{¶ 2} In September of 2002, Scott-Hoover collided with a bicycle rider while traveling in her car on Biddle Road in Crawford County. The officer dispatched to the scene of the accident reported that he smelled a moderate odor of alcohol on Scott-Hoover. A second officer, who transported Scott-Hoover to the local hospital, also reрorted an odor of alcohol. While at the hospital, the second officer administered field sobriety tests. He rated Scott-Hoover's performance on the field sobriety tests as "satisfactory" to "low satisfactory." Following the field sobriеty tests, the officer placed Scott-Hoover under arrest and blood was drawn so that a blood-alcohol content ("BAC") test could be administered. The BAC test result was .157 by weight.
{¶ 3} Subsequently, Scott-Hoover was indicted by the grand jury for aggravated vehicular hоmicide in violation of R.C.
{¶ 4} Following the presentation of the evidence, the trial court found Scott-Hoover guilty of aggravated vehicular homicide and sentenced her to seven years in prison.
{¶ 5} Scott-Hoover appealed the trial court's sentence and judgment, arguing that she had been denied the effective assistance of trial counsel based on trial counsel's stipulations and that the trial court erred in imposing a near-maximum sentence. In State v. Scott-Hoover, 3rd Dist. No. 3-03-20,
{¶ 6} In February of 2004, Scott-Hoover filed a timely petition for postconviction relief, claiming thаt she had been denied the right to effective assistance of counsel based on trial counsel's failure to file a motion to suppress the BAC test results. Subsequently, the State filed a motion for summary judgment.
{¶ 7} Upon review of all the required materials, the trial court determined that Scott-Hoover failed to meet the criteria for postconviction relief. Accordingly, the trial court granted the State's motion for summary judgment. It is from this judgment Scott-Hoover appeals, presenting the following assignments of error for our review.
{¶ 8} Due to the nature of appellant's claims, we will be addressing the assignments of error out of ordеr.
{¶ 10} This Court clearly set forth thе standards applicable to the review of petitions for postconviction relief in State v.Yarbrough (Apr. 30, 2001), 3d Dist. No. 17-2000-10, unreported. R.C.
{¶ 11} This court has noted though that "[t]he postconviction statute is not intended * * * to permit `a full blown retrial of the [petitioner's] case.'" Yarbrough supra, quoting State v.Robison (June 19, 1989), 4th Dist. No. 88 CA 15, unreported. Since postconviction petitions are limited to claimed constitutional violations, "procedural or оther errors at trial not involving constitutional rights are not relevant or subject to review." Id.
{¶ 12} A petitioner is not necessarily entitled to an evidentiary hearing when a petition for postconviction relief is filed. R.C.
{¶ 13} The trial court must examine the petition, any supporting affidavits, any documentary evidence and all the files and records in the case whеn determining whether the petition contains substantive grounds for relief. R.C.
{¶ 14} The Ohio Supreme Court has applied the doctrine of res judicata to postconviction proceedings. State v. Reynolds
(1997),
Under the doctrine of res judicata, a final judgment ofconviction bars a convicted defendant who was rеpresented bycounsel from raising and litigating in any proceeding except anappeal from that judgment, any defense or any claimed lack of dueprocess that was raised or could have been raised by thedefendant at the trial, which resulted in that judgment ofconviction, or on an appeal from that judgment.
{¶ 15} Under the doctrine of res judicata, a claim for relief presented in a postconviction petition is subject to dismissal without an evidentiary hearing when it presents a matter that could fairly have been determined on direct appeal and without resort to evidence dehors the record. Id.; State v. Cole
(1982),
{¶ 16} In her petition for postcоnviction relief, Scott-Hoover claimed that she had been denied her constitutional right to effective assistance of counsel. The trial court found that this claim was barred by the doctrine of res judicata. The trial court determined that Scott-Hoover's petition did not contain any material evidence dehors the record and that the claim of ineffective assistance of counsel could have been raised upon direct appeal.
{¶ 17} The Supreme Court of Ohio has specifically applied the doctrine of res judicata to postconviction proceedings alleging ineffective assistance of counsel. In State v. Cole,
Where defendant, represented by new counsel upon directappeal, fails to raise therein the issue of competent trialcounsel and said issue could fairly have been determined withoutresort to evidence dehors the record, res judicata is aproper basis for dismissing defendant's petition forpostconviction relief. (citations omitted.)
{¶ 18} However, if an ineffеctive assistance of counsel issue concerns a matter outside the record, the appellate court could not consider it on direct appeal because the court can only consider matters contained in thе record. State v. Smith
(1985),
{¶ 19} In the case sub judice, Scott-Hoover was represented by a new attorney on appeal. Therefore, any claim of ineffective assistance of counsel which could fairly have been determined without resort to evidence dehors the record had to be brought on direct appeal or it was forever waived. Yarbrough supra. Additionally, as noted above, Scott-Hoover raised ineffective assistance of counsel as an assignment of error in her direct appeal, and this Court overruled that assignment.
{¶ 20} In Scott-Hoover's claim for ineffective аssistance of counsel, she argues that she was entitled to an evidentiary hearing on the basis of the trial counsel's failure to file a pretrial motion to suppress the BAC test results. In the petition for postconviction relief, Scott-Hoover asserted that the State failed to comply with the Department of Health regulations governing blood tests and that the State lacked probable cause to believe that Scott-Hoover was "under the influence" to support the seizure оf her blood. To support her claim, Scott-Hoover attached the affidavit of public defender criminal investigator, Peggy Kent, Officer James Davis' initial report, several internet maps to illustrate the time and distance the officer was on thе road prior to dropping off Scott-Hoover's blood sample, several internet weather readings for the temperature of the surrounding areas on the day of the accident and a letter from lead medical toxicologist, Matthew Scheidegger, explaining the drop in Scott-Hoover's BAC test results.
{¶ 21} Scott-Hoover argues that the affidavit, officer's report and internet findings filed with her petition are matters outside the record. Technically, this is true, since the affidavit was not sworn and thе other evidence was not collected until after Scott-Hoover's trial. However, these facts were all discoverable by appellant at the time of the trial and, as such, could have been raised upon direct appeal. Accordingly, the issue is barred by res judicata.
{¶ 22} Furthermore, even if the matter was not barred by res judicata, Scott-Hoover has still failed to state any substantive grounds for relief. As noted above, at trial, Scott-Hoover, through counsel, entered several stipulations, including that her blood-alcohol level was .157, that she was driving the vehicle that struck the decedent, that the collision caused the decedent's death and that the offense occurred in Crawford County, Ohio. On direct appeal, Scott-Hoover claimed that she was denied her right to effective assistance of counsel based on the above stipulations. Again, in State v. Scott-Hoover,
{¶ 23} Having found that Scott-Hoover's claim is barred by res judicаta and that she has failed to show any substantive grounds for relief, the second assignment of error is overruled.
{¶ 25} Again, a petitioner is not necessarily entitled to an evidentiary hearing when a petition for postconviction relief is filed. R.C.
{¶ 26} Based оn the above finding that Scott-Hoover failed to show any substantive grounds for relief, we cannot say the court erred in not conducting an evidentiary hearing prior to dismissing Scott-Hoover's claim. Accordingly, the first assignment of error is overruled.
{¶ 27} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed. Cupp and Bryant, J.J., concur.