[Cite as State v. Lewis, 2013-Ohio-1327.]
                                  IN THE COURT OF APPEALS OF OHIO
                                     FOURTH APPELLATE DISTRICT
                                         LAWRENCE COUNTY


STATE OF OHIO,                                               :

         Plaintiff-Appellee,                                 :        Case No. 11CA29

         vs.
                                                             :
MICHAEL N. LEWIS,                                                 DECISION AND JUDGMENT ENTRY
AKA MARCEL WOODS                                             :

      Defendant-Appellant.             :
_________________________________________________________________

                                                  APPEARANCES:

COUNSEL FOR APPELLANT:                         Michael N. Lewis, #05221-087, Federal Correctional
                                               Institution Gilmer, P.O. Box 6000, Glenville, West Virginia
                                               26351

COUNSEL FOR APPELLEE:                          J.B. Collier, Jr., Lawrence County Prosecuting Attorney,
                                               and Robert C. Anderson, Lawrence County Assistant
                                               Prosecuting Attorney, Lawrence County Courthouse, One
                                               Veterans Square, Ironton, Ohio 45638

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-4-13
ABELE, J.

         {¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment that

denied a petition for postconviction relief filed by Michael N. Lewis, a.k.a. Marcel Woods,

petitioner below and appellant herein.

         {¶ 2} Appellant assigns the following error for review1:


         1
         Appellant’s brief does not set out assignments of error as    App.R. 16(A)(3) requires.   Thus, we treat his “Issue
Number One” from the table of contents as an assignment of error.
                    FIRST ASSIGNMENT OF ERROR:

                    “THE COURT OF COMMON PLEAS COMMITTED ERROR
                    WHEN IT DENIED AND SUMMARILY DISMISSED
                    APPELLANT [sic] HABEAS CORPUS PETITION [sic]2
                    AVERING TO A COGNIZABLE CONSTITUTIONAL CLAIM
                    RELYING ON NEWLY DISCOVERED EVIDENCE IN
                    VIOLATION OF DUE PROCESS PROTECTIONS AND,
                    ARTICLE [sic] §16 OF THE OHIO CONSTITUTION[.]”

          {¶ 3} In 2004, appellant pled guilty to the possession of crack cocaine, possession of

powder cocaine, trafficking in powder cocaine and trafficking in crack cocaine. The trial court

sentenced him to serve four years on each count, to be served concurrently. Appellant, however,

did not appear to begin serving his sentences. No appeal was taken from that judgment.

          {¶ 4} Prior to reporting for the execution of those sentences, appellant was arrested,

tried, convicted and sentenced to prison at the Gilmer Federal Correctional Institution in

Glenville, West Virginia. Appellant remains an inmate to this day.

          {¶ 5} Appellant filed a number of challenges to his conviction and sentence, including a

2007 motion to withdraw his guilty plea. The trial court overruled that motion and we affirmed.

See State v. Lewis, Lawrence App. No. 08CA10, 2008-Ohio-4888. Appellant commenced the

instant proceedings on October 4, 2011 with a petition to vacate his conviction on grounds of

prosecutorial misconduct. Appellant argued that the State withheld exculpatory evidence from

the defense. On November 10, 2011, the trial court denied appellant’s petition. This appeal


          2
             Although appellant’s “assignment of error” casts his petition as one for habeas corpus, he filed below a petition “to
vacate or set aside” the judgment of conviction and sentence and asked “for postconviction relief pursuant to R.C. 2953.21.”
When a petition is filed asking for a judgment to be set aside on Constitutional grounds, courts typically treat it as a motion for
postconviction relief. See e.g. State v. Dunn, Pickaway App. No. 06CA18, 2007-Ohio-1018, at ¶5, fn.1. Thus, we disregard
appellant’s characterization of this proceeding as one in habeas corpus and treat it as postconviction relief.
LAWRENCE, 11CA29                                                                                     3

followed.

        {¶ 6} Appellant argues in his “assignment of error” that the trial court erred by

overruling his petition for postconviction relief. We disagree.

        {¶ 7} R.C. 2953.21(A)(2) requires a petition for postconviction relief be filed no later

than one hundred eighty (180) days after the expiration of time for filing a notice of appeal.

Appellant’s judgment of conviction and sentence was filed in 2004. Appellant filed his petition

for postconviction relief in 2011, some seven (7) years outside the one hundred eighty (180) day

statutory time frame.

        {¶ 8} The trial court could have considered appellant's petition if he could show, inter

alia, that but for the error, no reasonable fact-finder would have found him guilty of the offense

for which he was convicted. R.C. 2953.23(A)(1)(b). Appellant, however, could not satisfy this

requirement because (1) he pled guilty, and (2) there was no trial and, consequently, no trial

transcript. In the absence of a transcript and a record of the evidence the State had against him,

it is not possible for a court to determine that a reasonable fact-finder would have not found him

guilty. Once again, in the instant case appellant entered, and the trial court accepted, a guilty

plea.

        {¶ 9} Much of appellant’s argument is based on the contention that he has newly

discovered evidence to prove his innocence. We, however, again note that appellant pled guilty

to the charges against him and that his plea constitutes a complete admission of guilt. Crim.R.

11(B)(1). Although appellant subsequently attempted to withdraw his guilty plea, the trial court

denied his request and we affirmed.

        {¶ 10} Second, appellant's "newly discovered evidence" purports to be an affidavit from a
LAWRENCE, 11CA29                                                                                     4

“Jerry Totts.” Totts attests that during a 2004 raid, he told police that the drugs they seized

belonged to him rather than to appellant.    To the extent that this information was available in

2004, and the issue could have been raised on direct appeal, it cannot now be raised for purposes

of postconviction relief under the doctrine of res judicata. See e.g. State v. Reynolds (1997), 79

Ohio St.3d 158, 161, 679 N.E.2d 1131; State v. Lentz (1990), 70 Ohio St.3d 527, 529, 639

N.E.2d 784; State v. Juliano (1970), 24 Ohio St.2d 117, 119, 265 N.E.2d 290. We also fail to

see how this information is “newly discovered” simply because it appears in a 2011 affidavit.

The only thing “new” is the purported affidavit. Jerry Totts was arrested in the same raid as the

appellant and this could well have caused the court to view the “Totts affidavit” with more than

just a little suspicion. In State v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905, at

paragraph one of the syllabus, the Ohio Supreme Court held that trial courts may weigh the

credibility of affidavits submitted in support of petitions for postconviction relief. Reviewing

courts have long accepted the notion that an appellant’s self-serving affidavit can be rejected as

not credible, see e.g. State v. Rinehart, Wood App. No. No. WD-08-015, 2010-Ohio-2259, at ¶8;

State v. Haschenburger, Mahoning App. No. 08-MA-223, 2009-Ohio-6527, at ¶46; State v.

Isbell, Butler App. No. CA2003-06-152, 2004-Ohio-2300, at ¶14. The Calhoun case also

involved the appellant’s mother’s affidavit, which the Supreme Court also said could be rejected

as not credible. Thus, the principle applies as much to affidavits submitted on behalf of an

appellant as it does to an appellant’s own self-serving affidavit.

       {¶ 11} When a petition for postconviction relief is denied without a hearing, we review a

trial court’s judgment for an abuse of discretion. State v. Fisk, Washington App. No. 11CA4,

2011-Ohio-6116, at ¶6. An “abuse of discretion” is more than an error of law or judgment;
LAWRENCE, 11CA29                                                                                     5

rather, it implies that the court's attitude was unreasonable, arbitrary or unconscionable. State v.

Herring (2002), 94 Ohio St.3d 246, 255, 762 N.E.2d 940; State v. Adams (1980), 62 Ohio St.2d

151, 157, 404 N.E.2d 144. When reviewing for an abuse of discretion, appellate courts must not

substitute their judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp.

Trustees (1995), 73 Ohio St.3d 728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991), 57 Ohio

St.3d 135, 137-138, 566 N.E.2d 1181.

       {¶ 12} As mentioned previously, this petition is out of rule and appellant did not satisfy

the statutory criteria for late consideration. The fact that appellant pled guilty to the offenses

renders the Totts affidavit superfluous as he has already admitted culpability for the four

offenses. Finally, the self-serving nature of the Totts affidavit makes quite probable the trial

court rejected it as having no credibility whatsoever.

       {¶ 13} For all these reasons, we hereby overrule appellant’s “assignment of error” and

affirm the trial court's judgment.

                                                                      JUDGMENT AFFIRMED.
[Cite as State v. Lewis, 2013-Ohio-1327.]
                                            JUDGMENT ENTRY

         It is ordered that the judgment be affirmed and appellee recover of appellant costs herein

taxed.

         The Court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this Court directing the Lawrence County

Common Pleas Court to carry this judgment into execution.

         A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.                      McFarland, P.J. & Kline, J.: Concur in Judgment &

Opinion                                                              For the Court




                                                           BY:
                                             Peter B. Abele, Judge




                                            NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
