[Cite as State v. Curtis,
2019-Ohio-2587.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. CT2019-0001
RODNEY CURTIS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case
No.CR2015-0117
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 26, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX RODNEY A. CURTIS
PROSECUTOR #A721-152
BY: TAYLOR P. BENNINGTON Noble Correctional Institution
ASSISTANT PROSECUTOR 15708 McConnelsville Road
27 North Fifth St., P.O. Box 189 Caldwell, OH 43724
Zanesville, OH 43701
[Cite as State v. Curtis, 2019-Ohio-2587.]
Gwin, P.J.
{¶1} Appellant Rodney A. Curtis [“Curtis”] appeals from the December 7, 2018
Judgment Entry of the Muskingum County Court of Common Pleas overruling his second
petition for post-conviction relief.
Facts and Procedural History
{¶2} Curtis was indicted on or about March 18, 2015, on 63 counts of Illegal Use
of Minor in Nudity Oriented Material or Performance, each a felony of the second degree
and 11 counts of Sexual Battery, each a felony of the third degree. He retained counsel
to represent him.
{¶3} On or about October 5, 2015, Curtis entered a negotiated plea guilty to
counts 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 64, 68, and 74. In exchange for his plea, the state
dismissed the remaining 61 counts.
{¶4} On November 23, 2015, Curtis was sentenced to an aggregate prison
sentence of eleven years1. Curtis did not file a direct appeal, though he attempted to file
a delayed appeal on November 23, 2016. This Court denied Curtis’ motion to file a
delayed appeal by Judgment Entry filed January 3, 2017 in Case No. 16-62.
{¶5} On November 23, 2016, Curtis also filed a Petition for Post-Conviction
Relief in the trial court. On February 13, 2018, the trial court issued a seven-page entry
denying Curtis’ petition for post-conviction relief. This Court affirmed the trial court’s
decision. State v. Curtis, 5th Dist. Muskingum No. CT2018-0014, 2018-Ohio-2822
[“Curtis I”].
1Curtis received seven year sentences on Counts 2, 3, 5, 6, 9, 11, 12 and 13, concurrent to one
another; Curtis received 48 month sentences each on Counts 64, 68 and 74, concurrent to one another,
but consecutive to the seven year sentences. See, Judgment Entry filed Dec. 4, 2015, Docket Number 60.
Muskingum County, Case No. CT2019-0001 3
{¶6} On November 8, 2018, Curtis filed a Motion for Successive Post-Conviction
relief. On December 7, 2018, the trial court overruled Curtis’ motion.
Assignments of Error
{¶7} Curtis raises four Assignments of Error,
{¶8} “I. APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL AND FOURTEENTH AMENDMENT
RIGHT TO DUE PROCESS WHERE COUNSEL PREVENTED APPELLANT FROM
DISCOVERING THE FACTS ABOUT A JOINT RECOMMENDATION PLEA OFFER OF
SEVEN (7) YEARS THAT CHANGED THE OUTCOME OF THE PROCEEDINGS, AND
PREVENTED APPELLANT FROM SERVING A LESSER PENALTY IN VIOLATION OF
THE UNITED STATES AND OHIO CONSTITUTION, THUS, CAUSING APPELLANT TO
ENTER A GUILTY PLEA THAT WAS LESS THAN KNOWING, VOLUNTARY, AND
INTELLIGENTLY.
{¶9} “II. APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL AND FOURTEENTH AMENDMENT
RIGHT TO DUE PROCESS WHEN HE TOLD APPELLANT THAT HE "DOES NOT
ALLOW HIS CLIENTS TO DO NO-CONTEST PLEAS, IT'S EITHER GUILTY OR NOT
GUILTY.
{¶10} “III. THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES AND OHIO CONSTITUTION DEPRIVING APPELLANT OF A FAIR
TRIAL/PROCEEDING WHEN THE PROSECUTOR TOLD THE TRIAL COURT, AND
COURT OF APPEALS, THAT THERE WAS "A JOINT RECOMMENDATION OF SEVEN
Muskingum County, Case No. CT2019-0001 4
(7) YEARS" DESPITE NO SUCH RECORD BEING IN EXISTENCE TO PERSUADE
BOTH COURT'S TO DENY APPELLANT'S 2953.21.
{¶11} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DENIED APPELLANT'S 2953.21 PETITION DENYING APPELLANT DUE
PROCESS.”
STANDARD OF APPELLATE REVIEW - POST-CONVICTION RELIEF.
{¶12} R.C. 2953.21(A) states in part,
(A)(1)(a) Any person who has been convicted of a criminal offense
or adjudicated a delinquent child 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.
{¶13} Although designed to address claimed constitutional violations, the post-
conviction relief process is a civil collateral attack on a criminal judgment, not an appeal
of that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281,
714 N.E.2d 905(1999); State
v. Steffen,
70 Ohio St.3d 399, 410,
639 N.E.2d 67(1994). A petition for post-conviction
relief, thus, does not provide a petitioner a second opportunity to litigate his or her
conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the
Muskingum County, Case No. CT2019-0001 5
petition. State v. Jackson,
64 Ohio St.2d 107, 110,
413 N.E.2d 819(1980). State v. Lewis,
5th Dist. Stark No. 2007CA00358,
2008-Ohio-3113 at ¶ 8.
{¶14} In State v. Gondor, the Ohio Supreme Court held that “a trial court's
decision granting or denying a post-conviction petition filed pursuant to R.C. 2953.21
should be upheld absent an abuse of discretion; a reviewing court should not overrule the
trial court's finding on a petition for post-conviction relief that is supported by competent
and credible evidence.” 112 Ohio St.3d 377,
2006-Ohio-6679,
860 N.E.2d 77(2006), ¶
58. In Gondor, the trial court held an evidentiary hearing on the petition for post-conviction
relief. Id. at ¶19. The Supreme Court noted,
A de novo review by appellate courts would relegate the post-
conviction trial court to a mere testimony-gathering apparatus. Nothing in
R.C. 2953.21 indicates that that should be the case.
112 Ohio St.3d 377,
2006-Ohio-6679,
860 N.E.2d 77, ¶ 56. The court in Gondor held,
We thus conclude that proposition of law II has merit. The court of
appeals erred by using a de novo standard of review in reversing the trial
court’s findings. We hold that a trial court’s decision granting or denying a
post-conviction petition filed pursuant to R.C. 2953.21 should be upheld
absent an abuse of discretion; a reviewing court should not overrule the trial
court’s finding on a petition for post-conviction relief that is supported by
competent and credible evidence.
112 Ohio St.3d 377,
2006-Ohio-6679,
860 N.E.2d 77, ¶ 58 An abuse of discretion can be
found where the reasons given by the court for its action are clearly untenable, legally
incorrect, or amount to a denial of justice, or where the judgment reaches an end or
Muskingum County, Case No. CT2019-0001 6
purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit
No. 26827,
2014-Ohio-477, ¶35; In re Guardianship of S.H., 9th Dist. Medina No.
13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006–
CA–41, 2006–Ohio–5823, ¶54.
I.
{¶15} In his First Assignment of Error, Curtis maintains that he received ineffective
assistance of trial counsel because his attorney prevented him from discovering a plea
offer by the state of seven years.
{¶16} In the case at bar, the trial court found,
In contrast, the record shows that his defense attorney requested
and received discovery, negotiated with the Prosecutor’s Office for a plea
deal with significantly less exposure and a joint recommendation of seven
(7) years, fought to suppress evidence for his client, hired an expert to
review the evidence, and argued at length on behalf of his client at
sentencing.
Journal Entry, filed Feb 13, 2018 at 4; Curtis I, ¶36 . In Curtis, I we noted,
Curtis was represented by retained counsel of Curtis’ choosing in the
trial court. Curtis has not submitted affidavits or evidentiary materials to
substantiate his claim that he and his attorney had any misunderstandings
concerning the plea offer by the state as explained in open court by the trial
judge. No affidavits or evidentiary materials were submitted to substantiate
Curtis’ claim that his retained counsel coerced him to plead guilty.
Curtis I, 2018-Ohio-2822, ¶29.
Muskingum County, Case No. CT2019-0001 7
{¶17} In Lafler v. Cooper the United States Supreme Court reiterated that the
Sixth Amendment requires effective assistance not just at trial but at all critical stages of
a criminal proceeding, including plea bargaining. 566 U.S. 156, 162,
132 S.Ct. 1376,
182
L.Ed.2d 398 (2012). In order to prevail on a claim of ineffective assistance of counsel
when counsel’s ineffective advice led to the rejection of a plea offer, the Court held that
“a defendant must show that but for the ineffective advice, there is a reasonable
probability that [1] the plea offer would have been presented to the court ...; [2] the court
would have accepted [the plea];” and (3) the defendant was convicted of more serious
offense or received a less favorable sentence than he would have received under the
terms of the offer. Id. at 1385.
{¶18} A trial court is not bound to follow a sentence that has been jointly
recommended by the parties. See, State, ex rel. Duran v. Kelsey, 106 Ohio st.3d 58,
2005-Ohio-3674,
831 N.E.2d 430, ¶6. Clearly, in the case at bar the trial court
acknowledged the joint recommendation and chose not to follow it.
{¶19} The petition, the documentary evidence, the files, the transcript and the
records do not demonstrate that Curtis set forth sufficient operative facts to establish that
the trial court would have sentenced Curtis to an aggregate sentence of seven years, or
that the trial court was not advised of the joint sentence recommendation.
{¶20} Curtis’ First Assignment of Error is overruled.
II.
{¶21} In his Second Assignment of Error, Curtis argues that he was denied
effective assistance of counsel because trial counsel allegedly informed Curtis that
counsel does not allow his clients to plead no contest.
Muskingum County, Case No. CT2019-0001 8
{¶22} Another proper basis upon which to deny a petition for post-conviction relief
without holding an evidentiary hearing is res judicata. State v. Lentz, 70 Ohio St.3d 527,
530,
639 N.E.2d 784 (1994); State v. Phillips, 9th Dist. Summit No. 20692, 2002-Ohio-
823.
{¶23} Under 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 was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment. State v.
Szefcyk, 77 Ohio St.3d 93,
671 N.E.2d 233(1996), syllabus, approving and following State
v. Perry,
10 Ohio St.2d 175,
226 N.E.2d 104(1967), paragraph nine of the syllabus. It is
well settled that, "pursuant to res judicata, a defendant cannot raise an issue in a [petition]
for post-conviction relief if he or she could have raised the issue on direct appeal.” State
v. Reynolds,
79 Ohio St.3d 158, 161,
679 N.E.2d 1131(1997). Accordingly, "[t]o survive
preclusion by res judicata, a petitioner must produce new evidence that would render the
judgment void or voidable and must also show that he could not have appealed the claim
based upon information contained in the original record.” State v. Nemchik, 9th Dist.
Lorain No. CA98CA007279,
2000 WL 254908 (Mar. 8, 2000), at 3; see, also, State v.
Ferko, 9th Dist. Summit No. 20608,
2001 WL 1162835 (Oct. 3, 2001) at 5; State v. Phillips,
supra. The presentation of competent, relevant, and material evidence dehors the record
may defeat the application of res judicata. See State v. Smith,
17 Ohio St.3d 98, 101,
477 N.E.2d 1128, 1131–1132(1985), fn. 1.
Muskingum County, Case No. CT2019-0001 9
{¶24} Curtis’s argument was advanced in his first petition for post-conviction relief.
See, Defendant’s Petition for Post-Conviction Relief Pursuant to R.C. 2953.12 & 2953.23,
filed Nov. 23, 2016 at 9-11[Docket Number 63]. The claim is reiterated at paragraph four
of Curtis’ affidavit attached to his first petition. [Docket Number 63 at 13].
{¶25} Curtis failed to assign this contention as error in Curtis, I. Because Curtis
could have raised his argument in Curtis, l, it is barred in this proceeding by the doctrine
of res judicata.
{¶26} Curtis’ Second Assignment of Error is overruled.
III.
{¶27} In his Third Assignment of Error, Curtis maintains that there was
prosecutorial misconduct involved regarding whether or not there was a plea offer of
seven years.
{¶28} This issue of a plea offer was addressed in our disposition of Curtis’ First
Assignment of Error. Curtis has failed to set forth sufficient operative facts to establish
that the trial court would have sentenced Curtis to an aggregate sentence of seven years,
or that the trial court was not advised of the joint sentence recommendation.
{¶29} Curtis’ Third Assignment of Error is overruled.
IV.
{¶30} In his Fourth Assignment of Error, Curtis argues that the trial court abused
its discretion in overruling his successive petition for post-conviction relief.
{¶31} A petition for post-conviction relief “shall be filed no later than three hundred
sixty-five days after the date on which the trial transcript is filed in the court of appeals in
the direct appeal of the judgment of conviction” challenged by the petition. R.C.
Muskingum County, Case No. CT2019-0001 10
2953.21(A)(2). Because “a court may not entertain a petition filed after the expiration of”
that time period, “or a second petition or successive petitions for similar relief” by the
petitioner, the restriction is jurisdictional. (Emphasis sic.) R.C. 2953.23(A)(1). State v.
Apanovitch, 155 Ohio St.3d 358,
2018-Ohio-4744,
121 N.E.3d 351, ¶ 36.
{¶32} The “limited gateway” of R.C. 2953.23(A)(1) provides “specific, limited
circumstances” under which a court may hear a successive petition. Apanovitch at ¶ 22.
Curtis’ petition required a showing of both of the following:
(a) Either the 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, or, subsequent to the period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in the petitioner’s situation,
and the petition asserts a claim based on that right.
(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 or,
if the claim challenges a sentence of death that, but for constitutional error
at the sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
R.C. 2953.23(A)(1); State v. Conway, 10th Dist. Franklin No. 17AP-504, 2019-Ohio-2260,
¶14.
Muskingum County, Case No. CT2019-0001 11
{¶33} Curtis has not demonstrated he was entitled to have the trial court review
his successive petition for post-conviction relief because he did not satisfy both prongs of
R.C. 2953.23(A)(1), as required for the trial court to have jurisdiction over his claims.
{¶34} Curtis’s Fourth Assignment of Error is overruled.
{¶35} For the forgoing reasons, the judgment of the Muskingum County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur
