[Cite as State v. Canada, 2016-Ohio-5948.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                    No. 16AP-7
v.                                                 :            (C.P.C. No. 13CR-6315)

Marcus A. Canada,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :




                                             D E C I S I O N

                                  Rendered on September 22, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                 Swanson, for appellee.

                 On brief: Marcus A. Canada, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.
        {¶ 1} Defendant-appellant, Marcus A. Canada, appeals the December 14, 2015
judgment of the Franklin County Court of Common Pleas denying appellant's petition to
vacate or set aside judgment of conviction and sentence and appellant's motion for
appointment of counsel. For the following reasons, we reverse and remand the judgment
of the trial court.
I. Facts and Procedural History
        {¶ 2} The facts and procedural history leading to appellant's convictions and
sentence are more fully detailed in this court's decision on his direct appeal, State v.
Canada, 10th Dist. No. 14AP-523, 2015-Ohio-2167. As relevant here, on November 27,
2013, a Franklin County Grand Jury filed an indictment charging appellant with three
criminal counts: two counts of aggravated burglary, in violation of R.C. 2911.11, felonies of
No. 16AP-7                                                                                2


the first degree; and one count of domestic violence, in violation of R.C. 2919.25, a felony
of the third degree.
       {¶ 3} On June 11, 2014, following trial, the jury returned a verdict of not guilty on
one count of aggravated burglary, and guilty on the remaining count of aggravated
burglary and the count of domestic violence. On the same day, the trial court imposed a
sentence of imprisonment for a term of three years for the count of aggravated burglary
and two years for the count of domestic violence, to be served consecutively, for an
aggregate prison term of five years. On June 27, 2014, the trial court filed a corrected
judgment entry reflecting appellant's conviction and sentence.
       {¶ 4} In his direct appeal, appellant raised seven assignments of error for our
review. On June 4, 2015, we issued a decision overruling appellant's assignments of error
and affirming the judgment of the trial court. Id. at ¶ 110.
       {¶ 5} On August 19, 2015 appellant filed an application to reopen his appeal
pursuant to App.R. 26(B). On September 18, 2015, plaintiff-appellee, State of Ohio, filed
a memorandum in opposition. We denied appellant's application for reopening in State
v. Canada, 10th Dist. No. 14AP-523 (Jan. 21, 2016) (memorandum decision).
       {¶ 6} In our memorandum decision, we rejected appellant's arguments that his
appellate counsel rendered ineffective assistance by failing to raise certain assignments of
error. Specifically, we found the record did not support appellant's allegation that trial
counsel's performance was deficient for failing to investigate the case prior to advising
appellant on plea offers. Additionally, we found the record did not support a finding of
reversible error relating to a violation of the discovery rules.
       {¶ 7} First, we rejected appellant's argument that his trial counsel was ineffective
for failing to investigate the 911 recordings presented at trial because counsel requested
discovery from the state and, through no fault of his own, did not receive the records of
the calls until the morning of trial. Furthermore, the record reflected that appellant was
present when the victim called 911, the existence of the 911 recordings was disclosed
before the plea negotiations in a police summary provided by the state, counsel reviewed
the calls prior to trial, and counsel succeeded in having one call excluded after arguing
against their admission into evidence. Appellant also failed to demonstrate prejudice,
since the record did not reflect appellant would have accepted plea offers had he known
No. 16AP-7                                                                                   3


the 911 recordings would be admitted. Instead, appellant presented an unwavering desire
to proceed with a jury trial.
       {¶ 8} Second, we rejected appellant's argument that his trial counsel was
ineffective for failing to confirm that two of the state's witnesses would appear at trial.
The record reflected the witnesses were served with subpoenas, but failed to appear
several times. Neither the state nor appellant's counsel was able to ascertain whether the
witnesses would appear at trial. Furthermore, appellant was unable to establish prejudice,
since, as noted above, the record did not reflect that appellant would have accepted plea
offers if he had known that the witnesses would not appear at trial.
       {¶ 9} Finally, we rejected appellant's arguments that his appellate counsel should
have raised an assignment of error relating to a violation of the discovery rules.
Specifically, appellant contended that (1) his trial counsel was ineffective for failing to
object to the 911 recordings on grounds that the prosecutor withheld the recordings in
violation of the discovery rules, (2) the prosecutor committed prosecutorial misconduct
by not providing the 911 recordings until the day of trial, which deprived appellant of
effective assistance of counsel and a fair trial, and (3) the trial court abused its discretion
by allowing the 911 recordings into evidence. The record reflected that the prosecutor
provided the 911 recordings to defense counsel on the morning of trial, prior to the start of
trial. The trial court did not find that a discovery violation had occurred, but offered
appellant's trial counsel the opportunity to recess for the day. Appellant's trial counsel
indicated he had already listened to the recordings, proceeded to argue against the
inclusion of the recordings into evidence, and ultimately succeeded in having one of the
four recordings excluded. Therefore, we found that the record supported the conclusion
that, because the lack of disclosure was inadvertent and appellant had prior knowledge of
the 911 calls, appellant was not able to establish prejudice. Therefore, we concluded
appellant failed to demonstrate a colorable claim of ineffective assistance of appellate
counsel and denied appellant's application for reopening.
       {¶ 10} Earlier, on July 29, 2015, appellant filed a "petition to vacate and set aside
the defendant's sentence and conviction for post-conviction relief, pursuant to [R.C.]
2953.21 and request for a hearing." On August 10, 2015, appellant filed a motion for
appointment of counsel for his postconviction proceedings. On September 3, 2015, the
No. 16AP-7                                                                               4


state filed an answer and motion to dismiss appellant's motion for postconviction relief.
On September 22, 2015, appellant filed a response to the state's answer and motion to
dismiss.   On December 14, 2015, the trial court filed a decision and entry denying
appellant's July 29, 2015 petition and his August 10, 2015 motion. Appellant appeals this
decision and entry.
II. Assignments of Error
      {¶ 11} Appellant assigns the following five assignments of error for our review:
              [I.] THE TRIAL COURT COMMITTED PREJUDICIAL ERR
              BY RULING THAT "ONE OF THE CLAIMS" THAT CANADA
              RAISED, WAS BARRED BY THE DOCTRINE OF RES
              JUDICATA, WITHOUT STATING WHICH CLAIM WAS
              THE ONE THAT WAS BARRED. FURTHERMORE,
              CANADA STATES THAT WHEN THERE IS EVIDENCE
              THAT IS BOTH: "ON" THE RECORD, AS WELL AS "OFF"
              THE RECORD, AND WHERE THE EVIDENCE RELIED
              UPON LIES MAINLY "OFF" THE RECORD, THAT SUCH
              EVIDENTIARY ISSUES ARE PROPERLY RAISED IN POST-
              CONVICTION RELIEF PROCEEDINGS, AS OPPOSED TO
              THE DIRECT APPEAL. THUS, IN SUCH CASES, THE
              DOCTRINE OF RES JUDICATA WOULD BE MISPLACED.

              [II.] THE TRIAL COURT COMMITTED PREJUDICIAL ERR
              IN ITS JUDGMENT, WHEN THE TRIAL COURT RULED
              THAT APPELLANT'S PETITION FAILED TO CONTAIN
              "SUFFICIENT ADDITIONAL EVIDENCE" TO SUPPORT
              HIS REQUEST FOR AN EVIDENTIARY HEARING; AND
              WHERE THE TRIAL COURT FOUND THE "AFFIDAVITS"
              TO BE "INSUFFICIENT" AND "SELF-SERVING."

              [III.] THE TRIAL COURT COMMITTED PREJUDICIAL
              ERR IN ITS JUDGMENT, AS DEMONSTRATED BY
              APPELLANT'S FOLLOWING ARGUMENTS, IN THAT
              CANADA DID DEMONSTRATE THAT HIS TRIAL
              COUNSEL'S ASSISTANCE WAS DEFICIENT, BELOW AN
              OBJECTIVE STANDARD OF REASONABLENESS, AND
              THUS ENTITLING CANADA TO POST-CONVICTION
              RELIEF.

              [IV.] THE TRIAL COURT COMMITTED PREJUDICIAL
              ERROR BY ITS FAILURE TO RECOGNIZE THAT
              APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT
              RIGHT TO "EFFECTIVE" ASSISTANCE OF COUNSEL AT
              TRIAL WAS VIOLATED, WHICH DEPRIVED APPELLANT
No. 16AP-7                                                                              5


               OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, AS A
               RESULT OF DEFENSE COUNSEL'S FAILURE TO
               INDEPENDENTLY SUBPOENA ANY WITNESSES TO
               COME TO COURT TO TESTIFY; AND FOR FAILING TO
               "INVESTIGATE" THE CASE PRIOR TO THE DATE OF
               TRIAL.

               [V.]  APPELLANT'S   SIXTH    AND   FOURTEENTH
               AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF
               COUNSEL AT TRIAL WAS VIOLATED BASED ON ALL THE
               FOLLOWING REASONS (a) DEFENSE COUNSEL FAILED
               TO INVESTIGATE THE POLICE DISPATCH PHONE C.D.
               RECORDINGS, PRIOR TO THE DATE OF TRIAL, FOR
               PURPOSES OF PROPERLY "ADVISING" APPELLANT/-
               CANADA ON ACCEPTING "PLEA OFFERINGS" THAT
               WERE PROPOSED BY THE PROSECUTING ATTORNEY,
               PRIOR TO TRIAL; AND (b) APPELLATE WAS DEPRIVED
               OF HIS RIGHT TO "EFFECTIVE" ASSISTANCE OF
               COUNSEL DURING THE "PLEA NEGOTIATIONS" AS A
               RESULT OF THE PROSECUTOR'S "DELAY" IN
               FURNISHING THE POLICE PHONE RECORDINGS (C.D.s)
               OVER TO DEFENSE COUNSEL, UNTIL AFTER THE TIME
               PERIOD ON ACCEPTING THE PLEA OFFER HAD
               ALREADY PASSED. ACCORDINGLY, THE TRIAL COURT
               COMMITTED PREJUDICIAL ERROR BY ITS JUDGMENT
               DENYING CANADA'S POST-CONVICTION PETITION.

(Sic passim.) For ease of discussion, we address appellant's assignments of error out of
order.
III. Discussion
A. Applicable Law
         {¶ 12} Petitions for postconviction relief are governed by R.C. 2953.21(A)(1)(a),
which provides in pertinent part:
               Any person who has been convicted of a criminal offense * * *
               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 * * * 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.
No. 16AP-7                                                                                  6


Postconviction relief is a civil collateral attack on a judgment, not an additional direct
appeal of the underlying judgment. State v. Phipps, 10th Dist. No. 14AP-545, 2015-Ohio-
3042, ¶ 5, citing State v. Calhoun, 86 Ohio St.3d 279, 281 (1999).             A petition for
postconviction relief allows the petitioner to present constitutional issues that would
otherwise be unreviewable on direct appeal because the evidence supporting those issues
is not contained in the record of the criminal conviction. Phipps at ¶ 5, citing State v.
Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15. A petition for postconviction relief
does not, however, provide a second opportunity to litigate the conviction. Id.
       {¶ 13} R.C. 2953.21(C) provides:
                Before granting a hearing on a petition filed under division
                (A) of this section, the court shall determine whether there are
                substantive grounds for relief. In making such a
                determination, the court shall consider, in addition to the
                petition, the supporting affidavits, and the documentary
                evidence, all the files and records pertaining to the
                proceedings against the petitioner, including, but not limited
                to, the indictment, the court's journal entries, the journalized
                records of the clerk of the court, and the court reporter's
                transcript.

Thus, a petitioner is not automatically entitled to an evidentiary hearing on a petition for
postconviction relief, but instead 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.        A petition for postconviction relief may be denied
without an evidentiary hearing where the petition, supporting affidavits, documentary
evidence, files, and records do not demonstrate that the petitioner set forth sufficient
operative facts to establish substantive grounds for relief. Calhoun at paragraph two of
the syllabus.
       {¶ 14} When a trial court dismisses a postconviction relief petition without holding
an evidentiary hearing, it must enter findings of fact and conclusions of law. R.C.
2953.21(C). State v. Jackson, 10th Dist. No. 03AP-1065, 2004-Ohio-6438, ¶ 11 citing
State v. Lester, 41 Ohio St.2d. 51 (1975), paragraph two of the syllabus ("Pursuant to R.C.
2953.21, if the trial court finds no grounds for an evidentiary hearing, the court is required
to make and file findings of fact and conclusions of law as to the reasons for dismissal and
to the grounds for relief relied upon in the petition."). " 'While a trial court need not
No. 16AP-7                                                                                 7


discuss every issue that the petitioner raises or engage in an elaborate and lengthy
discussion in its findings of fact and conclusions of law, its findings must be sufficiently
comprehensive and pertinent to the issues to form a basis upon which the evidence
supports the conclusion.' " State v. Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-2749,
¶ 5, quoting State v. McKnight, 4th Dist. No. 06CA645, 2006-Ohio-7104, ¶ 5, citing
Calhoun at 291-92. Failure to make the required findings of fact and conclusions of law in
denying a petition for postconviction relief is prejudicial error. Jackson at ¶ 11, citing
State v. Brown, 41 Ohio App.2d 181, 185 (8th Dist.1974).
B. Standard of Review
       {¶ 15} We review a trial court's denial of a postconviction relief petition without a
hearing for an abuse of discretion. Phipps at ¶ 6, citing State v. McBride, 10th Dist. No.
14AP-237, 2014-Ohio-5102, ¶ 11. "The term 'abuse of discretion' connotes more than an
error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
C. Second Assignment of Error
       {¶ 16} In his second assignment of error, appellant asserts the trial court erred by
finding that appellant's petition failed to contain sufficient additional evidence to support
his request for an evidentiary hearing.
       {¶ 17} "[I]n 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."
Calhoun at 284. "In postconviction relief proceedings, the trial court may, under
appropriate circumstances, deem affidavit testimony to lack credibility without first
observing or examining the affiant." Ibrahim at ¶ 21, citing State v. Taylor, 10th Dist. No.
14AP-166, 2014-Ohio-3574, ¶ 16.
       {¶ 18} We have previously stated that a trial court must examine affidavits
submitted in support of a petition to determine if they present sufficient operative facts in
support of the averments in the petitioner's affidavit to warrant a hearing. Id. at ¶ 23. In
No. 16AP-7                                                                                  8


determining the credibility of supporting affidavits in postconviction relief, trial courts
should consider all relevant factors, including:
              (1) whether the judge reviewing the postconviction relief
              petition also presided at the trial, (2) whether multiple
              affidavits contain nearly identical language, or otherwise
              appear to have been drafted by the same person, (3) whether
              the affidavits contain or rely on hearsay, (4) whether the
              affiants are relatives of the petitioner, or otherwise interested
              in the success of the petitioner's efforts, and (5) whether the
              affidavits contradict evidence proffered by the defense at trial.

Calhoun at 285. See Taylor at ¶ 23; Ibrahim at ¶ 24. "Moreover, a trial court may find
sworn testimony in an affidavit to be contradicted by evidence in the record by the same
witness, or to be internally inconsistent, thereby weakening the credibility of that
testimony." Calhoun at 285. One or more of the above non-exclusive list of factors may
be sufficient to justify the conclusion that an affidavit asserting information outside the
record lacks credibility. Id. Although such determinations lie within the sound discretion
of the trial court, "[a] trial court that discounts the credibility of sworn affidavits should
include an explanation of its basis for doing so in its findings of fact and conclusions of
law, in order that meaningful appellate review may occur." Id.
       {¶ 19} In support of his petition, appellant submitted his own affidavit, an affidavit
from his mother, and an affidavit from his aunt. In their affidavits, both appellant's
mother and aunt averred that appellant lived at the address where the incident occurred
on November 9, 2013, and paid bills at that residence. In its decision, the trial court
stated that appellant "has failed to set forth sufficient additional evidence supporting his
claim so as to warrant an evidentiary hearing.          More specifically, the Court finds
[appellant's] own self-serving Affidavit and the Affidavits of his Mother and Aunt,
respectively, are insufficient for establishing his right to a hearing." (Dec. 14, 2015
Decision at 2.)
       {¶ 20} Here, the trial court made no mention of its consideration of the factors
listed in Calhoun, or any other supporting rationale, before discounting appellant's
supporting affidavits. As a result, we find the trial court committed prejudicial error by
failing to include in the decision and entry a sufficient explanation for its basis for
discounting the credibility of the sworn affidavits in support of appellant's petition.
No. 16AP-7                                                                                    9


Calhoun at 285; Jackson at ¶ 11; Banks at ¶ 5. We therefore must remand this matter for
the trial court to examine the supporting affidavits and consider all the relevant factors,
including those specifically mentioned in Calhoun, in determining whether or not the
supporting affidavits present sufficient operative facts in support of the petition to
warrant a hearing. The trial court must then sufficiently state its findings in its decision
and judgment entry in order for meaningful appellate review to occur.
       {¶ 21} Accordingly, we sustain appellant's second assignment of error.
D. First Assignment of Error
       {¶ 22} In his first assignment of error, appellant asserts the trial court erred in
determining that one of his claims was barred by the doctrine of res judicata.
       {¶ 23} A trial court may 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. Ibrahim at ¶ 10; State v. Sullivan, 10th Dist. No. 13AP-861, 2014-Ohio-1260,
¶ 10, citing State v. Melhado, 10th Dist. No. 13AP-114, 2013-Ohio-3547, ¶ 10. " 'Res
judicata is applicable in all postconviction relief proceedings.' " Ibraham at ¶ 10, quoting
State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). "Under the doctrine of res judicata, 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 at syllabus.   Similarly, to the extent a defendant
contends that the trial transcript contains evidence of deficient performance on the part of
trial counsel, the defendant may not rely on such evidence in support of his or her
petition. Id.
       {¶ 24} The doctrine of res judicata does not apply where the petitioner relies on
competent, relevant, and material evidence, outside the trial court's record, and such
evidence must not be evidence that existed or was available for use at the time of trial. Id.
at ¶ 11, citing State v. Braden, 10th Dist. No. 02AP-954, 2003-Ohio-2949, ¶ 27. "Where
new counsel represents a defendant on direct appeal and the ineffectiveness of trial
counsel could have been determined without resort to evidence outside the record, a
petition for postconviction relief alleging ineffective assistance of trial counsel is barred by
res judicata." Id.
No. 16AP-7                                                                                     10


       {¶ 25} In his petition for postconviction relief, appellant asserted that he received
ineffective assistance of counsel because trial counsel failed to investigate a 911 recording
before advising appellant on a plea offer and because the state failed to disclose its
intention to use the 911 recording at trial. In its decision, the trial court stated: "[T]he
Court finds that this motion is barred by the doctrine of res judicata because at least one
of [appellant's] claims was actually raised or could have been raised in the trial court or on
his direct appeal from the judgment of conviction."            (Emphasis sic.) (Dec. 14 2015
Decision at 1.)
       {¶ 26} In the present appeal, appellant contends the trial court committed
prejudicial error by applying the doctrine of res judicata without stating which specific
claim was barred. In response, the state argues that the trial court's meaning is apparent
when read in conjunction with the state's answer and motion to dismiss appellant's
petition. In that filing, the state argued that "one of [appellant's] claims is barred by res
judicata." (Emphasis sic.) (State's Sept. 3, 2015 Motion at 9.) Specifically, the state
argued that appellant "claims that his counsel was ineffective, because counsel did not
obtain a copy of the 911 calls prior to the start of trial. But, all that [appellant] relies on to
support this claim is in the record. * * * Res judicata now bars it." (Motion at 9-10.)
       {¶ 27} Here, the trial court did not specifically state which one of appellant's claims
was barred by res judicata. In accordance with our conclusion that the trial court failed to
sufficiently detail its reasoning with regard to consideration of appellant's supporting
affidavits, we find that the trial court's indefinite statement regarding the applicability of
res judicata defeats meaningful appellate review. We therefore sustain appellant's first
assignment of error to the extent that the trial court failed to specify which of appellant's
claims was barred by res judicata and remand this matter for the trial court to make such
findings in order to permit meaningful appellate review. Jackson at ¶ 11; Banks at ¶ 5.
       {¶ 28} Accordingly, we sustain in part and overrule in part appellant's first
assignment of error.
E. Third, Fourth, and Fifth Assignments of Error
       {¶ 29} In his third, fourth, and fifth assignments of error, appellant asserts the trial
court erred in denying his petition for postconviction relief because he failed to
demonstrate ineffective assistance of counsel. In light of our resolution of appellant's first
No. 16AP-7                                                                              11


and second assignments of error, appellant's third, fourth, and fifth assignments of error
are rendered moot.
IV. Conclusion
       {¶ 30} Having sustained appellant's second assignment of error, sustained in part
and overruled in part appellant's first assignment of error, and rendered moot appellant's
third, fourth, and fifth assignments of error, we reverse the judgment of the Franklin
County Court of Common Pleas and remand this matter for further proceedings
consistent with law and this decision.
                                                                      Judgment reversed
                                                                    and cause remanded.
                          BRUNNER and HORTON, JJ., concur.
