State v. Tolliver , 2014 Ohio 4824 ( 2014 )

[Cite as State v. Tolliver, 2014-Ohio-4824.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-170
v. : (C.P.C. No. 02CR-121)
Kevin A. Tolliver, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 30, 2014
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellee.
Kevin A. Tolliver, pro se.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Kevin A. Tolliver, pro se, appeals from a decision and
entry of the Franklin County Court of Common Pleas denying his petition to set aside the
judgment of his conviction. Because the trial court did not abuse its discretion in denying
appellant's petition, we affirm.
I. Facts and Procedural History
{¶ 2} On June 24, 2002, appellant was found guilty, pursuant to jury verdict, of
one count of murder with a firearm specification, in violation of R.C. 2903.02 and
2941.145, for the shooting death of Claire Schneider. The trial court sentenced appellant
to 15 years to life in prison on the murder charge with an additional 3 years on the firearm
specification. On July 11, 2002, appellant filed a motion for judgment of acquittal, or, in
No. 14AP-170 2
the alternative, motion for new trial, which the trial court denied without a hearing by a
decision and entry filed August 13, 2002.
{¶ 3} Appellant appealed both his conviction and the trial court's denial of his
motion for new trial, arguing that the trial court erred by failing to suppress statements
appellant made during his custodial interrogation, by admitting a blood-covered shirt into
evidence, by failing to rule on his pretrial motion to compel the prosecution to provide
access to Schneider's diary, by failing to grant a hearing on appellant's motion for a new
trial, and because his conviction was against the manifest weight of the evidence and he
was deprived of a fair trial by the prosecutor's alleged misconduct. This court rejected
appellant's arguments and affirmed the judgment of the trial court. State v. Tolliver, 10th
Dist. No. 02AP-811, 2004-Ohio-1603 ("Tolliver I"), appeal not allowed, 103 Ohio St.3d
1407, 2004-Ohio-3980. Our decision in Tolliver I includes a detailed recitation of the
evidence presented at trial.
{¶ 4} On June 9, 2003, during the pendency of his direct appeal, appellant filed a
petition for postconviction relief and requested an evidentiary hearing ("first
postconviction petition"). In his first postconviction petition, appellant asserted
(1) unlawful incarceration under the Eighth Amendment due to his "actual innocence,"
and (2) ineffective assistance of counsel based on his counsel's failure to test for gunshot
residue on various clothing items, failure to elicit evidence from Schneider's family
members regarding Schneider's emotional state before her death, and failure to assert a
theory that Schneider committed suicide because she was suffering from "Paxil
withdrawal syndrome."
{¶ 5} The trial court denied appellant's first postconviction petition without a
hearing on May 7, 2004. The trial court concluded res judicata bars appellant's claims of
"actual innocence" and ineffective assistance of counsel as it relates to trial counsel's
failure to test for gunshot residue and elicit evidence regarding Schneider's emotional
state. As to trial counsel's alleged ineffectiveness due to failure to advance a theory of
suicide due to "Paxil withdrawal syndrome," the trial court concluded appellant presented
insufficient documentation to support this claim. Appellant appealed the denial of his
first postconviction petition and this court affirmed, concluding the trial court did not
abuse its discretion by denying the first postconviction petition without an evidentiary
No. 14AP-170 3
hearing. State v. Tolliver, 10th Dist. No. 04AP-591, 2005-Ohio-989 ("Tolliver II"),
appeal not allowed, 106 Ohio St.3d 1488, 2005-Ohio-3978. We summarized the
documentation appellant provided in support of the "Paxil withdrawal syndrome" claim
as follows:
[A]ppellant submitted documents that reference patients
becoming suicidal after discontinuing Paxil or related
medications. Appellant also provided copies of sworn
testimony that Drs. Healy, Shipko and Glenmullen gave in a
civil products liability suit against Paxil, that challenged Paxil
advertisements and warning labels. Dr. Healy stated that ten
percent of Paxil users have severe withdrawal symptoms that
"can" or "may" lead to suicide. (R. 370, Dr. Healy testimony,
¶¶ 16, 24.) Dr. Shipko described symptoms of Paxil
withdrawal, but did not mention suicide. Dr. Glenmullen said
that "[s]ome patients in acute withdrawal have impulsive,
aggressive, or suicidal urges." (R. 370, Dr. Glenmullen
testimony, ¶ 24.)
Appellant also submitted correspondence from Drs. Healy
and Shipko. Appellant asked the doctors to comment on
whether Schneider committed suicide because of Paxil
withdrawal. Dr. Healy indicated that "[t]he brief outline of
your case makes it look stronger than many others in this
area. However, I am particularly bogged down just at the
moment." (R. 371, Dr. Healy correspondence.) Dr. Healy
then referred appellant to another expert. Dr. Shipko stated,
"[b]ased on the information available it seems that there is
ample information to suggest that Paxil was the problem * * *.
Usually I review all of the available records before I indicate
whether or not I would be willing to render an opinion." (R.
371, Dr. Shipko correspondence.)
Furthermore, appellant presented a pre-marketing study on
Paxil and related medications. The study indicates that there
is "no signal * * * that [Paxil and related medications] exposes
[sic] a subset of depressed patients to additional risk for
suicide." (R. 370, Review and Evaluation of Clinical Data, 25.)
Tolliver II at ¶ 14-16.
{¶ 6} Appellant then sought federal relief through a petition for a writ of habeas
corpus. The federal district court denied the writ and the Sixth Circuit affirmed. Tolliver
No. 14AP-170 4
v. Sheets, 530 F.Supp.2d 957 (S.D.Ohio 2008), aff'd, 594 F.3d 900 (6th Cir.2010)
("Tolliver III").
{¶ 7} On March 14, 2012, appellant filed a document captioned "[Appellant's]
Amended Petition to Vacate or Set Aside Judgment of Conviction [R.C.] 2953.21 – or
Alternatively – Successive Petition [R.C.] 2953.23" (the "second postconviction petition").
Appellant simultaneously filed a "Motion for Leave to Amend Petition to Vacate or Set
Aside Judgment of Conviction [R.C.] 2953.21(F)." Through his second postconviction
petition and subsequent filings, appellant argued there were errors during his trial related
to his counsel's alleged ineffectiveness and that he had newly discovered exculpatory
evidence. The state responded on April 27, 2012 with a memorandum arguing appellant's
attempted amendment to his first postconviction petition was untimely and requesting
the trial court dismiss appellant's second postconviction petition.
{¶ 8} In support of his second postconviction petition, appellant filed various
affidavits, correspondence with psychiatrist Dr. Stuart Shipko, and "the Shipko report"
containing Dr. Shipko's opinion of the role Paxil withdrawal may have played in
Schenider's death, the testimony of psychiatrist Dr. Peter Breggin from a 1999 civil
lawsuit against the manufacturer of Paxil, a 2006 article by Dr. Breggin explaining his
findings on Paxil's effects, the video transcript of appellant's police interview, and a copy
of Schneider's diary.
{¶ 9} In the Shipko letter dated February 12, 2011, Dr. Shipko gave his opinion
that "within a reasonable medical certainty, Paxil withdrawal significantly contributed to
Claire Schneider engaging in an impulsive suicidal gesture that resulted in her death."
(Second Postconviction Petition, Shipko Letter, 1.) Dr. Shipko also stated that he
reviewed Dr. Breggin's independent analysis of the manufacturer's data and "[i]t is clear *
* * that the company has been withholding information from physicians concerning
suicide that occurs shortly after stopping an antidepressant." (Second Postconviction
Petition, Shipko Letter, 2.)
{¶ 10} The Shipko report, dated November 6, 2006, contained a summary of the
information Dr. Shipko reviewed before concluding (1) "testimony from the informant
concerning the motive for homicide is implausible in light of Ms. Schneider's diary,"
(2) "[t]he information from the coroner describes a gunshot wound consistent with a
No. 14AP-170 5
suicide," (3) Schneider's physician's "testimony was factually incorrect and, in fact, the
opposite of what he said is true" because "[w]ithdrawal is common with Paxil and severe
withdrawal is common when Paxil is stopped abruptly," (4) "[t]he sort of impulsive
suicide by Ms. Schneider was typical of Paxil withdrawal," and "[t]he possible
contributions of withdrawal from Wellbutrin, as well as the ingestion of alcohol would be
expected to increase the likelihood of Ms. Schneider acting on suicidal impulses related to
Paxil withdrawal," and (5) "[t]he manufacturer of Paxil, GlaxoSmithKline, has been
systematically hiding and manipulating their own clinical data to minimize information
concerning the risks of suicide when starting and stopping the drug Paxil." (Second
Postconviction Petition, Shipko Report, 15-16.)
{¶ 11} Christopher King, an investigative journalist, stated in his affidavit that he
had thoroughly researched appellant's case and that "evidence withheld during the trial
was valuable, exculpatory evidence." (Second Postconviction Petition, King Affidavit, ¶ 4.)
King further averred that appellant was "unable to receive [the information regarding the
effects of Paxil withdrawal] through no fault of his own because it simply was not
available because the drug companies conspired to hide it." (Second Postconviction
Petition, King Affidavit, ¶ 15.) Kathryn Koch, a licensed private investigator, stated in her
February 2005 affidavit that she learned Schneider's diary was in possession of the
prosecutor's office but not provided to the defense. She further stated that she learned the
names of three additional witnesses after the trial but that because appellant was indigent,
he was unavoidably prevented from acquiring statements from those witnesses. Those
witnesses were Dale Spencer, Donald McMullen, and Chad Andrews.
{¶ 12} Spencer, a former inmate in the Franklin County jail, stated in his October
2004 affidavit that he saw Joe Adams, the prosecution's jailhouse informant, go into
appellant's cell when appellant was not there and "read [appellant's] motion for discovery
and court documents." (Second Postconviction Petition, Spencer Affidavit.) Spencer
stated Adams asked him "to get information from [appellant] and report back to Adams,
because [appellant] would not provide information to Adams." (Second Postconviction
Petition, Spencer Affidavit.) McMullen, another former inmate of the Franklin County
jail, stated in his October 2004 affidavit that he saw Adams showing appellant's discovery
and other legal documents to other inmates. A third former inmate, Andrews, stated in
No. 14AP-170 6
his October 2004 affidavit that Adams tried to recruit him to testify against appellant but
that Andrews declined "because it would have been a lie." (Second Postconviction
Petition, Andrews Affidavit.) Andrews further stated that other inmates also said Adams
was trying to recruit them to testify against appellant because Adams "got [a hold] of
[appellant's] paperwork." (Second Postconviction Petition, Andrews Affidavit.)
{¶ 13} Appellant also submitted the affidavit of his ex-wife, Natasha Tolliver, dated
January 5, 2012 in which she stated she "find[s] it hard to believe [appellant] is capable of
murder. He has never attempted to harm [Natasha Tolliver] in any way regardless of the
situation." (Second Postconviction Petition, Natasha Tolliver Affidavit, ¶ 7.)
{¶ 14} In an October 2, 2013 decision and entry, the trial court denied appellant's
second postconviction petition without a hearing, concluding appellant failed to assert
any substantive grounds for relief and that his claims are barred by res judicata. The trial
court cited the bar on second or successive postconviction relief contained in R.C.
2953.23(A). The record indicates some problems with service of the October 2, 2013
decision and entry, and on February 14, 2014 appellant filed a motion requesting service
of judgment. Appellant subsequently filed a Crim.R. 33 motion for new trial on
February 24, 2014 which is still pending in the trial court. After receiving service,
appellant timely appeals the October 2, 2013 decision and entry denying his second
postconviction petition.
II. Assignments of Error
{¶ 15} Appellant assigns the following two assignments of error for our review:
I. Trial court erred and abused its discretion in not holding an
evidentiary hearing pursuant to O.R.C. §2953.21(E) and
2953.22; also in failing to make findings and conclusions.
II. Trial court erred and abused its discretion in finding there
was no substantive grounds for relief and claims are barred by
res judicata when second petition rectified deficiencies of the
first and presented multiple new claims upon newly
discovered evidence.
III. Applicable Law and Standard of Review
{¶ 16} " '[A] trial court's decision granting or denying a postconviction petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
No. 14AP-170 7
court should not overrule the trial court's finding on a petition for postconviction relief
that is supported by competent and credible evidence.' " State v. Sidibeh, 10th Dist. No.
12AP-498, 2013-Ohio-2309, ¶ 7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, ¶ 58. Further, we review a trial court's decision to deny a postconviction petition
without a hearing under an abuse of discretion standard. State v. Boddie, 10th Dist. No.
12AP-811, 2013-Ohio-3925, ¶ 11, citing State v. Campbell, 10th Dist. No. 03AP-147, 2003-
Ohio-6305, ¶ 14. An abuse of discretion connotes a decision that is unreasonable,
arbitrary or unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶ 17} As a general matter, a petition for postconviction relief is a collateral civil
attack on a criminal judgment, not an appeal of the judgment. Sidibeh at ¶ 8, citing State
v. Steffen, 70 Ohio St.3d 399, 410 (1994). A petition for postconviction relief " 'is a means
to reach constitutional issues which would otherwise be impossible to reach because the
evidence supporting those issues is not contained in the record.' " Id., quoting State v.
Murphy, 10th Dist. No. 00AP-233 (Dec. 26, 2000). Thus, a postconviction petition does
not provide a petitioner a second opportunity to litigate his or her conviction. Id., citing
State v. Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321, ¶ 32. Instead, R.C. 2953.21
affords a petitioner postconviction relief " 'only if the court can find that there was such a
denial or infringement of the rights of the prisoner as to render the judgment void or
voidable under the Ohio Constitution or the United States Constitution.' " Id., quoting
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph four of the syllabus.
{¶ 18} A trial court may not entertain a second postconviction petition unless the
petitioner initially demonstrates either (1) he was unavoidably prevented from
discovering the facts necessary for the claim for relief, or (2) the United States Supreme
Court recognized a new federal or state right that applies retroactively to persons in the
petitioner's situation. R.C. 2953.23(A)(1)(a). If the petitioner can satisfy one of those two
conditions, he must also demonstrate that but for the constitutional error at trial no
reasonable finder of fact would have found him guilty. R.C. 2953.23(A)(1)(b).
{¶ 19} The doctrine of res judicata places another significant restriction on the
availability of postconviction relief. Sidibeh at ¶ 12. " 'Under the doctrine of res judicata,
a final judgment of conviction bars a convicted defendant who was represented by counsel
No. 14AP-170 8
from raising and litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have been raised by
the defendant at the trial, which resulted in that judgment or conviction, or on an appeal
from that judgment.' " (Emphasis deleted.) State v. Cole, 2 Ohio St.3d 112, 113 (1982),
quoting Perry at paragraph nine of the syllabus. "Res judicata also implicitly bars a
petition from 'repackaging' evidence or issues which either were, or could have been,
raised in the context of the petitioner's trial or direct appeal." Hessler at ¶ 37.
{¶ 20} Further, a petitioner is not automatically entitled to an evidentiary hearing
on a postconviction petition. Sidibeh at ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107,
110-13 (1980). To warrant an evidentiary hearing, the petitioner bears the initial burden
of providing evidence demonstrating a cognizable claim of constitutional error. Id., citing
R.C. 2953.21(C); Hessler at ¶ 33. The trial court may deny the petitioner's postconviction
petition without an evidentiary hearing "if the petition, supporting affidavits,
documentary evidence, and trial record do not demonstrate sufficient operative facts to
establish substantive grounds for relief." Sidibeh at ¶ 13, citing State v. Calhoun, 86 Ohio
St.3d 279 (1999), paragraph two of the syllabus.
IV. First and Second Assignments of Error – Denial of Appellant's Petition
{¶ 21} Appellant's assignments of error are interrelated and we address them
jointly. Appellant argues the trial court abused its discretion when it denied appellant's
second postconviction petition without an evidentiary hearing and without issuing
findings of fact and conclusions of law in support of its decision. Appellant asserts he is
entitled to postconviction relief based on (1) newly discovered evidence undermining the
veracity of the evidence at trial, (2) newly discovered evidence demonstrating his
counsel's ineffectiveness, and (3) the accumulation of these alleged errors amounting to
deprive appellant of a fair trial.
{¶ 22} As we outlined above, there are certain limits to a second petition for
postconviction relief. R.C. 2953.23(A). A trial court may not entertain a second
postconviction petition unless the petitioner initially demonstrates either (1) he was
unavoidably prevented from discovering the facts necessary for the claim for relief, or
(2) the United States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner's situation. R.C. 2953.23(A)(1)(a). If the
No. 14AP-170 9
petitioner can satisfy one of those two conditions, he must also demonstrate that but for
the constitutional error at trial no reasonable finder of fact would have found him guilty.
R.C. 2953.23(A)(1)(b).
{¶ 23} Here, appellant does not assert that the United States Supreme Court has
recognized a new federal or state right that applies retroactively to his situation.
Therefore, the court "may not entertain" appellant's second postconviction petition unless
he demonstrates (1) that he was unavoidably prevented from discovering the facts
necessary for his claim for relief, and (2) that but for a constitutional error, no reasonable
factfinder would have found him guilty.
A. Ineffective Assistance of Counsel
{¶ 24} Appellant contends that he set forth sufficient operative facts to support his
ineffective assistance of counsel claims, thereby warranting an evidentiary hearing. We
disagree.
1. "Paxil Withdrawal Syndrome" Evidence
{¶ 25} In order to secure a hearing on his claim for postconviction relief based on
the ineffective assistance of counsel, appellant had the burden of submitting evidentiary
documents containing sufficient operative facts which, if believed, would establish
(1) appellant's trial counsel substantially violated at least one of counsel's essential duties
to his or her client, and (2) appellant suffered prejudice as a result. Sidibeh at ¶ 15, citing
Cole at 114; Calhoun at 289. "Judicial scrutiny of counsel's performance must be highly
deferential * * * [and] a court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance." Strickland v.
Washington, 466 U.S. 668, 689 (1984); State v. Bradley, 42 Ohio St.3d 136, 143-44
(1989). In his second postconviction petition, appellant contended that his trial counsel
was ineffective by failing to claim that Schneider committed suicide from "Paxil
withdrawal syndrome." Appellant advanced a similar argument in his first postconviction
petition. In Tolliver II, we concluded appellant failed to set forth sufficient operative facts
to support his claim that trial counsel provided ineffective assistance by not presenting
the "Paxil withdrawal syndrome" defense. Tolliver II at ¶ 31. In so concluding, we noted
appellant "presented no medical expert opinion or analysis specifically linking Schneider's
death to suicide triggered by 'Paxil withdrawal syndrome.' " Id. at ¶ 26.
No. 14AP-170 10
{¶ 26} In his second petition for postconviction relief, appellant provided a Shipko
letter dated February 12, 2011 and the Shipko report dated November 6, 2006. Appellant
argues this evidence remedies the deficiencies in his first postconviction petition in this
regard. While the Shipko letter provides a medical expert opinion that Schneider's death
could be linked to "Paxil withdrawal syndrome" that was previously lacking in the first
postconviction petition, appellant cannot demonstrate ineffective assistance of counsel
from trial counsel's failure to assert this theory as a defense.
{¶ 27} According to the Shipko report, the Food and Drug Administration advisory
board first issued a warning about the possible association between Paxil and suicide in
2004, and the manufacturer of Paxil did not include a warning of an increased risk of
suicide until 2006. The Breggin publication containing similar arguments regarding the
link between Paxil withdrawal and suicide similarly was not available until 2006. We
cannot fault appellant's trial counsel for not advancing a theory of which he would not
have had sufficient knowledge in 2002, the time of appellant's trial. See State v. Miranda,
10th Dist. No. 13AP-271, 2013-Ohio-5109, ¶ 19 (noting that "[i]n general, trial counsel is
not ineffective in 'failing to be clairvoyant' ").
{¶ 28} Additionally, trial counsel's decision not to vigorously pursue a defense
based on "Paxil withdrawal syndrome" may have been a strategic decision. Appellant
maintained a version of events that Schneider accidentally shot herself and did not know
the gun was loaded, so advancing a theory of purposeful suicide linked to "Paxil
withdrawal syndrome" would have been incompatible both with the note appellant left
near Schneider's body and with appellant's statements to police immediately following
Schneider's death. See State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 54
(10th Dist.) (noting generally that matters falling " 'within the rubric of trial strategy' " will
not be second-guessed by a reviewing court), quoting State v. Madison, 10th Dist. No.
08AP-246, 2008-Ohio-5223, ¶ 11.
{¶ 29} Further, to the extent appellant argues the information regarding the "Paxil
withdrawal syndrome" supports his actual innocence rather than ineffective assistance of
counsel, we are mindful that postconviction relief is limited to constitutional errors.
Subsequently discovered evidence, standing alone, is not sufficient to prove substantive
grounds for postconviction relief because it does not meet the high standard of
No. 14AP-170 11
demonstrating a constitutional violation in the proceeding that actually resulted in the
conviction. State v. Whiteside, 10th Dist. No. 00AP-223 (Sept. 29, 2000), citing State v.
Powell, 90 Ohio App.3d 260, 264 (1st Dist.1993) (noting the error complained of must be
"of constitutional dimension" and must have occurred at the time of trial and conviction).
Because appellant's petition and supporting documents did not adequately demonstrate
sufficient operative facts establishing substantive grounds for relief with regard to his
"Paxil withdrawal syndrome" theory, he was not entitled to a hearing, and the trial court
did not err in ruling on appellant's petition without a hearing. Sidibeh at ¶ 13, citing
Calhoun at paragraph two of the syllabus.
2. Evidence Attacking the Credibility of a Prosecution Witness
{¶ 30} Appellant also argues he is entitled to postconviction relief on the grounds
of ineffective assistance of counsel because he was unavoidably prevented from
discovering the evidence he contends would have changed the outcome of the trial.
Specifically appellant has evidence suggesting Adams, the prosecution's jailhouse
informant witness, obtained information about appellant by taking legal documents from
appellant's cell without appellant's knowledge. This information, appellant asserts,
suggests Adams fabricated his testimony that appellant confessed to murdering
Schneider, and appellant argues his trial counsel was ineffective in failing to locate and
call these witnesses at trial. In support, appellant relies on the affidavits of Spencer,
McMullen, and Andrews, three other former Franklin County jail inmates who were
housed in the Franklin County jail at the same time as appellant and Adams.
{¶ 31} Regardless of whether appellant was unavoidably prevented from obtaining
statements from these witnesses, appellant cannot demonstrate that the ability to call
these witnesses would have changed the outcome of the trial. Indeed, appellant's trial
counsel called David Dye, another Franklin County jail inmate, as a witness during the
trial in an attempt to undermine Adams' testimony. Dye's testimony was similar to the
affidavits of Spencer, McMullen, and Andrews: that Adams approached him about also
testifying against appellant and that Dye had the impression that Adams may have "made
up" the story about appellant. Tolliver I at ¶ 33. There was ample other evidence at trial
supporting appellant's conviction, and appellant does not demonstrate that no reasonable
No. 14AP-170 12
factfinder would have found him guilty had he been able to call these additional witnesses
in order to undermine Adams' credibility.
B. Res Judicata
{¶ 32} Next, appellant argues the trial court erred by applying res judicata to the
issue of the admissibility of Schneider's diary. Appellant claims that res judicata does not
apply to the inadmissibility of the diary because "the new evidence" related to the
additional jailhouse witnesses and the expert opinion of Dr. Shipko somehow render the
exclusion of the diary erroneous.
{¶ 33} On direct appeal from his conviction, appellant argued the trial court erred
when it failed to rule on his pretrial motion to compel the diary. This court considered the
issue, noted the diary had little probative value regarding the state of the couple's
relationship at the time of Schneider's death, and concluded the trial court's failure to
provide appellant access to the diary did not affect a substantial right. Tolliver I at ¶ 112-
13.
{¶ 34} We are not persuaded by appellant's argument that other newly discovered
evidence somehow reignites the issue of the diary's admissibility. Thus, the admissibility
of Schneider's diary is barred by res judicata and not an appropriate basis for
postconviction relief. Sidibeh at ¶ 12, citing Hessler at ¶ 37 (stating "[r]es judicata also
implicitly bars a petitioner from 'repackaging' evidence or issues which either were, or
could have been, raised in the context of the petitioner's trial or direct appeal").
{¶ 35} In sum, appellant is unable to establish he is entitled to relief on his second
postconviction petition. Appellant's arguments are either barred by res judicata or he is
unable to satisfy the two-pronged requirement of unavoidable prevention and outcome
determination for a second or successive postconviction petition contained in R.C.
2953.23(A).
C. Findings of Fact and Conclusions of Law
{¶ 36} Finally, appellant's argument that the trial court erred in failing to issue
findings of fact and conclusions of law also fails. As we have noted, appellant was not
entitled to an evidentiary hearing on his petition where he failed to provide sufficient
operative facts demonstrating he was entitled to substantive grounds for relief for some
claims and res judicata operated to bar his arguments as to other claims. Sidibeh at ¶ 13,
No. 14AP-170 13
citing Calhoun at paragraph two of the syllabus; Boddie at ¶ 15, citing State v. Wright,
10th Dist. No. 08AP-1095, 2009-Ohio-4651, ¶ 11. " '[A] trial court's decision dismissing a
postconviction petition does not need to be designated "findings of fact and conclusions of
law," so long as the decision is sufficient to advise the petitioner and the appellate court of
the trial court's reasoning and permit meaningful appellate review.' " Boddie at ¶ 15,
quoting State v. Lowe, 10th Dist. No. 10AP-584, 2011-Ohio-3996, ¶ 17. Because the trial
court's entry specifically stated it denied appellant's petition based on res judicata and
appellant's failure to satisfy the strict requirements for a second petition contained in R.C.
2953.23(A), the trial court's decision and entry denying appellant's petition contained
sufficient information to apprise appellant of the grounds for its judgment and to enable
this court to properly determine his appeal. Id., citing State ex rel. Carrion v. Harris, 40
Ohio St.3d 19 (1988). Accordingly, we overrule appellant's first and second assignments
of error.
V. Disposition
{¶ 37} Based on the foregoing reasons, the trial court did not abuse its discretion in
denying appellant's second postconviction petition without a hearing. Having overruled
appellant's two assignments of error, we affirm the decision and entry of the Franklin
County Court of Common Pleas.
Judgment affirmed.
BROWN and KLATT, JJ., concur.