[Cite as State v. Dawson, 2019-Ohio-2758.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             PICKAWAY COUNTY

STATE OF OHIO,                  :
                                :   Case No. 18CA17
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
DWAYNE DAWSON, et al.,          :
                                :
     Defendants-Appellants.     :   Released: 07/03/19
_____________________________________________________________
                          APPEARANCES:

Dwayne Dawson, Chillicothe, Ohio, Pro Se Appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Carter,
Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a Pickaway County Court of Common

Pleas decision denying Appellant’s petition for post-conviction relief

alleging his trial counsel was ineffective. Because we find the trial court did

not abuse its discretion in denying Appellant’s petition, the judgment of the

trial court is affirmed.

                                             FACTS

        {¶2} The State charged Appellant with trafficking in heroin under

R.C. 2925.03(a)(1)(C)(6)(a), and involuntary manslaughter under R.C.
Pickaway App. No. 18CA17                                                         2

29035.04(A). Appellant initially pleaded not guilty, but later, after reaching

a plea agreement, he pleaded guilty. The trial court sentenced Appellant to

12 months for the trafficking and 11 years for involuntary manslaughter with

the sentences to be served concurrently with each other, and five years of

post-release control upon his release from prison.

      {¶3} Appellant filed a pro se motion to withdraw his plea, which the

trial court denied. In a decision and entry dated March 23, 2018, this court

affirmed Appellant’s convictions on direct appeal in State v. Dawson, 4th

Dist. Pickaway No. 17CA8, 2018-Ohio-1157.

      {¶4} Appellant filed a petition for post-conviction relief on August

13, 2018 alleging ineffective assistance of his trial counsel. The trial court

denied Appellant’s petition without a hearing on the basis of res judicata.

The trial court found that Appellant should have raised the issue of

ineffective assistance of trial counsel on direct appeal, but reasoned that he

had remedied that defect by filing a motion to reopen his appeal under

App.R. 26(B) asserting ineffective assistance of appellate counsel for failing

to assert that Appellant’s trial counsel was ineffective, which we denied. It

is this judgment of the trial court that Appellant, acting pro se, appeals to

this court, asserting two assignments of error.
Pickaway App. No. 18CA17                                                      3

                        ASSIGNMENTS OF ERROR

I.    TRIAL COURT ABUSED IT’S [SIC] DISCRETION WHEN IT
      REFUSED TO HOLD AN EVIDENTARY HEARING AND
      ADJUDICATE APPELLANT’S CLAIM OF INEFFECTIVE
      ASSISTANCE OF COUNSEL WHEN PRESENETED WITH
      OVERWHELMING EVIDENCE WHICH DE HORS THE RECORD
      AND WHICH CLEARLY PROVES INEFFECTIVE ASSISTENCE
      OF COUNSEL AND A VIOLATION OF APPELLANT’S DUE
      PROCESS AND EQUAL PROTECTION OF THE LAW, A
      VIOLATION OF APPELLANT’S 5TH, 6TH AND 14TH U.S.
      CONSTITUTIONAL AMENDMENTS AND ARTICLE I, SECTION
      10 OF THE OHIO CONSTITUTION.

II.   TRIAL COURT ABUSED IT’S [SIC] DISCRETION WHEN IT
      REFUSED TO ADJUDICATE APPELLANT’S INEFFECTIVE
      ASSISTANCE OF COUNSEL CLAIM BY DENYING SAID
      CLAIM AS BEING BARRED BY RES JUDICATA. TRIAL
      COURT VIOLATED APPELLANT’S DUE PROCESS AND
      EQUAL PROTECTION OF THE LAW AND VIOLATED
      APPELLANT’S 5TH, 6TH, AND 14TH U.S. CONSTITUTIONAL
      AMENDMENTS AND ARTCLE I, SECTION 10 OF THE OHIO
      CONSTITUTION.

                          STANDARD OF REVIEW

      {¶5} “A trial court's decision to grant or deny a R.C. 2953.21 petition

for postconviction relief should be upheld absent an abuse of discretion.”

State v. Ulmer, 4th Dist. Scioto No. 15CA3708, 2016-Ohio-2873, ¶ 11,

citing State v. Bennett, 4th Dist. Scioto No. 15CA3682, 2015-Ohio-3832,

¶ 9. “An ‘abuse of discretion’ is more than an error of law or judgment; it

implies that the trial court's attitude was unreasonable, arbitrary or
Pickaway App. No. 18CA17                                                         4

unconscionable.” Id, citing State v. Herring, 94 Ohio St.3d 246, 255, 762

N.E.2d 940 (2002).

                        ASSIGNMENT OF ERROR I

      {¶6} Appellant argues the trial court abused its discretion in denying

his petition for post-conviction relief without holding a hearing. Appellant

argues that his claim relies on evidence outside the record so a hearing was

needed.

      {¶7} “A criminal defendant, seeking to challenge his conviction(s)

through a petition for post-conviction relief is not automatically entitled to

an evidentiary hearing.” State v. Dennison, 4th Dist. Lawrence No. 18CA6,

2018-Ohio-4502, ¶ 21. “Before the trial court can grant a hearing on the

petition, the court must ‘determine whether there are substantive grounds for

relief.’ ” Id., quoting R.C. 2953.21(D). If an Appellant’s petition is

“premised upon claims of ineffective assistance of counsel * * * that are

barred by the doctrine of res judicata, the court was not required to hold a

hearing.” State v. Pemberton, 4th Dist. Gallia No. 10CA4, 2011-Ohio-373,

¶ 5. However, “[t]he introduction of evidence outside the record of

ineffective assistance of counsel is generally sufficient to avoid dismissal of

a postconviction petition on the basis of res judicata.” State v. Lechner, 4th

Dist. Highland No. 95CA883, 1996 WL 146496, at *5.
Pickaway App. No. 18CA17                                                          5

      {¶8} Appellant claims his attorney gave him “bad advice” to plead

guilty that relied on evidence outside the record, but he fails to identify any

such evidence.

      {¶9} Because the trial court did not abuse its discretion in refusing to

hold a hearing before it dismissed Appellant’s petition for post-conviction

relief, we overrule Appellant’s first assignment of error.

                        ASSIGNMENT OF ERROR II

      {¶10} In his second assignment of error, Appellant contends the trial

court abused its discretion in holding that res judicata precluded its

consideration of his petition for post-conviction relief.

      {¶11} “The proper time to raise an ineffective assistance of trial

counsel argument is on direct appeal of the original conviction and

sentence.” State v. Brown, 4th Dist. Scioto No. 16CA3770, 2017-Ohio-

4063, ¶ 26, citing State v. Allbaugh, 4th Dist. Athens No. 12CA23, 2013-

Ohio-2031. A claim of ineffective assistance of counsel presented in a post-

conviction petition may be dismissed under the doctrine of res judicata when

the petitioner, represented by new counsel on direct appeal, has failed to

raise on appeal the issue of trial counsel's competence and the issue could

fairly have been determined without evidence dehors the record. State v.

McKnight, 4th Dist. Vinton No. 2008-Ohio-2435, ¶ 30, quoting State v.
Pickaway App. No. 18CA17                                                          6

Sowell, State v. Sowell, 73 Ohio App.3d 672, 676, 598 N.E.2d 136 (1st.

Dist.).

          {¶12} Appellant had different counsel at the trial court and in his

direct appeal. Accordingly, Appellant was required to challenge the

ineffectiveness of his trial counsel on direct appeal, but he failed to do so.

          {¶13} Appellant did file a motion to reopen his appeal under App.R.

26(B), asserting his appellate counsel was ineffective for failing to raise his

trial counsel’s effectiveness, but we denied the motion. Therefore, res

judicata precluded Appellant from raising the ineffectiveness of his trial

counsel’s representation in his petition for post-conviction relief at issue

herein. McKnight, 4th Dist. Vinton No. 2008-Ohio-2435, ¶ 30.

          {¶14} Because the trial court did not abuse its discretion in denying

Appellant’s petition for post-conviction relief on the basis of res judicata, we

overrule Appellant’s second assignment of error.

                                  CONCLUSION

          {¶15} Having overruled both of Appellant’s assignments of error, we

affirm the judgment of the trial court.

                                                   JUDGMENT AFFIRMED.
Pickaway App. No. 18CA17                                                        7

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED. Costs are
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
