[Cite as State v. Smith,
2023-Ohio-447.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111472
v. :
DARRYL SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 16, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-620144-A and CR-18-630341-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Ochocki, Assistant Prosecuting
Attorney, for appellee.
Darryl Smith, pro se.
LISA B. FORBES, J.:
Darryl Smith (“Smith”), acting pro se, appeals from the trial court’s
denial of his “post conviction petition to vacate conviction and sentence
(R.C. 2953.21) and i.e. motion to vacate guilty pleas (criminal rule 32.1).” After
reviewing the facts of the case and pertinent law, we affirm the lower court’s
judgment.
On March 29, 2018, Smith pled guilty to various felonies in multiple
cases, including attempted aggravated arson in Cuyahoga C.P. No. CR-17-620144-
A. On December 3, 2018, Smith pled guilty to failure to comply in Cuyahoga C.P.
No. CR-18-630341-A. The court found Smith to be in violation of his community-
control sanctions in CR-17-620144-A because of his guilty plea in CR-18-630341-A.
On April 16, 2020, this court affirmed Smith’s convictions and
subsequent prison sentence in the two aforementioned cases. State v. Smith, 8th
Dist. Cuyahoga No. 108121, 2020-Ohio-1492 (“Smith I”). In Smith I, Smith raised
six assignments of error, including, pertinent to the appeal in the case at hand, a
challenge to the trial court’s acceptance of his guilty pleas in CR-18-630341-A and a
challenge to the finding that he violated his community-control sanctions in CR-17-
620144-A. This court found that the trial court complied with Crim.R. 11 in
accepting Smith’s guilty plea, and “Smith failed to show any prejudice resulting from
allegations that his rights were violated.” Id. at ¶ 20. Additionally, this court found
that “Smith suffered no due process deprivation regarding his community control
sanctions violation ….” Id. at ¶ 11.
On June 7, 2021, Smith filed a “post conviction petition to vacate
conviction and sentence (R.C. 2953.21) and i.e. motion to vacate guilty pleas
(criminal rule 32.1)” in both cases noted above. The trial court summarily denied
these motions on June 14, 2021, and it is from these orders that Smith appeals,
raising the following assignments of error:
I. The trial court’s extraction of guilty pleas did not comply with
Criminal Rule 11-C and did not properly advise appellant of the
correct sentencing penalties, and the plea was obtained by use of
a phony promised plea agreement, all of which is contrary to
controlling authorities of law and the Sixth and Fourteenth
Amendments of the U.S. Constitution.
II. The state, the prosecutors, attorney and the trial court
intentionally concealed, hid, and suppressed actual innocence
crime videos and actual innocence exculpatory police evidence
and eyewitnesses which is contrary to the Sixth and Fourteenth
Amendments of the U.S. Constitution, Criminal Rule 16 and
R.C. 2921.12.
III. Probation revocation, violations of manditory [sic] procedure
rights[.] The trial court totally denied all of defendants
manditory [sic] procedure in arbitrary revocation of probation
without any hearing and without appointed counsel and;
falsified court records to conceal the procedure violations
misconduct, all of which violates Criminal Rule 32.3, controlling
authorities of law and due process rights provided in the Fifth,
Sixth, and Fourteenth Amendments of the U.S. Constitution.
I. Law and Analysis
A. Pro Se Litigants
The Ohio Supreme Court has “repeatedly declared that ‘pro se
litigants … must follow the same procedures as litigants represented by counsel.’
State ex rel. Gessner v. Vore, 123 Ohio St.3d 96,
2009-Ohio-4150,
914 N.E.2d 376,
¶ 5.” State ex rel. Neil v. French,
153 Ohio St.3d 271,
2018-Ohio-2692,
104 N.E.3d
764, ¶ 10. Furthermore, Ohio courts have consistently held that pro se litigants “are
presumed to have knowledge of the law and legal procedure and … they are held
to the same standard as litigants who are represented by counsel.” Sabouri v. Ohio
Dept. of Job & Family Servs.,
145 Ohio App.3d 651, 654,
763 N.E.2d 1238 (10th
Dist.2001).
B. Standard of Review — Postconviction-Relief Petition
Appellate courts review a trial court’s ruling on a petition for
postconviction relief under an abuse of discretion standard. State v. Watts, 8th Dist.
Cuyahoga No. 108296, 2019-Ohio-4356, ¶ 11. See also State v. Gondor,
112 Ohio
St.3d 377,
2006-Ohio-6679,
860 N.E.2d 77, ¶ 58 (holding 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”).
C. Postconviction Relief and Res Judicata
A postconviction proceeding is not an appeal of a criminal conviction.
Rather, it is a collateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d
399,
639 N.E.2d 67 (1994). R.C. 2953.21 allows defendants who have been convicted
of criminal offenses to file petitions for postconviction relief, “asking the court to
vacate or set aside the judgment or sentence ….” Petitioners must state “all
grounds for relief” upon which they rely, and they waive all other grounds not so
stated. R.C. 2953.21(A)(4).
However, petitions for postconviction relief may be denied under the
doctrine of res judicata. “A petition for postconviction relief is not the proper vehicle
to raise issues that were or could have been determined on direct appeal.” State v.
Hale, 8th Dist. Cuyahoga No. 103654, 2016-Ohio-5837, ¶ 8, citing State v. Perry,
10
Ohio St.2d 175,
226 N.E.2d 104 (1967). See also State v. Montgomery, 8th Dist.
Cuyahoga No. 99452,
2013-Ohio-4193, ¶ 42 (“The usual formulation of res judicata
in postconviction proceedings is that it bars the assertion of claims against a valid,
final judgment of conviction that have been raised or could have been raised on
appeal.”).
Postconviction-relief petitions may also be denied “when the record,
including the dialogue conducted between the court and the defendant pursuant to
Crim.R. 11, indicates that the petitioner is not entitled to relief and that the petitioner
failed to submit evidentiary documents containing sufficient operative facts to
demonstrate that the guilty plea was coerced or induced by false promises.” State v.
Kapper, 5 Ohio St.3d 23, 38,
448 N.E.2d 823 (1983). In other words,
postconviction-relief petitions are properly denied when “the petition, the
supporting affidavits, the documentary evidence, the files, and the records do not
demonstrate that petitioner set forth sufficient operative facts to establish
substantive grounds for relief.” State v. Calhoun,
86 Ohio St.3d 279, 291,
714 N.E.2d
905 (1999).
D. Analysis
In Smith’s first assignment of error, he argues that the trial court did
not comply with Crim.R. 11 when it accepted his guilty plea. This argument was
reviewed and rejected on the merits by this court in Smith I.
The court paid special attention to Smith’s hearing impairment by
having the attorneys speak louder and stand closer to Smith and
repeating things so Smith understood them. The court also reminded
Smith that his guilty plea was a violation of his community control
sanctions. We find no … violations of Smith’s Crim.R. 11 rights.
Furthermore, Smith failed to show any prejudice resulting from
allegations that his rights were violated.
Smith I at ¶ 20.
Because Smith did not raise any issues in his postconviction-relief
petition that had not been addressed in Smith I, this argument is barred by the
doctrine of res judicata, and Smith’s first assignment of error is overruled.
In Smith’s third assignment of error, he argues that the trial court
“totally denied” his rights by revoking his community-control sanctions, which he
refers to as “probation revocation.” This argument was also reviewed and rejected
on the merits by this court in Smith I.
Upon review of the record, we find that the court held community
control sanctions violation hearings on December 3, 2018 and
January 7, 2019; Smith was present and represented by counsel at
these hearings; Smith was properly notified of the charges against him;
Smith acknowledged on the record that his guilty plea to failure to
comply necessarily resulted in a violation of his community control
sanctions; and the court made a finding that Smith violated his
community control sanctions. Accordingly, we find that Smith suffered
no due process deprivation regarding his community control sanctions
violation, and his first assigned error is overruled.
Smith I at ¶ 11.
Because Smith did not raise any issues in his postconviction-relief
petition that had not been addressed in Smith I, this argument is barred by the
doctrine of res judicata, and Smith’s third assignment of error is overruled.
In Smith’s second assignment of error, he argues that “since 2016-
2017 and ongoing prosecutors and police possess crime videos that exonerate Smith
and a wealth of evidence texts, emails and eyewitness statements that prove clear
innocence all of which overcome procedure defaults.”
In his petition for postconviction relief and his appellate brief, Smith
makes the same arguments he made in a motion for a new trial that he filed on
February 5, 2019. Smith’s motion for new trial was “based on new
evidence/exculpatory evidence ….” Specifically, Smith claimed that he “recently
learned about the arson video contents [that] would acquit him from informants (i.e.
police and court personel [sic]) who seen the video and Smith is not on it
whatsoever.” The trial court denied this motion on February 26, 2019. Smith filed
an untimely appeal from this journal entry on May 16, 2019, which this court
dismissed. State v. Smith, 8th Dist. Cuyahoga No. 108572, motion No. 528500 (May
29, 2019).
Additionally, the documents attached to Smith’s postconviction-relief
petition, which he argues are exculpatory as to his arson conviction, concern a fire
that occurred on September 5, 2016. It is undisputed that the fire, which formed the
basis of the attempted aggravated arson charge to which Smith pled guilty in CR-17-
620144-A occurred on April 14, 2017. Upon review, we find that Smith failed to set
forth sufficient operative facts showing that he is entitled to postconviction relief,
because the evidence he submitted is irrelevant to the issues raised in the case at
hand. See State v. Lawson, 103 Ohio App.3d 307, 315,
659 N.E.2d 362 (12th Dist.
1995), quoting State v. Coleman, 1st Dist. Hamilton No. C-900811,
1993 Ohio App.
LEXIS 1485, 2 (Mar. 17, 1993) (‘“Evidence presented outside the record must meet
some threshold standard of cogency; otherwise it would be too easy to defeat the
holding of Perry by simply attaching as exhibits evidence which is only marginally
significant and does not advance the petitioner’s claim beyond mere hypothesis and
a desire for further discovery.”’).
Accordingly, Smith’s allegations concerning exculpatory evidence are
barred by the doctrine of res judicata because they were disposed of by the trial court
and reviewed and rejected on appeal in Smith I. Additionally, Smith failed to
support his petition with substantive and relevant evidence under R.C. 2953.21.
Smith’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR
