[Cite as State v. Eicholtz, 2014-Ohio-3837.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :            C.A. CASE NO.     13-CA-100

v.                                                      :            T.C. NO.   11-CR-494

JONATHAN EICHOLTZ                                       :            (Criminal appeal from
                                                                      Common Pleas Court)
        Defendant-Appellant                             :

                                                        :

                                               ..........

                                               OPINION

                          Rendered on the         5th       day of         September         , 2014.

                                               ..........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio
      Attorney for Plaintiff-Appellee

 JONATHAN EICHOLTZ, #656-677, Lebanon Correctional Institution, Post Office Box 56,
Lebanon, Ohio 45036
      Defendant-Appellant, pro se

                                               ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Jonathan Eicholtz appeals, pro se, from an October 22,
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2013, decision of the Clark County Court of Common Pleas, Criminal Division, denying his

petition to vacate or set aside judgment. Eicholtz filed a timely notice of appeal with this

Court on November 18, 2013.

       {¶ 2}    In January of 2012, Eicholtz was convicted of one count of aggravated

burglary, in violation of R.C. 2911.11, a felony of the first degree; one count of domestic

violence, in violation of R.C. 2919.25, a felony of the third degree; and one count of

abduction, in violation of R.C. 2905.02(A)(2), also a felony of the third degree.

       {¶ 3}    Eicholtz was sentenced to an aggregate prison term of ten years in prison.

Eicholtz appealed his conviction and sentence, and we subsequently affirmed the judgment

against him in State v. Eicholtz, 2d Dist. Clark No. 2012-CA-7, 2013-Ohio-302.

       {¶ 4}    On December 10, 2012, Eicholtz filed a petition for post-conviction relief

and a motion for new trial. On January 18, 2013, Eicholtz filed a second motion for new

trial. On January 23, 2013, Eicholtz filed a petition to vacate or set aside judgment of

conviction or sentence. In an entry issued on March 1, 2013, the trial court overruled all

three of Eicholtz’s post-conviction motions. Eicholtz did not appeal the denial of his

post-conviction motions.

       {¶ 5}    Eicholtz filed another petition to vacate or set aside judgment on July 17,

2013. On the same day, Eicholtz filed a “motion for leave to file [a] delayed motion for

new trial.” On October 22, 2013, the trial court overruled Eicholtz’s petition and found that

his motion for leave to file a delayed motion for new trial was moot.1


          1
           In its entry finding Eicholtz’s motion for leave to file a delayed motion for
   new trial to be moot, the trial court mistakenly referred to his filing as a “motion
   for leave to file a delayed appeal.”
[Cite as State v. Eicholtz, 2014-Ohio-3837.]
        {¶ 6}     It is from this judgment that Eicholtz now appeals.

        {¶ 7}     Because they are interrelated, Eicholtz’s first, second, and fourth

assignments of error will be discussed together as follows:

        {¶ 8}     “THE TRIAL COURT ERRED IN DISMISSING MR. EICHOLTZ[’S]

PETITION FOR POSTCONVICTION [RELIEF], WHERE APPELLANT PRESENTED

EVIDENCE          TO     SUBSTANTIATE          APPELLANT’S       ENTITLEMENT       TO    AN

EVIDENTIARY HEARING, THUS, VIOLATING MR. EICHOLTZ[’S] RIGHTS UNDER

THE FIFTH, SIXTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND ARTICLE I, SECTION 1, 2, 9, 10, 16, AND 20 OF THE

OHIO CONSTITUTION.”

        {¶ 9}     “APPELLANT’S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

WAS VIOLATED WHEN COUNSEL’S PERFORMANCE FAILED TO MEET THE

PREVAILING STANDARDS OF PRACTICE, THUS PREJUDICING APPELLANT.

U.S. CONST. AMENDS. VI, XIV; OHIO CONST. ART. I, § 10.”

        {¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

CONDUCT AN EVIDENTIARY HEARING UPON NEWLY DISCOVERED EVIDENCE

PURSUANT TO R.C. 2953.23.”

        {¶ 11} In his first and fourth assignments of error, Eicholtz contends that the trial

court erred when it dismissed his petition to vacate or set aside judgment of conviction

without holding an evidentiary hearing. In support of his petition, Eicholtz attached several

affidavits of individuals who he claims can exonerate him of the crimes for which he was

convicted. Specifically, Eicholtz argues that affidavits of Jewel Adkins, Ashley Lisch, Tom

Eicholtz, Darren Harmon, and Derek Dixon clearly establish that he was not the individual
                                                                                               4

who attacked Tabitha Jackson nor did he abduct her. In his second assignment, Eicholtz

argues that he was prejudiced by his trial counsel’s ineffective assistance because his counsel

failed to adequately investigate the case prior to trial.

        {¶ 12} Post-conviction relief is governed by R.C. 2953.21. The statute provides, in

pertinent part, that:

                Any person who has been convicted of a criminal offense * * * 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. R.C.

        2953.21(A)(1)(a).

        {¶ 13} “A post[-]conviction proceeding is not an appeal of a criminal conviction,

but, rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410,

 639 N.E.2d 67 (1994). See, also, State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

860 N.E.2d 77, ¶48. To prevail on a petition for post-conviction relief, the defendant must

establish a violation of his constitutional rights which renders the judgment of conviction

void or voidable. R.C. 2953.21.

        {¶ 14} The post-conviction relief statutes do “not expressly mandate a hearing for

every post-conviction relief petition and, therefore, a hearing is not automatically required.”
                                                                                           5

State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). Rather, in addressing a

petition for post-conviction relief, a trial court plays a gatekeeping role as to whether a

defendant will receive a hearing. Gondor at ¶51. A trial court may dismiss a petition for

post-conviction relief without a 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, 714 N.E. 2d 905 (1999), paragraph two of the syllabus; Gondor at ¶51.

       {¶ 15} We review the trial court’s denial of Eicholtz’s petition for an abuse of

discretion. Gondor at ¶52. As the Supreme Court of Ohio determined:

               “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

       to be expected that most instances of abuse of discretion will result in

       decisions that are simply unreasonable, rather than decisions that are

       unconscionable or arbitrary.

               A decision is unreasonable if there is no sound reasoning process that

       would support that decision. It is not enough that the reviewing court, were

       it deciding the issue de novo, would not have found that reasoning process to

       be persuasive, perhaps in view of countervailing reasoning processes that

       would support a contrary result. AAAA Enterprises, Inc. v. River Place

       Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

       N.E.2d 597 (1990).

       {¶ 16} “ ‘[I]n a petition for post-conviction relief, which asserts ineffective
                                                                                              6

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.’ ” State v. Kapper, 5 Ohio St.3d

36, 38, 448 N.E.2d 823 (1983), quoting State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819

(1980).

          {¶ 17} The Ohio Supreme Court has held that “in reviewing a petition for

post-conviction relief filed pursuant to R.C. 2953.21, a trial court should give due deference

to affidavits sworn to under oath and filed in support of the petition, but may, in the sound

exercise of discretion, judge their credibility in determining whether to accept the affidavits

as true statements of fact.” State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905

(1999). “The trial court may, under appropriate circumstances in post-conviction relief

proceedings, deem affidavit testimony to lack credibility without first observing or

examining the affiant.” Id.

          {¶ 18} In evaluating the credibility of affidavits in post-conviction proceedings, a

court should consider all relevant factors, including “(1) whether the judge reviewing the

post-conviction relief petition also presided at the trial, (2) whether multiple affidavits

contain nearly identical language, or otherwise appear to have been drafted by the same

person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are

relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts,

and (5) whether the affidavits contradict evidence proffered by the defense at trial.

Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by

evidence in the record by the same witness, or to be internally inconsistent, thereby
                                                                                             7

weakening the credibility of that testimony.” Id. at 285. “Depending on the entire record, one

or more of these or other factors may be sufficient to justify the conclusion that an affidavit

asserting information outside the record lacks credibility. Such a decision should be within

the discretion of the trial court.” Id.

        {¶ 19} In order to demonstrate ineffective assistance of trial counsel, a defendant

must demonstrate that counsel’s performance was deficient and fell below an objective

standard of reasonable representation, and that the defendant was prejudiced by counsel’s

performance; that is, there is a reasonable probability that but for counsel’s unprofessional

errors, the result of the defendant’s trial or proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). “Hindsight is not permitted to distort

the assessment of what was reasonable in light of counsel’s perspective at the time, and a

debatable decision concerning trial strategy cannot form the basis of a finding of ineffective

assistance of counsel.” State v. Hill, 2d Dist. Greene No. 2004 CA 79, 2005-Ohio-3176, ¶

13. “When the evidence a petitioner relies upon [sic] dehors the record that evidence must

meet a threshold of cogency.” Id. at ¶ 8. “Cogent evidence is that which is more than

‘marginally significant’ and advances a claim ‘beyond mere hypothesis and desire for further

discovery.’” Id.

        {¶ 20} The record discloses that the transcript from Eicholtz’s trial was filed as part

of his direct appeal in this Court on July 24, 2012. Under R.C. 2953.21(A)(2), Eicholtz’s

petition would have to have been filed no later than one-hundred-eighty days after July 24,

2012, which would have been January 20, 2013. Accordingly, by filing the petition which
                                                                                            8

is the subject of this appeal on July 17, 2013, Eicholtz was clearly outside the

one-hundred-eighty day time limit imposed by R.C. 2953.21(A)(2).

       {¶ 21} R.C. 2953.23(A) provides in pertinent part:

              (A) Whether a hearing is or is not held on a petition filed pursuant to

       section 2953.21 of the Revised Code, a court may not entertain a petition

       filed after the expiration of the period prescribed in division (A) of that

       section or a second petition or successive petitions for similar relief on behalf

       of a petitioner unless division (A)(1) or (2) of this section applies:

              (1) Both of the following apply:

              (a) Either the 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, or, subsequent to the period prescribed in division

       (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier

       petition, the United States Supreme Court recognized a new federal or state

       right that applies retroactively to persons in the petitioner's situation, and the

       petition asserts a claim based on that right.

              (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 * * *.

       {¶ 22} As previously noted, Eicholtz has submitted affidavits of Jewel Adkins,

Ashley Lisch, Tom Eicholtz, Darren Harmon, and Derek Dixon. Upon review, we conclude

that none of the individual affidavits attached to Eicholtz’s petition contain any credible
                                                                                               9

evidence which accounts for his delay in procuring the statements.                 Moreover, the

statements in each affidavit upon review appear deliberately contrived in order to contradict

sworn testimony adduced at trial.        Essentially, Eicholtz attempts to present additional

evidence of his defense theory that he presented at trial, namely that he was not the

individual who assaulted Jackson. The jury, however, heard the evidence which supported

his theory of defense during the trial, and they chose to disregard it. In fact, the record

establishes that Eicholtz’s trial counsel presented a vigorous defense wherein he attempted

to undermine the State’s evidence that Eicholtz was the individual who inflicted the injuries

upon Jackson. In her own testimony at trial, Jackson recanted her pre-trial identification of

Eicholtz as her assailant and stated that she got into a fight with another woman who injured

her. Eicholtz now seeks to suggest that the injuries complained of by Jackson did not exist

through his father’s, Tom’s, affidavit, which contradict his argument that someone else

caused them. Thus, we find that Eicholtz did not overcome the threshold requirement set

out in R.C. 2953.23(A)(1)(a) that he was “unavoidably prevented” from the discovery of the

alleged ineffective assistance of trial counsel during the original trial in this matter.

        {¶ 23} Other than self-serving and contradictory statements, Eicholtz made no

mention of any obstacles to his discovery relevant to this matter, nor does he provide a

reasonable basis for his failure to file his petition in a timely manner. Moreover, Eicholtz

makes no attempt to argue that a new federal or state law has been enacted that applies

retroactively to his situation.

        {¶ 24} Because Eicholtz failed to establish any of the criteria set forth in R.C.

2953.23(A), we find the trial court did not err in overruling his petition for post-conviction
                                                                                             10

relief.

          {¶ 25} Eicholtz’s first, second, and fourth assignments of error are overruled.

          {¶ 26} Eicholtz’s third and final assignment of error is as follows:

          {¶ 27} “THE       PROSECUTION          FAILED      TO     PROVIDE       FAVORABLE

INFORMATION TO THE APPELLANT PRIOR TO TRIAL AS IS REQUIRED BY THE

FEDERAL CONSTITUTION.”

          {¶ 28} In his third assignment, Eicholtz argues that the State failed to disclose

evidence of Tabitha Jackson’s criminal record which contained two prior convictions for

falsification.

          {¶ 29} In State v. Goldwire, 2d Dist. Montgomery No. 20838, 2005-Ohio-5784, ¶

11, we held the following:

                 “The most significant restriction on Ohio’s statutory procedure for

          post-conviction relief is that the doctrine of res judicata requires that the

          claim presented in support of the petition represent error supported by

          evidence outside the record generated by the direct criminal proceedings.”

          State v. Monroe, Franklin App. No. 04AP-658, 2005-Ohio-5242.            “Under

          the doctrine of res judicata, a final judgment of conviction bars the 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 (1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104. “Our statutes do not
                                                                                            11

        contemplate relitigation of those claims in post conviction proceedings where

        there are no allegations to show that they could not have been fully

        adjudicated by the judgment of conviction and an appeal therefrom.” Id.

        “To overcome the res judicata bar, the petitioner must produce new evidence

        that renders the judgment void or voidable, and show that he could not have

        appealed the claim based upon information contained in the original record.”

        State v. Aldridge (1997), [120] Ohio App.3d 122, 151, 697 N.E.2d 228.

        “Res judicata also implicitly bars a petitioner from ‘repackaging’ evidence or

        issues which either were, or could have been, raised in the context of the

        petitioner’s trial or direct appeal.” Monroe.

        {¶ 30} The issue regarding the State’s failure to disclose Jackson’s prior convictions

to Eicholtz during discovery clearly could have been raised on direct appeal since the

information was introduced at trial. Accordingly, his argument is barred by res judicata.

{¶ 31} Eicholtz’s third assignment of error is overruled.

{¶ 32} All of Eicholtz’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

                                         ..........

HALL, J. and WELBAUM, J., concur.




Copies mailed to:

Ryan A. Saunders
Jonathan Eicholtz
                            12

Hon. Douglas M. Rastatter
