[Cite as State v. Bayless, 2014-Ohio-2475.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              CLINTON COUNTY




STATE OF OHIO,                                      :
                                                           CASE NOS. CA2013-10-020
        Plaintiff-Appellee,                         :                CA2013-10-021

                                                    :           OPINION
    - vs -                                                       6/9/2014
                                                    :

JOSHUA BAYLESS,                                     :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                          Case No. CRI 2012-5215



Richard W. Moyer, Clinton County Prosecuting Attorney, Matthew M. Suellentrop, 103 East
Main Street, Wilmington, Ohio 45177, for plaintiff-appellee

Jay A. Adams, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Joshua Bayless, appeals from the decision of the Clinton

County Court of Common Pleas dismissing his petition for postconviction relief after a jury

found him guilty of illegal assembly or possession of chemicals for the manufacture of drugs.

For the reasons outlined below, we affirm.

        {¶ 2} On June 26, 2012, a Clinton County grand jury returned an indictment charging

Bayless with one count of illegal assembly or possession of chemicals for the manufacture of
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drugs in violation of R.C. 2925.041(A), a third-degree felony. Bayless pled not guilty to the

charge. However, following a two-day jury trial, Bayless was found guilty and a sentencing

hearing was scheduled. Prior to the trial court holding the sentencing hearing, Bayless'

original trial counsel withdrew and new counsel was appointed to represent Bayless.

       {¶ 3} On February 7, 2013, Bayless, through his newly appointed trial counsel, filed a

sentencing memorandum requesting the trial court sentence him to either community control

or a non-mandatory prison term. The state, however, argued Bayless was subject to a

mandatory five-year prison sentence under R.C. 2925.041(C)(1) due to his two prior

convictions on felony drug abuse offenses. Bayless also claimed that his original trial

counsel was ineffective for allegedly failing to inform him of any plea offers or that he was

subject to a mandatory five-year prison sentence should he be found guilty. After holding a

hearing on the matter, and due to his two prior convictions for felony drug abuse offenses,

the trial court overruled Bayless' motion and sentenced him to the mandatory five-year prison

term pursuant to R.C. 2925.041(C)(1).

       {¶ 4} Bayless did not appeal the trial court's decision, nor did he request leave to file

a delayed appeal. Rather, on September 13, 2013, nearly seven months after being

sentenced, Bayless filed a petition for postconviction relief. As part of this petition, Bayless

reiterated the same arguments contained in his sentencing memorandum regarding the

alleged ineffective assistance of his original trial counsel. The trial court dismissed Bayless'

petition finding his claims were barred by the doctrine of res judicata.

       {¶ 5} Bayless now appeals from the trial court's decision denying his petition for

postconviction relief, raising a single assignment of error for review.

       {¶ 6} THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S PETITION FOR

POST-CONVICTION RELIEF UNDER THE DOCTRINE OF RES JUDICATA.

       {¶ 7} In his single assignment of error, Bayless argues the trial court erred by finding
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his petition for postconviction relief was barred by the doctrine of res judicata. We disagree.

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

rather, a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist. Butler

Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, ¶ 8; State v. Calhoun, 86 Ohio

St.3d 279, 281 (1999). "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.

       {¶ 9} "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

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.

       {¶ 10} To that end, "[r]es 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
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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.

       {¶ 11} Here, Bayless claims the trial court erred by finding his petition for

postconviction relief was barred by the doctrine of res judicata because it is "alleging

substantial facts that are located outside the record which bear a significant role in the case

at the trial court level." Bayless' claim, however, deals exclusively with his trial counsel's

alleged ineffective assistance in failing to inform him of any plea deals offered by the state

prior to trial and by failing to advise him that he was subject to a mandatory five-year prison

term as required by R.C. 2925.041(C)(1). Although raising these same arguments as part of

his sentencing memoranda, Bayless never filed a direct appeal, nor did he request leave to

file a delayed appeal from the trial court's sentencing decision. As this information was

clearly in existence and readily available to him, any claim that his trial counsel was

ineffective could have, and should have, been raised on direct appeal. The trial court,

therefore, properly determined that the doctrine of res judicata applied, thereby effectively

barring Bayless' claims for relief advanced as part of his postconviction petition. Accordingly,

because we find no error in the trial court's decision dismissing Bayless' petition, Bayless'

single assignment of error is overruled.

       {¶ 12} Judgment affirmed.


       RINGLAND, P.J., and PIPER, J., concur.




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