[Cite as State v. Cope, 2020-Ohio-4716.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Respondent-Appellee,
v.
DAVID J. COPE,
Petitioner-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 CO 0029
Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2015 CR 471
BEFORE:
Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed
Atty. Robert Herron, Prosecutor and Atty. Ryan Weikart, Assistant Prosecutor,
Columbiana County Prosecutor’s Office, 105 South Market Street, Lisbon, Ohio
44432, for Respondent-Appellee and
Atty. John Juhasz, 7081 West Boulevard, Suite 4, Youngstown, Ohio 44512, for
Petitioner-Appellant.
–2–
Dated:
September 30, 2020
Donofrio, J.
{¶1} Defendant-appellant, David Cope, appeals from a Columbiana County
Common Pleas Court judgment denying his petition for postconviction relief.
{¶2} In the morning of August 6, 2015, the Columbiana County Drug Task Force
executed a search warrant at appellant's home on suspicions of drug activity. Appellant
was at work at the time. But three individuals who were staying at his house, Ron Lacey,
Jessica Rudish, and Courtney Wilson, were present. Additionally, appellant's ten-year
old son was in the house. Police found a methamphetamine lab in the basement and
drugs and drug paraphernalia throughout the house, including in appellant's bedroom.
{¶3} A Columbiana County Grand Jury subsequently indicted appellant on one
count of illegal assembly or possession of chemicals for the manufacture of drugs, a
second-degree felony in violation of R.C. 2925.041(A); one count of endangering children,
a third-degree felony in violation of R.C. 2919.22(B)(6); one count of possession of drugs
(possession of cocaine, less than five grams), a fifth-degree felony in violation of R.C.
2925.11(A); one count of possession of drugs (possession of methamphetamine, less
than the bulk amount), a fifth-degree felony in violation of R.C. 2925.11(A); and one count
of possession of drugs (Nandrolone Decanoate, less than the bulk amount), a first-degree
misdemeanor in violation of R.C. 2925.11(A).
{¶4} The case proceeded to a jury trial. Appellant contended throughout the
trial that Lacey was the person who was responsible for the meth lab in the basement
and he was unaware of the drug activity taking place in his own house. Appellant denied
that any of the drugs or paraphernalia belonged to him. The jury found appellant guilty
on all counts. The trial court subsequently sentenced him to a total sentence of six years
in prison.
{¶5} Appellant appealed to this court arguing his convictions were against the
manifest weight of the evidence. State v. Cope, 7th Dist. Columbiana No. 17 CO 0005,
2018-Ohio-2479. We found appellant's convictions were supported by the manifest
weight of the evidence and affirmed the trial court’s judgment. Id. Appellant appealed to
Case No. 19 CO 0029
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the Ohio Supreme Court, which declined to hear his appeal. State v. Cope, 153 Ohio
St.3d 1505, 2018-Ohio-4285, 109 N.E.3d 1260.
{¶6} Next, on December 7, 2018, appellant filed a petition for postconviction
relief in the trial court. He raised three grounds for relief in the petition and requested a
hearing on the matter.
{¶7} First, appellant asserted his trial counsel was ineffective for failing to
interview appellant’s parents and other family members who had direct information about
the lack of drug activity and lack of child endangerment at appellant’s house. In support,
appellant attached the affidavit of his son, who was ten at the time of appellant’s arrest
and 13 at the time of executing his affidavit, who averred that appellant’s counsel never
interviewed him. He also attached the affidavit of another attorney who averred that the
failure to investigate all leads constitutes ineffective assistance of counsel. Second,
appellant asserted his trial counsel was ineffective because counsel failed to present a
complete defense by calling witnesses who would have created a reasonable doubt about
his guilt. Third, appellant asserted a conspiracy against him by plaintiff-appellee, the
State of Ohio, and state’s witness Jessica Rudish. Rudish testified against appellant and
in doing so also implicated herself. Appellant argued that no one would knowingly
implicate herself unless it was part of a deal with the state.
{¶8} The state filed a motion to dismiss appellant’s petition. It argued the
petition was untimely, the issues appellant raised were barred by the doctrine of res
judicata, and the petition lacked substantive grounds for relief.
{¶9} The trial court dismissed appellant’s petition without a hearing. The court
found it was possible to raise the issues in the petition in appellant’s direct appeal. It
noted that all of the information was available to appellant’s appellate counsel. It also
noted that evidence that is of “marginal significance,” which does not advance a
petitioner’s claim beyond a mere hypothesis, is insufficient. Therefore, the court found
the doctrine of res judicata barred appellant’s claims.
{¶10} Appellant filed a timely notice of appeal on August 16, 2019. He now
raises a single assignment of error.
{¶11} Appellant’s sole assignment of error states:
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THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED
WHEN IT DENIED AN EVIDENTIARY HEARING AND DISMISSED THE
PETITION.
{¶12} Appellant argues the trial court abused its discretion by dismissing his
postconviction petition without holding a hearing. He relies on R.C. 2953.21(F), which
provides that the court must hold a hearing unless the petition shows that the petitioner
is not entitled to relief. Appellant asserts the court should have afforded him discovery
and the opportunity to prove his case at a hearing.
{¶13} Appellant contends that the trial court’s finding that he could have raised
the issue in his petition on direct appeal was in error. He asserts that the material he
relies on, including his affidavit and his son’s affidavit, could not have been used in his
direct appeal because they were outside of the record. Thus, appellant argues the trial
court’s finding that all of the events outlined in the postconviction petition occurred at the
time of trial or at least before appellant’s appellate brief was filed is not relevant to denying
him a hearing on his petition. While some of the facts asserted in his petition were in the
record, many of the facts alleged are de hors the record, appellant argues. He contends
the failures of his trial counsel, as alleged in his petition, would only be demonstrable by
postconviction discovery, not discovery between the parties in his underlying criminal
case.
{¶14} Initially, we must address the state’s assertion appellant’s petition was
untimely and, therefore, the trial court lacked jurisdiction.
{¶15} A petitioner must file his postconviction petition no later than 365 days after
the date on which the trial transcript is filed in the direct appeal of the judgment of
conviction. R.C. 2953.21(A)(2).
{¶16} In this case, the transcripts were filed in appellant’s direct appeal on May
31, 2017. He did not file his postconviction petition until December 7, 2018. Thus, his
petition was over six months past the deadline.
{¶17} The requirement that a postconviction petition be filed timely is
jurisdictional. R.C. 2953.23(A) (“a court may not entertain a petition filed after the
expiration of the period prescribed [in R.C. 2953.21]”). Unless the petition is filed timely,
Case No. 19 CO 0029
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the court is not permitted to consider the substantive merits of the petition. State v.
Beaver, 131 Ohio App.3d 458, 461, 722 N.E.2d 1046 (11th Dist.1998).
{¶18} If a postconviction petition is filed beyond the time limitation, R.C.
2953.23(A) precludes the court from entertaining the petition unless: (1) the petitioner
shows that he was unavoidably prevented from discovering the facts upon which his claim
for relief is based, or (2) after the time period expired, the United States Supreme Court
recognized a new federal or state right that applies retroactively to the petitioner and is
the basis of his claim for relief. R.C. 2953.23(A)(1)(a). The petitioner must then show “by
clear and convincing evidence that, but for constitutional error at trial, no reasonable fact
finder would have found [him] guilty of the offense of which [he] was convicted.” R.C.
2953.23(A)(1)(b). Unless the defendant makes the showings required by R.C.
2953.23(A), the trial court lacks jurisdiction to consider either an untimely or a second or
successive petition for postconviction relief. State v. Carter, 2d Dist. Clark No. 03-CA-11,
2003-Ohio-4838, citing State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (1st
Dist.1998).
{¶19} In his petition appellant asserted he was unavoidably prevented from filing
his petition within the 365-day time period because his trial counsel failed to advise him
of his right to seek postconviction relief and because his trial counsel did not make the
file available to appellant until August 2018.
{¶20} The trial court must have found that appellant’s reasons for late filing were
acceptable because it went on to address the merits of appellant’s motion without
discussing the untimeliness. Thus, the court must have taken appellant’s statement at
face value that his trial counsel would not provide the file to him until August 2018. If this
statement is taken as true, then appellant would have been unavoidably delayed from
timely filing his petition.
{¶21} An appellate court reviews a trial court's denial of a petition for
postconviction relief under an abuse of discretion standard. State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. Abuse of discretion connotes more
than an error of law; it implies the trial court acted arbitrarily, unreasonably,
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
Case No. 19 CO 0029
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{¶22} A postconviction petitioner is not automatically entitled to a hearing. State
v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). Before granting an evidentiary hearing
on the petition, the trial court shall determine whether there are substantive grounds for
relief. R.C. 2953.21(C). The trial court's decision of whether to hold an evidentiary hearing
in postconviction matters is reviewed for abuse of discretion. State v. Haschenburger,
7th Dist. Mahoning No. 08-MA-223, 2009-Ohio-6527, ¶ 43.
{¶23} R.C. 2953.21(F) provides in relevant part: “Unless the petition and the
files and records of the case show the petitioner is not entitled to relief, the court shall
proceed to a prompt hearing on the issues even if a direct appeal of the case is pending.”
{¶24} In this case, appellant’s petition and the file show that appellant is not
entitled to relief. Thus, the trial court did not abuse its discretion in denying appellant’s
petition without a hearing.
{¶25} The trial court found that appellant’s petition was barred by the doctrine of
res judicata. The doctrine of res judicata provides that any issue that could have been
raised on direct appeal, and was not, is barred in later proceedings and not subject to
review. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.
{¶26} In his petition, appellant’s main contention was that his trial counsel was
ineffective for failing to interview his then ten-year-old son, his parents, and his sister. He
asserted these family members could have testified as to the lack of drug activity and lack
of child endangerment at appellant’s house.
{¶27} In his affidavit, appellant averred that he provided his trial counsel with a
number of witnesses to contact but that he had “no idea” if his counsel interviewed them.
(Appellant Aff. ¶ 4-5). He further averred that his counsel did not advise him of his right
to file a postconviction petition and that he sought his file from counsel, which she failed
to provide him with. (Appellant Aff. ¶ 6-7). Finally, he averred that his counsel never
asked him about interviewing his son, parents, or sister. (Appellant Aff. ¶ 12).
{¶28} Appellant’s son is G.C. In his affidavit, G.C. averred that appellant’s
counsel never asked to talk with him. (G.C. Aff. ¶ 11). He further averred that he could
have testified at trial that there were times Ron Lacey went into appellant’s basement, but
appellant did not go with him. (G.C. Aff. ¶ 6). He also could have testified that he never
smelled any strong chemicals in the house. (G.C. Aff. ¶ 8).
Case No. 19 CO 0029
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{¶29} Attorney Doug Taylor also provided an affidavit. Atty. Taylor averred as to
the standard for ineffective assistance of counsel. (Taylor Aff. ¶ 4-7). He further averred
as to a lawyer’s duty to investigate. (Taylor Aff. ¶ 8-10). Taylor then concluded that the
failure to attempt to interview possible witnesses constitutes ineffective assistance of
counsel. (Taylor Aff. ¶ 11).
{¶30} What appellant fails to recognize, however, is that even if his son and other
family members testified that generally appellant’s house was not a place for drug activity,
the evidence at trial only focused on the day in question. Appellant was indicted and tried
for events that occurred on August 6, 2015.
{¶31} The testimony at trial was uncontroverted that a methamphetamine lab
was found in appellant's basement along with supplies to manufacture
methamphetamine. Cope, 2018-Ohio-2479, ¶ 41. It was also uncontroverted that a plate
containing cocaine, a straw containing meth residue, and a syringe filled with a steroid
were found in appellant's bedroom where he had slept the night before. Id. And there
was no dispute that appellant left for work and entrusted his ten-year-old son in Lacey's
and Rudish's care. Id. Thus, whether appellant’s house was generally a safe, drug-free
house would not change the circumstances of what occurred and was found by police on
August 6, 2015.
{¶32} As was observed by the First and Twelfth Districts: “‘[E]vidence presented
outside the record must meet some threshold standard of cogency; otherwise it would be
too easy to defeat the holding of Perry [that res judicata bars claims in postconviction that
could have been raised on direct appeal] by simply attaching as exhibits evidence which
is only marginally significant and does not advance the petitioner's claim beyond mere
hypothesis and a desire for further discovery.’” State v. Lawson, 103 Ohio App.3d 307,
315, 659 N.E.2d 362, 367 (12th Dist.1995), quoting State v. Coleman, 1st Dist. Hamilton
No. C-900811, 1993 WL 74756 (Mar. 17, 1993). This statement aptly describes
appellant’s affidavits here. They merely suggest a hypothesis and appellant’s desire for
future discovery since he has already exhausted his direct appeal and his attempt to
appeal to the Ohio Supreme Court.
Case No. 19 CO 0029
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{¶33} Based on the above, we cannot conclude the trial court’s acted arbitrarily,
unreasonably, or unconscionably in dismissing appellant’s postconviction petition without
a hearing.
{¶34} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
{¶35} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, P. J., concurs.
D’Apolito, J., concurs.
Case No. 19 CO 0029
[Cite as State v. Cope, 2020-Ohio-4716.]
For the reasons stated in the Opinion rendered herein, the sole assignment of
error is overruled and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be
taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.