[Cite as State v. Keith, 2016-Ohio-7359.]

                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :      CASE NO. CA2015-12-213

                                                  :             OPINION
    - vs -                                                      10/17/2016
                                                  :

TROY LEE KEITH,                                   :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2005-04-0646



Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, 315
High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Troy Lee Keith, #A515-428, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe,
Ohio 45601, defendant-appellant, pro se



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, Troy Lee Keith, appeals from a decision of the Butler

County Court of Common Pleas denying his fifth petition for postconviction relief. For the

reasons set forth below, we affirm the decision of the trial court.

        {¶ 2} In October 2005, appellant was convicted by a jury of six counts of grand theft,

three counts of theft with a specification that the victim was elderly, 17 counts of theft, 14

counts of tampering with the records with the specification that the records were government
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documents, and one count of engaging in a pattern of corrupt activity. The offenses were

related to a mortgage foreclosure scheme that appellant participated in from August 1, 2003

through March 31, 2004. As a result of these convictions, appellant was sentenced by Judge

Keith M. Spaeth to serve 23 years and two months in prison and ordered to pay restitution in

the amount of $98,250.50.

       {¶ 3} In early 2006, prior to directly appealing his conviction and sentence, appellant

filed a motion for new trial and a petition for postconviction relief, arguing that the prosecutor

failed to disclose evidence pertinent to his defense and he received ineffective assistance of

counsel. His motion for new trial and petition for postconviction relief were denied by the trial

court on June 5, 2006.

       {¶ 4} Appellant subsequently filed a direct appeal of his conviction and sentence. In

State v. Keith, 12th Dist. Butler No. CA2007-07-161, 2008-Ohio-348 (hereafter, "Keith I"), this

court affirmed in part and reversed in part appellant's conviction and sentence. Two of

appellant's convictions for grand theft and 14 of appellant's convictions for tampering with

records were reversed and remanded to the trial court for reduction to a lesser included

offense and resentencing. Id. at ¶ 49. This court also reversed and remanded a portion of

the trial court's restitution order and remanded the case for resentencing on all counts in

accordance with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.

       {¶ 5} In April 2008, appellant was resentenced by Judge Craig D. Hedric to serve 24

years and two months in prison and pay restitution to his victims in the amount of

$92,274.21. Appellant, who was represented by appointed counsel, appealed his sentence.

In his sole assignment of error, he argued that the trial court erred by vindictively ordering a

greater sentence on reduced charges. This court overruled appellant's assigned error,

concluding that appellant had failed to demonstrate that the new sentence was motivated by

actual vindictiveness. State v. Keith, 12th Dist. Butler No. CA2008-05-129 (Jan. 30, 2009)
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(Accelerated Calendar Judgment Entry) (hereafter, "Keith II").

        {¶ 6} In June 2007, while appellant's direct appeal in Keith I was pending before this

court, appellant filed his second petition for postconviction relief with the trial court. Appellant

once again argued his trial counsel was ineffective. The trial court denied his motion in

August 2007, and this court upheld the denial of appellant's second petition for

postconviction relief in State v. Keith, 12th Dist. Butler No. CA2007-09-210 (Nov. 3, 2008)

(Accelerated Calendar Judgment Entry).

        {¶ 7} In August 2008, appellant filed a third petition for postconviction relief, which

was subsequently denied by the trial court in September 2008.                            Four years later, in

September 2012, appellant filed a fourth petition for postconviction relief, arguing the trial

court committed plain error by failing to merge his theft offenses as allied offenses of similar

import and by imposing an excessive sentence as a result of the resentencing judge's

"implicit bias." The trial court denied appellant's motion to vacate in July 2013, and this court

upheld the denial of appellant's fourth petition for postconviction relief in State v. Keith, 12th

Dist. Butler No. CA2013-07-131, 2014-Ohio-169.

        {¶ 8} On October 27, 2015, appellant filed an "Instanter Motion to Dismiss Indictment

and Discharge Defendant, Troy Lee Keith" with the trial court. In his motion, appellant

argued, among other things, that his double jeopardy rights were violated and he received

ineffective assistance of trial counsel because counsel did not raise the defense of collateral

estoppel to the state's charges.1 Appellant's motion also requested a hearing.



1. {¶ a} It appears appellant argued, at least in part, that a finding made in a civil case initiated by one or more
of appellant's foreclosure victims barred the state from prosecuting appellant for his role in the mortgage
foreclosure scheme. Appellant stated the following in his motion:

          {¶ b} The Case at bar, brings before this Honorable Court the issue of fact that was
               barred by the Doctrine of Collateral Estoppel. Several of the alleged victim[s]
               of [appellant's] offenses, filed Suit against [him] seeking damages, for lack of
               performance of the legally binding Contract the[y] held with Pro-Team Property
               Management, doing business as, K.T. Property Management, Inc. During the
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         {¶ 9} On November 6, 2015, the state filed a "Response to Motion for Postconviction

Relief," in which it argued appellant's motion should be dismissed as an untimely petition for

postconviction relief. It further argued that appellant's arguments were barred by the doctrine

of res judicata and that appellant was not entitled to hearing.

         {¶ 10} On November 9, 2015, the trial court issued a decision treating appellant's

motion as his fifth petition for postconviction relief. The trial court found no merit to

appellant's arguments, and denied the petition. Thereafter, on November 20, 2015, appellant

filed his "Reply to State's Response," arguing that his motion should not be treated as a

petition for postconviction relief.

         {¶ 11} Appellant timely appealed the trial court's decision, raising three assignments

of error. For ease of discussion, we begin by addressing appellant's second assignment of

error.

         {¶ 12} Assignment of Error No. 2:

         {¶ 13} THE TRIAL COURT ERRED BY CONSTRUING APPELLANT'S MOTION AS

AN UNTIMELY POST-CONVICTION RELIEF PETITION, PURSUANT TO R.C. 2953.23.

         {¶ 14} In his second assignment of error, appellant argues the trial court erred by

construing his "Instanter Motion to Dismiss Indictment and Discharge Defendant, Troy Lee

Keith" as his fifth petition for postconviction relief. He also argues the trial court erred by

denying his motion as "the rule of collateral estoppel is embodied by the Fifth Amendment




               proceeding in a Court with competent jurisdiction over the Subject Matter,
               [appellant] was found not to be the entity, that was a Party to the Contract, as
               he was neither Pro-Team Property Management or K.T. Property
               Management, Inc., and subsequently the cases were dismissed.

          {¶ c} * * *

          {¶ d} [Appellant] was successful in the Civil Court action on the issue of his liability
               and the State was barred from presenting any evidence regarding the
               ownership of the Company as being [appellant], which was its case in chief.
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guarantee against double jeopardy" and denial of the motion resulted in a "clear manifest

injustice."

       {¶ 15} We find no error in the trial court's decision to treat appellant's motion as a

petition for postconviction relief. "Where a criminal defendant, subsequent to his or her direct

appeal, files a motion seeking vacation or correction of his or her sentence on the basis that

his or her constitutional rights have been violated, such a motion is a petition for

postconviction relief as defined in R.C. 2953.21." State v. Reynolds, 79 Ohio St.3d 158

(1997), syllabus. As appellant's motion was filed subsequent to a direct appeal, claimed a

denial of his constitutional rights under the Sixth Amendment and the Double Jeopardy

Clause, sought to render his conviction void, and asked for a vacation of his sentence, his

motion was properly construed as a petition for postconviction relief. See State v. Wilkins,

12th Dist. Clinton No. CA2013-05-012, 2013-Ohio-5372, ¶ 10; State v. Rarden, 12th Dist.

Butler No. CA2013-07-125, 2014-Ohio-564, ¶ 8-9.

       {¶ 16} We further find no error in the trial court's denial of the motion as an untimely

petition for postconviction relief. Appellant's most recent petition for postconviction relief was

filed nearly eight years after the 365-day time limit prescribed in R.C. 2953.21(A)(2) had

expired, and appellant failed to demonstrate either that he was unavoidably prevented from

discovering the facts necessary for his claim for relief or that the United State Supreme Court

has recognized a new federal or state right that applies retroactively to his claim for relief.

See R.C. 2953.23(A)(1)(a).       The arguments appellant raises in his fifth petition for

postconviction relief could have been, and should have been, raised on direct appeal. As

such, we find his claims are barred by the doctrine of res judicata, which states 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
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at the trial, which resulted in that judgment of conviction, or on an appeal from the judgment."

State v. Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶ 10, citing State v.

Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. Moreover, appellant's claim that his criminal

convictions were barred by the doctrine of collateral estoppel is not supported by law. See,

e.g., State v. Lovejoy, 79 Ohio St.3d 440 (1997); State v. Felter, 6th Dist. Huron No. H-99-

001, 1999 WL 727096 (Sept. 17, 1999).

       {¶ 17} Accordingly, we find no merit to appellant's arguments and overrule his second

assignment of error.

       {¶ 18} Assignment of Error No. 1:

       {¶ 19} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT DUE PROCESS

OF LAW, AND RULED ON MOTION BEFORE HIS REPLY TO STATE'S RESPONSE WAS

RECEIVED.

       {¶ 20} In his first assignment of error, appellant argues the trial court erred in ruling

on his petition for postconviction relief without allowing him the opportunity to respond to the

state's "Response to Motion for Postconviction Relief." In support of his argument, appellant

relies on Civ.R. 6(C), which provides as follows:

              Unless otherwise provided by these rules, by local rule, or by
              order of the court, a response to a written motion, other than a
              motion that may be heard ex parte, shall be served within
              fourteen days after service of the motion, and a movant’s reply
              may be served within seven days after service of the response to
              the motion.

       {¶ 21} We find no error in the trial court's actions.       This court has previously

determined that "[a] trial court may dismiss a defendant's petition for post-conviction relief

without affording the defendant an opportunity to file any supplemental or responsive

pleadings where the petition fails to set forth any substantive ground upon which relief may

be granted." State v. Wilson, 12th Dist. Clermont No. CA96-02-020, 1996 WL 435325, *1

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(Aug. 5, 1996). See also In re J.B., 12th Dist. Butler Nos. CA2005-06-176, CA2005-07-193,

and CA2005-08-377, 2006-Ohio-2715, ¶ 48. As appellant's petition failed to set forth any

substantive ground upon which relief could be granted, the court was entitled to immediately

rule on appellant's petition.

       {¶ 22} Appellant's first assignment of error is, therefore, overruled.

       {¶ 23} Assignment of Error No. 3:

       {¶ 24} THE TRIAL COURT ABUSED IT'S [SIC] DISCRETION, WHEN IT DENIED

APPELLANT'S MOTION WITHOUT A HEARING, AND THE ACTIONS WERE A DISPLAY

OF JUDICIAL BIAS.

       {¶ 25} In his third assignment of error, appellant argues the trial court erred in denying

his petition for postconviction relief without holding an evidentiary hearing. Appellant also

contends the decision to deny the petition without a hearing is evidence of the trial judge's

bias against him, and in support of this position, appellant details the various efforts he has

made since 2008 to get Judge Hedric disqualified from his case.

       {¶ 26} As an initial matter we note that we do not have the authority to review whether

or not a trial court judge should be disqualified from presiding over a case. "R.C. 2701.03

provides the exclusive means by which a litigant may claim that a common pleas court judge

is biased and prejudiced." State v. Mackey, 12th Dist. Warren No. CA99-06-065, 2000 WL

190033, *7 (Feb. 14, 2000), citing State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956),

paragraph three of the syllabus; and Jones v. Billingham, 105 Ohio App.3d 8, 11 (2d

Dist.1995). See also Ohio Constitution, Article IV, Section 5(C). A litigant who believes that

the trial court judge should be disqualified must file an affidavit of bias or prejudice with the

clerk of the supreme court pursuant to R.C. 2701.03. "Disqualification proceedings are not

initiated in the court of appeals and cannot be reviewed by a court of appeals." State v. Ludt,

180 Ohio App.3d 672, 2009-Ohio-416, ¶ 17 (7th Dist.), citing Beer v. Griffith, 54 Ohio St.2d
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440, 441 (1978). Rather, a court of appeals may only "review the trial court's rulings for

alleged errors of law or procedure that stem from bias or other conflicts of interest." Id.

       {¶ 27} In the present case, we find no error or bias in the trial court's decision to deny

appellant's petition for postconviction relief without holding a hearing. "An evidentiary hearing

is not automatically guaranteed each time a defendant makes a petition for postconviction

relief." State v. Piesciuk, 12th Dist. Butler No. CA2013-01-011, 2013-Ohio-3879, ¶ 63. To be

entitled to a hearing, "the petitioner must show that there are substantive grounds for relief

that would warrant a hearing based upon the petition, the supporting affidavits, and the files

and records in the case." State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and

CA2012-10-106, 2013-Ohio-1490, ¶ 11. See also R.C. 2953.21(C). The decision to grant or

deny an evidentiary hearing is left to the sound discretion of the trial court. State v. Wilson,

12th Dist. Madison No. CA2013-10-034, 2014-Ohio-2342, ¶ 16.

       {¶ 28} Here, the trial court reviewed appellant's petition, containing an "Affidavit of

Verification," as well as the files and records of the case. As these documents failed to

demonstrate substantive facts supporting appellant's claim for relief, the trial court did not

need to hold an evidentiary hearing before denying the petition. See State v. Lawson, 12th

Dist. Clermont No. CA2013-12-093, 2014-Ohio-3554, ¶ 72.

       {¶ 29} Appellant's third assignment of error is, therefore, overruled.

       {¶ 30} Judgment affirmed.


       M. POWELL, P.J., and S. POWELL, J., concur.




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