[Cite as State v. Liles, 2017-Ohio-240.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-16-33
v.
DEMOND D. LILES, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR 2013 0472
Judgment Affirmed
Date of Decision: January 23, 2017
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee Case No. 1-16-33
PRESTON, P.J.
{¶1} Defendant-appellant, Demond D. Liles (“Liles”), appeals the June 9,
2016 judgment entry of the Allen County Court of Common Pleas dismissing
Liles’s petition for postconviction relief. For the reasons that follow, we affirm.
{¶2} In 2014, Liles pled guilty to four counts of trafficking in cocaine—
felonies of varying degrees—and to various specifications with those counts. (See
Doc. Nos. 125, 126). The trial court sentenced Liles on December 1, 2014, and
Liles appealed the trial court’s judgment entry of sentence.1 (See Doc. No. 143). In
that direct appeal, we affirmed the judgment of the trial court. State v. Liles, 3d
Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 45.
{¶3} On January 22, 2016, Liles filed a petition for postconviction relief.
(Doc. No. 171). In his petition, Liles requested “a vacating of the judgment of
conviction and/or sentencing in this matter and a granting of a new trial and/or
resentencing.” (Id. at 1). As grounds for the requested relief, Liles alleged that he
“was denied the equal protection of the laws in violation of the Ohio Constitution
or the United States Constitution because the sentence imposed upon the petitioner
for the felony was part of a consistent pattern of disparity in sentencing by the judge
who imposed the sentence, with regard to the petitioner’s race, gender, ethnic
1 In Liles’s direct appeal from his convictions and sentence, this court recited much of the factual and procedural background of this case, and we will not duplicate those efforts here. See State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093.
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background, or religion.” (Id. at 2, citing R.C. 2953.21(A)(5)). Additionally, Liles
stated as grounds for relief that he received ineffective assistance of counsel and
that his guilty pleas “were secured through vindictiveness by the government,” both
in violation of his constitutional rights.2 (Id. at 8). On February 3, 2016, Liles filed
an “additional proffer supporting petition for post-conviction relief.” (Doc. No.
175). On February 19, 2016, the State filed its response to and motion to dismiss
Liles’s petition for postconviction relief. (Doc. No. 179). On February 26, 2016,
Liles filed his memorandum in opposition to the State’s motion to dismiss his
petition for postconviction relief. (Doc. No. 180).
{¶4} On June 9, 2016, the trial court filed the judgment entry that is the
subject of this appeal. (Doc. No. 182). In that entry, the trial court dismissed Liles’s
petition for postconviction relief. (Id.).
{¶5} On July 6, 2016, Liles filed a notice of appeal. (Doc. No. 184). He
raises three assignments of error for our review. We will address the assignments
of error together.
Assignment of Error No. I
The Trial Court erred in ruling that Evidence Rule 901 applies to exhibits attached to a Petition for Post-Conviction Relief.
2 Liles’s counsel prepared the memorandum in support containing the arguments related to disparity in sentencing. Liles’s arguments in support of these additional grounds for relief were contained in a separate memorandum in support prepared by Liles, not his counsel, “because [Liles] lacked financial resources to have [his counsel] research and draft this separate portion of the instant petition.” (Doc. No. 171 at 12).
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Assignment of Error No. II
The Trial Court erred in treating the State Motion to Dismiss as if it were a Motion for Summary Judgment, handling the same improperly, and thereby dismissing Mr. Liles’ Petition.
Assignment of Error No. III
The Trial Court erred in dismissing Mr. Liles’ petition because, contrary to the Court’s ruling, the petition sufficiently stated two grounds for granting the requested relief and therefore merited an evidentiary hearing.
{¶6} In his first assignment of error, Liles argues that the trial court erred
when it stated that the documents submitted by Liles in support of his petition for
postconviction relief are inadmissible under Evid.R. 901. In his second assignment
of error, Liles argues that the trial court improperly treated the State’s motion to
dismiss Liles’s petition for postconviction relief as a motion for summary judgment.
In his third assignment of error, Liles argues that the trial court erred in dismissing
his petition for postconviction relief without an evidentiary hearing because his
petition sufficiently stated two grounds for relief. First, he argues that he was denied
equal protection of the laws because his sentence was part of a consistent pattern of
racially disparate sentences by the sentencing judge. Second, although unclear, he
appears to argue “outrageous government conduct by Sheriff Crish.” (Appellant’s
Brief at 1).
{¶7} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.
Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing State v. Kinstle,
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3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets forth who may
petition for postconviction relief:
Any person who has been convicted of a criminal offense * * * and
who claims that there was such a denial or infringement of the
person’s rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States * * * may
file a petition in the court that imposed sentence, stating the grounds
for relief relied upon, and asking the court to vacate or set aside the
judgment or sentence or to grant other appropriate relief. The
petitioner may file a supporting affidavit and other documentary
evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a).
{¶8} “The filing of a petition for postconviction relief does not automatically
entitle the petitioner to an evidentiary hearing.” State v. Andrews, 3d Dist. Allen
No. 1-11-42, 2011-Ohio-6106, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 282
(1999). Under R.C. 2953.21(C), “Before granting a hearing on a petition * * *, the
court shall determine whether there are substantive grounds for relief.” See State v.
Brown, 3d Dist. Allen No. 1-11-68, 2012-Ohio-2126, ¶ 6, citing Calhoun at 282-
283 and R.C. 2953.21(C); State v. Schwieterman, 3d Dist. Mercer No. 10-09-12,
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2010-Ohio-102, ¶ 22, citing State v. Jones, 3d Dist. Defiance No. 4-07-02, 2007-
Ohio-5624, ¶ 12.
In making such a determination, the court shall consider, in addition
to the petition, the supporting affidavits, and the documentary
evidence, all the files and records pertaining to the proceedings
against the petitioner, including, but not limited to, the indictment, the
court’s journal entries, the journalized records of the clerk of the court,
and the court reporter’s transcript
R.C. 2953.21(C). See Schwieterman at ¶ 22, citing Jones at ¶ 12.
{¶9} “‘[I]f the court determines that there are no substantive grounds for
relief, it may dismiss the petition without an evidentiary hearing.’” State v. Driskill,
3d Dist. Mercer Nos. 10-07-03 and 10-07-04, 2008-Ohio-827, ¶ 13, quoting Jones
at ¶ 14. “The decision to grant the petitioner an evidentiary hearing is left to the
sound discretion of the trial court.” Andrews at ¶ 11, citing Calhoun at 284.
Accordingly, “[w]e review the trial court’s dismissal of a post-conviction petition
without a hearing for abuse of discretion.” State v. Jeffers, 10th Dist. Franklin No.
10AP-1112, 2011-Ohio-3555, ¶ 23, citing State v. Banks, 10th Dist. Franklin Nos.
10AP-1065, 10AP-1066, and 10AP-1067, 2011-Ohio-2749, ¶ 11. See also Driskill
at ¶ 14. An abuse of discretion suggests the trial court’s decision is unreasonable,
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arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶10} We can quickly dispose of Liles’s first and second assignments of
error. Regarding Liles’s first assignment of error, although the trial court stated that
the documents Liles submitted in support of his postconviction petition are
inadmissible because they do not comply with Evid.R. 901, the trial court
nevertheless considered those documents and alternatively addressed the merits of
Liles’s grounds for relief. Therefore, we need not and do not address the trial court’s
conclusions regarding Evid.R. 901. See Slane v. Hilliard, 10th Dist. Franklin No.
15AP-493, 2016-Ohio-306, ¶ 37 (10th Dist.). Rather, in our treatment below of
Liles’s third assignment of error, we will assume without deciding that the trial court
should not have applied Evid.R. 901 in the manner it did. In other words, we need
not address Liles’s Evid.R. 901 arguments in order to dispose of his assignments of
error. Liles’s first assignment of error is without merit.
{¶11} Regarding Liles’s second assignment of error, Liles does not specify
precisely what leads him to believe that the trial court converted the State’s motion
to dismiss into a motion for summary judgment. It appears that he believes the trial
court implicitly converted the motion to dismiss when it considered the credibility
of the documents Liles submitted in support of his petition and “dismissed the
petition on a factual basis.” (Appellant’s Brief at 15). The trial court’s actions do
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not suggest that it somehow implicitly converted the State’s motion to dismiss into
a motion for summary judgment.
{¶12} The postconviction statute states that the petitioner “may file a
supporting affidavit and other documentary evidence in support of the claim for
relief” and that the trial court “shall consider, in addition to the petition, the
supporting affidavits, and the documentary evidence, all the files and records
pertaining to the proceedings against the petitioner * * *.” R.C. 2953.21(A)(1)(a),
(C). Here, Liles attached an affidavit and other documentary evidence to the
postconviction petition, and as Liles acknowledges, the State in moving to dismiss
his petition did not raise “matters outside of the pleadings.” (Appellant’s Brief at
13). The trial court’s consideration of the documents Liles attached to the petition—
including their credibility—does not convert the State’s motion to dismiss into a
motion for summary judgment, and Liles directs us to no authority suggesting
otherwise. See State v. Hines, 8th Dist. Cuyahoga No. 89848, 2008-Ohio-1927, ¶
13. In short, the record does not reflect that the trial court converted the State’s
motion to dismiss into a motion for summary judgment. See State v. Johnson, 12th
Dist. Clinton No. CA97-07-006, 1998 WL 1701, *5 (Jan. 5, 1998). For these
reasons, we reject Liles’s arguments under his second assignment of error.
{¶13} We will now address Liles’s third assignment of error. Liles argues
that the trial court should have granted him an evidentiary hearing because his
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postconviction petition set forth two substantive grounds for relief warranting an
evidentiary hearing. The first ground put forth by Liles is an equal-protection
violation based on “sentencing disparity” on the part of the sentencing judge.
(Appellant’s Brief at 16-17). Liles does not articulate precisely what the second
ground is; however, it appears he argues that the second ground is “outrageous
government conduct by Sheriff Crish.”3 (Appellant’s Brief at 1). We will address
each of these grounds in turn.
{¶14} First, Liles argues that his petition sufficiently established that he was
denied equal protection of the laws because his sentence was part of a consistent
pattern of racially disparate sentences by the sentencing judge. R.C. 2953.21(A)(5)
provides, in relevant part:
If the petitioner in a petition filed under division (A) of this section
was convicted of or pleaded guilty to a felony, the petition may
include a claim that the petitioner was denied the equal protection of
the laws in violation of the Ohio Constitution or the United States
Constitution because the sentence imposed upon the petitioner for the
felony was part of a consistent pattern of disparity in sentencing by
3 The portion of Liles’s postconviction petition prepared by Liles, as opposed to his counsel, appears to contain additional grounds that formed the basis of Liles’s petition—for example, that he received ineffective assistance of trial counsel because his trial counsel did not inform him of the availability of the affirmative defense of entrapment. In this appeal, Liles does not offer argument concerning these additional grounds; therefore, we will not address them.
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the judge who imposed the sentence, with regard to the petitioner’s
race, gender, ethnic background, or religion.
R.C. 2953.21(A)(5).
{¶15} Among the documents Liles attached to his postconviction petition
was a letter from Liles’s counsel to Steve Van Dine (“Van Dine”), the chief of the
Bureau of Research at the Ohio Department of Rehabilitation and Correction,
requesting “sentencing data from Allen County for the years 2008-2014 for F1 and
F2 offenders sent to prison by Allen County judges.” (Doc. No. 171 at 5, Ex. 1).
Liles also attached to his petition the data spreadsheet that Van Dine provided in
response to Liles’s counsel’s request. (Id., Ex. 2). The spreadsheet contains a listing
of each “CASE WITH AT LEAST ONE F1 OR F2.” (Id.). Listed for each case are
the offender’s name, race, sex, and date of birth, along with the year, the identity of
the sentencing judge, the offense or offenses, the number of “priors,” and the
sentence given. (Id.). Attached as Exhibit 3 to Liles’s petition for postconviction
relief is a purportedly “similar statistical analysis” regarding third-degree felonies
that Liles’s counsel conducted “on behalf of a different client” in “early 2007.” (Id.
at 8, Ex. 3).
{¶16} Based on these documents attached to his postconviction petition,
Liles argued in his petition that the sentencing judge “managed to account for nearly
a 2:1 sentencing disparity against black offenders,” whereas another judge of the
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same court “managed to have racially consistent sentencing over the past decade.”
(Id. at 10). The State argues that the documents attached to Liles’s petition
“included absolutely no information whatsoever about the numerous offenders or
the facts of the cases that defendant purported to compare.” (Appellee’s Brief at 9).
In dismissing Liles’s petition without an evidentiary hearing, the trial court stated
that precedent from the United States Supreme Court and the Supreme Court of
Ohio requires that a petitioner, in order to establish an equal-protection violation,
demonstrate the existence of purposeful discrimination that had a discriminatory
effect on the petitioner. (Doc. No. 182 at 10). The trial court concluded that this
precedent does “not permit the consideration of the statistical evidence offered by
petitioner.” (Id.). The trial court added, however, that even considering the
statistical evidence offered by Liles, “it is not determinative” because of the
relatively small sample size of defendants and because it addressed only “a few
variables underlying the sentences reviewed.” (Id. at 10-11).
{¶17} “It is well-established that the Equal Protection Clauses of both the
Ohio and United States Constitutions protect ‘similarly situated’ persons from being
treated differently by the government.” State v. Murphy, 5th Dist. Cochocton No.
02-CA-13, 2003-Ohio-128, ¶ 8, citing State ex rel. Riter v. Indus. Comm., 91 Ohio
St.3d 89, 93 (2001). “[I]t is a basic and generally applicable principle of Fourteenth
Amendment equal protection analysis that a party claiming an equal protection
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violation has the burden of proving purposeful discrimination.” State v. Keene, 81
Ohio St.3d 646, 654 (1998), citing McClesky v. Kemp, 481 U.S. 279, 292, 107 S.Ct.
1756 (1987), quoting Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643 (1967).
“A corollary to this principle is that a criminal defendant must prove that the
purposeful discrimination ‘had a discriminatory effect’ on him.” McCleskey at 292,
quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524 (1985). In the
context of an argument involving race-based sentencing disparity, “rather than make
a general showing of disparity, a defendant ‘“must show that racial considerations
affected the sentencing process in his case”’ for equal protection to be implicated.”
(Emphasis sic.) State v. Frazier, 6th Dist. Lucas No. L-07-1388, 2008-Ohio-5027,
¶ 67, quoting State v. Skatzes, 2d Dist. Montgomery No. 15848, 2003-Ohio-516, ¶
395, quoting State v. Steffen, 31 Ohio St.3d 111, 124 (1987).
{¶18} In this case, we hold that the trial court did not abuse its discretion in
concluding that Liles failed in his equal-protection argument to demonstrate a
substantive ground for relief entitling him to an evidentiary hearing. First, we agree
with the trial court that the quality of data that Liles attached to his postconviction
petition is not the sort that would allow him to establish a substantive ground for
relief on an equal-protection theory. That is, the documents that Liles submitted
with his petition fail to establish that the offenders listed in the spreadsheet are
“similarly situated” to Liles. See Murphy at ¶ 8.
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{¶19} Exhibit 2 attached to Liles’s petition reveals only the race, sex, and
age of each offender, along with the offense or offenses, the sentence given, and the
number of “priors.” As the trial court aptly summarized, this data provides only “a
few variables underlying the sentences reviewed,” whereas “many factors can go
into sentencing determinations and each case is unique”—a point Liles concedes in
his postconviction petition. (Doc. No. 182 at 11). (See also Doc. No. 171 at 6).
The trial court compared Liles’s data to the study in McCleskey, which was an
“extensive analysis, taking account of 230 variables that could have explained the
disparities on nonracial grounds.” McCleskey at 287. Even that study, the United
States Supreme Court held, was “clearly insufficient to support an inference that
any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.”
Id. at 297. Exhibit 3 to Liles’s petition is even more unhelpful to Liles in his attempt
to establish a substantive ground for relief—that data similarly contains relatively
few variables, focuses on third-degree felonies, and was prepared in “early 2007”
for “a different client.” In short, the documents attached to Liles’s petition do not
reflect whether the other offenders were “similarly situated” to him.
{¶20} A second reason why the trial court did not abuse its discretion in
concluding that Liles failed to demonstrate a substantive ground for relief: Liles did
not direct the trial court to documentation or portions of the record demonstrating
the existence of purposeful discrimination that had a discriminatory effect on him.
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See McCleskey at 297. Liles instead relied solely on the sentencing data attached to
his petition. However, as with the study in McCleskey, the data offered by Liles is
clearly insufficient to support an inference that the sentencing judge in Liles’s case
acted with a discriminatory purpose. See id.
{¶21} To the extent Liles argues that R.C. 2953.21(A)(5) creates a statutory
right that somehow dispenses with his need to satisfy basic standards in the equal-
protection analysis, we reject his argument. R.C. 2953.21(A)(5) “is nothing more
than an opportunity for prisoners to allege an equal-protection violation when their
sentence ‘was part of a consistent pattern of disparity in sentencing’ regarding the
petitioner’s ‘race, gender, ethnic background, or religion.’” State v. Cowan, 101
Ohio St.3d 372, 2004-Ohio-1583, ¶ 17. In other words, in making the equal-
protection claim invited by R.C. 2953.21(A)(5), a petitioner must nevertheless
satisfy basic principles of equal-protection analysis.
{¶22} For all of the reasons above, we hold that the trial court did not abuse
its discretion in concluding that Liles failed to demonstrate a substantive ground for
relief based on equal protection entitling him to an evidentiary hearing.
{¶23} We next address Liles’s apparent argument that he stated as a ground
for relief “outrageous government conduct by Sheriff Crish.” (Appellant’s Brief at
1). Liles argues that he “put forward a shocking account of the events leading up to
his prosecution,” including allegations that Allen County Sheriff Sam Crish
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borrowed $20,000 from Liles and then used an informant “to target Liles for
controlled sales” of drugs. (Id. at 20, 7). Liles argues that it was “frankly
unreasonable” for the trial court to find not credible Liles’s allegations of
“outrageous government conduct.” (Id. at 21). We need not reach that issue because
Liles’s arguments concerning “outrageous government conduct” were known to
him at the time he entered into a plea agreement in this case and at the time of his
sentencing.
{¶24} “‘[A] post-conviction relief hearing is not warranted for claims that
were raised or could have been raised on direct appeal.’” State v. McKinney, 3d
Dist. Defiance No. 4-11-01, 2011-Ohio-3521, ¶ 20, quoting State v. Yarbrough, 3d
Dist. Shelby No. 17-2000-10, 2001 WL 454683, *4, citing State v. Reynolds, 79
Ohio St.3d 158, 161 (1997). “‘The principle of res judicata will operate as a bar to
any claim that was raised or could have been raised on direct appeal.’” Id., quoting
Yarbrough at *4, citing State v. Lentz, 70 Ohio St.3d 527 (1994) and State v. Perry,
10 Ohio St.2d 175 (1967), syllabus. In other words, “[a]lthough a defendant may
challenge his conviction and sentence by either a direct appeal or a petition for
postconviction relief, any claims raised in a postconviction relief petition will be
barred by res judicata where the claim was or could have been raised on direct
appeal.” Schwieterman, 2010-Ohio-102, at ¶ 23, citing State v. Wilson, 3d Dist.
Allen No. 1-08-60, 2009-Ohio-1735, ¶ 15, citing Reynolds at 161.
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{¶25} Here, even assuming “outrageous government conduct” could serve as
a substantive ground for relief entitling Liles to a hearing, his argument is barred by
res judicata because he knew of the purportedly outrageous government conduct
during the pendency of the underlying case. For example, at the sentencing hearing,
Liles relayed to the sentencing judge the story underlying what he says amounts to
“outrageous government conduct.” (See Dec. 1, 2014 Tr. at 17-31). Indeed, in his
brief, Liles concedes, “These facts were available to the defense.” (Appellant’s
Brief at 7). Therefore, any arguments related to this purportedly “outrageous
government conduct” on the part of Sheriff Crish were available to Liles at the time
of his direct appeal and are therefore barred by res judicata. See McKinney at ¶ 20;
State v. King, 12th Dist. Butler Nos. CA2013-11-199 and CA2014-06-138, 2014-
Ohio-5393, ¶ 18; State v. Ibrahim, 10th Dist. Franklin No. 14AP-355, 2014-Ohio-
5307, ¶ 16. For these reasons, we hold that the trial court did not abuse its discretion
in concluding that Liles failed to demonstrate a substantive ground for relief based
on “outrageous government conduct.”
{¶26} In summary, the trial court did not abuse its discretion in dismissing
Liles’s petition for postconviction relief without a hearing.
{¶27} Liles’s assignments of error are overruled.
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{¶28} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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