State v. Barber, 2017 Ohio 9257

Background

Michael Barber was convicted after a jury found him guilty of possession of heroin and marijuana; he received a 14-year sentence.
During pretrial and trial proceedings Barber declined plea offers (including an 8-year offer), had a late request to replace counsel which the trial court denied, and proceeded with retained counsel.
Barber filed a pro se postconviction petition alleging ineffective assistance of counsel: failure to interview/subpoena witnesses, failure to develop/exploit fingerprint-expert evidence, and that counsel misled him about having an expert (which caused him to reject a plea).
The trial court initially denied the petition summarily (May 11, 2015) without findings; later (Sept. 17, 2015) it denied the petition again, concluding Barber’s outside-the-record affidavits were merely self-serving and that his claims were barred by res judicata.
Barber appealed; this Court held the trial court properly treated the claim about replacing counsel as res judicata but found legal error because the trial court failed to apply the required credibility analysis to Barber’s affidavits before dismissing without a hearing.
The Court vacated in part and remanded: it instructed the trial court to perform the Calhoun-factor analysis of affidavits, reassess whether claims are barred by res judicata, reconsider the request to amend the petition, and then determine whether an evidentiary hearing is warranted.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Barber)	Held
Whether postconviction claims are barred by res judicata	Barber’s claims either were on direct appeal or could have been raised there, so res judicata bars them	Affidavits and new evidence show some claims rely on facts outside the record and were not available on direct appeal	The court affirmed res judicata as to the claim about replacing counsel but remanded for further analysis on other claims after proper affidavit credibility review
Whether the trial court erred by denying an evidentiary hearing on the petition	No hearing needed because petition lacked substantive grounds and claims were barred	Barber presented sworn affidavits and supporting materials showing operative facts that could warrant a hearing	The court found it premature to decide; remanded for the trial court to perform the required statutory and Calhoun analysis to determine if a hearing is warranted
Whether the trial court permissibly treated Barber’s affidavits as “self‑serving” and ignored them	Affidavits were self‑serving and insufficient to overcome res judicata	Affidavits must be given due deference and the court must analyze credibility factors (Calhoun) before discounting them	The appellate court held the trial court erred as a matter of law by failing to apply the Calhoun factors and remanded for that analysis
Whether trial court abused discretion in denying Barber’s motion for leave to amend (fingerprint report)	Denial was proper because petition already denied	The amendment would supply material outside the record and was timely if the petition denial lacked required findings/notice	The issue was declared moot pending remand; trial court instructed to reconsider the June 29, 2015 motion to amend during renewed review

Key Cases Cited

State v. Calhoun, 86 Ohio St.3d 279 (1999) (trial court may judge credibility of affidavits but must consider specified factors when discounting them)
State v. Jackson, 141 Ohio St.3d 171 (2014) (res judicata bars claims that were or could have been raised at trial or on direct appeal)
State v. Nichols, 11 Ohio St.3d 40 (1984) (postconviction proceedings governed by civil appellate rules; Civ.R. 58(B) and appellate timing implications)
State v. Steffen, 70 Ohio St.3d 399 (1994) (postconviction relief is a collateral civil attack to reach constitutional issues outside the trial record)
State v. Cole, 2 Ohio St.3d 112 (1982) (constitutional issues cannot be considered in postconviction when they should have been raised on direct appeal)