence.

       {¶ 3} The trial court sentenced Meyer to a six-year prison term for manufacturing

drugs and a consecutive three-year prison term for corrupting for an aggregate prison term of

nine years. Meyer did not file a direct appeal challenging either his conviction or sentence.

       {¶ 4} Approximately 11 months later, Meyer filed a pro se motion for postconviction

relief. The trial court denied Meyer's motion for postconviction relief. Meyer now appeals,

raising four assignments of error for review.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR POST-

CONVICTION RELIEF CITING RES JUDICATA WHERE DEFENDANT WAS PREJUDICED

BY A VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

       {¶ 7} Assignment of Error No. 2:

       {¶ 8} THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW AND

COUNSEL WAS INEFFECTIVE IN ALLOWING DEFENDANT TO ACCEPT A GUILTY PLEA
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WHICH LACKED FACTUAL BASIS AND WAS CONTRARY TO LAW.

       {¶ 9} Assignment of Error No. 3:

       {¶ 10} COUNSEL WAS INNEFFECTIVE [sic] FOR ALLOWING DEFENDANT TO

ACCEPT A GUILTY PLEA THAT WAS CONTRARY TO LAW AND ENTERING INTO AN

OPEN SENTENCE AGREEMENT.

       {¶ 11} Assignment of Error No. 4:

       {¶ 12} TRIAL COURT ABUSED IT'S [sic] DISCRETION BY FAILURE TO CONDUCT

AN EVIDENTUARY [sic] HEARING AND APPOINT COUNSEL IN VIOLATION OF PLAIN

ERROR.

       {¶ 13} We will address Meyer's assignments of error together.                 In his four

assignments of error, Meyer argues the trial court erred by denying his petition for

postconviction relief. We find no merit to Meyer's argument.

       {¶ 14} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, a collateral civil attack on a criminal judgment. State v. Berrien, 12th Dist. Clinton No.

CA2015-02-004, 2015-Ohio-4450, ¶ 8. Under 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 sufficient operative facts to establish substantive

grounds for relief." State v. Calhoun, 86 Ohio St.3d 279 (1999), paragraph two of the

syllabus.

       {¶ 15} "In reviewing an appeal of postconviction relief proceedings, this court applies

an abuse of discretion standard." State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and

CA2012-10-106, 2013-Ohio-1490, ¶ 10. The term "abuse of discretion" connotes more than

an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable." State v. Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-
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2394, ¶ 34.

       {¶ 16} In a written decision, the trial court denied Meyer's petition for postconviction

relief on the basis of res judicata. Following review, we find no error in the trial court's

decision. 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 the defendant at the trial, which resulted in that

judgment of conviction, or on an appeal from that judgment. State v. Elder, 12th Dist. Butler

No. CA2013-01-008, 2013-Ohio-3574, ¶ 7; State v. Snead, 12th Dist. Clermont No. CA2014-

01-014, 2014-Ohio-2895, ¶ 18.

       {¶ 17} There is an exception to the application of res judicata where the petitioner

presents competent, relevant, and material evidence outside the record that did not exist and

was, therefore, unavailable at the time he filed his direct appeal. State v. Blankenburg, 12th

Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 11. However, for this exception to apply,

the evidence outside the record must meet some threshold standard of cogency, must be

genuinely relevant, and must materially advance a petitioner's claim that there has been a

denial or infringement of his constitutional rights. Id.

       {¶ 18} Meyer raises a litany of complaints, arguing that he received ineffective

assistance of counsel, and also argues that his guilty plea lacked any factual basis and he

should have received less prison time or been provided with an agreed upon sentence.

Meyer complains that his counsel "did little more than to persuade him to plead guilty and

hope for the best" and his counsel "convinced him to agree to plea [sic] guilty where there

was no agreed upon sentencing terms of years of incarceration." Because these arguments

could have been raised on direct appeal, we find that Meyer's claims are now barred by res

judicata.
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       {¶ 19} Meyer's claims that the state failed to prove its case beyond a reasonable

doubt are similarly without merit, as "the effect of a guilty plea" is a "complete admission of

the defendant's guilt." State v. Middleton, 12th Dist. Butler No. CA2010-07-173, 2011-Ohio-

1631, ¶ 8. Though Meyer also claims that his convictions lacked a "factual basis," we note

the bill of particulars sets forth the criminal conduct that the state would have sought to prove

at trial had Meyer not entered into a guilty plea. Furthermore, we find that no exception to the

application of res judicata applies in the present case, as Meyer does not present any

competent, relevant, or material evidence to support his claims in this matter. As a result, we

find Meyer's four assignments of error to be without merit and they are hereby overruled.

       {¶ 20} Judgment affirmed.


       S. POWELL, P.J., concurs.


       PIPER, J., concurs separately.


       PIPER, J., concurring separately.

       {¶ 21} I concur with the majority's application of res judicata and to affirming the

judgment of the trial court. However, I disagree with an analysis that suggests we need to

examine the factual content of the bill of particulars as to what the state would have proved

had Meyer not pled guilty.

       {¶ 22} Meyer did not file a direct appeal indicating the trial court's colloquoy was in

any way constitutionally defective. Therefore, we presume Meyer was informed before his

guilty plea was accepted, that by pleading guilty, he was admitting the truth of the charges

and waiving the state's burden to prove him guilty beyond a reasonable doubt. Therefore,

Meyer's guilty plea waived any need to prove the factual content supporting his charges.

State v. Lampe, 12th Dist. Warren No. CA2015-03-028, 2015-Ohio-3837.


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       {¶ 23} In pleading guilty, Meyer waived any claim regarding the "factual basis" for his

charges. This is significant because upon being indicted a defendant is often aware of his or

her conduct supporting the charges and knows of his or her culpability; many times a guilty

plea is entered before a bill of particulars is filed by the state. In applying res judicata to

Meyer's postconviction relief petition, there is no need to examine a bill of particulars.

       {¶ 24} In all other aspects of the majority opinion, I concur.




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