[Cite as State v. Simon,
2024-Ohio-925.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 23CA3
:
v. :
: DECISION AND JUDGMENT
SHAWN C. SIMON, : ENTRY
:
Defendant-Appellant. : RELEASED 3/08/2024
_____________________________________________________________
APPEARANCES:
Shawn C. Simon, St. Clairsville, Ohio, Appellant Pro Se.
Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher,
Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for
Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Shawn C. Simon appeals the January 24, 2023 Journal Entry of
the Gallia County Common Pleas Court. On appeal, Simon challenges the
trial court’s decision overruling two motions:
1. Motion for Leave to File Untimely Post-Convictions, Pursuant to
R.C. 2953.53, Requesting to Vacate or Set Aside Judgment of
Conviction or Sentence filed August 26, 2022; and,
2. Motion to Amend Untimely Post-Conviction to Add a New Claim,
Requesting to Vacate or Set Aside Judgment of Conviction or
Sentence.1
1
Hereinafter for brevity, we will reference these pleadings as “Motion for Leave” and “Motion to Amend.”
Gallia App. No. 23CA3 2
Simon raises six assignments of error relating to his claim that he was denied
his Fourteenth Amendment right to due process of law when he was denied
certain Brady material and when his Motion for Leave was denied without a
hearing. In the seventh assignment of error, Simon asserts that the trial court
abused its discretion when it refused to recognize and apply to his case the
retroactive holding set forth in State v. Turner, 163 Ohio St.3d 421, 2020-
Ohio-6773, 170 N.Ed.3 842.
{¶2} However, our review has found that Simon’s postconviction
pleadings are untimely, and that he has failed to provide clear and
convincing evidence that he was unavoidably prevented from discovery of
evidence which he claims is relevant to the propriety of the traffic stop
which led to his arrest on two felony drug charges and ultimately, two
convictions. Furthermore, our review has found that the Turner holding is
not applicable to the facts in Simon’s case. Thus, we conclude that the trial
court lacked jurisdiction to entertain the constitutional claim of deprivation
of due process set forth in Simon’s untimely postconviction petition.
Therefore, we modify the judgment appealed to reflect the dismissal of
Simon’s constitutional claim of a Brady violation. As to Simon’s seventh
assignment of error regarding Turner, this claim should have been raised in
Gallia App. No. 23CA3 3
his direct appeal and is now barred by res judicata. The judgment of the trial
court is affirmed as modified.
FACTUAL AND PROCEDURAL BACKGROUND
{¶3} At the conclusion of a jury trial in August of 2020, Shawn C.
Simon was convicted of Count One, Possession of Cocaine, R.C.
2925.11(A)/(C)(4)(e), and Count Two, Trafficking in Cocaine, R.C.
2925.03(A)(2)/(C)(4)(f). The underlying facts and circumstances leading to
Mr. Simon’s arrest and convictions stem from a traffic stop conducted by
Trooper Drew Keuhne of the Ohio State Highway Patrol on September 19,
2019 in Gallia County. The factual background is set forth fully in our
decision in Simon’s direct appeal, State v. Simon, 2021-Ohio-3090,
176
N.E.3d 1208, at Paragraphs 1-22, “Simon I.”
{¶4} At Simon’s sentencing, the trial court merged the two felony
counts and sentenced Simon to a maximum indefinite prison sentence of 11
to 16 ½ years. Id. at ¶ 23. Simon timely appealed. In Simon I, Simon raised
two assignments of error, first asserting that his waiver of trial counsel was
not knowingly and intelligently made and thus, the trial court erred by
accepting his waiver. Under the second assignment of error, Simon argued
that the trial court should have, sua sponte, ordered a competency
evaluation.
Gallia App. No. 23CA3 4
{¶5} We found no merit to Simon’s assignments of error and affirmed
his convictions in our decision entered September 3, 2021. On August 26,
2022, Simon filed a “Motion for Leave to File Untimely Post-Convictions,
Pursuant to R.C. 2953.23, Requesting to Vacate or Set Aside Judgment of
Conviction or Sentence.” On October 17, 2022, Simon subsequently filed a
“Motion to Amend Untimely Post-Conviction to Add a New Claim,
Requesting to Vacate or Set Aside Judgment of Conviction or Sentence.”
{¶6}As indicated, the trial court overruled both motions. This timely
appeal followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ABUSED ITS
DISCRETION AND DENIED APPELLANT DUE
PROCESS RIGHT TO A FAIR POST-CONVICTION REVIEW HEARING WHEN IT
FAILED TO DETERMINE WHETHER
APPELLANT WAS UNAVOIDABLY
PREVENTED FROM DISCOVERY OF THE
FACTS UPON WHICH APPELLANT RELIED
UPON TO PRESENT HIS CLAIM.
II. THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR LEAVE TO FILE
UNTIMELY POST CONVICTION PETITION
WHERE APPELLANT SHOWED THAT HE
WAS UNAVOIDABLY PREVENTED FROM
DISCOVERING THE FACTS UPON WHICH HIS
CLAIM RELIES, AND MADE A CLEAR AND
CONVINCING SHOWING THAT BUT FOR THE
CONSTITUTIONAL VIOLATIONS WHICH
OCCURRED DURING THE CRIMINAL
Gallia App. No. 23CA3 5
PROCEEDINGS, NO REASONABLE FACT
FINDER WOULD HAVE FOUND APPELLANT
GUILTY OF THE CRIMES FOR WHICH HE
WAS CONVICTED.
III. APPELLANT WAS UNAVOIDABLY
PREVENTED FROM DISCOVERING THE
EVIDENCE RELATED TO THE TERRY STOP
DUE ABUSE OF DISCRETION OF THE TRIAL
COURT WHERE THE TRIAL JUDGE FAILED
TO ORDER THE PROSECUTOR AND APPOINT
TRIAL COURT TO PROVIDE APPELLANT
WITH DISCOVERY AFTER THE COURT
GRANTED APPELLANT’S REQUEST TO
REPRESENT HIMSELF PRO SE, THEREBY
DENYING DUE PROCESS OF LAW AS
GUARANTEED BY ARTICLE I, SECTION 16
OF THE OHIO CONSTITUTION AND THE
FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
IV. APPELLANT WAS UNAVOIDABLY
PREVENTED FROM DISCOVERING THE
EVIDENCE RELATING TO THE TERRY STOP
DUE TO BRADY VIOLATION REGARDING
PROSECUTOR MISCONDUCT WHERE THE
PROSECUTOR INTENTIONALLY WITHHELD
AND/OR SUPPRESSED THE EVIDENCE THAT
TROOPER KUEHNE DID NOT ISSUE A
TRAFFIC CITATION FOR THE ALLEGED
TRAFFIC VIOLATION USED AS CAUSE FOR
A TERRY STOP BY FAILING TO PROVIDE
APPELLANT WITH DISCOVERY AFTER THE
TRIAL COURT GRANTED APPELLANT’S
REQUEST TO REPRESENT HIMSELF PRO SE
AT THE SUPPRESSION HEARING, ALL OF
WHICH DEPRIVED APPELLANT OF HIS DUE
PROCESS RIGHT TO A FAIR HEARING AND
TRIAL AS GUARANTEED BY THE
Gallia App. No. 23CA3 6
CONSTITUTION OF THE STATE AND THE
UNITED STATES.
V. APPELLANT WAS UNAVOIDABLY
PREVENTED FROM DISCOVERING THE
EVIDENCE RELATING TO THE TERRY STOP
REGARDING TROOPER KUEHNE FAILURE
TO ISSUE A TRAFFIC CITATION WAS DUE
TO APPOINTED TRIAL COUNSEL FAILURE
TO PROVIDE APPELLANT WITH DISCOVERY
GIVEN TO HIM BY THE PROSECUTOR,
AFTER THE TRIAL COURT GRANTED
APPELLANT’S REQUEST TO REPRESENT
HIMSELF PRO SE AT THE SUPPRESSION
HEARING AND TRIAL.
VI. APPELLANT SHOWED BY CLEAR AND
CONVINCING EVIDENCE THAT, BUT FOR
CONSTITUTIONAL ERROR AT THE
SUPPRESSION HEARING, NO REASONABLE
FACTFINDER WOULD DENIED THE MOTION
TO SUPPRESS EVIDENCE.
VII. THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT REFUSED TO
RECOGNIZE THE RETROACTIVE HOLDING
SET FORTH IN STATE V. TURNER, 163 Ohio
St.3d 421,
2020-Ohio-6773,
170 N.E.3d 842. (12-
22-20)
A. STANDARD OF REVIEW
{¶7} In State v. McDaniel, 4th Dist. Meigs No. 22CA9, 2023-Ohio-
3051, at fn 3, this court recently observed that we continue to use the abuse
of discretion standard of review when we review petitions for postconviction
Gallia App. No. 23CA3 7
relief. See State v. Carver, 2022-Ohio-2653,
194 N.E.3d 393 (4th Dist.), ¶¶
11-12; State v. Jayjohn, 4th Dist. Vinton No. 20CA722,
2021-Ohio-2286, ¶
9; State v. Osborn, 4th Dist. Adams No. 18CA1064,
2018-Ohio-3866, ¶ 9;
see also State v. Gondor,
112 Ohio St.3d 377,
2006-Ohio-6679,
860 N.E.2d
77, ¶ 58. In general, an “abuse of discretion” implies that a court's attitude is
unreasonable, arbitrary, or unconscionable. McDaniel, supra, at ¶ 7.
Jayjohn, id.; State v. Herring,
94 Ohio St.3d 246, 255,
762 N.E.2d 940
(2002); State v. Adams,
62 Ohio St.2d 151,
404 N.E.2d 144 (1980). In
reviewing for an abuse of discretion, an appellate court must not substitute
its judgment for the trial court's judgment. State ex rel. Duncan v. Chippewa
Twp. Trustees,
73 Ohio St.3d 728, 732,
654 N.E.2d 1254 (1995).
B. LEGAL ANALYSIS
{¶8} R.C. 2953.21 governs a petition for postconviction relief.
McDaniel, supra, at ¶8. Any person convicted of a criminal offense who
claims a denial or infringement of rights to such a degree as to render a
judgment void or voidable may file a petition for postconviction relief. Id.;
R.C. 2953.21(A)(1)(a)(I). “ ‘[A] postconviction proceeding is not an appeal
of a criminal conviction but rather, is a collateral, civil attack on a criminal
judgment.’ ” McDaniel, at ¶ 8, quoting State v. Broom, 146 Ohio St.3d 60,
2016-Ohio-1028,
51 N.E.3d 620, ¶ 28, citing State v. Steffen, 70 Ohio St.3d
Gallia App. No. 23CA3 8
399, 410,
639 N.E.2d 67 (1994); accord State v. Betts, 4th Dist. Vinton No.
18CA710,
2018-Ohio-2720, ¶ 11; State v. Brown, 4th Dist. Scioto No.
20CA3917,
2022-Ohio-519, ¶ 6.
{¶9} Postconviction relief is not a constitutional right; instead, it is a
narrow remedy that gives the petitioner no more rights than those granted by
statute. McDaniel, supra, at ¶ 9; State v. Smith, 4th Dist. Highland No.
19CA16, 2020-Ohio-116; Carver, supra,
2022-Ohio-2653,
194 N.E.3d 393,
¶ 11;
Brown, supra, at ¶ 7. Postconviction relief is a means to resolve
constitutional claims that cannot be addressed on direct appeal because the
evidence supporting the claims is not contained in the record.
Carver at ¶
11. This means that “any right to postconviction relief must arise from the
statutory scheme enacted by the General Assembly.” State v. Apanovitch,
155 Ohio St.3d 358,
2018-Ohio-4744,
121 N.E.3d 351, ¶ 35.
{¶10} R.C. 2953.21(A)(2)(1) provides that a petitioner must file a
postconviction relief petition no later than 365 days after the date on which
the trial transcript was filed in the court of appeals in the direct appeal of the
judgment of conviction. McDaniel, supra, at ¶ 10. Herein, the trial court
did not address timeliness in its decision on Simon’s “Motion for Leave.”
However, Simon did file a direct appeal, and the trial transcript in Simon I
was filed on December 11, 2020. Simon’s “Motion for Leave” was filed on
Gallia App. No. 23CA3 9
August 26, 2022. It is obvious that Simon is over 365 days past the filing
deadline for his postconviction motion. Therefore, the lapse of time should
bar consideration of his untimely “ Motion for Leave.”
{¶11} However, Simon argues that he was unavoidably prevented
from discovering the fact that he was not issued a traffic citation on or about
September 19, 2019, the date he was stopped by Trooper Kuehne. When a
defendant files an untimely petition or a successive petition R.C. 2953.23(A)
prevents trial courts from considering the petition unless both of the
following apply: (1) petitioner shows he or she “was unavoidably prevented
from discovery of the facts upon which the petitioner must rely to present
the claim for relief,” or “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;” and (2) “[t]he
petitioner shows by clear and convincing evidence that, but for constitutional
error at trial, no reasonable factfinder would have found the petitioner
guilty.” McDaniel, at ¶10; R.C. 2953.23(A)(1)(a) and (b)(4). “ ‘A
defendant is “unavoidably prevented” from the discovery of facts if he had
no knowledge of the existence of those facts and could not have, in the
exercise of reasonable diligence, learned of their existence within the time
specified for filing his petition for postconviction relief.’ ” McDaniel, at ¶
Gallia App. No. 23CA3 10
11, quoting State v. Cunningham, 65 N.E.3d 307,
2016-Ohio-3106, ¶ 19 (3d
Dist.), citing State v. Holnapy, 11th Dist. Lake No. 2013-L-002, 2013-Ohio-
4307, ¶ 32, and State v. Ruark, 10th Dist. Franklin No. 15AP-142, 2015-
Ohio-3206, ¶ 11; see also
Brown, supra, at ¶ 9. Moreover, “[t]he ‘facts’
contemplated by this provision are the historical facts of the case, which
occurred up to and including the time of conviction.” State v. Williamitis, 2d
Dist. Montgomery No. 21321,
2006-Ohio-2904, at ¶ 18.
{¶12} A trial court lacks jurisdiction to consider an untimely or a
successive petition if the petitioner fails to satisfy R.C. 2953.23(A)(1)(a) and
(b). McDaniel, at ¶12; State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-
3848,
137 N.E.3d 1151, ¶ 19. Whether a court possesses jurisdiction to
entertain an untimely or a successive petition is a question of law that
appellate courts review independently and without deference to the trial
court. Apanovitch,
155 Ohio St.3d 358,
2018-Ohio-4744,
121 N.E.3d 351,
at ¶ 24; Brown at ¶ 10.
{¶13} Simon’s claims in the underlying postconviction petition and
on appeal center around his claim that he was allegedly not provided
discovery (i.e., information that he was not issued any traffic citations as a
result of the traffic stop conducted by Trooper Kuehne) prior to the trial
court’s granting of Simon’s request to represent himself at the suppression
Gallia App. No. 23CA3 11
hearing. Simon alleges that he did not become aware until August 1, 2022
that Trooper Kuehne did not issue traffic citations when he stopped Simon’s
vehicle on September 19, 2019. Simon apparently views the fact that he
was not given traffic citations as exculpatory material which would have
benefitted him at the suppression hearing, the denial of which constitutes a
Brady violation as discussed in Brady v. Maryland, 373 U.S. 83, 87,
83
S.Ct. 1194 (1963).
{¶14} Brady governs situations in which the state withholds
evidence that tends to exculpate a criminal defendant. State v. Burton,
8th Dist. Cuyahoga No. 109658, 2021-Ohio-851, at ¶20. “When the
prosecution withholds material, exculpatory evidence in a criminal
proceeding, it violates the due process right of the defendant under the
Fourteenth Amendment to a fair trial.” State v. Johnston,
39 Ohio
St.3d 48, 60,
529 N.E.2d 898 (1988). Brady violations may be found
regardless of whether the defense requested the evidence and
“irrespective of the good faith or bad faith of the prosecution.”
Brady,
supra, at 87,
83 S.Ct. 1194 (1963); State v. Magwood, 8th Dist.
Cuyahoga No. 108155,
2019-Ohio-5238, ¶ 19.
{¶ 15} “In addition,[f]or Brady purposes, the United
Gallia App. No. 23CA3 12
States Supreme Court ‘disavowed any difference between exculpatory
and impeachment evidence ….’ ” Burton, supra, at ¶21, quoting,
Kyles v. Whitley, 514 U.S. 419, 433,
115 S.Ct. 1555 (1995). “ ‘When
the “reliability of a given witness may well be determinative of guilt
or innocence,” nondisclosure of evidence affecting credibility falls
within this general rule.’ ” Burton, supra, quoting, Giglio v. United
States,
405 U.S. 150, 154,
92 S.Ct. 763 (1972), quoting Napue v.
Illinois,
360 U.S. 264, 269,
79 S.Ct. 1173 (1959).
{¶ 16} In Brady, the United States Supreme Court held “that
the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Id., at 87; Burton, at ¶33. “Brady is
not implicated when the information ‘is not wholly within the control
of the prosecution.’ ” Burton, supra, quoting Coe v. Bell, 161 F.3d
320, 344 (6th Cir. 1998). “ Further, the prosecution ‘is not required
under Brady to furnish a defendant evidence which, with any
reasonable diligence, he can obtain for himself.’ ” Burton, supra,
quoting United States v. Glass,
819 F.2d 1142, [
1987 WL 37592, *2],
1987 U.S. App. LEXIS 7247, 6 (6th Cir. 1987), citing United States v.
Gallia App. No. 23CA3 13
Davis,
787 F.2d 1501, 1505 (11th Cir. 1986) (1986); McFeeture, 8th
Dist. Cuyahoga No. 108434,
2020-Ohio-801, ¶ 13.
{¶17} In Simon’s first assignment of error, he asserts that the trial
court abused its discretion and denied his “due process right to a fair post-
hearing conviction review hearing” when it failed to determine whether he
was unavoidably prevented from discovering the fact that he was not issued
traffic citations by Trooper Kuehne. We interpret this assignment of error as
arguing that the trial court denied his “Motion for Leave” without a hearing.
A criminal defendant seeking to challenge a conviction through a petition for
postconviction relief is not automatically entitled to an evidentiary hearing.
See State v. Calhoun, 86 Ohio St.3d 279, 282,
1999-Ohio-102,
714 N.E.2d
905, citing State v. Cole,
2 Ohio St.3d 112,
443 N.E.2d 169 (1982). Before
granting an evidentiary hearing, the trial court must determine whether
substantive grounds for relief exist. R.C. 2953.21(D). In making such a
determination, the court shall consider the petition, supporting affidavits,
documentary evidence, and all the files and records from the case. See
Calhoun at 284, (noting that R.C. 2953.21 “clearly calls for discretion in
determining whether to grant a hearing” on a petition for postconviction
relief).
Gallia App. No. 23CA3 14
{¶18} “Substantive grounds for relief exist and a hearing is warranted
if the petitioner produces sufficient credible evidence that demonstrates the
petitioner suffered a violation of the petitioner's constitutional rights.” In re
B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 11.
Moreover, before a hearing is warranted, the petitioner must demonstrate
that the claimed “errors resulted in prejudice.” Calhoun at 283. A court
may dismiss a petition for postconviction relief without a hearing when the
petitioner fails to submit evidentiary material “demonstrat[ing] that
petitioner set forth sufficient operative facts to establish substantive grounds
for relief.” Id. at paragraph two of the syllabus. See also State v. Lewis, 4th
Dist. Ross No. 10CA3181,
2011-Ohio-5224, ¶ 11; State v. Slagle, 4th Dist.
Highland No. 11CA22,
2012-Ohio-1936, ¶ 14.2
{¶19} In Simon’s August 26, 2022 Motion for Leave, he argued he
obtained a statement from the deputy clerk of the Gallipolis Municipal
Court, dated July 28, 2022, attesting to the fact that no traffic tickets were
issued to him on or about September 19, 2019. In his affidavit attached to
2
Generally, our Court affords considerable leeway to pro se litigants. See State v. Headlee, 4th
Dist. Washington No. 2009-Ohio-873, at ¶ 6; see also Besser v. Griffey,
88 Ohio App.3d 379, 382,
623
N.E.2d 1326, 1328 (4th Dist. 1993); State ex rel. Karmasu v. Tate,
83 Ohio App.3d 199, 206,
614 N.E.2d
827, 832 (4th Dist. 1992). “Limits do exist, however. Leniency does not mean that we are required ‘to
find substance where none exists, to advance an argument for a pro se litigant or to address issues not
properly raised.’ ”
Headlee, supra, quoting State v. Nayar, 4th Dist. Lawrence No. 07CA6, 2007-Ohio-
6092, at ¶ 28.
Gallia App. No. 23CA3 15
his Motion for Leave, Simon averred that he did not receive this information
until August 1, 2022. Simon argues that because Trooper Kuehne did not
issue a traffic citation: (1) Trooper Kuehne lacked probable cause to
conduct the traffic stop and to extend the stop to a search of his vehicle; and,
(2) Trooper Kuehne “committed perjury under oath and provided false
evidence” when he testified at the suppression hearing and at trial that
Simon had committed traffic violations for improper lane change and failing
to maintain an assured clear distance ahead. Simon reiterates these
arguments in his second assignment of error. In his third, fourth, and fifth
assignments of error, Simon specifically argues that he was unavoidably
prevented from discovering that he was not given traffic citations because:
(1) the trial court failed to order the prosecutor to provide him with
discovery prior to the court’s allowing him to represent himself at the
suppression hearing; (2) prosecutorial misconduct occurred due to the failure
to provide discovery prior to the suppression hearing; and, (3) his former
trial counsel failed to provide him with discovery prior to the suppression
hearing. As a result, Simon believes he has shown by clear and convincing
evidence that, but for the constitutional error via an alleged Brady violation,
no reasonable factfinder would have found him guilty of the two felony drug
Gallia App. No. 23CA3 16
offenses at trial. Simon believes that he has raised a substantive ground for
relief warranting a hearing. We are not persuaded.
{¶20} In order for this court to find a Brady violation, Simon must
establish that “ ‘(1) the suppressed evidence is favorable to him, “either
because it is exculpatory, or because it is impeaching”; (2) the evidence was
suppressed by the state, “either willfully or inadvertently”; and (3) that
“prejudice … ensued.” ’ ” State v. Lett, 8th Dist. Cuyahoga No. 111350,
2023-Ohio-2580, at ¶ 21, quoting State v. Bethel,
167 Ohio St.3d 362, 2022-
Ohio-783,
192 N.E.3d 470 ¶ 19, quoting Strickler v. Greene,
527 U.S. 263,
281-282,
119 S.Ct. 1936 (1999). The defendant bears the burden of proving
that a Brady violation rises to the level of a denial of due process. State v.
Allen, 8th Dist. Cuyahoga No. 103492,
2016-Ohio-7045,
2016 WL 5630980,
¶ 11. “ ‘[F]avorable evidence is material, and constitutional error results
from its suppression by the government, “if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” ’ ” Lett, supra, quoting
Bethel at ¶
19, citing Kyles v. Whitley,
514 U.S. 419, 433,
115 S.Ct. 1555 (1995),
quoting United States v. Bagley,
473 U.S. 667, 682,
105 S.Ct. 3375(1985).
Whether withheld evidence is material under Brady is a matter of law for
which the de novo standard of review applies. Lett, at ¶22; Allen at ¶ 11. De
Gallia App. No. 23CA3 17
novo review requires an independent analysis of the record without
deference to the trial court's decision. Demeraski v. Bailey, 2015-Ohio-
2162,
35 N.E.3d 913, ¶ 11 (8th Dist.).
{¶21} Based upon our de novo review, it does not appear that the fact
that Simon was not cited for traffic violations is new and material evidence
which would exculpate him or impeach Trooper Kuehne. It is simply not
relevant evidence because Trooper Kuehne conducted a lawful traffic stop
based on probable cause and nothing required him to charge Simon with the
traffic violations Trooper Kuehne observed. See State v. Ewing, 2017-Ohio-
7194, 95 N.E.3d 1112, at ¶ 42 (2d Dist.) (The fact that a jaywalking citation
was dismissed, and that defendant may have had a defense to the ordinance
he was cited under was immaterial to stop's validity); State v. Kelly,
188
Ohio App.3d 842,
2010-Ohio-3560,
937 N.E.2d 149, at ¶27 (12th Dist.),
(Fact that deputies neither contacted the dispatcher to verify defendant’s
license and registration information nor issued a traffic citation for
defendant’s violation of R.C. 4511.34 was irrelevant when deputies had
probable cause to initiate the lawful traffic stop). See State v. Willis (May
23, 1996), 10th Dist. Franklin No. 95APC11-1552,
1996 WL 274100, at *3
(Where appellant argued trial court’s dismissal of failure to maintain an
assured clear distance ahead charge suggested a lack of reasonable
Gallia App. No. 23CA3 18
suspicion, appellate court disagreed. Court’s analysis is an objective
consideration of the evidence of erratic driving behavior). Herein, Simon is
unable to show that the evidence that he was not cited is either exculpatory
or impeaching. Accordingly, Simon is unable to show that the alleged
failure to provide this information to him was in violation of Brady. And,
even if Simon’s allegation of a Brady violation had been supported, nothing
suggests that Simon was prejudiced by the State’s failure to provide this
evidence prior to his trial, as required by the third prong of the Brady test.
{¶22} Even if the fact that Simon was not cited was somehow
relevant, nothing demonstrates that Simon was unavoidably prevented from
discovering this fact with reasonable diligence. While Simon attached an
affidavit to his underlying motion reiterating his general claims, his affidavit
does not explain how he was unavoidably prevented from learning that he
was not given a traffic citation. We cannot find that Simon’s lack of
knowledge or awareness that he was not given traffic citations was because
it was unfairly withheld from him by the prosecutor, by Simon’s former trial
counsel, or due to the court’s alleged error in “failing to order” it be
provided. The transcript in the underlying pretrial proceeding and at trial is
replete with instances in which Simon’s felony counts were discussed and in
Gallia App. No. 23CA3 19
which it should have been quite obvious to Simon that traffic violations were
not being pursued for conviction. For example:
1. Prior to Simon’s suppression hearing on August 5, 2020,
the trial court inquired as to whether Simon was given a
packet of discovery. Simon answered affirmatively.3
2. At the suppression hearing, Simon questioned his sole
witness, Kalli Khepera Bey about the syntax of certain
documents, including the police report. At the conclusion
of the hearing, a set of documents appearing to be a report
of Mr. Bey was entered into evidence as Defendant’s
Exhibit B. The last page of Exhibit B appears to be
Trooper Kuehne’s statement on the incident report he
prepared on September 19, 2019. The last paragraph of
the report reads: “I transported Mr. Simon to the Gallia
County Jail. He was incarcerated there and charged with
F1 possession of cocaine and F1 drug trafficking.” This
report does not indicate additional charges, traffic or
otherwise, were filed.
3. At the status hearing on August 14, 2020, Simon’s former
counsel represented to the court that Simon had received a
full copy of his discovery and that Simon had picked it up
from his office. Counsel represented to the court that he
had a signed receipt dated June 30, 2020.
4. At Simon’s trial, the trial court gave opening and closing
jury instructions, instructing the jurors that Simon was
charged with two counts, drug possession and drug
trafficking.
5. At Simon’s trial, the prosecutor’s opening and closing
statements, although not evidence, provided information
to the jurors that the State was seeking convictions on two
counts. No traffic charges were mentioned.
3
In our opinion in the direct appeal, we noted that Simon acknowledged receiving
discovery at his suppression hearing. Simon I at ¶ 17.
Gallia App. No. 23CA3 20
{¶23} Simon’s interrelated arguments that he was unavoidably
prevented from discovery of information that he was not cited by Trooper
Kuehne for traffic violations is without merit. However, because his petition
was untimely, the trial court was without jurisdiction to consider it. His
constitutional claim of a Brady violation should have been dismissed.
{¶24} As an additional consideration, even if Simon’s Motion
for Leave had been timely, we would also be barred from considering
it by application of the doctrine of res judicata. “ ‘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 claimed lack of due process that was raised or could have been
raised by the defendant at the trial, … or on appeal from that
judgment.’ ” State v. Szefcyk, 77 Ohio St.3d 93, 95,
671 N.E.2d 233
(1996), quoting State v. Perry,
10 Ohio St.2d 175,
226 N.E.2d 104
(1967), paragraph nine of the syllabus; see also State v. Davis,
139
Ohio St.3d 122,
2014-Ohio-1615,
9 N.E.3d 1031, ¶ 28. “ ‘ “Res
judicata does not, however, apply only to direct appeals, but to all
postconviction proceedings in which an issue was or could have been
raised.” ’ ” State v. Creech, 4th Dist. Scioto No. 19CA3877, 2020-
Gallia App. No. 23CA3 21
Ohio-582, ¶ 11, quoting State v. Heid, 4th Dist. Scioto No.
15CA3710,
2016-Ohio-2756, ¶ 18, quoting State v. Montgomery,
2013-Ohio-4193,
997 N.E.2d 579, ¶ 42 (8th Dist.). Simon had
appellate counsel on his direct appeal. Simon, with reasonable
diligence, would have known that he was not given any traffic
citations as early as his arraignment date in the Gallipolis Municipal
Court, which the court record indicates took place on September 23,
2019. Simon could have informed his appellate counsel to pursue this
argument in his direct appeal. Apparently, he did not. Thus, his
Brady claim is also barred by res judicata.
{¶25} In cases where a postconviction motion is untimely and an
appellant fails to argue one of the exceptions set forth in R.C.
2953.23(A)(1), we do not apply an abuse of discretion standard of review to
the argument but instead conclude that the trial court lacked jurisdiction to
entertain such motions. JayJohn, supra, at ¶ 20; Osborn, supra, at ¶ 12.
Therefore, to the extent that Simon’s Brady claim was filed as part of an
untimely postconviction motion, we find the trial court lacked jurisdiction to
address his constitutional argument. Consequently, we find the trial court
did not err in failing to conduct a hearing on Simon’s Motion for Leave as he
failed to present substantive grounds for relief. We further find that the
Gallia App. No. 23CA3 22
constitutional claim raised in Simon’s first, second, third, fourth, fifth, and
sixth assignments of error is barred as having been brought in an untimely
petition for postconviction relief. Thus, the trial court should have
dismissed, rather than denied, the claim. Accordingly, the judgment
appealed is affirmed but modified, under the authority of App.R.
12(A)(1)(a), to reflect the dismissal of Simon’s constitutional claim. The
judgment of the trial court shall remain intact with respect to Simon’s
remaining meritless claim, presented in the seventh assignment of error, and
discussed below.
{¶26} In Simon’s seventh assignment of error, he contends that the
trial court refused to take into consideration the Supreme Court of Ohio’s
holding in State v. Turner in determining whether Trooper Kuehne had
probable cause to initiate the traffic stop. Simon was stopped on September
19, 2019. The Turner decision was issued on December 22, 2020. In
Turner, the Supreme Court of Ohio held that “the single solid white
longitudinal line on the right-hand edge [of] a roadway—the fog line—
marks the edge of the roadway and that such a marking merely ‘discourages
or prohibits’ a driver from ‘crossing’ it, not ‘driving on’ or ‘touching it.’ ”
2020-Ohio-6773,
170 N.E.3d 842 at ¶ 37, citing MUTCD Section 3A.06(B).
In reaching its decision, the court noted that “[t]his interpretation of R.C.
Gallia App. No. 23CA3 23
4511.33(A)(1) is consistent with the greater weight of authority in
jurisdictions across the nation that touching the single solid white
longitudinal line on the right-hand side of the roadway does not constitute a
violation of R.C. 4511.33(A)(1).” (Citations omitted.) See State v. Oliver,
2023-Ohio-1550,
214 N.E.3d 624 at ¶ 53 (8th Dist.); Turner, at ¶ 36.
{¶27} Simon’s assertion is without merit. Given that we have
determined that the trial court was without jurisdiction to entertain Simon’s
untimely petition, we cannot conclude that the trial court abused its
discretion by denying his request to add this claim to his petition.
{¶28} Moreover, Simon’s reliance on Turner’s holding is misplaced
because of factual differences and due to the application of res judicata. At
Simon’s suppression hearing, Trooper Kuehne testified as follows:
When the vehicle passed it looked to me like there
was only one occupant in the car, but whoever the person
was back behind the B pillar where I could barely even see
their face or anything about them. Uh, after the vehicle
passed, I pulled out to catch up to it. It made a quick lane
change from the right lane to the left lane and after it made
that lane change it crossed over the yellow line on the left
side of the road with its left side tires. As I got closer to
the car I believe that’s probably when the driver noticed I
was behind him, uh, the vehicle changed lanes from the
left lane to the right lane and took away the assured and
clear distance of the vehicle that was already in the right
lane. So after that lane change was complete there was
about one car length of space between that and the other
vehicle, uh, so I drew closer to the car and then I initiated
a traffic stop with it at Milepost 6.
Gallia App. No. 23CA3 24
Not only did Trooper Kuehne testify that Simon’s tires “crossed over the left
side of the road with its left side tires,” the trooper also observed Simon
commit an assured clear distance violation. Furthermore, Simon was
stopped on September 19, 2019. Turner was decided on December 22,
2020. Simon was sentenced on August 27, 2020. He timely appealed. The
Gallia County Clerk of Court’s docket, of which we may take judicial
notice, reflects that Simon’s appellate brief was filed on February 9, 2021.
Any argument regarding Turner’s supposed relevance and application
should have been brought in Simon’s direct appeal and is now barred by res
judicata. Accordingly, his seventh assignment of error is without merit and
is hereby overruled.
{¶29} In the case at bar, Simon’s Motion for Leave was untimely.
Simon also raised no issues that he could not have raised during his direct
appeal. Here, the trial court “technically erred” by summarily overruling
Simon’s Motion for Leave rather than issuing a dismissal for lack of
jurisdiction. Thus, under App.R. 12(A)(1)(a), we modify the trial court’s
judgment to reflect the dismissal of his postconviction petition “Motion for
Leave.” The judgment of the trial court is affirmed as modified.
Gallia App. No. 23CA3 25
JUDGMENT AFFIRMED AS MODIFIED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED AS MODIFIED
and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Gallia County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Hess, J., & Wilkin, J.: Concur in Judgment and Opinion.
For the Court,
________________________
Jason P. Smith
Presiding Judge
Gallia App. No. 23CA3 26
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.199
