[Cite as State v. Boles, 2017-Ohio-786.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           BROWN COUNTY




STATE OF OHIO,                                   :
                                                        CASE NO. CA2016-07-014
        Plaintiff-Appellee,                      :
                                                                OPINION
                                                 :               3/6/2017
    - vs -
                                                 :

PATRICK D. BOLES,                                :

        Defendant-Appellant.                     :



       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                            Case No. 2011-2149



Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Lawrence J. Greger, Liberty Tower, 120 West Second Street, Suite 1100, Dayton, Ohio
45402, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Patrick Boles, appeals a decision of the Brown County

Court of Common Pleas denying his motion for reconsideration and/or successive petition for

postconviction relief.

        {¶ 2} Appellant was indicted in 2011 on eight counts of rape. The charges stemmed

from eight separate instances of sexual conduct between appellant and the minor victim, four
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of which occurred in 1991 and the remaining four which occurred in 1992. In 2012, a jury

found appellant guilty of four counts of rape for the sexual conduct occurring in 1991, but

acquitted him of the four counts of rape for the sexual conduct occurring in 1992. Appellant

was sentenced to a total prison term of 15 to 45 years.

       {¶ 3} Appellant appealed his convictions, arguing that the trial court erred in allowing

three state witnesses to testify and that his convictions were against the manifest weight of

the evidence. We affirmed appellant's convictions. State v. Boles, 12th Dist. Brown No.

CA2012-06-012, 2013-Ohio-5202.           Subsequently, the Ohio Supreme Court declined

jurisdiction. State v. Boles, 138 Ohio St.3d 1468, 2014-Ohio-1674.

       {¶ 4} On November 25, 2014, through new counsel, appellant filed a petition for a

writ of habeas corpus with the United States District Court for the Southern District of Ohio,

alleging 11 grounds for relief, including claims of ineffective assistance of both trial and

appellate counsel. The District Court stayed the habeas corpus proceedings pending

appellant's exhaustion of his state postconviction remedies regarding his ineffective-

assistance-of-trial-counsel claims. Boles v. Warden, S.D.Ohio No. 1:14-CV-903, 2016 WL

126924 (Jan. 12, 2016).

       {¶ 5} On December 18, 2014, appellant filed an App.R. 26(B) application to reopen

his appeal, arguing his original appellate counsel was ineffective for failing to present

assignments of error on direct appeal challenging the ineffectiveness of trial counsel in

several areas. Specifically, appellant claimed in his application that trial counsel was

ineffective for failing to challenge the statute of limitations and ex post facto application of the

law, for failing to conduct a reasonable investigation and prepare a crucial witness for trial,

and for failing to object to the use of a witness as an expert witness and to a jury instruction

regarding the expert witness.

       {¶ 6} We denied the application on the ground it was untimely filed and that
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appellant's lack of communication with his former appellate counsel did not amount to good

cause for purposes of App.R. 26(B). State v. Boles, 12th Dist. Brown No. CA2012-06-012

(Mar. 11, 2015) (Entry Denying Application for Reopening). Once again, the Ohio Supreme

Court declined jurisdiction. State v. Boles, 143 Ohio St.3d 140, 2015-Ohio-2747.

        {¶ 7} On May 26, 2015, appellant filed a petition for postconviction relief ("PCR")

pursuant to R.C. 2953.21, alleging trial counsel was ineffective for failing to conduct a

reasonable investigation and prepare a crucial witness for trial. Appellant further alleged his

original appellate counsel was ineffective for failing to inform appellant of his right to file a

PCR petition and the timetable for filing such a petition. The trial court dismissed the petition,

finding it was an untimely PCR petition that did not meet the requirements of R.C. 2953.23.

Appellant did not appeal the denial of his PCR petition.

        {¶ 8} On May 5, 2016, appellant filed a motion for reconsideration and/or, in the

alternative, a successive petition for postconviction relief.1 Appellant argued that the failure of

his original appellate counsel to file a PCR petition should not be held against him and does

not preclude him from filing a successive PCR petition because appellate counsel was either

absent or ineffective in postconviction proceedings. In support of his assertion, appellant

cited two decisions from the United States Supreme Court, Martinez v. Ryan, 566 U.S. 1, 132

S.Ct. 1309 (2012), and Trevino v. Thaler, __ U.S. __, 133 S.Ct. 1911 (2013). In his second

PCR petition, appellant reiterated his argument that trial counsel was ineffective for failing to

conduct a reasonable investigation and prepare a crucial witness for trial.

        {¶ 9} On June 28, 2016, the trial court denied appellant's motion for reconsideration

and/or PCR petition. Treating the motion as a successive PCR petition, the trial court found




1. After appellant retained new counsel to file a petition for a writ of habeas corpus, that same attorney filed
appellant's App.R. 26(B) application to reopen the appeal, appellant's first PRC petition, appellant's motion for
reconsideration and/or successive PCR petition, and the current appeal.
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it did not meet the requirements of R.C. 2953.23. Specifically, the trial court found that

appellant's ineffective-assistance-of-trial-counsel claim was barred by res judicata as

appellant had previously challenged the effectiveness of his counsel and had all the facts

available to him at the time of his trial and direct appeal:

              Petitioner has shown nothing that was not available at the time of
              his trial and direct appeal. He has not demonstrated any new
              federal or state right that applies retroactively to him. More
              importantly, there is no clear and convincing evidence that, but
              for constitutional error, no reasonable factfinder would have
              found the petitioner guilty of the offense. He has not met the
              requirements for post-conviction relief.

The trial court further declined to apply Martinez and Trevino, finding that claims of ineffective

assistance of appellate counsel are governed by App.R. 26(B) and were previously denied by

this court. The trial court further found that "Ohio does in fact have proper procedures in

place to deal with the claims [of ineffective assistance of counsel] raised by current counsel.

[Appellant's] current motion raises nothing new."

       {¶ 10} Appellant now appeals, raising one assignment of error:

       {¶ 11} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT

RECONSIDERATION AND/OR THE RIGHT TO FILE A SUCCESSIVE POST-CONVICTION

PETITION ABSENT THE HEIGHTENED STANDARDS FOR UNTIMELY FILING WHERE

COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A TIMELY PETITION FOR POST

CONVICTION, WHICH FAILURE AMOUNTS TO NO COUNSEL REPRESENTING A

PETITIONER FOR POST-CONVICTION.

       {¶ 12} Appellant argues the trial court abused its discretion in failing to reconsider its

denial of appellant's first PCR petition and in not allowing appellant to file a successive PCR

petition.

       {¶ 13} We review a trial court's decision denying a PCR petition under an abuse of

discretion standard. State v. McKelton, 12th Dist. Butler No. CA2015-10-183, 2016-Ohio-
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3216, ¶ 5. An abuse of discretion implies that the court's decision was unreasonable,

arbitrary, or unconscionable. Id.; State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶

91.

       {¶ 14} R.C. 2953.21 through 2953.23 set forth the means by which a convicted

defendant may seek to have the trial court's judgment or sentence vacated or set aside

pursuant to a PCR petition. State v. Hibbard, 12th Dist. Butler No. CA2013-03-051, 2014-

Ohio-442, ¶ 21. Distinct from an appeal of a criminal conviction, a PCR petition is a collateral

civil attack on a criminal judgment. State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). It does

not represent a second occasion to litigate one's conviction. McKelton at ¶ 6.

       {¶ 15} R.C. 2953.21 sets forth the general guidelines for postconviction relief and

provides that petitions must be filed within 365 days of the date on which the trial transcript is

filed in the direct appeal. R.C. 2953.21(A)(2); Hibbard at ¶ 21. If a defendant fails to file his

petition within the prescribed time period, a trial court may entertain an untimely or

successive PCR petition only if the petitioner demonstrates either (1) he was unavoidably

prevented from discovering the facts necessary to assert his claim for relief, or (2) the United

States Supreme Court has recognized a new federal or state right that applies retroactively to

persons in the petitioner's situation and the petitioner asserts a claim based on that right.

R.C. 2953.23(A)(1)(a); McKelton, 2016-Ohio-3216 at ¶ 7. If the petitioner satisfies one of

these threshold requirements, he must then demonstrate by clear and convincing evidence

that, but for the constitutional error at trial, no reasonable factfinder would have found him

guilty of the offenses of which he was convicted. R.C. 2953.23(A)(1)(b); Hibbard at ¶ 22.

       {¶ 16} Appellant first argues the trial court abused its discretion in failing to reconsider

the denial of his first PCR petition. We find we lack jurisdiction over appellant's appeal of the

trial court's failure or refusal to reconsider its denial of the first PCR petition. State v.

Bennett, 5th Dist. Muskingum No. CT2005-0009, 2006-Ohio-2812, ¶ 14.
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       {¶ 17} R.C. 2953.23(B) provides that an order awarding or denying relief sought in a

PCR petition filed pursuant to R.C. 2953.21 is "a final judgment and may be appealed

pursuant to [R.C.] Chapter 2953." The trial court's denial of appellant's first PCR petition was

a final judgment which appellant should have appealed to this court. Bennett at ¶ 14.

Appellant chose instead to file a motion to reconsider. However, it is well-settled that a

motion for reconsideration of a final judgment is a nullity. Id. at ¶ 13; State v. Jackson, 9th

Dist. Lorain No. 96CA006546, 1997 WL 600666, *1 (Sept. 17, 1997). Thus, appellant's

motion to reconsider the trial court's denial of his first PCR petition was a nullity. Jackson at

*1. Consequently, we lack jurisdiction to entertain an appeal from the trial court's refusal or

failure to reconsider the denial of appellant's first PCR petition and we dismiss this portion of

appellant's appeal. Bennett at ¶ 14; Jackson at *1. See also State v. Leach, 12th Dist.

Clermont No. CA2004-02-011, 2005-Ohio-2370.

       {¶ 18} Appellant next argues the trial court abused its discretion in denying his

successive PCR petition on res judicata grounds. Appellant asserts counsel could not have

raised the ineffective-assistance-of-trial-counsel issue on direct appeal because "the issue

depended on evidence de hors the record, and included the failure [of] trial counsel to

investigate and prepare a witness[.]"

       {¶ 19} As stated above, although a petition for postconviction relief permits a person to

bring a collateral challenge to the validity of a conviction or sentence in a criminal case, it

does not provide a petitioner a second opportunity to litigate a conviction. State v. Lawson,

12th Dist. Clermont No. CA2013-12-093, 2014-Ohio-3554, ¶ 40; State v. Bush, 96 Ohio St.3d

235, 2002-Ohio-3993. Accordingly, "a trial court may dismiss a postconviction relief petition

on the basis of the doctrine of res judicata." Lawson at ¶ 40.

       {¶ 20} Under 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
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appeal from 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 or

conviction, or on an appeal from that judgment. Id. at ¶ 41; State v. Szefcyk, 77 Ohio St.3d

93 (1996), syllabus. However, "there is an exception to the res judicata bar when 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."

(Emphasis sic.) State v. Piesciuk, 12th Dist. Butler No. CA2013-01-011, 2013-Ohio-3879, ¶

18. Evidence outside the record, or evidence dehors the record, must demonstrate that

appellant could not have appealed the constitutional claim based upon information in the

original record and such evidence must not have been in existence and available to the

petitioner at the time of trial. Id.

       {¶ 21} In both his first and successive PCR petitions, appellant asserted trial counsel

was ineffective for failing to conduct a reasonable investigation and prepare a crucial witness

for trial. In denying appellant's successive PCR petition, the trial court held that appellant's

claim was barred by res judicata as it "was raised in his prior appeal" and appellant "had all of

the facts available to him at the time of his trial and his direct appeal."

       {¶ 22} We find the trial court erred in denying appellant's successive PCR petition on

res judicata grounds based upon appellant's failure to raise the issue on direct appeal

because the ineffective-assistance-of-trial-counsel claim involved evidence outside the

record. Nonetheless, we agree with the trial court that the issue is barred by res judicata as

appellant asserted the same issue in his first PCR petition which the trial court denied and

which denial appellant did not appeal. See State v. Lester, 6th Dist. Lucas No. L-98-1086,

1999 WL 173658 (Mar. 31, 1999); State v. Britton, 6th Dist. Lucas No. L-97-1345, 1998 WL

666768 (Sept. 30, 1998).

       {¶ 23} Lastly, appellant argues the trial court abused its discretion in denying his
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successive PCR petition on the ground it did not meet the requirements of R.C. 2953.23.

Appellant asserts that given the United States Supreme Court's opinions in Martinez and

Trevino, and the fact his original appellate counsel was either absent or ineffective in

postconviction proceedings because he failed to file a PCR petition, the trial court should not

have applied the "heightened standards" of R.C. 2953.23 to his successive PCR petition.

Martinez and Trevino are both federal habeas corpus cases. Both opinions construe what

may constitute cause to excuse a procedural default in federal habeas proceedings.2

        {¶ 24} Martinez originated in Arizona where state law only permits ineffective-

assistance-of-counsel claims to be brought in state collateral proceedings rather than on

direct appeal. Martinez's postconviction counsel filed a direct appeal and initiated a state

collateral proceeding, but failed to present a claim of ineffective assistance of trial counsel in

the state collateral proceeding. On federal habeas review, Martinez argued he could

overcome procedural default because he had cause for the default, to wit, his first

postconviction counsel was ineffective for failing to raise any claims in the first notice of

postconviction relief. Both the District Court for the District of Arizona and the Ninth Circuit

Court of Appeals held that Martinez had not shown cause to excuse the procedural default

because, under the United States Supreme Court's opinion in Coleman v. Thompson, 501

U.S. 722, 111 S.Ct. 2546 (1991), defendants have no federal constitutional right to the

effective assistance of counsel in postconviction proceedings.

        {¶ 25} In addressing Martinez's claim, the Supreme Court acknowledged its holding in

Coleman that under well-settled principles of agency law, "[n]egligence on the part of a



2. A prisoner must litigate federal law challenges to his conviction in state court before bringing them to federal
court. As the Eighth Appellate District explained, "the failure to assert claims in state court bars a prisoner from
later litigating those claims in federal habeas proceedings because the prisoner failed to exhaust available state
remedies. This concept is known as 'procedural default.' However, a petitioner may overcome a 'procedural
default' by demonstrating 'cause' and 'prejudice.'" State v. Glover, 8th Dist. Cuyahoga Nos. 100330 and 100331,
2014-Ohio-3228, ¶ 22.
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prisoner's postconviction attorney does not qualify as 'cause.'" Martinez, 132 S.Ct. at 1316.

The Supreme Court also acknowledged that in cases where the initial-review collateral

proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective

assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner's

direct appeal as to the ineffective-assistance claim and thus, the prisoner's "one and only

appeal" as to the claim. Id. at 1315-1316. As a result, "when an attorney errs in initial-review

collateral proceedings, it is likely that no state court at any level will hear the prisoner's claim,"

and since a procedural default would preclude any habeas claim, "no court will review the

prisoner's claim." Id. at 1314-1316.

       {¶ 26} Consequently, the Supreme Court qualified its holding in Coleman and held that

"[i]nadequate assistance of counsel at initial-review collateral proceedings may establish

cause for a prisoner's procedural default of a claim of ineffective assistance of counsel."

Martinez at 1315. The Supreme Court further held that under state law, where claims of

ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding,

a procedural default "will not bar a federal habeas court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective." Id. at 1320. In other words, if the

postconviction proceeding was the defendant's first opportunity to argue an error in his

conviction, then the defendant, whether unrepresented or whose counsel was ineffective in

the "initial-review collateral proceeding," is not precluded by the procedural default doctrine

from raising the trial error in federal habeas proceedings. State v. Waddy, 10th Dist. Franklin

No. 15AP-397, 2016-Ohio-4911, ¶ 59.

       {¶ 27} Trevino likewise involved a petition for habeas corpus and originated in Texas

where state law allows a defendant initially to raise ineffective-assistance-of-trial-counsel

claims on direct appeal. The United States Supreme Court extended Martinez to instances
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where state law allows ineffective-assistance-of-counsel claims to be raised on direct appeal

but where the "[s]tate's procedural framework, by reason of its design and operation, makes it

highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise

an ineffective-assistance-of-trial-counsel claim on direct appeal[.]" Trevino, 133 S.Ct. at

1912, 1921.

       {¶ 28} In support of its holding, the Supreme Court emphasized the fact that Texas

courts themselves strongly discourage defendants from using direct appeal to raise

ineffective-assistance-of-trial-counsel claims and instead have determined that collateral

review is the preferred, and as a practical matter, the only method for raising such claims. Id.

at 1920. Specifically, quoting an opinion from the Texas Court of Criminal Appeals, the

Supreme Court noted that there is no meaningful opportunity to present ineffective-

assistance-of-trial-counsel claims on direct appeal in Texas as the "trial court record will often

fail to 'contai[n] the information necessary to substantiate' the claim." Id. at 1918, quoting Ex

parte Torres, 943 S.W.2d 469, 475 (1997).

       {¶ 29} Although appellant's claim of ineffective assistance of trial counsel involves

evidence outside the record, the Martinez/Trevino rule does not hold that a state court must

disregard a procedural default and provide a merit review of a petitioner's PCR claim, and

thus the rule does not apply here. As the Tenth Appellate District held, Martinez "does not

recognize a constitutional right to counsel or effective assistance of counsel in post-

conviction proceedings. Nor does it find any particular state procedural or substantive rules

akin to Ohio's post-conviction relief scheme to be unconstitutional." Waddy, 2016-Ohio-4911

at ¶ 61.    "Rather, Martinez simply 'established an equitable doctrine for overcoming

procedural default in certain limited circumstances.'" Id. Indeed, the Supreme Court was

careful to point out it was only recognizing a "narrow exception" to its holding in Coleman:

              The rule of Coleman governs in all but the limited circumstances
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              recognized here. The holding in this case does not concern
              attorney errors in other kinds of proceedings, including appeals
              from initial-review collateral proceedings, second or successive
              collateral proceedings, and petitions for discretionary review in a
              State's appellate courts. It does not extend to attorney errors in
              any proceeding beyond the first occasion the State allows a
              prisoner to raise a claim of ineffective assistance at trial, even
              though that initial-review collateral proceeding may be deficient
              for other reasons.

(Internal citations omitted.) Martinez, 132 S.Ct. at 1320. That is, the Court made clear that

Martinez applies only to cases where defendants have been denied the effective assistance

of counsel at the "initial review" stage of the litigation. Id. at 1315; Waddy at ¶ 61. The Court

expressly stated that its holding does not apply to successive collateral proceedings.

Martinez at 1320.

       {¶ 30} Likewise, Trevino does not recognize a constitutional right to counsel or

effective assistance of counsel in postconviction proceedings, nor does it find any state laws

unconstitutional. While Trevino expands the Martinez rule to cases where defendants have

been denied the effective assistance of counsel at the "initial review" stage of litigation such

as direct appeal, it does not extend the rule to "attorney errors [in] second or successive

collateral proceedings" or "in any proceeding beyond the first occasion the State allows a

prisoner to raise a claim of ineffective assistance at trial, even though that initial-review

collateral proceeding may be deficient for other reasons." Martinez at 1320; Trevino, 133

S.Ct. at 1921. In other words, the Martinez/Trevino rule does not apply to successive PCR

petitions and simply addresses when a federal court may ignore state procedural default and

allow federal habeas claims to proceed. See State v. Taylor, 8th Dist. Cuyahoga No.

102020, 2015-Ohio-1314; State v. Guy, 6th Dist. Sandusky No. S-15-019, 2016-Ohio-619.

       {¶ 31} Furthermore, the United States Supreme Court has held that there is no federal

constitutional right to counsel in state postconviction proceedings. Rather, "the right to

appointed counsel extends to the first appeal of right, and no further." Pennsylvania v.
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Finley, 481 U.S. 551, 555, 107 S.Ct. 1990 (1987). Subsequently, as noted above, the

Supreme Court held that because there is no constitutional right to an attorney in state

postconviction proceedings, there is no federal constitutional right to the effective assistance

of counsel in such proceedings. Coleman, 501 U.S. at 752 ("a petitioner cannot claim

constitutionally ineffective assistance of counsel in [state post-conviction] proceedings").

That same year, the Ohio Supreme Court held that a postconviction indigent petitioner has

neither a state nor a federal constitutional right to counsel. State v. Crowder, 60 Ohio St.3d

151, 152 (1991). This court has generally held that the Sixth Amendment right to effective

assistance of counsel does not extend to state PCR proceedings. See McKelton, 2016-Ohio-

3216.

        {¶ 32} In light of the foregoing, we find the trial court did not abuse its discretion in

denying appellant's successive PCR petition pursuant to R.C. 2953.23.                Appellant's

assignment of error is accordingly overruled.

        {¶ 33} Judgment affirmed.


        HENDRICKSON, P.J. and RINGLAND, J., concur.




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