[Cite as State v. Stein, 2020-Ohio-721.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 10-19-04

        v.

SCOTT A. STEIN,                                            OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Mercer County Common Pleas Court
                            Trial Court No. 16-CRM-144

                                       Judgment Affirmed

                              Date of Decision: March 2, 2020




APPEARANCES:

        Allen Vender for Appellant

        Matthew K. Fox for Appellee
Case No. 10-19-04


PRESTON, J.

       {¶1} Defendant-appellant, Scott A. Stein (“Stein”), appeals the March 25,

2019 judgment of the Mercer County Court of Common Pleas dismissing his

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

       {¶2} This court has previously recited much of the factual and procedural

background of this case, and we will not duplicate those efforts here. State v. Stein,

3d Dist. Mercer No. 10-17-13, 2018-Ohio-2345, ¶ 1-16.

       {¶3} Relevant to this appeal, on November 17, 2016, the Mercer County

Grand Jury indicted Stein on ten counts: Count One of aggravated possession of

drugs in violation of R.C. 2925.11(A), (C)(1)(e), a first-degree felony; Count Two

of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a fifth-degree

felony; Counts Three through Six of having weapons while under disability in

violation of R.C. 2923.13(A)(2), (B), third-degree felonies; and Counts Seven

through Ten of receiving stolen property in violation of R.C. 2913.51(A), (C),

fourth-degree felonies. (Doc. No. 1). Count One included a major drug offender

specification under R.C. 2941.1410(A) and a specification for forfeiture of an

automobile in a drug case under R.C. 2941.1417(A). (Id.). Counts Three through

Six contained a specification for forfeiture of a weapon while under disability under

R.C. 2941.1417(A). (Id.).




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        {¶4} On May 24, 2017, the day that a jury trial was scheduled to commence,

Stein asked the trial court to dismiss his court-appointed attorney due to a purported

deterioration of the attorney-client relationship. (May 24, 2017 Tr. at 3-9). Among

other professed grievances, Stein alleged that his trial counsel failed to file a number

of motions despite his insistence that he would do so. (Id. at 4-5). Stein’s trial

counsel told the trial court that he did not file the motions because he believed the

motions were frivolous. (Id. at 16-17). However, in an effort to preserve the

attorney-client relationship, Stein’s trial counsel orally moved the trial court for a

continuance of the jury trial so that he could file the aforementioned motions. (Id.

at 30-31). (See Doc. No. 147). The trial court granted the continuance of the jury

trial. (May 24, 2017 Tr. at 30-34). (See Doc. No. 147).

        {¶5} On June 12, 2017, Stein’s trial counsel filed seven motions, including

“Defendant’s Motion #3: Motion to Suppress Evidence From Search of a Toyota

Motor Vehicle and a Safe” (“Third Motion to Suppress”). (Doc. No. 149). On June

23, 2017, the State filed its response to Stein’s Third Motion to Suppress. (Doc. No.

163). On August 7, 2017, Stein filed his reply to the State’s response. (Doc. No.

177).

        {¶6} On September 5, 2017, the trial court held a hearing on Stein’s pending

motions. (Doc. No. 216). Before the hearing, Stein’s trial counsel dismissed Stein’s

Third Motion to Suppress over Stein’s objection. (Doc. No. 216); (Sept. 5, 2017 Tr.


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at 8-9, 11-15, 38-40). Following the hearing, the trial court denied Stein’s remaining

motions. (Doc. No. 216).

       {¶7} On September 6, 2017, the State entered a nolle prosequi on Count Two

and the specifications for forfeiture of a weapon relating to Counts Three, Four,

Five, and Six. (Doc. No. 219). Following a trial on September 6-8, 2017, the jury

found Stein guilty of Count One, Counts Four Through Six, and Counts Eight

through Ten. (Doc. Nos. 235, 239, 240, 241, 243, 244, 245, 249). The jury also

found Stein guilty of the specifications relating to Count One. (Doc. Nos. 236, 237,

249). The jury acquitted Stein of Counts Three and Seven. (Doc. Nos. 238, 242,

249). On September 29, 2017, Stein was sentenced to an aggregate term of 14 years’

imprisonment. (Doc. No. 256). The prison term in this case was ordered to be

served consecutively to his six-year prison sentence in a Logan County case for an

aggregate term of twenty years’ imprisonment. (Id.).

       {¶8} On October 19, 2017, Stein filed a notice of appeal with this court.

(Doc. No. 264). A new attorney was appointed for Stein’s direct appeal. (Doc. No.

271). In his direct appeal, Stein argued, in part, that he received ineffective

assistance of counsel. Stein, 2018-Ohio-2345, at ¶ 17. This court rejected Stein’s

arguments and affirmed the judgment of the trial court. Id. at ¶ 59. Stein appealed

our decision to the Supreme Court of Ohio, and that court declined jurisdiction.




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State v. Stein, 153 Ohio St.3d 1504 (Table), 2018-Ohio-4285, appeal not accepted

for review.

       {¶9} On November 27, 2018, Stein filed a petition for postconviction relief.

(Doc. No. 305). In his petition for postconviction relief, Stein argued that his

conviction and sentence are voidable because he was denied effective assistance of

counsel when his trial counsel withdrew a meritorious motion to suppress, namely

his Third Motion to Suppress. (Id.). Stein argued that additional evidence is now

available that was not available at the time of his direct appeal that provides

additional foundation that his Third Motion to Suppress would have been granted.

(Id.). On December 7, 2018, the State filed its response. (Doc. No. 307).

       {¶10} On February 15, 2019, the State filed a motion for summary judgment.

(Doc. No. 312). In its motion for summary judgment, the State argued that Stein’s

petition for postconviction relief is barred by the doctrine of res judicata. (Id.). In

its motion for summary judgment, the State conceded that the additional evidence

Stein references in his petition for postconviction relief was not available during

Stein’s direct appeal; however, the State argued that this court’s decision on appeal

was based on the conclusion that Stein’s trial counsel engaged in a strategic

decision, independent of any lack of information in the record. (Id.). Specifically,

the State argued that because it had to prove standing, including that Stein had some

sort of ownership interest in the vehicle, that Stein’s trial counsel made a strategic


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decision to dismiss Stein’s Third Motion to Suppress and thereby not concede an

ownership interest in the vehicle containing contraband. (Id.). On March 1, 2019,

Stein filed his response in opposition to the State’s motion for summary judgment.

(Doc. No. 313). Stein argued that his petition for postconviction relief is not barred

by res judicata because additional evidence is available to support his Third Motion

to Suppress that was not in the record at the time of the direct appeal. (Id.). Stein

additionally contended that even if his trial attorney did initially withdraw the

motion based on a strategic decision not to claim ownership of the vehicle, “that

stopped being a reasonable strategy when Stein acknowledged ownership of the car

in court.” (Id.). On March 25, 2019, the trial court granted the State’s motion for

summary judgment on Stein’s petition for postconviction relief without holding a

hearing.   (Doc. No. 314).       The trial court found that Stein’s petition for

postconviction relief was barred by res judicata because this court had a sufficient

basis upon which to conclude that Stein’s trial counsel engaged in a reasonable trial

strategy when he withdrew the Third Motion to Suppress. (Id.). The trial court also

found that Stein did not sufficiently demonstrate that there is a reasonable

probability of a different result if his trial counsel had not withdrawn the Third

Motion to Suppress. (Id.).

       {¶11} On April 22, 2019, Stein filed his notice of appeal. (Doc. No. 317).

He raises one assignment of error.


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                                Assignment of Error

       Scott Stein received ineffective assistance of counsel because his
       attorney withdrew a meritorious motion to suppress evidence
       found in his Toyota Camry. Fourth, Sixth and Fourteenth
       Amendments to the United States Constitution; Sections 1 and 10,
       Article I of the Ohio Constitution; Strickland v. Washington, 466
       U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
       Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); Evid.R.
       403(A); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081
       (1961); State v. Hill, 75 Ohio St.3d 195, 203, 661 N.E.2d 1068
       (1996).

       {¶12} In his assignment of error, Stein argues that the trial court erred by

granting the State’s motion for summary judgment.

       {¶13} “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,

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



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       petitioner may file a supporting affidavit and other documentary

       evidence in support of the claim for relief.

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

       {¶14} “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(D), “[b]efore 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; State v. Schwieterman, 3d Dist. Mercer No. 10-09-12, 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(D).




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       {¶15} “‘[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 Driskill at ¶

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

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

(1983). When the abuse of discretion standard applies, an appellate court is not to

substitute its judgment for that of the trial court. State v. Thompson, 3d Dist. Henry

No. 7-16-10, 2017-Ohio-792, ¶ 11.

       {¶16} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.

Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.

Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary

judgment is proper where there is no genuine issue of material fact, the moving party


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is entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

       {¶17} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is

not required to produce any affirmative evidence, but must identify those portions

of the record which affirmatively support his argument.” Id., citing Dresher at 292.

“The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).

       {¶18} Material facts are those facts “‘that might affect the outcome of the

suit under the governing law.’” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993),

quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).

“Whether a genuine issue exists is answered by the following inquiry: [d]oes the

evidence present ‘a sufficient disagreement to require submission to a jury’ or is it

‘so one-sided that one party must prevail as a matter of law[?]’” Id., quoting

Anderson at 251-252.


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       {¶19} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment.         Strickland at 689.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142

(1989), citing State v. Lytle, 48 Ohio St.2d 391, 396-397 (1976), vacated in part on

other grounds, State v. Lytle, 438 U.S. 910, 98 S.Ct. 3135 (Mem) (1978).

       {¶20} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’” Id., quoting


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Strickland at 694.    If the petitioner cannot prove one of the elements, it is

“unnecessary for a court to consider the other prong of the test.” State v. Walker,

3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.

       {¶21} In Stein’s direct appeal, his fourth assignment of error used nearly

identical language to his assignment of error in this appeal. Stein, 2018-Ohio-2345,

at ¶ 17. With respect to the fourth assignment of error, this court stated:

       On appeal, Stein asserts that there is a reasonable probability that had

       appointed counsel moved forward with the motion, the contents of the

       Toyota Camry would have been suppressed.             However, Stein’s

       position is premised on pure speculation and a lack of foundation in

       the record that the motion would have been granted. Moreover, it is

       evident that appointed counsel made a strategic trial decision not to

       permit Stein to formally admit to ownership of the vehicle. As alluded

       to at the pre-trial hearing excerpted above, appointed counsel

       recognized that this case hinged upon the prosecution proving that

       Stein had possession of the 1,487 grams of methamphetamine and two

       stolen firearms found in the vehicle. Simply put, Stein fails to point

       to any portion of the record that would indicate that appointed

       counsel’s decision not to concede ownership of the Toyota Camry and

       to withdraw the suppression motion was anything other than sound


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       trial strategy. Accordingly, we overrule the fourth assignment of

       error.

Id. at ¶ 37. In its judgment entry granting the State’s motion for summary judgment,

the trial court concluded that Stein’s petition for postconviction relief is barred by

res judicata because Stein makes the same argument here that he made in his direct

appeal. (See Doc. No. 314).

       {¶22} “Although 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

State v. Reynolds, 79 Ohio St.3d 158, 161 (1997). “‘“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 * * * on an appeal from that

judgment.”’” Id., quoting State v. Troglin, 3d Dist. Union No. 14-09-04, 2009-

Ohio-5276, ¶ 13, quoting State v. Perry, 10 Ohio St.2d 175, paragraph nine of the

syllabus (1967). “‘[R]es judicata promotes the principles of finality and judicial

economy by preventing endless relitigation of an issue on which a defendant has


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already received a full and fair opportunity to be heard.’” Id., quoting State v. Saxon,

109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18, citing State ex rel. Willys-Overland Co.

v. Clark, 112 Ohio St. 263, 268 (1925). “However, an ineffective assistance of

counsel claim in a petition for postconviction relief is only barred by res judicata

where the defendant was represented by new counsel on direct appeal, and where

appellate counsel ‘was in no way enjoined from asserting ineffective assistance of

trial counsel.’” Id., quoting State v. Bradley, 3d Dist. Union No. 14-08-27, 2008-

Ohio-6071, ¶ 8, citing State v. Cole, 2 Ohio St.3d 112, 114 and fn. 1 (1982).

       {¶23} Here, Stein was represented by new counsel on direct appeal. Stein’s

new counsel was not enjoined from asserting ineffective assistance of trial counsel,

and, in fact, he actually did assert ineffective assistance of trial counsel in Stein’s

direct appeal.

       {¶24} Nevertheless, Stein argues that his claim is not barred by res judicata

because Defendant’s A, B, and C, which he attached to his petition for

postconviction relief, were not part of the record during his direct appeal.

Defendant’s Exhibits A and B are allegedly body camera footage from November

10, 2016, that depicts events prior to the issuance of the search warrant of the Toyota

Camry. (See Defendant’s Exs. A, B). Defendant’s Exhibit C is allegedly the search

warrant and affidavits in support of the search warrant for the Toyota Camry. (See

Defendant’s Ex. C). Stein argues that these exhibits provide a foundation in the


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record that Stein’s motion to suppress would have been granted if it had not been

withdrawn.

       {¶25} In a petition for postconviction relief which asserts ineffective

assistance of counsel, the petitioner has the initial burden to submit evidence which

demonstrates that counsel’s performance was deficient and that appellant was

prejudiced by counsel’s deficiencies. State v. Jackson, 64 Ohio St.2d 107, 111

(1980). “‘Moreover, claims that could have been raised and fairly determined based

on evidence in the record are also barred by res judicata even though the petitioner

may have presented some additional evidence outside the record.’” State v. Ramos,

11th Dist. Geauga No. 2007-G-2794, 2008-Ohio-3738, ¶ 28, quoting State v. Young,

10th Dist. Franklin No. 05AP-641, 2006-Ohio-1165, ¶ 7. “‘[T]he evidence must

show that the petitioner could not have appealed the constitutional claim based on

the information in the original trial record. * * * [This may occur, for example, if

the petitioner, after conviction, discovered facts that implied] the prosecutor

improperly withheld favorable evidence to the accused.’” Ramos at ¶ 29, quoting

State v. Combs, 100 Ohio App.3d 90, 97 (1st Dist.1994).

       {¶26} Stein does not make an attempt to authenticate or otherwise identify

the documents through sworn testimony, such as an affidavit. The only attempt to

identify Defendant’s Exhibits A, B, and C is in Stein’s brief, not an affidavit. This

bare allegation is insufficient to demonstrate substantive grounds for relief. See


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State v. Monroe, 10th Dist. Franklin No. 04AP-658, 2005-Ohio-5242, ¶ 17. Stein

makes no claim that his trial counsel failed to discover Defendant’s Exhibits A, B,

and C. Moreover, Stein does not argue that he could not have appealed the

constitutional claim based on the information in the original trial record.

       {¶27} Thus, because we do not have a proper foundation upon which to

evaluate Defendant’s Exhibits A, B, and C, we cannot evaluate the additional

evidence and assign it weight. As we cannot properly consider Defendant’s Exhibits

A, B, and C, we are left with the same record and the same arguments that Stein

made in his direct appeal. Stein’s petition for postconviction relief is therefore

barred by res judicata. Accordingly, the trial court did not err by granting summary

judgment.

       {¶28} Moreover, because the claims raised in Stein’s petition are barred by

res judicata, the trial court did not abuse its discretion by dismissing Stein’s petition

for postconviction relief without a hearing. See State v. Workman, 3d Dist. Auglaize

No. 2-19-09, 2019-Ohio-5379, ¶ 16-17.

       {¶29} Accordingly, Stein’s assignment of error is overruled.

       {¶30} 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 ZIMMERMAN, J.J., concur.
/jlr

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