[Cite as State v. Weir, 2022-Ohio-163.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0019
Plaintiff-Appellee, Civil Appeal from the -v- Court of Common Pleas
KEVIN A. WEIR, Trial Court No. 2016 CR 00465 Defendant-Appellant.
OPINION
Decided: January 24, 2022 Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Kevin A. Weir, pro se, PID# A691-188, Belmont Correctional Institution, 68518 Bannok Road, P.O. Box 540, St. Clairsville, OH 43950 (Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Kevin A. Weir, appeals the judgment overruling his petition for
postconviction relief. We affirm.
{¶2} In 2016, Weir, represented by counsel, pleaded guilty to eight counts of
pandering obscenity involving a minor. The trial court accepted the plea and sentenced
Weir to an aggregate prison term of ten years pursuant to a stipulated sentencing
recommendation. Weir appealed the sentence, and this court affirmed in State v. Weir,
11th Dist. Ashtabula No. 2017-A-0039, 2018-Ohio-2827. {¶3} On July 2, 2021, Weir filed a petition for postconviction relief. In his petition,
Weir maintained that there existed newly discovered evidence of ineffective assistance
of defense counsel. In support, Weir attached a letter from an attorney with the public
defender’s office and a letter from defense counsel. In the letter from the public
defender’s office, the attorney stated that she was responding to Weir’s inquiry regarding
representation to file a motion for judicial release. The attorney included her opinion that
“although you are eligible for judicial release, you entered a stipulated plea and sentence
of 10 years before Judge Harris. Judge Harris rarely grants requests for judicial release,
and he never grants them for stipulated sentences.” Weir maintained that he copied this
letter to defense counsel. Defense counsel replied in a letter stating, in relevant part,
“The information contained in the additional correspondence you received from the Public
Defender’s office * * * I was not aware of and if you refer back to the Judgment Entry from
your plea and sentencing hearing, you are correct in understanding that your sentence is
a negotiated plea and sentence, but not a mandatory sentence. Therefore, you are
eligible to apply for judicial release.” In his petition, Weir relied on the public defender’s
opinion regarding the trial judge’s stance on judicial release, and he argued that had
defense counsel alerted him to the fact that the judge would not grant him release, he
would not have pleaded guilty.
{¶4} Further, in his petition, Weir asserted newly discovered evidence that
defense counsel was aware of a conflict of interest that she failed to pursue. Weir alleged
that a corrections officer employed at the Ashtabula County Jail is the father of the victim
of a prior voyeurism charge brought against Weir. Weir maintained that, in the present
case, he explained to defense counsel that he believed he was being held in Lake County
Case No. 2021-A-0019 Jail instead of Ashtabula County Jail due to the father’s employment at the latter jail. Weir
attached the second and third page of a letter from defense counsel, in which the recipient
was not named, that provided a timeline of her representation of Weir. In the timeline,
defense counsel stated that on August 15, 2016, Weir informed her that he was being
held at the Lake County Jail for reasons unknown. Defense counsel recalled that while
discussing the case with an assistant prosecutor at the end of that month, she inquired
as to why Weir was being held in Lake County and was told that there was “some sort of
conflict of interest” for him to be held in Jefferson (Ashtabula County). Defense counsel
indicated that when she informed Weir of this discussion, Weir stated that he believed the
conflict pertained to a family connection in a separate case.
{¶5} Moreover, with respect to the conflict of interest, Weir alleged in his petition
that the state withheld exculpatory evidence by failing to disclose the factual basis of the
conflict. Weir argued that the conflict arose from the state’s motivation to retaliate for a
crime against the daughter of an “associate.”
{¶6} Weir further maintained that the trial court did not properly apply the
seriousness and recidivism sentencing factors to his case. Weir argued that the court did
not have any knowledge of mitigating factors due to defense counsel failing to provide the
court with favorable evidence and the trial court failing to conduct a presentence
investigation.
{¶7} The trial court overruled the petition without hearing. The trial court
determined that the letter containing the public defender’s view as to the court’s position
on judicial release and the purported conflict of interest were not newly discovered
evidence of ineffective assistance of counsel. Moreover, the court concluded that it was
Case No. 2021-A-0019 “little more than wishful speculation” that the alleged conflict was “exculpatory.” The court
further determined that because no newly discovered evidence existed, “the issue of
ineffective assistance of counsel is barred by res judicata.”
{¶8} In his two assigned errors, Weir contends:
[1.] Trial court erred in claiming a conflict of interest was a matter of record when it was not, which resulted in violation of appellant’s right to due process guaranteed by the 5th and 19th Amendments to the U.S. Constitution.
[2.] Trial court erred in overruling defendant’s petition without a hearing when there was [sic] significant issues of merit to support post-conviction relief pursuant to R.C. 2953.21 & 2953.23(A)(1).
{¶9} The postconviction relief statute, R.C. 2953.21, provides, “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 postconviction
petition “asking the court to vacate or set aside the judgment or sentence * * *.” R.C.
2953.21(A)(1)(a)(i).
{¶10} Postconviction petitions “filed under R.C. 2953.21(A)(1) shall be filed within
three hundred sixty-five days after the filing of the transcript in a direct appeal.” State v.
Garner, 11th Dist. Lake No. 2018-L-057, 2018-Ohio-4661, ¶ 13, citing R.C. 2953.21(A)(2).
If the petitioner fails to meet this deadline, “the petitioner must show that ‘[h]e was
unavoidably prevented from discovery of the facts upon which [he] must rely to present
the claim for relief, or, * * * the United States Supreme Court recognized a new federal or
state right that applies retroactively’ and demonstrate ‘by clear and convincing evidence
that, but for constitutional error at trial, no reasonable factfinder would have found the
Case No. 2021-A-0019 petitioner guilty of the offense of which the petitioner was convicted[.]’” Garner at ¶ 13,
quoting R.C. 2953.23(A)(1)(a) and (b).
{¶11} Here, Weir filed his petition significantly later than 365 days past the filing
of the transcript in his direct appeal. In his petition, Weir argued that despite being filed
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[Cite as State v. Weir, 2022-Ohio-163.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0019
Plaintiff-Appellee, Civil Appeal from the -v- Court of Common Pleas
KEVIN A. WEIR, Trial Court No. 2016 CR 00465 Defendant-Appellant.
OPINION
Decided: January 24, 2022 Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Kevin A. Weir, pro se, PID# A691-188, Belmont Correctional Institution, 68518 Bannok Road, P.O. Box 540, St. Clairsville, OH 43950 (Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Kevin A. Weir, appeals the judgment overruling his petition for
postconviction relief. We affirm.
{¶2} In 2016, Weir, represented by counsel, pleaded guilty to eight counts of
pandering obscenity involving a minor. The trial court accepted the plea and sentenced
Weir to an aggregate prison term of ten years pursuant to a stipulated sentencing
recommendation. Weir appealed the sentence, and this court affirmed in State v. Weir,
11th Dist. Ashtabula No. 2017-A-0039, 2018-Ohio-2827. {¶3} On July 2, 2021, Weir filed a petition for postconviction relief. In his petition,
Weir maintained that there existed newly discovered evidence of ineffective assistance
of defense counsel. In support, Weir attached a letter from an attorney with the public
defender’s office and a letter from defense counsel. In the letter from the public
defender’s office, the attorney stated that she was responding to Weir’s inquiry regarding
representation to file a motion for judicial release. The attorney included her opinion that
“although you are eligible for judicial release, you entered a stipulated plea and sentence
of 10 years before Judge Harris. Judge Harris rarely grants requests for judicial release,
and he never grants them for stipulated sentences.” Weir maintained that he copied this
letter to defense counsel. Defense counsel replied in a letter stating, in relevant part,
“The information contained in the additional correspondence you received from the Public
Defender’s office * * * I was not aware of and if you refer back to the Judgment Entry from
your plea and sentencing hearing, you are correct in understanding that your sentence is
a negotiated plea and sentence, but not a mandatory sentence. Therefore, you are
eligible to apply for judicial release.” In his petition, Weir relied on the public defender’s
opinion regarding the trial judge’s stance on judicial release, and he argued that had
defense counsel alerted him to the fact that the judge would not grant him release, he
would not have pleaded guilty.
{¶4} Further, in his petition, Weir asserted newly discovered evidence that
defense counsel was aware of a conflict of interest that she failed to pursue. Weir alleged
that a corrections officer employed at the Ashtabula County Jail is the father of the victim
of a prior voyeurism charge brought against Weir. Weir maintained that, in the present
case, he explained to defense counsel that he believed he was being held in Lake County
Case No. 2021-A-0019 Jail instead of Ashtabula County Jail due to the father’s employment at the latter jail. Weir
attached the second and third page of a letter from defense counsel, in which the recipient
was not named, that provided a timeline of her representation of Weir. In the timeline,
defense counsel stated that on August 15, 2016, Weir informed her that he was being
held at the Lake County Jail for reasons unknown. Defense counsel recalled that while
discussing the case with an assistant prosecutor at the end of that month, she inquired
as to why Weir was being held in Lake County and was told that there was “some sort of
conflict of interest” for him to be held in Jefferson (Ashtabula County). Defense counsel
indicated that when she informed Weir of this discussion, Weir stated that he believed the
conflict pertained to a family connection in a separate case.
{¶5} Moreover, with respect to the conflict of interest, Weir alleged in his petition
that the state withheld exculpatory evidence by failing to disclose the factual basis of the
conflict. Weir argued that the conflict arose from the state’s motivation to retaliate for a
crime against the daughter of an “associate.”
{¶6} Weir further maintained that the trial court did not properly apply the
seriousness and recidivism sentencing factors to his case. Weir argued that the court did
not have any knowledge of mitigating factors due to defense counsel failing to provide the
court with favorable evidence and the trial court failing to conduct a presentence
investigation.
{¶7} The trial court overruled the petition without hearing. The trial court
determined that the letter containing the public defender’s view as to the court’s position
on judicial release and the purported conflict of interest were not newly discovered
evidence of ineffective assistance of counsel. Moreover, the court concluded that it was
Case No. 2021-A-0019 “little more than wishful speculation” that the alleged conflict was “exculpatory.” The court
further determined that because no newly discovered evidence existed, “the issue of
ineffective assistance of counsel is barred by res judicata.”
{¶8} In his two assigned errors, Weir contends:
[1.] Trial court erred in claiming a conflict of interest was a matter of record when it was not, which resulted in violation of appellant’s right to due process guaranteed by the 5th and 19th Amendments to the U.S. Constitution.
[2.] Trial court erred in overruling defendant’s petition without a hearing when there was [sic] significant issues of merit to support post-conviction relief pursuant to R.C. 2953.21 & 2953.23(A)(1).
{¶9} The postconviction relief statute, R.C. 2953.21, provides, “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 postconviction
petition “asking the court to vacate or set aside the judgment or sentence * * *.” R.C.
2953.21(A)(1)(a)(i).
{¶10} Postconviction petitions “filed under R.C. 2953.21(A)(1) shall be filed within
three hundred sixty-five days after the filing of the transcript in a direct appeal.” State v.
Garner, 11th Dist. Lake No. 2018-L-057, 2018-Ohio-4661, ¶ 13, citing R.C. 2953.21(A)(2).
If the petitioner fails to meet this deadline, “the petitioner must show that ‘[h]e was
unavoidably prevented from discovery of the facts upon which [he] must rely to present
the claim for relief, or, * * * the United States Supreme Court recognized a new federal or
state right that applies retroactively’ and demonstrate ‘by clear and convincing evidence
that, but for constitutional error at trial, no reasonable factfinder would have found the
Case No. 2021-A-0019 petitioner guilty of the offense of which the petitioner was convicted[.]’” Garner at ¶ 13,
quoting R.C. 2953.23(A)(1)(a) and (b).
{¶11} Here, Weir filed his petition significantly later than 365 days past the filing
of the transcript in his direct appeal. In his petition, Weir argued that despite being filed
outside the time limits provided by law, the court should consider his petition because:
Weir had no knowledge of the law during his initial court proceedings and relied solely on
trial counsel; trial counsel was “deceitful” and ineffective; the prosecution withheld a key
piece of exculpatory evidence regarding the conflict of interest; “information concerning
judicial release in respect to trial judge that was not known prior to acceptance of plea,
would have affected [Weir’s] plea decision[;]” and the court did not properly consider the
statutory sentencing factors.
{¶12} None of Weir’s reasons for untimely filing advance an argument that he was
unavoidably prevented from discovery of facts on which he relies or that the Supreme
Court recognized a new right with retroactive application. Although not specifically
addressed in the context of timeliness, the trial court noted that Weir relied on “newly
discovered evidence” in the form of a letter from the public defender’s office. However,
this letter, as well as the responsive letter from defense counsel, do not contain “facts.”
Instead, the letters contain the opinion of the public defender that the trial court judge
would not grant him judicial release despite his eligibility to petition for release and
defense counsel’s statement that she was unaware of this. Further, as the trial court
noted, Weir has not yet filed for judicial release, and he affirmed his understanding that
the decision to grant judicial release was within the discretion of the court.
Case No. 2021-A-0019 {¶13} Moreover, the alleged conflict of interest pertained to a conflict between an
employee at the jail and Weir, and Weir submitted no evidence that such a conflict had
any bearing on the present case. Additionally, the alleged conflict was known to Weir in
2016 pursuant to the documents he submitted in support of his petition.
{¶14} As the petition was untimely, and Weir failed to establish he was
unavoidably prevented from discovery of facts on which he relies, on this basis alone the
trial court did not err in failing to grant relief. See, e.g., State v. Mayle, 11th Dist. Ashtabula
No. 2017-A-0065, 2018-Ohio-2576, ¶ 11. Therefore, Weir’s second assigned error lacks
merit. We need not address Weir’s first assigned error pertaining to whether Weir’s
arguments were barred by res judicata, as our disposition of the second assigned error
renders the first assigned error moot. See App.R. 12(A)(1)(c).
{¶15} Accordingly, the judgment is affirmed.
CYNTHIA WESTCOTT RICE, J.,
JOHN J. EKLUND, J.,
concur.
Case No. 2021-A-0019