[Cite as State v. Clayton, 2018-Ohio-1777.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




 STATE OF OHIO,                                     :     CASE NO. CA2017-11-162

          Plaintiff-Appellee,                       :           OPINION
                                                                 5/7/2018
                                                    :
   -vs-
                                                    :

 GREGORY CLAYTON,                                   :

          Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 14CR29857



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Gregory Clayton, #A731925, Madison Correctional Institution, 1851 State Route 56,
London, Ohio 43140, defendant-appellant, pro se



          M. POWELL, J.

          {¶ 1} Defendant-appellant, Gregory Clayton, appeals a decision of the Warren

County Court of Common Pleas dismissing his petition for postconviction relief without

holding an evidentiary hearing.

          {¶ 2} Appellant was indicted in 2014 for trafficking in marijuana, possession of

marijuana, and permitting drug abuse. The indictment stemmed from the discovery of
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approximately 400 pounds of marijuana following the search of a Chrysler Pacifica driven

by appellant. The search warrant authorizing the search of the vehicle was signed by

Warren County Common Pleas Judge Robert Peeler. Appellant and his co-defendant,

Jason Raphael, moved to suppress the evidence found from the search of the vehicle and

their persons along with the statements both made to the police. Following an evidentiary

hearing, the trial court suppressed the evidence seized as a result of the search of the

Pacifica and evidence obtained from appellant. On August 10, 2015, we reversed the trial

court's decision and remanded the matter to the trial court for further proceedings. State v.

Raphael, 12th Dist. Warren Nos. CA2014-11-138 and CA2014-11-139, 2015-Ohio-3179.1

        {¶ 3} On remand, appellant and Raphael were tried jointly in a bench trial.

Detective Dan Schweitzer, the detective who drafted the affidavit for the search warrant,

testified on behalf of the state. On January 13, 2017, the trial court found appellant guilty

of marijuana possession and permitting drug abuse, but not guilty of trafficking in marijuana,

and sentenced him to a mandatory eight years in prison. Appellant appealed his conviction.

        {¶ 4} On August 23, 2017, while his appeal was pending in this court, appellant filed

a petition for postconviction relief ("PCR") under R.C. 2953.21 and requested an evidentiary

hearing. Appellant alleged that Judge Peeler's signature on the search warrant was forged

and that Detective Schweitzer "or a colleague" had forged it. The petition was accompanied

by four documents attached as exhibits, namely, a commitment order from an unrelated

case purporting to bear the actual signature of Judge Peeler, the search warrant for the

Pacifica and the search warrant return, and the August 14, 2017 unsigned, non-notarized

statement of a deputy clerk asserting that "there are no search warrants. Judge Peeler did


1. Appellant subsequently sought a discretionary appeal to the Ohio Supreme Court. The supreme court
ultimately dismissed the appeal for failure to prosecute. State v. Raphael, 145 Ohio St.3d 1431, 2016-Ohio-
1328. The supreme court subsequently denied appellant's motion for reconsideration and his pro se motion
for relief and pro se application for reopening the appeal. State v. Raphael, 145 Ohio St.3d 1473, 2016-Ohio-
3028; and State v. Raphael, 147 Ohio St.3d 1457, 2016-Ohio-8121.
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NOT sign any documents in feb 2014 on this case." The state moved to dismiss appellant's

PCR petition.

       {¶ 5} On September 18, 2017, appellant filed an amended PCR petition. The state

moved for summary judgment. Attached to the state's motion was an affidavit from Warren

County Clerk of Courts Jean Kilgore explaining her August 14, 2017 statement and stating

that while the search warrant return for the Pacifica was signed by Warren County Common

Pleas Judge Donald Oda, the search warrant itself was signed by Judge Peeler.

Subsequently, appellant moved for summary judgment. Appellant attached a signed and

notarized "affidavit of verity" to his motion, swearing that the allegations he had made were

"both true and correct to the best of [his] knowledge and personal belief."

       {¶ 6} On November 3, 2017, the trial court dismissed appellant's PCR petition

without a hearing. The trial court found that because appellant did not raise the issue of the

forged signature in his motion to suppress, he had waived his right to raise the issue in his

PCR petition. Moreover, the trial court found that even if the issue was not waived, appellant

"ha[d] not set forth sufficient operative facts in his petition, the supporting affidavits, the

documentary evidence, the files, and the record filed herein to establish substantive

grounds for relief." The trial court further found that Judge Peeler's signature on the search

warrant was "an authentic signature, signed by him in the presence of Det. Schweitzer,"

and that irrespective of the issuance of the search warrant, the law enforcement officers

had probable cause to search the Pacifica as set forth in this court's opinion reversing the

grant of appellant's motion to suppress. See Raphael, 2015-Ohio-3179. On November 13,

2017, we upheld appellant's conviction. State v. Clayton, 12th Dist. Warren No. CA2017-

01-009, 2017-Ohio-8538.

       {¶ 7} Appellant now appeals the dismissal of his PCR petition, raising two

assignments of error. The assignments of error will be addressed together.

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       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT'S

ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS IN GRANTING THE STATE A

SUMMARY JUDGMENT.

       {¶ 10} Assignment of Error No. 2:

       {¶ 11} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN VIOLATION OF

THE APPELLANT'S ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS OF LAW IN

NOT ORDERING AND CONDUCTING AN EVIDENTIARY HEARING AND MAKING AND

FILING FINDINGS OF FACT WITH CONCLUSIONS OF LAW RELATIVE THERETO.

       {¶ 12} Appellant generally argues that the trial court erred in dismissing his PCR

petition without a hearing because the petition "stated substantive grounds for relief" and

was supported by "sufficient documents which served as operative facts." In his first

assignment of error, appellant further argues that res judicata cannot be applied to bar his

forgery claim because the claim is supported by evidence outside the record. In his second

assignment of error, appellant challenges the trial court's factual finding that Judge Peeler's

signature on the search warrant is "authentic." Appellant asserts that given that "both [he]

and the deputy clerk of court averred that the signature on the search warrant wasn't

authentic," the trial court's contrary finding was solely based upon its own personal opinion

and was therefore prejudicial error.

       {¶ 13} Initial PCR petitions are governed by R.C. 2953.21, which provides three

methods for adjudicating the petition. State v. Statzer, 12th Dist. Butler No. CA2017-02-

022, 2018-Ohio-363, ¶ 12. When a criminal defendant challenges his conviction through a

PCR petition, the trial court may (1) summarily dismiss the petition without holding an

evidentiary hearing, (2) grant summary judgment on the petition to either party who moved

for summary judgment, or (3) hold an evidentiary hearing on the issues raised by the

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petition. R.C. 2953.21(D) thru (F). A trial court's decision to summarily deny a PCR petition

without holding an evidentiary hearing pursuant to R.C. 2953.21(D) will not be reversed

absent an abuse of discretion. Statzer at ¶ 14.

       {¶ 14} "An evidentiary hearing is not automatically guaranteed each time a

defendant files a petition for postconviction relief." State v. Suarez, 12th Dist. Warren No.

CA2014-02-035, 2015-Ohio-64, ¶ 10. In order to obtain an evidentiary hearing on a PCR

petition, the petitioner must show that there are substantive grounds for relief that would

warrant a hearing based upon the petition, the supporting affidavits, and the files and

records in the case. State v. Watson, 126 Ohio App.3d 316, 324 (12th Dist.1998); State v.

Jackson, 64 Ohio St. 2d 107, 110 (1980). A PCR petition may be dismissed without an

evidentiary hearing when the claims raised are barred by the doctrine of res judicata. State

v. Perry, 10 Ohio St. 2d 175, 180 (1967).

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

convicted defendant who was represented by counsel 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. Id. at paragraph

nine of the syllabus.

       {¶ 16} The presentation of competent, relevant, and material evidence outside the

trial record may, but does not automatically, defeat the application of res judicata. Statzer,

2018-Ohio-363 at ¶ 16. To so qualify, the evidence outside the record must demonstrate

that appellant could not have raised the claim based upon information in the original trial

record. Id. Thus, the evidence relied upon must not be evidence that was in existence or

available for use at the time of trial or direct appeal. State v. Lawson, 103 Ohio App.3d 307,

315 (12th Dist.1995). Further, evidence presented outside the record must meet some

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                                                                    Warren CA2017-11-162

threshold standard of cogency. Statzer at ¶ 16. Thus, if the evidence outside the record is

"marginally significant and does not advance the petitioner's claim beyond a mere

hypothesis and a desire for further discovery," res judicata still applies to the claim. State

v. Lindsey, 12th Dist. Brown No. CA2002-02-002, 2003-Ohio-811, ¶ 22.

       {¶ 17} We find that appellant's PCR petition is barred by res judicata and that

appellant did not support his petition with competent, relevant, and material evidence

outside the record.

       {¶ 18} To survive preclusion by res judicata, a petitioner must produce new evidence

that would render the judgment void or voidable and must show that he could not have

appealed the claim based upon information contained in the original record. State v. King,

5th Dist. Muskingum No. CT2006-0021, 2007-Ohio-2810, ¶ 19.              In his PCR petition,

appellant claims that "Detective Schweitzer or a colleague" forged Judge Peeler's signature

on the search warrant. The propriety of the search warrant signed by Judge Peeler was at

issue during the hearing on appellant's motion to suppress evidence. Exhibits used during

the suppression hearing included the detective's search warrant affidavit and the search

warrant itself, both signed by Judge Peeler.         Detective Schweitzer was examined

extensively with regard to the execution of the search warrant. Yet, appellant did not

specifically raise the forgery issue in his motion to suppress or during the suppression

hearing. Likewise, appellant could have raised the forgery issue at trial or on direct appeal

of his conviction. Appellant did not submit any evidence with his petition demonstrating why

the forgery claim could not have been raised at trial or on direct appeal. Accordingly, res

judicata bars him from raising the issue in his PCR petition. See id.; Watson, 126 Ohio

App.3d 316.

       {¶ 19} Appellant nevertheless asserts that the evidence outside the record he

submitted with his petition defeats the application of res judicata. However, the documents

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submitted with appellant's petition were either already in existence at the time of trial or are

not competent, relevant, and material evidence. The search warrant (Exhibit 2) clearly

existed and was available for use at the time of trial. Exhibit 1, a commitment order from

an unrelated case and filed several years after the search warrant at issue was filed, is not

genuinely relevant, does not establish that Detective Schweitzer or someone else forged

Judge Peeler's signature on the search warrant, and does not advance appellant's claim

beyond mere hypothesis.

       {¶ 20} Exhibit 3, the clerk of courts' August 2017 unsigned statement that "there are

no search warrants. Judge Peeler did NOT sign any documents in feb. 2014 on this case,"

is likewise not genuinely relevant. The exhibit is inconsistent with the record and appellant's

own attachments which show that a search warrant was filed in this case. Moreover, the

exhibit does not establish that Judge Peeler's signature was forged. The exhibit is further

contradicted by the clerk's subsequent October 3, 2017 affidavit which was attached as an

exhibit to the state's motion for summary judgment. The clerk's affidavit plainly states that

the search warrant for the Pacifica was signed by Judge Peeler.            Finally, appellant's

"affidavit of verity" which he attached to his motion for summary judgment is self-serving

and not entitled to much weight.

       {¶ 21} Accordingly, because appellant's attachments are not genuinely relevant and

did not advance appellant's claim of forgery beyond mere hypothesis, we find appellant did

not overcome the bar of res judicata.

       {¶ 22} Appellant further challenges the trial court's factual finding that Judge Peeler's

signature on the search warrant was "authentic," arguing that the finding is solely based

upon the trial court's personal opinion, and not the record, and is therefore prejudicial error.

       {¶ 23} R.C. 2953.21(D) explicitly requires a trial court to make findings of fact and

conclusions of law when dismissing a PCR petition without a hearing. "Findings of fact and

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conclusions of law should be clear, specific and complete." State v. Clemmons, 58 Ohio

App.3d 45, 46 (2d Dist.1989). The test of their adequacy is whether they are sufficiently

comprehensive and pertinent to the issue to form a basis for the decision and whether they

are supported by the evidence. Id.; Lindsey, 2003-Ohio-811 at ¶ 18.

      {¶ 24} We find that record evidence supports the trial court's factual finding that

Judge Peeler's signature was authentic.        During the suppression hearing, Detective

Schweitzer testified, under oath, as to the circumstances surrounding the signing and

execution of the search warrant, including the fact that the search warrant was signed by

Judge Peeler in his home in the presence of the detective. The trial court expressly based

the challenged factual finding on Detective Schweitzer's testimony at the suppression

hearing. Appellant did not challenge the detective's testimony during the suppression

hearing, at trial, or on direct appeal. Moreover, appellant has never provided any evidence

disputing Detective Schweitzer's sworn testimony. Upon review, we further find that the

trial court's findings of fact and conclusions of law in support of the court's dismissal of

appellant's petition are clear, specific, and complete, and adequately apprise both appellant

and this court of its reasoning in dismissing appellant's petition in compliance with R.C.

2953.21(D). See Lawson, 103 Ohio App.3d 307.

      {¶ 25} In light of the foregoing, we find the trial court did not abuse its discretion in

dismissing appellant's PCR petition without a hearing.         Appellant's first and second

assignments of error are overruled.

      {¶ 26} Judgment affirmed.


      HENDRICKSON, P.J., and RINGLAND, J., concur.




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