[Cite as State v. Davis,
2022-Ohio-4767.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1100
L-22-1101
Appellee
Trial Court No. CR0201701077
CR0201702181
v.
Anton Davis DECISION AND JUDGMENT
Appellant Decided: December 29, 2022
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Donald Gallick, for appellant.
…
OSOWIK, J.
{¶ 1} In this consolidated appeal, appellant, Anton Davis, appeals the March 31,
2022 judgment of the Lucas County Court of Common Pleas, denying appellant’s post-
sentence motion for a new trial and petition for postconviction relief filed October 14,
2021. For the reasons that follow, we find the trial court did not abuse its discretion in
denying the motion and therefore affirm the judgment.
{¶ 2} The historical facts of this case are brought forward from State v. Davis, 6th
Dist. Lucas Nos. L-19-1298, L-19-1299, 2020-Ohio-4539,
159 N.E.3d 331, ¶ 1-16:
On April 8, 2016, appellant’s vehicle was searched during a traffic
stop. Law enforcement seized a firearm and a green leafy substance, which
was submitted to the Toledo Police Forensic Laboratory for analysis. The
analysis found that the items contained controlled substances, specifically
MMB-CHMICA. On January 12, 2017, in case No. CR0201701077,
appellant was indicted on: one count of carrying concealed weapons in
violation of R.C. 2912.12(A) (2) and (F), a felony of the fourth degree; and
one count of trafficking in drugs in violation of R.C. 2925.03(A) (2)
and (C) (8) (g), a felony of the first degree, with a major drug offender
(“MDO”) specification attached pursuant to R.C. 2941.1410. At this point,
appellant retained counsel and on January 31, 2017, appellant entered a plea
of not guilty.
On March 9, 2017, the Toledo Police executed a search warrant at
appellant’s residence. Toledo Police seized over 800 grams of synthetic
marijuana and drug paraphernalia.
2.
On April 9, 2017, police made a traffic stop of a vehicle in Toledo,
Ohio. Appellant was a passenger in the vehicle. A search was conducted
and over 80 grams of synthetic marijuana was seized from the vehicle.
The items seized, from the two events mentioned above, were
submitted to the Toledo Police Forensic Laboratory, and were found to
contain controlled substances, specifically 5-Fluoro ADB and MMB-
FUBINACA. These substances are commonly known as the drug K2,
which is a Schedule I narcotic.
On April 19, 2017, appellant’s counsel filed a motion for
independent analysis of controlled substance. On June 27, 2017, the trial
court granted appellant’s motion to obtain independent testing of the
substance found during the search. However, the record lacks information
on whether appellant’s attorney arranged for the independent testing to be
completed.
On July 11, 2017, in case No. CR0201702181, appellant was
indicted on: one count of trafficking in drugs in violation of R.C.
2925.03(A)(2) and (C)(8)(E), a felony of the second degree; one count of
possession of a controlled substance in violation of R.C. 2925.11(A)
and (C)(8)(d), a felony of the second degree; one count of trafficking in a
controlled substance in violation of R.C. 2925.03(A)(2) and (C)(8)(f), a
3.
felony of the first degree; one count of possession of a controlled substance
in violation of R.C. 2925.11(A) and (C)(8)(d), a felony of the first degree;
three counts of trafficking in a controlled substance in violation of R.C.
2925.03(A)(2) and (C)(8)(g), felonies of the first degree, with MDO
specifications pursuant to R.C. 2941.1410 attached: three counts of
possession of a controlled substance in violation of R.C. 2925.11(A)
and (C)(8)(f), felonies of the first degree, with MDO specifications attached
pursuant to R.C. 2941.1410; one count of having weapons while under
disability in violation of 2923.13(A)(3) and (B), a felony of the third
degree; one count of illegal manufacture of drugs, in violation of R.C.
2925.04(A), (C)(1), (C)(2) and (E), a felony of the first degree; one count
of illegal assembly or possession of chemicals for the manufacture of drugs
in violation of R.C. 2925.041(A), (B), and (C), a felony of the second
degree; and one count of illegal use or possession of drug paraphernalia in
violation of R.C. 2925.14(C)(1) and (F), a misdemeanor of the fourth
degree. Appellant’s girlfriend at the time was indicted as his co-defendant
on similar charges, but those charges were later dropped.
On September 27, 2017, appellant entered two guilty pleas. In case
No. CR0201701077, appellant pled guilty to carrying concealed weapons
and trafficking in a controlled substance with an MDO specification
4.
attached. In exchange, appellee requested a nolle prosequi as to Count 3,
appellee’s recommendation that the prison sentence would not exceed 14
years when aggregated with case No. CR0201702181, and appellee’s
silence regarding judicial release. The plea agreement states:
I understand the nature of these charges and the possible defenses I
might have. I am satisfied with my attorney's advice, counsel and
competence. I am not now under the influence of drugs or alcohol. No
threats have been made to me. No promises have been made except as part
of this plea agreement, stated entirely as follows: The State of Ohio will
request nolle prosequi as to count three. The State of Ohio will recommend
that the prison sentence not exceed 14 years aggregated with CR-17-2181.
The State will remain silent regarding judicial release.
In case No. CR0201702181, appellant pled guilty to two counts of
trafficking in a controlled substance; in exchange, appellee requested a
nolle prosequi as to all other counts and all specifications, appellee’s
recommendation that the prison sentence would not exceed 14 years
aggregated with case No. CR0201701077, and appellee’s silence regarding
judicial release. The plea agreement appellant signed states:
I understand the nature of these charges and the possible defenses I
might have. I am satisfied with my attorney’s advice, counsel and
5.
competence. I am not now under the influence of drugs or alcohol. No
threats have been made to me. No promises have been made except as part
of this plea agreement, stated entirely as follows: The State of Ohio will
request nolle prosequi as to count 2, 3, 4, the specification attached to count
5, counts 6, 7, 8, 9, 10, and their specifications, and count[s] 11, 12, 13, 14.
The State of Ohio will recommend that the prison sentence not exceed 14
years aggregated with CR-17-1077. The State will remain silent regarding
judicial release.
At the plea hearing on September 27, 2017, appellant indicated that
he could read, write, understand English, and that he was not under the
influence of anything that would affect his ability to understand the
proceedings. Appellant confirmed he understood the plea he was entering
and the maximum prison terms and fines he could face. Appellant verified
that he understood that his guilty plea was a complete admission of guilt.
The trial court explained appellant’s constitutional rights and appellant
indicated he understood by entering the plea, and he waived them. Upon
questioning by the trial court, appellant stated that he was satisfied with his
attorney’s advice and competence, that his attorney had represented him
“very well,” and that it was in his best interest to enter the plea agreement.
Appellant confirmed no threats had been made in order to induce him into
6.
entering the plea. The trial court asked if there were any other
representations made to defendant to get him to enter the plea. Appellant
explained that he discussed the question with his attorney, stated that he
had enough time to discuss the question with his attorney, and answered in
the negative. Appellant agreed that he had an opportunity to review the plea
forms with his attorney and that he signed them. Appellant stated he did not
have any questions about anything that had taken place. The trial court
accepted the pleas and found appellant guilty.
On October 26, 2017, appellant filed a pro se motion to withdraw his
plea indicating that: “the plea bargain I took is unacceptable for the crime
and is cruel. There are things in the plea that I admitted to doing that I did
not do.”
On December 5, 2017, appellant’s counsel made a motion to
withdraw from representation of appellant, which was granted. Appellant
was then appointed new counsel on December 12, 2017, and a hearing on
his motion to withdraw his plea was scheduled for January 10, 2018. At the
January 10, 2018 hearing, appellant withdrew his motion to withdraw his
guilty plea in open court.
On February 20, 2018, the trial court sentenced appellant, on both
case numbers, to a mandatory term of two years in prison on both counts in
7.
case No. CR0201701077, one year on the carrying concealed weapons
count, and a mandatory term of 11 years for the trafficking in a controlled
substance charge with a MDO specification attached, to be served
concurrently. In the aggregate, the total sentence appellant must serve was
13 mandatory years.
In May 2019, appellant retained new counsel who on behalf of
appellant, filed a second motion to withdraw appellant’s plea on May 3,
2019. After approved extensions, appellee filed their response on October
17, 2019. On November 15, 2019, the trial court denied appellant’s motion
to withdraw his plea.
This appeal was filed on December 18, 2019, to address whether the
trial court erred in denying appellant’s motion to withdraw his guilty plea.
In that appeal, Davis argued that the trial court erred by denying his post-
sentence motion to withdraw his guilty plea because the trial court failed to
hold an evidentiary hearing regarding his motion; the plea was not
knowingly, voluntarily, or intelligently made; he had ineffective assistance
of counsel; and he was coerced into entering the guilty pleas.
{¶ 3} In State v. Davis, supra, we found that Davis’ claims were untimely filed
and further, barred by the doctrine of res judicata. We found no error in the trial court’s
8.
decision denying appellant’s post-sentence motion to withdraw his guilty plea without a
hearing.
{¶ 4} On October 14, 2021, Davis filed a motion for a new trial and a petition for
postconviction relief with the trial court.
{¶ 5} In his petition, he presented five claims for relief.
FIRST CLAIM: DAVIS SUFFERED A DEPRIVATION OF
THE CONSTITUTIONAL RIGHT TO DUE PROCESS BECAUSE
THE SENTENCING JUDGE PREVIOUSLY REPRESENTED HIM AS
HIS ATTORNEY.
SECOND CLAIM: DAVIS SUFFERED A DEPRIVATION OF
THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
BECAUSE HE WAS REPEATEDLY GIVEN ERRONEOUS LEGAL
ADVICE.
THIRD CLAIM: DAVIS INCURRED INEFFECTIVE
ASSISTANCE OF COUNSEL DUE TO NEGLECT IN THE YEARS
2019, 2020, AND 2021.
FOURTH CLAIM: DAVIS HAS BEEN WRONGFULLY-
CONVICTED DUE TO FALSE TESTIMONY FROM A WITNESS.
9.
FIFTH CLAIM: DAVIS IS WRONGFULLY-CONVICTED
BECAUSE HE DID NOT POSSESS NOR EXCHANGE ILLEGAL-
DRUGS.
{¶ 6} On March 31, 2022 the trial court denied Davis’ petitions for postconviction
relief. In denying appellant’s motions, the trial court found the petitions to be untimely
filed pursuant to R.C. 2953.21(A)(1) and further, barred under the doctrine of res
judicata. The court further found that the claims of ineffective assistance of counsel were
not cognizable in postconviction proceedings under R.C. 2953.21.
{¶ 7} In his appeal to this court in this instance, appellant presents three
assignments of error for our review.
{¶ 8} In his first two assignment of error, Davis asserts:
THE TRIAL COURT ERRED BY FAILING TO HOLD A POST-
CONVICTION HEARING CONCERNING POTENTIAL STRUCTURAL
ERROR CAUSED BY APPELLANT’S ORIGINAL TRIAL JUDGE
PREVIOUSLY SERVING AS HIS DEFENSE ATTORNEY.
THE TRIAL COURT ABUSED ITS DISCRETION BY
DISMISSING THE POST-CONVICTION PETITIONWITHOUT A
HEARING, AS THE PROFFERED EXHIBITS, TRANSCRIPT AND
AFFIDAVITS WARRANTED AN EVIDENTIARTY HEARING.
10.
{¶ 9} Since these two assignments are rooted in the same fundamental argument
that the trial court abused its discretion in failing to hold a hearing on his petition, we will
address them together.
TIMELINESS
{¶ 10} R.C. 2953.21(A)(1)(a)(i) dictates that a petition for postconviction relief
must be filed no later than 365 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 … except as
provided in R.C. 2953.23. Here, the final judgment entry was February 22, 2018, and
Davis had 30 days to appeal that order, i.e., until March 22, 2018. Davis’ petition in this
instance was not filed until October 14, 2021--- more than 365 days after the transcripts
were filed. His petition was, therefore, untimely.
{¶ 11} Nevertheless, under 2953.23, a court may entertain an untimely petition
filed after the 365-day deadline set forth in R.C. 2953.21(A)(1)(a)(i) under the following
circumstances:
(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
11.
federal or state right that applies retroactively to persons in the petitioner’s
situation, and the petition asserts a claim based on that right. [and]
(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.
{¶ 12} Davis argues that he was unavoidably prevented from discovery of the facts
upon which he must rely to present his claims for relief.
{¶ 13} However, he submits affidavits concerning facts that were obviously
discoverable at the time of his direct appeal. Wanda Davis, appellant’s mother, alleges
that she did not have access to the journal entries to establish that the trial court
represented Davis in a case in 2003. However, the exhibit submitted to the trial court
indicates that it was file-stamped in the Office of Clerk of Courts of Lucas County on
March 4, 2003. This fact was easily discoverable as it was a matter of public record
available 14 years prior to the indictment in this case in April, 2017.
RES JUDICATA
{¶ 14} At the outset, we will note that a defendant is not automatically entitled to
an evidentiary hearing on a postconviction relief petition. State v. Jackson, 64 Ohio St.2d
12.
107, 110,
413 N.E.2d 819 (1980). R.C. 2953.21(D) provides that, before granting a
hearing on a petition … the court shall determine whether there are substantive
grounds for relief. Thus, Davis bears the initial burden of providing evidence that
demonstrates a cognizable claim of constitutional error. State v. Ibrahim, 10th Dist.
Franklin No. 14AP-355,
2014-Ohio-5307, ¶ 9.
{¶ 15} Because the burden is the petitioner, a postconviction relief petition may be
denied without an evidentiary hearing where the petition and supporting materials do not
demonstrate that the petitioner set forth sufficient operative facts to establish substantive
grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 282-83,
714 N.E.2d 905 (1999).
{¶ 16} Review of this question is mixed. State v. Barber, 10th Dist. Franklin No.
16AP-172, 2017-Ohio-9257, ¶ 17, 20; cf. State v. Kane, 10th Dist. Franklin No. 16AP-
781,
2017-Ohio-7838, ¶ 9.
{¶ 17} We review the factual findings of the trial court for compliance with
the Calhoun analysis and also for whether the trial court abused the “sound exercise of
discretion” permitted by Calhoun. Calhoun at 284; State v. Campbell, 10th Dist.
Franklin No. 03AP-147,
2003-Ohio-6305, ¶ 14.
{¶ 18} We review questions of law de novo. Barber at ¶ 20; Kane at ¶ 9. A
particular question of law for de novo review is whether a petition for postconviction
relief should have been dismissed without a hearing because it was barred by the doctrine
of res judicata. Ibrahim at ¶ 10.
13.
{¶ 19} In criminal cases, res judicata generally bars a defendant from litigating
claims in a proceeding subsequent to the direct appeal if he or she raised or could have
raised the issue at the trial that resulted in that judgment of conviction or on an appeal
from that judgment. State v. Jackson, 141 Ohio St.3d 171,
2014-Ohio-3707,
23 N.E.3d
1023, ¶ 92.
{¶ 20} Therefore, notwithstanding the fact that a postconviction petition is a quasi-
civil proceeding, constitutional issues cannot be considered in postconviction proceedings
where those issues should have been raised on direct appeal and where the issues may be
fairly determined without resort to evidence dehors the record. State v. Cole, 2 Ohio
St.3d 112,
443 N.E.2d 169 (1982), syllabus; State v. Nichols,
11 Ohio St.3d 40, 41-42,
463 N.E.2d 375 (1984).
{¶ 21} In support of his first assignment, counsel presents no arguments other than
a suggestion “that a lawyer has the potential to discover shockingly negative information
from his/her criminal client” and that when that lawyer presides over a criminal case
involving a former client, it creates the appearance of a conflict-of-interest. Appellant
does acknowledge that there is a minimal likelihood of success based upon these
arguments, citing In re Disqualification of Ward, 77 Ohio St. 3d 1233, 1234,
674 N.E.2d
349 (1995).
{¶ 22} In this case, there is no argument nor any indication from the record before
us of any personal bias from the judge toward appellant.
14.
{¶ 23} In fact, appellant states in his brief that “appellant cannot point to any bias
which occurred.” Davis did not proffer any evidence or indication of bias when he
presented his petition for relief before the trial court.
{¶ 24} Appellant has not presented any reason why his allegation of bias could not
have been brought in his direct appeal. There is no indication from the record before us
of any personal bias from the judge toward appellant. Thus, appellant was not denied
effective assistance of counsel, and this argument is without merit. See State v. Carles,
6th Dist. No. WD-05-0105, 2006-Ohio-3047, ¶ 47.
GUILTY PLEA
{¶ 25} Davis also submits affidavits of his personal friends in which they each
“recant” testimony. However, the record before this court is devoid of any testimony in
this case. On September 27, 2017, appellant entered two guilty pleas. In case No.
CR0201701077, appellant pled guilty to carrying concealed weapons and trafficking in a
controlled substance with an MDO specification attached. In exchange, appellee
requested a nolle prosequi as to Count 3, appellee’s recommendation that the prison
sentence would not exceed 14 years when aggregated with case No. CR0201702181, and
appellee’s silence regarding judicial release.
{¶ 26} Thus, the self-serving affidavits contradicting facts already admitted to by
the appellant does not present constitutional error at trial where no reasonable factfinder
would have found the petitioner guilty of the offense of which the petitioner was
15.
convicted. The substance that was found and tested by the Toledo Police Forensic
Laboratory and was found to contain controlled substances, specifically 5-Fluoro ADB
and MMB-FUBINACA. These substances are commonly known as the drug K2, which
is a Schedule I narcotic. Davis admitted to the truth of these factual allegations.
{¶ 27} As the Supreme Court stated in Menna v. New York 423 U.S. 61, 62-63, fn.
2,
96 S.Ct. 241,
46 L.Ed.2d 195(1975):
... a counseled plea of guilty is an admission of factual guilt so reliable that,
where voluntary and intelligent, it quite validly removes the issue of factual
guilt from the case. In most cases, factual guilt is a sufficient basis for the
State's imposition of punishment. A guilty plea, therefore, simply renders
irrelevant those constitutional violations not logically inconsistent with the
valid establishment of factual guilt and which do not stand in the way of
conviction, if factual guilt is validly established. State v. Pennington, 2002-
Ohio-2375, 2nd Dist., Clark County, No. 2001 CA 1.
{¶ 28} Other courts have previously held that where a defendant enters a guilty
plea, R.C. 2953.23(A)(1)(b)—requiring a defendant to establish by clear and convincing
evidence that no reasonable factfinder would have found him guilty but for constitutional
error at trial—does not apply. See, e.g., State v. Moore, 8th Dist. Cuyahoga No. 82734,
2003-Ohio-4819, ¶ 16 (“Appellant pled guilty to drug possession and no trial occurred;
therefore, [R.C. 2953.23(A) ] does not apply.”); State v. Halliwell,
134 Ohio App.3d 730,
16.
735,
732 N.E.2d 405 (8th Dist.1999) (defendant could not satisfy the requirement that
“but for constitutional error at trial, no reasonable fact finder would have found the
petitioner guilty of the offense of which the petitioner was convicted” where he was
convicted “pursuant to his plea of guilty, not by reason of trial”); State v. Hairston, 10th
Dist. Franklin No. 13AP-225,
2013-Ohio-3834, ¶ 8 (where appellant was convicted
pursuant to his guilty plea, not a trial, “the exception found in R.C. 2953.23(A)(1) does
not allow the trial court to consider appellant’s … petition”); State v. Demyan, 9th
Dist. Lorain No. 11CA0100096,
2012-Ohio-3634, ¶ 4 (because defendant pleaded guilty
instead of going to trial, he could not demonstrate that, “but for constitutional error at
trial, no reasonable factfinder would have found [him] guilty”); State v. Clark, 5th Dist.
Stark No. 2007 CA 00206,
2008-Ohio-194, ¶ 18 (appellant cannot satisfy the requirement
that but for constitutional error no reasonable factfinder would have found the petitioner
guilty of the offense at trial because appellant was convicted based on his entry of a
guilty plea to the charges in the indictment); State v. Pough, 11th Dist. Trumbull No.
2003-T-0129,
2004-Ohio-3933, ¶ 17 (“Where a petitioner’s conviction results from a
guilty plea rather than trial, R.C. 2953.23(A)(1)(b) does not apply”); see also State v.
Pepper, 5th Dist. Ashland No.
13 COA 019,
2014-Ohio-364, ¶ 26.
{¶ 29} By entering a plea of guilty, the accused is not simply stating that he did
the discrete acts described in the indictment; he is admitting guilt of a substantive
crime. State v. Barnett, 73 Ohio App.3d 244, 248,
596 N.E.2d 1101 (2d Dist.1991),
17.
quoting United States v. Broce,
488 U.S. 563, 570,
109 S.Ct. 757,
102 L.Ed.2d 927
(1989). Therefore, Davis has no basis to claim that a reasonable factfinder would not
have found him guilty but for constitutional error at trial. State v. Cool, 9th Dist. Summit
No. 24518,
2009-Ohio-4333, ¶ 14; see also State v. Estridge, 2d Dist. Greene No.2005
CA 136,
2006-Ohio-5310, ¶ 8.
{¶ 30} For the foregoing reasons, we find appellant’s first two assignments of
error to be not well-taken and DENIED.
{¶ 31} Davis presents a third assignment of error:
THE TRIAL COURT’S ORDER OF DISMISSAL ERRONEOUSLY DECLARED
THAT APPELLANT FAILED TO PRESENT EVIDENCE OUTSIDE THE RECORD
AND/OR NEW EVIDENCE SHOULD HAVE BEEN SUBMITTED TO THE COURT OF
APPEALS FIRST.
{¶ 32} Davis unartfully repeats his arguments in support of his first two
assignments. The trial court found that the facts alleged in the supporting affidavits were
barred by res judicata by virtue of the fact that the issues could have been raised in the
direct appeal.
{¶ 33} Appellant attempts to contort the finding of the trial court to mean that any
new evidence should have been submitted on appeal. Davis then admits that this
argument is itself absurd in that “new evidence cannot be submitted on appeal.”
18.
{¶ 34} We find no merit in this circuitous argument. For the reasons previously
articulated, we find that the arguments raised by the affidavits were barred by res judicata
and by virtue of the guilty plea entered by Davis.
{¶ 35} Therefore, we find Davis’ third assignment of error to be found not well-
taken and denied.
CONCLUSION
{¶ 36} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24(A)(4).
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.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
19.
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/.
20.
