[Cite as State v. Murphy, 2015-Ohio-4282.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 15AP-460
(C.P.C. No. 10CR-1753)
v. :
(REGULAR CALENDAR)
Kevin E. Murphy, :
Defendant-Appellant. :
D E C I S I O N
Rendered on October 15, 2015
Ron O'Brien, Prosecuting Attorney, and Valerie Swanson,
for appellee.
Kevin E. Murphy, pro se.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Kevin E. Murphy, pro se, appeals from a decision and
entry of the Franklin County Court of Common Pleas denying his motion for
postconviction relief and denying his motion for leave to file a supplement to his
postconviction motion. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed March 22, 2010, plaintiff-appellee, State of Ohio,
charged Murphy with 1 count of engaging in a pattern of corrupt activity, in violation of
R.C. 2923.32, a first-degree felony; 1 count of theft, in violation of R.C. 2913.02, a first-
degree felony; 6 counts of receiving stolen property, in violation of R.C. 2913.51, all third-
degree felonies; 21 counts of receiving stolen property, in violation of R.C. 2913.51, fourth-
No. 15AP-460 2
degree felonies; 16 counts of money laundering, in violation of R.C. 1315.55, third-degree
felonies; 4 counts of forgery, in violation of R.C. 2913.31, third-degree felonies; 3 counts of
tampering with records, in violation of R.C. 2913.42, third-degree felonies; and 1 count of
attempted theft, in violation of R.C. 2923.02 and 2913.02, a third-degree felony. All 53
counts in the indictment related to Murphy's participation in a scheme in which Murphy
or one of his co-conspirators would submit fraudulent loan applications and documents to
lenders, obtain mortgage loans on properties with inflated values, and then personally
retain the excess funds.
{¶ 3} After initially entering a not guilty plea and proceeding to trial, Murphy
changed his plea on July 31, 2012, before the jury returned a verdict, and entered a guilty
plea to Count 2 of the indictment, the stipulated lesser included offense of theft as a
second-degree felony. In exchange for his guilty plea on the theft charge, the state
dismissed the other 52 felony counts contained in the indictment. Murphy's plea
agreement stated the parties "jointly recommended" that the state would "request no
more than seven (7) years," and that Murphy would "argue for community control."
{¶ 4} At an October 11, 2012 sentencing hearing, the trial court imposed a
sentence of six years imprisonment and ordered Murphy to pay $356,162.40 in
restitution. The trial court journalized Murphy's conviction and sentence in an
October 12, 2012 judgment entry.
{¶ 5} Murphy appealed his conviction to this court. In his direct appeal,
Murphy's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Murphy filed a pro se brief raising additional arguments. After filing his pro se brief,
Murphy additionally filed a motion for judicial notice and an addendum raising even
more arguments. In a December 19, 2013 decision, this court affirmed Murphy's
conviction and sentence. State v. Murphy, 10th Dist. No. 12AP-952, 2013-Ohio-5599.
This court overruled all the assignments of error and, after conducting our own
independent review of the record, found there were no non-frivolous issues for appeal.
Id. at ¶ 26. Further, this court denied Murphy's motion for judicial notice, finding
Murphy raised numerous disputed issues including a request that the court take notice of
the alleged ineffectiveness of Murphy's trial counsel. Id. We also rejected Murphy's
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addendum to the brief because he filed the addendum "far beyond the time allowed for
filing briefs." Id. at ¶ 25.
{¶ 6} Subsequently, Murphy filed a motion for reconsideration, which this court
denied. State v. Murphy, 10th Dist. No. 12AP-952 (Feb. 11, 2014) (memorandum
decision). Murphy's motion for reconsideration raised issues with a missing portion of
the transcript never made part of the record and claimed that his trial counsel was
ineffective for failing to argue for probation as stipulated in the plea agreement. In
denying his motion for reconsideration, this court noted Murphy had the opportunity to
raise these alleged errors in his pro se brief filed in his direct appeal, but he failed to do so.
Id. at ¶ 7.
{¶ 7} Following the denial of his motion for reconsideration, Murphy filed a
motion for reopening. This court denied the motion for reopening as untimely, noting
Murphy did not provide "good cause" for the untimely filing. State v. Murphy, 10th Dist.
No. 12AP-952 (July 22, 2014) (memorandum decision).
{¶ 8} Separately, on May 24, 2013, Murphy filed a petition for postconviction
relief in the trial court. In his petition, Murphy argued the trial court should vacate or set
aside his sentence on the basis that his trial counsel was ineffective, his plea agreement
was "broken," and there was a "disparity in sentencing." (Petition to Vacate and Set Aside
the Sentence, 4, 9.) Additionally, Murphy argued his trial counsel failed to fully
investigate his case, claimed he was innocent of the charges, and asserted his counsel
coerced him into pleading guilty by promising him a sentence of four years with a
guarantee of judicial release after he served six months. Murphy supported his petition
with his own affidavit and affidavits from his wife, mother, and brother, as well as
numerous other unauthenticated documents. The state responded in a June 27, 2013
motion to dismiss.
{¶ 9} Murphy subsequently filed a motion to stay the court's ruling on his
petition, and Murphy then filed a supplemental postconviction petition on January 19,
2015. His supplemental petition raised new claims of ineffective assistance of counsel,
and Murphy provided two additional affidavits in support of his supplemental petition.
The state filed a memorandum contra Murphy's supplemental petition on February 2,
2015, arguing Murphy failed to seek leave to file the supplemental petition and opposing
No. 15AP-460 4
the petition on the merits. That same day, Murphy filed a motion for leave to file the
supplemental petition, stating the request for leave "was inadvertently left off" of the
supplemental petition, and arguing the trial court should grant him leave because
"counsel has been retained, prepared the amendment and would present it to the court in
addition to what Petitioner has filed himself." The state filed a February 3, 2015
memorandum contra, opposing the motion for leave.
{¶ 10} In a March 30, 2015 decision and entry, the trial court denied Murphy's
motion for postconviction relief and denied Murphy's motion for leave to file a
supplement to the motion. The trial court determined res judicata barred Murphy's
arguments. In a separate entry dated March 31, 2015, the trial court denied Murphy leave
to supplement the petition, finding his motion for leave "to be without merit." Murphy
timely appeals the denial of his postconviction petition.
II. Assignment of Error
{¶ 11} Murphy assigns the following error for our review:
Appellant's Trial Counsel made a multitude of egregious
errors that cost his client (Appellant Murphy) unnecessary
precious years of his life due to his incapacity to focus due to a
mental health diagnosis and an investigation by the Ohio
Supreme Court Disciplinary Control Investigation of his
multiple violations of Professional Rules of Conduct of
members of the Ohio Bar.
III. Analysis
{¶ 12} In his sole assignment of error, Murphy argues the trial court erred in
denying his petition for postconviction relief.
{¶ 13} " '[A] trial court's decision granting or denying a postconviction petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court's finding on a petition for postconviction relief
that is supported by competent and credible evidence.' " State v. Sidibeh, 10th Dist. No.
12AP-498, 2013-Ohio-2309, ¶ 7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, ¶ 58. Further, we review a trial court's decision to deny a postconviction petition
without a hearing under an 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 connotes a decision that is unreasonable,
No. 15AP-460 5
arbitrary or unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶ 14} As a general matter, a petition for postconviction relief is a collateral attack
on a criminal judgment, not an appeal of the judgment. Sidibeh at ¶ 8, citing State v.
Steffen, 70 Ohio St.3d 399, 410 (1994). A petition for postconviction relief " 'is a means to
reach constitutional issues which would otherwise be impossible to reach because the
evidence supporting those issues is not contained in the record.' " Id., quoting State v.
Murphy, 10th Dist. No. 00AP-233 (Dec. 26, 2000). Thus, a postconviction petition does
not provide a petitioner a second opportunity to litigate his or her conviction. Id., citing
State v. Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321, ¶ 32. Instead, R.C. 2953.21
affords a petitioner postconviction relief " 'only if the court can find that there was such a
denial or infringement of the rights of the prisoner as to render the judgment void or
voidable under the Ohio Constitution or the United States Constitution.' " Id., quoting
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph four of the syllabus.
A. Res Judicata
{¶ 15} The doctrine of res judicata places a significant restriction on the availability
of postconviction relief. Sidibeh at ¶ 12. " '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 the trial, which resulted in that judgment or conviction, or on an appeal from
that judgment.' " (Emphasis deleted.) State v. Cole, 2 Ohio St.3d 112, 113 (1982), quoting
Perry at paragraph nine of the syllabus. "Res judicata also implicitly bars a petitioner
from 're-packaging' evidence or issues which either were, or could have been, raised in the
context of the petitioner's trial or direct appeal." Hessler at ¶ 37, citing Murphy, 10th
Dist. No. 00AP-233.
{¶ 16} To overcome the res judicata bar to postconviction relief, the petitioner
must present "competent, relevant, and material evidence" that is outside the record.
State v. Lawson, 10th Dist. No. 02AP-148, 2002-Ohio-3329, ¶ 15; State v. Braden, 10th
Dist. No. 02AP-954, 2003-Ohio-2949, ¶ 27. The evidence offered in support must
"advance the petitioner's claim beyond a mere hypothesis." Lawson at ¶ 15. Additionally,
No. 15AP-460 6
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.; Braden at ¶ 27.
{¶ 17} Here, in his initial postconviction petition, Murphy argued his trial counsel
was ineffective in a number of ways, including allegations that his counsel was not
adequately prepared to represent him; that his counsel did not investigate key pieces of
evidence that could have proved his innocence; and that his counsel induced him to enter
a guilty plea by promising him he would receive a sentence of no more than four years
with guaranteed release after six months. Though Murphy had occasion to file his own
pro se brief during his direct appeal, Murphy did not raise a claim of ineffective assistance
of counsel in that appeal. Instead, Murphy's motion filed during his direct appeal asking
this court to take judicial notice of his counsel's alleged ineffectiveness demonstrates that
Murphy could have made his ineffective argument during his direct appeal but chose not
to. Murphy, 2013-Ohio-5599, at ¶ 24. Further, his arguments in support of his ineffective
assistance claim rely on the trial record, so his claims of ineffective assistance of counsel
"could have been fairly determined without resort to evidence outside the record in [his]
direct appeal." State v. McBride, 10th Dist. No. 14AP-237, 2014-Ohio-5102, ¶ 7, citing
State v. Dixon, 10th Dist. No. 03AP-564, 2004-Ohio-3374, ¶ 12.
{¶ 18} Additionally, the "disparity in sentencing" issue that Murphy raised in his
initial postconviction petition is an issue that Murphy raised in his direct appeal that this
court rejected. Murphy, 2013-Ohio-5599, at ¶ 13-17. Thus, the doctrine of res judicata
bars Murphy from raising that issue again through a postconviction petition. Hessler at
¶ 37.
B. Denial of Leave to Supplement
{¶ 19} Murphy makes many arguments in this appeal regarding his trial counsel's
alleged ineffectiveness, and several of those arguments he raised for the first time in his
supplement to his postconviction petition. Murphy filed his supplement approximately
18 months after the state responded to his petition, without first obtaining leave. When
Murphy then filed a delayed motion to obtain leave, the trial court denied him leave to
supplement the petition.
No. 15AP-460 7
{¶ 20} Before the state has filed a response to the petition for postconviction relief,
the petitioner may freely amend his or her petition without seeking leave of court;
however, once the state has responded to the petition, the petitioner may amend his or
her petition only with leave of court. R.C. 2953.21(F); State v. Young, 10th Dist. No.
05AP-641, 2006-Ohio-1165, ¶ 28. The decision of whether to allow amendment or
supplement of a petition for postconviction relief is within the discretion of the trial court.
Young at ¶ 28, citing State v. Byrd, 145 Ohio App.3d 318, 333 (1st Dist.2001).
{¶ 21} Murphy's supplement to his postconviction petition raises additional
allegations of his trial counsel's alleged ineffectiveness. However, Murphy does not
explain in his brief how the trial court abused its discretion in denying Murphy leave to
amend his petition. As the trial court noted, Murphy's additional arguments, much like
those he raised in his initial petition, all rely on the trial record, and, thus, res judicata
operates to bar Murphy from raising those issues in his postconviction proceedings.
Perry at paragraph nine of the syllabus. To the extent Murphy relies on the newspaper
article he attached to his appellate brief to support his ineffective assistance argument,
that article was not part of the trial record, and we will not consider it. State v. Pariscoff,
10th Dist. No. 09AP-848, 2010-Ohio-2070, ¶ 38.
{¶ 22} Thus, because the trial court did not abuse its discretion in denying
Murphy's postconviction motion or in denying Murphy leave to supplement his
postconviction petition, we overrule Murphy's sole assignment of error.
IV. Disposition
{¶ 23} Based on the foregoing reasons, having overruled Murphy's sole assignment
of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., and SADLER, J., concur.