[Cite as State v. Edwards, 2019-Ohio-3905.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                       :

                 Plaintiff-Appellee,                 :               No. 18AP-704
                                                                  (C.P.C. No. 10CR-2864)
v.                                                   :
                                                                (REGULAR CALENDAR)
Tommy L. Edwards,                                    :

                 Defendant-Appellant.                :



                                              D E C I S I O N

                                  Rendered on September 26, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee. Argued: Michael P. Walton.

                 On brief: Timothy Young, Ohio Public Defender, and
                 Carly M. Edelstein, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Tommy L. Edwards, appeals from a decision and entry
of the Franklin County Court of Common Pleas denying his petition for postconviction
relief. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} By indictment filed May 11, 2010, plaintiff-appellee, State of Ohio, charged
Edwards with one count of possession of marijuana in violation of R.C. 2925.11, a fifth-
degree felony. Edwards was one of four codefendants included in the same indictment.
Edwards entered a plea of not guilty.
        {¶ 3} Edwards filed several motions to suppress that the trial court ultimately
denied, and the matter proceeded to trial. Following a jury trial, the trial court convicted
No. 18AP-704                                                                               2


Edwards of one count of possession of marijuana and sentenced him to six months'
incarceration. Edwards timely appealed his conviction, and this court affirmed. State v.
Edwards, 10th Dist. No. 12AP-992, 2013-Ohio-4342.
       {¶ 4} The indictment against Edwards and his subsequent conviction stemmed
from an investigation conducted by two officers of the Reynoldsburg Police Department,
Tye Downard and Shane Mauger. In a letter dated February 24, 2016, after Edwards had
already served his sentence in his case, the state informed Edwards that Downard, who had
testified in the trial against Edwards, had been arrested by the Federal Bureau of
Investigation and charged federally with possession with intent to distribute drugs.
Downard then committed suicide in the Delaware County Jail on February 21, 2016.
       {¶ 5} Subsequently, on April 27, 2016, Mauger, who also testified against Edwards
during his criminal trial, was charged in federal court with conspiracy to deprive persons of
civil rights and federal program theft, charges stemming from allegations that Mauger
falsified search warrant affidavits in order to steal from Reynoldsburg residents. Mauger
entered a guilty plea to these charges and was sentenced on September 9, 2016.
       {¶ 6} On February 14, 2017, Edwards filed a petition for postconviction relief,
alleging the state used false testimony to obtain his conviction. Edwards alleged in his
petition that during the investigation and at the time the officers searched Edwards' home,
the officers had both been engaged in a longstanding conspiracy to violate the rights of
Reynoldsburg residents. Edwards supported his petition for postconviction relief with the
judgment entry from his criminal case, the criminal complaint in Downard's federal
criminal case, the information in Mauger's criminal case, the United States' sentencing
memorandum in Mauger's criminal case, the February 24, 2016 letter from the State, and
Edwards' own affidavit.
       {¶ 7} The state opposed Edwards' petition for postconviction relief, filing a
March 29, 2017 memorandum contra. The state argued the evidence Edwards relied upon
to support his petition for postconviction relief did not establish any link between
Downard's and Mauger's criminal conduct and their specific investigation into Edwards'
case. To the extent Edwards' petition sought to establish that the search warrant in his case
was supported with false testimony, the state noted it was Downard, not Mauger, who
obtained the search warrant in Edwards' case.       The state supported its memorandum
No. 18AP-704                                                                                 3


contra with the search warrant used to search 220 Chatterly Lane and the search warrant
affidavit Downard filed in support with the Franklin County Municipal Court.
       {¶ 8} In a decision and entry dated August 28, 2018, the trial court denied
Edwards' petition for postconviction relief. Specifically, the trial court concluded Edwards
failed to satisfy his burden under R.C. 2953.21(D) to warrant a hearing by demonstrating
substantive grounds for relief. The trial court determined the evidence relied upon by
Edwards did not establish that Downard engaged in falsification of affidavits either
generally or specifically in Edwards' case. Additionally, the trial court concluded Downard's
and Mauger's falsification of information could not be imputed to the state. Thus, the trial
court denied Edwards' petition for postconviction relief without a hearing. Edwards timely
appeals.
II. Assignment of Error
       {¶ 9} Edwards assigns the following error for our review:
              The trial court abused its discretion in dismissing Tommy
              Edwards' petition without holding an evidentiary hearing
              because his petition provided sufficient operative facts to
              demonstrate that the use of false testimony to obtain a
              conviction in his case violated his due process rights.
              Fourteenth Amendment to the U.S. Constitution and Article I,
              Section 16 of the Ohio Constitution; Kyles v. Whitley, 514 U.S.
              419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Napue v. Illinois,
              360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

III. Standard of Review and Applicable Law
       {¶ 10} " '[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. Sidibeh, 10th Dist. No. 12AP-498,
2013-Ohio-2309, ¶ 7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.
Further, we review a trial court's decision to deny a postconviction petition without a
hearing under an abuse of discretion standard. State v. Boddie, 10th Dist. No. 12AP-811,
2013-Ohio-3925, ¶ 11, citing State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305,
¶ 14. An abuse of discretion connotes a decision that is unreasonable, arbitrary or
unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
No. 18AP-704                                                                                   4


       {¶ 11} As a general matter, a petition for postconviction relief is a collateral civil
attack on a criminal judgment, not an appeal of the judgment. Sidibeh at ¶ 8, citing State
v. Steffen, 70 Ohio St.3d 399, 410 (1994). A petition for postconviction relief " 'is a means
to reach constitutional issues which would otherwise be impossible to reach because the
evidence supporting those issues is not contained in the record.' " Id., quoting State v.
Murphy, 10th Dist. No. 00AP-233 (Dec. 26, 2000). Thus, a postconviction petition does
not provide a petitioner a second opportunity to litigate his or her conviction. Id., citing
State v. Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321, ¶ 23. Instead, R.C. 2953.21
affords a petitioner 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.' " Id., quoting State
v. Perry, 10 Ohio St.2d 175 (1967), paragraph four of the syllabus.
       {¶ 12} Pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief must be
filed no later than 365 days after the expiration of the time for filing an appeal. A trial court
may not entertain an untimely postconviction petition unless the petitioner initially
demonstrates either (1) he was unavoidably prevented from discovering the facts necessary
for the claim for relief, or (2) the United States Supreme Court recognized a new federal or
state right that applies retroactively to persons in the petitioner's situation.            R.C.
2953.23(A)(1)(a). If the petitioner can satisfy one of those two conditions, he must also
demonstrate that but for the constitutional error at trial no reasonable finder of fact would
have found him guilty. R.C. 2953.23(A)(1)(b). These requirements are jurisdictional. See
State v. Hollingsworth, 10th Dist. No. 08AP-785, 2009-Ohio-1753, ¶ 8.
       {¶ 13} The doctrine of res judicata places another significant restriction on the
availability of postconviction relief. Sidibeh at ¶ 12. " '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.' " (Emphasis omitted.) State v. Cole, 2 Ohio St.3d 112, 113 (1982), quoting
Perry at paragraph nine of the syllabus. "Res judicata also implicitly bars a petitioner from
No. 18AP-704                                                                              5


're-packaging' evidence or issues which either were, or could have been, raised in the
context of the petitioner's trial or direct appeal." Hessler at ¶ 27.
       {¶ 14} Further, a petitioner is not automatically entitled to an evidentiary hearing
on a postconviction petition. Sidibeh at ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107,
110-13 (1980). To warrant an evidentiary hearing, the petitioner bears the initial burden of
providing evidence demonstrating a cognizable claim of constitutional error. Id., citing
R.C. 2953.21(C); Hessler at ¶ 24. The trial court may deny the petitioner's postconviction
petition without an evidentiary hearing "if the petition, supporting affidavits, documentary
evidence, and trial record do not demonstrate sufficient operative facts to establish
substantive grounds for relief." Sidibeh at ¶ 13, citing State v. Calhoun, 86 Ohio St.3d 279
(1999), paragraph two of the syllabus.
IV. Analysis
       {¶ 15} In his sole assignment of error, Edwards' argues the trial court erred in
denying his petition for postconviction relief without a hearing.
       {¶ 16} As an initial matter, we note that Edwards' petition is untimely under R.C.
2953.23(A)(1). However, pursuant to R.C. 2953.23(A)(1), an untimely petition is permitted
where the petitioner relies on evidence that he was unavoidably prevented from
discovering. "The phrase 'unavoidably prevented' in R.C. 2953.23(A)(1)(a) means that a
defendant was unaware of those facts and was unable to learn of them through reasonable
diligence." State v. Turner, 10th Dist. No. 06AP-876, 2007-Ohio-1468, ¶ 11, citing State v.
McDonald, 6th Dist. No. E-04-009, 2005-Ohio-798, ¶ 19. Here, the federal criminal cases
against Downard and Mauger did not arise until February and April 2016, more than three
years after Edwards' trial and conviction. Thus, we agree with the trial court that Edwards
was unavoidably prevented from discovering the criminal conspiracy allegations against
two of the state's witnesses during the time those witnesses investigated Edwards' criminal
case, thus satisfying R.C. 2953.23(A)(1)(a).
       {¶ 17} The next phase of the analysis under R.C. 2953.23(A)(1)(b) requires us to
determine whether Edwards shows, by clear and convincing evidence, that but for the false
testimony of Downard and Mauger, no reasonable factfinder would have found him guilty.
The essence of Edwards' argument is that because Downard's and Mauger's criminal
conduct dates back to 2006, it follows that both Downard and Mauger must have been
No. 18AP-704                                                                              6


engaged in criminal conduct when they obtained the search warrant in Edwards' case in
2008. If the search warrant was obtained with falsified information, then Edwards asserts
the trial court would have no choice but to grant his motion to suppress, ultimately leading
to the court vacating his conviction. At minimum, Edwards asserts the trial court should
have held a hearing on his petition for postconviction relief.
       {¶ 18} The state asserts Edwards did not put forth sufficient operative facts that
Downard and Mauger obtained the search warrant in Edwards' specific case based on
falsified information or that Downard and Mauger provided false testimony at Edwards'
trial. The documentation Edwards relies upon to support his petition for postconviction
relief includes the federal criminal complaint against Downard and supporting affidavit.
The supporting affidavit details Downard's alleged conduct related to the charge of
possession of drugs with intent to distribute, including his use of a cooperating human
source he first encountered after executing a search warrant at the person's house. The
supporting affidavit makes no mention of Mauger, nor does it describe any instance in
which Downard was alleged to have falsified information to obtain a search warrant.
       {¶ 19} Edwards also provided documentation related to the federal criminal charges
against Mauger, including the sentencing memorandum of the United States. In the
sentencing memorandum, the federal government states that "[f]or nearly a decade, Shane
Mauger stole money and property, and engaged in a conspiracy with Tye L. Downard to
violate the constitutional rights of residents in Central Ohio." (Mauger Sentencing Memo.
at 2.) The sentencing memorandum specifically noted "Mauger, as part of the conspiracy,
caused search warrant affidavits containing false statements to be submitted to judges" and
then participated in the execution of the search warrants knowing they were based on false
information. (Mauger Sentencing Memo. at 2.) The sentencing memorandum went on to
state that during and after police searches, Mauger and Downard would steal a portion of
cash found in the homes they were searching and split the difference. Although the
sentencing memorandum implicated Downard in the theft of currency during searches, it
never alleged Downard participated in submitting false statements in affidavits in order to
obtain search warrants.
       {¶ 20} The specific allegations against Downard and Mauger regarding their
conduct in their alleged criminal conspiracy are especially relevant because in Edwards'
No. 18AP-704                                                                                7


case, it was Downard, not Mauger, who executed the affidavit in support of the search
warrant. Though the sentencing memorandum from Mauger's criminal case implicates
Downard in splitting the profits of the thefts with Mauger, it does not implicate Downard
in using false statements in affidavits to obtain search warrants. At best, Edwards puts
forth a theory about what possibly could have happened during the investigation into his
case. However, a mere theory is not sufficient to warrant a hearing on a petition for
postconviction relief; instead, as we noted above, to warrant a hearing, a petitioner must
"demonstrate sufficient, operative facts to establish substantive grounds for relief." Sidibeh
at ¶ 13, citing Calhoun at paragraph two of the syllabus.
       {¶ 21} Edwards' documentation cannot be construed as providing sufficient
operative facts that demonstrate that Downard provided false information in order to
obtain the search warrant in his case. For these reasons, we conclude the trial court did not
abuse its discretion in denying Edwards' petition for postconviction relief without a
hearing. Thus, we overrule Edwards' sole assignment of error.
V. Disposition
       {¶ 22} Based on the foregoing reasons, the trial court did not abuse its discretion in
denying Edwards' petition for postconviction relief without a hearing. Having overruled
Edwards' sole assignment of error, we affirm the judgment of the Franklin County Court of
Common Pleas.
                                                                        Judgment affirmed.
                                   BROWN, J., concurs.
                                  DORRIAN, J., dissents.

DORRIAN, J., dissenting.
       {¶ 23} I respectfully dissent and would sustain appellant's assignment of error and
remand to the trial court for an evidentiary hearing on appellant's petition for
postconviction relief. I believe appellant provided sufficient operative facts to warrant an
evidentiary hearing on his petition for postconviction relief.
       {¶ 24} The majority finds significant the fact that Downard, not Mauger, submitted
the affidavit to the judge to obtain the search warrant for appellant's home. The majority
No. 18AP-704                                                                                                 8


relies1 on the Mauger Sentencing Memorandum statement that "Mauger, as part of the
conspiracy, caused search warrant affidavits containing false statements to be submitted to
judges" and then participated in the execution of the search warrants knowing they were
based on false information. (Emphasis added.) (Majority Dec. at ¶ 19.)2 However, I find
to be significant, the statement preceding the statement upon which the majority relies,
"[f]or nearly a decade, Shane Mauger stole money and property, and engaged in a
conspiracy with Tye L. Downard to violate the constitutional rights of residents in Central
Ohio." (Emphasis added.) (Majority Dec. at ¶ 19.)
        {¶ 25} Both Downard and Mauger were involved in the investigation leading to the
indictment and conviction of appellant. The affidavit of Columbus Police Detective Mabry,
upon which Mabry relied to request a direct indictment of appellant, is part of the record
before us. It states in part:
                 On September 30, 2008 Detective T. Downard #98 of the
                 Reynoldsburg Police Department conducted a search warrant of
                 Tommy Edward's house at 220 Chatterly Lane and recovered
                 marihuana and digital scales. Detective Downard conducted the
                 search warrant after receiving complaints that Mr. Edwards was
                 selling pounds of marihuana on the east side of Columbus and
                 Reynoldsburg. The results of that investigation are included in
                 that investigation. Columbus Police Officers and Reynoldsburg
                 Detectives would like the results of that investigation to be used
                 in indicting Mr. Edwards for conspiracy to distribute
                 marihuana.

(Oct. 4, 2011 Appellant's Motion to Exclude Scientific Test Results, Ex. B at 10.)

1The State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309, and State v. Calhoun, 86 Ohio St.3d 279
(1999), cases cited by the majority both considered petitions for postconviction relief alleging ineffective
assistance of counsel. These claims were based in part on the affidavits of the petitioner and his family
members, and credibility was an issue. The case before us does not involve claims of ineffective assistance
of counsel. Furthermore, credibility is not an issue here. Nevertheless, one of the factors outlined in Calhoun
to determine credibility of such affidavits, may be considered applicable here—whether the judge reviewing
the postconviction relief petition also presided at the trial. In this case, the judge who presided over the
motion to suppress and the trial was not the same judge as the judge who ruled on the petition for
postconviction relief.

2 The memorandum also reveals that in one specific case, Mauger caused an affidavit in support of a search
warrant for a Reynoldsburg residence to be submitted to a judge which contained the false statement that
Mauger had conducted a trash pull at the residence and had found marijuana in the trash. However, the
trash did not contain any marijuana. Yet, Mauger submitted the affidavit to the judge, obtained the search
warrant and participated in the search, knowing it was based on a falsehood. (Mauger Sentencing Memo.
at 3.)
No. 18AP-704                                                                            9


      {¶ 26} Furthermore, our own decision regarding appellant's direct appeal of his case
details the involvement of both Downard and Mauger:
             Detective Ty Downard is a narcotics detective for the
             Reynoldsburg Police Department and was assigned to
             investigate appellant's home at 220 Chatterly Lane. According
             to Downard, the Reynoldsburg Police Department received an
             anonymous tip on January 16, 2008, that appellant was selling
             "pounds of marijuana" on the east side of Columbus and
             Reynoldsburg and resided at 220 Chatterly Lane. (Tr. 32.) He
             further testified that "sometime later" the Columbus Police
             Department informed him of the surveillance and search of the
             Weirton Drive residence, as well as Berry's statement to police
             that appellant had instructed him to pick up marijuana from the
             Weirton Drive location and that appellant has sold marijuana
             for years. (Tr. 32.) After receiving the above tip and information,
             Downard stated he began conducting trash pulls at appellant's
             home. According to Downard, the first trash pull occurred on
             September 19, 2008, and he collected what appeared to be
             marijuana stems, seeds, and "shake." (Tr. 34.) According to
             Downard, he field tested the stems and seeds and it came back
             positive for marijuana.

             Downard testified he conducted surveillance on September 21,
             2008 and observed appellant exit and enter the residence.
             Downard stated appellant's vehicle was registered to the 220
             Chatterly Lane address. According to Downard, he conducted a
             second trash pull on September 26, 2008 and discovered
             marijuana stems and seeds, four roaches, and a letter of
             residence for 220 Chatterly Lane connecting the trash to
             appellant. Based on all of the above information and appellant's
             criminal history, Downard obtained a search warrant for
             narcotics.

             The suppression hearing concluded with closing statements.
             Appellant argued both of the search warrants were not
             "particularized enough to be sufficient" and were overbroad.
             (Tr. 50.) Specifically, appellant argued that the Weirton Drive
             warrant failed because the premises were "searched" ahead of
             time, and the Chatterly Lane warrant failed because its probable
             cause justification was based off information obtained at
             Weirton Drive. Appellant further argued the Chatterly Lane
             warrant was intentionally misleading. In opposition, appellee
             argued exigent circumstances existed for the protective sweep at
             the Weirton Drive home and that the warrants did not contain
             misleading information. Finally, appellee argued, based on all
No. 18AP-704                                                                    10


           the evidence presented, there was probable cause for each
           warrant.

           ***

           The trial court held probable cause also existed for the Chatterly
           Lane home search, reasoning that, though each fact in the
           warrant individually would not be enough to satisfy probable
           cause, the totality of the facts alleged were sufficient.

           Appellant filed a second motion to suppress, alleging the
           statements he made to Sergeant Shane Mauger of the
           Reynoldsburg Police Department after the search of his
           residence were taken in violation of his constitutional rights.
           Appellee filed a memorandum in opposition, and the trial court
           held a hearing on the motion.

           At the second hearing, appellee presented the testimony of
           Mauger and Downard. According to Mauger, he conducted a
           tape recorded interview of appellant at his home while the
           search was coming to a close. Mauger testified that he advised
           appellant of his constitutional rights prior to any questioning.
           Mauger stated appellant must have indicated he understood his
           rights or he would not have continued with the interview.
           Appellant's response to Mauger's question, "[d]o you
           understand your rights" was inaudible on the audio tape. The
           suppression hearing concluded with closing arguments.

           The trial court denied appellant's motion holding "[b]ased on
           the totality of these circumstances I find that the Defendant
           indicated that he understands his rights." (Tr. 165.) The holding
           was based on Mauger's testimony that he would not have
           continued with questioning if appellant had not in some way
           indicated he understood his rights and that, from the court's
           own interactions with appellant, he is an intelligent man who "is
           not shy about either invoking his rights or speaking his mind
           when he chooses to." (Tr. 165.) Having overruled both of
           appellant's motions to suppress, the case continued to trial.

           Relevant to this appeal, the following evidence was adduced
           from the appellee's case-in-chief. Mauger was the team leader
           for the September 30, 2008 search of Chatterly Lane. According
           to Mauger, SWAT approached the home and knocked and
           announced their intention to enter. Once SWAT entered the
           home, Mauger testified his team secured the location and began
           executing the search warrant. Mauger stated he seized a "Wal-
No. 18AP-704                                                                                 11


              Mart bag" containing nine smaller bags of marijuana, a digital
              scale, baggies, and a letter of residence connecting the trash to
              appellant's home. (Tr. 233.)

(Emphasis added.) (Footnotes omitted.) State v. Edwards, 10th Dist. No. 12AP-992, 2013-
Ohio-4342, ¶ 5-13.
       {¶ 27} Taking all this into consideration, I would find appellant's petition, supporting
affidavits, documentary evidence, and the trial record in this case demonstrate sufficient
operative facts to establish substantive grounds for relief. Accordingly, I would find the trial
court abused its discretion in not granting an evidentiary hearing before ruling on the
petition. For the above reasons, I respectfully dissent.
