[Cite as State v. Holnapy, 2013-Ohio-4307.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2013-L-002 - vs - :
JON W. HOLNAPY, :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 09 CR 000692.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Jon W. Holnapy, pro se, PID: A584674, Lake Erie Correctional Institution, P.O. Box 8000, Conneaut, OH 44030 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Jon W. Holnapy, appeals the judgment of the Lake County
Court of Common Pleas denying his untimely petition for post-conviction relief following
his conviction by a jury of operating a motor vehicle under the influence of alcohol
(“OVI”). At issue is whether the trial court abused its discretion in denying appellant’s
petition. For the reasons that follow, we affirm. {¶2} Appellant was indicted for operating a motor vehicle under the influence of
alcohol, a felony of the fourth degree, with a specification that he had previously been
convicted of five or more OVI offenses within the last 20 years. Appellant pled not
guilty. The case proceeded to jury trial.
{¶3} The evidence revealed that, on September 28, 2009, while appellant was
attempting to enter the parking lot of the Lake County Department of Job and Family
Services (“JFS”) in downtown Painesville, he hit a yellow concrete pole at the entrance.
He backed up and then drove forward again, crashing into the pole a second time. He
then backed up again, entered the parking lot, and parked his car. He exited his car and
walked along the side of the building staggering. As he was walking away, he kept
turning around, throwing his arms up in the air, and talking out loud to himself.
{¶4} A witness called the police and reported the crash, giving appellant’s
direction on foot and describing him as apparently intoxicated.
{¶5} Two Painesville police officers were dispatched to JFS. Upon their arrival,
they saw appellant swaying, walking side to side on the sidewalk, and stumbling.
Appellant pointed out his car and admitted he was driving when it crashed. The officers
said appellant’s eyes were bloodshot and his speech was slurred. Appellant said he
had three beers within the last hour. He also said that he was on Percocet at the time;
that his last dose was a few hours earlier; and that he was surprised the beers affected
him the way they did. Both officers said that, in their opinion, appellant was under the
influence.
2 {¶6} The officers asked appellant to perform field sobriety tests and a
breathalyzer test, but he refused. They also detected an odor of alcoholic beverage
coming from appellant.
{¶7} Both officers testified that appellant did not appear to be injured, complain
of any injury, or request any medical attention. They also said he answered their
questions appropriately and did not appear to be confused.
{¶8} The parties stipulated that appellant has been convicted of five OVI
offenses within the last 20 years.
{¶9} The jury returned its verdict finding appellant guilty of OVI as charged with
the specification. The trial court sentenced appellant to 24 months for the OVI and
three years on the specification, the terms to be served consecutively, for a total
sentence of five years in prison.
{¶10} Appellant appealed his conviction and this court affirmed his conviction in
State v. Holnapy, 194 Ohio App.3d 444, 2011-Ohio-2995 (11th Dist.), discretionary
appeal not allowed by the Supreme Court of Ohio at 130 Ohio St.3d 1478, 2011-Ohio-
6124 and 2012-Ohio-4021, 2012 Ohio LEXIS 2147 (Sep. 5, 2012).
{¶11} About two years after appellant filed his direct appeal, he filed a “delayed”
petition for post-conviction relief in the trial court based on alleged newly discovered
evidence. In his affidavit, he said his trial counsel was ineffective. In support, appellant
said that, prior to trial, he “demanded” that his attorney subpoena his physician, Dr.
Gary Kutsikovich, to testify regarding his findings. These findings included the doctor’s
opinion that appellant sustained a head injury in the instant crash and a summary of
appellant’s self-reported symptoms that, appellant said, were mistaken for signs of
3 intoxication. Counsel told appellant that she had spoken to Dr. Kutsikovich, who said he
found nothing wrong with appellant. She said she was concerned that the prosecutor
would use Dr. Kutsikovich’s findings against appellant and that Dr. Kutsikovich “would
only hurt the defense.” As a result, she told appellant she decided to have Dr. Chris
Adelman, a medical expert who also examined appellant, testify, rather than Dr.
Kutsikovich, apparently believing Dr. Adelman’s testimony would be more favorable.
Further, appellant said he was “unavoidably prevented” from discovering Dr.
Kutsikovich’s findings because his attorney did not give him that doctor’s reports until
after the deadline to file the petition.
{¶12} The trial court denied the petition without a hearing. The court found that
appellant’s petition was barred by res judicata because he was aware at trial of the
grounds he raised in support of his ineffectiveness claim and could have raised, but
failed to raise, the argument in trial or on direct appeal. Further, the court found that
appellant’s ineffectiveness claim lacked merit because he failed to present substantive
grounds for relief. In addition, the court found that trial counsel’s decision to call Dr.
Adelman as a witness, rather than Dr. Kutsikovich, was a strategic, tactical decision and
thus not deficient performance. The court also found that appellant had not
demonstrated prejudice. Finally, the court found the petition was time-barred.
{¶13} Appellant appeals the trial court’s judgment, asserting two assignments of
error. Because they are related, we shall consider them together. They allege:
{¶14} “[1.] The [Common Pleas] Court erred to the prejudice of defendant-
appellant Jon Holnapy’s delayed petition for post conviction relief denying him redress
of grievance under Article I Section 16 of the Ohio Constitution and equal protection of
4 the law under the 14th Amendment of the U.S. Constitution when it abused its discretion
denying his ineffective assistance of counsel claim who withheld exculpatory medical
evidence of head injuries that resulted in some memory loss and slurred speech the jury
was denied the right to hear that would have cast reasonable doubt concerning Mr.
Holnapy’s guilt under DUI charges as alleged in his indictment in which he was
convicted of (sic throughout).
{¶15} “[2.] The [Common Pleas] Court erred to the prejudice of defendant-
appellant Jon Holnapy’s delayed petition for post conviction relief denying him redress
of grievance under Article I Section 16 of the Ohio Constitution and equal protection of
the law under the 14th Amendment of the U.S. Constitution when it abused its discretion
denying his ineffective assistance of counsel claim absent an evidentiary hearing when
he submitted evidentiary document of his medical doctor’s findings dehors the record
that could have contradicted the state of Ohio’s evidence of a DUI charge and or
conviction” (sic throughout).
{¶16} On appeal, appellant repeats the argument he made in his petition,
namely, that his trial counsel was ineffective in her choice of medical experts to testify
and that appellant was unavoidably prevented by his trial counsel from discovering Dr.
Kutsikovich’s findings, which prevented him from timely filing his petition.
{¶17} As a preliminary matter, we note that an appellate court applies an abuse-
of-discretion standard in reviewing a trial court’s ruling on a petition for post-conviction
relief alleging ineffective assistance of counsel. State v. Hendrex, 11th Dist. Trumbull
No. 2010-T-0103, 2011-Ohio-1588, ¶28. Likewise, an appellate court reviews a trial
court’s decision not to conduct a hearing in post-conviction matters under an abuse-of-
5 discretion standard. Id. This court has recently stated that the term “abuse of discretion”
is one of art, connoting judgment exercised by a court, which does not comport with
reason or the record. Id.
{¶18} R.C. 2953.21(A)(1)(a) provides that anyone convicted of a crime who
claims there was such a denial of his constitutional rights as to render his conviction
void or voidable may file a petition asking the court to vacate his conviction.
{¶19} Further, R.C. 2953.21(C) provides that, before granting a hearing on such
petition, the court shall determine whether there are “substantive grounds for relief,”
based on, inter alia, the petition, the supporting affidavits, and the documentary
evidence. R.C. 2953.21(E) provides that the court shall proceed to a hearing on the
issues unless the petition shows the petitioner is not entitled to relief.
{¶20} Regarding a petitioner’s right to a hearing on his petition, this court in
State v. Noling, 11th Dist. Portage No. 98-P-0049, 2003-Ohio-5008, stated:
{¶21} [A] defendant challenging his conviction through a petition for post-
conviction relief is not automatically entitled to a hearing. State v.
Calhoun, 86 Ohio St.3d 279, 282 (1999). “Only after he meets his
initial burden to show substantive grounds for relief from the files
and records of the case and, often, evidentiary materials dehors the
record is a hearing required.” State v. Davie,[ ]11th Dist. [Trumbull]
No. 97-T-0175, 1998 Ohio App. LEXIS 4540, [*5] [(Sep. 25, 1998)].
Stated differently, “* * * before a hearing is granted, ‘the petitioner
bears the initial burden to submit evidentiary documents containing
sufficient operative facts to demonstrate * * *’” that [constitutional]
6 errors did occur and that the errors resulted in prejudice. (Emphasis
sic.) Calhoun at 283, quoting State v. Jackson,[ ]64 Ohio St.2d 107
[(1980)], syllabus. Moreover, “* * * if the court can resolve the
averments contained within the petitioner’s request based upon the
material contained within the petition, and the files and records, it
may properly dismiss the matter without conducting a hearing.”
State v. Hill,[ ]11th Dist. [Trumbull] No. 94-T-5116, 1995 Ohio App.
LEXIS 2684, [*4] [(June 16, 1995)]. Noling, supra, at ¶22.
{¶22} Further, this court in State v. Schlee, 11th Dist. Lake No. 97-L-121, 1998
Ohio App. LEXIS 6363 (Dec. 31, 1998), held that when a petition for post-conviction
relief is based on ineffective assistance of counsel, the petitioner must submit “evidence
dehors the record.” Id. at *5. The evidence outside the record “must meet some
threshold standard of cogency.” Id. In explaining this standard, this court stated:
{¶23} “The evidence must be genuinely relevant, and it must materially
advance a petitioner’s claim that there has been a denial or
infringement of his or her constitutional rights. In the absence of
such a standard, it would be too easy for the petitioner to simply
attach 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.”’ State v. Sopjack, [11th Dist.
Geauga] No. 96-G-2004, 1997 Ohio App. LEXIS 3789, *10 (Aug.
22, 1997), quoting [State v. ]Coleman, [1st Dist. Hamilton No. C-
7 900811], 1993 Ohio App. LEXIS 1485, *21 [(Mar. 17, 1993)].
Schlee, supra, at *5-*6.
{¶24} The Supreme Court of Ohio in Jackson, supra, held that “[i]n a petition for
post-conviction relief, which asserts ineffective assistance of counsel, the petitioner
bears the initial burden to submit evidentiary documents containing sufficient operative
facts to demonstrate the lack of competent counsel and that the defense was prejudiced
by counsel’s ineffectiveness.” Id. at syllabus. Further, “[t]he evidence submitted must
not be cumulative of or alternative to evidence presented at trial.” State v. Cowan, 151
Ohio App.3d 228, 2002-Ohio-7271, ¶13 (11th Dist.). Moreover, “‘the evidence dehors
the record must not be evidence which was in existence and available for use at the
time of trial and which could and should have been submitted at trial if the defendant
wished to use it.’” Id. at ¶15, quoting State v. Slagle, 8th Dist. Cuyahoga No. 76834,
2000 Ohio App. LEXIS 3641, *3 (Aug. 10, 2000).
{¶25} Here, appellant failed to submit any cogent evidence outside the record
providing substantive grounds for relief. Appellant’s documents do not evidence that his
attorney’s performance was deficient or that any errors of his attorney resulted in his
prejudice. To the contrary, appellant’s affidavit shows that, after his attorney interviewed
Dr. Kutsikovich, she concluded Dr. Adelman’s testimony would be more favorable and
made the strategic, tactical decision to have Dr. Adelman, rather than Dr. Kutsikovich,
testify for the defense. Further, appellant concedes that Dr. Kutsikovich’s reports were
prepared before trial and thus were in existence and available for use in trial.
Appellant’s argument that he was unaware of them at that time is unavailing because he
admitted in his affidavit that Dr. Kutsikovich was treating him for head injuries before
8 trial. Cowan, supra. In addition, Dr. Kutsikovich’s reports demonstrate his testimony
would have been merely cumulative of or an alternative to Dr. Adelman’s testimony. Id.
As a result, the trial court was entitled to deny appellant’s petition without a hearing.
{¶26} Further, appellant’s petition is barred by res judicata. ‘“[T]he doctrine of res
judicata precludes a defendant from raising, in a petition for postconviction relief, an
ineffective assistance of counsel claim that was or could have been raised at trial or on
direct appeal. * * *’” State v. Vinson, 11th Dist. Lake No. 2007-L-088, 2008-Ohio-3059,
¶32, quoting State v. Delmonico, 11th Dist. Ashtabula No. 2004-A-0033, 2005-Ohio-
2882, ¶14. “This is particularly true where the petitioner obtained new counsel for their
direct appeal and the claim of ineffective assistance could have been raised without
resorting to evidence outside the record.” State v. McCaleb, 11th Dist. Lake No. 2004-L-
003, 2005-Ohio-4038, ¶19. Where an appellant is represented by new counsel on direct
appeal and the ineffectiveness of appellant’s trial counsel could have been determined
without resort to evidence outside the record, a petition for post-conviction relief alleging
ineffective assistance of trial counsel is barred by res judicata. State v. Cole, 2 Ohio
St.3d 112, 113-114 (1982). “For a defendant to avoid dismissal of the petition by res
judicata, the evidence supporting the claims in the petition must be competent, relevant,
and material evidence outside the trial court’s record, and it must not be evidence that
existed or was available for use at the time of trial. * * *” (Emphasis added.) State v.
Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348, ¶39. Accord State v.
Braden, 10th Dist. Franklin No. 02AP-954, 2003-Ohio-2949, ¶27 (“the evidence relied
upon [to avoid res judicata] must not be evidence that was in existence or available for
use at the time of trial and should have been submitted at trial if the petitioner wished to
9 make use of it”). Further, where the petition shows it is barred by res judicata, the trial
court may dismiss the petition without a hearing. State v. Perry, 10 Ohio St.2d 175
(1976), paragraph nine of the syllabus.
{¶27} Here, appellant was represented by different counsel at trial and on
appeal. Further, appellant was aware of his ineffective-assistance claim while the
matter was before the trial court. Appellant stated in his affidavit that, prior to trial, he
told his attorney to subpoena Dr. Kutsikovich to testify regarding his alleged head injury,
but that his attorney told him she decided to have Dr. Adelman testify instead. As a
result, appellant’s ineffective-assistance claim was based on evidence that existed or
was available for use at the time of trial. Further, the fact that trial counsel did not call
Dr. Kutsikovich to testify would have been apparent from the record. Thus, appellant
could have raised, but failed to raise, this alleged deficiency in trial or on direct appeal.
As a result, the argument is barred by res judicata. For this additional reason, the trial
court was entitled to deny the petition without a hearing. Id.
{¶28} Further, appellant’s petition was time-barred. Pursuant to R.C.
2953.21(A)(2), a petition for post-conviction relief must be filed within 180 days of the
date the trial transcript was filed in the court of appeals if a direct appeal is filed.
However, an exception to the 180-day rule is set forth in R.C. 2953.23(A)(1). That
section provides that a court may not entertain a petition filed after the expiration of the
180-day time limit period unless both of the following apply:
{¶29} (a) * * * [T]he petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner
must rely to present the claim for relief * * * [; and]
10 {¶30} (b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have
found the petitioner guilty of the offense of which the petitioner was
convicted * * *.
{¶31} Here, the transcript was filed with this court in appellant’s direct appeal on
August 9, 2010. However, he did not file his petition for post-conviction relief until
August 8, 2012, nearly two years after the transcript was filed. Thus, his petition was
filed more than 180 days after the trial transcript was filed and is untimely. R.C.
2953.21(A)(2). As a result, the trial court would only be authorized to consider the
petition if appellant satisfied both elements of the foregoing exception. State v. Scuba,
11th Dist. Geauga No. 2006-G-2713, 2006-Ohio-6203, ¶21.
{¶32} Appellant concedes his petition was untimely, but argues the exception to
the 180-day time limit set forth in R.C. 2953.23(A)(1) applies to his case. In support of
the first element of this exception, he argues he was unavoidably prevented from
discovering facts on which he relied to present his petition because his trial counsel did
not give him copies of Dr. Kutsikovich’s reports showing he had head injuries until after
the deadline to file his petition. A defendant is “unavoidably prevented” from the
discovery of facts if he had no knowledge of the existence of those facts and could not
have learned of their existence within the time specified for filing his petition in the
exercise of reasonable diligence. State v. Sansom, 2d Dist. Champaign No. 2009 CA
38, 2010-Ohio-1918, ¶9. Since appellant treated with Dr. Kutsikovich over a period of
time prior to trial and had several appointments with him, appellant knew or, in the
exercise of reasonable diligence, should have known of his doctor’s findings prior to
11 trial. In fact, appellant states in his affidavit that Dr. Kutsikovich was treating him for
head injuries prior to trial. Appellant was thus aware of the general nature of his
doctor’s findings. Further, appellant has not provided any justifiable reason to explain
his 18-month delay in filing his petition. Since Dr. Kutsikovich was appellant’s treating
physician, appellant could have requested his reports at any time. As a result, appellant
failed to show he was unavoidably prevented from discovering facts on which he relied
to support his petition.
{¶33} With respect to the second element of the exception to the 180-day time
limit, requiring that appellant present clear and convincing evidence that no reasonable
jury would have found him guilty, not only did he fail to present any such evidence, he
did not even make any argument in support of this element.
{¶34} Because appellant’s petition for post-conviction relief was filed beyond the
180-day time period and the exception provided in R.C. 2953.23(A)(1) does not apply,
the petition was time-barred and the trial court would not have been authorized to
consider his petition. Scuba, supra.
{¶35} In any event, even if appellant’s petition was not barred by res judicata
and if it was not time-barred, his petition would fail on the merits because appellant has
failed to demonstrate his trial counsel was ineffective.
{¶36} The standard of review for ineffective assistance of counsel was stated by
the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687
(1984).
{¶37} In order to support a claim of ineffective assistance of counsel, the
defendant must satisfy a two-prong test. First, he must show that counsel’s performance
12 was deficient. Strickland, supra. This requires a showing that counsel made errors so
serious that counsel was not functioning as the counsel guaranteed the defendant by
the Sixth Amendment. Id. A properly licensed attorney is presumed to be competent. Id.
at 688. In order to rebut this presumption, the defendant must show the actions of
counsel did not fall within a range of reasonable assistance. Id. at 689. The Court in
Strickland stated, “[t]here are countless ways to provide effective assistance in any
given case. * * *” Id. at 689. Therefore, “[j]udicial scrutiny of counsel’s performance must
be highly deferential. * * *” Id. In addition, “[b]ecause of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance * * *.” Id.
{¶38} Second, the defendant must show the deficient performance prejudiced
the defense. In order to satisfy this prong, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s * * * errors, the result of the [trial] would
have been different.” Id. at 694; accord State v. Bradley, 42 Ohio St.3d 136 (1989),
paragraph three of the syllabus.
{¶39} It is well settled that strategic and tactical decisions do not constitute a
deprivation of the effective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49
(1980). Errors of judgment regarding tactical matters do not substantiate a claim of
ineffective assistance of counsel. Id.
{¶40} Appellant argues that his trial counsel was ineffective in not calling Dr.
Kutsikovich as a witness at trial and, instead, calling Dr. Adelman. In State v. Wolf, 11th
Dist. Lake No. 93-L-151, 1994 Ohio App. LEXIS 5993 (Dec. 30, 1994), this court held,
“the calling of * * * a witness can best be viewed as a tactical decision * * *.” Id. at *27.
13 Thus, the decision to call, or not to call, a certain witness to the stand is subject to the
strong presumption that the decision might be considered sound trial strategy. Id. at *28.
{¶41} Here, appellant’s own affidavit defeats his claim of ineffective assistance.
In it he concedes that, after his attorney interviewed Dr. Kutsikovich, his attorney
decided to have Dr. Adelman testify for the defense, rather than Dr. Kutsikovich. This
was because appellant’s attorney decided that “the prosecutor would use [Dr.
Kutsikovich’s findings] against [appellant] and that [Dr. Kutsikovich’s] findings “would
only hurt the defense.” Counsel’s decision was eminently reasonable in light of Dr.
Kutsikovich’s final report, dated March 10, 2010, in which the doctor stated that
appellant had a normal EEG. Thus, counsel’s decision to call Dr. Adelman, rather than
Dr. Kutsikovich, as an expert medical witness was a strategic, tactical decision and did
not constitute deficient performance.
{¶42} Moreover, appellant failed to prove prejudice because the verdict was
supported by other overwhelming evidence of his guilt. Appellant crashed his car twice
into a concrete pole while attempting to park his car. The officers said appellant’s eyes
were bloodshot and they smelled an odor of alcoholic beverage coming from him.
Further, appellant admitted that he had consumed three beers within the hour before
the crash; that he was also taking Percocet at the time; and that the beers affected him.
He also refused to perform field sobriety tests or to take a breathalyzer test. Both
officers said appellant did not appear to be injured, complain of any injury, or request
any medical attention. Further, both officers expressed their opinion that appellant was
under the influence.
14 {¶43} We therefore hold the trial court did not abuse its discretion in denying
appellant’s untimely petition for post-conviction relief without a hearing.
{¶44} For the reasons stated in this opinion, appellant’s assignments of error are
overruled. It is the judgment and order of this court that the judgment of the Lake
County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
TIMOTHY P. CANNON, P.J., concurs with Concurring Opinion.
______________________
TIMOTHY P. CANNON, P.J., concurring.
{¶45} I respectfully concur in the judgment of the majority to affirm the decision
of the trial court. However, I do not agree that res judicata should apply. While it is true
the medical records at issue may have been available to appellant at the time of his
original appeal, they were not contained in the record in that appeal. As a result, if
appellant had attempted to make the argument in his previous appeal that he makes in
this case, I believe we would have instructed appellant to file a petition for
postconviction relief. State v. Egli, 11th Dist. Portage No. 2007-P-0052, 2008-Ohio-
2507, ¶68; State v. Smith, 17 Ohio St.3d 98, 101 (1985), fn. 1. A petition for
postconviction relief is the only vehicle available that would allow us to see the medical
records and determine whether the petition and the documents not previously included
in the record would warrant a hearing.
15 {¶46} A claim of ineffective assistance of counsel founded on evidence de hors
the record should not necessarily be barred by the doctrine of res judicata. This court
has held that the doctrine of res judicata prevents defendants from raising claims in a
postconviction proceeding when the issues could have been raised at trial or on direct
appeal. State v. Sanders, 11th Dist. Portage No. 2011-P-0088, 2012-Ohio-5025, ¶18.
However, the doctrine of res judicata is inapplicable when the defendant’s claim in a
petition for postconviction relief is supported by material not contained in the record of
the initial appeal. There is some authority for the contention that res judicata would only
apply provided such evidence did not exist, or was not available for use, at the time of
trial. State v. Poling, 11th Dist. Ashtabula No. 2012-A-0002, 2012-Ohio-3039, ¶19.
However, the application of the rule in those cases seems to involve factual scenarios
that would have allowed the relevant issues to be decided on direct appeal.
{¶47} It should be clear that in situations where evidence in support of a claim of
ineffective assistance of counsel was not and could not have been included in the
record of the original appeal, a petition for postconviction relief is not barred by res
judicata. See State v. Schlee, 11th Dist. Lake No. 97-L-121, 1998 Ohio App. LEXIS
6363, *8. To hold otherwise means that an appellant—who is unable to argue
ineffective assistance of counsel at trial, unable to present evidence outside the record
on direct appeal, and barred by the doctrine of res judicata from raising the issue in a
petition for postconviction relief—could potentially be denied the opportunity to have his
evidence reviewed at all.
{¶48} I believe the Eleventh District case cited by the majority in support of its
position that res judicata applies actually supports the position taken in this concurring
16 opinion. In State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-Ohio-348, the
trial court considered a petition for postconviction relief. This court held it was error for
the trial court to dismiss the petition on the basis of res judicata:
{¶49} As an initial matter, we note that the trial court erred by barring this cause of action by the doctrine of res judicata. Indeed, appellant raised ineffective assistance of counsel in five propositions of law in his direct appeal to the Supreme Court of Ohio. In his direct appeal, appellant argued theories of ineffective assistance of counsel based upon evidence that was contained within the trial court record. However, in his petition for postconviction relief, appellant alleged an entirely new theory of ineffective assistance of counsel. This new theory, i.e., his trial counsel was ineffective for failing to consider Edwards and move to suppress the October 20, 1999 statements, was predicated upon an October 14, 1999 interview which was not contained within the record. This new theory of ineffective assistance of counsel could only be raised in a petition for postconviction relief.
{¶50} The fact that an appellant raised ineffective assistance of counsel claims in a direct appeal does not bar such a claim in a petition for postconviction relief, provided the claim in the postconviction exercise is predicated upon evidence outside the record. We must look to the substance of the argument itself to determine whether it is barred by res judicata. In this matter, appellant raised an entirely new theory of ineffective assistance of counsel in his petition for postconviction relief, and the trial court erred by barring this claim by the doctrine of res judicata. Id. at ¶65-66.
{¶51} The same analysis applies here. Appellant’s claim in his petition for
postconviction relief contains a new theory of ineffective assistance of counsel. Even
though the medical records were available to appellant at the time of the original appeal,
this theory is based on evidence not contained in the prior record on appeal. Therefore,
res judicata should not have precluded consideration of appellant’s petition for
postconviction relief.
17 {¶52} With regard to the balance of the opinion, I agree with the majority that the
petition was time-barred, that there is no justification for the undue delay, and further,
that it would fail on the merits.