[Cite as State v. Liles, 2022-Ohio-1713.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-21-60
v.
DEMOND LILES, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2013 0072
Judgment Affirmed
Date of Decision: May 23, 2023
APPEARANCES:
Dustin M. Blake for Appellant
Jana E. Emerick for Appellee
Case No. 1-21-60
SHAW, J.
{¶1} Defendant-Appellant, Demond Liles (“Liles”), appeals the November
12, 2021 judgment entry of the Allen County Court of Common Pleas dismissing
his successive postconviction petition. For the reasons that follow, we affirm.
Facts and Procedural History
{¶2} In 2014, Liles pled guilty to four counts of trafficking in cocaine—
felonies of varying degrees—and to various specifications with those counts. Liles
was sentenced to an aggregate term of twenty-five years in prison. On appeal, this
Court affirmed. State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 45.
Thereafter, Liles filed his first petition for postconviction relief, which was
dismissed by the trial court upon the filing of findings of fact and conclusions of
law. This Court affirmed the dismissal on appeal. State v. Liles, 3d Dist. Allen No.
1-16-33, 2017-Ohio-240, ¶ 1.
{¶3} In July 2021, Liles filed a successive petition for postconviction relief.
The State filed a response and motion to dismiss on the basis of lack of jurisdiction.
The trial court initially denied the State’s motion to dismiss, relying on Civ.R.
12(B)(6) as a basis for denial of the motion. The State subsequently filed a motion
requesting a ruling on its prior motion to dismiss for lack of jurisdiction. Liles filed
a response to that motion, and the State filed a response to Liles’ response. On
November 12, 2021, the trial court filed a judgment entry finding the State’s motion
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to dismiss for lack of jurisdiction well taken and dismissing Liles’ successive
postconviction petition.
{¶4} Liles filed this appeal, raising three assignments of error for our review.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
PETITION FOR POST-CONVICTION RELIEF WITHOUT AN
EVIDENTIARY HEARING WHERE APPELLANT
PROVIDED NEW EVIDENCE DEMONSTRATING A
SUFFICIENT FACTUAL BASIS FOR RELIEF FROM HIS
CONVICTION WHICH WAS SECURED IN VIOLATION OF
HIS RIGHTS AS GUARANTEED BY THE FIRST, FIFTH,
SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF
THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION
AND PURSUANT TO BRADY V. MARYLAND, 373 U.S. 83
(1963), KYLE V. WHITLEY, 514 U.S. 419, 434, AND GIGLIO V.
UNITED STATES, 405 U.S. 150 (1972).
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
PETITION FOR POST-CONVICTION RELIEF WITHOUT AN
EVIDENTIARY HEARING WHERE APPELLANT
PROVIDED NEW EVIDENCE DEMONSTRATING A
SUFFICIENT FACTUAL BASIS FOR RELIEF FROM HIS
CONVICTION ON THE BASIS THAT TRIAL COUNSEL AND
POST-TRIAL COUNSEL WERE INEFFECTIVE IN
VIOLATION OF HIS RIGHTS AS GUARANTEED BY THE
FIRST, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO
CONSTITUTION.
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ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN FAILING TO CONSIDER
OHIO’S POST-CONVICTION PROCEDURES AS
CONSTITUTIONALLY INADEQUATE.
{¶5} We will address Liles’ first and second assignments of error together.
Our analysis of those assignments of error focuses on whether the trial court erred
by dismissing Liles’ successive postconviction petition without a hearing.
Legal standard and standard of review
{¶6} Under R.C. 2953.23, “a court may not entertain a petition filed after the
expiration of the period prescribed in [R.C. 2953.21(A)] or a second petition or
successive petitions for similar relief on behalf of a petitioner unless [R.C.
2953.23(A)(1) or (2)] applies.” R.C. 2953.23(A). As relevant to this case, a trial
court may consider an untimely, successive petition only if both of the following
apply:
(a) Either the petitioner shows that the petitioner was
unavoidably prevented from discovery of the facts upon which the
petitioner must rely to present the claim for relief, or, subsequent
to the period prescribed in [R.C. 2953.21(A)(2)] or to the filing of
an earlier petition, the United States Supreme Court recognized a
new federal or state right that applies retroactively to persons in
the petitioner’s situation, and the petition asserts a claim based on
that right.
(b) The petitioner shows by clear and convincing evidence that,
but for constitutional error at trial, no reasonable factfinder
would have found the petitioner guilty of the offense of which the
petitioner was convicted or, if the claim challenges a sentence of
death that, but for constitutional error at the sentencing hearing,
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no reasonable factfinder would have found the petitioner eligible
for the death sentence.
R.C. 2953.23(A)(1)(a)-(b); see State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-
4744, ¶ 36. Unless the petitioner establishes the showings required by R.C.
2953.23(A), the trial court lacks jurisdiction to consider a successive petition for
postconviction relief. State v. Cunningham, 3d Dist. Allen No. 1-15-61, 2016-Ohio-
3106, ¶ 13. Where the trial court lacks jurisdiction to consider a successive
postconviction petition, “the petition is subject to dismissal without a hearing.”
State v. Hendrix, 1st Dist. Hamilton Nos. C-190701 and C-190702, 2021-Ohio-
3470, ¶ 13. We review de novo whether the trial court had subject-matter
jurisdiction to entertain Liles’ petition. State v. Bethel, -- Ohio St.3d --, 2022-Ohio-
783, ¶ 20, citing Apanovitch at ¶ 24.
{¶7} Further, the doctrine of res judicata generally bars a convicted
defendant from litigating a postconviction claim that was raised or could have been
raised at trial or on direct appeal. Id. at ¶ 17, citing State v. Perry, 10 Ohio St.2d
175 (1967), paragraph nine of the syllabus.
Legal Analysis
{¶8} On appeal, Liles contends the new evidence he submitted with his
successive postconviction petition is allegedly exculpatory evidence that had been
withheld by the State in violation of Brady v. Maryland, 373 U.S. 83 (1963) and
there is a reasonable probability that the result of the proceeding would have been
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different had that evidence been disclosed to the defense. Liles attached five
exhibits to his postconviction petition: the affidavit of Dustin Blake (Exhibit A,
with sub-exhibits); the affidavit of Kenneth Rexford (Exhibit B); the affidavit of
Demond Liles (Exhibit C); the indictment filed in the federal criminal prosecution
of former Allen County Sheriff Samuel Crish (Exhibit D); and the judgment entry
of conviction and sentence in the federal prosecution of former Allen County Sheriff
Samuel Crish (Exhibit E).
{¶9} Based on these documents attached to his petition, Liles argues in his
first assignment of error that the suppressed evidence, former Allen County Sheriff
Samuel “Crish’s misconduct and irregular actions during the investigation as now
reported by Task Force officers, qualifies as evidence favorable to Liles.”
(Appellant’s Brief at 16). Liles also argues that “new evidence regarding the same
Task Force previously trying and failing to secure a controlled buy of illegal
narcotics from Liles a couple years previous is certainly also evidence favorable to
Liles.” Id. In his second assignment of error, Liles argues that his trial counsel
failed to have adequately investigated the issues relating to former Allen County
Sheriff Crish; that his trial counsel was ineffective for failing to advise him of the
available defenses of entrapment and outrageous governmental conduct; and that he
was deprived the effective assistance of counsel with regard to his appellate and
prior postconviction counsel.
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{¶10} In dismissing Liles’ petition without an evidentiary hearing, the trial
court specifically stated, under R.C. 2953.23(A)(1)(b), petitioner must show by
clear and convincing evidence that no reasonable factfinder would have found him
guilty but for the constitutional error at trial. The trial court concluded from the
evidence Liles alleged that this standard to establish jurisdiction could not be met.
Given the facts alleged by Liles, the trial court could not “envision a reasonable fact
finder finding Liles not guilty even with effective counsel and full disclosure of the
Sheriff’s corrupt practices.” (Nov. 12, 2021 Judgment Entry, p. 2).
{¶11} As the Ohio Supreme Court has recently explained in State v. Bethel,
-- Ohio St.3d --, 2022-Ohio-783, the question under R.C. 2953.23(A)(1)(b) “goes to
the heart of Brady’s third prong, which requires [petitioner] to show that ‘ “ there is
a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” ʼ ˮ Bethel at ¶ 31. Pursuant to
the Brady standard, “[petitioner] must prove that ‘in the context of the entire record,’
* * * suppression of the [undisclosed evidence] ‘ “undermines confidence in the
outcome of the trial.” ʼ ˮ Id. at ¶ 32, quoting Kyles at 434, quoting Bagley at 678.
{¶12} Several Ohio appellate courts have held that a petitioner cannot meet
the requirement of R.C. 2953.23(A)(1)(b) where the defendant pled guilty and has
had no trial. See, e.g., State v. Hairston, 10th Dist. Franklin No. 13AP-225, 2013-
Ohio-3834, ¶ 8 (“[A]ppellant was convicted pursuant to his guilty plea, not a trial.
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* * * Therefore, the exception found in R.C. 2953.23(A)(1) does not allow the trial
court to consider appellant’s second petition.”); State v. Demyan, 9th Dist. Lorain
No. 11CA010096, 2012-Ohio-3634, ¶ 4 (“[B]ecause he pleaded guilty instead of
going to trial, he cannot demonstrate that, ‘but for constitutional error at trial, no
reasonable factfinder would have found [him] guilty[.]’ ˮ); State v. Clark, 5th Dist.
Stark No. 2007 CA 00206, 2008-Ohio-194, ¶ 18 (“[A]ppellant cannot satisfy the
additional requirement found in R.C. 2953.23(A)(1)(b) * * * (i.e., ‘* * * but for
constitutional error at trial, no reasonable factfinder would have found the petitioner
guilty of the offense * * *’), because appellant was convicted based on his entry of
a guilty plea to the charges in the indictment.”); State v. Pough, 11th Dist. Trumbull
No. 2003-T-0129, 2004-Ohio-3933, ¶ 17 (“Where a petitioner’s conviction results
from a guilty plea rather than trial, R.C. 2953.23(A)(1)(b) does not apply.”); see
State v. Moore, 8th Dist. Cuyahoga No. 82734, 2003-Ohio-4819, ¶ 16.
{¶13} Even with Liles’ allegations regarding allegedly withheld evidence, he
cannot demonstrate by clear and convincing evidence that, “but for constitutional
error at trial, no reasonable factfinder would have found [him] guilty[.]” R.C.
2953.23(A)(1)(b). In this case, Liles was convicted pursuant to his guilty plea, not
a trial. As a result, Liles’ allegations rely on the evidence attached to his successive
postconviction petition, so neither Liles nor this Court have a trial record upon
which to rely in making the review necessitated by R.C. 2953.23(A)(1)(b).
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{¶14} Further, we note that Liles’ successive postconviction petition faced
the additional jurisdictional hurdle of establishing that he was “unavoidably
prevented from discovery of the facts upon which” he relies. R.C. 2953.23(A)(1)(a).
In order to properly consider this additional requirement, we review the dismissal
of Liles’ initial petition for postconviction relief.
{¶15} The first petition as noted above was dismissed and the judgment was
affirmed on appeal. In his first petition, “Liles stated as grounds for relief that he
received ineffective assistance of counsel and that his guilty pleas ‘were secured
through vindictiveness by the government,’ both in violation of his constitutional
rights.” State v. Liles, 3d Dist. Allen No. 1-16-33, 2017-Ohio-240, at ¶ 3. As
previously noted by this Court in affirming the dismissal of that petition, “Liles’s
arguments concerning ‘outrageous government conduct’ were known to him at the
time he entered into a plea agreement in this case and at the time of his sentencing.”
Id. at ¶ 23. Accordingly, the Court concluded that, “any arguments related to this
purportedly ‘outrageous government conduct’ on the part of Sheriff Crish were
available to Liles at the time of his direct appeal and are therefore barred by res
judicata.” Id. at ¶ 25.
{¶16} While it may be true on appeal of his successive petition that Liles did
not obtain the actual documents upon which he now seeks to rely until March 2020,
as stated in his response to the State’s renewed motion to dismiss, we note that in
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his successive postconviction petition he is attempting to raise the same issues,
based on the same “general facts,ˮ as raised in the initial petition. See id.
{¶17} Nevertheless, even assuming that Liles could demonstrate that he was
unavoidably prevented from discovering the facts upon which he now relies on to
present his claims, he still cannot satisfy the requirement of R.C. 2953.23(A)(1)(b)
that but for the constitutional error at trial, no reasonable factfinder would have
found him guilty of the offenses for which he was convicted.
{¶18} Accordingly, because Liles cannot establish the applicability of the
exception found in R.C. 2953.23(A)(1) that would allow the trial court to consider
his untimely, successive postconviction petition, the trial court did not err in
dismissing the petition for lack of jurisdiction. Liles’ first and second assignments
of error are overruled.
Third Assignment of Error
{¶19} In his third assignment of error, Liles argues that Ohio’s
postconviction procedures, or R.C. 2953.21 and R.C. 2953.23, provide a
constitutionally inadequate corrective process. Specifically, Liles argues that the
process should be deemed unconstitutional because of its failure to afford petitioners
“the benefit of the discovery process” and notes that it “imposes a nearly impossible
pleading standard on petitioners.” (Appellant’s Brief at 23). “The relevant statute,
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Ohio Revised Code 2953.21(A), mandates that a petitioner must include affidavits
or evidence dehors the record in support of the claims contained in his petition.” Id.
{¶20} Liles did challenge the constitutionality of R.C. 2953.21 in the trial
court and has specifically argued that R.C. 2953.21 is unconstitutional in his
appellate brief. Additionally, it is apparent that the trial court did not consider the
constitutionality of R.C. 2953.21.
{¶21} We first note that the right to file a postconviction relief petition is a
statutory right, not a constitutional right. State v. Yarbrough, 3d Dist. No. 17-2000-
10, 2001-Ohio-2351, *11. As the Ohio Supreme Court has stated, “postconviction
state collateral review itself is not a constitutional right, even in capital cases.” State
v. Steffen, 70 Ohio St.3d 399, 410 (1994). Additionally, the Ohio Supreme Court
has explained:
State collateral review itself is not a constitutional right. * * *
Further, a postconviction proceeding is not an appeal of a
criminal conviction but, rather, a collateral civil attack on the
judgment. * * * Therefore, a petitioner receives no more rights
than those granted by the statute.
State v. Calhoun, 86 Ohio St.3d 279, 281 (1999).
{¶22} Further, we note this Court has stated in Yarbrough that:
We cannot say that the failure to afford a postconviction relief
petitioner discovery during the initial proceeding to determine
whether an evidentiary hearing is warranted renders the
postconviction relief process unconstitutional. Ohio case law has
affirmatively established that the lack of discovery during the
initial stages of the postconviction process does not violate any
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constitutional rights of the postconviction relief petitioner. At
least one Ohio appellate court has held that the failure to afford a
postconviction relief petitioner discovery during the initial
proceeding to determine whether an evidentiary hearing is
warranted does not render the postconviction relief process
unconstitutional. See State v. La Mar (Mar. 17, 2000), Lawrence
App. No. 98 CA 23, unreported (holding that lack of discovery
during the initial stages of the postconviction process is based
upon sound logic and does not violate any constitutional rights of
the petitioner). We agree and likewise find that the failure to
afford a postconviction relief petitioner discovery during the
initial proceeding to determine whether an evidentiary hearing is
warranted does not render the postconviction relief process
unconstitutional.
Yarbrough at *11.
{¶23} In its decision upholding the denial of a petitioner’s third petition for
postconviction relief, the Twelfth District Court of Appeals addressed the
constitutionality of Ohio’s postconviction relief statutory scheme and found such to
be constitutional. State v. Lawson, 12th Dist. Clermont No. CA2011-07-056, 2012-
Ohio-548, ¶ 26-33, citing, e.g., State v. McGuire, 12th Dist. Preble No. CA2000-10-
011 (Apr. 23, 2001). See also State v. Cowans, 12th Dist. Clermont No. CA98-10-
090 (Sept. 7, 1999), *3 (“Although Crim. R. 35(A) does require brevity in arguing
each individual claim, we find the page limitation constitutional.”). Other courts
have similarly upheld Ohio’s postconviction relief statutory scheme as
constitutional. See, e.g., State v. La Mar, 4th Dist. Lawrence No. 98 CA 23 (Mar.
17, 2000), *2-5; State v. McGrath, 8th Dist. Cuyahoga No. 97207, 2012-Ohio-816,
¶ 12-14.
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{¶24} In this case, despite Liles’ request, this Court sees no reason to revisit
Yarbrough. The Court also fails to see how the standard set forth in R.C. 2953.21
has denied Liles from making any constitutional argument on a prior occasion. As
set forth in our recitation of the facts and procedural history, Liles has been afforded
the right to a prior petition for postconviction relief. Consequently, we overrule
Liles’ third assignment of error.
{¶25} For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/jlr
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