[Cite as State v. Smith, 2017-Ohio-7659.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        SCIOTO COUNTY

STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :     Case No. 16CA3774

v.                                              :
                                                      DECISION AND
THOMAS SMITH,                                   :     JUDGMENT ENTRY

        Defendant-Appellant.                    :     RELEASED 09/14/2017


                                            APPEARANCES:


Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Ohio Public
Defender, Columbus, Ohio, for defendant-appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for plaintiff-appellee.


Hoover, J.
        {¶1}     Defendant-appellant, Thomas Smith (“Smith”), appeals from the decision of the

Scioto County Court of Common Pleas that denied his petition for post conviction relief without

a hearing. For the reasons stated below, we affirm the judgment of the trial court.


                                    I. Facts and Procedural History


        {¶2}     The Scioto County Grand Jury indicted Smith and 21 other individuals who were

involved in a conspiracy to traffic drugs in Portsmouth, Ohio. Smith was a resident of Columbus,

Ohio. The co-defendants included residents of both Portsmouth and Columbus. Among the

Columbus co-defendants were members of the criminal gang known as the 22nd Street Bloods.
Scioto App. No. 16CA3774                                                                                          2


Some of the defendants were indicted on as few as three counts, while others were indicted on as

many as 15 counts. Smith was indicted on 14 counts.

        {¶3}     All of the defendants except for Smith pleaded guilty1 and received an agreed

sentence. The 10 Portsmouth co-defendants received sentences ranging from 0 months of

incarceration to 54 months, resulting in an average sentence of approximately 18 months. The 11

Columbus co-defendants received sentences ranging from 24 months of incarceration to 120

months, the average sentence being approximately 93 months. Instead of taking an offered plea

deal, Smith decided to go to trial instead.

        {¶4}     Following a jury trial, Smith was convicted of: one count of engaging in a pattern

of corrupt activity; one count of conspiracy to engage in a pattern of corrupt activity; six counts

of trafficking in drugs; one count of possession of heroin; one count of possession of cocaine;

one count of conspiracy to traffic in heroin; and one count of participating in a criminal gang. On

February 5, 2015, the trial court issued a judgment entry sentencing Smith to a total aggregate

sentence of 40 years imprisonment. Smith appealed his convictions and sentences. See State v.

Smith, 2016-Ohio-5062, 70 N.E.3d 150 (4th Dist.). In that appeal, we found that Smith’s

convictions for engaging in a pattern of corrupt activity and participating in a criminal gang

should have merged as allied offenses of similar import and remanded the case to the trial court

for a new sentencing hearing on those counts. Id. at ¶¶ 122-123.2 Prior to the resentencing

hearing, on July 28, 2016, Smith filed a petition for post conviction relief, alleging that the trial

court punished him for exercising his constitutional right to a trial. In support of his petition,

Smith filed the sentencing entries of his 21 co-defendants, a summary sentencing chart of all


1
  In exchange for pleading guilty to certain charges, the remaining charges pending against the defendants were
dismissed.
2
  The trial court resentenced Smith on September 2, 2016, in accordance with our remand. Smith now has an
aggregate sentence of 32 years in prison.
Scioto App. No. 16CA3774                                                                                3


defendants, and the known criminal histories of his co-defendants. Smith contends that when

comparing his sentence to those of his co-defendants, including those with similar criminal

histories and more extensive culpability in this case, the only reasonable explanation one can

make is that the trial court punished him for exercising his right to a trial – i.e., the trial court

imposed an unconstitutional trial tax.

        {¶5}    The trial court did not hold a hearing on Smith’s petition; instead it found that the

claims were barred under the doctrine of res judicata. The trial court also proceeded to find that

the claims lacked merit substantively as well. It is from the trial court’s decision denying his

petition for post conviction relief that Smith now appeals.


                                       II. Assignment of Error


        {¶6}    Smith assigns the following error for our review:


Assignment of Error:

        The trial court abused its discretion when it denied Thomas O. Smith’s petition
        for postconviction relief without an evidentiary hearing. Sixth, Eighth, and
        Fourteenth Amendments to the U.S. Constitution; Article I, Sections 9, 10, and 16
        of the Ohio Constitution; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,
        860 N.E.2d 77; Sentencing Hr’g Tr. 8, 13; Thomas O. Smith’s R.C. 2953.21
        Petition for Postconviction Relief to Vacate and Set Aside Judgment; State’s
        Motion to Dismiss Defendant’s Petition to Vacate or Set Aside Judgment of
        Conviction or Sentence; Judgment Entry (Aug. 26, 2016).


                                        III. Law and Analysis


        {¶7}    In his sole assignment of error, Smith contends that the trial court erred by

denying his petition for post conviction relief. In particular, Smith argues that the disparity

between his sentence and the sentences of his co-defendants, all of whom pleaded guilty and

received less prison time, demonstrates that the trial court vindictively punished him for
Scioto App. No. 16CA3774                                                                                 4


exercising his right to a trial – i.e., the trial court imposed a trial tax. Thus, Smith contends that

his petition should have been granted, or at a minimum, the trial court should have held a hearing

on the matter.


                                       A. Standard of Review


        {¶8}     “[A] trial court’s decision granting or denying a postconviction petition filed

pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court

should not overrule the trial court’s finding on a petition for postconviction relief that is

supported by competent and credible evidence.” State v. Gondor, 112 Ohio St.3d 377, 2006–

Ohio–6679, 860 N.E.2d 77, ¶ 58. “A trial court abuses its discretion when its decision is

unreasonable, arbitrary, or unconscionable.” State v. Knauff, 4th Dist. Adams No. 13CA976,

2014–Ohio–308, ¶ 19, citing Cullen v. State Farm Mut. Auto Ins. Co., 137 Ohio St.3d 373,

2013–Ohio–4733, 999 N.E.2d 614, ¶ 19.


                                  B. Post Conviction Proceedings


        {¶9}     A petition for post conviction relief brought pursuant to R.C. 2953.21 provides

convicted individuals with a means to collaterally attack their convictions. In re B.C.S., 4th Dist.

Washington No. 07CA60, 2008–Ohio–5771, ¶ 10. “It is a civil proceeding designed to determine

whether ‘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.’ R.C.

2953.21(A). Thus, a petitioner must demonstrate errors of a constitutional magnitude and

resulting prejudice before being entitled to relief under the statute.” Id . R.C. 2953.21 specifically

provides:


        (A)(1)(a) Any person who has been convicted of a criminal offense or adjudicated
Scioto App. No. 16CA3774                                                                         5


      a delinquent child 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.

      ***

      (D) * * * Before granting a hearing on a petition filed under division (A) of this

      section, the court shall determine whether there are substantive grounds for relief.

      In making such a determination, the court shall consider, in addition to the

      petition, the supporting affidavits, and the documentary evidence, all the files and

      records pertaining to the proceedings against the petitioner, including, but not

      limited to, the indictment, the court’s journal entries, the journalized record of the

      clerk of the court, and the court reporter’s transcript. The court reporter’s

      transcript, if ordered and certified by the court, shall be taxed as court costs. If the

      court dismisses the petition, it shall make and file findings of fact and conclusions

      of law with respect to such dismissal.

       ***

      (F) Unless the petition and the files and records of the case show the petitioner is

      not entitled to relief, the court shall proceed to a prompt hearing on the issues

      even if a direct appeal of the case is pending.

      ***
Scioto App. No. 16CA3774                                                                               6


       {¶10} A petitioner seeking post conviction relief is not automatically entitled to an

evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999); State v.

Slagle, 4th Dist. Highland No. 11CA22, 2012–Ohio–1936, ¶ 13. Rather, before granting a

hearing on a petition, the trial court must first determine that substantive grounds for relief exist.

R.C. 2953.21(D). “Substantive grounds for relief exist and a hearing is warranted if the petitioner

produces sufficient credible evidence that demonstrates the petitioner suffered a violation of the

petitioner’s constitutional rights.” In re B.C.S. at ¶ 11. Furthermore, in order to merit a hearing,

the petitioner must show that the claimed “errors resulted in prejudice.” Id., quoting Calhoun at

283.

       {¶11} Additionally, res judicata applies to proceedings involving post conviction relief.

State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996). “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.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the

syllabus. “Therefore, ‘any issue that could have been raised on direct appeal and was not is res

judicata and not subject to review in subsequent proceedings.’ ” State v. Segines, 8th Dist.

Cuyahoga No. 99789, 2013–Ohio–5259, ¶ 8, quoting State v. Saxon, 109 Ohio St.3d 176, 2006–

Ohio–1245, 846 N.E.2d 824, ¶ 16.

       {¶12} Moreover, the fact that Smith’s petition is supported by evidence outside the trial

record does not automatically bar application of res judicata. In Slagle at ¶ 16, we noted that:
Scioto App. No. 16CA3774                                                                           7


       The presentation of competent, relevant, and material evidence dehors the record

       may defeat the application of res judicata. See State v. Smith (1985), 17 Ohio

       St.3d 98, 101, 17 OBR 219, 221, 477 N.E.2d 1128, 1131–1132, fn. 1. However, a

       petition for postconviction relief is not the proper vehicle to raise issues that were

       or could have been determined on direct appeal. State v. Perry, supra, 10 Ohio

       St.2d at 182, 39 O.O.2d at 193, 226 N.E.2d at 109. “[E]vidence presented outside

       the record must meet some threshold standard of cogency; otherwise it would be

       too easy to defeat the holding of Perry by simply attaching 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.” Coleman, supra,

       Hamilton App. No. C–900811, at 7. To overcome the res judicata bar, evidence

       offered dehors the record must demonstrate that the petitioner could not have

       appealed the constitutional claim based upon information in the original record.

       [Ohio v. Franklin, 1st Dist. No. C–930760, 1995 WL 26281 (Jan. 25, 1995), *7.]

       State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362 (12th Dist.1995).


Furthermore, 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. Lynch, 1st Dist. Hamilton No. C-010209, 2001

WL 1635760, *3 (Dec. 21, 2001); State v. Redd, 6th Dist. Lucas No. L-00-1148, 2001 WL

1001182, *2 (Aug. 31, 2001); State v. Murphy, 10th Dist. Franklin No. 00AP-233, 2000 WL

1877526, *3 (Dec. 26, 2000).


                               C. Res Judicata Bars the Petition
Scioto App. No. 16CA3774                                                                               8


        {¶13} The case sub judice raises similar issues to those raised by the petitioner in State

v. Lawson, 10th Dist. Franklin No. 02AP-148, 2002-Ohio-3329. In Lawson, the petitioner

alleged in his post conviction petition that he was denied due process of law because the sentence

imposed upon him was not consistent with sentences imposed for similar crimes committed by

similar offenders. Id. at ¶ 1. As evidence of the dissimilarity of his sentence, the petitioner in

Lawson supported his petition with a summary of 41 criminal cases in which the offender was

sentenced in the same trial court for similar offenses. Id. at ¶ 16. The trial court denied the post

conviction petition because it determined that the claim was barred by the doctrine of res

judicata. Id. at ¶ 5.

        {¶14} On appeal, the Tenth District Court of Appeals also held that the doctrine of res

judicata barred the post conviction petition. Id. at ¶ 16. Of significance, the court noted that the

sentences cited by the petitioner “were in existence and available at the time of [petitioner’s]

sentencing and should have been offered by [petitioner] at sentencing if he wished to rely upon

them.” Id. The court recognized that there is an “inherent difficulty” in presenting evidence of

similar cases at sentencing when it may not be known whether there is a consistency issue until

after the court has imposed sentence. Id. at ¶ 17. Nonetheless, the court held that “because such

evidence is available at the time of sentencing, a defendant must be prepared to at least raise the

consistency issue during the sentencing hearing and/or seek to supplement the record, if

necessary, with comparable cases after the sentence has been imposed.” Id. It further stated,

“supplementing the record to include information regarding other, similar cases presents the

appellate court with an adequate basis to determine on direct appeal whether the sentence

imposed on the defendant is consistent.” Id. at ¶ 18.
Scioto App. No. 16CA3774                                                                                            9


           {¶15} In this case, Smith asserts that the trial court punished him for exercising his

constitutional right to a trial by imposing a vindictive sentence. Furthermore, Smith relies upon

the sentencing entries of his co-defendants to support his argument. However, like the sentencing

information used by the petitioner in Lawson, almost all of the co-defendants’ sentencing entries

were in existence and available at the time of Smith’s original sentencing hearing.3 Thus, we

conclude that the sentencing entries do not constitute newly discovered evidence. Accordingly,

we find that the issues raised by Smith could have been raised at trial or in a direct appeal and are

barred by the doctrine of res judicata. Smith’s sole assignment of error is overruled.


                                                    IV. Conclusion


           {¶16} Having overruled Smith’s sole assignment of error, we affirm the judgment of the

trial court.


                                                                                       JUDGMENT AFFIRMED.




3
    Specifically, 17 of the 21 co-defendant sentencing entries existed at the time of Smith’s sentencing hearing.
Scioto App. No. 16CA3774                                                                              10


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

        The Court finds that reasonable grounds existed for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Scioto County
Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J., and Abele, J.: Concur in Judgment and Opinion.


                                                For the Court


                                                By: ____________________________
                                                    Marie Hoover, 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.
