[Cite as State v. West, 2019-Ohio-4826.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




STATE OF OHIO,                                  :

       Appellee,                                :        CASE NO. CA2018-09-183

                                                :               OPINION
    - vs -                                                      11/25/2019
                                                :

WILLIAM TROY WEST,                              :

       Appellant.                               :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2015-03-0497



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Rion, Rion & Rion, L.P.A., Inc., Jon Paul Rion, Jason D. Norwood, 130 W. Second Street,
Suite 2150, Dayton, Ohio 45402, for appellant



        RINGLAND, J.

        {¶ 1} Appellant, William Troy West, appeals the decision of the Butler County Court

of Common Pleas denying his petition for postconviction relief. For the reasons detailed

below, we affirm.

        {¶ 2} On May 7, 2015, West and codefendant, Catherina Schaper, entered guilty

pleas on a bill of information to one count of the sale of an unregistered security in violation
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of R.C. 1707.44(C)(1) and one count of fraudulent acts or practices in the sale of securities in

violation of R.C. 1707.44(G), both felonies of the second degree. West, Schaper, and their

company, North Shore Energy, LLC, were represented at the plea and sentencing by the

same defense attorney.

       {¶ 3} The charges stemmed from West and Schaper's sale of unregistered

promissory notes from December 1, 2010 through September 10, 2011 in Butler County to

16 investor-victims to raise money for North Shore Energy for the alleged purpose of drilling

oil wells in Texas. During the plea hearing, the state explained that West and Schaper failed

to disclose to the investors that, at the time of the sales, North Shore Energy was in litigation

involving the lease rights to Texas land where the company was drilling. The amount of

fraudulent sales totaled more than $2.2 million, the vast majority of which was not returned to

the investors. The state further explained that, had the state indicted on all sales, West and

Schaper would have each faced 36 counts including several first-degree felonies.

       {¶ 4} The plea agreement provided that sentencing would be delayed to allow West

and Schaper to pursue legitimate efforts to raise restitution. Nearly two years later, West had

not paid any restitution and the trial court set the matter for sentencing.

       {¶ 5} At the June 5, 2017 sentencing hearing, the trial court sentenced West to two

concurrent six-year prison terms and ordered him to make the outstanding restitution amount.

West appealed, raising two assignments of error. First, West claimed he was adversely

affected at sentencing by his attorney's joint representation of him and Schaper, as his

attorney was not able to argue that he was less culpable than Schaper at the sentencing

hearing. Second, West argued the trial court violated his constitutional rights when it

sentenced him to prison based on his inability to pay full restitution. This court overruled

West's assignments of error and affirmed the trial court's decision. State v. West, 12th Dist.

Butler No. CA2017-07-091, 2018-Ohio-640, ¶ 48. The Ohio Supreme Court declined review.
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02/06/2019 Case Announcements, 2018-Ohio-2380.

      {¶ 6} Subsequently, this court denied West's pro se motions to reopen his appeal

and to certify a conflict and the Ohio Supreme Court declined review. State v. West, Butler

No. CA2017-07-091 (Oct. 2, 2018) (Entry Denying Application to Reopen Appeal);

02/06/2019 Case Announcements, 2019-Ohio-345.

      {¶ 7} On July 5, 2018, West petitioned the trial court for postconviction relief. In his

petition, West raised two claims of ineffective assistance of counsel. First, West claims his

trial counsel failed to thoroughly investigate his defenses to fraud. Second, because of the

joint representation, West argued that his defense attorney failed to negotiate a more

favorable plea bargain for him "despite his lessened culpability."

      {¶ 8} The trial court dismissed West's petition on the basis of res judicata. West now

appeals, raising three assignments of error for review.

      {¶ 9} Assignment of Error No. 1:

      {¶ 10} THE DOCTRINE OF RES JUDICATA DOES NOT BAR POST-CONVICTION

CLAIMS THAT ARE SUPPORTED BY EVIDENCE THAT IS OUTSIDE THE DIRECT

APPEAL RECORD.

      {¶ 11} Assignment of Error No. 2:

      {¶ 12} APPELLANT'S POST-CONVICTION MOTION WAS NOT FILED OUT OF

TIME--THE TRIAL COURT WAS NOT DIVESTED OF JURISDICTION TO CONSIDER THE

MOTION ON THE MERITS.

      {¶ 13} Assignment of Error No. 3:

      {¶ 14} WHEN A POST-CONVICTION PETITION ASSERTS VALID CLAIMS OF

CONSTITUTIONAL VIOLATIONS AND SUPPORTS THOSE CLAIMS BY ATTACHING

UNCONTROVERTED EVIDENCE DEHORS THE RECORD, THE COURT MUST GRANT

RELIEF OR, AT A MINIMUM, HOLD A HEARING ON THE CLAIMS.
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       {¶ 15} As an initial matter, West claims the trial court denied his petition of

postconviction relief based on timeliness. However, we conclude the trial court's final

judgment entry, though it discusses the issue of timeliness, entered its ruling based on the

doctrine of res judicata. As a result, we will address the substance of West's claims. For

ease of discussion, we will address West's assignments of error together.

       {¶ 16} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, a collateral civil attack on a criminal judgment. State v. Bayless, 12th Dist. Clinton

Nos. CA2013-10-020 and CA2013-10-021, 2014-Ohio-2475, ¶ 8.                Initial petitions for

postconviction relief are governed by R.C. 2953.21, which provides three methods for

adjudicating the petition. State v. Chamberlain, 12th Dist. Brown No. CA2015-03-008, 2015-

Ohio-2987, ¶ 5.      When a criminal defendant challenges his conviction through a

postconviction relief petition, the trial court may (1) summarily dismiss the petition without

holding an evidentiary hearing, (2) grant summary judgment on the petition to either party

who moved for summary judgment, or (3) hold an evidentiary hearing on the issues raised by

the petition. R.C. 2953.21(D) thru (F). Id.

       {¶ 17} A trial court's decision to summarily deny a postconviction petition without

holding an evidentiary hearing pursuant to R.C. 2953.21(D) will not be reversed absent an

abuse of discretion. State v. Simon, 12th Dist. Butler No. CA2014-12-255, 2015-Ohio-2989,

¶ 11. The term "abuse of discretion" implies that the court's attitude is unreasonable,

arbitrary or unconscionable. State v. Thornton, 12th Dist. Clermont No. CA2012-09-063,

2013-Ohio-2394, ¶ 34.

       {¶ 18} In the present case, West filed an affidavit in support of his petition for

postconviction relief. As noted above, West advanced two reasons why he is entitled to

relief. First, West argues that his trial counsel failed to conduct a thorough investigation

regarding defenses to his fraudulent actions. Second, because his trial counsel was jointly
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representing his codefendant, West argues that his defense attorney failed to negotiate a

more favorable plea bargain for him "despite his lessened culpability."

       {¶ 19} Following review, we find the trial court did not err by denying West's petition for

postconviction relief without a hearing. West did not support his petition with competent,

relevant, and material evidence outside the record and his petition for postconviction relief is

barred by res judicata.

       {¶ 20} "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." State v. Rose,

12th Dist. Butler No. CA2012-03-050, 2012-Ohio-5957, ¶ 20. Res judicata bars a petitioner

from "re-packaging" evidence or issues that were or could have been raised in trial or direct

appeal. Id.

       {¶ 21} The presentation of competent, relevant, and material evidence outside the trial

record may defeat the application of res judicata. State v. Statzer, 12th Dist. Butler No.

CA2017-02-022, 2018-Ohio-363, ¶ 16. Where a petitioner argues ineffective assistance of

counsel through a postconviction relief motion, the petitioner can avoid the bar of res judicata

by submitting evidence outside the record on appeal that demonstrates that the petitioner

could not have raised the claim based on information in the original record. Id.

       {¶ 22} As to his first argument, West maintains that the money raised from Ohio

investors was not obtained through any fraudulent practice. Rather, West alleges that the

investors were accurately told that their money was being raised to fund new oil well ventures

and that his proposal was based upon scientific research demonstrating the likelihood that oil

and gas reserves would be found. West claims that the losses sustained by investors were a
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direct result of the related oil wells being found to be "dry wells," despite scientific evidence

predicting otherwise.

       {¶ 23} However, any claim that West was prejudiced by his trial counsel's failure to

adequately investigate the case could have and should have been brought during his direct

appeal. West does not identify any new evidence or any reason why his claims regarding

trial counsel's ineffectiveness could not have been raised on direct appeal. Furthermore, as

correctly found by the trial court, West's claims are directly contradicted by the record.

During the plea colloquy, the state recited the facts giving rise to the guilty plea. The

transcript shows that the fraud charge, which West claims could not be proven, was not

based on dry oil wells, but rather that he and his codefendant failed to disclose to the

investors that, at the time of the sales, North Shore Energy was in litigation involving the

lease rights to Texas land where the company was drilling. West then affirmatively stated on

the record that the state provided an accurate statement of what happened.

       {¶ 24} We similarly find that West's second argument with respect to his defense

attorney's joint representation is without merit. In his direct appeal, this court found that there

was no actual conflict of interest in West's defense counsel's joint representation. West,

2018-Ohio-2380 at ¶ 28-33. Furthermore, this court rejected West's argument that he

received ineffective assistance of counsel when his trial counsel failed to pursue the

alternative strategy "that he was less culpable than [his codefendant] for the wrongdoing." Id.

Those issues were addressed in his prior appeal. Id.

       {¶ 25} We note that West raised one issue that this court declined to address in his

direct appeal, as it violated the well-established rule against raising new arguments or issues

in a reply brief. Id. at ¶ 23, fn. 4. To the extent that West may argue that this court did not

address that issue in his direct appeal, we again note that res judicata bars both the "re-

packaging" of arguments already made, as well as arguments that could have been made in
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a direct appeal. Rose, 2012-Ohio-5957 at ¶ 20. As a result, the trial court correctly

determined that West's arguments were barred by res judicata. Therefore, we find the trial

court did not err by denying West's petition for postconviction relief without a hearing. West's

three assignments of error are overruled.

       {¶ 26} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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