State v. Williams , 2021 Ohio 1355 ( 2021 )

[Cite as State v. Williams, 2021-Ohio-1355.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-20-17
v.
JOSHUA D. WILLIAMS, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 18 CR 0178
Judgment Affirmed
Date of Decision: April 19, 2021
APPEARANCES:
Joshua D. Williams, Appellant
Stephanie J. Kiser for Appellee
Case No. 13-20-17
MILLER, J.
{¶1} Defendant-appellant, Joshua D. Williams, appeals the September 30,
2020 judgment of the Seneca County Court of Common Pleas dismissing his
petition for postconviction relief. For the reasons that follow, we affirm.
Background
{¶2} This court has previously recited much of the factual and procedural
background of this case, and we will not duplicate those efforts here. State v.
Williams, 3d Dist. Seneca Nos. 13-19-23, 13-19-24, and 13-19-25, 2019-Ohio-5296,
¶ 2-15. Relevant to this appeal, on August 8, 2018, the Seneca County Grand Jury
indicted Williams on six counts: Counts One, Two, and Four of trafficking in
cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a), fifth-degree felonies; Count
Three of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(b), a
fourth-degree felony; Count Five of possession of cocaine in violation of R.C.
2925.11(A), (C)(4)(b), a fourth-degree felony; and Count Six of possessing criminal
tools in violation of R.C. 2923.24(A), (C) a fifth-degree felony. At his arraignment
on August 15, 2018, the trial court appointed counsel for Williams. On March 28,
2019, Williams’s appointed counsel filed a motion to withdraw as counsel for
Williams. Specifically, the motion stated “the attorney client relationship has
broken down and is irretrievable” and that counsel may be called as a witness in
Williams’s then-pending probation violation proceedings. (Doc. No. 37). The
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following day, the trial court granted Williams’s trial counsel’s motion to withdraw
and appointed subsequent trial counsel to represent Williams.
{¶3} The matter proceeded to a bench trial on May 28-29, 2019. On May
31, 2019, the trial court found Williams guilty of all counts. On June 14, 2019, the
trial court sentenced Williams to 12 months in prison on each of Counts One, Two,
Four, and Six and 18 months in prison on Counts Three and Five. The trial court
ordered the sentences to be served consecutively for an aggregate prison term of 84
months. The trial court also ordered the sentences to be served consecutively to any
prison term imposed in Seneca County Case Numbers 17 CR 0033 and 18 CR 0021.
{¶4} On June 28, 2019, Williams filed a notice of appeal with this Court. A
new attorney was appointed for Williams’s direct appeal. In his direct appeal,
Williams argued: (1) the trial court erred by failing to grant his request for a
continuance and (2) his consecutive sentences were disproportionate to the
seriousness of his offenses. Williams, 2019-Ohio-5296, at ¶ 15. This Court rejected
Williams’s arguments and affirmed the judgment of the trial court. Id. at ¶ 21.
Williams appealed our decision to the Supreme Court of Ohio, which declined
jurisdiction. State v. Williams, 159 Ohio St.3d 1445, 2020-Ohio-3712.
{¶5} Williams subsequently filed a motion for leave to reopen his direct
appeal under App.R. 26(B), which this Court denied. Williams appealed our
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decision to the Supreme Court of Ohio, which again declined jurisdiction. State v.
Williams, 159 Ohio St.3d 1476, 2020-Ohio-4045.
{¶6} On April 2, 2020, Williams filed a petition for postconviction relief
requesting an evidentiary hearing. Williams asserted two claims for relief
predicated on the premise that both of his appointed trial attorneys were ineffective.
Specifically, Williams claimed his first appointed attorney abandoned him by filing
a motion to withdraw as counsel and that both of his trial attorneys failed to
subpoena and interview witnesses. In his affidavit in support of his petition,
Williams alleged his second appointed trial counsel failed to subpoena and interview
a witness who, according to Williams, would have called into question the
credibility of the confidential informant on his case. On May 11, 2020, the State
filed a response opposing Williams’s petition for postconviction relief.
{¶7} On May 20, 2020, the trial court denied Williams’s petition for
postconviction relief without a hearing. On September 30, 2020, the trial court
issued findings of facts supporting its decision denying Williams’s petition for
postconviction relief on the basis of res judicata.
{¶8} On October 26, 2020, Williams filed a notice of appeal. He raises three
assignments of error for our review, which we will discuss together.
Assignment of Error No. I
The trial court misapplied the correct legal standard and relied
on erroneous findings of fact constituting an abuse of discretion.
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Assignment of Error No. II
Appellant was denied effective assistance of counsel as guaranteed
by Article I, Section 10 of the Ohio Constitution and the 6th and
14th Amendments of the United States Constitution for counsel’s
failure to subpoena an exculpatory material witness for the
defense.
Assignment of Error No. III
Trial court violated Appellant’s right to a speedy trial under the
Sixth and Fourteenth Amendments of the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
{¶9} In his first assignment of error, Williams argues he was denied the
effective assistance of counsel because the trial court permitted his first appointed
trial counsel to withdraw. Williams also contends his first appointed trial counsel
was ineffective for “abandon[ing]” him “at a critical stage of trial” by filing a motion
to withdraw as counsel. (Appellant’s Brief at 2-6). In his second assignment of
error, Williams alleges his second appointed trial counsel was ineffective for failing
to issue a subpoena for an exculpatory witness Williams claimed was material to his
defense. In his third assignment of error, Williams argues the trial court violated
his right to a speedy trial.
Standard of Review
{¶10} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.
Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10. The statute sets forth
who may petition for postconviction relief:
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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) (Apr. 6, 2017) (current version at R.C. 2953.21(A)(1) (Apr.
12, 2021)).
{¶11} “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(D), “[b]efore granting a hearing on a
petition filed under [R.C. 2953.21(A)], the court shall determine whether there are
substantive grounds for relief.”
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(D) (Apr. 6, 2017) (current version at R.C. 2953.21(D) (Apr. 12,
2021)).
{¶12} “[I]f the court determines that there are no substantive grounds for
relief, it may dismiss the petition without an evidentiary hearing.” State v. Jones,
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3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, ¶ 14. “The decision to grant the
petitioner an evidentiary hearing is left to the sound discretion of the trial court.”
Andrews at ¶ 11. 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. An abuse of discretion
suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When the abuse of
discretion standard applies, an appellate court is not to substitute its judgment for
that of the trial court. State v. Thompson, 3d Dist. Henry No. 7-16-10, 2017-Ohio-
792, ¶ 11.
Relevant Authority
{¶13} The trial court dismissed Williams’s petition after concluding it was
barred by the doctrine of res judicata. “Although 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.” State v.
Schwieterman, 3d Dist. Mercer No. 10-09-12, 2010-Ohio-102, ¶ 23. “‘[U]nder the
doctrine of res judicata, a final judgment of conviction bars a convicted defendant
who was represented by counsel from raising and litigating in any proceeding except
an appeal from that judgment, any defense or any claimed lack of due process that
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was raised or could have been raised by the defendant * * * on an appeal from that
judgment.’” (Emphasis sic.) State v. Troglin, 3d Dist. Union No. 14-09-04, 2009-
Ohio-5276, ¶ 13, quoting State v. Perry, 10 Ohio St.2d 175, paragraph nine of the
syllabus (1967). The doctrine “promotes the principles of finality and judicial
economy by preventing endless relitigation of an issue on which a defendant has
already received a full and fair opportunity to be heard.” State v. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245, ¶ 18, citing State ex rel. Willys-Overland Co. v. Clark,
112 Ohio St.263, 268 (1925). Thus, the doctrine of res judicata bars all claims
except those that were not available at trial or on appeal because they are based on
evidence outside the record. See Jones, 2007-Ohio-5624, at ¶ 20. Further, “[t]he
evidence submitted outside the record must be competent, relevant, and material to
the issue at hand.” State v. Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-
2651, ¶ 59.
{¶14} However, “since ‘counsel cannot realistically be expected to argue his
own incompetence, res judicata does not act to bar a defendant represented by the
same counsel at trial and upon direct appeal from raising a claim of ineffective
assistance of counsel in a petition for postconviction relief.’” State v. Lentz, 70 Ohio
St.3d 527, 529-30 (1994), quoting State v. Cole, 2 Ohio St.3d 112, 114 (1982) fn.1.
But, “where a defendant was represented by new counsel on direct appeal ‘who was
in no way enjoined from asserting the ineffectiveness of appellant’s trial counsel,’
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claims of ineffective assistance must be brought on direct review.” (Emphasis sic.)
State v. Bradley, 3d Dist. Union No. 14-08-27, 2008-Ohio-6071, ¶ 8, quoting Cole
at 114 and fn. 1.
Analysis
{¶15} With respect to Williams’s arguments that he received ineffective
assistance of trial counsel, we find that Williams was represented by new counsel
for his direct appeal. Further, the record does not indicate that Williams’s appellate
counsel was in any way enjoined from asserting ineffective assistance of trial
counsel. Therefore, because Williams does not assert claims of ineffective
assistance of counsel based on evidence that was not available at trial or during
direct appeal, his claims are barred by res judicata.
{¶16} Williams’s arguments alleging ineffective assistance of trial counsel
are not based on relevant information outside the record that would not have been
available to him during direct appeal. With respect to his initial trial counsel,
Williams argues the trial court erred by granting his trial counsel’s motion to
withdraw. In an affidavit signed by Williams, he provides the names of individuals
he claims could testify regarding his initial trial counsel’s health condition at the
time of her motion to withdraw. Williams alleges that these witnesses can establish
that his trial counsel was healthy enough to represent him, and, therefore, the trial
court erred by granting her motion to withdraw. However, Williams’s focus on his
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initial trial counsel’s health condition at the time of her motion to withdraw is
misplaced because the reasons provided in the motion to withdraw were unrelated
to her health. Rather, Williams’s initial trial counsel cited the breakdown of the
attorney-client relationship and an understanding that Williams intended to call her
as a witness in another pending proceeding as her reasons for seeking to withdraw
from representation. Thus, Williams’s arguments relating to the ineffective
assistance of his initial trial counsel are not based on “new, competent, relevant, and
material evidence outside the record.” State v. Pordash, 9th Dist. Lorain No.
05CA008673, 2005-Ohio-4252, ¶ 13. Accordingly, his arguments alleging that his
initial trial counsel was ineffective are barred by the doctrine of res judicata.
{¶17} Moreover, Williams’s arguments contending that his second trial
counsel was ineffective are based upon information Williams knew at the time of
his trial and direct appeal. Specifically, Williams argues that his second trial counsel
was aware of the existence of a purported exculpatory witness prior to trial, yet
chose not to locate and subpoena the potential witness. Thus, by Williams’s
admission, his ineffective assistance of counsel claim relating to his second
appointed trial counsel is based on information that Williams knew at the time of
his trial and first appeal. See State v. Krug, 11th Dist. Lake No. 2009-L-038, 2009-
Ohio-6232, ¶ 21-22.
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{¶18} Accordingly, we find Williams’s arguments that his first and second
appointed trial attorneys were ineffective could have been raised on direct appeal.
Thus, the arguments presented in his first and second assignments of error are barred
by res judicata. State v. Medsker, 3d Dist. Allen No. 1-04-24, 2004-Ohio-4291, ¶
11.
{¶19} Moreover, because the claims raised in Williams’s petition are barred
by res judicata, the trial court did not abuse its discretion by dismissing Williams’s
petition for postconviction relief without a hearing. State v. Lewis, 3d Dist. Logan
No. 8-19-08, 2019-Ohio-3031, ¶ 13 (“If res judicata applies to a claim raised in a
petition for postconviction relief, an evidentiary hearing is not warranted on the
matter.”).
{¶20} Accordingly, Williams’s first and second assignments of error are
overruled.
{¶21} In his third assignment of error, Williams argues the trial court
violated his right to a speedy trial. However, “[i]n a petition for postconviction
relief, the petitioner must state all the grounds for relief on which he relies, and
waives all other grounds not identified.” State v. Maxwell, 8th Dist. Cuyahoga No.
107758, 2020-Ohio-3027, ¶ 24. Here, Williams did not raise any argument in his
petition for postconviction relief related to the trial court’s alleged violation of his
right to a speedy trial. Accordingly, we find Williams waived his argument relating
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to an alleged violation of his speedy trial rights by failing to raise the issue in his
petition for postconviction relief. See State v. Ibrahim, 10th Dist. Franklin No.
17AP-557, 2020-Ohio-3425, ¶ 38 (“The failure to raise an issue in a petition for
post-conviction relief results in a waiver of a right to assert that issue for the first
time on appeal.”).
{¶22} However, even if Williams did not waive his argument relating to the
trial court’s alleged violation of his right to a speedy trial, his claim would have
been barred by res judicata because it could have been raised on direct appeal. See
State v. Palmer, 7th Dist. Jefferson No. 11 JE 17, 2012-Ohio-5255, ¶ 7 (“A criminal
defendant may not use postconviction relief proceedings to raise a speedy trial issue
that * * * was not raised as part of the direct appeal of the conviction.”). Thus,
Williams’s third assignment of error is overruled.
{¶23} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Seneca County Court
of Common Pleas.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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