[Cite as State v. Holnapy, 2013-Ohio-4307.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2013-L-002
        - vs -                                   :

JON W. HOLNAPY,                                  :

                 Defendant-Appellant.            :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 09 CR 000692.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Jon W. Holnapy, pro se, PID: A584674, Lake Erie Correctional Institution, P.O. Box
8000, Conneaut, OH 44030 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Jon W. Holnapy, appeals the judgment of the Lake County

Court of Common Pleas denying his untimely petition for post-conviction relief following

his conviction by a jury of operating a motor vehicle under the influence of alcohol

(“OVI”). At issue is whether the trial court abused its discretion in denying appellant’s

petition. For the reasons that follow, we affirm.
       {¶2}   Appellant was indicted for operating a motor vehicle under the influence of

alcohol, a felony of the fourth degree, with a specification that he had previously been

convicted of five or more OVI offenses within the last 20 years. Appellant pled not

guilty. The case proceeded to jury trial.

       {¶3}   The evidence revealed that, on September 28, 2009, while appellant was

attempting to enter the parking lot of the Lake County Department of Job and Family

Services (“JFS”) in downtown Painesville, he hit a yellow concrete pole at the entrance.

He backed up and then drove forward again, crashing into the pole a second time. He

then backed up again, entered the parking lot, and parked his car. He exited his car and

walked along the side of the building staggering. As he was walking away, he kept

turning around, throwing his arms up in the air, and talking out loud to himself.

       {¶4}   A witness called the police and reported the crash, giving appellant’s

direction on foot and describing him as apparently intoxicated.

       {¶5}   Two Painesville police officers were dispatched to JFS. Upon their arrival,

they saw appellant swaying, walking side to side on the sidewalk, and stumbling.

Appellant pointed out his car and admitted he was driving when it crashed. The officers

said appellant’s eyes were bloodshot and his speech was slurred. Appellant said he

had three beers within the last hour. He also said that he was on Percocet at the time;

that his last dose was a few hours earlier; and that he was surprised the beers affected

him the way they did. Both officers said that, in their opinion, appellant was under the

influence.




                                             2
       {¶6}   The officers asked appellant to perform field sobriety tests and a

breathalyzer test, but he refused. They also detected an odor of alcoholic beverage

coming from appellant.

       {¶7}   Both officers testified that appellant did not appear to be injured, complain

of any injury, or request any medical attention. They also said he answered their

questions appropriately and did not appear to be confused.

       {¶8}   The parties stipulated that appellant has been convicted of five OVI

offenses within the last 20 years.

       {¶9}   The jury returned its verdict finding appellant guilty of OVI as charged with

the specification. The trial court sentenced appellant to 24 months for the OVI and

three years on the specification, the terms to be served consecutively, for a total

sentence of five years in prison.

       {¶10} Appellant appealed his conviction and this court affirmed his conviction in

State v. Holnapy, 194 Ohio App.3d 444, 2011-Ohio-2995 (11th Dist.), discretionary

appeal not allowed by the Supreme Court of Ohio at 130 Ohio St.3d 1478, 2011-Ohio-

6124 and 2012-Ohio-4021, 2012 Ohio LEXIS 2147 (Sep. 5, 2012).

       {¶11} About two years after appellant filed his direct appeal, he filed a “delayed”

petition for post-conviction relief in the trial court based on alleged newly discovered

evidence. In his affidavit, he said his trial counsel was ineffective. In support, appellant

said that, prior to trial, he “demanded” that his attorney subpoena his physician, Dr.

Gary Kutsikovich, to testify regarding his findings. These findings included the doctor’s

opinion that appellant sustained a head injury in the instant crash and a summary of

appellant’s self-reported symptoms that, appellant said, were mistaken for signs of




                                             3
intoxication. Counsel told appellant that she had spoken to Dr. Kutsikovich, who said he

found nothing wrong with appellant. She said she was concerned that the prosecutor

would use Dr. Kutsikovich’s findings against appellant and that Dr. Kutsikovich “would

only hurt the defense.” As a result, she told appellant she decided to have Dr. Chris

Adelman, a medical expert who also examined appellant, testify, rather than Dr.

Kutsikovich, apparently believing Dr. Adelman’s testimony would be more favorable.

Further, appellant said he was “unavoidably prevented” from discovering Dr.

Kutsikovich’s findings because his attorney did not give him that doctor’s reports until

after the deadline to file the petition.

       {¶12} The trial court denied the petition without a hearing. The court found that

appellant’s petition was barred by res judicata because he was aware at trial of the

grounds he raised in support of his ineffectiveness claim and could have raised, but

failed to raise, the argument in trial or on direct appeal. Further, the court found that

appellant’s ineffectiveness claim lacked merit because he failed to present substantive

grounds for relief. In addition, the court found that trial counsel’s decision to call Dr.

Adelman as a witness, rather than Dr. Kutsikovich, was a strategic, tactical decision and

thus not deficient performance.            The court also found that appellant had not

demonstrated prejudice. Finally, the court found the petition was time-barred.

       {¶13} Appellant appeals the trial court’s judgment, asserting two assignments of

error. Because they are related, we shall consider them together. They allege:

       {¶14} “[1.]    The [Common Pleas] Court erred to the prejudice of defendant-

appellant Jon Holnapy’s delayed petition for post conviction relief denying him redress

of grievance under Article I Section 16 of the Ohio Constitution and equal protection of




                                               4
the law under the 14th Amendment of the U.S. Constitution when it abused its discretion

denying his ineffective assistance of counsel claim who withheld exculpatory medical

evidence of head injuries that resulted in some memory loss and slurred speech the jury

was denied the right to hear that would have cast reasonable doubt concerning Mr.

Holnapy’s guilt under DUI charges as alleged in his indictment in which he was

convicted of (sic throughout).

       {¶15} “[2.]   The [Common Pleas] Court erred to the prejudice of defendant-

appellant Jon Holnapy’s delayed petition for post conviction relief denying him redress

of grievance under Article I Section 16 of the Ohio Constitution and equal protection of

the law under the 14th Amendment of the U.S. Constitution when it abused its discretion

denying his ineffective assistance of counsel claim absent an evidentiary hearing when

he submitted evidentiary document of his medical doctor’s findings dehors the record

that could have contradicted the state of Ohio’s evidence of a DUI charge and or

conviction” (sic throughout).

       {¶16} On appeal, appellant repeats the argument he made in his petition,

namely, that his trial counsel was ineffective in her choice of medical experts to testify

and that appellant was unavoidably prevented by his trial counsel from discovering Dr.

Kutsikovich’s findings, which prevented him from timely filing his petition.

       {¶17} As a preliminary matter, we note that an appellate court applies an abuse-

of-discretion standard in reviewing a trial court’s ruling on a petition for post-conviction

relief alleging ineffective assistance of counsel. State v. Hendrex, 11th Dist. Trumbull

No. 2010-T-0103, 2011-Ohio-1588, ¶28. Likewise, an appellate court reviews a trial

court’s decision not to conduct a hearing in post-conviction matters under an abuse-of-




                                             5
discretion standard. Id. This court has recently stated that the term “abuse of discretion”

is one of art, connoting judgment exercised by a court, which does not comport with

reason or the record. Id.

       {¶18} R.C. 2953.21(A)(1)(a) provides that anyone convicted of a crime who

claims there was such a denial of his constitutional rights as to render his conviction

void or voidable may file a petition asking the court to vacate his conviction.

       {¶19} Further, R.C. 2953.21(C) provides that, before granting a hearing on such

petition, the court shall determine whether there are “substantive grounds for relief,”

based on, inter alia, the petition, the supporting affidavits, and the documentary

evidence. R.C. 2953.21(E) provides that the court shall proceed to a hearing on the

issues unless the petition shows the petitioner is not entitled to relief.

       {¶20} Regarding a petitioner’s right to a hearing on his petition, this court in

State v. Noling, 11th Dist. Portage No. 98-P-0049, 2003-Ohio-5008, stated:

       {¶21} [A] defendant challenging his conviction through a petition for post-

              conviction relief is not automatically entitled to a hearing. State v.

              Calhoun, 86 Ohio St.3d 279, 282 (1999). “Only after he meets his

              initial burden to show substantive grounds for relief from the files

              and records of the case and, often, evidentiary materials dehors the

              record is a hearing required.” State v. Davie,[ ]11th Dist. [Trumbull]

              No. 97-T-0175, 1998 Ohio App. LEXIS 4540, [*5] [(Sep. 25, 1998)].

              Stated differently, “* * * before a hearing is granted, ‘the petitioner

              bears the initial burden to submit evidentiary documents containing

              sufficient operative facts to demonstrate * * *’” that [constitutional]




                                              6
              errors did occur and that the errors resulted in prejudice. (Emphasis

              sic.) Calhoun at 283, quoting State v. Jackson,[ ]64 Ohio St.2d 107

              [(1980)], syllabus.   Moreover, “* * * if the court can resolve the

              averments contained within the petitioner’s request based upon the

              material contained within the petition, and the files and records, it

              may properly dismiss the matter without conducting a hearing.”

              State v. Hill,[ ]11th Dist. [Trumbull] No. 94-T-5116, 1995 Ohio App.

              LEXIS 2684, [*4] [(June 16, 1995)]. Noling, supra, at ¶22.

       {¶22} Further, this court in State v. Schlee, 11th Dist. Lake No. 97-L-121, 1998

Ohio App. LEXIS 6363 (Dec. 31, 1998), held that when a petition for post-conviction

relief is based on ineffective assistance of counsel, the petitioner must submit “evidence

dehors the record.” Id. at *5. The evidence outside the record “must meet some

threshold standard of cogency.” Id. In explaining this standard, this court stated:

       {¶23} “The evidence must be genuinely relevant, and it must materially

              advance a petitioner’s claim that there has been a denial or

              infringement of his or her constitutional rights. In the absence of

              such a standard, it would be too easy for the petitioner to simply

              attach 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. Sopjack, [11th Dist.

              Geauga] No. 96-G-2004, 1997 Ohio App. LEXIS 3789, *10 (Aug.

              22, 1997), quoting [State v. ]Coleman, [1st Dist. Hamilton No. C-




                                             7
              900811], 1993 Ohio App. LEXIS 1485, *21 [(Mar. 17, 1993)].

              Schlee, supra, at *5-*6.

       {¶24} The Supreme Court of Ohio in Jackson, supra, held that “[i]n a petition for

post-conviction relief, which asserts ineffective assistance of counsel, the petitioner

bears the initial burden to submit evidentiary documents containing sufficient operative

facts to demonstrate the lack of competent counsel and that the defense was prejudiced

by counsel’s ineffectiveness.” Id. at syllabus. Further, “[t]he evidence submitted must

not be cumulative of or alternative to evidence presented at trial.” State v. Cowan, 151

Ohio App.3d 228, 2002-Ohio-7271, ¶13 (11th Dist.). Moreover, “‘the evidence dehors

the record must not be evidence which was in existence and available for use at the

time of trial and which could and should have been submitted at trial if the defendant

wished to use it.’” Id. at ¶15, quoting State v. Slagle, 8th Dist. Cuyahoga No. 76834,

2000 Ohio App. LEXIS 3641, *3 (Aug. 10, 2000).

       {¶25} Here, appellant failed to submit any cogent evidence outside the record

providing substantive grounds for relief. Appellant’s documents do not evidence that his

attorney’s performance was deficient or that any errors of his attorney resulted in his

prejudice. To the contrary, appellant’s affidavit shows that, after his attorney interviewed

Dr. Kutsikovich, she concluded Dr. Adelman’s testimony would be more favorable and

made the strategic, tactical decision to have Dr. Adelman, rather than Dr. Kutsikovich,

testify for the defense. Further, appellant concedes that Dr. Kutsikovich’s reports were

prepared before trial and thus were in existence and available for use in trial.

Appellant’s argument that he was unaware of them at that time is unavailing because he

admitted in his affidavit that Dr. Kutsikovich was treating him for head injuries before




                                             8
trial. Cowan, supra. In addition, Dr. Kutsikovich’s reports demonstrate his testimony

would have been merely cumulative of or an alternative to Dr. Adelman’s testimony. Id.

As a result, the trial court was entitled to deny appellant’s petition without a hearing.

       {¶26} Further, appellant’s petition is barred by res judicata. ‘“[T]he doctrine of res

judicata precludes a defendant from raising, in a petition for postconviction relief, an

ineffective assistance of counsel claim that was or could have been raised at trial or on

direct appeal. * * *’” State v. Vinson, 11th Dist. Lake No. 2007-L-088, 2008-Ohio-3059,

¶32, quoting State v. Delmonico, 11th Dist. Ashtabula No. 2004-A-0033, 2005-Ohio-

2882, ¶14. “This is particularly true where the petitioner obtained new counsel for their

direct appeal and the claim of ineffective assistance could have been raised without

resorting to evidence outside the record.” State v. McCaleb, 11th Dist. Lake No. 2004-L-

003, 2005-Ohio-4038, ¶19. Where an appellant is represented by new counsel on direct

appeal and the ineffectiveness of appellant’s trial counsel could have been determined

without resort to evidence outside the record, a petition for post-conviction relief alleging

ineffective assistance of trial counsel is barred by res judicata. State v. Cole, 2 Ohio

St.3d 112, 113-114 (1982). “For a defendant to avoid dismissal of the petition by res

judicata, the evidence supporting the claims in the petition must be competent, relevant,

and material evidence outside the trial court’s record, and it must not be evidence that

existed or was available for use at the time of trial. * * *” (Emphasis added.) State v.

Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348, ¶39. Accord State v.

Braden, 10th Dist. Franklin No. 02AP-954, 2003-Ohio-2949, ¶27 (“the evidence relied

upon [to avoid res judicata] must not be evidence that was in existence or available for

use at the time of trial and should have been submitted at trial if the petitioner wished to




                                              9
make use of it”). Further, where the petition shows it is barred by res judicata, the trial

court may dismiss the petition without a hearing. State v. Perry, 10 Ohio St.2d 175

(1976), paragraph nine of the syllabus.

       {¶27} Here, appellant was represented by different counsel at trial and on

appeal.   Further, appellant was aware of his ineffective-assistance claim while the

matter was before the trial court. Appellant stated in his affidavit that, prior to trial, he

told his attorney to subpoena Dr. Kutsikovich to testify regarding his alleged head injury,

but that his attorney told him she decided to have Dr. Adelman testify instead. As a

result, appellant’s ineffective-assistance claim was based on evidence that existed or

was available for use at the time of trial. Further, the fact that trial counsel did not call

Dr. Kutsikovich to testify would have been apparent from the record. Thus, appellant

could have raised, but failed to raise, this alleged deficiency in trial or on direct appeal.

As a result, the argument is barred by res judicata. For this additional reason, the trial

court was entitled to deny the petition without a hearing. Id.

       {¶28} Further,    appellant’s    petition   was   time-barred.   Pursuant   to   R.C.

2953.21(A)(2), a petition for post-conviction relief must be filed within 180 days of the

date the trial transcript was filed in the court of appeals if a direct appeal is filed.

However, an exception to the 180-day rule is set forth in R.C. 2953.23(A)(1). That

section provides that a court may not entertain a petition filed after the expiration of the

180-day time limit period unless both of the following apply:

       {¶29} (a) * * * [T]he petitioner shows that the petitioner was unavoidably

              prevented from discovery of the facts upon which the petitioner

              must rely to present the claim for relief * * * [; and]




                                              10
      {¶30} (b) The petitioner shows by clear and convincing evidence that, but

             for constitutional error at trial, no reasonable factfinder would have

             found the petitioner guilty of the offense of which the petitioner was

             convicted * * *.

      {¶31} Here, the transcript was filed with this court in appellant’s direct appeal on

August 9, 2010. However, he did not file his petition for post-conviction relief until

August 8, 2012, nearly two years after the transcript was filed. Thus, his petition was

filed more than 180 days after the trial transcript was filed and is untimely. R.C.

2953.21(A)(2). As a result, the trial court would only be authorized to consider the

petition if appellant satisfied both elements of the foregoing exception. State v. Scuba,

11th Dist. Geauga No. 2006-G-2713, 2006-Ohio-6203, ¶21.

      {¶32} Appellant concedes his petition was untimely, but argues the exception to

the 180-day time limit set forth in R.C. 2953.23(A)(1) applies to his case. In support of

the first element of this exception, he argues he was unavoidably prevented from

discovering facts on which he relied to present his petition because his trial counsel did

not give him copies of Dr. Kutsikovich’s reports showing he had head injuries until after

the deadline to file his petition.   A defendant is “unavoidably prevented” from the

discovery of facts if he had no knowledge of the existence of those facts and could not

have learned of their existence within the time specified for filing his petition in the

exercise of reasonable diligence. State v. Sansom, 2d Dist. Champaign No. 2009 CA

38, 2010-Ohio-1918, ¶9. Since appellant treated with Dr. Kutsikovich over a period of

time prior to trial and had several appointments with him, appellant knew or, in the

exercise of reasonable diligence, should have known of his doctor’s findings prior to




                                           11
trial. In fact, appellant states in his affidavit that Dr. Kutsikovich was treating him for

head injuries prior to trial.   Appellant was thus aware of the general nature of his

doctor’s findings. Further, appellant has not provided any justifiable reason to explain

his 18-month delay in filing his petition. Since Dr. Kutsikovich was appellant’s treating

physician, appellant could have requested his reports at any time. As a result, appellant

failed to show he was unavoidably prevented from discovering facts on which he relied

to support his petition.

       {¶33} With respect to the second element of the exception to the 180-day time

limit, requiring that appellant present clear and convincing evidence that no reasonable

jury would have found him guilty, not only did he fail to present any such evidence, he

did not even make any argument in support of this element.

       {¶34} Because appellant’s petition for post-conviction relief was filed beyond the

180-day time period and the exception provided in R.C. 2953.23(A)(1) does not apply,

the petition was time-barred and the trial court would not have been authorized to

consider his petition. Scuba, supra.

       {¶35}    In any event, even if appellant’s petition was not barred by res judicata

and if it was not time-barred, his petition would fail on the merits because appellant has

failed to demonstrate his trial counsel was ineffective.

       {¶36} The standard of review for ineffective assistance of counsel was stated by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687

(1984).

       {¶37} In order to support a claim of ineffective assistance of counsel, the

defendant must satisfy a two-prong test. First, he must show that counsel’s performance




                                            12
was deficient. Strickland, supra. This requires a showing that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed the defendant by

the Sixth Amendment. Id. A properly licensed attorney is presumed to be competent. Id.

at 688. In order to rebut this presumption, the defendant must show the actions of

counsel did not fall within a range of reasonable assistance. Id. at 689. The Court in

Strickland stated, “[t]here are countless ways to provide effective assistance in any

given case. * * *” Id. at 689. Therefore, “[j]udicial scrutiny of counsel’s performance must

be highly deferential. * * *” Id. In addition, “[b]ecause of the difficulties inherent in

making the evaluation, a court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance * * *.” Id.

       {¶38} Second, the defendant must show the deficient performance prejudiced

the defense. In order to satisfy this prong, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s * * * errors, the result of the [trial] would

have been different.” Id. at 694; accord State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph three of the syllabus.

       {¶39} It is well settled that strategic and tactical decisions do not constitute a

deprivation of the effective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49

(1980). Errors of judgment regarding tactical matters do not substantiate a claim of

ineffective assistance of counsel. Id.

       {¶40} Appellant argues that his trial counsel was ineffective in not calling Dr.

Kutsikovich as a witness at trial and, instead, calling Dr. Adelman. In State v. Wolf, 11th

Dist. Lake No. 93-L-151, 1994 Ohio App. LEXIS 5993 (Dec. 30, 1994), this court held,

“the calling of * * * a witness can best be viewed as a tactical decision * * *.” Id. at *27.




                                             13
Thus, the decision to call, or not to call, a certain witness to the stand is subject to the

strong presumption that the decision might be considered sound trial strategy. Id. at *28.

       {¶41} Here, appellant’s own affidavit defeats his claim of ineffective assistance.

In it he concedes that, after his attorney interviewed Dr. Kutsikovich, his attorney

decided to have Dr. Adelman testify for the defense, rather than Dr. Kutsikovich. This

was because appellant’s attorney decided that “the prosecutor would use [Dr.

Kutsikovich’s findings] against [appellant] and that [Dr. Kutsikovich’s] findings “would

only hurt the defense.” Counsel’s decision was eminently reasonable in light of Dr.

Kutsikovich’s final report, dated March 10, 2010, in which the doctor stated that

appellant had a normal EEG. Thus, counsel’s decision to call Dr. Adelman, rather than

Dr. Kutsikovich, as an expert medical witness was a strategic, tactical decision and did

not constitute deficient performance.

       {¶42} Moreover, appellant failed to prove prejudice because the verdict was

supported by other overwhelming evidence of his guilt. Appellant crashed his car twice

into a concrete pole while attempting to park his car. The officers said appellant’s eyes

were bloodshot and they smelled an odor of alcoholic beverage coming from him.

Further, appellant admitted that he had consumed three beers within the hour before

the crash; that he was also taking Percocet at the time; and that the beers affected him.

He also refused to perform field sobriety tests or to take a breathalyzer test. Both

officers said appellant did not appear to be injured, complain of any injury, or request

any medical attention. Further, both officers expressed their opinion that appellant was

under the influence.




                                            14
       {¶43} We therefore hold the trial court did not abuse its discretion in denying

appellant’s untimely petition for post-conviction relief without a hearing.

       {¶44} For the reasons stated in this opinion, appellant’s assignments of error are

overruled. It is the judgment and order of this court that the judgment of the Lake

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J., concurs,

TIMOTHY P. CANNON, P.J., concurs with Concurring Opinion.

                                ______________________


TIMOTHY P. CANNON, P.J., concurring.


       {¶45} I respectfully concur in the judgment of the majority to affirm the decision

of the trial court. However, I do not agree that res judicata should apply. While it is true

the medical records at issue may have been available to appellant at the time of his

original appeal, they were not contained in the record in that appeal. As a result, if

appellant had attempted to make the argument in his previous appeal that he makes in

this case, I believe we would have instructed appellant to file a petition for

postconviction relief. State v. Egli, 11th Dist. Portage No. 2007-P-0052, 2008-Ohio-

2507, ¶68; State v. Smith, 17 Ohio St.3d 98, 101 (1985), fn. 1.               A petition for

postconviction relief is the only vehicle available that would allow us to see the medical

records and determine whether the petition and the documents not previously included

in the record would warrant a hearing.




                                             15
         {¶46} A claim of ineffective assistance of counsel founded on evidence de hors

the record should not necessarily be barred by the doctrine of res judicata. This court

has held that the doctrine of res judicata prevents defendants from raising claims in a

postconviction proceeding when the issues could have been raised at trial or on direct

appeal. State v. Sanders, 11th Dist. Portage No. 2011-P-0088, 2012-Ohio-5025, ¶18.

However, the doctrine of res judicata is inapplicable when the defendant’s claim in a

petition for postconviction relief is supported by material not contained in the record of

the initial appeal. There is some authority for the contention that res judicata would only

apply provided such evidence did not exist, or was not available for use, at the time of

trial.   State v. Poling, 11th Dist. Ashtabula No. 2012-A-0002, 2012-Ohio-3039, ¶19.

However, the application of the rule in those cases seems to involve factual scenarios

that would have allowed the relevant issues to be decided on direct appeal.

         {¶47} It should be clear that in situations where evidence in support of a claim of

ineffective assistance of counsel was not and could not have been included in the

record of the original appeal, a petition for postconviction relief is not barred by res

judicata. See State v. Schlee, 11th Dist. Lake No. 97-L-121, 1998 Ohio App. LEXIS

6363, *8.      To hold otherwise means that an appellant—who is unable to argue

ineffective assistance of counsel at trial, unable to present evidence outside the record

on direct appeal, and barred by the doctrine of res judicata from raising the issue in a

petition for postconviction relief—could potentially be denied the opportunity to have his

evidence reviewed at all.

         {¶48} I believe the Eleventh District case cited by the majority in support of its

position that res judicata applies actually supports the position taken in this concurring




                                             16
opinion. In State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348, the

trial court considered a petition for postconviction relief. This court held it was error for

the trial court to dismiss the petition on the basis of res judicata:

       {¶49} As an initial matter, we note that the trial court erred by barring this
             cause of action by the doctrine of res judicata. Indeed, appellant
             raised ineffective assistance of counsel in five propositions of law in
             his direct appeal to the Supreme Court of Ohio. In his direct
             appeal, appellant argued theories of ineffective assistance of
             counsel based upon evidence that was contained within the trial
             court record. However, in his petition for postconviction relief,
             appellant alleged an entirely new theory of ineffective assistance of
             counsel. This new theory, i.e., his trial counsel was ineffective for
             failing to consider Edwards and move to suppress the October 20,
             1999 statements, was predicated upon an October 14, 1999
             interview which was not contained within the record. This new
             theory of ineffective assistance of counsel could only be raised in a
             petition for postconviction relief.

       {¶50} The fact that an appellant raised ineffective assistance of counsel
             claims in a direct appeal does not bar such a claim in a petition for
             postconviction relief, provided the claim in the postconviction
             exercise is predicated upon evidence outside the record. We must
             look to the substance of the argument itself to determine whether it
             is barred by res judicata. In this matter, appellant raised an entirely
             new theory of ineffective assistance of counsel in his petition for
             postconviction relief, and the trial court erred by barring this claim
             by the doctrine of res judicata. Id. at ¶65-66.

       {¶51} The same analysis applies here.           Appellant’s claim in his petition for

postconviction relief contains a new theory of ineffective assistance of counsel. Even

though the medical records were available to appellant at the time of the original appeal,

this theory is based on evidence not contained in the prior record on appeal. Therefore,

res judicata should not have precluded consideration of appellant’s petition for

postconviction relief.




                                              17
       {¶52} With regard to the balance of the opinion, I agree with the majority that the

petition was time-barred, that there is no justification for the undue delay, and further,

that it would fail on the merits.




                                           18
