[Cite as State v. Warmus, 2014-Ohio-928.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99962


                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                MATTHEW WARMUS
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-536383

            BEFORE:          Blackmon, J., Celebrezze, P.J., and Keough, J.

            RELEASED AND JOURNALIZED:                      March 13, 2014
ATTORNEYS FOR APPELLANT

David L. Doughten
Robert A. Dixon
David L. Doughten Co. L.P.A.
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

T. Allan Regas
Assistant Prosecuting Attorney
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:
       {¶1} Petitioner-appellant Matthew Warmus appeals from the trial court’s

decision that denied his petition for postconviction relief and assigns the following errors

for our review:

       I. The trial court denied appellant[’s] due process of law and a fair trial by
       allowing a state expert witness to testify that he listened to an unintelligible
       recording of the petitioner and interpreted those words to constitute a
       possible confession by the petitioner.

       II. The prosecutor committed misconduct by introducing and arguing that
       the petitioner transported an illegal weapon in his vehicle.

       III. The trial court erred by not ensuring Warmus understood his right
       against self-incrimination as established by the Fifth Amendment to the
       United States Constitution.

       IV. The petitioner was deprived of his right to effective assistance of
       counsel and to due process of law as guaranteed by the Fifth, Sixth, and
       Fourteenth Amendment to the United States Constitution and Article I § 10
       and § 16 of the Ohio Constitution.

       V. The trial court erred by failing to hold an evidentiary hearing as the
       affidavits provided in petitioner’s motion to vacate filed pursuant to R.C. §
       2953.21 establish a meritorious issue.

       VI. Cumulative errors deprived the appellant of his due process right to a
       fair trial.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} On October 28, 2010, a jury found Warmus guilty of murdering a parking

lot attendant in a dispute over a parking fee, rejecting his claim that he acted in

self-defense.     The trial court sentenced Warmus to 15 years to life, with three years

consecutive on the firearm specification.     Warmus directly appealed his convictions in
State v. Warmus, 8th Dist. Cuyahoga No. 96026, 2011-Ohio-5827 (“Warmus I”).1 In his

direct appeal, Warmus assigned 11 errors that collectively raised issues concerning the

trial court’s admission of testimony, jury instructions, ineffective assistance of counsel,

prosecutorial misconduct, and the imposition of a fine.

       {¶4} On November 11, 2011, we affirmed Warmus’s convictions but remanded

with instructions for the trial court to modify the fine to $15,000. The Ohio Supreme

Court declined jurisdiction in State v. Warmus, 131 Ohio St.3d 1460, 2012-Ohio-648,

961 N.E.2d 1137 (“Warmus II”).         The United States Supreme Court also declined

jurisdiction in Warmus v. Ohio, 133 S.Ct. 335, 184 L.Ed.2d 157 (2012) (“Warmus III”).



       {¶5} On July 15, 2011, while his appeal was pending before this court, Warmus

filed a petition for postconviction relief. On May 9, 2013, the trial court denied the

petition without a hearing based on the doctrine of res judicata and issued findings of fact

and conclusions of law.




                                  Postconviction Relief

       {¶6} Petitions for postconviction relief are governed by the standards set forth in

R.C. 2953.21, which provides in pertinent part:


     See Warmus I, ¶ 2-4, for a summary of the relevant facts surrounding
       1

Warmus’s convictions.
       (A)(1)(a) 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.

       ***

       (C) The court shall consider a petition that is timely filed under division
       (A)(2) of this section even if a direct appeal of the judgment is pending.
       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 records of the clerk of the court, and the court reporter’s
       transcript.

       {¶7} 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. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of

discretion is “more than an error of law or of judgment; it implies that the court’s attitude

is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980). 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. Gondor at ¶ 58.

       {¶8} R.C. 2953.21(A) requires a petitioner for postconviction relief to allege a

“denial or infringement” of his rights under the Ohio or United States Constitutions. In
the instant case, Warmus asserted separate denials or infringements: first, that he was

denied his due process rights to a fair trial under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution due to “prosecutorial misconduct”; second,

that he was denied effective assistance of counsel as required by the Sixth Amendment to

the United States Constitution; and third, that he was denied the Fifth Amendment

protection against self incrimination.

       {¶9} At the outset, we are compelled to address one of the common doctrinal

hurdles that postconviction relief petitioners must clear: the doctrine of res judicata.

       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 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. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 13.

       {¶10} A petition for postconviction relief may be denied or dismissed on res

judicata grounds if the trial court “finds that the petitioner could have raised the issues in

the petition at trial or on direct appeal without resorting to evidence beyond the scope of

the record.” Id. at ¶ 16; accord State v. Williams, 8th Dist. Cuyahoga No. 85893,

2005-Ohio-6020, ¶ 7.

       {¶11} With these principles in mind, we will address the assigned errors out of

sequence, where appropriate.

                                     Audio Recording
       {¶12} In the first assigned error, and indeed, the first claim in his petition, Warmus

complains that the trial court erred by allowing a state expert to invade the province of the

jury by testifying outside his area of expertise to an ultimate issue to be decided by the

jury. The witness, Thomas Ciula, an expert in audio and video technology, examined a

recording of a 911 call placed on the scene of the shooting. Ciula testified that after

optimizing the audio track for clarity, he could hear Warmus arguing with a bystander

saying, “if my gun’s here, it’s my fault.”

       {¶13} In his petition, Warmus supplied the affidavit of Linda Luke, a forensic

scientist, who recommended hiring an experienced audio/video expert to review the

equipment, standard operating procedures, and Ciula’s final report. However, Warmus

raised this issue verbatim in his direct appeal. In addressing this issue we stated:

       The court should not have allowed the expert to render an opinion as to
       what words he heard spoken on the tape. Because Warmus and the state
       fundamentally disagreed on what words were spoken, this became a factual
       issue for the jury to resolve. The court should have instructed the jury that
       the interpretation of what words were spoken on the 911 tape were for it to
       decide and that the audio recording was the best evidence.

       Despite this error, we cannot say that it was prejudicial. Having
       independently reviewed the audio of the 911 call, we cannot confidently say
       that either interpretation by the state or defense was completely accurate.
       The jury heard the audio and was able to compare it to the transcriptions
       made by both parties and weigh them against the actual recording.
       Moreover, to the extent the jury may have given undue weight to the
       expert’s conclusions, that error was certainly harmless given the
       overwhelming evidence of Warmus’s guilt. Even had the court excluded the
       expert’s testimony, there is no probability that the outcome of the trial
       would have been different.

Warmus I at ¶ 30-31.
       {¶14} Here, having addressed the same issue in Warmus I, we decline to revisit

this issue because it is barred by the doctrine of res judicata. Accordingly, we overrule

the first assigned error.

                                Prosecutorial Misconduct

       {¶15} In the second assigned error, and his second claim for relief in his petition,

Warmus argues that the prosecutor repeatedly suggested that he illegally transported a

loaded firearm in his vehicle. Again, Warmus raised the same issue in his direct appeal.

       {¶16} In addressing the issue, we stated in pertinent part as follows:

       Warmus next argues that the state committed misconduct by creating the
       impression that he illegally transported his firearm, despite not being
       charged with that offense. The state argues that this was other acts evidence
       under Evid.R. 404(B) and properly introduced to counter Warmus’s
       assertion on direct examination that the “most trouble” he had been in
       before the shooting was “a speeding ticket.”

       Questions about Warmus’s transportation of a loaded firearm did not
       reasonably fall within any exception to the prohibition on other acts
       evidence under Evid.R. 404(B). They did not touch on “proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.” The state cites to no exception for admissibility under
       the rule, nor can we discern any plausible basis for application of the rule.

       Despite the error in the state’s questions, we cannot find them so prejudicial
       that they deprived Warmus of a fair trial. Warmus conceded that he shot the
       victim, so questions about whether he illegally transported his firearm paled
       by comparison. We do not think it is remotely possible that questions about
       Warmus’s illegally transporting the gun somehow swayed the jury into
       rejecting the self-defense claim. Any misconduct by the state was thus
       harmless beyond a doubt.

Warmus I at ¶ 37-40.
        {¶17} Here, having addressed this issue in Warmus’s direct appeal, we decline to

revisit it on the grounds that it is also barred by the doctrine of res judicata. Accordingly,

we overrule the second assigned error.

                          Protection Against Self-Incrimination

        {¶18} In the third assigned error, and his third claim for relief in his petition,

Warmus argues that the trial court failed to secure a knowing and intelligent waiver of his

Fifth Amendment protection against self-incrimination. In support of this argument,

Warmus attached an affidavit averring that his attorney did not inform him of his right not

to testify.

        {¶19} However, Warmus could have raised this issue in his direct appeal. As

such, this issue is barred by the doctrine of res judicata. Accordingly, we overrule the

third assigned error.

                              Effective Assistance of Counsel

        {¶20} In the fourth assigned error, and in his fourth claim for relief in his petition,

Warmus argues he was denied the effective assistance of counsel. Again, Warmus alleged

that he was denied the effective assistance of counsel in his direct appeal. Specifically,

Warmus alleged that counsel was ineffective for failing to request a Remmer hearing and

for failing to object to the jury instruction regarding the burden of proof on self-defense.

Warmus I at ¶ 74.

        {¶21} In his petition, Warmus alleged that counsel was ineffective for failing to

utilize evidence that he was a victim of a prior violent attack in Summit County, Ohio.
Warmus also alleged that counsel was ineffective for failing to prepare for the possibility

that the trial court might exclude a computer program that Warmus created to show

physical layout of the crime scene. However, Warmus could have raised these additional

allegations in his direct appeal. As such, this claim is likewise barred by the doctrine of

res judicata.   Accordingly, we overrule the fourth assigned error.




                                   Cumulative Errors

       {¶22} In the sixth assigned error, Warmus argues that cumulative errors denied

him the right to a fair trial. Again, we addressed this issue in the tenth assigned error in

Warmus’s direct appeal. Warmus I at ¶ 81-83. There, we stated:

       As we have previously discussed, the only demonstrable errors we have
       found to this point are the court’s decision to allow an audio expert to
       testify to his interpretation of words spoken on an audio recording of a 911
       call, the state’s misconduct in questioning Warmus about the illegal
       transportation of a firearm, and the court’s inadvertent transposition of
       which party bore the burden of proving self-defense. These errors neither
       adversely affected the outcome of the trial nor did they cumulatively affect
       Warmus’s right to a fair trial.

Id.

       {¶23} Here, given that this issue was raised and address in Warmus’s direct

appeal, we decline to revisit it on the grounds that it is barred by the doctrine of res

judicata. Accordingly, we overrule the sixth assigned error.

                                 Denial of Oral Hearing
       {¶24} Finally, in the fifth assigned error, Warmus argues trial court erred by failing

to hold a hearing on his petition for relief.

       {¶25} A trial court is not required to hold a hearing on a petition for postconviction

relief if the record and the petition fail to show that the defendant is entitled to relief.

State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905. The statute

specifically reads that “[u]nless 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 * * * .” R.C. 2953.21(E); State v. Jones, 8th Dist. Cuyahoga No. 83601,

2004-Ohio-3868.

       {¶26} In considering a petition, the pivotal question for the trial court is whether,

upon consideration of all the files and records pertaining to the underlying proceedings

and any supporting evidence attached, the petitioner has set forth “sufficient operative

facts to establish substantive grounds for relief.” Calhoun, paragraph two of the syllabus.

The trial court acts as a gatekeeper in determining whether a hearing is warranted.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77.

       {¶27} The trial court’s “gatekeeping” function in the postconviction relief process

is entitled to deference, including its decisions regarding the sufficiency of the facts set

forth by the petitioner and the credibility of his affidavit.     State v. West, 8th Dist.

Cuyahoga No. 98680, 2013-Ohio-826, ¶ 9, citing Calhoun. This court reviews the trial

court’s decisions for an abuse of discretion. Id. In this case, the trial court did not abuse
its discretion in either declining to conduct an evidentiary hearing or applying the doctrine

of res judicata.

       {¶28} R.C. 2953.21 affords a prisoner postconviction relief “only if the court can

find that there was such a denial or infringement of the rights of the prisoner as to render

the judgment void or voidable under the Ohio Constitution or the United States

Constitution.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four

of the syllabus. A postconviction petition is not intended to provide a petitioner a second

opportunity to litigate his or her conviction. State v. Hessler, 10th Dist. Franklin No. 01

AP-1011, 2002-Ohio-3321, ¶ 23.

       {¶29} Rather than a direct appeal, a petition for postconviction relief is a collateral

civil attack on a criminal judgment. State v. Easley, 10th Dist. Franklin No. 09AP-10,

2009-Ohio-3879, ¶ 9, citing State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639

N.E.2d 67. The petition is meant to get to constitutional issues that would otherwise be

impossible to reach because the evidence supporting those issues is not contained in the

record. Easley at ¶ 9.

       {¶30} Based upon that rationale, as previously stated, constitutional issues cannot

be considered in postconviction proceedings brought pursuant to R.C. 2953.21 where they

have already, or could have been fully litigated by the defendant, either before his

judgment of conviction or on direct appeal from that judgment. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967), at paragraph seven of the syllabus; State v. McCullough, 78

Ohio App.3d 587, 591, 605 N.E.2d 962, (6th Dist.1992). Issues properly raised in a
petition for postconviction relief are only those that could not have been raised on direct

appeal because the evidence supporting such issues is outside the record. State v.

Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975). If an issue has, or should

have been, raised on direct appeal, the trial court may dismiss the petition on the basis of

res judicata. State v. Dowell, 8th Dist. Cuyahoga No. 86232, 2006-Ohio-110, ¶ 10, citing

Perry.

         {¶31} “New” evidence attached to the petition does not automatically defeat the

res judicata bar. Rather, evidence 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[.]” State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362

(12th Dist.1995), quoting State v. Coleman, 1st Dist. Hamilton No. C-900811, 1993 Ohio

App. LEXIS 1485 (Mar. 17, 1993). Moreover, the evidence dehors the record must not

be evidence that was in existence and available for use at the time of trial and that could

and should have been submitted at trial if the defendant wished to use it. Dowell, 8th Dist.

Cuyahoga No. 86232, 2006-Ohio-110, ¶ 10.

         {¶32} In this case, Warmus did not provide anything new to the trial court to

warrant an evidentiary hearing. As discussed in the previous assigned errors, all of his

assertions were ones that were, or could have been, presented in Warmus I. As such,

the trial court did not err when it denied the petition without a hearing. Accordingly, we

overrule the fifth assigned error.
      {¶33} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

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

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
