[Cite as State v. Withrow, 2017-Ohio-8195.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 2017-CA-36
                                                    :
 v.                                                 :   T.C. NO. 14-CR-632
                                                    :
 TIMOTHY M. WITHROW                                 :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

               Rendered on the ___13th __ day of _____October_____, 2017.

                                               ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, 50
E. Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

TIMOTHY M. WITHROW, #713-871, Madison Correctional Institute, P. O. Box 740,
London, Ohio 43140
     Defendant-Appellant

                                              .............

FROELICH, J.

        {¶ 1} Timothy M. Withrow appeals from a judgment of the Clark County Court of

Common Pleas, which denied his petition for postconviction relief without a hearing. For

the following reasons, the judgment of the trial court will be affirmed.

        {¶ 2} Withrow’s offenses related to a series of armed robberies over a three-day
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span in September 2014. One robbery involved the brandishing of a weapon at a cashier

at a convenience store/drive-thru, in which about $200 was stolen. The next day, a

Subway restaurant was robbed of $150 by a man with a weapon. On the third day, a BP

station was robbed by an armed man.            Withrow was indicted on three counts of

aggravated robbery, first degree felonies, with a firearm specification as to each. In early

2015, Withrow entered a plea agreement in which he pled guilty to counts one and two;

count three and the three gun specifications were dismissed.

         {¶ 3} Through a sentencing memorandum, Withrow’s statement at the sentencing

hearing, and a presentence investigation, it was established that Withrow, age 27, had

three minor children that he had been raising with their mother, that he had been gainfully

employed, but had become addicted to pain pills and later to heroin, and that he had

sought treatment for his addiction in jail. The PSI stated that, as an adult, Withrow had

committed only minor traffic offenses and one domestic violence charge (which was

reduced to a lesser misdemeanor offense), although his juvenile record was “fairly

extensive.” Withrow also expressed remorse.

         {¶ 4} The court sentenced Withrow to two consecutive nine-year terms.           He

appealed, and we affirmed his conviction. We denied his subsequent application to

reopen his appeal (Decision and Entry, September 9, 2016). His appeals to the supreme

court were not allowed. State v. Withrow, 146 Ohio St.3d 1504, 2016-Ohio-5792, 58

N.E.3d 1175; State v. Withrow, 147 Ohio St.3d 1446, 2016-Ohio-7854, 63 N.E.3d 1215.

         {¶ 5} On October 11, 2016, 17 months after the transcript was filed in his direct

appeal, Withrow filed a petition for postconviction relief.1 The petition asserted 1) that


1
    On October 7, 2016, Withrow also filed a Crim.R. 32.1 motion to withdraw his plea, which
                                                                                           -3-


the State had “failed to provide critical factual information” to the defense, namely that a

clerk of the drive-thru Withrow was convicted of robbing had stolen additional money from

the store’s safe, and 2) that the trial court should not have relied on his juvenile record in

imposing consecutive sentences, because his record had been relatively clean as an

adult. With respect to each claim, he asserted in his petition that he had not provided

supporting evidence because he needed the assistance of an attorney or expert to

produce the evidence. Withrow did not make any argument or present any evidence

related to the untimeliness of his petition (as discussed below).

       {¶ 6} Withrow attached his own affidavit to his petition. The affidavit mentioned

-- but only in passing – “misleading evidence” provided by the prosecuting attorney; the

rest of the affidavit focused on the appropriateness of Withrow’s sentence.          Withrow

also attached two police memoranda regarding the drive-thru robbery. We note that the

lawfulness of Withrow’s sentence was raised and thoroughly addressed in Withrow’s

direct appeal.

       {¶ 7} The State did not respond to the petition.

       {¶ 8} At 12:37 p.m. on October 31, 2016, Withrow filed a motion to amend his

petition (with the amended petition attached) to add a claim for ineffective assistance of

counsel and denial of due process (both apparently based on his trial counsel’s alleged

misrepresentation to him about the sentence that would be imposed).                 No new

evidentiary material was attached to this petition. We note that Withrow was permitted

to amend his petition without leave of court, because the State had not filed a response

or any motion. R.C. 2953.21(F); State v. Murphy, 10th Dist. Franklin No. 15AP-460,


has not been ruled on and is not part of this appeal.
                                                                                           -4-


2015-Ohio-4282, ¶ 20. Later that same day, the trial court overruled Withrow’s petition

for postconviction relief; the judgment summarily stated: “Upon review of the record and

defendant’s pleadings, the Court finds defendant’s petition to vacate or set aside

sentence and conviction not well taken and [it] is hereby OVERRULED.”

       {¶ 9} Withrow filed a notice of appeal from the trial court’s judgment. On March

3, 2017, we filed a Decision and Entry, in which we found that the trial court’s order was

not a final appealable order because it lacked findings of fact and conclusions of law.

We instructed the trial court to enter the required findings and conclusions. On March 9,

2017, the trial court entered a judgment that included findings of fact and conclusions of

law, and it reiterated its denial of Withrow’s petition for postconviction relief.

       {¶ 10} Withrow appeals, raising one assignment of error. He asserts that the trial

court erred in denying his petition and in failing to conduct a hearing on the petition.

       Standard of Review

       {¶ 11} A post-conviction proceeding is not an appeal from a criminal conviction;

rather, it is a “civil collateral attack on a criminal judgment.” State v. Wells, 2d Dist.

Montgomery No. 22389, 2008-Ohio-4932, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d

279, 281, 714 N.E.2d 905 (1999). We review a denial of a petition for postconviction

relief for which no hearing was held under an abuse of discretion standard. State v.

Harden, 2d Dist. Montgomery 23617, 2010-Ohio-3343, ¶ 10, citing State v. Hicks, 4th

Dist. Highland No. 09CA15, 2010-Ohio-89, ¶ 10 (surveying other Ohio courts). An abuse

of discretion occurs when the trial court’s decision is unreasonable, arbitrary, or

unconscionable. State v. Turner, 2d Dist. Montgomery No. 27350, 2017-Ohio-4101, ¶ 5,

citing State v. Jenkins, 2d Dist. Montgomery No. 27173, 2017-Ohio-1073, ¶ 10.
                                                                                              -5-


        {¶ 12} R.C. 2953.21(D) provides that, before granting a hearing on a petition for

postconviction relief, the trial court shall determine whether there are substantive grounds

for relief.   A petitioner in a postconviction relief proceeding bears the initial burden of

submitting evidentiary documents with sufficient facts to demonstrate a constitutional

deprivation, such as ineffective assistance of counsel, that would merit a hearing. State

v. Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980), syllabus. Broad conclusory

allegations are insufficient, as a matter of law, to require a hearing. Id. A petition for

postconviction relief may be properly denied without a hearing where the petition, its

supporting evidence, and the record “do not demonstrate that the petitioner set forth

sufficient operative facts to establish substantive grounds for relief.” Id. at 289.

        Timeliness

        {¶ 13} Pursuant to R.C. 2953.21(A)(2), Withrow was required to file a petition for

postconviction relief “no later than three hundred sixty-five days after the date on which

the trial transcript is filed in the court of appeals in the direct appeal of the judgment of

conviction or adjudication * * *.” The transcript was filed in his direct appeal on May 11,

2015, and his petition for postconviction relief was filed on October 11, 2016. Thus,

Withrow’s petition was not filed within 365 days, as required by R.C. 2953.21(A)(2).

        {¶ 14} Under R.C. 2953.23(A)(1) and (2), exceptions to the 365-day rule exist

where the petitioner can show that 1) he or she was unavoidably prevented from

discovering the facts upon which he or she must rely to present the claim for relief or that

the United States Supreme Court has recognized a new federal or state right that applies

retroactively to persons in the petitioner’s situation, and that, but for constitutional error at

trial, no reasonable factfinder would have found the petitioner guilty of the offense of which
                                                                                         -6-


he or she was convicted; or 2) the petitioner was convicted of a felony and is an offender

for whom DNA testing was performed and, analyzed in the context of and upon

consideration of all available admissible evidence related to the inmate's case, the results

of the DNA testing establish, by clear and convincing evidence, actual innocence of that

felony offense. Withrow did not present any evidence related to or argue that any of

these exceptions applied in his case.

       {¶ 15} Because Withrow’s petition was untimely and none of the exceptions

applied, the trial court could have properly overruled his petition on that basis.

       Evidence of Constitutional Violation

       {¶ 16} Withrow attached to his petition an “Inter-Office Communication” from the

Springfield Police Division, which recounted the store clerk’s version of the robbery and

the fact that parts of her story were discredited by a store security video; the memo

indicated that the clerk at the convenience store/drive-thru had taken some money from

the store safe after Withrow stole money from the cash register drawer and before the

police arrived. According to the memo, the suspect (Withrow) was depicted on the video

reaching into the cash drawer, and the “robbery of the money from the cash drawer was

apparently legitimate,” but the clerk had fabricated an additional theft from the safe. In

regard to the alleged constitutional violation, Withrow presented no evidence that the

State had withheld this or any other information about the offenses from him.

       {¶ 17} Withrow’s petition and affidavit could imply, but certainly do not directly

assert, that the discrepancy between the clerk’s account and the video were unknown to

him when he pled guilty. Again, he has presented no evidence to support such an

inference. Likewise, his amended petition presented no evidentiary material that his trial
                                                                                        -7-


counsel had misrepresented the plea agreement or somehow “coerced” the plea.

       {¶ 18} Moreover, there was no trial at which the “Judge/court” could have been

misled, as Withrow suggests. In any event, Withrow’s guilty plea constituted a complete

admission of guilt.   The court could have reasonably concluded that Withrow had not

met his initial burden of submitting evidentiary documents to demonstrate a constitutional

deprivation that merited a hearing.

       {¶ 19} The other argument in Withrow’s petition was that the court erred in

weighing the sentencing factors and imposing the sentence that it did; in particular, he

argues that the trial court gave too much weight to his juvenile convictions.           As

mentioned above, this issue was raised in Withrow’s direct appeal. State v. Withrow,

2016-Ohio-2884, 64 N.E.3d 553 (2d Dist.).         On appeal, the argument was decided

against him, albeit by a divided panel, and “cannot be resurrected in a subsequent post-

conviction proceeding.” State v. Ware, 11th Dist. Lake No. 2014-L-76, 2015-Ohio-5206,

¶ 13. It is barred by res judicata.     “Res judicata” means that a final decision has

previously been made; it serves to preclude a party who had had his or her day in court

from seeking a second hearing on the same issue. State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, 846 N.E.2d 824, ¶ 18; Jones v. Mohler, 2d Dist. Montgomery No. 27105,

2017-Ohio-2683, fn.1.

       {¶ 20} The trial court did not abuse its discretion in overruling Withrow’s petition

for postconviction relief without a hearing.

       {¶ 21} The assignment of error is overruled.

       {¶ 22} The judgment of the trial court will be affirmed.

                                         .............
                                      -8-


DONOVAN, J. and TUCKER, J., concur.

Copies mailed to:

Andrew P. Pickering
Timothy M. Withrow
Hon. Douglas M. Rastatter
