[Cite as State v. Dennison, 2018-Ohio-4502.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                     LAWRENCE COUNTY

STATE OF OHIO                                        :

        Plaintiff-Appellee,                          :         Case No. 18CA6

v.                                                   :
                                                               DECISION AND
JUSTIN R. DENNISON,                                  :         JUDGMENT ENTRY

        Defendant-Appellant.                         :         RELEASED: 11/01/2018


                                               APPEARANCES:

Justin R. Dennison, Toledo, Ohio, pro-se appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and C. Michael Gleichauf,
Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.


Hoover, P.J.

        {¶1}     Appellant, Justin R. Dennison (“Dennison”), appeals the judgment of the

Lawrence County Court of Common Pleas, which denied his petition for postconviction relief.

On appeal, Dennison contends that the trial court abused its discretion by overruling his petition

without holding an evidentiary hearing and without including any findings of fact or conclusions

of law. Conversely, the State argues that the trial court did not abuse its discretion in denying the

petition without a hearing because Dennison failed to present substantive grounds for relief in the

petition.

        {¶2}     For the following reasons, we find that the trial court properly denied the petition

for postconviction relief. Because the petition lacked substantive grounds for relief, the trial

court was not required to hold an evidentiary hearing. Furthermore, we find that the trial court’s
Lawrence App. No. 18CA6                                                                              2


judgment entry contained sufficient detail to meet the findings of fact and conclusions of law

requirement. Accordingly, we affirm the judgment of the trial court.

                                 I. Facts and Procedural History

       {¶3}    On September 20, 2015, Deputy Boyd Blake (“Deputy Blake”) of the Lawrence

County Sheriff’s Office was dispatched to Proctorville, Lawrence County, Ohio, in reference to a

house fire. (OP 69, Ex. 1). Stephanie Wells, the individual renting the home, gave a statement to

Deputy Blake, in which she identified Dennison as the probable arsonist. (Id.). That same day,

Deputy Blake found Dennison at the Dairy Queen in Proctorville, Ohio, and promptly arrested

him. (Id.). According to his Investigative Narrative, Deputy Blake read Dennison the Miranda

warnings. (Id.). Officer Steven Woodyard (“Officer Woodyard”) of the Proctorville Police

Department witnessed the arrest. (Id.).

       {¶4}    Thereafter, Deputy Blake transported Dennison to the Lawrence County Jail. At

the jail, Investigator Nakoa Spradlin (“Investigator Spradlin”) of the State Fire Marshal’s Office

asked to speak with Dennison. (Id.). At the preliminary hearing held September 28, 2015,

Investigator Spradlin testified that he reminded Dennison of the Miranda warnings. (OP 65, Ex.

2, p. 8-9). According to Investigator Spradlin, who made an audio recording of the conversation,

Dennison confessed to starting the house fire. (Id. at 9).

       {¶5}    On October 28, 2015, the Lawrence County Grand Jury issued a four-count

indictment charging Dennison with Count 1: Aggravated Menacing, in violation of R.C.

2903.21, a misdemeanor of the first degree; Count 2: Abduction, in violation of R.C.

2905.02(A)(1), a felony of the third degree; Count 3: Aggravated Arson, in violation of R.C.

2909.02(A)(2), a felony of the second degree; and Count 4: Carrying Concealed Weapons, in

violation of R.C. 2923.12(A)(1), a misdemeanor of the first degree. (OP 2).
Lawrence App. No. 18CA6                                                                               3


       {¶6}    On December 30, 2015, Dennison entered into a negotiated plea with the State.

(OP 20). Dennison entered a plea of guilty to Count Three of the Indictment: Aggravated Arson,

in violation of R.C. 2909.02(A)(2); and the State entered a nolle prosequi for Counts One, Two,

and Four of the Indictment. (OP 22, p. 1). The trial court accepted the plea and sentenced

Dennison to an eight-year term of incarceration at the appropriate state penal institution. (Id. at

1-2). As part of the plea agreement, the State recommended that Dennison’s sentence run

concurrent with a pending criminal matter in West Virginia. (Id. at 3). According to the record,

Dennison intended to seek relief under the Interstate Agreement on Detainers so that he could be

transferred to the State of West Virginia to address the criminal matter there. (Appellee’s Brief at

1; OP 30, p. 2).

       {¶7}        However, it was later determined that the detainer lodged by the State of West

Virginia was the result of a probation violation, not pending charges. (Appellee’s Brief at 1).

Since no charges were pending, the State of West Virginia chose not to take Dennison into

custody until his sentence in this matter expired. (Appellee’s Brief at 1).

       {¶8}    In September 2016, Dennison filed a pro se motion, which the trial court treated

as a petition for postconviction relief. (OP 30). In his motion, Dennison moved to withdraw his

guilty plea because it had been made with the assumption that he would be transferred to West

Virginia after his sentencing in Ohio. On February 7, 2017, the trial court granted Dennison’s

motion. (OP 39). The trial court vacated Dennison’s sentence, allowed the withdrawal of the

guilty plea, and appointed new trial counsel. Dennison was now subject to the original

indictment.

       {¶9}    On March 29, 2017, Dennison, while represented by trial counsel Warren

Morford (“Morford”), once again entered into a negotiated plea with the State. (OP 51).
Lawrence App. No. 18CA6                                                                            4


Dennison entered a plea of guilty to Count Three of the Indictment: Aggravated Arson, in

violation of R.C. 2909.02(A)(2). The State entered a nolle prosequi on Counts One, Two, and

Four of the Indictment. (OP 52, p. 1) The trial court accepted the plea and sentenced Dennison to

a seven-year term of incarceration at the appropriate state penal institution. (Id. at 1-2).

       {¶10} Dennison did not file a direct appeal. Instead, on February 12, 2018, he filed a

second petition for postconviction relief. (OP 65). In his petition, Dennison alleged that Morford

was ineffective by failing to file a motion to suppress Dennison’s confession. Dennison claimed

that the confession was given without the Miranda warnings. (Id. at 2). Additionally, Dennison

alleged that Morford failed to obtain the body camera and dashboard camera videos of his arrest.

(Id.). On February 16, 2018, the State responded to Dennison’s petition by explaining that the

Lawrence County Sheriff’s Office and the Proctorville Police Department did not possess or use

body cameras or dashboard cameras at the time of Dennison’s arrest. (OP 69, p. 2-3).

       {¶11} On February 27, 2018, the trial court denied Dennison’s petition for

postconviction relief without holding a hearing. (OP 70). According to the trial court, Dennison

failed to establish that Morford provided ineffective assistance of counsel. (Id. at 3).

       {¶12} Dennison timely filed an appeal. (OP 73).

                                     II. Assignments of Error

       {¶13} On appeal, Dennison assigns the following errors for our review:

Assignment of Error I:

       The trial court abused its discretion in denying Appellant’s petition for
       postconviction relief without a hearing pursuant to R.C. 2953.21, when Appellant
       provided sufficient evidence and a prima facie showing of ineffective assistance
       of trial counsel dehor [sic] the record and the State submitted nothing to dispute
       the claims made by Appellant.

Assignment of Error II:
Lawrence App. No. 18CA6                                                                            5


       The trial court abused its discretion when it denied Appellant’s petition for
       postconviction relief when Appellant’s trial counsel rendered ineffective
       assistance of counsel, violating Appellant’s right to effective assistance under the
       Sixth and Fourteenth Amendments to the United States Constitution as well as
       Article I Section 10 and 16 of the Ohio Constitution.

Assignment of Error III:

       The trial court abused its discretion and committed reversible error when it denied
       Appellant’s postconviction petition without furnishing findings of fact and
       conclusions of law.

                                       III. Law and Analysis

                                      A. Standard of Review

       {¶14} “ ‘[A] trial court’s decision granting or denying a postconviction relief petition

filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court

should not overrule the trial court’s finding on a petition for postconviction relief that is

supported by competent and credible evidence.’ ” State v. Knauff, 4th Dist. Adams No.

13CA976, 2014-Ohio-308, ¶ 19, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

860 N.E.2d 77, ¶ 58. An abuse of discretion is an unreasonable, arbitrary, or unconscionable use

of discretion, i.e., a view or action that no conscientious judge could honestly have taken. State v.

Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67; State v. Gavin, 4th Dist.

Scioto No. 13CA3592, 2015-Ohio-2996, ¶ 20.

             B. Res Judicata Bars Dennison’s Petition for Postconviction Relief

       {¶15} Dennison failed to file a direct appeal from his conviction. Therefore, before we

review the merits of Dennison’s arguments, we must first address whether res judicata bars his

assignments of error. After careful review, we find that Dennison’s first two assignments of error

are barred by res judicata.
Lawrence App. No. 18CA6                                                                                6


       {¶16} A petition for postconviction relief is not the proper vehicle to raise issues that

were or could have been determined on direct appeal. State v. Perry, 10 Ohio St.2d 175, 182, 226

N.E.2d 104 (1967). The doctrine of res judicata bars such claims. Id. However, the presentation

of competent, relevant, and material evidence dehors the record may defeat the application of res

judicata. See State v. Smith, 17 Ohio St.3d 98, 101, 477 N.E.2d 1128 (1985), fn.1. “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 information in the original record.”

State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362 (12th Dist.1995). “ ‘[E]vidence

presented outside the record must meet some threshold standard of cogency; otherwise it would

be too easy to defeat the holding of Perry by simply attaching as exhibits evidence which is only

marginally significant and does not advance the petitioner’s claim beyond mere hypothesis and a

desire for further discovery.’ ” Id., quoting State v. Coleman, 1st Dist. Hamilton No. C-900811,

1993 WL 74756, at *7 (Mar. 17, 1993). “Furthermore, the evidence relied upon must not be

evidence that was in existence or available for use at the time of trial or direct appeal.” State v.

Smith, 4th Dist. Scioto No. 16CA3774, 2017-Ohio-7659, ¶ 12.

       {¶17} In the case sub judice, Dennison alleges that the trial court erred in not finding

ineffective assistance of trial counsel. Dennison maintains that Deputy Blake did not advise him

of his Miranda warnings. Therefore, Dennison argues that trial counsel should have filed a

motion to suppress his confession. In support of his argument, Dennison provided only one piece

of evidence dehors the record: his own affidavit. According to that document, at the time of

Dennison’s arrest, Deputy Blake and Officer Woodyard were wearing body cameras and their

vehicles were equipped with dashboard cameras. Accordingly, Dennison asserts that, during
Lawrence App. No. 18CA6                                                                               7


discovery, trial counsel should have requested that the State turn over a copy of the video

recording of his arrest.

       {¶18} We conclude that the evidence provided by Dennison dehors the record was

known to Dennison since the commencement of this case and could have been used to advance

an ineffective assistance of counsel claim in a direct appeal. In short, Dennison would have

known from the commencement of this case whether Miranda warnings were administered to

him, and in his affidavit he even states that he brought this information to the attention of his trial

counsel. (OP 65, p. 1) Thus, since this evidence was available for use at the time of trial or in a

direct appeal, res judicata bars Dennison’s claims. In other words, Dennison’s affidavit

demonstrates that he knew of his trial counsel’s alleged failures as early as the trial court

proceedings, but still failed to file a direct appeal. Accordingly, he is barred by res judicata from

bringing the claim in postconviction proceedings.

       {¶19} Even if the doctrine of res judicata would not bar Dennison’s petition, Dennison’s

arguments would still fail on their merits. Thus, despite our finding that res judicata bars

Dennison’s petition, we will, in the interests of justice and thoroughness, briefly address

Dennison’s assignments of error. See State v. McClellan, 4th Dist. Meigs No. 00CA31, 2001 WL

1450831, at *2 (Oct. 31, 2001).

 C. The Trial Court Did Not Err in Denying Dennison’s Petition for Postconviction Relief

                                   Without an Evidentiary Hearing

       {¶20} In his first assignment of error, Dennison contends that the trial court abused its

discretion in denying his postconviction petition without a hearing. He claims that he provided

evidence sufficient to demonstrate ineffective assistance of counsel. However, we find that the

petition lacked substantive grounds for relief; thus, the trial court was not required to hold an
Lawrence App. No. 18CA6                                                                                8


evidentiary hearing. Moreover, this disposition of Dennison’s first assignment of error renders

moot his second assignment of error, which is based on the failed claim of ineffective assistance

of counsel. Our analysis follows regarding how we reached these conclusions.

       {¶21} A criminal defendant, seeking to challenge his conviction(s) through a petition for

postconviction relief is not automatically entitled to an evidentiary hearing. State v. Cole, 2 Ohio

St.3d 112, 113, 443 N.E.2d 169 (1982), citing State v. Jackson, 64 Ohio St.2d 107, 110, 413

N.E.2d 819 (1980). Before the trial court can grant a hearing on the petition, the court must

“determine whether there are substantive grounds for relief.” R.C. 2953.21(D). When making

this determination, the court must consider the petition along with any supporting affidavits,

documentary evidence, and all the files and records of the case. Id.

       {¶22} “[E]vidence supporting a petition for post-conviction relief must meet some

threshold level of cogency that advances the petitioner’s claim beyond mere hypothesis. The

evidence must be genuinely relevant, and it must materially advance petitioner’s claim that there

has been a denial or infringement of his or her constitutional rights.” (Internal citation omitted).

State v. Wright, 4th Dist. Washington No. 06CA18, 2006-Ohio-7100, ¶ 22. Additionally, the

court may assess the credibility of petitioner’s evidence. Id. at ¶ 23, citing State v. Calhoun, 86

Ohio St.3d 279, 284, 714 N.E.2d 905 (1999). If the trial court finds no substantive grounds for

relief, the petition should be dismissed without a hearing. Calhoun at 289.

       {¶23} To establish constitutionally ineffective assistance of counsel, a defendant must

show (1) that his counsel’s performance was deficient and (2) that the deficient performance

prejudiced the defense and deprived the defendant of a fair trial. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-

142, 538 N.E.2d 373 (1989). “In order to show deficient performance, the defendant must prove
Lawrence App. No. 18CA6                                                                             9


that counsel’s performance fell below an objective level of reasonable representation. To show

prejudice, the defendant must show a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006-

Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to establish either element is fatal to the claim.” State

v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is

dispositive, a court need not analyze both. See State v. Madrigal, 87 Ohio St. 3d 378, 389, 721

N.E.2d 52 (2000).

       {¶24} “When considering whether trial counsel’s representation amounts to deficient

performance, ‘a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington Nos.

13CA33 & 13CA36, 2014-Ohio-4966, ¶ 23, quoting Strickland at 689. “Therefore, a defendant

bears the burden to show ineffectiveness by demonstrating that counsel’s errors were so serious

that he or she failed to function as the counsel guaranteed by the Sixth Amendment.” Id.,

citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62 and State v.

Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).

       {¶25} Here, according to Dennison’s sworn affidavit, Deputy Blake and Officer

Woodyard were wearing body cameras and their vehicles were equipped with dashboard cameras

on the date of his arrest. Dennison claims that those devices contain video of his arrest, which

shows that Deputy Blake failed to advise Dennison of his Miranda warning. Dennison argues

that trial counsel should have filed for discovery to obtain a copy of that video. The only other

evidence Dennison relies upon is Investigator Spradlin’s testimony, in which Spradlin states that

he was not present at the time of Dennison’s arrest and thus had no firsthand knowledge of
Lawrence App. No. 18CA6                                                                              10


whether Deputy Blake had read the Miranda warnings to Dennison. Consequently, Dennison

argues that trial counsel should have filed a motion to suppress his confession.

       {¶26} In response to Dennison’s petition, the State asserted that the Lawrence County

Sheriff’s Office and the Proctorville Police Department did not possess or use body cameras or

dashboard cameras at the time of Dennison’s arrest. According to the State, trial counsel cannot

be found ineffective for failing to demand evidence that does not exist.

       {¶27} We cannot find that the trial court acted unreasonably in denying Dennison’s

petition for postconviction relief without an evidentiary hearing. It was within the trial court’s

discretion to assess the credibility of Dennison’s evidence and to find that such evidence failed to

materially advance his claim of ineffective assistance of counsel. In light of the evidence, we

find that the trial court did not abuse its discretion in denying Dennison’s petition for

postconviction relief. Moreover, because Dennison failed to establish substantive grounds for

relief, the trial court was not required to hold an evidentiary hearing before denying his petition.

       {¶28} Accordingly, we overrule Dennison’s first assignment of error. This holding

renders moot the second assignment of error; hence, we decline to address it. See App.R.

12(A)(1)(c).

      D. The Trial Court Provided Sufficient Findings of Fact and Conclusions of Law

       {¶29} In his third assignment of error, Dennison contends that the trial court failed to

include sufficient findings of facts and conclusions of law.

       {¶30} When a court dismisses a petition for post-conviction relief without an evidentiary

hearing, it must make findings of fact and conclusions of law. R.C. 2953.21(D); State v. Lester,

41 Ohio St.2d 51, 322 N.E.2d 656 (1975), paragraph two of the syllabus. However, designated

findings of fact and conclusions of law are not required if the court issues a judgment entry that
Lawrence App. No. 18CA6                                                                             11


is sufficiently detailed to permit appellate review. State ex rel. Carrion v. Harris, 40 Ohio St.3d

19, 20, 530 N.E.2d 1330 (1988); see also State v. Young, 4th Dist. Lawrence No. 95CA01, 1996

WL 17249, *1 (Jan. 18, 1996).

        {¶31} Dennison contends that the trial court failed to include findings of facts and

conclusions of law that were explicit enough to give us a clear understanding of the basis of the

trial court’s decision.

        {¶32} Dennison also argues that the trial court’s decision was not supported by

competent, credible evidence in the record. However, our holding, infra, that the trial court did

not abuse its discretion in denying the petition for postconviction relief without an evidentiary

hearing, renders this argument moot.

        {¶33} Although the court in the present case did not specifically label its findings and

conclusions, it issued a detailed judgment entry setting forth its reasons for denying the petition

for postconviction relief. The trial court’s entry satisfies the purpose of R.C. 2953.21(D).

Therefore, we find that the trial court did issue sufficient findings of fact and conclusions of law.

                                          IV. Conclusion

        {¶34} Having found that res judicata bars Dennison’s assignments of error, and that the

assignments of error are meritless or are moot, we affirm the judgment of the trial court.

                                                                         JUDGMENT AFFIRMED.
Lawrence App. No. 18CA6                                                                           12


Harsha, J., dissenting:

       {¶35} I dissent and wish to address several matters.

       {¶36} First, in In re B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 9, we

noted the uncertainty about the appropriate standard of review in this context, but concluded that

a mixed question of law and fact standard was best. Nevertheless, a couple years later, we

abandoned this approach and decided to follow the majority of Ohio courts in applying an abuse

of discretion standard. State v. Hicks, 4th Dist. Highland No. 09CA15, 2010-Ohio-89, ¶ 9-11. I

subsequently joined in the adoption of this approach because of my rereading of State v.

Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999), which stated that “the statute clearly

calls for discretion in determining whether to grant a hearing * * *.” See State v. Lewis, 4th Dist.

Ross No. 10CA3181, 2011-Ohio-5224, ¶ 28 (Harsha, J., concurring) (“Although it seems

illogical to apply an abuse of discretion standard to determine whether a petition meets a certain

legal standard, so be it”); see also State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 52 (appellate courts should grant same level of deference to trial court in

postconviction relief regardless of whether the decision is prehearing or posthearing). Therefore,

I agree with the application of an abuse-of-discretion standard in these cases.

       {¶37} However, it appears other courts have continued to adopt the hybrid standard of

review we applied in B.C.S., notwithstanding our abandonment of it. This is understandable in

light of Westlaw’s failure to indicate we have subsequently rejected this part of B.C.S.. Westlaw

should update its citation service.

       {¶38} Second, I disagree with the majority’s conclusion that res judicata barred

Dennison’s petition for postconviction relief, which raised an ineffective-assistance claim based

on evidence that was outside the record. See generally Baldwin’s Oh. Prac. Crim. L., Section
Lawrence App. No. 18CA6                                                                             13


81:3 (3d Ed.2018) (in postconviction proceedings, “the claim of ineffective trial counsel is not

barred [by res judicata] if the claim arises from facts which are not present in the record and

therefore cannot be argued on appeal”); State v. Black, 4th Dist. Ross No. 15CA3509, 2016-

Ohio-3104, ¶ 19 (Harsha, J., concurring) (“I do not believe that res judicata applies to bar those

claims of ineffective assistance that could not have been the subject of a direct appeal because

they are based on evidence outside the record”).

       {¶39} Finally, I conclude Dennison’s February 12, 2018 petition for postconviction

relief sufficiently stated operative facts to establish substantive grounds for relief, entitling him

to a hearing. Dennison affirmatively stated the arresting officers wore body cameras, the vehicles

had dash cameras, and that video recordings from them would prove he was not Mirandized. He

also affirmatively stated he advised counsel of these facts but counsel failed to investigate or

obtain discovery. Rather than relying upon the states assertion in its memorandum contra that

police agencies involved did not use video cameras, thus the alleged evidence did not exist, the

court should have conducted an evidentiary hearing to determine the merit of Dennison’s

allegations. Or alternatively, the state could have obtained an affidavit that verifies what the state

has alleged.
Lawrence App. No. 18CA6                                                                               14


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

        The Court finds that reasonable grounds existed for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Lawrence County
Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellee to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellee to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, J.: Concurs in Opinion Only.
Harsha, J.: Dissents with Dissenting Opinion.


                                                        For the Court,


                                                        By: ________________________________
                                                            Marie Hoover
                                                            Presiding Judge




                                      NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
