[Cite as State v. Holland, 2013-Ohio-905.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. William B. Hoffman, J. -vs- : : BRIAN E. HOLLAND : Case No. 12-CA-56 : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10 CR 628
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 26, 2013
APPEARANCES:
For Appellant: For Appellee:
BRIAN E. HOLLAND, pro se KENNETH OSWALT #647963 FMC Zone B LICKING CO. PROSECUTOR P.O. Box 23651 BRIAN WALTZ Columbus, OH 43223 20 S. Second St., 4th Floor Newark, OH 43055 [Cite as State v. Holland, 2013-Ohio-905.]
Delaney, J.
{¶1} Appellant Brian E. Holland appeals from the June 19, 2012 judgment
entry of the Licking County Court of Common Pleas overruling his petition for post-
conviction relief. Appellee is the state of Ohio.
{¶2} Appellant also has a pending represented appeal from the trial court’s
judgment entry of March 23, 2012, which arises from the same underlying case. The
appeals are not consolidated and therefore shall be determined separately.
FACTS AND PROCEDURAL HISTORY
{¶3} A statement of the facts underlying appellant’s conviction upon one
count of illegal manufacture of methamphetamine and one count of illegal assembly or
possession of chemicals for the manufacture of methamphetamine is not necessary to
disposition of this appeal.
{¶4} Appellant’s “Petition to Vacate or Set Aside Judgment of Conviction or
Sentence” filed on November 1, 2011, asserts a number of grounds for relief,
paraphrased here: 1) appellant should have been able to confront “Mr. Nard” and “Mr.
Stevens” at trial but neither witness was called by appellee; 2) the prosecutor
committed misconduct by referring to co-defendants when (allegedly) no one else was
charged; 3) his conviction was against the manifest weight and sufficiency of the
evidence; 4) Nard and Stevens were (allegedly) not prosecuted but appellant was;
and 5) appellant received ineffective assistance of trial counsel because counsel did
not object to the mention of “co-defendants” and appellant’s complicity therewith.
{¶5} Appellant subsequently filed “Respectfully Asks this Court for Leave to
Admend Postconviction Petition with Evidence to Support A Evidentiary Hearing (Two Licking County, Case No. 12-CA-56 3
Sworn Statements)” (sic throughout). The affidavit of Charles Hess states in pertinent
part: I Charles E. Hess Sr. was present during [appellant’s] trail and I know that Derek
A. Stevens and Jyron L. Nard was not charged or co-defendants in [appellant’s] trail”
(sic throughout). The affidavit of Jeannie West states in pertinent part: “I Jeannie
West know that Derek A. Stevens and Jyron L. Nard was not co-defendants or
charged with any crime during [appellant’s] trail” (sic throughout).
{¶6} Appellee responded to appellant’s petition for post-conviction relief on
May 8, 2012, and appellant replied. In his reply, appellant included a third affidavit
which states in pertinent part: “I Karla Swick, who resides at 22 Parker Avenue
Newark Ohio 43055 talked to Jyron Nard and he stated to me that he along with
Darrick Stevens were not charged with any crime in return for testimony against
[appellant]” (sic throughout).
{¶7} The trial court first overruled appellant’s petition for post-conviction relief
on November 9, 2011, finding the petition was untimely and duplicated appellant’s
direct appeal. Appellant appealed from that decision. We found the petition was
timely filed and reversed and remanded the matter to the trial court with instructions to
review the merits of the petition and to determine whether a hearing is necessary.
State v. Holland, 5th Dist. No. 2011-CAO-122, 2012-Ohio-1404, at ¶ 6. If the trial
court determined no hearing was necessary, we noted “it should make appropriate
findings of fact and conclusions of law.” Id.
{¶8} On June 19, 2012, the trial court again denied appellant’s petition for
post-conviction relief on the basis of res judicata, finding appellant’s claims were
raised or could have been raised at trial or on direct appeal. Licking County, Case No. 12-CA-56 4
{¶9} Appellant now appeals from the judgment entry of the trial court denying
his petition for post-conviction relief.
{¶10} Appellant raises two Assignments of Error:
{¶11} “I. THE TRIAL COURT ERRED BY IMPROPERLY DISMISSING
APPELLANTS (sic) PETITION FOR POST-CONVICTION RELIEF WITHOUT
CONDUCTING AN EVIDENTIARY HEARING BECAUSE APPELLANTS (sic)
PETITION WITH IT’S (sic) SUPPORTING AFFIDAVITS CONTAINED SUFFICIENT
OPERTIVE (sic) FACTS TO DEMONSTRATE A SUBSTANTIVE GROUND FOR
RELIEF.”
{¶12} “II. TRIAL COURT ERRED BY FINDING THAT PETITIONERS
OUTSIDE THE RECORD AFFIDAVITS BY KARLA SWICK, CHARLES HESS AND
JENNIE WEST WERE DEFECTIVE.” (sic)
I., II.
{¶13} Appellant’s two assignments of error assert the trial court erred in
overruling his petition for post-conviction relief without a hearing and in finding the
affidavits he submitted were defective. We disagree.
{¶14} We will address appellant’s second assignment of error first. Appellant
appeals from the trial court’s June 19, 2012 decision, which addresses each argument
raised in appellant’s petition, including those supported by the affidavits he provided.
We are unable to find any decision of the trial court in the record which states
appellant’s affidavits were “defective,” and appellant has not appealed from any such
ruling. Appellant’s second assignment of error is therefore overruled on that basis. Licking County, Case No. 12-CA-56 5
{¶15} We further find the trial court did not abuse its discretion in denying
appellant’s petition without a hearing and agree the arguments set forth by appellant
are barred by res judicata.
{¶16} When a defendant files a post-conviction petition pursuant to R.C.
2953.21, the trial court must grant an evidentiary hearing unless it determines that the
files and records of the case show that the petitioner is not entitled to relief. R.C.
2953.21(E). A trial court may also dismiss a petition for post-conviction relief without
holding a hearing when the doctrine of res judicata bars the claims raised in the
petition. State v. Szefcyk, 77 Ohio St.3d 93, 96, 1996–Ohio–337, 671 N.E.2d 233.
“Res judicata is applicable in all post-conviction relief proceedings.” Id. at 95. Under
the doctrine of res judicata, a defendant who was represented by counsel is barred
from raising an issue in a petition for post-conviction relief if the defendant raised or
could have raised the issue at trial or on direct appeal. Id.
{¶17} We apply an abuse of discretion standard when reviewing a trial court's
decision to deny a post-conviction petition without a hearing. An abuse of discretion
connotes more than an error of law or judgment; it entails a decision that is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶18} All but one of appellant’s arguments here arise from his allegation that
two individuals present at the scene of his arrest were not arrested or charged with
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[Cite as State v. Holland, 2013-Ohio-905.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. William B. Hoffman, J. -vs- : : BRIAN E. HOLLAND : Case No. 12-CA-56 : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10 CR 628
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 26, 2013
APPEARANCES:
For Appellant: For Appellee:
BRIAN E. HOLLAND, pro se KENNETH OSWALT #647963 FMC Zone B LICKING CO. PROSECUTOR P.O. Box 23651 BRIAN WALTZ Columbus, OH 43223 20 S. Second St., 4th Floor Newark, OH 43055 [Cite as State v. Holland, 2013-Ohio-905.]
Delaney, J.
{¶1} Appellant Brian E. Holland appeals from the June 19, 2012 judgment
entry of the Licking County Court of Common Pleas overruling his petition for post-
conviction relief. Appellee is the state of Ohio.
{¶2} Appellant also has a pending represented appeal from the trial court’s
judgment entry of March 23, 2012, which arises from the same underlying case. The
appeals are not consolidated and therefore shall be determined separately.
FACTS AND PROCEDURAL HISTORY
{¶3} A statement of the facts underlying appellant’s conviction upon one
count of illegal manufacture of methamphetamine and one count of illegal assembly or
possession of chemicals for the manufacture of methamphetamine is not necessary to
disposition of this appeal.
{¶4} Appellant’s “Petition to Vacate or Set Aside Judgment of Conviction or
Sentence” filed on November 1, 2011, asserts a number of grounds for relief,
paraphrased here: 1) appellant should have been able to confront “Mr. Nard” and “Mr.
Stevens” at trial but neither witness was called by appellee; 2) the prosecutor
committed misconduct by referring to co-defendants when (allegedly) no one else was
charged; 3) his conviction was against the manifest weight and sufficiency of the
evidence; 4) Nard and Stevens were (allegedly) not prosecuted but appellant was;
and 5) appellant received ineffective assistance of trial counsel because counsel did
not object to the mention of “co-defendants” and appellant’s complicity therewith.
{¶5} Appellant subsequently filed “Respectfully Asks this Court for Leave to
Admend Postconviction Petition with Evidence to Support A Evidentiary Hearing (Two Licking County, Case No. 12-CA-56 3
Sworn Statements)” (sic throughout). The affidavit of Charles Hess states in pertinent
part: I Charles E. Hess Sr. was present during [appellant’s] trail and I know that Derek
A. Stevens and Jyron L. Nard was not charged or co-defendants in [appellant’s] trail”
(sic throughout). The affidavit of Jeannie West states in pertinent part: “I Jeannie
West know that Derek A. Stevens and Jyron L. Nard was not co-defendants or
charged with any crime during [appellant’s] trail” (sic throughout).
{¶6} Appellee responded to appellant’s petition for post-conviction relief on
May 8, 2012, and appellant replied. In his reply, appellant included a third affidavit
which states in pertinent part: “I Karla Swick, who resides at 22 Parker Avenue
Newark Ohio 43055 talked to Jyron Nard and he stated to me that he along with
Darrick Stevens were not charged with any crime in return for testimony against
[appellant]” (sic throughout).
{¶7} The trial court first overruled appellant’s petition for post-conviction relief
on November 9, 2011, finding the petition was untimely and duplicated appellant’s
direct appeal. Appellant appealed from that decision. We found the petition was
timely filed and reversed and remanded the matter to the trial court with instructions to
review the merits of the petition and to determine whether a hearing is necessary.
State v. Holland, 5th Dist. No. 2011-CAO-122, 2012-Ohio-1404, at ¶ 6. If the trial
court determined no hearing was necessary, we noted “it should make appropriate
findings of fact and conclusions of law.” Id.
{¶8} On June 19, 2012, the trial court again denied appellant’s petition for
post-conviction relief on the basis of res judicata, finding appellant’s claims were
raised or could have been raised at trial or on direct appeal. Licking County, Case No. 12-CA-56 4
{¶9} Appellant now appeals from the judgment entry of the trial court denying
his petition for post-conviction relief.
{¶10} Appellant raises two Assignments of Error:
{¶11} “I. THE TRIAL COURT ERRED BY IMPROPERLY DISMISSING
APPELLANTS (sic) PETITION FOR POST-CONVICTION RELIEF WITHOUT
CONDUCTING AN EVIDENTIARY HEARING BECAUSE APPELLANTS (sic)
PETITION WITH IT’S (sic) SUPPORTING AFFIDAVITS CONTAINED SUFFICIENT
OPERTIVE (sic) FACTS TO DEMONSTRATE A SUBSTANTIVE GROUND FOR
RELIEF.”
{¶12} “II. TRIAL COURT ERRED BY FINDING THAT PETITIONERS
OUTSIDE THE RECORD AFFIDAVITS BY KARLA SWICK, CHARLES HESS AND
JENNIE WEST WERE DEFECTIVE.” (sic)
I., II.
{¶13} Appellant’s two assignments of error assert the trial court erred in
overruling his petition for post-conviction relief without a hearing and in finding the
affidavits he submitted were defective. We disagree.
{¶14} We will address appellant’s second assignment of error first. Appellant
appeals from the trial court’s June 19, 2012 decision, which addresses each argument
raised in appellant’s petition, including those supported by the affidavits he provided.
We are unable to find any decision of the trial court in the record which states
appellant’s affidavits were “defective,” and appellant has not appealed from any such
ruling. Appellant’s second assignment of error is therefore overruled on that basis. Licking County, Case No. 12-CA-56 5
{¶15} We further find the trial court did not abuse its discretion in denying
appellant’s petition without a hearing and agree the arguments set forth by appellant
are barred by res judicata.
{¶16} When a defendant files a post-conviction petition pursuant to R.C.
2953.21, the trial court must grant an evidentiary hearing unless it determines that the
files and records of the case show that the petitioner is not entitled to relief. R.C.
2953.21(E). A trial court may also dismiss a petition for post-conviction relief without
holding a hearing when the doctrine of res judicata bars the claims raised in the
petition. State v. Szefcyk, 77 Ohio St.3d 93, 96, 1996–Ohio–337, 671 N.E.2d 233.
“Res judicata is applicable in all post-conviction relief proceedings.” Id. at 95. Under
the doctrine of res judicata, a defendant who was represented by counsel is barred
from raising an issue in a petition for post-conviction relief if the defendant raised or
could have raised the issue at trial or on direct appeal. Id.
{¶17} We apply an abuse of discretion standard when reviewing a trial court's
decision to deny a post-conviction petition without a hearing. An abuse of discretion
connotes more than an error of law or judgment; it entails a decision that is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶18} All but one of appellant’s arguments here arise from his allegation that
two individuals present at the scene of his arrest were not arrested or charged with
any crime, although appellee referred to them at trial as “co-defendants.” Each of
these arguments could have been raised at trial or upon direct appeal. These
individuals could have been called as witnesses at trial. Any alleged ineffectiveness Licking County, Case No. 12-CA-56 6
by trial counsel in connection with those witnesses, which appellant does not
articulate, is properly a matter for direct appeal. Finally, appellant fails to demonstrate
how criminal charges against those individuals, or the lack thereof, has any bearing on
his culpability. He has not demonstrated any invidious motive or bad faith that might
permit us to infer he is trying to articulate an argument based upon discriminatory
treatment. See, State v. Freeman, 20 Ohio St.3d 55, 58, 485 N.E.2d 1043 (1984).
{¶19} Appellant’s final argument, that his convictions are against the manifest
weight and sufficiency of the evidence, is also a matter for direct appeal and is the
sole assignment of error in appellant’s contemporaneous appeal pending before us in
Fifth District Court of Appeals, Licking County case number 11-CA-47.
{¶20} We find, therefore, the trial court did not abuse its discretion in overruling
appellant’s petition for post-conviction relief without a hearing. Appellant’s two
assignments of error are overruled and the judgment of the Licking County Court of
Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN [Cite as State v. Holland, 2013-Ohio-905.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : BRIAN E. HOLLAND : : : Case No. 12-CA-56 Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. WILLIAM B. HOFFMAN