[Cite as State v. Conn, 2015-Ohio-5037.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :     CASE NO. CA2015-05-045

                                                 :             OPINION
   - vs -                                                       12/7/2015
                                                 :

ANTHONY CONN,                                    :

        Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 13-CR-29504



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Anthony Conn, #A699225, Allen Oakwood Correctional Institution, P.O. Box 4501, Lima,
Ohio 45801, defendant-appellant, pro se



        PIPER, P.J.

        {¶ 1} Defendant-appellant, Anthony Conn, appeals a decision of the Warren County

Court of Common Pleas denying his petition for postconviction relief.

        {¶ 2} Conn was indicted on 50 counts, all related to the manufacturing, possession,

and trafficking of steroids. Conn filed a motion to suppress, claiming that evidence seized

and statements elicited from him during the police investigation were done so illegally.
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However, before the trial court considered the motion to suppress, Conn pled guilty to eight

counts and a forfeiture specification, and the state dismissed the other 42 charges. The trial

court held a sentencing hearing, and ordered Conn to serve an aggregate five-year sentence,

some of which was consecutive in nature.

       {¶ 3} Conn appealed his convictions and sentence, raising five assignments of error

for this court's consideration. State v. Conn, 12th Dist. Warren Nos. CA2014-04-059,

CA2014-04-061, and CA2014-06-084, 2015-Ohio-1766. In his direct appeal, Conn argued

that his trial counsel was ineffective for failing to file an affidavit of indigency, his sentence

was contrary to law, his sentence was cruel and unusual punishment, his indictment was

fatally flawed, and the forfeiture of his vehicle was contrary to law. This court affirmed in all

respects, except that the trial court failed to make requisite statutory findings before ordering

Conn to serve consecutive sentences. We therefore remanded the case so that the trial

court could make the statutory findings and resentence Conn accordingly. After our remand,

the trial court resentenced Conn to a four-year aggregate sentence.

       {¶ 4} Conn filed a petition for postconviction relief, arguing that his trial counsel was

ineffective for not pursuing the motion to suppress before counseling him to plead guilty. The

trial court denied Conn's petition for postconviction relief. Conn now appeals the trial court's

decision to deny his petition for postconviction relief, raising five assignments of error. Within

the assignments of error, Conn essentially argues that his trial counsel was ineffective for not

pursuing his motion to suppress for various reasons. However, we find Conn's arguments

barred by res judicata.

       {¶ 5} The doctrine of res judicata provides that 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
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resulted in that judgment of conviction, or on an appeal from that judgment. State v.

Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 10.

       {¶ 6} Res judicata is a proper basis for dismissing a petition for postconviction relief

"when the defendant, represented by new counsel on direct appeal, fails to raise therein the

issue of competent trial counsel and the issue could fairly have been determined without

resort to evidence outside the record." State v. Sturgill, 12th Dist. Clermont Nos. CA2014-01-

003 and CA2014-07-049, 2014-Ohio-5082, ¶ 13. Even so, an exception exists if "the

petitioner presents competent, relevant, and material evidence outside the record that was

not in existence and available to the petitioner in time to support the direct appeal." State v.

Piesciuk, 12th Dist. Butler No. CA2013-01-011, 2013-Ohio-3879, ¶ 18. "For a defendant to

avoid dismissal of the petition by res judicata, the evidence supporting the claims in the

petition must be competent, relevant, and material evidence outside the trial court's record,

and it must not be evidence that existed or was available for use at the time of trial." State v.

Dudas, 11th Dist. Lake Nos. 2007-L-140 and 2007-L-141, 2008-Ohio-3262, ¶ 74.

       {¶ 7} After reviewing the record, we find that Conn's arguments are barred by res

judicata because he should and could have raised them in his first direct appeal. Conn, who

was represented by different counsel at trial than on appeal, argued that his trial counsel was

ineffective in his direct appeal, and could have, at that time, addressed specifically the issue

regarding the motion to suppress. This is especially true where Conn's trial counsel filed the

motion to suppress so that the record contained and made reference to pertinent information

regarding the police investigation that Conn challenged in his petition for postconviction relief.

       {¶ 8} The motion to suppress alleged that all evidence should have been suppressed

because the police's electronic surveillance was illegal, the warrants were faulty and

executed illegally, the police tactics used during the investigation were illegal, and all

statements made by Conn were illegally elicited. These bases raised in the motion to
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suppress are the same bases as Conn asserted in his petition for postconviction relief, and

the same he now asserts on appeal. As such, we find that Conn's arguments are barred by

res judicata because they are not based on evidence outside the record that was not in

existence and available to Conn in time to support the direct appeal. Likewise, the evidence

regarding Conn's motion to suppress clearly existed or was available for use at the time of

trial, as Conn's trial counsel filed a motion to suppress asserting the same exact arguments

Conn now espouses.

       {¶ 9} Moreover, and even if the above procedural issue was not applicable, we find

that the trial court properly denied Conn's petition for postconviction relief on the merits and

without first holding a hearing. A criminal defendant who seeks to challenge his conviction

through a petition for postconviction relief is not automatically entitled to an evidentiary

hearing. State v. Calhoun, 86 Ohio St.3d 279, 282 (1999). "Pursuant to R.C. 2953.21(C), a

trial court properly denies a defendant's petition for postconviction relief without holding an

evidentiary hearing where the petition, the supporting affidavits, the documentary evidence,

the files, and the records do not demonstrate that petitioner set forth sufficient operative facts

to establish substantive grounds for relief." Id. at paragraph two of the syllabus. In addition,

before a hearing is warranted, the petitioner must demonstrate that the claimed errors

"resulted in prejudice." State v. Isbell, 12th Dist. Butler No. CA2003-06-152, 2004-Ohio-

2300, ¶ 9. A trial court's decision to grant or deny the petitioner an evidentiary hearing is left

to the sound discretion of the trial court. Id.

       {¶ 10} To establish a claim of ineffective assistance of counsel, the appellant must

show that counsel's actions were outside the wide range of professionally competent

assistance and that he was prejudiced as a result of counsel's actions. Strickland v.

Washington, 466 U.S. 668, 689, 104 S.Ct. 2052 (1984). Therefore, "the petitioner bears the

initial burden to submit evidentiary documents containing sufficient operative facts to
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demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's

ineffectiveness." State v. Jackson, 64 Ohio St.2d 107 (1980), syllabus.

          {¶ 11} In the context of a guilty plea, prejudice will not be found unless a defendant

demonstrates there is a reasonable probability that, if not for counsel's errors, he would not

have pled guilty and would have insisted on going to trial. Isbell, 2004-Ohio-2300. Self-

serving affidavits submitted by a defendant in support of his claim for postconviction relief are

insufficient to trigger the right to a hearing or to justify granting the petition. Id.

          {¶ 12} To support his ineffective assistance of counsel claims, Conn submitted his own

affidavit in which he makes several self-serving statements in an attempt to call into question

his trial counsel's performance regarding the motion to suppress. Conn's petition, affidavit,

and brief to this court contain countless self-serving statements regarding what police did and

said to him during their investigation, as well as his responses. However, this evidence by

itself is insufficient to mandate a hearing or to justify granting the petition for postconviction

relief.

          {¶ 13} We would also note, and agree with the trial court's finding, that Conn has failed

to demonstrate any prejudice. The record indicates that Conn was charged with 50 counts of

steroid-related charges. In exchange for his guilty plea to only eight of the counts, the state

agreed to dismiss the other 42 counts. There is no indication in the record that Conn would

not have pled guilty had his trial counsel pursued the motion to suppress where there is no

guarantee that such motion would have been granted and where Conn has never denied his

factual guilt. As such, Conn has failed to demonstrate he was prejudiced by his trial

counsel's representation.

          {¶ 14} Having found that the trial court did not abuse its discretion in denying Conn's

petition for postconviction relief, and that Conn's arguments are otherwise barred by res

judicata, we overrule his assignments of error.
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{¶ 15} Judgment affirmed.


HENDRICKSON and M. POWELL, JJ., concur.




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