[Cite as State v. Griffin, 2016-Ohio-2988.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                        C.A. No.      14CA010680

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
PATRICK W. GRIFFIN                                   COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   10CR080110

                                  DECISION AND JOURNAL ENTRY

Dated: May 16, 2016



        WHITMORE, Judge.

        {¶1}     Appellant Patrick Griffin appeals from a decision of the Lorain County Court of

Common Pleas denying his petition for postconviction relief. We affirm.

                                                 I

        {¶2}     Police discovered the body of Alberto Gutierrez in a ditch on Thanksgiving

morning in 2009. The police soon identified Griffin as a person of interest. Griffin lived across

the hall from Gutierrez in the same apartment complex and his cell phone number was the last

number dialed on the victim’s cell phone. The police discovered that Griffin lied about his

whereabouts around the time of the murder and that his cell phone and car were in the

approximate vicinity of the murder scene near Gutierrez’s estimated time of death. Forensic

testing uncovered gunshot residue on a glove in Griffin's car as well as primer residue in his car

and on the cuff of his jacket.
                                                    2


       {¶3}       A grand jury indicted Griffin on counts of aggravated murder, murder, felony

murder, felonious assault, and having weapons under disability. All of the counts also contained

an attendant firearm specification.        Four of the counts contained repeat violent offender

specifications.

       {¶4}       The matter proceeded to a jury trial. Griffin was represented by counsel at trial.

The jury found Griffin guilty on all counts. The trial court imposed a sentence of 43 years to life

in prison.

       {¶5}       Griffin filed a direct appeal to this Court. He was represented by new counsel on

appeal. We affirmed Griffin’s conviction. State v. Griffin, 9th Dist. Lorain No. 11CA010128,

2013-Ohio-416.

       {¶6}       Griffin filed a pro se petition for postconviction relief in the trial court. The trial

court denied the petition without an evidentiary hearing. Griffin appeals. He asserts three

assignments of error for our review. We consider his assignments of error together for ease of

analysis.

                                                    II

                                        Assignment of Error One

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       HELD THAT GRIFFIN PRESENTED NO RELIABLE EVIDENCE TO
       SUPPORT A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

                                        Assignment of Error Two

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       HELD THAT GRIFFIN’S TRIAL COUNSEL PERFORMED EFFECTIVE
       ASSISTANCE OF COUNSEL.

                                       Assignment of Error Three

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT
       GRANTING APPELLANT-GRIFFIN AN EVIDENTIARY HEARING.
                                                 3


       {¶7}    In his assignments of error, Griffin argues that the trial court erred and abused its

discretion (1) in denying his petition for postconviction relief asserting ineffective assistance of

counsel and (2) in ruling on the petition without first holding an evidentiary hearing. We

disagree.

       {¶8}    An appellate court reviews a trial court’s denial of a petition for postconviction

relief without a hearing under an abuse of discretion standard. State v. Houser, 9th Dist. Summit

No. 21555, 2003-Ohio-6811, ¶ 12. An appellate court will not substitute its judgment for that of

the court of common pleas unless the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶9}    Griffin’s petition for postconviction relief contained seven grounds for relief,

including a claim of ineffective assistance of counsel. Regarding Griffin’s claim for ineffective

assistance, the trial court found that Griffin “presented no evidence, other than his own personal

statements, that was not available to him prior to the jury trial.” The court held that Griffin’s

ineffective assistance claim was barred by res judicata because Griffin could have argued it on

direct appeal. The trial court also held in the alternative that, even if the court were to fully

consider Griffin’s argument, he “presented no reliable evidence” to support his allegation of

ineffective assistance of counsel.

       {¶10} On appeal Griffin argues that the trial court erred in applying the doctrine of res

judicata to his ineffective assistance of counsel claim. He also argues that he provided reliable

evidence to support his claim.

       {¶11} Griffin asserts that his trial counsel was ineffective because he failed to prepare

for trial, did not properly investigate, and neglected to present “exculpatory evidence” and

“known credible witnesses.” Specifically, he contends that his counsel: (1) did not call a private
                                                 4


investigator who had worked on the matter to testify; (2) did not retain or call to the stand a cell

phone expert regarding the location of his cell phone on the night of the murder; and (3) did not

call to the stand a witness who lived close to the location where the body was found. Griffin

claims also that the prosecutor and police presented false testimony at trial, although it is unclear

whether and how Griffin intends for this allegation to form part of his ineffective assistance of

counsel claim. Griffin asserts that he was entitled to a hearing on his petition for postconviction

relief.

          {¶12} “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 * * * or on [direct appeal].”

State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. “It is well-settled that, ‘pursuant to res

judicata, a defendant cannot raise an issue in a [petition] for postconviction relief if he or she

could have raised the issue on direct appeal.’” (Alteration sic.) State v. Phillips, 9th Dist.

Summit No. 20692, 2002 WL 274637, *3 (Feb. 27, 2002), quoting State v. Reynolds, 79 Ohio

St.3d 158, 161 (1997). Accordingly, to avoid preclusion by res judicata, a petitioner must

produce new evidence that would make the judgment void or voidable, and must also

demonstrate that he could not have appealed the claim based upon information contained in the

original record. Phillips at *3. When the issue of competent trial counsel could have been

determined on direct appeal without resort to evidence outside of the record, res judicata is a

proper basis to dismiss a petition for postconviction relief. State v. Cole, 2 Ohio St.3d 112

(1982), syllabus, State v. Lentz, 70 Ohio St.3d 527, 530 (1994).
                                                  5


       {¶13} Griffin has not presented any new evidence to support his ineffective assistance of

counsel claim. His claim instead depends on evidence drawn from the trial court record or

evidence that was available to him at the time of trial. Griffin attached to his petition a lab report

that was submitted into evidence. He also attached excerpts from police reports that were

included in discovery and thus were made part of the record. Questions that Griffin wanted his

trial counsel to ask were marked as an exhibit by the trial court for purposes of appeal.

Moreover, Griffin’s claim that the prosecutor and police presented false testimony at trial

depends on testimony in the trial record. In addition, the investigator report Griffin submitted

with his petition was available to Griffin at the time of trial and at the time of his direct appeal.

Although not a part of the trial record, this evidence does not defeat the doctrine of res judicata

because it does not meet the “’threshold standard of cogency’” necessary to overcome the

doctrine. State v. Dovala, 9th Dist. Lorain No. 08CA009455, 2009-Ohio-1420, ¶ 10, quoting

State v. Stallings, 9th Dist. Summit No. 19620, 2000 WL 422423, *1 (Apr. 19, 2000). Griffin

does not make any cogent argument, nor is it apparent from the report itself, why this evidence

“demonstrate[s] that the claims advanced in the petition could not have been fairly determined on

direct appeal based on the original trial court record.” Stallings at *1. Further, Griffin’s affidavit

composed of general conclusory statements without any supporting evidence is insufficient to

constitute new evidence that would bar application of the res judicata doctrine. See State v.

Shirey, 9th Dist. Summit No. 20930, 2002-Ohio-4151, ¶ 16. Accordingly, Griffin attempts to

advance arguments that he could have raised on direct appeal. As such, res judicata was a

proper basis for the trial court to dismiss Griffin’s petition for postconviction relief. See Dovala

at ¶ 13; State v. Keenan, 9th Dist. Summit No. 20633, 2002 WL 57999, *2 (Jan. 16, 2002).
                                                 6


       {¶14} Contrary to his position, Griffin was not entitled to a hearing prior to the dismissal

of his petition on res judicata grounds. Res judicata is a proper basis upon which to dismiss a

petition for postconviction relief without a hearing. Cole at 113; Shirey at ¶ 16.

       {¶15} We find that the trial court properly dismissed Griffin’s petition for

postconviction relief without a hearing on the basis of res judicata. Accordingly, we need not

examine whether Griffin presented reliable evidence in support of his claim of ineffective

assistance of counsel. Because the trial court did not abuse its discretion in dismissing Griffin’s

petition for postconviction relief as barred by res judicata, Griffin’s assignments of error are

overruled.

                                                III

       {¶16} Griffin’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.



                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                7


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    BETH WHITMORE
                                                    FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

PATRICK W. GRIFFIN, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
