[Cite as State v. Norris, 2018-Ohio-3079.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. John W. Wise, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
CLARENCE NORRIS                              :       Case No. CT2017-0067
                                             :
        Defendant-Appellant                  :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CR2016-0042




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 2, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    ELIZABETH N. GABA
Prosecuting Attorney                                 1231 East Broad Street
By: GERALD V. ANDERSON II                            Columbus, OH 43205
Assistant Prosecuting Attorney
27 N. Fifth Street, 2nd Floor
Zanesville, OH 43702
Muskingum County, Case No. CT2017-0067                                                   2

Wise, Earle, J.

       {¶ 1} Petitioner- appellant Clarence P. Norris appeals the September 25, 2017

judgment of the Muskingum County Court of Common Pleas which denied his petition for

post-conviction relief. Plaintiff-appellee is the state of Ohio.

                                   Facts and Procedural History

       {¶ 2} On April 26, 2014, appellant, along with several other individuals, invaded

a home. They entered with a firearm and a taser gun, and one of them stole a gun from

a kitchen drawer inside the house. After kicking in the door, they searched the home and

threatened the owner and her two young children. They tased the homeowner and

demanded money.

       {¶ 3} Appellant was later indicted on eleven felony counts: one count of

aggravated burglary, three counts of aggravated robbery, six counts of kidnapping and

one count of theft. All counts except the theft carried firearm specifications. Following

negotiations with the state, appellant elected to enter a pleas of guilty. The State agreed

to recommend a sentence of ten years incarceration, and appellant agreed to testify

against the others involved in the home invasion.

       {¶ 4} At the plea hearing, there was some confusion between the parties as to

how appellant would be required to serve the firearm specifications. Before taking

appellant's pleas of guilty, however, the trial court determined not only that appellant

understood each of the charges against him, but that ten counts of the indictment carried

a firearm specification, and that a firearm specification carries a three-year mandatory

sentence, to be served consecutively to any other sentence. Additionally, the court

determined that appellant understood the court was not bound by the prosecutor's
Muskingum County, Case No. CT2017-0067                                                    3


sentencing recommendation. Appellant's signed plea form further recited that appellant

understood that any sentencing recommendation did not have to be followed by the court.

Counsel for appellant argued that the firearm specifications should merge into a single

three-year sentence. The trial court asked counsel to submit his argument in writing. After

accepting appellant's pleas of guilty, the trial court ordered a pre-sentence investigation,

and set the matter over for sentencing.

       {¶ 5} At sentencing, the issue of the merger of the firearm specifications was

further discussed. Counsel for appellant argued that the firearm specifications should

merge, and only one three-year mandatory sentence should be served. The State

disagreed. The court noted that if they all had to be consecutive, the State could not live

up to its plea negotiations. The State then argued that the court must impose two

consecutive firearm specifications pursuant to statute, and after that, it was within the

court's discretion to impose any additional specifications. When counsel for appellant

noted that it did not make a difference if the time served was pursuant to the firearm

specifications or the underlying crime, the court stated that it did make a difference, as

the firearm specifications were mandatory time as opposed to regular time. The court

stated that it wanted to make sure appellant understood this difference. Counsel for

appellant informed the court that appellant did understand that the second three years

would make a difference as to his eligibility for earned days of credit and some programs

he could participate in. The court then clarified once again that two firearm specifications

are the minimum, especially when there were three victims.

       {¶ 6} Before imposing sentence, the trial court asked appellant if there was

anything he wanted to say in his own behalf, and appellant apologized to his family. The
Muskingum County, Case No. CT2017-0067                                                       4


court then merged three of the kidnapping counts into the other three kidnapping counts,

and sentenced appellant to ten years incarceration on each of the convictions for

aggravated burglary, aggravated robbery, and kidnapping, and eighteen months

incarceration on the theft conviction, to be served concurrently. The court sentenced

appellant to three-year mandatory terms of incarceration on the firearm specifications

accompanying the aggravated burglary charge and one of the kidnapping charges, to be

served consecutively, for an aggregate term of sixteen years.

       {¶ 7} Appellant filed an appeal with this court raising four assignments of error

challenging the consecutive nature of the firearm specifications, the fact that the trial court

did not suspend the plea hearing when it because apparent that the plea negotiations

overlooked consecutive imposition of the firearm specifications, and that trial counsel was

ineffective in his deficient understanding of sentencing for the specifications, by his failure

to object to the trial court's lack of an appropriate colloquy, and by his failure to move to

withdraw the plea at sentencing when warned by the court that a ten year sentence was

not possible. We affirmed appellant's convictions and sentence. State v. Norris, 5th Dist.

Muskingum No. CT2016-0037, 2017-Ohio-1570.

       {¶ 8} On September 7, 2017, appellant filed a timely petition for post-conviction

relief. He raised three arguments alleging ineffective assistance of counsel, including an

argument that his trial counsel rendered ineffective assistance because he never explored

appellant's alleged intellectual deficits/mental retardation. According to appellant, these

deficits rendered him incapable of being the "mastermind" of these crimes and of

understanding his plea and sentence. In support of this claim, appellant attached to his
Muskingum County, Case No. CT2017-0067                                                      5


petition, evidence that he had an individualized education program (IEP) during his senior

year of high school.

       {¶ 9} The trial court denied the petition without a hearing, finding all of appellant's

claims were barred by the doctrine of re judicata.

       {¶ 10} Appellant filed an appeal, and the matter is now before this court for

consideration. He raises two assignments of error:

                                                  I

       {¶ 11} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND

ABUSED ITS DISCRETION WHEN IT DISMISSED APPELLANT’S PETITION FOR

POSTCONVICTION RELIEF BASED ON “RES JUDICATA”. THE DOCTRINE OF RES

JUDICATA DOES NOT BAR POSTCONVICTION CLAIMS THAT ARE SUPPORTED BY

EVIDENCE THAT IS OUTSIDE THE RECORD OF THE MERIT APPEAL.”

                                                 II

       {¶ 12} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND

ABUSED ITS DISCRETION WHEN IT DISMISSED APPELLANT’S PETITION FOR

POSTCONVICTION RELIEF BASED ON “RES JUDICATA”. APPELLANT SUBMITTED

EVIDENTIARY DOCUMENTS CONTAINING SUFFICIENT OPERATIVE FACTS TO

DEMONSTRATE THE LACK OF COMPETENT COUNSEL AND THAT THE DEFENSE

WAS PREJUDICED BY COUNSEL’S INEFFECTIVENESS.”

       {¶ 13} Because they are interrelated, we address appellant's assignments of error

together. Appellant argues the trial court erred when it dismissed his petition for

postconviction relief on the basis of res judicata because he submitted evidentiary quality

documents outside the record which were sufficient to support his claim of ineffective
Muskingum County, Case No. CT2017-0067                                                         6


assistance of trial counsel. He argues trial counsel was ineffective because he failed to

investigate his background and discover he is severely intellectually challenged/mentally

retarded. We agree in part, and disagree in part.

                                         Standard of Review

       {¶ 14} R.C. 2953.21(A) states in part:



              (A)(1)(a) Any person who has been convicted of a criminal offense

              or adjudicated a delinquent child 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.



       {¶ 15} We note that appellee cites State v. Gondor, 112 Ohio St. 3d 377, 2006-

Ohio-6679, 860 N.E.2d 77 for our standard of review in this matter. Gondor found a trial

court's decision to grant or deny a postconviction petition filed pursuant to R.C. 2953.21

should be upheld absent an abuse of discretion and a reviewing court should not overrule

the trial court's finding on a petition for postconviction relief if it is supported by competent
Muskingum County, Case No. CT2017-0067                                                  7

and credible evidence. Id. ¶ 58. We recently noted however, in State v. Weaver, 5th Dist.

Muskingum No. CT2017-0075, 2018-Ohio-2509 at ¶18:



             [A]s the Fourth District Court of Appeals has discussed, the question

             of the standard of review to apply when the petition is dismissed

             without a hearing was not addressed by Gondor:



              As we noted in State v. Harrington, 172 Ohio App.3d 595, 2007-

             Ohio-3796, 876 N.E.2d 626, at ¶ 9, there is some uncertainty

             concerning the appropriate standard of review used by an appellate

             court when reviewing a trial court's decision to dismiss a petition for

             postconviction relief without an evidentiary hearing. See also State

             v. Hoffner, Lucas App. No. L-01-1281, 2002-Ohio-5201, at ¶ 6.

             Appellate courts, including this one, have applied varying standards,

             including de novo, see State v. Gibson, Washington App. No.

             05CA20, 2005-Ohio-5353, abuse of discretion, see State v.

             McKnight, Vinton App. No. 07CA665, 2008-Ohio-2435, and a mixed

             question of fact and law, see Harrington, supra. While the Supreme

             Court of Ohio held in State v. Gondor, 112 Ohio St.3d 377, 2006-

             Ohio-6679, 860 N.E.2d 77, that courts of appeals are to apply an

             abuse of discretion standard in the context of reviewing a trial court's

             decision on a petition after it conducts an evidentiary hearing, it did

             not address the appropriate standard on this type of proceeding, i.e.,
Muskingum County, Case No. CT2017-0067                                                  8


             where the trial court summarily dismisses a petition without a

             hearing. Because decisions denying such petitions involve both

             factual and legal questions, we apply a mixed question of law and

             fact standard of review to determine whether the petition states

             substantive grounds for relief. See Harrington, supra. Thus, we

             review the trial court's decision on factual issues using a manifest

             weight standard of review, and we review the trial court's decision on

             legal issues on a de novo basis. See Hoffner, supra.



      {¶ 16} Citing In re B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶

9.

      {¶ 17} As in Weaver, the trial court here found appellant's claim of ineffective

assistance of counsel raised in the petition was barred by res judicata. This presents a

question of law which we review de novo.

                                     Postconviction Relief

      {¶ 18} A petition for postconviction relief under R.C. 2953.21 is a civil collateral

attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun, 86 Ohio

St.3d 279, 281, 714 N.E.2d 905 (1999). A petition for postconviction relief is a means to

reach constitutional issues that would be impossible to reach in a direct appeal because

the evidence supporting the petitioner's claims are not contained in the record of the

petitioner's criminal conviction. State v. Zich, 6th Dist. Lucas No. L-15-1263, 2017-Ohio-

414, ¶ 9, quoting State v. Murphy, 10th Dist. Franklin App. No. 00AP–233, 2000 WL

1877526 (Dec. 26, 2000). R.C. 2953.21 affords a petitioner postconviction relief “only if
Muskingum County, Case No. CT2017-0067                                                        9


the court can find that there was such a denial or infringement of the rights of the prisoner

as to render the judgment void or voidable under the Ohio Constitution or the United

States Constitution.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph

four of the syllabus.

                                            Res Judicata

       {¶ 19} Under the doctrine of res judicata, a final judgment of conviction bars a

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, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph nine of the syllabus.

                              Ineffective Assistance of Trial Counsel

       {¶ 20} The standard for ineffective assistance of counsel is set forth in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), certiorari denied 497 U.S. 1011, 110

S.Ct. 3258, 111 L.Ed.2d 768. Appellant must establish two criteria. First that counsel's

performance fell below an objective standard of reasonable representation and second

that prejudice arises from counsel's performance. Id. 142. In other words, appellant must

establish “... but for counsel's unprofessional errors, the result of the proceedings would

have been different.” Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

                           Appellant's Petition for Postconviction Relief

       {¶ 21} Appellant set forth three claims in his petition for postconviction relief. In the

first, appellant alleged that trial counsel rendered ineffective assistance because he failed
Muskingum County, Case No. CT2017-0067                                                    10


to discover appellant's alleged severe intellectual disabilities/mental retardation.

According to appellant, counsel should have recognized his challenges and enlisted

experts to perform I.Q and adaptive behavior testing on appellant. He argued his alleged

disability impacted not only whether he had a defense to the allegations against him, but

also whether he entered a knowing, intelligent and voluntary plea. Appellant supported

these claims with a copy of an IEP from his senior year of high school. Petition at 8-12.

       {¶ 22} In his second claim, appellant alleged trial counsel rendered ineffective

assistance because he did not understand how the firearm specifications were to be

served, and that the trial court compounded counsel's error by accepting appellant's pleas

and asking trial counsel to submit his arguments in regard to sentencing before the

sentencing hearing. Petition at 12-14.

       {¶ 23} In his third claim, appellant argued counsel rendered ineffective assistance

when he went forward with appellant's sentencing despite the fact that the state and trial

counsel could not "live up to" their original 10-year plea negotiation. He further argued the

trial court compounded this error by failing to correct counsel's misunderstanding of the

law. Petition at 14-18.

                                             Analysis

       {¶ 24} First, we find the trial court correctly rejected appellant's second and third

postconviction petition claims on the basis of res judicata. Not only could these complaints

have been raised in a direct appeal, they were raised, and we rejected them. State v.

Norris, 5th Dist. Muskingum No. CT2016–0037 2017-Ohio-1570 at ¶ 27.

       {¶ 25} Next, as for appellant's first petition claim, we find the trial court erred in

granting summary judgement on the basis of res judica. However, after a review of the
Muskingum County, Case No. CT2017-0067                                                     11


evidence submitted by appellant in support of his ineffective assistance claim, the trial

record, and the PSI we nonetheless affirm the trial court's grant of summary judgement.

       {¶ 26} Appellant did submit evidence outside the record in support of his first claim.

However, before a petitioner can be granted a hearing in proceedings for postconviction

relief upon a claim of ineffective assistance of trial counsel, petitioner bears the initial

burden to submit evidentiary quality material containing sufficient operative facts that

demonstrate a substantial violation of any of trial counsel's essential duties, in addition to

prejudice arising from that ineffectiveness. State v. Church, 5th Dist. Stark No.

2017CA00216, 2018-Ohio-368 ¶ 23, citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714

N.E.2d 905 (1999) and State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980).

Failure to present essential operative facts in supporting evidentiary quality materials

warrants dismissal of the petition for post-conviction relief without a hearing. State v.

Murphy, 5th Dist. Tuscarawas No. 87AP050039, 1987 WL 19835 (October 29, 1987).

       {¶ 27} As noted above, appellant submitted evidence consisting solely of his IEP

from his senior year of high school. Nothing in this document, nor in the record, supports

a conclusion that appellant is mentally retarded, nor so intellectually incapacitated that

that he was incapable of understanding the proceedings. Appellant therefore failed to

produce any evidence to support a conclusion that trial counsel knew, or should have

known of appellant's alleged challenges. We thus find appellant failed to support his

petition with evidentiary quality materials supporting his contention that counsel failed to

perform any of his essential duties.

       {¶ 28} The first and second assignments of error are overruled.
Muskingum County, Case No. CT2017-0067                                 12


      {¶ 29} The judgment of the Muskingum County Court of Common Pleas is

affirmed.



By Wise, Earle, J.

Wise, John, P.J. and

Delaney, J. concur.




EEW/rw
