[Cite as State v. Parsons, 2020-Ohio-3917.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




STATE OF OHIO,
                                                          CASE NO. 7-20-01
       PLAINTIFF-APPELLEE,

      v.

CULLEN A. PARSONS,                                        OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 15CR0082

                                      Judgment Affirmed

                             Date of Decision: August 3, 2020



APPEARANCES:

        Andrew R. Mayle for Appellant

        Gwen Howe-Gerbers for Appellee
Case No. 7-20-01


WILLAMOWSKI, J.

      {¶1} Defendant-appellant Cullen Parsons (“Parsons”) brings this appeal

from the judgment of the Court of Common Pleas of Henry County dismissing his

appeal for postconviction relief. On appeal Parsons claims the trial court erred in

denying the motion without first holding a hearing. For the reasons set forth below,

the judgment is affirmed.

      {¶2} Following a jury trial, Parsons was found guilty of one count of

attempted murder in violation of R.C. 2903.02(A), a felony of the first degree with

a firearm specification, one count of felonious assault in violation of R.C.

2903.11(A)(2), a felony of the second degree with a firearm specification, and one

count of improperly handling a firearm in a motor vehicle in violation of R.C.

2923.16(A), a felony of the fourth degree. Doc. 46. The trial court sentenced

Parsons to a prison term. Id. Parsons appealed his convictions and sentences. Doc.

47. On appeal, Parsons argued that 1) the search of his vehicle violated the Fourth

Amendment of the U.S. Constitution; 2) the convictions were not supported by

sufficient evidence; 3) the convictions were against the manifest weight of the

evidence; 4) he was denied the effective assistance of counsel; 5) the prosecutor

failed to disclose exculpatory evidence; and 6) his convictions were allied offenses

which should have been merged at sentencing. State v Parsons, 3d Dist. Henry No.

7-16-08, 2017-Ohio-1315, 88 N.E.3d 624 (hereinafter “Parsons I”). On April 10,

2017, this Court affirmed the convictions of the trial court, but found that the

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sentences should have merged and remanded the matter to the trial court for

resentencing. Id. at ¶ 88. A resentencing hearing was held on August 22, 2018.

Doc. 85. At that time, the trial court merged the convictions and sentenced Parsons

to seven years in prison for the attempted murder conviction with a five year prison

term to be served consecutive for the firearm specification for an aggregate prison

term of 12 years. Id.

       {¶3} On July 11, 2017, Parsons’ filed a petition for postconviction relief

alleging that he was denied the effective assistance of counsel for multiple reasons.

Doc. 62. The State filed its response to the petition on August 2, 2017. Doc. 65.

The trial court denied the petition without an evidentiary hearing on September 20,

2017. Doc. 71. Parsons appealed from this decision. Doc. 73. On April 9, 2018,

this Court affirmed the trial court’s denial of the petition for postconviction relief

because Parsons had not, at that time been resentenced, so the petition was

premature. State v. Parsons, 3d Dist. Henry No. 7-17-06, 2018-Ohio-1346.

       {¶4} On July 27, 2018, Parsons filed a motion seeking a new trial pursuant

to Criminal Rule 33. Doc. 79. The State filed its response in opposition to the

motion on August 6, 2018. Doc. 80. On August 20, 2018, the trial court denied the

motion. Doc. 84. Parsons appealed this decision as well. Doc. 87. Parsons claimed

on appeal that he was entitled to a new trial because there was an error at law made

in denying his motion to suppress. State v. Parsons, 3d Dist. Henry No. 7-18-29,

2019-Ohio-824, ¶ 6 (hereinafter “Parsons III”). On March 11, 2019, this Court

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affirmed the judgment of the trial court holding that since the change of law did not

occur until after his trial, he was not entitled to a new trial. Id. at ¶ 8.

       {¶5} On September 23, 2019, Parsons filed another petition for

postconviction relief alleging 1) he was denied effective assistance of counsel at

trial and 2) the plain view doctrine should not have applied in his case. Doc. 93.

The State filed its response to Parsons’ petition on October 21, 2019. Doc. 93. The

trial court dismissed the motion without a hearing on December 5, 2019. Doc. 98.

Parsons brings this appeal from that judgment. Doc. 99. On appeal, Parsons raises

the following assignment of error.

       The trial court erroneously denied Parsons’ motion for
       postconviction relief without holding a hearing.

       {¶6} The sole assignment of error questions whether the trial court should

have dismissed the motion without a hearing. Petitions for postconviction relief are

controlled by R.C. 2953.21, which provides as follows.

       (A)(1)(a) Any person who has been convicted of a criminal offense
       or adjudicated a delinquent child and who claims that there was
       such a denial or infringement of the person's rights as to render
       the judgment void or voidable under the Ohio Constitution or the
       Constitution of the United States, any person who has been
       convicted of a criminal offense and sentenced to death and who
       claims that there was a denial or infringement of the person's
       rights under either of those Constitutions that creates a
       reasonable probability of an altered verdict, and any person who
       has been convicted of a criminal offense that is a felony and who
       is an offender for whom DNA testing that was performed under
       sections 2953.71 to 2953.81 of the Revised Code or under former
       section 2953.82 of the Revised Code and analyzed in the context
       of and upon consideration of all available admissible evidence

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Case No. 7-20-01


       related to the person's case as described in division (D) of section
       2953.74 of the Revised Code provided results that establish, by
       clear and convincing evidence, actual innocence of that felony
       offense or, if the person was sentenced to death, establish, by clear
       and convincing evidence, actual innocence of the aggravating
       circumstance or circumstances the person was found guilty of
       committing and that is or are the basis of that sentence of death,
       may file a petition in the court that imposed sentence, stating the
       grounds for relief relied upon, and asking the court to vacate or
       set aside the judgment or sentence or to grant other appropriate
       relief. The petitioner may file a supporting affidavit and other
       documentary evidence in support of the claim for relief.

       ***

       (2) Except as otherwise provided in section 2953.23 of the Revised
       Code, a petition under division (A)(1) of this section shall be filed
       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 or, if the
       direct appeal involves a sentence of death, the date on which the
       trial transcript is filed in the supreme court. If no appeal is taken,
       except as otherwise provided in section 2953.23 of the Revised
       Code, the petition shall be filed no later than three hundred sixty-
       five days after the expiration of the time for filing the appeal.

       ***

       (F) Unless the petition and the files and records of the case show
       the petitioner is not entitled to relief, the court shall proceed to a
       prompt hearing on the issues even if a direct appeal of the case is
       pending.

R.C. 2953.21. The trial court is not required to hold an evidentiary hearing where

the petition is untimely and no substantive grounds for relief appear on the face of

the petition. State v. Clay, 7th Dist. Mahoning NO. 17-MA-0113, 2018-Ohio-985,

108 N.E.3d 642. No hearing is merited if the petition for postconviction merely


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Case No. 7-20-01


raises claims that were previously raised or could have been raised previously as

those claims are barred by the doctrine of res judicata. State v. Keith, 176 Ohio

App.3d 260, 2008-Ohio-741, ¶ 24, 891 N.E.2d 1191 (3d Dist.).

       {¶7} In this case, Parsons argues that the search of the vehicle was prohibited

by the ruling of the U.S. Supreme Court in Collins v. Virginia, ___ U.S. ___, 138

S.Ct. 1663, 201 L.Ed.2d 9 (2018). This court addressed the applicability of Collins

in this case and determined that since Collins was decided in 2018 and the trial was

held in 2016, there was no error in law at the time it was made. Parsons III at ¶ 7.

Even if this Court were to find that Parsons is correct, that a change in the law

occurred, and that an error in law had been made, the outcome would not have

changed. The officers were complying with the law as it existed at the time of the

search. The U.S. Supreme Court has held that when police conduct a search in

objectively reasonable reliance on the law as it existed at the time, the exclusionary

rule does not apply even if the laws subsequently change. See Davis v. United

States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), and Illinois v. Krull,

480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). This position has also been

held by the Ohio Supreme Court which held that the exclusionary rule was not

applicable to a search conducted in accord with the current law when the law was

changed. State v. Johnson, 141 Ohio St.3d 136, 2014-Ohio-5021, 22 N.E.3d 1061.

In Johnson, the court noted that reasonable officers are not expected to anticipate

changes in Fourth Amendment Jurisprudence and determined that the good faith

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Case No. 7-20-01


exception is applicable when new developments in the law change prior rules. Id.

at ¶ 48 citing United State v. Sparks, 711 F.3d 58 (1st Cir. 2013). Even if we presume

that Parsons is correct and there was a shift in the law for Fourth Amendment

purposes, the officers at the time complied with what the law required at the time.

Thus the exclusionary rule would not apply in this case.

       {¶8} Additionally, Collins dealt with a situation where the officers went into

a partially enclosed portion of the driveway and lifted a tarp to inspect the

motorcycle contained therein. This is substantially different from the case before

us. Here, the police saw the vehicle parked just off the driveway. When the officer

turned away from the vehicle, he observed the gun located on the ground in the plain

view of anyone who looked. As noted in Parsons I, an officer saw the suspected

vehicle sitting by the driveway with its doors open, and the defendant behaved

suspiciously by throwing something behind a tree as an officer approached and then

running towards the officers. Parsons I at ¶ 28. Given this evidence, it would be

reasonable for an officer to step off the driveway to check the vehicle to see if

anyone was in it. The gun was not found inside the vehicle and no search was

conducted for it. The officer saw it as he was turning around and his flashlight beam

reflected off the metal of the gun. The gun was laying on the ground in plain view

of anyone who happened to be there. Thus the facts of this case are easily

distinguishable from those in Collins. For these reasons, the assignment of error is

overruled.

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       {¶9} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Henry County is affirmed.

                                                           Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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