[Cite as State v. Schwieterman, 2010-Ohio-102.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MERCER COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 10-09-12

        v.

NICHOLAS SCHWIETERMAN,                                   OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 08 CRM 22

                                     Judgment Affirmed

                           Date of Decision: January 19, 2010




APPEARANCES:

        Eric J. Allen for Appellant

        Matthew K. Fox for Appellee
Case No. 10-09-12


ROGERS, J.

       {¶1} Defendant-Appellant, Nicholas Schwieterman, appeals from the

judgment of the Court of Common Pleas of Mercer County denying his petition to

vacate or set aside his judgment of conviction or sentence.            On appeal,

Schwieterman argues that the trial court erred in denying his petition without

holding an evidentiary hearing; in failing to find that the State violated his due

process rights by destroying exculpatory evidence; in finding that the prosecutor

did not engage in misconduct; in failing to find that his trial counsel was

ineffective; and, in finding that he is not innocent of the crime.          Finding

Schwieterman’s claims in his petition to be barred by res judicata, we affirm the

judgment of the trial court.

       {¶2} In April 2008, the Mercer County Grand Jury indicted Schwieterman

on four counts of involuntary manslaughter in violation of R.C. 2903.04(A),

felonies of the first degree; four counts of aggravated vehicular homicide in

violation of R.C. 2903.06(A)(1)(a), (B)(1),(2)(a), felonies of the second degree;

one count of possession of drugs in violation of R.C. 2925.11(A), (C)(4)(a), a

felony of the fifth degree; one count of operating a vehicle while under the

influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), (G)(1)(a)(i), a

misdemeanor of the first degree; one count of operating a vehicle while under the

influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(b), (G)(1)(a)(i), a



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Case No. 10-09-12


misdemeanor of the first degree; four counts of aggravated vehicular homicide in

violation of R.C. 2903.06(A)(2)(a), (B)(1),(3), felonies of the third degree; and,

one count of trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(4)(a), a

felony of the fifth degree.1          The indictment arose from a March 15, 2008,

automobile accident in which Schwieterman, while under the influence of alcohol

and cocaine, failed to stop and yield at a stop sign and collided with another

vehicle, killing its four occupants. Subsequently, Schwieterman entered a not

guilty plea to all counts in the indictment.

        {¶3} In May 2008, Schwieterman filed a motion to suppress, arguing that

his oral and written statements made to police, the DNA evidence seized from his

vehicle, his wallet and other indentifying information seized from his vehicle, and

the results of blood and urine tests for alcohol and drugs must be suppressed.

Shortly thereafter, Schwieterman withdrew the part of his motion relating to DNA

evidence.

        {¶4} In July 2008, subsequent to a hearing on the suppression motion, the

trial court overruled Schwieterman’s motion to suppress.

        {¶5} Thereafter, the State filed a motion for change of venue pursuant to

Crim.R. 18, arguing that, due to the small population of the county, the


1
 We note that Schwieterman was previously indicted by the Mercer County Grand Jury on ten counts in
Mercer County Common Pleas Court case number 08-CRM-016. However, that indictment was dismissed,
and a new sixteen-count indictment was filed in Mercer County Common Pleas Court case number 08-
CRM-022, the case before us on appeal.


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prominence in the county of the families involved, the extensive number of

witnesses, all of whom were residents of the county, and the extensive media

publicity of the proceedings, the jury pool would be substantially affected and

potentially tainted.

       {¶6} In August 2008, Schwieterman filed a motion to strike the State’s

motion for a change of venue, arguing that the motion had no legal basis and that

he did not desire a trial. Subsequently, the trial court granted Schwieterman’s

motion to strike.

       {¶7} In October 2008, pursuant to the agreement of the parties,

Schwieterman withdrew his not guilty plea and entered a plea of no contest to four

counts of involuntary manslaughter in violation of R.C. 2903.04(A), felonies of

the first degree; one count of possession of drugs in violation of R.C. 2925.11(A),

(C)(4)(a), a felony of the fifth degree; and, one count of operating a vehicle while

under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a),

(G)(1)(a)(i), a misdemeanor of the first degree. In exchange, the State entered a

nolle prosequi on all other counts in the indictment. Moreover, Schwieterman

entered into the following stipulation of facts:

       On or about March 15, 2008, at approximately 2:51 a.m.
       Deputies [sic] from the Mercer County Sheriff’s Office were
       dispatched to an injury collision at the intersection of County
       Road 716A and Brockman Road in Mercer County, Ohio.
       When they arrived on scene, they observed a grey [sic] Pontiac
       Bonneville off the road in the northwest corner of the


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Case No. 10-09-12


      intersection. It was severely damaged and the rear end of the
      vehicle had collided with the utility pole located in the field at
      the northwest corner of the intersection. They observed further
      a red Pontiac Grand Prix in a field further northwest of the grey
      [sic] Bonneville. The red Pontiac Grand Prix was also severely
      damaged. The investigation revealed that the 1996 Pontiac
      Bonneville was traveling westbound on Brockman Road when it
      failed to yield the right-of-way and/or stop for the stop sign that
      controls the intersection of 716A and Brockman Roads. The
      Bonneville collided with the red 1995 Pontiac Grand Prix which
      had been traveling northbound on County Road 716A at the
      time of the collision. The Pontiac Grand Prix was being
      operated by Jordan Moeller and passengers in the vehicle were
      Jordan Diller, Bradley Roeckner and Jordan Goettemoeller. All
      four occupants in the Pontiac Grand Prix died as a proximate
      result of the collision.

      Deputies approached two male individuals identified as Nicholas
      Schwieterman and Kyle Schmitmeyer. They both had blood
      shot eyes and strong odors of alcohol on or about their persons,
      also Nicholas Schwieterman [sic] speech was slurred and he was
      hard to understand. They both initially denied they were
      driving the Bonneville, they were both read Miranda rights and
      were     both    transported    to    Coldwater     Community
      Hospital/Mercer Health. Upon questioning Schwieterman at the
      hospital he admitted he was the driver of the motor vehicle and
      Schmitmeyer also indentified Schwieterman as the driver.
      Schwieterman consented to a blood draw and urine sample after
      being read the BMV 2255 form. The blood sample was
      submitted to the Ohio State University Medical Center Clinical
      Laboratories for forensic testing on March 15, 2008. Mr.
      Schwieterman was arrested for Aggravated Vehicular Homicide
      and transported to the Mercer County Jail.

      The Ohio State University Medical Center Clinical Laboratories
      completed their analysis of the blood sample and conclude [sic]
      that Mr. Schwieterman had a concentration of one hundred
      thirty-four thousandths (0.134) of one percent by weight per unit
      volume of alcohol in Schwieterman’s whole blood.



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       The Ohio State University Medical Center Clinical Laboratories
       completed their analysis of the urine sample collected from Mr.
       Schwieterman after the crash. The test concluded the Defendant
       possessed 7990 ng/ml of Cocaine in his urine. The test also
       concluded that the Defendant possession 48 ng/ml of THC in his
       urine.

(Oct. 9, 2008 Stipulation of Facts on No Contest Plea, pp. 1-2).

       {¶8} In November 2008, the trial court sentenced Schwieterman to a six-

year prison term on each count of involuntary manslaughter, to be served

consecutively, a twelve-month prison term on the possession of drugs count, and a

six-month jail term on the count of operating a motor vehicle while intoxicated,

both to be served concurrently to his sentences for involuntary manslaughter, for a

total prison term of twenty four years. Subsequently, Schwieterman appealed the

trial court’s sentence.

       {¶9} In May 2009, we affirmed Schwieterman’s conviction and sentence

in State v. Schwieterman, 3d Dist. No. 10-08-17, 2009-Ohio-2304 (Schwieterman

I), finding that his sentence did not violate the Eighth Amendment to the United

States Constitution, which prohibits cruel and unusual punishment, and that the

trial court did not err in imposing consecutive and non-minimum sentences, as set

forth in his assignments of error.

       {¶10} However, on May 7, 2009, prior to our decision in Schwieterman I,

Schwieterman filed a petition to vacate or set aside his judgment of conviction or

sentence and a request for an evidentiary hearing, arguing that he was denied due


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process under the Fifth and Fourteenth Amendments to the United States

Constitution due to the State’s failure to fully investigate the accident, the State’s

destruction of exculpatory evidence, specifically the airbag sensors from the

victim’s automobile, and the prosecutor’s misconduct during the trial.

Additionally, he contended that he was denied the effective assistance of counsel

by trial counsel’s failure to investigate the State’s allegations of how the

automobile accident occurred and by trial counsel’s failure to give proper advice

regarding the plea agreement.          Finally, Schwieterman also argued that his

incarceration was a violation of the Eighth and Fourteenth Amendments to the

United States Constitution due to his actual innocence.

       {¶11} Subsequently, the State filed its response to Schwieterman’s petition,

arguing that he failed to set forth sufficient evidence to warrant an evidentiary

hearing on the matter, and that his factual claims provided no legal basis for

vacating his conviction or sentence.

       {¶12} In July 2009, the trial court denied Schwieterman’s petition, stating

the following in its judgment entry:

       The basis for petitioner’s first due process claim is that the State
       failed to fully investigate the facts which gave rise to the charges.
       Specifically, the petitioner claims that the Mercer County Sheriff
       should have referred the matter to the Ohio State Highway
       Patrol so that its accident reconstruction unit could have used its
       computer simulation to analyze the information gathered by the
       Sheriff’s     Department,       including     measurements       and
       photographs. Plaintiff further alludes to the failure of the


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Case No. 10-09-12


      investigation to obtain readings from the air bag sensors from
      the two vehicles involved in the crash. Petitioner claims that
      such an investigation would have shown that the petitioner was
      not the cause of the crash.

      Although additional evidence may have been obtainable from
      the air bag sensors and the accident reconstruction software, a
      post-conviction court can only reverse for inadequate
      investigation when the petitioner shows a deprivation of due
      process tantamount to a suppression of relevant evidence. * * *
      Here, the alleged speed of the vehicles and whether or not the
      petitioner came to a complete stop before entering the
      intersection is irrelevant. It is well settled that any contributory
      negligence of a victim cannot be a defense to a vehicular
      homicide unless it is the sole proximate cause of the accident.
      (See State v Langenkamp (2000), 137 Ohio App.3d 614, 620 and
      State v. Garland (1996) 116 Ohio App.3d 461.) Since the
      petitioner failed to yield the right-of-way, it cannot be said that
      the speed of the victims’ vehicle was the sole proximate cause of
      the crash.

      * * * The record reflects that the State gave the petitioner a
      meaningful opportunity to present any defense he may have had
      or claimed to have during these proceedings. There is no
      evidence, nor does petitioner claim, that he was not provided all
      relevant information uncovered by the investigation of the
      incident which gave rise to the charges against him. Further,
      there is no evidence that the petitioner was denied his right to
      conduct his own investigation into the cause of the crash. Most
      importantly, there is no evidence that the State did anything or
      failed to do anything in its investigation of the facts of this
      matter that could result in a deprivation of the petitioner’s due
      process rights to have all relevant evidence disclosed to him.

      Petitioner’s second claim that he was denied due process is based
      upon his allegation that the State destroyed exculpatory evidence
      in the form of air bag sensors attached to the 1995 Grand Prix
      automobile which was driven by Jordan Moeller * * *.
      Factually, the petitioner claims that the air bag sensors
      contained information on how fast each of the vehicles involved


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      in the crash were traveling at the time of impact. Petitioner
      relies on the opinion of Wilbur R. Meredith, III, who was
      retained by petitioner’s counsel to evaluate and reconstruct the
      subject accident and whose affidavit is attached as Exhibit A to
      the petition. Mr. Meredith opines that the 1995 Grand Prix
      automobile driven by Jordan Moeller was traveling in excess of
      the posted speed limit, while petitioner was traveling at 12 miles
      per hour.

      A review of Mr. Meredith’s affidavit establishes that Mr.
      Meredith’s opinion is consistent with the relevant portions of the
      stipulation of facts entered into by the petitioner. * * * Although
      Mr. Meredith’s testimony may have been “potentially useful” in
      plea negotiations, his affidavit does not contain facts that could
      be expected to play a significant role in petitioner’s defense. * *
      * His testimony does not support petitioner’s claim that he was
      not at fault and therefore not criminally responsible for the
      crash * * *.

      Furthermore, petitioner has acknowledged that the detective
      from the Mercer County Sherriff’s Office attempted to recover
      the information from the * * * air bar sensor, but neither he nor
      the automotive technician who attempted to recover the
      information from the sensor were able to obtain any readings. *
      **

      ***

      With regard to petitioner’s third due process claim that the
      Mercer County Prosecutor’s Office was guilty of misconduct,
      nothing in the record supports this claim. Further, petitioner
      does not allege misconduct by the prosecutor’s office outside of
      the record that would constitute misconduct. * * *

      ***

      The petitioner’s fourth and fifth claims are that he was denied
      effective assistance of counsel * * *, first, by failing to properly
      investigate how the accident occurred; and second, for failing to
      give sound advice regarding the plea agreement. The record


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Case No. 10-09-12


      does not support his claim that trial counsel’s advice impaired
      the knowing and voluntary nature of his no contest plea.

      ***

      Petitioner’s claims regarding his counsel’s failure to fully
      investigate the collision by retaining the services of an accident
      reconstruction expert do not fall below the objective standard of
      reasonable representation because the decision to rely on cross-
      examination of the prosecution’s witness instead of producing a
      defense expert is trial strategy and does not itself constitute
      ineffective assistance. In addition, both attorneys for the
      petitioner visited the accident scene and thereby observed the
      scene of the crime first-hand. * * * As previously explained,
      even though petitioner’s newly-retained counsel has obtained
      additional evidence from an independently hired accident
      reconstruction expert, that evidence does not contradict the facts
      as set forth in the stipulation of facts submitted at the change of
      plea hearing * * *. Therefore, the petitioner was not prejudiced
      by the actions of his counsel, even if trial counsel’s assistance
      could be deemed ineffective.

      **

      In petitioner’s sixth claim that his Eighth and Fourteenth
      Amendment rights were violated based upon his claim that he is
      actually innocent of the crimes for which he entered pleas of no
      contest [sic] is not supported by the record, including the
      evidentiary materials attached to the petition.

      Specifically, petitioner claims that the new evidence his attorneys
      have gathered in the form of accident reconstruction data proves
      that he is actually innocent of the crime for which he plead to;
      therefore, his incarceration is cruel and unusual punishment.
      However, Ohio courts have generally followed the United States
      Supreme Court holding in Herrera v. Collins (1993), 506 U.S.
      390, that “a claim of ‘actual innocence’ is not itself a
      constitutional claim.” See State v. Watson (1998) 126 Ohio
      App.3d 316. * * *



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Case No. 10-09-12


      Even if “actual innocence” was a valid constitutional claim for
      post-conviction relief, the petitioner would still not be entitled to
      such relief because the evidence regarding the alleged speed of
      the victims’ vehicle and the location of the trees that allegedly
      blocked the petitioner’s view does not demonstrate that he is
      actually innocent since that evidence establishes that nothing
      other than the petitioner’s failure to yield the right-of-way was
      the sole proximate cause of the collision.

      ***

      Petitioner has requested a hearing on his petition. In order for
      the trial court to grant a hearing, the petition, the supporting
      documentation, and the court record must contain sufficient
      operative facts to establish substantive grounds for relief. * * *

      In considering each of the petitioner’s claims, the court has
      considered the petition, the supporting affidavits, and the
      documentary evidence in support thereof, as well as all the files
      and records pertaining to this proceeding against petitioner.
      Based thereon, the court hereby determines that there are not
      substantial grounds for the relief sought by the petition. * * *

      The court, having considered the factors listed by the Supreme
      Court of Ohio in State v Calhoun (1999), 86 Ohio St.3d 279, and
      based upon the entire record, the court concludes that there is
      no basis for granting petitioner’s request for a hearing on his
      petition for post-conviction relief.

(July 23, 2009 Judgment Entry, pp. 4-8).

      {¶13} It is from the trial court’s denial of his petition to vacate or set aside

his judgment of conviction or sentence that Schwieterman appeals, presenting the

following assignments of error for our review.




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                            Assignment of Error No. I

       THE TRIAL COURT ERRED IN DENYING THE POST
       CONVICTION PETITION WITHOUT HOLDING AN
       EVIDENTIARY HEARING.

                           Assignment of Error No. II

       THE TRIAL COURT ERRED IN MAKING A SPECIFIC
       FINDING THAT THE GOVERNMENT DID NOT VIOLATE
       HIS RIGHT TO DUE PROCESS GUARANTEED BY THE
       FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION
       MADE APPLICABLE TO THE STATES BY THE
       FOURTEENTH    AMENDMENT     BY   DESTROYING
       POTENTIALLY EXCULPATORY EVIDENCE.

                           Assignment of Error No. III

       THE TRIAL COURT ERRED IN MAKING A SPECIFIC
       FINDING THAT THE PROSECUTOR HAD NOT ENGAGED
       IN MISCONDUCT.

                           Assignment of Error No. IV

       THE TRIAL COURT ERRED IN SPECIFICALLY FINDING
       THAT TRIAL COUNSEL WAS EFFECTIVE PURSUANT TO
       THE SIXTH AMENDMENT OF          THE FEDERAL
       CONSTITUTION MADE APPLICABLE TO THE STATES BY
       THE FOURTEENTH AMENDMENT.

                            Assignment of Error No. V

       THE TRIAL COURT ERRED IN SPECIFICALLY FINDING
       THAT THE APPELLANT IS NOT ACTUALLY INNOCENT
       OF THE CRIME FOR WHICH HE PLEAD [SIC] NO
       CONTEST.

       {¶14} Due to the nature of Schwieterman’s arguments, we elect to address

his assignments of error together.


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                    Assignments of Error Nos. I, II, III, IV, and V

       {¶15} In his first assignment of error, Schwieterman argues that the trial

court erred in denying his petition to vacate or set aside his judgment of conviction

or sentence without holding an evidentiary hearing. Specifically, he contends that

the trial court was required to conduct an evidentiary hearing on the petition

because the supporting affidavits and other documentary evidence attached to the

petition set forth sufficient facts to establish substantive grounds for relief.

       {¶16} In his second assignment of error, Schwieterman argues that the trial

court erred in finding that his due process rights were not violated by the State’s

destruction of potentially exculpatory evidence. Specifically, he asserts that the

State destroyed the information from the airbag sensors removed from the victims’

automobile which would have revealed that the victims’ vehicle was traveling in

excess of eighty m.p.h., thereby exonerating his negligence as being the proximate

cause of the victims’ death.

       {¶17} In his third assignment of error, Schwieterman contends that the trial

court erred in finding there to be no prosecutorial misconduct. Specifically, he

argues that the prosecutor’s presence at the scene of the automobile accident,

directing what evidence to collect and what evidence to discard, and the

prosecutor’s comments to the media regarding the case created an atmosphere of

injustice and prejudice in the case, resulting in the denial of his right to a fair trial.



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       {¶18} In his fourth assignment of error, Schwieterman argues that the trial

court erred in denying his petition on the grounds that he was denied the effective

assistance of trial counsel. Specifically, he asserts that trial counsel failed to

properly investigate the State’s claim on how the accident occurred and counseled

him to accept a plea bargain that waived his ability to challenge any constitutional

infirmities on appeal.

       {¶19} In his fifth assignment of error, Schwieterman contends that the trial

court erred in denying his petition on the grounds that he was actually innocent of

the crime. Specifically, he argues that his negligence was not the proximate cause

of the automobile accident because the victim was traveling well in excess of the

posted speed limit and he was unable to see the victim’s vehicle before proceeding

through the stop sign due to a row of trees obstructing his view.

       {¶20} Generally, a defendant has the option of challenging a judgment of

conviction and sentence in one of two ways: by filing a direct appeal within thirty

days of the judgment entry of conviction and sentence, or by filing a petition for

postconviction relief pursuant to R.C. 2953.21. State v. Driskill, 3d Dist. Nos. 10-

07-03, 10-07-04, 2008-Ohio-827, ¶10, citing State v. Jones, 3d Dist. No. 4-07-02,

2007-Ohio-5624, ¶8.       R.C. 2953.21 provides the grounds for a petition for

postconviction relief and states, in pertinent part:

       Any person who has been convicted of a criminal offense or
       adjudicated a delinquent child and who claims that there was


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       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.

R.C. 2953.21(A)(1)(a).

       {¶21} Here, Schwieterman’s petition to vacate or set aside his judgment of

conviction or sentence is a petition for postconviction relief. In reviewing the trial

court’s ruling on a petition for postconviction relief, we will not reverse the ruling

absent an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, ¶58. An abuse of discretion connotes more than an error of law or judgment

and implies that the trial court acted unreasonably, arbitrarily, or unconscionably.

State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000 WL 777835, citing

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying an abuse

of discretion standard, a reviewing court may not simply substitute its judgment

for that of the trial court. Id.

       {¶22} A defendant challenging his conviction and sentence pursuant to a

petition for postconviction relief is only entitled to a hearing on the petition where

“there are substantive grounds for relief that would warrant a hearing based upon

the petition, the supporting affidavits, and the files and records in the case.”

Jones, 2007-Ohio-5624, at ¶12, citing State v. Strutton (1988), 62 Ohio App.3d


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Case No. 10-09-12


248, 251. However, where the trial court determines there to be no grounds for

substantive relief, it may dismiss the petition without an evidentiary hearing.

Driskill, 2008-Ohio-827, at ¶13, citing Jones, 2007-Ohio-5624, at ¶14.

       {¶23} Although a defendant may challenge his conviction and sentence by

either a direct appeal or a petition for postconviction relief, any claims raised in a

postconviction relief petition will be barred by res judicata where the claim was or

could have been raised on direct appeal. State v. Wilson, 3d Dist. No. 1-08-60,

2009-Ohio-1735, ¶15, citing State v. Reynolds, 79 Ohio St.3d 158, 161, 1997-

Ohio-304. ‘“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 * * * on an appeal from that judgment.”’ State v. Troglin, 3d Dist. No.

14-09-04, 2009-Ohio-5276, ¶13, quoting State v. Perry (1967), 10 Ohio St.2d 175,

paragraph nine of the syllabus. “[R]es judicata promotes the principles of finality

and judicial economy by preventing endless relitigation of an issue on which a

defendant has already received a full and fair opportunity to be heard.” State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶18, citing State ex rel. Willys-

Overland Co. v. Clark (1925), 112 Ohio St. 263, 268. However, an ineffective

assistance of counsel claim in a petition for postconviction relief is only barred by



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res judicata where the defendant was represented by new counsel on direct appeal,

and where appellate counsel was in no way enjoined from asserting ineffective

assistance of trial counsel. State v. Bradley, 3d Dist. No. 14-08-27, 2008-Ohio-

6071, ¶8, citing State v. Cole (1982), 2 Ohio St.3d 112, 114 and fn. 1.

       {¶24} In the case at bar, Schwieterman filed his petition for postconviction

relief, arguing that his conviction should be dismissed, among other reasons,

because of prosecutorial misconduct, ineffective assistance of counsel, and the

destruction of exculpatory evidence, all of which prejudiced his right to a fair trial.

However, all of these claims contain issues that Schwieterman was aware of, or

should have been aware of, at the time of his appeal, yet he failed to assert any of

these claims in his direct appeal from his conviction and sentence. Moreover,

Schwieterman was represented by different counsel at trial, on appeal, and in his

postconviction petition, and he also does not contend that extenuating

circumstances prevented him from discovering these alleged violations prior to the

filing of his direct appeal. Accordingly, we find these claims in Schwieterman’s

petition to be barred by res judicata.

       {¶25} Furthermore, Schwieterman contends that the trial court erred in

dismissing his petition without holding an evidentiary hearing. However, because

the claims in Schwieterman’s petition are barred by the doctrine of res judicata,

the trial court was not required to conduct an evidentiary hearing on the petition.



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Moreover, we note that Schwieterman did not establish “substantive grounds for

relief that would warrant a hearing based upon the petition, the supporting

affidavits, and the files and records in the case.” Jones, 2007-Ohio-5624, at ¶12.

As noted by the trial court, even if evidence was destroyed that established the

victim was traveling in excess of eighty m.p.h., and even if trial counsel would

have hired an expert to establish that the accident did not occur in the manner as

declared by the State, that evidence would not alter the fact that Schwieterman’s

failure to yield the right of way at the stop sign and his operation of the vehicle

while under the influence of alcohol and cocaine proximately caused the deaths of

the victims. It is well established that a decedent’s contributory negligence is not

a defense to a charge of vehicular homicide unless it is the sole proximate cause of

the accident, State v. Langenkamp, 137 Ohio App.3d 614, 620, 2000-Ohio-1831;

State v. McGraw, 3d Dist. No. 17-88-2, 1989 WL 153589; State v. Dailey, 5th

Dist. No. 2006-CA-0012, 2007-Ohio-2544, ¶32, and, clearly, the speed of the

victim’s vehicle was not the sole proximate cause of this accident.

       {¶26} Finally, Schwieterman’s claim of innocence also cannot stand. This

claim is based upon his assertion that the accident resulted from the victim

operating his vehicle well in excess of the speed limit, and his view of the victims’

vehicle being obscured by a row of trees. However, these contentions do not alter

the fact that, at a minimum, Schwieterman’s contributory negligence in failing to



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Case No. 10-09-12


yield at the stop sign and in operating his vehicle while under the influence of

alcohol and cocaine, both of which he stipulated to in his plea, proximately caused

the deaths of these four young men. Any contributory negligence on the part of

the victim was not the sole proximate cause of the accident, and, therefore,

Schwieterman cannot be innocent.

       {¶27} Consequently, because the trial court was not obligated to conduct

an evidentiary hearing on Schwieterman’s petition, because the claims in

Schwieterman’s petition were barred by the doctrine of res judicata, and because

Schwieterman cannot successfully assert a claim of actual innocence, we find that

the trial court did not err in dismissing the petition for postconviction relief.

       {¶28} Accordingly, we overrule Schwieterman’s assignments of error.

       {¶29} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                   Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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