[Cite as State v. Palmer, 2018-Ohio-1486.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.      28723

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ANDREW G. PALMER                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR-2015-04-1264

                                 DECISION AND JOURNAL ENTRY

Dated: April 18, 2018



        TEODOSIO, Judge.

        {¶1}     Appellant, Andrew G. Palmer, appeals from the denial of his petition for post-

conviction relief in the Summit County Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     This Court previously outlined the underlying facts in this case on direct appeal.

See State v. Palmer, 9th Dist. Summit No. 28303, 2017-Ohio-2639, ¶ 2-5. To summarize, an

Akron Police K-9 alerted to a FedEx parcel sent by Mr. Palmer to California. Id. at ¶ 2. The

police obtained a search warrant for the parcel and discovered $18,000.00 in cash inside. Id.

Several officers went to Mr. Palmer’s house to talk to him. Id. at ¶ 3. While speaking to Mr.

Palmer and awaiting a search warrant for the residence, UPS delivered a package to Mr.

Palmer’s front porch. Id. The police obtained a search warrant for the UPS package as well. Id.

at ¶ 4. Three pounds of marijuana were discovered inside the UPS package. Id. $5,980.00 in

cash was discovered inside the residence along with another pound of marijuana. Id.
                                                 2


       {¶3}    After a jury trial, Mr. Palmer was convicted of possession of marijuana and

trafficking in marijuana, and $23,980.00 was subject to forfeiture. Id. at ¶ 5. The two counts

merged for sentencing and Mr. Palmer was sentenced to thirty months in prison. Id. This Court

affirmed Mr. Palmer’s convictions on appeal. Id. at ¶ 16. One month after our decision, Mr.

Palmer filed a timely petition for post-conviction relief in the trial court, which was denied

without a hearing.

       {¶4}    Mr. Palmer now appeals from the trial court’s denial of his petition for post-

conviction relief and raises eight assignments of error for this Court’s review.

       {¶5}    For ease of analysis, we will rearrange and consolidate Mr. Palmer’s assignments

of error accordingly.

                                                 II.

                              ASSIGNMENT OF ERROR FOUR

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
       DURING THE SUPPRESSION HEARING WHEN COUNSEL FAILED TO
       MOVE TO SUPPRESS EVIDENCE OBTAINED FROM THE FEDEX
       PACKAGE WHEN (A) THE PACKAGE WAS SEIZED PRIOR TO THE
       ESTABLISHMENT OF REASONABLE ARTICULABLE SUSPICION IN
       ORDER TO SUBJECT IT TO A DOG SNIFF TEST, AND, (B) THE POLICE
       OFFICER SEIZED THE PACKAGE A SECOND TIME, REMOVED THE
       PACKAGE FROM THE FEDEX BUILDING, DROVE THE PACKAGE TO
       THE COURTHOUSE, TOOK THE PACKAGE TO THE JUDGE’S
       CHAMBERS, ALL WITHOUT HAVING A WARRANT IN THE FIRST
       PLACE[.]

                                ASSIGNMENT OF ERROR SIX

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
       WHEN COUNSEL FAILED TO CHALLENGE THE INSUFFICIENT PROOF
       OF A COMPLETE CHAIN OF CUSTODY OF THE FEDEX PACKAGE,
       ESPECIALLY IN LIGHT OF THE FACT THAT THE POLICE OFFICER
       REMOVED THE PACKAGE FROM THE BUILDING FOR SEVERAL
       HOURS WITHOUT PROVIDING TIME[]LINES OR CHAIN OF EVENTS OF
       CUSTODY[.]
                                                3


                               ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
       APPLIED THE STANDARDS OF STRICKLAND V. WASHINGTON
       INCORRECTLY IN EVALUATING THE INEFFECTIVE ASSISTANCE OF
       COUNSEL CLAIMS[.]

                             ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING
       PETITIONER’S POST-CONVICTION RELIEF WITHOUT ADDRESSING
       THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

                              ASSIGNMENT OF ERROR EIGHT

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ITS
       JUDGMENT, WHEN THE TRIAL COURT RULED THAT APPELLANT’S
       PETITION FAILED TO CONTAIN SUFFICIENT EVIDENCE TO SUPPORT
       HIS REQUEST FOR AN EVIDENTIARY HEARING[.]

       {¶6}    In his fourth and sixth assignments of error, Mr. Palmer argues that his trial

counsel was ineffective for failing to challenge the warrantless seizure of the FedEx parcel as

well as the chain of custody of the parcel. In his second and third assignments of error, Mr.

Palmer argues that the trial court, in denying his petition for post-conviction relief, erred by

incorrectly applying the Strickland standard to his ineffective assistance of counsel claims and

further erred by failing to address his ineffective assistance of counsel claims. In his eighth

assignment of error, Mr. Palmer argues that the trial court erred in finding that his petition for

post-conviction relief lacked sufficient operative facts to warrant an evidentiary hearing. We

disagree with all five propositions.

       {¶7}    R.C. 2953.21(A)(1)(a) permits anyone convicted of a criminal offense “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”

to “file a petition in the court that imposed sentence, stating the grounds for relief relied upon,
                                                  4


and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate

relief.” Affidavits and other documentary evidence may be submitted in support of the claim for

relief. Id. In reviewing a petition for post-conviction relief, “a trial court should give due

deference to affidavits sworn to under oath and filed in support of the petition, but may, in the

sound exercise of discretion, judge the credibility of the affidavits in determining whether to

accept the affidavits as true statements of fact.” State v. Calhoun, 86 Ohio St.3d 279 (1999),

paragraph one of the syllabus.

       {¶8}     “The post[-]conviction relief process is not itself a constitutional right” and

petitioners receive no more rights than those granted by the statute. State v. Wesson, 9th Dist.

Summit No. 25874, 2012-Ohio-4495, ¶ 7, citing Calhoun at 281. A petitioner seeking post-

conviction relief is not automatically entitled to a hearing. State v. Phillips, 9th Dist. Summit

No. 20692, 2002 Ohio App. LEXIS 788, *6 (Feb. 27, 2002), citing Calhoun at 282. “The trial

court serves a gatekeeping function in post[-]conviction relief cases – it determines whether the

petitioner will even receive a hearing.” Wesson at ¶ 9, citing State v. Gondor, 112 Ohio St.3d

377, 2006-Ohio-6679, ¶ 51. A trial court properly denies a petition for post-conviction relief

without holding an evidentiary hearing where the petition, the supporting affidavits, the

documentary evidence, the files, and the records do not demonstrate that the petitioner set forth

sufficient operative facts to establish substantive grounds for relief. Calhoun at paragraph two of

the syllabus.

       {¶9}     “Generally, this Court reviews a trial court’s denial of a post-conviction relief

petition for an abuse of discretion” unless the trial court denied the petition solely on the basis of

an issue of law, which we then review de novo. State v. Childs, 9th Dist. Summit No. 25448,

2011-Ohio-913, ¶ 9. Our review of a denial of a petition for post-conviction relief without a
                                                5


hearing is two-fold: First, we “review the trial court’s decision to determine whether its findings

are supported by competent and credible evidence” and; second, if the findings are properly

supported, we “review[] the trial court’s decision in regard to its gatekeeping function for an

abuse of discretion.” Wesson at ¶ 11, citing Gondor at ¶ 52. “The term ‘abuse of discretion’

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

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When applying an abuse of discretion standard, a reviewing court is precluded from

simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993).

       {¶10} In his petition for post-conviction relief, Mr. Palmer claimed that his trial counsel

should have challenged the seizure of the FedEx parcel as an unreasonable seizure because the

external characteristics of the parcel did not create a reasonable suspicion in order to seize the

parcel and subject it to a dog sniff. He further argued that he received ineffective assistance of

counsel because trial counsel failed to challenge the chain of custody of the FedEx parcel.

       {¶11} We note that Mr. Palmer’s ineffective assistance of counsel claims are not barred

by the doctrine of res judicata. “When a defendant is represented by different counsel at trial and

on direct appeal, res judicata ordinarily bars the relitigation of any ineffective assistance of

counsel claims that could have been raised on direct appeal without reference to evidence dehors

the record.” (Emphasis deleted.) State v. Pannell, 9th Dist. Wayne No. 98CA0034, 1999 Ohio

App. LEXIS 82, *5 (Jan. 20, 1999), citing State v Lentz, 70 Ohio St.3d 527 (1994), syllabus.

However, Mr. Palmer was represented by the same counsel at trial and on appeal, so his

ineffective assistance claims are not barred by res judicata. The State likewise concedes that

these claims are not barred by res judicata.
                                                  6


       {¶12} “[I]n Ohio, a properly licensed attorney is presumed competent.” Gondor at ¶ 62.

“Counsel can provide effective assistance using numerous tactics in any given case, and

debatable trial strategies do not constitute ineffective assistance of counsel.” State v. Shirley, 9th

Dist. Summit No. 20569, 2002 Ohio App. LEXIS 4, *20 (Jan. 2, 2002). To prove ineffective

assistance of counsel, Mr. Palmer must establish that: (1) his counsel’s performance was

deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington,

466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it falls below an objective

standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph

two of the syllabus. Prejudice can be shown by proving “there exists a reasonable probability

that, were it not for counsel’s errors, the result of the trial would have been different.” Id. at

paragraph three of the syllabus. “[T]he Court need not address both Strickland prongs if an

appellant fails to prove either one.” State v. Lortz, 9th Dist. Summit No. 23762, 2008-Ohio-

3108, ¶ 34.

       {¶13} Mr. Palmer attached several documents to his petition, including: (1) his own

sworn affidavit, in which he simply avers in a single sentence that he received ineffective

assistance of counsel, (2) four pages of a partial transcript, (3) the supporting affidavit for the

search warrant of the FedEx parcel, and (4) his sentencing entry.

       {¶14} The trial court stated the standard in Strickland and found that even though Mr.

Palmer’s motion to suppress was denied and his convictions were later affirmed on appeal, those

results were not the product of ineffective assistance of counsel. The court noted that Mr.

Palmer’s court-appointed counsel argued a suppression motion at two separate hearings. Mr.

Palmer then retained counsel, who filed numerous motions on Mr. Palmer’s behalf before

representing him both at trial and on appeal. The court further noted the lack of evidence in the
                                                 7


record and in Mr. Palmer’s petition supporting his ineffective assistance claims, and found that

the petition did not contain sufficient operative facts to warrant an evidentiary hearing.

       {¶15} We conclude that the trial court’s findings are supported by competent and

credible evidence. In a suppression motion and at two suppression hearings, trial counsel’s

strategy was to challenge the officers’ entry into Mr. Palmer’s house and the validity of the

initial search warrant to open the FedEx parcel. See Palmer, 2017-Ohio-2639, at ¶ 10-11.

Counsel’s decision not to pursue every possible angle is not ineffective assistance. See State v.

Hairston, 9th Dist. Lorain No. 05CA008768, 2006-Ohio-4925, ¶ 69. Moreover, the use of a

drug detection dog does not constitute a “search” within the meaning of the Fourth Amendment

and police are not required, prior to a dog sniff, to establish either probable cause or a reasonable

suspicion that drugs are concealed. See State v. Brooks, 9th Dist. Summit No. 28070, 2016-

Ohio-7025, ¶ 14. Counsel certainly cannot be said to be ineffective for failing to pursue an

argument that would not have been successful.           See State v. Bailey, 4th Dist. Ross No.

14CA3461, 2015-Ohio-5483, ¶ 42. None of the evidence attached to Mr. Palmer’s petition

supports a claim of ineffective assistance of counsel. The supporting affidavits, the documentary

evidence, the files, and the records do not demonstrate that Mr. Palmer set forth sufficient

operative facts to establish substantive grounds for relief. See Calhoun, 86 Ohio St.3d 279, at

paragraph two of the syllabus. See also State v. Bishop, 9th Dist. Lorain No. 97CA006905, 1998

Ohio App. LEXIS 5567, *13-14 (Nov. 25, 1998) (“[A] personal affidavit containing little more

than vague assertions of inadequate counsel [is] inadequate to establish the substantive grounds

for relief that R.C. 2953.21 requires be found before an evidentiary hearing is granted.”). The

trial court properly applied the standard in Strickland, and Mr. Palmer has failed to show either

deficient performance by trial counsel or resulting prejudice. Mr. Palmer’s claim that the trial
                                                8


court failed to address his ineffective assistance claims is without merit. Accordingly, we

conclude that the trial court did not err or abuse its discretion in denying Mr. Palmer’s petition

for post-conviction relief without a hearing.

       {¶16} Mr. Palmer’s fourth, sixth, second, third, and eighth assignments of error are

overruled.

                               ASSIGNMENT OF ERROR FIVE

       THE TRIAL COURT ERRED IN FINDING PROBABLE CAUSE TO ISSUE A
       SEARCH WARRANT TO SEARCH THE FEDEX PACKAGE WHERE THE
       AFFIDAVIT LACKED SUFFICIENT FACTUAL GROUNDS TO ISSUE THE
       SEARCH WARRANT.

                             ASSIGNMENT OF ERROR SEVEN

       APPELLANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR
       WITHHELD EXCULPATORY EVIDENCE, AND THEN DESTROYED THAT
       EVIDENCE IMMEDIATELY FOLLOWING TRIAL, IN VIOLATION OF
       OHIO AND FEDERAL LAW PURSUANT TO BRADY V. MARYLAND, * * *
       KYLES V. WHITLEY, * * * ARIZONA V. YOUNGBLOOD, * * *
       CALIFORNIA V. TROMBETTA, * * * AND U.S. CONST. AMENDS VI, XIV;
       OHIO CONST. SECT. 1 & 10, ART. I[.]

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY RULING
       THAT SOME OF THE CLAIMS RAISED IN THE POST[-]CONVICTION
       PETITION HAD ALREADY BEEN RAISED ON DIRECT APPEAL
       WITHOUT STATING ON THE RECORD WHICH CLAIMS HAD ALREADY
       BEEN RAISED, OR, WITHOUT PROPERLY APPLYING THE DOCTRINE
       OF RES JUDICATA[.]

       {¶17} In his fifth assignment of error, Mr. Palmer argues that the trial court erred in

finding that there was probable cause to support the issuance of a search warrant. In his seventh

assignment of error, Mr. Palmer argues that the prosecutor withheld and destroyed exculpatory

evidence. In his first assignment of error, he argues that the trial court, in denying his petition
                                                   9


for post-conviction relief, erred in its application of the doctrine of res judicata and failed to state

which claims were barred. We disagree with all three propositions.

        {¶18} A petition for post-conviction relief may be properly dismissed without a hearing

on the basis of res judicata. State v. Griffin, 9th Dist. Lorain No. 14CA010680, 2016-Ohio-2988,

¶ 14. Pursuant to 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 (1967), paragraph nine of the syllabus. To avoid the preclusive

effect of res judicata, post-conviction relief claims must be “based on evidence outside of the

original record that existed during direct appellate proceedings.” State v. Bulls, 9th Dist. Summit

No. 27713, 2015-Ohio-5094, ¶ 9.

        {¶19} Nevertheless, “[p]resenting evidence outside the record does not automatically

defeat the doctrine of res judicata.” (Emphasis deleted.) State v. Stallings, 9th Dist. Summit No.

19620, 2000 Ohio App. LEXIS 1696, *4-5 (Apr. 19, 2000). The evidence “‘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[.]’” Id., quoting State v. Lawson, 103 Ohio App.3d 307, 315 (12th

Dist.1995), quoting State v. Coleman, 1st Dist. Hamilton No. C-900811, 1993 Ohio App. LEXIS

1485, *22 (Mar. 17, 1993). The evidence dehors the record must also “demonstrate that the

claims advanced in the petition could not have been fairly determined on direct appeal based on

the original trial court record without resorting to evidence outside the record.” (Emphasis

deleted.) Stallings at *5. Accordingly, Mr. Palmer bears the burden to produce evidence dehors
                                                 10


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

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

Nemchik, 9th Dist. Lorain No. CA98CA00729, 2000 Ohio App. LEXIS 836, *4 (Mar. 8, 2000).

When a trial court denies a petition for post-conviction relief on the basis of an issue of law, such

as the doctrine of res judicata, this Court reviews the matter de novo. See State v. Tauwab, 9th

Dist. Summit No. 28022, 2017-Ohio-81, ¶ 10.

       {¶20} In his petition, Mr. Palmer argued that the trial court erred in finding probable

cause to issue the search warrant.      He also claimed that the State withheld and destroyed

exculpatory evidence, to wit: the seized cash and a FedEx surveillance video allegedly showing

that a dog sniff never occurred.

       {¶21} The trial court found that Mr. Palmer already argued his claims in his direct

appeal, with the exception of his ineffective assistance of counsel claims.

       {¶22} We conclude that the trial court’s findings are supported by competent and

credible evidence. Mr. Palmer previously challenged whether there was sufficient probable

cause to issue a search warrant in his motion to suppress at the trial court level. See Palmer,

2017-Ohio-2639, at ¶ 10. Therefore, the argument could have been raised on appeal and is now

barred by res judicata. The record shows that $23,980.00 in cash was seized and forfeited in this

case. See id. at ¶ 43. Nothing in the record suggests that the State withheld or destroyed either

cash or a FedEx surveillance video. The purported evidence Mr. Palmer attached to his petition

includes a self-serving affidavit and other documentation that was either part of the trial court

record or was available to Mr. Palmer at the time of his direct appeal. He has not provided any

evidence dehors the record that meets the threshold standard of cogency required to overcome

the doctrine of res judicata.
                                                  11


          {¶23} Mr. Palmer’s claims that the trial court did not properly apply the doctrine of res

judicata or specifically state on the record which claims were barred by res judicata are without

merit. If a trial court dismisses a petition for post-conviction relief, “it shall make and file

findings of fact and conclusions of law with respect to such dismissal.” R.C. 2953.21(D). This

requirement is necessary “‘to apprise petitioner of the grounds for the judgment of the trial court

and to enable the appellate courts to properly determine appeals in such a cause.’” Calhoun, 86

Ohio St.3d 279, at 291, quoting Jones v. State, 8 Ohio St.2d 21, 22 (1966). “A trial court need

not discuss every issue raised by appellant or engage in an elaborate and lengthy discussion in its

findings of fact and conclusions of law. The findings need only be sufficiently comprehensive

and pertinent to the issue to form a basis upon which the evidence supports the conclusion.”

Calhoun at 291-292. Here, although the trial court did not use the term “res judicata” precisely,

it stated that Mr. Palmer’s remaining claims were raised on direct appeal. We conclude that the

trial court’s findings of fact and conclusions of law were sufficient to apprise Mr. Palmer and

appellate courts of the reasons for the denial of the petition.

          {¶24} Accordingly, we conclude that the trial court did not err in denying Mr. Palmer’s

claims.

          {¶25} Mr. Palmer’s fifth, seventh, and first assignments of error are overruled.

                                                 III.

          {¶26} All of Mr. Palmer’s assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.
                                                12


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

ANDREW G. PALMER, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
