[Cite as State v. Oteng, 2018-Ohio-3138.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                      No. 18AP-58
v.                                                :                (C.P.C. No. 13CR-224)

Dennis Oteng,                                     :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                            D E C I S I O N

                                      Rendered on August 7, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee.

                 On brief: Dennis Oteng, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Dennis Oteng, who is presently serving a sentence of 18
years to life for the shooting death of Kingsley Owusu, appeals an order of the Franklin
County Court of Common Pleas entered on January 3, 2018 without a hearing, denying his
petition for postconviction relief, and denying his motion for leave to amend the petition.
Because the evidence at trial was conflicting, testimony from an eyewitness to the shooting
that Oteng was not the shooter would have been important. Accordingly, we find that the
trial court acted unreasonably when it summarily denied Oteng's motion for leave to amend
his postconviction petition with an affidavit from that witness. We sustain Oteng's second
assignment of error. We also find res judicata does not prevent Oteng from arguing that
his trial counsel was ineffective because the particular reasons for his allegation rely on
evidence outside the original trial record, not subject to review on direct appeal. We
No. 18AP-58                                                                                 2


additionally sustain in part Oteng's first assignment of error, holding the remainder of it
moot because of our holding on Oteng's second assignment of error.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} On January 15, 2013, a Franklin County Grand Jury indicted Oteng for the
murder of Kingsley Owusu. (Jan. 15, 2013 Indictment.) The Grand Jury's finding was
based on two alternative charges, murder and felony murder, each with a firearm
specification. Id. Oteng pled not guilty on January 18, 2013. (Jan. 18, 2013 Plea Form.)
       {¶ 3} During the month of April 2014, the trial court held a jury trial on the case.
In a later-issued appellate decision, we recounted the facts of the case as presented at trial:
              In the early morning hours of January 5, 2013, Kingsley Owusu
              was shot and killed in the parking lot of the Filipino Center on
              Westerville Road in Columbus, Ohio. The victim's best friend,
              Benjamin Appiah, described the events that lead to Owusu's
              death as follows. In the late evening of January 4, 2013, Owusu
              and his friend Gab[riel Basoah], also known as G-money,
              picked him up at home and traveled to Lounge 62 in
              Westerville. When they arrived at Lounge 62, they ran into a
              friend by the name of David Aseidu who was at the lounge with
              his friend Andrea d'Almeida. Appiah testified that he and all
              these other individuals [hail] from the West African nation of
              Ghana. He described the Ghanaian community in Columbus
              as a fairly tight knit group, and he stated that most members of
              the community know each other.

              At Aseidu's suggestion, the group of five left Lounge 62 and
              headed to the Filipino Center to attend a New Year's party co-
              hosted by Appiah's former girlfriend, Alexis Wellington, and
              her best friend, Helen Mamo. According to Appiah, he and
              Wellington had dated "on and off" for approximately one and
              one-half years prior to that time. (Tr. 335.) Appiah was also
              aware that appellant was the father of Wellington's six year old
              daughter, Michelle.

              When they arrived at the party, [Basoah] parked his vehicle at
              the back of the parking lot. Aseidu, who was traveling with
              d'Almeida, parked their vehicle closer to the main entrance of
              the Filipino Center. Appiah testified that he exited the vehicle
              and began walking toward the main entrance, just behind
              Owusu and [Basoah]. As [Basoah] and Owusu crossed the
              parking lot, a man by the name of Yaw Boayke confronted
              Owusu and began yelling at him in an "angry tone." (Tr. 353.)
              [Basoah] stepped between the two and then struck Boayke in
No. 18AP-58                                                                       3


              the face with his forehead. The two men fell to the ground
              wrestling before Appiah was able to pull [Basoah] off of Boayke.

              When Boayke returned to the Filipino Center, he was bleeding
              from the mouth, and he told Mamo that [Basoah] had head-
              butted him. By this time, Appiah had entered the Filipino
              Center to check out the party, while [Basoah] and Owusu
              waited outside. Appiah then saw appellant and "his crew" of
              four or five men rush past him toward the parking lot. (Tr. 371.)
              Appiah recognized a man he knew as Daniel, also known as
              D.J., and another man he knew as Stevenson following
              appellant out the main entrance.

              At that point, Appiah went out to the parking lot where he saw
              appellant approaching Owusu with a handgun raised and
              pointed at him. Appiah got between Owusu and appellant in
              an effort to diffuse the situation. When he turned away from
              appellant to face Owusu, he saw that Owusu was holding a
              small handgun. Appiah pleaded with his friend to give him the
              gun. He told Owusu "[l]et's just leave the scene." (Tr. 370.)
              According to Appiah, Owusu handed him the gun.

              At that moment, Appiah heard a gun shot ring out behind him,
              and he began running toward the main entrance of the Filipino
              Center to get away. When he reached the entrance, he realized
              Owusu was not with him. Concerned for his friend, Appiah
              turned to head back outside, but he was momentarily delayed
              by a security guard. When Appiah made it outside, he saw
              appellant and Owusu facing one another about arms length
              apart with appellant pointing a handgun at Owusu. Appiah
              testified that he was standing about ten feet away from the two
              men with a clear view when he saw appellant fire a shot at
              Owusu.

              According to Appiah, the shot struck [Owusu] in the upper
              body, and he immediately fell to the ground. Appellant then
              rushed over to Owusu and began kicking him in the head.
              When appellant broke off his assault and ran, Appiah tried to
              fire a shot from Owusu's gun, but it jammed. Appiah ejected
              two live shells from the gun and then began running after
              appellant, shooting the gun in the air as appellant fled the
              parking lot in his black BMW.

              Owusu died as a result of a single gunshot wound to the chest.
              Columbus Police arrested appellant on January 6, 2013, at the
              home of his friend Kwame Kusi.
No. 18AP-58                                                                                4


State v. Oteng, 10th Dist. No. 14AP-466, 2015-Ohio-1231, ¶ 2-9. For the purposes of this
decision, we also note a number of facts presented by evidence at trial that were not
included in the prior panel's recitation.
       {¶ 4} The police recovered a single .38o handgun, two live .380 rounds, six spent
9 mm shell casings, and two spent .380 casings at the scene. (State's Ex. A; State's Ex. A-
1.) Ballistics analysis revealed that two 9 mm casings were ejected by one firearm, four
9 mm casings were ejected from another, and the two .380 casings were spent by a third
weapon. (Tr. at 318; State's Ex. S-2.) The .380 casings could neither be excluded nor
identified as having been fired in the gun recovered at the scene (which Appiah testified
was the one he used). (Tr. at 317, 320, 395; State's Ex. S-2; State's Ex. A-1.) That gun also
did not fire the fatal bullet recovered from Owusu's body. (Tr. at 317, 320; State's Ex. S-1.)
       {¶ 5} Appiah was the only witness (out of 19 State's witnesses) who testified that he
saw Oteng shoot Owusu. (Tr. at 375-76.) Appiah admitted that he initially lied to the police
about whether he possessed and fired a gun on the night of the shooting. (Tr. at 394-97.)
He explained that he lied because he was on probation. (Tr. at 396-97.) Although Appiah
testified that Oteng was standing squarely in front of Owusu when Oteng fired, the coroner
testified that Owusu was shot in the shoulder from the right side at a slightly downward
angle. (Tr. at 416-20, 469-70.) The coroner explained that the bullet passed through the
right shoulder at a downward angle into the right pleural cavity, passed right to left through
the fifth thoracic vertebra inflicting a crush injury to the spinal cord, then punctured the
left lung, and came to rest in the left pleural space. (Tr. at 449-50, Autopsy Report at 2,
introduced as part of State's Ex. P.)
       {¶ 6} Basoah, Boayke, and Appiah were all tested for gunshot residue ("GSR") the
evening of the shooting and all three tested positive. (Tr. at 76-77, 104-05, 745-47; State's
Ex. R-1.) Testimony established that Oteng fled immediately in his BMW and the BMW
was recovered the next day. (Tr. at 151, 160-63, 389.) But even though testimony also
established that GSR could have been transferred to the car by Oteng's touch and even
though testimony of an expert suggested that it would have lingered within the car until the
car was cleaned or driven with the windows down, the BMW was not tested for GSR. (Tr.
at 151, 160-63, 752-55, 788.) Oteng's clothing was tested and tested negative for GSR. (Tr.
at 762; State's Ex. R-2.)
No. 18AP-58                                                                               5


       {¶ 7} Other than Appiah, five lay witnesses testified about the events on the
evening Owusu was shot. One witness testified that he heard the shooting but did not see
it. (Tr. at 192-93.) He said that he put on his glasses and looked out of his van after he
heard the shots. Id. He saw a man with a gun kicking someone lying on the ground but
explained that he could not identify anyone because it was too dark. Id. Another witness,
who saw the confrontation from about 12 feet away, testified that Oteng was the one kicking
Owusu in the head as Owusu lay prostrate. (Tr. at 255-56, 274.) But that same witness
testified that she saw both of Oteng's hands during and after the kicking and he was not
holding a gun. (Tr. at 276-78, 280-82.) Another witness testified that both Oteng and
Appiah shot their guns before Owusu was shot and that she did not know who shot Owusu.
(Tr. at 553, 570.) A final witness indicated she was inside when the shooting happened and
did not see any shots fired. (Tr. at 638-39.) She indicated that someone she knew as
"Daniel" or "DJ" screamed to Oteng, "you shot him, get in the car." (Tr. at 644, 647-48.)
However, she admitted when she was initially interviewed by the police in the aftermath of
the shooting, she told the police at least four times that Basoah was the only one who had
been shooting a gun and she did not mention DJ's alleged exclamation. (Tr. at 697-98, 724-
29.) A final witness testified that he had warned Oteng not to go to the party because he
knew Oteng and Owusu were not on good terms. (Tr. at 813-14.) He said Oteng telephoned
him at 2 a.m. on the night of the shooting and said that he had "shot him," which the witness
assumed meant that Oteng was confessing to having shot Owusu. (Tr. at 816-18.) The
witness went on to testify, however, that when he saw Oteng in person the next evening,
Oteng asserted that a lot of people had been shooting at the party and that he did not shoot
Owusu. (Tr. at 821-23, 833.)
       {¶ 8} On April 24, 2014, a jury found Oteng guilty of all counts. (Apr. 24, 2014
Verdict Forms.) During a May sentencing hearing, the trial court merged the two murder
and felony murder counts and sentenced Oteng to serve 15 years to life for murder plus 3
consecutive years for the firearm specification, for a total sentence of 18 years to life in
prison. (Tr. at 988, 990; May 14, 2014 Jgmt. Entry at 2.)
       {¶ 9} Oteng appealed. (June 11, 2014 Notice of Appeal.) Transcripts were prepared
and filed on August 25, 2014. In his appeal, Oteng raised ten assignments of error. Oteng
at ¶ 12. Among other arguments, Oteng maintained that his trial counsel had performed
No. 18AP-58                                                                                  6


ineffectively due to a failure to review certain jail calls, failure to insist upon the
employment of an interpreter to translate jail calls for the jury, failure to object to hearsay
testimony, and failure to object to improper comments and questions by the prosecutor.
Id. at ¶ 86-92. In a decision issued on March 31, 2015, a panel of this Court overruled all
his assignments of error, including the ineffective assistance of counsel arguments, and
affirmed the conviction. Id. in passim.
       {¶ 10} After litigation of a motion for a new trial and an attempted appeal to the
Supreme Court of Ohio, Oteng filed on August 17, 2017 a postconviction petition to vacate
or set aside his conviction. (Aug. 17, 2017 Postconviction Petition.) In it, Oteng asserted a
single claim, that he was deprived of his right to conflict-free counsel when his trial counsel,
Javier Armengau, represented him despite an undisclosed conflict of interest.                Id.
Specifically, Oteng argued that because Armengau had been indicted for several serious
offenses, Armengau would not have wished to defend Oteng vigorously due to a desire to
curry favor with the State. Id. Oteng supported his petition with his own affidavit swearing
that the contents of his petition were true and correct, as well as copies of Armengau's 2013
indictment, a 2014 judgment entry sentencing Armengau to prison, and an article
published on July 7, 2017, reporting on a decision issued by this Court on June 22, 2017
affirming in part and reversing in part Armengau's conviction.                (Aug. 17, 2017
Postconviction Petition at 9, Exs. A-C.) Oteng acknowledged that his petition was filed
beyond the time provided for by statute, but stated that he was unaware of Armengau's legal
troubles until (on July 10) he saw the July 7, 2017 article reporting on this Court's appellate
decision in Armengau's case. (Aug. 17, 2017 Postconviction Petition at 8.)
       {¶ 11} Plaintiff-appellee, State of Ohio, responded and Oteng replied. (Aug. 28,
2017 Memo. in Opp.; Sept. 14, 2017 Reply.) Then, more than four months following the
initial petition, Oteng filed a motion for leave to amend his postconviction petition. (Jan 3,
2018 Mot. for Leave to Amend.) Oteng's motion for leave included a copy of the proposed
amended petition and exhibits in support thereof in which Oteng sought to assert new
evidence of Armengau's alleged ineffectiveness. Specifically, in addition to his own affidavit
and attachments regarding Armengau's criminal case, Oteng attached an affidavit of Seth
Mensah in which Mensah swore that he personally witnessed the shooting. (Jan. 3, 2018
Am. Petition, attached to Jan. 3, 2018 Mot. for Leave.) Mensah averred that "[t]he person
No. 18AP-58                                                                                7


who shot Mr. Owusu was not Dennis Oteng. I did not even see Mr. Oteng with a firearm."
(Mensah Aff., Ex. D. to Jan. 3, 2018 Am. Petition.) Mensah stated that the shootout was
between "G-Money [Basoah] and Ben Appiah" and that Oteng was inside the Filipino
Center when the shooting occurred. Id. Mensah further averred that he told the police this
information and that he had attempted to contact Armengau but his contact attempts had
gone unanswered. Id.
       {¶ 12} Later on the same day in which Oteng filed his motion for leave to amend, the
trial court issued a decision denying his initial petition without a hearing. (Jan. 3, 2018
Decision & Entry.) The decision did not mention or explicitly decide Oteng's motion for
leave to amend.     The trial court found that Oteng should have raised the issue of
Armengau's conflict in his direct appeal and therefore that it was barred by res judicata. Id.
at 5-6. However, the trial court also decided that, even were that not the case, Oteng had
failed to sufficiently substantiate his claims to merit a hearing. Id. at 6-8.
       {¶ 13} Oteng now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 14} Oteng alleges two assignments of error for review:
              [1.] THE TRIAL COURT ERRED IN DENYING APPELLANT'S
              PETITION FOR POST-CONVICTION RELIWF [sic]
              WITHOUT A HEARING THEREBY DENYING HIM THE
              RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
              AND CONFLICT FREE REPRESENTATION GUARNTEED
              [sic] BY THE FIFTH, SIXTH AND FOURTEENTH
              AMENDMENTS TO THE UNITED STATES CONSTITUTION
              AND ARTICLE I, SECTION TEN, OF THE OHIO
              CONSTITUTION.

              [2.] THE TRIAL COURT ABUSED ITS DISCRETION IN
              DENYING APPELLANT'S MOTION TO AMEND HIS POST-
              CONVICTION PETITION.

III. DISCUSSION
   A. Second Assignment of Error – Whether the Trial Court Erred in Denying
      Oteng's Motion for Leave to Amend
       {¶ 15} Except in the case of a person who has been sentenced to death, after a
response to a petition for postconviction relief has been filed, a petitioner may only amend
a petition with leave of the court. R.C. 2953.21(G)(3). While the trial court in this case did
not expressly deny Oteng's motion for leave to amend, when a trial court enters judgment
No. 18AP-58                                                                                  8


without expressly determining a pending motion (including a motion for leave to amend a
postconviction petition), the motion is considered to be overruled by implication. State v.
Young, 10th Dist. No. 05AP-641, 2006-Ohio-1165, ¶ 27. A decision (even an implied
decision) on a motion for leave to amend is reviewed for abuse of discretion. Id. at ¶ 28.
       {¶ 16} In this case, the original petition for postconviction relief was fully briefed
when the State filed in opposition on August 28, 2017, and Oteng replied on September 14,
2017. (Aug. 28, 2017 Memo. Contra; Sept. 14, 2017 Reply.) According to Oteng, not until
November 2017 did he become aware of the fact that Mensah had tried to approach his
counsel, Armengau. (Jan. 3, 2018 Am. Petition at 8-9.) Oteng then filed his motion for
leave with the affidavit of Mensah on January 3, 2018. (Jan. 3, 2018 Mot. for Leave.)
       {¶ 17} In this case, there was considerable disagreement between the witnesses at
trial as to what happened and, in some cases, between their statements to the police and
their testimony at trial. See supra, at ¶ 5, 7. The only witness to accuse the defendant of
the shooting (Appiah) admitted that he initially lied to the police about his role and the
testimony he gave at trial was at least in tension (if not in direct conflict) with the physical
evidence observed by the police and coroner. See supra, at ¶ 5-6. No forensic evidence was
discovered to suggest that Oteng fired the fatal shot or, indeed, that he shot or held a gun
at all. See supra, at ¶ 6. In those circumstances, the sworn statement of another eyewitness
stating that Oteng was not the shooter would have been important evidence for the jury to
consider. Mensah in his affidavit asserts that Armengau did not respond to Mensah's
attempts to contact him and Oteng's submissions regarding Armengau's own personal
criminal proceedings lend credence to the notion that Armengau may have been too
engulfed by his own situation to adequately respond to information regarding Oteng's case.
Under these circumstances, we find it was unreasonable for the trial court to have entirely
failed to consider Oteng's motion for leave to amend and to have therefore implicitly and
summarily denied it. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983) (noting that
an "unreasonable" decision of the trial court may constitute an abuse of discretion).
       {¶ 18} On these specific facts, we find the trial court abused its discretion in denying
Oteng's motion for leave to amend. We therefore sustain Oteng's second assignment of
error, modify the trial court's judgment so as to grant Oteng's motion to amend his
postconviction motion with Mensah's affidavit and related arguments and remand Oteng's
No. 18AP-58                                                                                9


amended postconviction petition to the trial court to reconsider whether or not to grant a
hearing on Oteng's amended postconviction petition.
       {¶ 19} We note that on remand the issues raised in this assignment of error could
be rendered moot if on a potential postconviction hearing the trial court finds that Oteng's
arguments about Armengau's efficacy are foreclosed by res judicata. We thus consider
Oteng's first assignment of error to the limited extent that it challenges any res judicata-
based denial of Oteng's petition.
   B. First Assignment of Error – Whether the Trial Court Erred in Denying
      Oteng's Petition without a Hearing on the Basis of Res Judicata
       {¶ 20} The postconviction relief process is a collateral civil attack on a criminal
judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). "It is a means to reach
constitutional issues which would otherwise be impossible to reach because the evidence
supporting those issues is not contained" in the trial court record. State v. Murphy, 10th
Dist. No. 00AP-233, 2000 WL 1877526, 2000 Ohio App. LEXIS 6129, *5 (Dec. 26, 2000);
see also, e.g., State v. Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15.
       {¶ 21} A defendant is not automatically entitled to an evidentiary hearing on a
postconviction relief petition. State v. Jackson, 64 Ohio St.2d 107, 110 (1980). R.C.
2953.21(D) provides that, "[b]efore granting a hearing on a petition * * * the court shall
determine whether there are substantive grounds for relief." Thus the petitioner bears the
initial burden of providing evidence that demonstrates a cognizable claim of constitutional
error. State v. Ibrahim, 10th Dist. No. 14AP-355, 2014-Ohio-5307, ¶ 9. Because the burden
is the petitioner's, a postconviction relief petition may be denied without an evidentiary
hearing where the petition and supporting materials do not demonstrate that the petitioner
set forth sufficient operative facts to establish substantive grounds for relief. State v.
Calhoun, 86 Ohio St.3d 279, 282-83 (1999).
       {¶ 22} Review of this question is mixed. State v. Barber, 10th Dist. No. 16AP-172,
2017-Ohio-9257, ¶ 17, 20; cf. State v. Kane, 10th Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9.
We have recognized that, "in reviewing a petition for postconviction relief filed pursuant to
R.C. 2953.21, a trial court should give due deference to affidavits sworn to under oath and
filed in support of the petition, but may, in the sound exercise of discretion, judge their
credibility in determining whether to accept the affidavits as true statements of fact." State
v. Canada, 10th Dist. No. 16AP-7, 2016-Ohio-5948, ¶ 17; see also Calhoun at 285 (noting
No. 18AP-58                                                                               10


five factors that should be considered before a trial court may exercise its discretion to
decline to accept an affidavit as true); accord State v. Taylor, 10th Dist. No. 14AP-166,
2014-Ohio-3574, ¶ 23; Ibrahim at ¶ 24.
       {¶ 23} We review the factual findings of the trial court for compliance with the
Calhoun analysis and also for whether the trial court abused the "sound exercise of
discretion" permitted by Calhoun. Calhoun at 284; State v. Campbell, 10th Dist. No. 03AP-
147, 2003-Ohio-6305, ¶ 14. We review questions of law de novo. Barber at ¶ 20; Kane at
¶ 9.
       {¶ 24} A particular question of law for de novo review is whether a petition for
postconviction relief should have been dismissed without a hearing because it was barred
by the doctrine of res judicata. Ibrahim at ¶ 10. In criminal cases, res judicata generally
bars a defendant from litigating claims in a proceeding subsequent to the direct appeal "if
he or she raised or could have raised the issue at the trial that resulted in that judgment of
conviction or on an appeal from that judgment." (Emphasis sic.) State v. Jackson, 141 Ohio
St.3d 171, 2014-Ohio-3707, ¶ 92; see also State v. Szefcyk, 77 Ohio St.3d 93, 95-96 (1996).
" 'Stated differently, in criminal cases res judicata may preclude issues, arguments, or
positions that could have been (even if they were not actually) litigated.' " State v. Long,
10th Dist. No. 17AP-845, 2018-Ohio-2372, ¶ 15, quoting Barber at ¶ 19. Therefore,
notwithstanding the fact that a postconviction petition is a quasi-civil proceeding,
"constitutional issues cannot be considered in postconviction proceedings where those
issues should have been raised on direct appeal and where the issues may be fairly
determined without resort to evidence dehors the record." Murphy at *7; State v. Cole, 2
Ohio St.3d 112 (1982), syllabus; State v. Nichols, 11 Ohio St.3d 40, 41-42 (1984).
       {¶ 25} In this case, the trial court concluded that the general question of whether or
not Armengau was ineffective as Oteng's counsel had been litigated previously and that the
information about Armengau's legal troubles was "public information." (Jan. 3, 2018
Decision & Entry at 5.) The trial court decided that even the specific question about whether
Armengau's legal difficulties impaired his ability to act as counsel could have been and
should have been litigated on direct appeal. Id. However, this Court has previously
confronted this issue in a case where a defendant (who also had Armengau as his attorney)
No. 18AP-58                                                                                  11


attempted to raise in a direct appeal essentially the same arguments Oteng has asserted
here. In that case we held:
              " 'A reviewing court cannot add matter to the record before it,
              which was not a part of the trial court's proceedings, and then
              decide the appeal on the basis of the new matter.' " Morgan v.
              Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, P 13, 818 N.E.2d
              1157, quoting State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d
              500 (1978), paragraph one of the syllabus. Though White's
              brief asserts facts about Armengau's difficulties, the record in
              this direct appeal contains no evidence or information
              whatsoever about Armengau's particular situation. Although
              White refers to the caption of Armengau's criminal case and the
              caption of his disciplinary case before the Supreme Court of
              Ohio, he does not expressly request that we take judicial notice
              of the same. Nevertheless, even if we were to take judicial notice
              of the fact that Armengau was indicted for a number of serious
              criminal offenses before White's trial and was convicted and
              imprisoned for them after White's trial, the record would still
              be devoid of any factual details regarding Armengau's licensure
              issues. Furthermore, there is nothing in the record of this direct
              appeal indicating White was unaware of Armengau's situation.
              In short, while we understand White's argument, that his
              counsel may have been distracted and conflicted by the fact
              that he was suffering severe legal and personal difficulties at
              the same time that he was engaged in litigating White's murder
              trial, we lack the necessary facts to fully consider such a
              matter in a direct appeal. A direct appeal, where the record is
              limited and where the record contains no mention of any of
              the relevant facts at issue, is not the vehicle to make such an
              argument.

(Emphasis added.) State v. White, 10th Dist. No. 14AP-160, 2015-Ohio-5365, ¶ 11.
       {¶ 26} Information about Armengau's personal legal difficulties is not part of the
original trial record in the criminal case of his client, Oteng. Oteng's argument that his trial
counsel's performance or ability to perform was compromised by distraction or conflict as
a result of personal legal problems being prosecuted by the same party prosecuting Oteng
require evidence outside the trial record. Despite the public availability of some basic
judicially noticeable facts, Oteng's arguments on postconviction petition as a matter of law
could not properly be presented by direct appeal. Thus res judicata does not foreclose
Oteng from raising them postconviction.
No. 18AP-58                                                                             12


       {¶ 27} We sustain in part Oteng's first assignment of error insofar as we find that
the arguments asserted postconviction and as sought to be amended are not foreclosed by
res judicata. We find moot the remainder of Oteng's first assignment of error since
resolution of his second assignment of error already requires remand for reconsideration
of the arguments in Oteng's petition as amended by the affidavit of Seth Mensah.
IV. CONCLUSION
       {¶ 28} The only direct eyewitness to the shooting, Appiah, offered trial testimony
that conflicted with physical evidence and the testimony of other witnesses. Testimony
from a second direct eyewitness to the shooting could have been important to the outcome
of Oteng's criminal trial. According to Mensah's affidavit, such testimony was available but
was ignored by Oteng's trial attorney, Javier Armengau. Based on these circumstances, the
trial court acted unreasonably in summarily denying Oteng's motion for leave to amend his
postconviction petition with an affidavit from that witness. We sustain Oteng's second
assignment of error and modify the trial court's judgment, granting Oteng's motion to
amend his postconviction petition. As a matter of law, absent evidence he was unaware of
them at the time, res judicata does not bar Oteng from arguing that his trial counsel was
ineffective on account of his own personal criminal prosecution by the same party, the State
of Ohio, and on account of ignoring communication attempts from an alleged second
eyewitness to the shooting, Mensah. These allegations rely on evidence outside the original
trial record. They could not have been raised on direct appeal. Accordingly, we sustain in
part Oteng's first assignment of error, holding the remainder moot by our resolution of
Oteng's second assignment of error.
                          Judgment reversed and modified in part, and case remanded.


                           TYACK and HORTON, JJ., concur.
