[Cite as State v. Liles, 2017-Ohio-240.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-16-33

        v.

DEMOND D. LILES,                                           OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2013 0472

                                       Judgment Affirmed

                            Date of Decision: January 23, 2017




APPEARANCES:

        Kenneth J. Rexford for Appellant

        Jana E. Emerick for Appellee
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PRESTON, P.J.

         {¶1} Defendant-appellant, Demond D. Liles (“Liles”), appeals the June 9,

2016 judgment entry of the Allen County Court of Common Pleas dismissing

Liles’s petition for postconviction relief. For the reasons that follow, we affirm.

         {¶2} In 2014, Liles pled guilty to four counts of trafficking in cocaine—

felonies of varying degrees—and to various specifications with those counts. (See

Doc. Nos. 125, 126). The trial court sentenced Liles on December 1, 2014, and

Liles appealed the trial court’s judgment entry of sentence.1 (See Doc. No. 143). In

that direct appeal, we affirmed the judgment of the trial court. State v. Liles, 3d

Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 45.

         {¶3} On January 22, 2016, Liles filed a petition for postconviction relief.

(Doc. No. 171). In his petition, Liles requested “a vacating of the judgment of

conviction and/or sentencing in this matter and a granting of a new trial and/or

resentencing.” (Id. at 1). As grounds for the requested relief, Liles alleged that he

“was denied the equal protection of the laws in violation of the Ohio Constitution

or the United States Constitution because the sentence imposed upon the petitioner

for the felony was part of a consistent pattern of disparity in sentencing by the judge

who imposed the sentence, with regard to the petitioner’s race, gender, ethnic


1
  In Liles’s direct appeal from his convictions and sentence, this court recited much of the factual and
procedural background of this case, and we will not duplicate those efforts here. See State v. Liles, 3d Dist.
Allen No. 1-14-61, 2015-Ohio-3093.

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background, or religion.” (Id. at 2, citing R.C. 2953.21(A)(5)). Additionally, Liles

stated as grounds for relief that he received ineffective assistance of counsel and

that his guilty pleas “were secured through vindictiveness by the government,” both

in violation of his constitutional rights.2 (Id. at 8). On February 3, 2016, Liles filed

an “additional proffer supporting petition for post-conviction relief.” (Doc. No.

175). On February 19, 2016, the State filed its response to and motion to dismiss

Liles’s petition for postconviction relief. (Doc. No. 179). On February 26, 2016,

Liles filed his memorandum in opposition to the State’s motion to dismiss his

petition for postconviction relief. (Doc. No. 180).

        {¶4} On June 9, 2016, the trial court filed the judgment entry that is the

subject of this appeal. (Doc. No. 182). In that entry, the trial court dismissed Liles’s

petition for postconviction relief. (Id.).

        {¶5} On July 6, 2016, Liles filed a notice of appeal. (Doc. No. 184). He

raises three assignments of error for our review. We will address the assignments

of error together.

                                   Assignment of Error No. I

        The Trial Court erred in ruling that Evidence Rule 901 applies to
        exhibits attached to a Petition for Post-Conviction Relief.



2
  Liles’s counsel prepared the memorandum in support containing the arguments related to disparity in
sentencing. Liles’s arguments in support of these additional grounds for relief were contained in a separate
memorandum in support prepared by Liles, not his counsel, “because [Liles] lacked financial resources to
have [his counsel] research and draft this separate portion of the instant petition.” (Doc. No. 171 at 12).

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                            Assignment of Error No. II

       The Trial Court erred in treating the State Motion to Dismiss as
       if it were a Motion for Summary Judgment, handling the same
       improperly, and thereby dismissing Mr. Liles’ Petition.

                            Assignment of Error No. III

       The Trial Court erred in dismissing Mr. Liles’ petition because,
       contrary to the Court’s ruling, the petition sufficiently stated two
       grounds for granting the requested relief and therefore merited
       an evidentiary hearing.

       {¶6} In his first assignment of error, Liles argues that the trial court erred

when it stated that the documents submitted by Liles in support of his petition for

postconviction relief are inadmissible under Evid.R. 901. In his second assignment

of error, Liles argues that the trial court improperly treated the State’s motion to

dismiss Liles’s petition for postconviction relief as a motion for summary judgment.

In his third assignment of error, Liles argues that the trial court erred in dismissing

his petition for postconviction relief without an evidentiary hearing because his

petition sufficiently stated two grounds for relief. First, he argues that he was denied

equal protection of the laws because his sentence was part of a consistent pattern of

racially disparate sentences by the sentencing judge. Second, although unclear, he

appears to argue “outrageous government conduct by Sheriff Crish.” (Appellant’s

Brief at 1).

       {¶7} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.

Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing State v. Kinstle,

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3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets forth who may

petition for postconviction relief:

       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.

R.C. 2953.21(A)(1)(a).

       {¶8} “The filing of a petition for postconviction relief does not automatically

entitle the petitioner to an evidentiary hearing.” State v. Andrews, 3d Dist. Allen

No. 1-11-42, 2011-Ohio-6106, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 282

(1999). Under R.C. 2953.21(C), “Before granting a hearing on a petition * * *, the

court shall determine whether there are substantive grounds for relief.” See State v.

Brown, 3d Dist. Allen No. 1-11-68, 2012-Ohio-2126, ¶ 6, citing Calhoun at 282-

283 and R.C. 2953.21(C); State v. Schwieterman, 3d Dist. Mercer No. 10-09-12,




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2010-Ohio-102, ¶ 22, citing State v. Jones, 3d Dist. Defiance No. 4-07-02, 2007-

Ohio-5624, ¶ 12.

       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

R.C. 2953.21(C). See Schwieterman at ¶ 22, citing Jones at ¶ 12.

       {¶9} “‘[I]f the court determines that there are no substantive grounds for

relief, it may dismiss the petition without an evidentiary hearing.’” State v. Driskill,

3d Dist. Mercer Nos. 10-07-03 and 10-07-04, 2008-Ohio-827, ¶ 13, quoting Jones

at ¶ 14. “The decision to grant the petitioner an evidentiary hearing is left to the

sound discretion of the trial court.” Andrews at ¶ 11, citing Calhoun at 284.

Accordingly, “[w]e review the trial court’s dismissal of a post-conviction petition

without a hearing for abuse of discretion.” State v. Jeffers, 10th Dist. Franklin No.

10AP-1112, 2011-Ohio-3555, ¶ 23, citing State v. Banks, 10th Dist. Franklin Nos.

10AP-1065, 10AP-1066, and 10AP-1067, 2011-Ohio-2749, ¶ 11. See also Driskill

at ¶ 14. An abuse of discretion suggests the trial court’s decision is unreasonable,




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

(1983).

       {¶10} We can quickly dispose of Liles’s first and second assignments of

error. Regarding Liles’s first assignment of error, although the trial court stated that

the documents Liles submitted in support of his postconviction petition are

inadmissible because they do not comply with Evid.R. 901, the trial court

nevertheless considered those documents and alternatively addressed the merits of

Liles’s grounds for relief. Therefore, we need not and do not address the trial court’s

conclusions regarding Evid.R. 901. See Slane v. Hilliard, 10th Dist. Franklin No.

15AP-493, 2016-Ohio-306, ¶ 37 (10th Dist.). Rather, in our treatment below of

Liles’s third assignment of error, we will assume without deciding that the trial court

should not have applied Evid.R. 901 in the manner it did. In other words, we need

not address Liles’s Evid.R. 901 arguments in order to dispose of his assignments of

error. Liles’s first assignment of error is without merit.

       {¶11} Regarding Liles’s second assignment of error, Liles does not specify

precisely what leads him to believe that the trial court converted the State’s motion

to dismiss into a motion for summary judgment. It appears that he believes the trial

court implicitly converted the motion to dismiss when it considered the credibility

of the documents Liles submitted in support of his petition and “dismissed the

petition on a factual basis.” (Appellant’s Brief at 15). The trial court’s actions do


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not suggest that it somehow implicitly converted the State’s motion to dismiss into

a motion for summary judgment.

       {¶12} The postconviction statute states that the petitioner “may file a

supporting affidavit and other documentary evidence in support of the claim for

relief” and that the trial 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 * * *.” R.C. 2953.21(A)(1)(a),

(C). Here, Liles attached an affidavit and other documentary evidence to the

postconviction petition, and as Liles acknowledges, the State in moving to dismiss

his petition did not raise “matters outside of the pleadings.” (Appellant’s Brief at

13). The trial court’s consideration of the documents Liles attached to the petition—

including their credibility—does not convert the State’s motion to dismiss into a

motion for summary judgment, and Liles directs us to no authority suggesting

otherwise. See State v. Hines, 8th Dist. Cuyahoga No. 89848, 2008-Ohio-1927, ¶

13. In short, the record does not reflect that the trial court converted the State’s

motion to dismiss into a motion for summary judgment. See State v. Johnson, 12th

Dist. Clinton No. CA97-07-006, 1998 WL 1701, *5 (Jan. 5, 1998). For these

reasons, we reject Liles’s arguments under his second assignment of error.

       {¶13} We will now address Liles’s third assignment of error. Liles argues

that the trial court should have granted him an evidentiary hearing because his


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postconviction petition set forth two substantive grounds for relief warranting an

evidentiary hearing. The first ground put forth by Liles is an equal-protection

violation based on “sentencing disparity” on the part of the sentencing judge.

(Appellant’s Brief at 16-17). Liles does not articulate precisely what the second

ground is; however, it appears he argues that the second ground is “outrageous

government conduct by Sheriff Crish.”3 (Appellant’s Brief at 1). We will address

each of these grounds in turn.

         {¶14} First, Liles argues that his petition sufficiently established that he was

denied equal protection of the laws because his sentence was part of a consistent

pattern of racially disparate sentences by the sentencing judge. R.C. 2953.21(A)(5)

provides, in relevant part:

         If the petitioner in a petition filed under division (A) of this section

         was convicted of or pleaded guilty to a felony, the petition may

         include a claim that the petitioner was denied the equal protection of

         the laws in violation of the Ohio Constitution or the United States

         Constitution because the sentence imposed upon the petitioner for the

         felony was part of a consistent pattern of disparity in sentencing by




3
  The portion of Liles’s postconviction petition prepared by Liles, as opposed to his counsel, appears to
contain additional grounds that formed the basis of Liles’s petition—for example, that he received ineffective
assistance of trial counsel because his trial counsel did not inform him of the availability of the affirmative
defense of entrapment. In this appeal, Liles does not offer argument concerning these additional grounds;
therefore, we will not address them.

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       the judge who imposed the sentence, with regard to the petitioner’s

       race, gender, ethnic background, or religion.

R.C. 2953.21(A)(5).

       {¶15} Among the documents Liles attached to his postconviction petition

was a letter from Liles’s counsel to Steve Van Dine (“Van Dine”), the chief of the

Bureau of Research at the Ohio Department of Rehabilitation and Correction,

requesting “sentencing data from Allen County for the years 2008-2014 for F1 and

F2 offenders sent to prison by Allen County judges.” (Doc. No. 171 at 5, Ex. 1).

Liles also attached to his petition the data spreadsheet that Van Dine provided in

response to Liles’s counsel’s request. (Id., Ex. 2). The spreadsheet contains a listing

of each “CASE WITH AT LEAST ONE F1 OR F2.” (Id.). Listed for each case are

the offender’s name, race, sex, and date of birth, along with the year, the identity of

the sentencing judge, the offense or offenses, the number of “priors,” and the

sentence given. (Id.). Attached as Exhibit 3 to Liles’s petition for postconviction

relief is a purportedly “similar statistical analysis” regarding third-degree felonies

that Liles’s counsel conducted “on behalf of a different client” in “early 2007.” (Id.

at 8, Ex. 3).

       {¶16} Based on these documents attached to his postconviction petition,

Liles argued in his petition that the sentencing judge “managed to account for nearly

a 2:1 sentencing disparity against black offenders,” whereas another judge of the


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same court “managed to have racially consistent sentencing over the past decade.”

(Id. at 10). The State argues that the documents attached to Liles’s petition

“included absolutely no information whatsoever about the numerous offenders or

the facts of the cases that defendant purported to compare.” (Appellee’s Brief at 9).

In dismissing Liles’s petition without an evidentiary hearing, the trial court stated

that precedent from the United States Supreme Court and the Supreme Court of

Ohio requires that a petitioner, in order to establish an equal-protection violation,

demonstrate the existence of purposeful discrimination that had a discriminatory

effect on the petitioner. (Doc. No. 182 at 10). The trial court concluded that this

precedent does “not permit the consideration of the statistical evidence offered by

petitioner.” (Id.). The trial court added, however, that even considering the

statistical evidence offered by Liles, “it is not determinative” because of the

relatively small sample size of defendants and because it addressed only “a few

variables underlying the sentences reviewed.” (Id. at 10-11).

       {¶17} “It is well-established that the Equal Protection Clauses of both the

Ohio and United States Constitutions protect ‘similarly situated’ persons from being

treated differently by the government.” State v. Murphy, 5th Dist. Cochocton No.

02-CA-13, 2003-Ohio-128, ¶ 8, citing State ex rel. Riter v. Indus. Comm., 91 Ohio

St.3d 89, 93 (2001). “[I]t is a basic and generally applicable principle of Fourteenth

Amendment equal protection analysis that a party claiming an equal protection


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violation has the burden of proving purposeful discrimination.” State v. Keene, 81

Ohio St.3d 646, 654 (1998), citing McClesky v. Kemp, 481 U.S. 279, 292, 107 S.Ct.

1756 (1987), quoting Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643 (1967).

“A corollary to this principle is that a criminal defendant must prove that the

purposeful discrimination ‘had a discriminatory effect’ on him.” McCleskey at 292,

quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524 (1985). In the

context of an argument involving race-based sentencing disparity, “rather than make

a general showing of disparity, a defendant ‘“must show that racial considerations

affected the sentencing process in his case”’ for equal protection to be implicated.”

(Emphasis sic.) State v. Frazier, 6th Dist. Lucas No. L-07-1388, 2008-Ohio-5027,

¶ 67, quoting State v. Skatzes, 2d Dist. Montgomery No. 15848, 2003-Ohio-516, ¶

395, quoting State v. Steffen, 31 Ohio St.3d 111, 124 (1987).

       {¶18} In this case, we hold that the trial court did not abuse its discretion in

concluding that Liles failed in his equal-protection argument to demonstrate a

substantive ground for relief entitling him to an evidentiary hearing. First, we agree

with the trial court that the quality of data that Liles attached to his postconviction

petition is not the sort that would allow him to establish a substantive ground for

relief on an equal-protection theory. That is, the documents that Liles submitted

with his petition fail to establish that the offenders listed in the spreadsheet are

“similarly situated” to Liles. See Murphy at ¶ 8.


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       {¶19} Exhibit 2 attached to Liles’s petition reveals only the race, sex, and

age of each offender, along with the offense or offenses, the sentence given, and the

number of “priors.” As the trial court aptly summarized, this data provides only “a

few variables underlying the sentences reviewed,” whereas “many factors can go

into sentencing determinations and each case is unique”—a point Liles concedes in

his postconviction petition. (Doc. No. 182 at 11). (See also Doc. No. 171 at 6).

The trial court compared Liles’s data to the study in McCleskey, which was an

“extensive analysis, taking account of 230 variables that could have explained the

disparities on nonracial grounds.” McCleskey at 287. Even that study, the United

States Supreme Court held, was “clearly insufficient to support an inference that

any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.”

Id. at 297. Exhibit 3 to Liles’s petition is even more unhelpful to Liles in his attempt

to establish a substantive ground for relief—that data similarly contains relatively

few variables, focuses on third-degree felonies, and was prepared in “early 2007”

for “a different client.” In short, the documents attached to Liles’s petition do not

reflect whether the other offenders were “similarly situated” to him.

       {¶20} A second reason why the trial court did not abuse its discretion in

concluding that Liles failed to demonstrate a substantive ground for relief: Liles did

not direct the trial court to documentation or portions of the record demonstrating

the existence of purposeful discrimination that had a discriminatory effect on him.


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See McCleskey at 297. Liles instead relied solely on the sentencing data attached to

his petition. However, as with the study in McCleskey, the data offered by Liles is

clearly insufficient to support an inference that the sentencing judge in Liles’s case

acted with a discriminatory purpose. See id.

       {¶21} To the extent Liles argues that R.C. 2953.21(A)(5) creates a statutory

right that somehow dispenses with his need to satisfy basic standards in the equal-

protection analysis, we reject his argument. R.C. 2953.21(A)(5) “is nothing more

than an opportunity for prisoners to allege an equal-protection violation when their

sentence ‘was part of a consistent pattern of disparity in sentencing’ regarding the

petitioner’s ‘race, gender, ethnic background, or religion.’” State v. Cowan, 101

Ohio St.3d 372, 2004-Ohio-1583, ¶ 17. In other words, in making the equal-

protection claim invited by R.C. 2953.21(A)(5), a petitioner must nevertheless

satisfy basic principles of equal-protection analysis.

       {¶22} For all of the reasons above, we hold that the trial court did not abuse

its discretion in concluding that Liles failed to demonstrate a substantive ground for

relief based on equal protection entitling him to an evidentiary hearing.

       {¶23} We next address Liles’s apparent argument that he stated as a ground

for relief “outrageous government conduct by Sheriff Crish.” (Appellant’s Brief at

1). Liles argues that he “put forward a shocking account of the events leading up to

his prosecution,” including allegations that Allen County Sheriff Sam Crish


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borrowed $20,000 from Liles and then used an informant “to target Liles for

controlled sales” of drugs. (Id. at 20, 7). Liles argues that it was “frankly

unreasonable” for the trial court to find not credible Liles’s allegations of

“outrageous government conduct.” (Id. at 21). We need not reach that issue because

Liles’s arguments concerning “outrageous government conduct” were known to

him at the time he entered into a plea agreement in this case and at the time of his

sentencing.

       {¶24} “‘[A] post-conviction relief hearing is not warranted for claims that

were raised or could have been raised on direct appeal.’” State v. McKinney, 3d

Dist. Defiance No. 4-11-01, 2011-Ohio-3521, ¶ 20, quoting State v. Yarbrough, 3d

Dist. Shelby No. 17-2000-10, 2001 WL 454683, *4, citing State v. Reynolds, 79

Ohio St.3d 158, 161 (1997). “‘The principle of res judicata will operate as a bar to

any claim that was raised or could have been raised on direct appeal.’” Id., quoting

Yarbrough at *4, citing State v. Lentz, 70 Ohio St.3d 527 (1994) and State v. Perry,

10 Ohio St.2d 175 (1967), syllabus. In other words, “[a]lthough a defendant may

challenge his conviction and sentence by either a direct appeal or a petition for

postconviction relief, any claims raised in a postconviction relief petition will be

barred by res judicata where the claim was or could have been raised on direct

appeal.” Schwieterman, 2010-Ohio-102, at ¶ 23, citing State v. Wilson, 3d Dist.

Allen No. 1-08-60, 2009-Ohio-1735, ¶ 15, citing Reynolds at 161.


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       {¶25} Here, even assuming “outrageous government conduct” could serve as

a substantive ground for relief entitling Liles to a hearing, his argument is barred by

res judicata because he knew of the purportedly outrageous government conduct

during the pendency of the underlying case. For example, at the sentencing hearing,

Liles relayed to the sentencing judge the story underlying what he says amounts to

“outrageous government conduct.” (See Dec. 1, 2014 Tr. at 17-31). Indeed, in his

brief, Liles concedes, “These facts were available to the defense.” (Appellant’s

Brief at 7). Therefore, any arguments related to this purportedly “outrageous

government conduct” on the part of Sheriff Crish were available to Liles at the time

of his direct appeal and are therefore barred by res judicata. See McKinney at ¶ 20;

State v. King, 12th Dist. Butler Nos. CA2013-11-199 and CA2014-06-138, 2014-

Ohio-5393, ¶ 18; State v. Ibrahim, 10th Dist. Franklin No. 14AP-355, 2014-Ohio-

5307, ¶ 16. For these reasons, we hold that the trial court did not abuse its discretion

in concluding that Liles failed to demonstrate a substantive ground for relief based

on “outrageous government conduct.”

       {¶26} In summary, the trial court did not abuse its discretion in dismissing

Liles’s petition for postconviction relief without a hearing.

       {¶27} Liles’s assignments of error are overruled.




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       {¶28} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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