[Cite as State v. Thomas,
2021-Ohio-407.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1063
Appellee Trial Court No. CR0201701655
v.
Deonte Lamour Thomas DECISION AND JUDGMENT
Appellant Decided: February 12, 2021
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Carly M.
Edelstein, Assistant Public Defender, for appellant.
…
OSOWIK, J.
{¶ 1} This is an appeal of a February 25, 2020 judgment of the Lucas County
Court of Common Pleas, denying appellant’s petition for postconviction relief. The
denial was principally grounded on the basis of res judicata, with secondary timeliness
considerations.
{¶ 2} Appellant’s prior direct appeal was found to be without merit by this court.
State v. Thomas, 6th Dist. Lucas No. L-17-1266, 2019-Ohio-1916. For the reasons set
forth below, this court likewise affirms the judgment of the trial court.
{¶ 3} Appellant, Deonte Lamour Thomas, sets forth the following two
assignments of error:
I. The trial court erred when it determined that [appellant’s]
postconviction petition was barred by the statute of limitations.
II. The trial court erred by applying the doctrine of res judicata to
bar [appellant’s] postconviction grounds for relief.
{¶ 4} The following undisputed facts are relevant to this appeal. On March 17,
2017, appellant showed up in the middle of the night at the residence of one of the
women with whom appellant had been sporadically involved. Appellant maintained
simultaneous, intimate relationships with several different women.
{¶ 5} The record reflects that the relationship between appellant and the victim
was quite volatile. Appellant was in a highly agitated, unrestrained state when he went to
the victim’s residence.
{¶ 6} Appellant became enraged upon seeing a video that the victim posted to
Snapchat of a bonfire that she hosted for some friends and family members at her
residence. Appellant had not been included in the gathering. Appellant’s perceived
slight at these events led to the commission of the offenses from which this appeal arises.
2.
{¶ 7} The record reflects that over the course of their involvement, appellant had
burned the victim, given her black eyes, pistol whipped the victim, and struck her on
multiple occasions.
{¶ 8} Upon arrival at the victim’s residence in the middle of the night, after the
bonfire had concluded and the victim had gone to sleep, appellant forcibly kicked in the
front door. Appellant went into the victim’s bedroom and brutally assaulted her,
physically and sexually, for approximately six hours.
{¶ 9} During the course of the attack, appellant repeatedly choked the victim until
she lost consciousness. At one point, upon the victim regaining consciousness, appellant
took a water soaked towel and smothered the victim’s face with it, suffocating and
choking her until she vomited blood. Subsequent to the above-described physical attack,
which debilitated the victim, appellant raped the victim.
{¶ 10} On April 20, 2017, appellant was indicted on one count of aggravated
burglary, in violation of R.C. 2911.11, a felony of the first degree, one count of felonious
assault, in violation of R.C. 2903.11, a felony of the second degree, one count of
kidnapping, in violation of R.C. 2905.01, a felony of the first degree, and one count of
rape, in violation of R.C. 2907.02, a felony of the first degree.
{¶ 11} A four-day jury trial was conducted. Appellant was found guilty on all
counts. On September 28, 2017, appellant was sentenced to a 16 year total term of
incarceration.
3.
{¶ 12} On October 26, 2017, a direct appeal was filed. On appeal, appellant set
forth numerous substantive claims, including: prejudice from a motion to exclude denial;
ineffective assistance of counsel; judicial misconduct; error in denying appellant’s
App.R. 29 motion for acquittal; and the verdict being against the manifest weight of the
evidence.
{¶ 13} On May 17, 2019, this court denied appellant’s direct appeal in its entirety.
This court determined, in relevant part, “[W]e do not find that the trial court abused its
discretion in admitting the evidence of prior bad acts … [Appellant] identifies no basis
to find the necessary prejudice to reverse the verdict based upon ineffective assistance of
counsel … [T]he trial court properly denied [appellant’s] motion for acquittal …
[W]e are not convinced the evidence weighs against conviction, or that the jury clearly
lost its way.” Thomas, 6th Dist. Lucas No. L-17-1266, 2019-Ohio-1916, at ¶ 70.
{¶ 14} On February 20, 2019, appellant filed a petition for postconviction relief.
On February 25, 2020, subsequent to this court’s May 17, 2019 denial of appellant’s
direct appeal, the trial court likewise denied appellant’s petition for postconviction relief.
{¶ 15} The trial court held in relevant part, “All of the claims now raised by
petitioner are precluded and barred from consideration by the doctrine of res judicata.
All of these claims could well have been presented as part of petitioner’s direct appeal of
his convictions. As such, they cannot be considered now by this court.” (Emphasis
added).
4.
{¶ 16} In addition, as particularly relevant to the proffered basis of this appeal, the
trial court further mentioned, at the end of the decision, a further determination that the
petition had been untimely filed. This appeal ensued.
{¶ 17} In appellant’s first assignment of error, appellant maintains that the trial
court erred in the above-referenced determination that appellant’s petition for
postconviction relief was not timely filed. We note that appellee concedes to the
propriety of appellant’s first assignment of error.
{¶ 18} Although appellee acknowledges that the trial erred on timeliness, more
importantly, appellee simultaneously points out that, “[T]he State does not dispute that
[appellant] filed his petition in accordance with the time periods required by R.C.
2953.23 … A finding that a petition was untimely does not require reversal when a
petition was properly denied on other grounds. State v. Brown, 4th Dist. Scioto No.
18-CA-3829, 2018-Ohio-4991, ¶ 12.” (Emphasis added).
{¶ 19} Accordingly, appellee concedes, and we likewise concur, that appellant’s
petition was not untimely filed. However, we further note that appellee correctly
conveyed that a petition denial can survive an error on timeliness, if it was properly
denied on other legitimate grounds.
{¶ 20} With that being said, we find appellant’s first assignment of error well-
taken.
5.
{¶ 21} In appellant’s second assignment of error, appellant asserts that the trial
court erred in denying appellant’s petition for postconviction relief on the basis of res
judicata. We do not concur.
{¶ 22} As set forth by the Ohio Supreme Court, “We hold that 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 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. Gondor, 112 Ohio St.3d 377,
860 N.E.2d 77, 2006-
Ohio-6679, ¶ 58. (Emphasis added).
{¶ 23} In addition, as held in Gondor at ¶ 47, “In the interest of providing finality
to judgments of conviction, courts construe the post-conviction relief allowed under R.C.
2953.21(A)(1) narrowly.”
{¶ 24} It is well-established that an abuse of discretion requires more than
showing an error of law or judgment. It must be demonstrated that the trial court’s action
was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217,
450 N.E.2d 1140 (1983).
{¶ 25} In conjunction with the above, Ohio courts consistently affirm the
applicability of res judicata to petitions for postconviction relief. As set forth in State v.
Anderson, 4th Dist. Scioto No. 19-CA-3891, 2020-Ohio-6912, ¶ 8, “[T]he doctrine of res
judicata is generally applicable to petitions for post-conviction relief in that the [res
judicata] doctrine bars claims for post-conviction relief based on allegations which the
6.
petitioner raised, or could have raised, in the trial court or on direct appeal.” (Emphasis
added).
{¶ 26} In support of the second assignment of error, appellant asserts that the bulk
of the subject trial court judgment, denying appellant’s petition on the basis of res
judicata, should be construed as mere dicta.
{¶ 27} Appellant maintains, “[T]he court believed it was jurisdictionally barred
from considering the petition’s merits, its discussion of res judicata is mere dicta.”
Therefore, appellant maintains that the substantive basis of the petition’s denial was
timeliness, not res judicata. We do not concur.
{¶ 28} Contrary to appellant’s position, the content of the February 25, 2020
judgment of the trial court reflects that the clear bulk of the analysis underpinning the
denial of the petition was centered upon res judicata.
{¶ 29} The trial court held, in relevant part, “All of the claims now raised by
petitioner are precluded and barred from consideration by the doctrine of res judicata
… Moreover, R.C. 2953.21(A)(2) requires that a petition for post conviction relief be
filed be filed no later than 365 days after the date on which the trial transcript is filed.”
(Emphasis added).
{¶ 30} The language clearly shows that the trial court primarily relied upon res
judicata, and only secondarily upon timeliness, in reaching the subject petition denial
decision.
7.
{¶ 31} As discussed above, analogous precedent supports the propriety of the
affirmation of a postconviction relief petition denial incorrectly found to be untimely, if it
is found to have been properly denied on other grounds. Brown, 4th Dist. Scioto No.
18-CA-3829, 2018-Ohio-4991, at ¶ 12.
{¶ 32} Given that the res judicata considerations were not mere dicta, as argued by
appellant, we now turn our focus to appellant’s alternative claim in support of this appeal
that, “The second assignment of error [from appellant’s direct appeal, ineffective
assistance of counsel] is relevant to this [the instant] appeal.”
{¶ 33} It is well-established the demonstration of ineffective assistance of counsel
requires establishing specified missteps of trial counsel, but for which the outcome of the
trial would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.E.2d 674 (1984).
{¶ 34} In primary support of appellant’s second assignment of error, appellant
asserts that, “These ineffective assistance of counsel claims could not have been
presented effectively to this Court on direct appeal because they are based on evidence
outside of the record.”
{¶ 35} This position appears to arise from this court’s recent holding that, “To
avoid dismissal of a petition under res judicata grounds, the petitioner must identify
competent, relevant, and material evidence outside the trial record supporting their
claims.” (Emphasis added). State v. Hill, 6th Dist. Lucas No. L-19-1248, 2020-Ohio-
3824, ¶ 6.
8.
{¶ 36} Appellant alleges that additional supporting indicia of his failed direct
appeal claim of ineffective assistance of counsel is outside of the trial record of evidence,
but would have been sufficient to establish ineffective assistance of counsel, and thereby
would enable appellant to avoid a res judicata dismissal.
{¶ 37} We have considered appellant’s specific claimed additional examples,
allegedly demonstrating the ineffective assistance of trial counsel. We remain
unconvinced.
{¶ 38} Appellant asserts that had trial counsel done certain things differently:
such as ensure the admission into evidence of documentation reflecting appellant’s
payment of some household bills at the residence of the victim; introduce into evidence a
sexually explicit video of consensual relations between appellant and the victim;
obtaining an expert witness to demonstrate that the victim talked to appellant on his
mobile phone for a period of 17 minutes on the day of the incident; and introducing
evidence that a witness had communicated with the victim on her mobile phone rather
than through Facebook, that the outcome of the case would have been different. We do
not concur.
{¶ 39} We find that even if, assuming arguendo, each of the specific instances of
alleged ineffective assistance of counsel resulting in the specific items or information
being absent from the trial record, had transpired precisely in appellant’s preferred way
for purposes of the trial record, appellant has nevertheless failed to demonstrate that he
would not have been convicted of the offenses.
9.
{¶ 40} Appellant has not presented evidence demonstrating a different outcome
had the trial court record included additional evidence of the already known involvement
of the parties, such as appellant’s payment of certain bills for the victim, a recording of
consensual sexual relations between appellant and the victim, documentation of
additional mobile phone communications between the parties, additional evidence of the
victim’s known equivocation regarding appellant, evidence that the victim sent
appellant’s other known paramour a vulgar message, or any of the other myriad examples
cited by appellant in support of the second assignment of error.
{¶ 41} Accordingly, we find that appellant has failed to present additional
evidence, regardless of origins, establishing ineffective assistance of counsel, so as to
arguably avoid the applicability of res judicata to the underlying petition. We further find
that the trial court’s denial of the petition was supported by credible evidence of the
applicability of res judicata. As such, the denial was not unreasonable, arbitrary or
unconscionable.
{¶ 42} As set forth in detail above, the granting of the first assignment regarding
timeliness does not operate to negate the trial court’s proper denial of appellant’s
postconviction petition on the legitimate grounds of res judicata.
{¶ 43} Wherefore, we find appellant’s second assignment of error not well-taken.
10.
{¶ 44} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
11.
