[Cite as State v. Statzer, 2018-Ohio-363.]



                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2017-02-022

                                                   :            OPINION
    - vs -                                                       1/29/2018
                                                   :

RALPH STATZER,                                     :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2014-05-0807



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044,
for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Ralph Statzer, Jr. appeals the decision of the Butler County Common Pleas

Court denying his petition for postconviction relief. For the reasons discussed below, this

court affirms the lower court's decision.

        {¶ 2} In 2014, a Butler County grand jury indicted Statzer for multiple counts of rape.

The indictments stemmed from allegations that Statzer sexually abused a minor family
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member. The victim testified at a bench trial and the court found Statzer guilty. Statzer

appealed.

         {¶ 3} Among other assignments of error on appeal, Statzer argued that his trial

counsel provided ineffective assistance of counsel ("IAC") by failing to (1) effectively cross-

examine the victim concerning an allegation that the victim falsely accused another man –

Richard Keith – of rape, (2) challenge the constitutionality of the rape shield law as applied to

Statzer, and (3) cross-examine the victim with respect to the affidavit of Shina Eckman, which

averred that the victim's mother pressured the victim into falsely accusing Statzer of rape.1

         {¶ 4} While his appeal was pending in this court, Statzer petitioned the trial court for

postconviction relief. The grounds for relief in the petition were substantively identical to

those in Statzer's IAC claims on appeal.2 Statzer supported the petition with the affidavit of

his appellate counsel. In the affidavit, appellate counsel described each claimed instance of

IAC and offered a legal opinion that IAC occurred at the trial.

         {¶ 5} In opposition, the state moved for summary judgment pursuant to R.C.

2953.21(E). The state argued that res judicata barred the petition because Statzer could

have and did raise the petition's claims in his ongoing appeal. The state further argued that

appellate counsel's affidavit did not constitute relevant evidence outside the appellate record.

         {¶ 6} In response, Statzer filed the affidavit of his private investigator. The private

investigator averred that she located Keith, that Keith stated that the victim falsely accused

Keith of rape, and that Keith would sign an affidavit saying so "if approved by his attorney."

Statzer also attached the affidavit of the office manager at Statzer's attorney's office. The


1. Keith is the victim's mother's ex-husband. Eckman is Keith's niece.

2. As set forth in Statzer's petition, the grounds for relief were 1) his trial counsel failed to develop evidence at
the rape-shield hearing to permit the effective cross-examination of the victim; 2) his trial counsel failed to
challenge the constitutionality of the rape-shield bar to permit the effective cross-examination of the victim; and
3) his trial counsel failed to impeach the victim – intrinsically and extrinsically – with a prior inconsistent statement
that she had lied in Statzer's case due to pressure from her mother.
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officer manager averred that Keith's attorney relayed that he advised Keith against executing

an affidavit.   Simultaneously, Statzer filed, under seal, a redacted copy of an Ohio

Department of Job and Family Services report concerning the allegations that the victim

made against Keith. Finally, Statzer attached the affidavit of Shina Eckman.

       {¶ 7} In October 2016, this court affirmed Statzer's convictions and overruled his

assignment of error alleging IAC. This court concluded that Statzer's counsel did not provide

deficient representation in any respect. See State v. Statzer, 12th Dist. Butler No. CA2015-

08-148, 2016-Ohio-7434, appeal not accepted, 149 Ohio St. 3d 1464, 2017-Ohio-5699.

       {¶ 8} In February 2017, the trial court issued a decision dismissing Statzer's petition

without a hearing. The court found that Statzer's claims were barred by res judicata because

they were or could have been raised in his direct appeal. The court further found that Statzer

failed to support his petition with relevant evidence outside the appellate record and that the

affidavits he submitted were based on hearsay. Statzer appeals the court's decision, raising

two assignments of error.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE POSTCONVICTION COURT ERRED BY DISMISSING THE PETITION

UNDER RES JUDICATA.

       {¶ 11} In his first assignment of error, Statzer argues that the court erred in dismissing

the petition without holding a hearing because the supporting evidentiary materials contained

facts outside the appellate record. Specifically, Statzer argues that allegations that the victim

lied concerning claims of sexual abuse by Keith were not in the record.

       {¶ 12} 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, citing State v. Calhoun, 86

Ohio St.3d 279, 281 (1999). Initial petitions for postconviction relief are governed by R.C.
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2953.21, which provides three methods for adjudicating the petition. State v. Chamberlain,

12th Dist. Brown No. CA2015-03-008, 2015-Ohio-2987, ¶ 5. When a criminal defendant

challenges his conviction through a postconviction relief petition, the trial court may (1)

summarily dismiss the petition without holding an evidentiary hearing, (2) grant summary

judgment on the petition to either party who moved for summary judgment, or (3) hold an

evidentiary hearing on the issues raised by the petition. R.C. 2953.21(D) thru (F).

       {¶ 13} "An evidentiary hearing is not automatically guaranteed each time a defendant

files a petition for postconviction relief." State v. Suarez, 12th Dist. Warren No. CA2014-02-

035, 2015-Ohio-64, ¶ 10. Rather, as noted by the Ohio Supreme Court, "a trial court properly

denies a defendant's petition for postconviction relief without holding an evidentiary hearing

where the petition, the supporting affidavits, the documentary evidence, the files, and the

records do not demonstrate that petitioner set forth sufficient operative facts to establish

substantive grounds for relief." Calhoun at paragraph two of the syllabus (construing R.C.

2953.21[C], which the General Assembly re-designated R.C. 2953.21[D].              See 2015

Am.Sub.S.B. No. 139).

       {¶ 14} A trial court's decision to summarily deny a postconviction petition without

holding an evidentiary hearing pursuant to R.C. 2953.21(D) will not be reversed absent an

abuse of discretion. State v. Simon, 12th Dist. Butler No. CA2014-12-255, 2015-Ohio-2989,

¶ 11. The term "abuse of discretion" 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. A decision is unreasonable when it is unsupported by a sound

reasoning process. State v. Roome, 12th Dist. Madison No. CA2016-09-028, 2017-Ohio-

4230, ¶ 8.

       {¶ 15} A petition for postconviction relief may be dismissed without an evidentiary

hearing when the claims raised are barred by the doctrine of res judicata. State v. Perry, 10
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Ohio St. 2d 175, 180 (1967). "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." Id. at

paragraph nine of the syllabus. Res judicata bars a petitioner from "re-packaging" evidence

or issues that were or could have been raised in trial or direct appeal. State v. Rose, 12th

Dist. Butler No. CA2012-03-050, 2012-Ohio-5957, ¶ 20.

       {¶ 16} The presentation of competent, relevant, and material evidence outside the

trial record may defeat the application of res judicata. State v. Lawson, 103 Ohio App.3d

307, 315 (12th Dist.1995). Where a petitioner argues IAC through a postconviction relief

motion, the petitioner can avoid the bar of res judicata by submitting evidence outside the

record on appeal that demonstrates that the petitioner could not have raised the claim based

on information in the original record. Id. "'Evidence presented outside the record must meet

some threshold standard of cogency; otherwise'" a defendant could overcome res judicata

"'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 Ohio App.LEXIS 1485,

*21 (Mar. 17, 1993).

       {¶ 17} This court concludes that Statzer's postconviction relief claims were barred by

res judicata and that Statzer did not support his petition with competent, relevant, and

material evidence outside the record on appeal. The IAC claims Statzer raised in his petition

could have been or were raised and addressed by this court in Statzer's direct appeal.

Accordingly, those claims are res judicata and Statzer was precluded from re-litigating those

claims in the context of his petition for postconviction relief. Statzer disputes that the IAC
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claims raised in his petition are the same as those raised in his direct appeal. In his reply

brief, he argues that the IAC claims in postconviction are for "failing to elicit known

impeachment evidence." However, the IAC claims on direct appeal concerning the rape

shield hearing and the Eckman affidavit were both premised on trial counsel's purported

failure to impeach the victim's credibility concerning allegations that she falsely accused Keith

and Statzer of rape. Accordingly, Statzer is simply "re-packaging" the same argument he

raised on direct appeal. Moreover, if the impeachment evidence was "known," as Statzer

concedes, then the argument could have been raised on direct appeal and is therefore

barred by res judicata.

       {¶ 18} Statzer also contends that he supported his petition with evidence outside the

appellate record. Specifically, he claims that this court rejected his IAC claims on direct

appeal because trial counsel failed to develop evidence concerning Keith and "the fact that

[the victim] lied was dehors the trial record." However, the victim's statement concerning

Keith was, as noted by the lower court, "extensively explored" at trial. As this court discussed

in appellant's direct appeal, trial counsel cross-examined the victim regarding her statement

that she was "not raped" by Keith and the victim explained that she did not understand the

legal definition of rape when making the statement, i.e., she alleged sexual abuse, which she

did not understand to be rape. Statzer, 2016-Ohio-7434 at ¶ 12.

       {¶ 19} Moreover, the documentary evidence Statzer submitted in support of his

petition did not contain material, relevant facts establishing grounds for postconviction relief.

Appellate counsel's affidavit summarized the claimed instances of IAC occurring at the trial,

which appellate counsel was obviously aware of during the direct appeal and were in fact

litigated during that appeal. The affidavit of Statzer's private investigator alleged that trial

counsel failed to secure Keith's testimony at trial. This claimed issue was known and could

have been raised on direct appeal. Other facts raised in the private investigator's affidavit,
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e.g., that Keith told the private investigator that the victim lied, or that the allegations arose

during an unrelated custody dispute are marginal and insignificant. The office manager's

affidavit alleged that Keith would not provide a sworn affidavit, which is also an insignificant

fact.

        {¶ 20} The affidavit of Shina Eckman does not constitute evidence outside the

appellate record. Statzer filed the affidavit before trial and his trial counsel used it in cross-

examining the victim. This court addressed and rejected Statzer's IAC claim concerning the

Eckman affidavit and the alleged failure to secure Eckman's testimony. Statzer at ¶ 22-26.

        {¶ 21} Finally, the redacted Job and Family Services report does not set forth relevant

evidence outside the appellate record. The report summarizes that the victim alleged that

Keith molested her multiple times. However, Keith retained counsel and would not provide a

statement to police. The police did not have sufficient evidence with which to proceed against

Keith and closed their investigation. This evidence is both insignificant and unhelpful to

Statzer's IAC claims.

        {¶ 22} Consequently, this court finds that the trial court did not abuse its discretion in

declining to hold an evidentiary hearing and properly dismissed Statzer's petition for

postconviction relief on the basis of res judicata. Statzer's postconviction relief claims were

raised and litigated in his direct appeal. Moreover, he failed to support his petition with

competent, material, and relevant evidence outside the appellate record. Accordingly,

appellant's first assignment of error is overruled.

        {¶ 23} Assignment of Error No. 2:

        {¶ 24} THE POSTCONVICTION COURT ERRED BY DISMISSING THE PETITION

AS BASED UPON HEARSAY.

        {¶ 25} In his second assignment of error, Statzer argues that the court erred to the

extent it dismissed his petition on the basis that the evidence he submitted contained
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hearsay. Given this court's resolution of Statzer's first assignment of error, this assignment of

error is moot and need not be addressed. See App.R. 12(A)(1)(c).

       {¶ 26} Judgment affirmed.


       S. POWELL and RINGLAND, JJ., concur.




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