[Cite as State v. Holland, 2013-Ohio-905.]


                                        COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                    Plaintiff-Appellee         :      Hon. W. Scott Gwin, J.
                                               :      Hon. William B. Hoffman, J.
-vs-                                           :
                                               :
BRIAN E. HOLLAND                               :      Case No. 12-CA-56
                                               :
                                               :
                     Defendant-Appellant       :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 10 CR 628


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            February 26, 2013



APPEARANCES:

For Appellant:                                        For Appellee:

BRIAN E. HOLLAND, pro se                              KENNETH OSWALT
#647963 FMC Zone B                                    LICKING CO. PROSECUTOR
P.O. Box 23651                                        BRIAN WALTZ
Columbus, OH 43223                                    20 S. Second St., 4th Floor
                                                      Newark, OH 43055
[Cite as State v. Holland, 2013-Ohio-905.]


Delaney, J.

        {¶1} Appellant Brian E. Holland appeals from the June 19, 2012 judgment

entry of the Licking County Court of Common Pleas overruling his petition for post-

conviction relief. Appellee is the state of Ohio.

        {¶2} Appellant also has a pending represented appeal from the trial court’s

judgment entry of March 23, 2012, which arises from the same underlying case. The

appeals are not consolidated and therefore shall be determined separately.

                              FACTS AND PROCEDURAL HISTORY

        {¶3} A statement of the facts underlying appellant’s conviction upon one

count of illegal manufacture of methamphetamine and one count of illegal assembly or

possession of chemicals for the manufacture of methamphetamine is not necessary to

disposition of this appeal.

        {¶4} Appellant’s “Petition to Vacate or Set Aside Judgment of Conviction or

Sentence” filed on November 1, 2011, asserts a number of grounds for relief,

paraphrased here: 1) appellant should have been able to confront “Mr. Nard” and “Mr.

Stevens” at trial but neither witness was called by appellee; 2) the prosecutor

committed misconduct by referring to co-defendants when (allegedly) no one else was

charged; 3) his conviction was against the manifest weight and sufficiency of the

evidence; 4) Nard and Stevens were (allegedly) not prosecuted but appellant was;

and 5) appellant received ineffective assistance of trial counsel because counsel did

not object to the mention of “co-defendants” and appellant’s complicity therewith.

        {¶5} Appellant subsequently filed “Respectfully Asks this Court for Leave to

Admend Postconviction Petition with Evidence to Support A Evidentiary Hearing (Two
Licking County, Case No. 12-CA-56                                                        3

Sworn Statements)” (sic throughout). The affidavit of Charles Hess states in pertinent

part: I Charles E. Hess Sr. was present during [appellant’s] trail and I know that Derek

A. Stevens and Jyron L. Nard was not charged or co-defendants in [appellant’s] trail”

(sic throughout). The affidavit of Jeannie West states in pertinent part: “I Jeannie

West know that Derek A. Stevens and Jyron L. Nard was not co-defendants or

charged with any crime during [appellant’s] trail” (sic throughout).

       {¶6} Appellee responded to appellant’s petition for post-conviction relief on

May 8, 2012, and appellant replied. In his reply, appellant included a third affidavit

which states in pertinent part: “I Karla Swick, who resides at 22 Parker Avenue

Newark Ohio 43055 talked to Jyron Nard and he stated to me that he along with

Darrick Stevens were not charged with any crime in return for testimony against

[appellant]” (sic throughout).

       {¶7} The trial court first overruled appellant’s petition for post-conviction relief

on November 9, 2011, finding the petition was untimely and duplicated appellant’s

direct appeal. Appellant appealed from that decision. We found the petition was

timely filed and reversed and remanded the matter to the trial court with instructions to

review the merits of the petition and to determine whether a hearing is necessary.

State v. Holland, 5th Dist. No. 2011-CAO-122, 2012-Ohio-1404, at ¶ 6. If the trial

court determined no hearing was necessary, we noted “it should make appropriate

findings of fact and conclusions of law.” Id.

       {¶8} On June 19, 2012, the trial court again denied appellant’s petition for

post-conviction relief on the basis of res judicata, finding appellant’s claims were

raised or could have been raised at trial or on direct appeal.
Licking County, Case No. 12-CA-56                                                      4


       {¶9} Appellant now appeals from the judgment entry of the trial court denying

his petition for post-conviction relief.

       {¶10} Appellant raises two Assignments of Error:

       {¶11} “I.      THE TRIAL COURT ERRED BY IMPROPERLY DISMISSING

APPELLANTS          (sic) PETITION     FOR     POST-CONVICTION RELIEF WITHOUT

CONDUCTING          AN   EVIDENTIARY       HEARING     BECAUSE    APPELLANTS       (sic)

PETITION WITH IT’S (sic) SUPPORTING AFFIDAVITS CONTAINED SUFFICIENT

OPERTIVE (sic) FACTS TO DEMONSTRATE A SUBSTANTIVE GROUND FOR

RELIEF.”

       {¶12} “II.     TRIAL COURT ERRED BY FINDING THAT PETITIONERS

OUTSIDE THE RECORD AFFIDAVITS BY KARLA SWICK, CHARLES HESS AND

JENNIE WEST WERE DEFECTIVE.” (sic)

                                             I., II.

       {¶13} Appellant’s two assignments of error assert the trial court erred in

overruling his petition for post-conviction relief without a hearing and in finding the

affidavits he submitted were defective. We disagree.

       {¶14} We will address appellant’s second assignment of error first. Appellant

appeals from the trial court’s June 19, 2012 decision, which addresses each argument

raised in appellant’s petition, including those supported by the affidavits he provided.

We are unable to find any decision of the trial court in the record which states

appellant’s affidavits were “defective,” and appellant has not appealed from any such

ruling. Appellant’s second assignment of error is therefore overruled on that basis.
Licking County, Case No. 12-CA-56                                                      5


       {¶15} We further find the trial court did not abuse its discretion in denying

appellant’s petition without a hearing and agree the arguments set forth by appellant

are barred by res judicata.

       {¶16} When a defendant files a post-conviction petition pursuant to R.C.

2953.21, the trial court must grant an evidentiary hearing unless it determines that the

files and records of the case show that the petitioner is not entitled to relief. R.C.

2953.21(E). A trial court may also dismiss a petition for post-conviction relief without

holding a hearing when the doctrine of res judicata bars the claims raised in the

petition. State v. Szefcyk, 77 Ohio St.3d 93, 96, 1996–Ohio–337, 671 N.E.2d 233.

“Res judicata is applicable in all post-conviction relief proceedings.” Id. at 95. Under

the doctrine of res judicata, a defendant who was represented by counsel is barred

from raising an issue in a petition for post-conviction relief if the defendant raised or

could have raised the issue at trial or on direct appeal. Id.

       {¶17} We apply an abuse of discretion standard when reviewing a trial court's

decision to deny a post-conviction petition without a hearing. An abuse of discretion

connotes more than an error of law or judgment; it entails a decision that is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

       {¶18} All but one of appellant’s arguments here arise from his allegation that

two individuals present at the scene of his arrest were not arrested or charged with

any crime, although appellee referred to them at trial as “co-defendants.” Each of

these arguments could have been raised at trial or upon direct appeal.            These

individuals could have been called as witnesses at trial. Any alleged ineffectiveness
Licking County, Case No. 12-CA-56                                                        6


by trial counsel in connection with those witnesses, which appellant does not

articulate, is properly a matter for direct appeal. Finally, appellant fails to demonstrate

how criminal charges against those individuals, or the lack thereof, has any bearing on

his culpability. He has not demonstrated any invidious motive or bad faith that might

permit us to infer he is trying to articulate an argument based upon discriminatory

treatment. See, State v. Freeman, 20 Ohio St.3d 55, 58, 485 N.E.2d 1043 (1984).

       {¶19} Appellant’s final argument, that his convictions are against the manifest

weight and sufficiency of the evidence, is also a matter for direct appeal and is the

sole assignment of error in appellant’s contemporaneous appeal pending before us in

Fifth District Court of Appeals, Licking County case number 11-CA-47.

       {¶20} We find, therefore, the trial court did not abuse its discretion in overruling

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

assignments of error are overruled and the judgment of the Licking County Court of

Common Pleas is affirmed.


By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.



                                         HON. PATRICIA A. DELANEY



                                         HON. W. SCOTT GWIN



                                         HON. WILLIAM B. HOFFMAN
[Cite as State v. Holland, 2013-Ohio-905.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                      Plaintiff-Appellee       :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
BRIAN E. HOLLAND                               :
                                               :
                                               :   Case No. 12-CA-56
                     Defendant-Appellant       :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. W. SCOTT GWIN



                                             HON. WILLIAM B. HOFFMAN
