[Cite as State v. Petway, 2015-Ohio-4158.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 15CAA010003
JOHN W. PETWAY

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case No. 13CRI070343


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         October 2, 2015


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CAROL HAMILTON O'BRIEN                         JEFFREY P. UHRICH
MARK C. SLEEPER                                Law Office of Jeffrey P. Uhrich
Assistant Prosecuting Attorney                 P.O. Box 1977
Delaware County Prosecutor's Office            Westerville, Ohio 43086
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 15CAA010003                                                      2

Hoffman, P.J.


         {¶1}   Defendant-appellant John W. Petway appeals the December 4, 2014

Judgment Entry entered by the Delaware County Court of Common Pleas denying his

Petition for Post-Conviction Relief. Plaintiff-appellee is the state of Ohio.

                                   STATEMENT OF THE CASE1

         {¶2}   On July 31, 2013, Delaware County Grand Jury indicted Appellant on

twenty-five counts: two counts of rape, in violation of R.C. 2907.02(A)(2), both felonies

of the first degree; three counts of sexual battery, in violation of R.C. 2907.03(A)(5),

felonies of the second degree; nine counts of rape, in violation of R.C. 2907.02(A)(2),

felonies of the first degree; seven counts of sexual battery, in violation of R.C.

2907.03(A)(5); one count of menacing by stalking, in violation of R.C. 2903.211(A), a

felony of the fourth degree; one count of importuning, in violation R.C. 2907.07(A), a

felony of the second degree; and one count of importuning, in violation of R.C.

2907.07(D)(1), a felony of the fourth degree.

         {¶3}   On October 10, 2013, Appellant entered a negotiated plea of guilty to two

counts of rape. In return, the State agreed to dismiss the remaining charges. The State

also agreed to recommend a prison term of twenty years.

         {¶4}   The trial court accepted the plea of guilty, and convicted Appellant of the

two counts of rape. The trial court immediately proceeded in sentencing Appellant to

ten years on each count to be served consecutively and by agreement pursuant to R.C.

2953.08(D).




1   A rendition of the underlying facts is unnecessary for our resolution of the appeal.
Delaware County, Case No. 15CAA010003                                                     3


       {¶5}   On December 5, 2013, Appellant filed an appeal with this Court, assigning

in his first two assignments of error his trial counsel's failure to investigate and pursue

the issues pertaining to Appellant's competency prior to entering the plea of guilty.

       {¶6}   On August 12, 2014, Appellant filed a motion for post-conviction relief

pursuant to R.C. 2951.21.

       {¶7}   Appellant asserted in his motion for post-conviction relief his constitutional

rights were violated in that he was denied the effective assistance of counsel in trial

counsel's failure to investigate his medical, educational and social history. Appellant's

petition asserted counsel failed to request a competency evaluation, related to both his

cognitive understanding and mental state. Appellant further argued counsel failed to

request a pre-sentence investigation. Appellant argued counsel's failures resulted in his

not voluntarily, knowingly and intelligently entering his plea.

       {¶8}   Via Opinion and Judgment Entry of September 29, 2014, this Court

rejected Appellant's arguments and affirmed Appellant's conviction and sentence.

       {¶9}   On October 10, 2014, Appellant filed a motion in the trial court for the

approval of expense money to retain a psychologist for the purpose of evaluating the

mental condition of Appellant. The trial court denied the motion via Judgment Entry of

October 22, 2014.

       {¶10} On November 14, 2014, the trial court conducted an evidentiary hearing to

address Appellant's petition for post-conviction relief. At the hearing, the trial court

heard the testimony of Appellant and Appellant's prior trial counsel.

       {¶11} Via Judgment Entry of December 4, 2014, the trial court denied

Appellant's petition for post-conviction relief.
Delaware County, Case No. 15CAA010003                                                       4


       {¶12} Appellant appeals, assigning as error:

       {¶13} "I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S

PETITION     FOR     POST-CONVICTION          RELIEF     INASMUCH         AS   THERE WAS

EVIDENCE       TO    SUPPORT        THAT     DEFENDANT'S          TRIAL    COUNSEL     WAS

INEFFECTIVE         BY   FAILING     TO    INVESTIGATE        ISSUES      PERTAINING       TO

DEFENDANT'S         COMPETENCY,         INCLUDING       INVESTIGATING          DEFENDANT'S

MEDICAL, EDUCATIONAL, AND SOCIAL HISTORY PRIOR TO ENTERING A GUILTY

PLEA PURSUANT TO PLEA BARGAIN."

                                                  I.

       {¶14} Appellant maintains his trial counsel was ineffective; therefore, the trial

court erred in denying his petition for post-conviction relief.

       {¶15} O.R.C. 2953.21 governs the filing of a petition for post-conviction relief,

              (A)(1)(a) Any person who has been convicted of a criminal offense

       or adjudicated 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, and any person who has been convicted of a criminal offense that

       is a felony and who is an offender for whom DNA testing that was

       performed under sections 2953.71 to 2953.81 of the Revised Code or

       under former section 2953.82 of the Revised Code and analyzed in the

       context of and upon consideration of all available admissible evidence

       related to the person's case as described in division (D) of section 2953.74

       of the Revised Code provided results that establish, by clear and
Delaware County, Case No. 15CAA010003                                                  5


      convincing evidence, actual innocence of that felony offense or, if the

      person was sentenced to death, establish, by clear and convincing

      evidence,     actual   innocence   of   the   aggravating   circumstance   or

      circumstances the person was found guilty of committing and that is or are

      the basis of that sentence of death, 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.

             ***

             (2) Except as otherwise provided in section 2953.23 of the Revised

      Code, a petition under division (A)(1) of this section shall be filed no later

      than three hundred sixty-five days after the date on which the trial

      transcript is filed in the court of appeals in the direct appeal of the

      judgment of conviction or adjudication or, if the direct appeal involves a

      sentence of death, the date on which the trial transcript is filed in the

      supreme court. If no appeal is taken, except as otherwise provided in

      section 2953.23 of the Revised Code, the petition shall be filed no later

      than three hundred sixty-five days after the expiration of the time for filing

      the appeal.

      {¶16} In State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, the Ohio

Supreme Court held:
Delaware County, Case No. 15CAA010003                                                      6


               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 trial, which resulted in that judgment of

       conviction, or on an appeal from that judgment. (Emphasis added.)

       {¶17} Here, Appellant asserts he has a tenth grade education.             He further

asserts he suffers from an 80% hearing loss and is dependent on the use of hearing

aids and lip reading. He maintains he communicated these issues to trial counsel prior

to and during trial. He further maintains he takes daily medications, including Prozac

and Propanolol ER, which he communicated to trial counsel. However, his trial counsel

did not pursue any further investigation of his physical or mental disabilities. As a result,

Appellant maintains he was pressured by counsel to accept the plea, and he "shut down

mentally" after counsel did not support his position, causing his depression and anxiety

to worsen. When asked by the trial court to list his medications, Appellant stated he

listed the medications he could remember, but was intimidated and nervous, not listing

all the medications. Appellant asserts his trial counsel was ineffective in not intervening.

       {¶18} During trial, Appellant advised the trial court he did not require

accommodations for his hearing loss. However, Appellant now maintains due to his

feelings of depression and being coerced into accepting the plea, he did not complain to

the trial court of his inability to hear or understand the proceedings. As a result, he now

claims he was unable to hear or understand the proceedings during the change of plea

proceedings.
Delaware County, Case No. 15CAA010003                                                   7

      {¶19} On direct appeal in State v. Petway, 5th Dist. No. 3CAA120084, 2014-

Ohio-4439, Appellant assigned as error in Assignments of Error one and two,

      {¶20} “TRIAL     COUNSEL      PROVIDED         INEFFECTIVE     ASSISTANCE       OF

COUNSEL WHEN COUNSEL DID NOT CONDUCT AN INVESTIGATION INTO THE

MEDICAL,       EDUCATIONAL,          AND       SOCIAL        HISTORY          OF      THE

DEFENDANT/APPELLANT PRIOR TO ENTERING A GUILTY PLEA PURSUANT TO A

PLEA BARGAIN.”

      {¶21} “TRIAL     COUNSEL      PROVIDED         INEFFECTIVE     ASSISTANCE       OF

COUNSEL      WHEN      COUNSEL       FAILED     TO    REQUEST       A   PRESENTENCE

INVESTIGATION         TO       INQUIRE     INTO       THE      EXTENT         OF      THE

DEFENDANT/APPELLANT'S             DOCUMENTED           PHYSICAL         AND        MENTAL

DISABILITIES    AND     FURTHER       FAILED     TO    PROVIDE      ANY       MITIGATION

INFORMATION AT SENTENCING.”

      {¶22} This Court held,

             During the plea hearing, appellant was placed under oath, and the

      trial court explained to him that he could interrupt him at anytime if he did

      not understand an explanation or question or wished a clarification. T. at

      4–5. The trial court emphasized that he wanted to make sure appellant

      was “completely understanding of everything going on.” T. at 4.

             Appellant informed the trial court that he had a tenth grade

      education, could read and write, and the only special education courses

      he had taken were a result of his impaired hearing. T. at 5–6, 7. Appellant
Delaware County, Case No. 15CAA010003                                                 8


      stated he could hear the judge. T. at 6. The trial court offered appellant

      hearing devices to help him, but he declined. T. at 6–7.

             The trial court asked appellant if he was on any medications and

      appellant stated, “I am taking Diovan for high blood pressure. I am taking

      Propanolol to slow my heart down. And I'm taking metformin for diabetic,

      and I am taking another meds for cholesterol.” T. at 8. The trial court found

      appellant to be alert and not under the influence of alcohol or drugs. Id.

             Appellant admitted he was entering his plea on the advice of

      counsel, and he was one hundred percent satisfied with his trial counsel's

      representation. T. at 12, 19.

             From the record before this court, we find the trial court was aware

      of appellant's medical, educational, and social history prior to accepting

      the plea. The trial court was aware of appellant's hearing disability and

      took the time to offer assistance and to make further explanations and

      clarifications if necessary. We find no ineffective assistance of counsel on

      this issue.

      {¶23} Upon review, we find Appellant's arguments on appeal are barred by the

doctrine of res judicata as the arguments were raised on direct appeal. We find nothing

presented at the November 14 hearing justifies further review of that prior conclusion.

Accordingly, the assigned error is overruled.
Delaware County, Case No. 15CAA010003                                               9


      {¶24} Based upon the above, the judgment of the Delaware County Court of

Common Pleas denying Appellant's petition for post-conviction relief is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur
