[Cite as State v. Gaines, 2019-Ohio-2097.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                  :         OPINION

                  Plaintiff-Appellee,            :
                                                           CASE NO. 2018-T-0075
         - vs -                                  :

 KEVIN ANTHONY GAINES,                           :

                  Defendant-Appellant.           :


 Civil Appeal from the Trumbull County Court of Common Pleas.
 Case No. 2014 CR 00999.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
 44481-1092 (For Plaintiff-Appellee).

 Kevin Anthony Gaines, pro se, PID: A674-815, Mansfield Correctional Institution, P.O.
 Box 788, 1150 North Main Street, Mansfield, OH 44901 (Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Kevin Anthony Gaines, appeals from the August 7, 2018

judgment entry of the Trumbull County Court of Common Pleas, denying his second pro

se petition for postconviction relief. The trial court’s judgment is affirmed.

        {¶2}      Following a bench trial, appellant was convicted on May 19, 2015, on two

counts of felonious assault with firearm specifications.       Appellant directly appealed,

arguing his convictions were against the manifest weight of the evidence and his trial
counsel was ineffective for failing to file a motion to suppress out-of-court identifications

made by the victim. This court affirmed appellant’s convictions in State v. Gaines, 11th

Dist. Trumbull No. 2015-T-0061, 2016-Ohio-1312. The following factual recitation is from

that opinion:

                Marquel Baker was driving his vehicle, and Tegan Mason was in the
                front passenger seat. * * * They were now giving a ride to Desmond
                Coker, who was seated in the back seat, to an apartment complex in
                Highland Homes. Upon arriving, Desmond determined the people
                he wanted to visit were not home, and the trio attempted to leave the
                parking lot of the apartment complex. Marquel turned the wrong way
                out of the parking lot and soon realized they were approaching a
                dead-end. As Marquel maneuvered the car to turn around, a man
                approached the vehicle with a firearm. * * * The assailant opened
                the driver’s door and began verbally harassing and threatening the
                occupants for approximately ten minutes: * * *. The assailant then
                recognized Desmond, who was in the back seat, and ordered him to
                get out of the car. After Desmond exited the vehicle, Marquel sped
                away, and the assailant opened fire on the vehicle. The rear window
                was shattered, and the left brake light was damaged. Marquel and
                Tegan were approaching a nearby intersection when they realized
                Marquel had been shot. Marquel parked the vehicle at the stop sign,
                and Tegan called 911. Tegan tried to keep Marquel conscious and
                applied pressure to the badly bleeding wounds on Marquel’s back.
                Marquel was transported to the hospital by ambulance.

Id. at ¶3.

       {¶3}     In his first petition for postconviction relief, appellant argued a Fourth

Amendment violation had occurred prior to his arrest, the prosecution failed to disclose a

material witness prior to trial, his trial counsel was ineffective for failing to investigate, and

his convictions were against the manifest weight of the evidence. The trial court denied

appellant’s petition, and this court affirmed the judgment in State v. Gaines, 11th Dist.

Trumbull No. 2017-T-0021, unreported (Dec. 27, 2017).

       {¶4}     On May 18, 2018, appellant filed a second petition for postconviction relief,

in which he raised the following three grounds for relief.



                                                2
       {¶5}   (1) “Violation of the 6th amendment. The conviction was gained as a

result of prosecutorial misconduct that made the trial unfair.” Appellant claimed the

prosecutor allowed the state’s witnesses to provide false testimony regarding the

evidence used at trial, and he attached two photographs in support.            The crux of

appellant’s argument was as follows:

              During the state’s opening statements, the prosecutor says that
              some ‘pellets’ had hit the back window of the vehicle, shattering it,
              and some of the ‘pellets’ proceeded through the front driver’s seat
              and struck Mr. Baker. (Tp 9) [Officer] Fusco also testified that two
              ‘pellets’ had penetrated the glass and the seat and was laying on the
              seat. (Tp 74) There are two photos that depict the back of the driver’s
              seat, that were not shown during trial, that shows the absence of any
              holes in the back of the driver’s seat! These photos were in the
              state’s possession before and during trial. The prosecutor in this
              case saw these photos and did not present them during trial because
              he knew they would discredit the witness’ account of the events and
              the state’s theory of the case. The testimony in regards to the driver’s
              seat being penetrated by ‘pellets’ was clearly false, and the photos
              that were not presented [at trial] will prove this. The state’s whole
              theory of the case was flawed, unproven, and unreliable.

       {¶6}   (2) “Violation of the 4th amendment. Consent for search was not freely

and voluntarily given.” Appellant alleged a search was conducted with neither a warrant

supported by probable cause nor voluntary consent at Starlett Payne’s residence, where

he was residing, and that evidence collected was used against him at trial. In support, he

attached the purported affidavit of Starlett Payne, which was also attached to his first

petition for postconviction relief.

       {¶7}   (3) “Trial counsel failed to present crucial evidence.” Appellant alleged

his trial counsel was ineffective in failing to present the two photographs, which were in

trial counsel’s possession at the time of trial, because they would have disproved the

state’s theory of the case.




                                             3
       {¶8}   The state filed a motion to dismiss the petition without a hearing on the basis

that appellant failed to establish substantive grounds for relief.

       {¶9}   On August 7, 2018, the trial court denied the petition without a hearing,

concluding appellant failed to set forth sufficient operative facts to establish substantive

grounds for relief. The trial court found all three of appellant’s grounds for relief were

barred by the doctrine of res judicata. Additionally, the trial court found appellant was not

“unavoidably prevented” from discovering the facts upon which he based his prosecutorial

misconduct claim; he failed to support his Fourth Amendment claim with evidentiary

documents containing sufficient operative facts; and he failed to demonstrate his trial

counsel was ineffective.

       {¶10} Appellant noticed a timely appeal and asserts three assignments of error

for our review:

              [1.] Trial court erred in denying appellant’s Post Conviction Relief
              Petition without a hearing.

              [2.] Trial court erred when it applied the doctrine of res judicata to the
              appellant’s petition.

              [3.] The trial court erred when it found that the appellant was not
              unavoidably prevented from discovering the photos he relied on.

       {¶11} “Any person who has been convicted of a criminal offense * * * 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 * * * 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.” R.C. 2953.21(A)(1)(a).




                                              4
       {¶12} An untimely or successive petition for postconviction relief is permitted only

under specific, limited circumstances, pursuant to R.C. 2953.23(A). State v. Apanovitch,

155 Ohio St.3d 358, 2018-Ohio-4744, ¶22. R.C. 2953.23(A)(1) provides, in part relevant

here, that a trial court may not entertain an untimely or successive petition unless both of

the following apply:

              (a) * * * [T]he petitioner shows that the petitioner was unavoidably
              prevented from discovery of the facts upon which the petitioner must
              rely to present the claim for relief * * *.

              (b) The petitioner shows by clear and convincing evidence that, but
              for constitutional error at trial, no reasonable factfinder would have
              found the petitioner guilty of the offense of which the petitioner was
              convicted * * *.

       {¶13} “[A] petitioner’s failure to satisfy R.C. 2953.23(A) deprives a trial court of

jurisdiction to adjudicate the merits of an untimely or successive postconviction petition.”

Apanovitch, supra, at ¶36; see also State v. Noling, 11th Dist. Portage No. 2007-P-0034,

2008-Ohio-2394, ¶37. Whether a trial court has jurisdiction to entertain an untimely or

successive petition is a question of law, which is reviewed de novo. Apanovitch, supra,

at ¶24.

       {¶14} We first consider appellant’s third assignment of error. Appellant states that

at the time of trial, he did not have any knowledge of the photographs upon which his first

and third claims for relief are based, to wit: prosecutorial misconduct and ineffective

assistance of counsel. Appellant asserts he should not be held accountable for trial

counsel’s knowledge of the photographs when determining whether he was unavoidably

prevented from discovering them.




                                             5
          {¶15} “The phrase ‘unavoidably prevented’ implies a defendant was unaware of

the facts at issue and was unable to learn of them through reasonable diligence.” Noling,

supra, at ¶38, citing State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶19.

          {¶16} Although appellant states he did not have personal knowledge of the two

photographs, he has not demonstrated that he was unaware of the facts at issue or that

he was unable to learn of them through reasonable diligence. Appellant merely argued

he was unavoidably prevented from discovering the photographs until recently because

they were in trial counsel’s possession. We agree with the trial court’s conclusion that

“[s]uch statement does not show that he was ‘unavoidably prevented’ from the evidence

for such a claim simply because he was not aware of the full amount of evidence his

counsel received in discovery from the State.”          Thus, the trial court did not err in

concluding appellant was not unavoidably prevented from discovery of the facts upon

which he based his first claim for relief.         Accordingly, the trial court did not have

jurisdiction, pursuant to R.C. 2953.23(A), to adjudicate the merits of appellant’s first claim

for relief.

          {¶17} Further, the trial court did not have jurisdiction to adjudicate the merits of

appellant’s third claim for relief, as it was also based on the photographs. In addition to

appellant’s failure to establish he was unavoidably prevented from discovering the photos,

we conclude that, had they been admitted by defense counsel at trial, they do not clearly

and convincingly demonstrate that no reasonable factfinder would have found appellant

guilty.       Thus, appellant has not satisfied the jurisdictional requirements of R.C.

2953.23(A). While the trial court addressed the merits of this claim and concluded

appellant had not established ineffective assistance of counsel, it did not need to do so.




                                               6
In fact, based on its determination as set forth above, it was without jurisdiction to address

the merits. We therefore affirm this decision on different grounds.

       {¶18} Appellant’s third assignment of error is without merit.

       {¶19} In his second assignment of error, appellant asserts res judicata was not a

proper basis upon which to deny his petition because it was based on evidence dehors

the record.

       {¶20} The doctrine of res judicata is applicable to all postconviction proceedings.

State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348, ¶38, citing State

v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). “Under the doctrine, a defendant who was

represented by counsel is barred from raising an issue in a petition for postconviction

relief if the defendant raised or could have raised the issue at trial or on direct appeal.”

Id., citing Szefcyk, supra, at syllabus and State v. Reynolds, 79 Ohio St.3d 158, 161

(1997). “‘To overcome the res judicata bar, evidence offered dehors the record must

demonstrate that the petitioner could not have appealed the constitutional claim based

upon the information in the original record.’” Id. at ¶39, quoting State v. Lawson, 103

Ohio App.3d 307, 315 (12th Dist.1995).

       {¶21} “The fact that an appellant raised ineffective assistance of counsel claims

in a direct appeal does not bar such a claim in a petition for postconviction relief, provided

the claim in the postconviction exercise is predicated upon evidence outside the record.

We must look to the substance of the argument itself to determine whether it is barred by

res judicata.” Id. at ¶66; see also Knoefel v. Connick, 11th Dist. Lake No. 2016-L-131,

2017-Ohio-5642, ¶30-31 (Cannon, J., concurring).




                                              7
       {¶22} We agree with appellant that it was inappropriate to apply the doctrine of

res judicata to his first and third claims for relief. The trial court held they were barred by

res judicata because they could have been raised at trial or on direct appeal. Because

the photographs were not admitted at trial, however, these claims of ineffective assistance

and prosecutorial misconduct were based on evidence dehors the trial court record and

could not have been properly raised or ruled upon in the direct appeal. The trial court’s

error in applying res judicata was harmless, however, in light of our determination that the

trial court did not have jurisdiction to consider these claims.

       {¶23} In his second claim for relief, appellant alleged his Fourth Amendment rights

were violated when Starlett Payne’s residence, where he was residing, was searched

without probable cause or consent. This claim was previously raised and rejected in

appellant’s first petition for postconviction relief, and it could have been raised on direct

appeal. See Gaines, supra, at ¶13-16. Thus, appellant’s second claim for relief was

barred by the doctrine of res judicata. We further note the trial court was also without

jurisdiction to adjudicate the merits of this claim, as appellant did not satisfy the threshold

requirements of R.C. 2953.23(A)(1).

       {¶24} Appellant’s second assignment of error is without merit.

       {¶25} In his first assignment of error, appellant argues he presented evidence that,

on its face, prompted a need for a hearing on his petition.

       {¶26} Based on our conclusion that the trial court did not have jurisdiction to

entertain appellant’s successive petition pursuant to R.C. 2953.23(A)(1), it follows that

the trial court did not err in failing to conduct a hearing prior to denying the petition. Noling,

supra, at ¶102; see also State v. Sharpless, 11th Dist. Portage Nos. 99-P-0083 & 99-P-




                                                8
0121, 2001 WL 114994, *4-6 (Feb. 9, 2001). “A trial court may also dismiss a petition for

postconviction relief without holding an evidentiary hearing when the claims raised in the

petition are barred by the doctrine of res judicata.” Adams, supra, at ¶38, citing Szefcyk,

supra, at syllabus.

       {¶27} Appellant’s first assignment of error is without merit.

       {¶28} The judgment of the Trumbull County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.




                                             9
