[Cite as State v. Petway, 2015-Ohio-4158.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 15CAA010003
JOHN W. PETWAY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 13CRI070343
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 2, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN JEFFREY P. UHRICH
MARK C. SLEEPER Law Office of Jeffrey P. Uhrich
Assistant Prosecuting Attorney P.O. Box 1977
Delaware County Prosecutor's Office Westerville, Ohio 43086
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 15CAA010003 2
Hoffman, P.J.
{¶1} Defendant-appellant John W. Petway appeals the December 4, 2014
Judgment Entry entered by the Delaware County Court of Common Pleas denying his
Petition for Post-Conviction Relief. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On July 31, 2013, Delaware County Grand Jury indicted Appellant on
twenty-five counts: two counts of rape, in violation of R.C. 2907.02(A)(2), both felonies
of the first degree; three counts of sexual battery, in violation of R.C. 2907.03(A)(5),
felonies of the second degree; nine counts of rape, in violation of R.C. 2907.02(A)(2),
felonies of the first degree; seven counts of sexual battery, in violation of R.C.
2907.03(A)(5); one count of menacing by stalking, in violation of R.C. 2903.211(A), a
felony of the fourth degree; one count of importuning, in violation R.C. 2907.07(A), a
felony of the second degree; and one count of importuning, in violation of R.C.
2907.07(D)(1), a felony of the fourth degree.
{¶3} On October 10, 2013, Appellant entered a negotiated plea of guilty to two
counts of rape. In return, the State agreed to dismiss the remaining charges. The State
also agreed to recommend a prison term of twenty years.
{¶4} The trial court accepted the plea of guilty, and convicted Appellant of the
two counts of rape. The trial court immediately proceeded in sentencing Appellant to
ten years on each count to be served consecutively and by agreement pursuant to R.C.
2953.08(D).
1 A rendition of the underlying facts is unnecessary for our resolution of the appeal.
Delaware County, Case No. 15CAA010003 3
{¶5} On December 5, 2013, Appellant filed an appeal with this Court, assigning
in his first two assignments of error his trial counsel's failure to investigate and pursue
the issues pertaining to Appellant's competency prior to entering the plea of guilty.
{¶6} On August 12, 2014, Appellant filed a motion for post-conviction relief
pursuant to R.C. 2951.21.
{¶7} Appellant asserted in his motion for post-conviction relief his constitutional
rights were violated in that he was denied the effective assistance of counsel in trial
counsel's failure to investigate his medical, educational and social history. Appellant's
petition asserted counsel failed to request a competency evaluation, related to both his
cognitive understanding and mental state. Appellant further argued counsel failed to
request a pre-sentence investigation. Appellant argued counsel's failures resulted in his
not voluntarily, knowingly and intelligently entering his plea.
{¶8} Via Opinion and Judgment Entry of September 29, 2014, this Court
rejected Appellant's arguments and affirmed Appellant's conviction and sentence.
{¶9} On October 10, 2014, Appellant filed a motion in the trial court for the
approval of expense money to retain a psychologist for the purpose of evaluating the
mental condition of Appellant. The trial court denied the motion via Judgment Entry of
October 22, 2014.
{¶10} On November 14, 2014, the trial court conducted an evidentiary hearing to
address Appellant's petition for post-conviction relief. At the hearing, the trial court
heard the testimony of Appellant and Appellant's prior trial counsel.
{¶11} Via Judgment Entry of December 4, 2014, the trial court denied
Appellant's petition for post-conviction relief.
Delaware County, Case No. 15CAA010003 4
{¶12} Appellant appeals, assigning as error:
{¶13} "I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF INASMUCH AS THERE WAS
EVIDENCE TO SUPPORT THAT DEFENDANT'S TRIAL COUNSEL WAS
INEFFECTIVE BY FAILING TO INVESTIGATE ISSUES PERTAINING TO
DEFENDANT'S COMPETENCY, INCLUDING INVESTIGATING DEFENDANT'S
MEDICAL, EDUCATIONAL, AND SOCIAL HISTORY PRIOR TO ENTERING A GUILTY
PLEA PURSUANT TO PLEA BARGAIN."
I.
{¶14} Appellant maintains his trial counsel was ineffective; therefore, the trial
court erred in denying his petition for post-conviction relief.
{¶15} O.R.C. 2953.21 governs the filing of a petition for post-conviction relief,
(A)(1)(a) Any person who has been convicted of a criminal offense
or adjudicated a delinquent child and who claims 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
States, and any person who has been convicted of a criminal offense that
is a felony and who is an offender for whom DNA testing that was
performed under sections 2953.71 to 2953.81 of the Revised Code or
under former section 2953.82 of the Revised Code and analyzed in the
context of and upon consideration of all available admissible evidence
related to the person's case as described in division (D) of section 2953.74
of the Revised Code provided results that establish, by clear and
Delaware County, Case No. 15CAA010003 5
convincing evidence, actual innocence of that felony offense or, if the
person was sentenced to death, establish, by clear and convincing
evidence, actual innocence of the aggravating circumstance or
circumstances the person was found guilty of committing and that is or are
the basis of that sentence of death, may file a petition in the court that
imposed sentence, stating the grounds for relief relied upon, and asking
the court to vacate or set aside the judgment or sentence or to grant other
appropriate relief. The petitioner may file a supporting affidavit and other
documentary evidence in support of the claim for relief.
***
(2) Except as otherwise provided in section 2953.23 of the Revised
Code, a petition under division (A)(1) of this section shall be filed no later
than three hundred sixty-five days after the date on which the trial
transcript is filed in the court of appeals in the direct appeal of the
judgment of conviction or adjudication or, if the direct appeal involves a
sentence of death, the date on which the trial transcript is filed in the
supreme court. If no appeal is taken, except as otherwise provided in
section 2953.23 of the Revised Code, the petition shall be filed no later
than three hundred sixty-five days after the expiration of the time for filing
the appeal.
{¶16} In State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, the Ohio
Supreme Court held:
Delaware County, Case No. 15CAA010003 6
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 any claimed lack of due process that was raised or could have
been raised by the defendant at trial, which resulted in that judgment of
conviction, or on an appeal from that judgment. (Emphasis added.)
{¶17} Here, Appellant asserts he has a tenth grade education. He further
asserts he suffers from an 80% hearing loss and is dependent on the use of hearing
aids and lip reading. He maintains he communicated these issues to trial counsel prior
to and during trial. He further maintains he takes daily medications, including Prozac
and Propanolol ER, which he communicated to trial counsel. However, his trial counsel
did not pursue any further investigation of his physical or mental disabilities. As a result,
Appellant maintains he was pressured by counsel to accept the plea, and he "shut down
mentally" after counsel did not support his position, causing his depression and anxiety
to worsen. When asked by the trial court to list his medications, Appellant stated he
listed the medications he could remember, but was intimidated and nervous, not listing
all the medications. Appellant asserts his trial counsel was ineffective in not intervening.
{¶18} During trial, Appellant advised the trial court he did not require
accommodations for his hearing loss. However, Appellant now maintains due to his
feelings of depression and being coerced into accepting the plea, he did not complain to
the trial court of his inability to hear or understand the proceedings. As a result, he now
claims he was unable to hear or understand the proceedings during the change of plea
proceedings.
Delaware County, Case No. 15CAA010003 7
{¶19} On direct appeal in State v. Petway, 5th Dist. No. 3CAA120084, 2014-
Ohio-4439, Appellant assigned as error in Assignments of Error one and two,
{¶20} “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL DID NOT CONDUCT AN INVESTIGATION INTO THE
MEDICAL, EDUCATIONAL, AND SOCIAL HISTORY OF THE
DEFENDANT/APPELLANT PRIOR TO ENTERING A GUILTY PLEA PURSUANT TO A
PLEA BARGAIN.”
{¶21} “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL FAILED TO REQUEST A PRESENTENCE
INVESTIGATION TO INQUIRE INTO THE EXTENT OF THE
DEFENDANT/APPELLANT'S DOCUMENTED PHYSICAL AND MENTAL
DISABILITIES AND FURTHER FAILED TO PROVIDE ANY MITIGATION
INFORMATION AT SENTENCING.”
{¶22} This Court held,
During the plea hearing, appellant was placed under oath, and the
trial court explained to him that he could interrupt him at anytime if he did
not understand an explanation or question or wished a clarification. T. at
4–5. The trial court emphasized that he wanted to make sure appellant
was “completely understanding of everything going on.” T. at 4.
Appellant informed the trial court that he had a tenth grade
education, could read and write, and the only special education courses
he had taken were a result of his impaired hearing. T. at 5–6, 7. Appellant
Delaware County, Case No. 15CAA010003 8
stated he could hear the judge. T. at 6. The trial court offered appellant
hearing devices to help him, but he declined. T. at 6–7.
The trial court asked appellant if he was on any medications and
appellant stated, “I am taking Diovan for high blood pressure. I am taking
Propanolol to slow my heart down. And I'm taking metformin for diabetic,
and I am taking another meds for cholesterol.” T. at 8. The trial court found
appellant to be alert and not under the influence of alcohol or drugs. Id.
Appellant admitted he was entering his plea on the advice of
counsel, and he was one hundred percent satisfied with his trial counsel's
representation. T. at 12, 19.
From the record before this court, we find the trial court was aware
of appellant's medical, educational, and social history prior to accepting
the plea. The trial court was aware of appellant's hearing disability and
took the time to offer assistance and to make further explanations and
clarifications if necessary. We find no ineffective assistance of counsel on
this issue.
{¶23} Upon review, we find Appellant's arguments on appeal are barred by the
doctrine of res judicata as the arguments were raised on direct appeal. We find nothing
presented at the November 14 hearing justifies further review of that prior conclusion.
Accordingly, the assigned error is overruled.
Delaware County, Case No. 15CAA010003 9
{¶24} Based upon the above, the judgment of the Delaware County Court of
Common Pleas denying Appellant's petition for post-conviction relief is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur