State v. Williams

[Cite as State v. Williams, 

.]




                       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, 

. 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, 

. 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, 

, 

.

       {¶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, 

, 

.

       {¶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, 

. 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, 

, citing State v. Calhoun, 

 (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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Case No. 13-20-17


3d Dist. Defiance No. 4-07-02, 

. “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, 

, ¶ 23. An abuse of discretion

suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 

 (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, 

. “‘[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, 

, 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, 

, 

, ¶ 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, 

. 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, 

 (1994), quoting State v. Cole, 

 (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, 

, 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, 

. 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, 

.

       {¶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, 

 (“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, 

. 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, 

 (“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, 

 (“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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