[Cite as State v. Sturgill, 2014-Ohio-5082.]



                                       IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                               CLERMONT COUNTY




STATE OF OHIO,                                        :
                                                            CASE NOS. CA2014-01-003
        Plaintiff-Appellee,                           :               CA2014-07-049

                                                      :          OPINION
    - vs -                                                        11/17/2014
                                                      :

ISOME E. STURGILL, JR.,                               :

        Defendant-Appellant.                          :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2012CR839



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Arenstein & Gallagher, Hal R. Arenstein, The Last Citadel, 114 East Eighth Street, Cincinnati,
Ohio 45202, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Petitioner-appellant, Isome E. Sturgill, Jr., appeals from the decisions of the

Clermont County Court of Common Pleas denying his original and supplemental petitions for

postconviction relief. For the reasons outlined below, we affirm.

        {¶ 2} On December 18, 2012, the trial court sentenced Sturgill to a total aggregate

13-year prison term after a jury found him guilty of various offenses resulting from his illegal

operation of a motor vehicle while intoxicated. Sturgill then appealed. As part of his appeal,
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and as relevant here, Sturgill argued his trial counsel's failure to offer a stipulation to his five

prior OVI convictions was ineffective. This court disagreed and affirmed Sturgill's convictions

and sentence on appeal in State v. Sturgill, 12th Dist. Clermont Nos. CA2013-01-002 and

CA2013-01-003, 2013-Ohio-4648.

       {¶ 3} On September 6, 2013, while his appeal was still pending, Sturgill filed a

petition for postconviction relief with the trial court. In support of this petition, Sturgill argued

the "[f]ailure of his counsel to impeach one of the state's prime witnesses with a prior written

statement that significantly reduced the number of drinks he consumed was ineffective." The

trial court denied Sturgill's petition in an entry filed November 27, 2013. Sturgill again

appealed.

       {¶ 4} On March 27, 2014, the same day he filed his appellate brief, Sturgill also filed

a motion with this court requesting the matter be remanded to the trial court so that the trial

court could rule on his supplemental postconviction relief petition he filed with the trial court

on October 15, 2013.        This supplemental petition alleged Sturgill received ineffective

assistance of trial counsel resulting from his trial counsel's failure to "retain a toxicologist to

disabuse the jury of the [n]otion that [he] was legally under the influence[.]" This court

granted Sturgill's motion to remand the matter to the trial court on May 20, 2014. The trial

court subsequently denied Sturgill's supplemental petition for postconviction relief petition in

an entry filed June 9, 2014.

       {¶ 5} Sturgill now appeals from the trial court's November 27, 2013 and June 9, 2014

decisions denying his original and supplemental petitions for postconviction relief, raising two

assignments of error for review. For ease of discussion, Sturgill's two assignments of error

will be addressed together.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} PETITIONER'S RIGHT TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF
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COUNSEL AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE

CONSTITUTION OF THE STATE OF OHIO WAS VIOLATED BY THE CUMULATIVE

FAILURES OF DEFENSE COUNSEL DURING TRIAL.

       {¶ 8} Assignment of Error No. 2:

       {¶ 9} TRIAL COUNSEL'S FAILURE TO RETAIN AN EXPERT IN TOXICOLOGY

DENIED PETITIONER THE EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 10} In his two assignments of error, Sturgill argues the trial court erred by denying

his original and supplemental petitions for postconviction relief. We disagree and find his

claims are barred by the doctrine of res judicata.

       {¶ 11} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, a collateral civil attack on a criminal judgment. State v. Bayless, 12th Dist. Clinton

Nos. CA2013-10-020 and CA2013-10-021, 2014-Ohio-2475, ¶ 8. "In reviewing an appeal of

postconviction relief proceedings, this court applies an abuse of discretion standard." State

v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 10,

citing State v. Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶ 15. "The

term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that

the court's attitude is unreasonable, arbitrary or unconscionable." State v. Thornton, 12th

Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 34; State v. Hancock, 108 Ohio St.3d

57, 2006-Ohio-160, ¶ 130.

       {¶ 12} "It is well-established that a trial court may dismiss a postconviction relief

petition on the basis of the doctrine of res judicata." State v. Davis, 12th Dist. Butler No.

CA2012-12-258, 2013-Ohio-3878, ¶ 30; State v. Lindsey, 12th Dist. Brown No. CA2002-02-

002, 2003-Ohio-811, ¶ 21. "Under the doctrine of res judicata, 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
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process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment." State v.

Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 10, quoting State v.

Franklin, 12th Dist. Butler No. CA2002-07-183, 2003-Ohio-1770, ¶ 11.

       {¶ 13} "Res judicata is a proper basis for dismissing a defendant's petition for

postconviction relief when the defendant, represented by new counsel on direct appeal, fails

to raise therein the issue of competent trial counsel and the issue could fairly have been

determined without resort to evidence outside the record." State v. Mathes, 12th Dist.

Clermont No. CA2013-02-014, 2013-Ohio-4128, ¶ 14, quoting Wagers, 2012-Ohio-2258 at ¶

10. However, "there is an exception to the res judicata bar when the petitioner presents

competent, relevant, and material evidence outside the record that was not in existence and

available to the petitioner in time to support the direct appeal." State v. Piesciuk, 12th Dist.

Butler No. CA2013-01-011, 2013-Ohio-3879, ¶ 18.

       {¶ 14} As noted above, Sturgill filed a direct appeal from his convictions and 13-year

prison sentence. As part of his appeal, and as relevant here, Sturgill argued his trial counsel

was ineffective for failing to offer a stipulation to his five prior OVI convictions. This court

rejected that claim finding "the state would have been under no obligation to accept an offer

to stipulate to such convictions, had one been made by [Sturgill's] trial counsel." Sturgill,

2013-Ohio-4648 at ¶ 20.

       {¶ 15} Sturgill now claims he received ineffective assistance due to his trial counsel's

failure to impeach one of the state's witnesses, Samantha Fite, with her prior written

statement regarding the amount of alcohol Sturgill consumed that evening. Sturgill also

argues his trial counsel was ineffective for not presenting the testimony of a toxicologist

regarding Sturgill's blood alcohol content that evening.

       {¶ 16} As the record reveals, Sturgill's claims arise from his trial counsel's alleged
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ineffective representation of him during trial. Sturgill should have been well aware of these

potential issues prior to him ever filing his direct appeal with this court. Therefore, any

additional claim that his trial counsel provided him with ineffective assistance of counsel at

trial could have, and should have, been raised as part of that appeal. See, e.g., State v.

Kent, 12th Dist. Preble No. CA2013-05-003, 2013-Ohio-5090, ¶ 18 (finding appellant's claim

raised as part of his petition for postconviction relief that his trial counsel was ineffective for

failing to "adequately consult" him regarding the state's plea deal was barred by the doctrine

of res judicata where he had previously appealed specifically raising an ineffective assistance

of counsel claim); Mathes, 2013-Ohio-4128 at ¶ 13-16 (finding appellant's claims raised as

part of his petition for postconviction relief that his trial counsel was ineffective for failing to

discover and use an incident report to impeach a witness was barred by the doctrine of res

judicata where he had previously filed a direct appeal). Accordingly, as the doctrine of res

judicata effectively bars Sturgill's claims, Sturgill's two assignments of error are overruled.

       {¶ 17} Judgment affirmed.


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




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