STATE OF OHIO, PLAINTIFF-APPELLEE, v. DEMOND LILES, DEFENDANT-APPELLANT.
CASE NO. 1-21-60
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
May 23, 2023
[Cite as State v. Liles, 2022-Ohio-1713.]
Appeal from Allen County Common Pleas Court Trial Court No. CR 2013 0072
Judgment Affirmed
Date of Decision: May 23, 2023
APPEARANCES:
Dustin M. Blake for Appellant
Jana E. Emerick for Appellee
{1} Defendant-Appellant, Demond Liles (“Liles“), appeals the November 12, 2021 judgment entry of the Allen County Court of Common Pleas dismissing his successive postconviction petition. For the reasons that follow, we affirm.
Facts and Procedural History
{2} In 2014, Liles pled guilty to four counts of trafficking in cocaine—felonies of varying degrees and to various specifications with those counts. Liles was sentenced to an aggregate term of twenty-five years in prison. On appeal, this Court affirmed. State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, 45. Thereafter, Liles filed his first petition for postconviction relief, which was dismissed by the trial court upon the filing of findings of fact and conclusions of law. This Court affirmed the dismissal on appeal. State v. Liles, 3d Dist. Allen No. 1-16-33, 2017-Ohio-240, ¶ 1.
{3} In July 2021, Liles filed a successive petition for postconviction relief. The State filed a response and motion to dismiss on the basis of lack of jurisdiction. The trial court initially denied the State‘s motion to dismiss, relying on Civ.R. 12(B)(6) as a basis for denial of the motion. The State subsequently filed a motion requesting a ruling on its prior motion to dismiss for lack of jurisdiction. Liles filed a response to that motion, and the State filed a response to Liles’ response. On November 12, 2021, the trial court filed a judgment entry finding the State‘s motion
{4} Liles filed this appeal, raising three assignments of error for our review.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DISMISSING APPELLANT‘S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING WHERE APPELLANT PROVIDED NEW EVIDENCE DEMONSTRATING A SUFFICIENT FACTUAL BASIS FOR RELIEF FROM HIS CONVICTION WHICH WAS SECURED IN VIOLATION OF HIS RIGHTS AS GUARANTEED BY THE FIRST, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION AND PURSUANT TO BRADY V. MARYLAND, 373 U.S. 83 (1963), KYLES V. WHITLEY, 514 U.S. 419, 434, AND GIGLIO V. UNITED STATES, 405 U.S. 150 (1972).
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN DISMISSING APPELLANT‘S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING WHERE APPELLANT PROVIDED NEW EVIDENCE DEMONSTRATING A SUFFICIENT FACTUAL BASIS FOR RELIEF FROM HIS CONVICTION ON THE BASIS THAT TRIAL COUNSEL AND POST-TRIAL COUNSEL WERE INEFFECTIVE IN VIOLATION OF HIS RIGHTS AS GUARANTEED BY THE FIRST, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION.
THE TRIAL COURT ERRED IN FAILING TO CONSIDER OHIO‘S POST-CONVICTION PROCEDURES AS CONSTITUTIONALLY INADEQUATE.
{5} We will address Liles’ first and second assignments of error together. Our analysis of those assignments of error focuses on whether the trial court erred by dismissing Liles’ successive postconviction petition without a hearing.
Legal standard and standard of review
{6} Under
(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 [
R.C. 2953.21(A)(2) ] or to the filing of an earlier petition, 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.(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.
{7} Further, the doctrine of res judicata generally bars a convicted defendant from litigating a postconviction claim that was raised or could have been raised at trial or on direct appeal. Id. at ¶ 17, citing State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.
Legal Analysis
{8} On appeal, Liles contends the new evidence he submitted with his successive postconviction petition is allegedly exculpatory evidence that had been withheld by the State in violation of Brady v. Maryland, 373 U.S. 83 (1963) and there is a reasonable probability that the result of the proceeding would have been
{9} Based on these documents attached to his petition, Liles argues in his first assignment of error that the suppressed evidence, former Allen County Sheriff Samuel “Crish‘s misconduct and irregular actions during the investigation as now reported by Task Force officers, qualifies as evidence favorable to Liles.” (Appellant‘s Brief at 16). Liles also argues that “new evidence regarding the same Task Force previously trying and failing to secure a controlled buy of illegal narcotics from Liles a couple years previous is certainly also evidence favorable to Liles.” Id. In his second assignment of error, Liles argues that his trial counsel failed to have adequately investigated the issues relating to former Allen County Sheriff Crish; that his trial counsel was ineffective for failing to advise him of the available defenses of entrapment and outrageous governmental conduct; and that he was deprived the effective assistance of counsel with regard to his appellate and prior postconviction counsel.
{11} As the Ohio Supreme Court has recently explained in State v. Bethel, -- Ohio St.3d --, 2022-Ohio-783, the question under
{12} Several Ohio appellate courts have held that a petitioner cannot meet the requirement of
{13} Even with Liles’ allegations regarding allegedly withheld evidence, he cannot demonstrate by clear and convincing evidence that, “but for constitutional error at trial, no reasonable factfinder would have found [him] guilty[.]”
{15} The first petition as noted above was dismissed and the judgment was affirmed on appeal. In his first petition, “Liles stated as grounds for relief that he received ineffective assistance of counsel and that his guilty pleas ‘were secured through vindictiveness by the government,’ both in violation of his constitutional rights.” State v. Liles, 3d Dist. Allen No. 1-16-33, 2017-Ohio-240, at ¶ 3. As previously noted by this Court in affirming the dismissal of that petition, “Liles‘s arguments concerning ‘outrageous government conduct’ were known to him at the time he entered into a plea agreement in this case and at the time of his sentencing.” Id. at ¶ 23. Accordingly, the Court concluded that, “any arguments related to this purportedly ‘outrageous government conduct’ on the part of Sheriff Crish were available to Liles at the time of his direct appeal and are therefore barred by res judicata.” Id. at ¶ 25.
{16} While it may be true on appeal of his successive petition that Liles did not obtain the actual documents upon which he now seeks to rely until March 2020, as stated in his response to the State‘s renewed motion to dismiss, we note that in
{17} Nevertheless, even assuming that Liles could demonstrate that he was unavoidably prevented from discovering the facts upon which he now relies on to present his claims, he still cannot satisfy the requirement of
{18} Accordingly, because Liles cannot establish the applicability of the exception found in
Third Assignment of Error
{19} In his third assignment of error, Liles argues that Ohio‘s postconviction procedures, or
{20} Liles did challenge the constitutionality of
{21} We first note that the right to file a postconviction relief petition is a statutory right, not a constitutional right. State v. Yarbrough, 3d Dist. No. 17-2000-10, 2001-Ohio-2351, *11. As the Ohio Supreme Court has stated, “postconviction state collateral review itself is not a constitutional right, even in capital cases.” State v. Steffen, 70 Ohio St.3d 399, 410 (1994). Additionally, the Ohio Supreme Court has explained:
State collateral review itself is not a constitutional right. * * * Further, a postconviction proceeding is not an appeal of a criminal conviction but, rather, a collateral civil attack on the judgment. * * * Therefore, a petitioner receives no more rights than those granted by the statute.
State v. Calhoun, 86 Ohio St.3d 279, 281 (1999).
{22} Further, we note this Court has stated in Yarbrough that:
We cannot say that the failure to afford a postconviction relief petitioner discovery during the initial proceeding to determine whether an evidentiary hearing is warranted renders the postconviction relief process unconstitutional. Ohio case law has affirmatively established that the lack of discovery during the initial stages of the postconviction process does not violate any
constitutional rights of the postconviction relief petitioner. At least one Ohio appellate court has held that the failure to afford a postconviction relief petitioner discovery during the initial proceeding to determine whether an evidentiary hearing is warranted does not render the postconviction relief process unconstitutional. See State v. La Mar (Mar. 17, 2000), Lawrence App. No. 98 CA 23, unreported (holding that lack of discovery during the initial stages of the postconviction process is based upon sound logic and does not violate any constitutional rights of the petitioner). We agree and likewise find that the failure to afford a postconviction relief petitioner discovery during the initial proceeding to determine whether an evidentiary hearing is warranted does not render the postconviction relief process unconstitutional.
{23} In its decision upholding the denial of a petitioner‘s third petition for postconviction relief, the Twelfth District Court of Appeals addressed the constitutionality of Ohio‘s postconviction relief statutory scheme and found such to be constitutional. State v. Lawson, 12th Dist. Clermont No. CA2011-07-056, 2012-Ohio-548, 26-33, citing, e.g., State v. McGuire, 12th Dist. Preble No. CA2000-10-011 (Apr. 23, 2001). See also State v. Cowans, 12th Dist. Clermont No. CA98-10-090 (Sept. 7, 1999), *3 (“Although
{25} For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/jlr