Stаte of Ohio, Plaintiff-Appellee, v. Luis E. Villareal, Defendant-Appellant.
No. 21AP-588
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 3, 2022
2022-Ohio-1473
BEATTY BLUNT, J.
(C.P.C. No. 18CR-3059) (REGULAR CALENDAR)
On brief: G. Gary Tyack, Prosecuting Attorney, and Paula M. Sawyers, for appellee.
On brief: Luis E. Villareal, pro se.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{1} Defendant-appellant, Luis E. Villareal, appeals a judgment of the Franklin County Court оf Common Pleas denying his petition for postconviction relief without an evidentiary hearing. For the following reasons, we affirm.
{2} By indictment filed June 26, 2018, plaintiff-appellee, State of Ohio, charged Villareal, along with seven other co-dеfendants, with one count of engaging in a pattern of corrupt activity, in violation of
{3} After initially entering a plea of not guilty, Villareal appearеd with counsel on January 23, 2020, and entered a plea of guilty to one count of engaging in a pattern of corrupt activity and one count of trafficking in cocaine in case No. 18CR-3059. That same day, Villareal also entered a guilty plea in Franklin C.P. No. 19CR-2311 to one count of trafficking in cocaine relating to a separate indictment the state filed May 10, 2019. The trial court accepted Villareal‘s guilty pleas in both cases, found Villareal guilty, and imposed the mandatory required prison sentence of 11 years for the engaging in a pattern of corrupt activity, concurrent to a mandatory 11 years for the trafficking in cocaine offense in case No. 18CR-3059, and the trial court ordered that sentence to run consecutive to the three-year prison sentence it imposed for trafficking in cocaine in case No. 19CR-2311, for a total aggregate sentence of 14 years in prison. Villareal did not file a timely direct appeal of his conviction and sentence in case No. 18CR-3059.
{4} On November 5, 2020, appellant filed in the trial court a pro se petition for postconviction relief under
{5} The state filed its response to appellant‘s first petition on November 10, 2020 and filed a virtually identical response to appellant‘s second petition on December 18, 2020. On October 15, 2021, the trial court issued a journal entry denying appellant‘s November 19, 2020, petition1 without holding a hearing finding that appellant‘s claim of inеffective
{6} Appellant timely appeals, assigning the following error for our review:
Ineffective assistance of cоunsel, in violation of the Sixth Amendment.
{7} Although not articulated as such, we construe appellant‘s sole assignment of error as contending that the trial court erred in denying his petition for postconviction relief without a hearing. We disagreе.
{8} “A trial court‘s decision to deny a postconviction petition without a hearing is reviewed under the abuse of discretion standard.” State v. Boddie, 10th Dist. No. 12AP-811, 2013-Ohio-3925, ¶ 11, citing State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305, ¶ 14. An abuse of discretion entails a decision that is unreasonable, arbitrary, or unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{9}
{10} A petitioner is not automatically entitled to an evidentiary hearing on a postconviction petition. State v. Sidebeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309, ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107, 110-13 (1980). To warrant an evidentiary hearing, the petitioner bears the initial burden of providing evidence thаt demonstrates a cognizable claim of constitutional error. Id. The evidence must show that “there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United Stаtes.” Campbell at ¶ 15,
{11} A trial court may also dismiss a petition for рostconviction relief without holding an evidentiary hearing when the claims raised in the petition are barred by the doctrine of res judicata. Campbell at ¶ 16, citing State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. “‘Res judicata is applicable in all postconviction relief proceedings.‘” Id., quoting Szefcyk at 95. “Under the doctrine of res judicata, a defendant who was represented by counsel is barred from raising an issue in a petition for post-conviction relief if the defendant raised or could have raised the issue at trial or on direct аppeal.” Id., citing Szefcyk at syllabus. “In order to avoid dismissal of the petition under the doctrine of res judicata, the evidence supporting the claims must be competent, relevant, and material evidence outside the trial court record, and it must not be evidence that existed or was available for use at the time of trial.” State v. Wright, 10th Dist. No. 08AP-1095, 2009-Ohio-4651, ¶ 11, citing State v. Cole, 2 Ohio St.3d 112 (1982), syllabus.
{12} We have previously specifically found that “the doctrine of res judicata precludes a defendant from raising, in a petition for postcоnviction relief, an ineffective assistance of counsel claim that was or could have been raised at trial or on direct appeal.” State v. McBride, 10th Dist. No. 14AP-237, 2014-Ohio-5102, ¶ 6, citing Davis, 2014-Ohio-90, ¶ 22. “To overcome the res judicata bar, the defendant must offer competеnt, relevant and material evidence, outside the trial court record, to demonstrate that the defendant could not have appealed the constitutional claim based upon information in the original trial record.” Id., citing State v. Young, 10th Dist. No. 05AP-641, 2006-Ohio-1165, ¶ 20; State v. Braden, 10th Dist. No. 02AP-954, 2003-Ohio-2949, ¶ 27. “The еvidence offered in support must ‘advance the petitioner‘s claim beyond a mere hypothesis.‘” State v. Murphy, 10th Dist. No. 15AP-460, 2015-Ohio-4282, ¶ 16, quoting State v. Lawson, 10th Dist. No. 02AP-148, 2002-Ohio-3329, ¶ 15. “Additionally, the petitioner must not rely on evidence that was in existence or available for use at the time of trial and that the petitioner should have submitted at trial if he wished to make use of it.” Id., citing Lawson at ¶ 15.
{13} In appellant‘s November 19, 2020 petition filed in the trial court, appellant argued his trial counsel was ineffective for failing to file a motion to suppress the evidence obtained as a result of the warrantless search of the premises located at 2430 Performance Way and the two searches of 3410 East 5th Avenue made pursuant to warrant. Appellant‘s postconviction petition did not includе any evidence outside the trial court record—such as affidavits or other exhibits—in support of it. Furthermore, the evidence pertaining to the claim he is making would be contained in the original trial record. As noted above, appellant did not file a direct appeal. To the extent his arguments in support of his claim are based on the trial court record, res judicata operates to bar those arguments. McBride at ¶ 7, citing State v. Dixon, 10th Dist. No. 03AP-564, 2004-Ohio-3374, ¶ 12 (finding res judicata bars consideration of an inеffective assistance of counsel claim that could have been raised on direct appeal).
{14} Nor is appellant‘s submission of his own affidavit in support of his claim of ineffective assistance for the first time on appeal of any aid to him. First, although appellant now asserts he instructed his trial counsel “to file a timely notice of appeal and counsel failed to do so” (Appellant‘s Brief at 3.), appellant did not raise this issue before the triаl court. It is well-settled that we will not consider an argument raised for the first time on appeal. (Citations omitted.) State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, ¶ 7. See also Deutsche Bank Natl. Trust Co. v. Stone, 10th Dist. No. 20AP-94, 2021-Ohio-3007, ¶ 12 (“‘Parties cannot raise any new issues for the first time on appeal, and the failure to raise an issue at the trial level waives it on appeal.‘“), quoting Bell v. Teasley, 10th Dist. No. 10AP-850, 2011-Ohio-2744, ¶ 15.
{15} Moreover, we may not consider appellant‘s affidavit in any event because it was not presented to the trial court and thus is not part of the trial court record. Case law is clear that “the scope of our review on appeal is confined to matters within the record
{16} Therefore, based on the foregoing discussion, we conclude res judicata bars the consideration of appellant‘s claim for ineffective assistance of counsel, and we need not and do not address the merits of appellant‘s claim. See Capital Care Network of Toledo v. Ohio Dept. of Health, 153 Ohio St.3d 362, 2018-Ohio-440, ¶ 31, quoting PDK Laboratories, Inc. v. United States Drug Enforcement Admin., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in judgment) (recognizing “the cardinal principle of judicial restraint - - if it is not necessary to decide more, it is necessary not to decide more.“). Because res judicata bars appellant‘s petition for postconviction relief, the trial court did not err in denying appellant‘s petition on that basis.
{17} Nor did the trial court err in finding that, in the alternative, res judicata likewise bars appellant‘s motion to withdraw his guilty plea pursuant to
{18} Accordingly, based on the foregoing reasons, we overrule appellant‘s sole assignment of error. Having overruled appellant‘s sole assignment of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and SADLER, JJ., concur.