State v. Davis

[Cite as State v. Davis, 2022-Ohio-4767.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-22-1100
L-22-1101
Appellee
Trial Court No. CR0201701077
CR0201702181
v.

Anton Davis DECISION AND JUDGMENT

Appellant Decided: December 29, 2022

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Donald Gallick, for appellant.

*****

OSOWIK, J.

{¶ 1} In this consolidated appeal, appellant, Anton Davis, appeals the March 31,

2022 judgment of the Lucas County Court of Common Pleas, denying appellant’s post-

sentence motion for a new trial and petition for postconviction relief filed October 14,
2021. For the reasons that follow, we find the trial court did not abuse its discretion in

denying the motion and therefore affirm the judgment.

{¶ 2} The historical facts of this case are brought forward from State v. Davis, 6th

Dist. Lucas Nos. L-19-1298, L-19-1299, 2020-Ohio-4539, 159 N.E.3d 331, ¶ 1-16:

On April 8, 2016, appellant’s vehicle was searched during a traffic

stop. Law enforcement seized a firearm and a green leafy substance, which

was submitted to the Toledo Police Forensic Laboratory for analysis. The

analysis found that the items contained controlled substances, specifically

MMB-CHMICA. On January 12, 2017, in case No. CR0201701077,

appellant was indicted on: one count of carrying concealed weapons in

violation of R.C. 2912.12(A) (2) and (F), a felony of the fourth degree; and

one count of trafficking in drugs in violation of R.C. 2925.03(A) (2)

and (C) (8) (g), a felony of the first degree, with a major drug offender

(“MDO”) specification attached pursuant to R.C. 2941.1410. At this point,

appellant retained counsel and on January 31, 2017, appellant entered a plea

of not guilty.

On March 9, 2017, the Toledo Police executed a search warrant at

appellant’s residence. Toledo Police seized over 800 grams of synthetic

marijuana and drug paraphernalia.

2.
 On April 9, 2017, police made a traffic stop of a vehicle in Toledo,

Ohio. Appellant was a passenger in the vehicle. A search was conducted

and over 80 grams of synthetic marijuana was seized from the vehicle.

The items seized, from the two events mentioned above, were

submitted to the Toledo Police Forensic Laboratory, and were found to

contain controlled substances, specifically 5-Fluoro ADB and MMB-

FUBINACA. These substances are commonly known as the drug K2,

which is a Schedule I narcotic.

On April 19, 2017, appellant’s counsel filed a motion for

independent analysis of controlled substance. On June 27, 2017, the trial

court granted appellant’s motion to obtain independent testing of the

substance found during the search. However, the record lacks information

on whether appellant’s attorney arranged for the independent testing to be

completed.

On July 11, 2017, in case No. CR0201702181, appellant was

indicted on: one count of trafficking in drugs in violation of R.C.

2925.03(A)(2) and (C)(8)(E), a felony of the second degree; one count of

possession of a controlled substance in violation of R.C. 2925.11(A)

and (C)(8)(d), a felony of the second degree; one count of trafficking in a

controlled substance in violation of R.C. 2925.03(A)(2) and (C)(8)(f), a

3.
 felony of the first degree; one count of possession of a controlled substance

in violation of R.C. 2925.11(A) and (C)(8)(d), a felony of the first degree;

three counts of trafficking in a controlled substance in violation of R.C.

2925.03(A)(2) and (C)(8)(g), felonies of the first degree, with MDO

specifications pursuant to R.C. 2941.1410 attached: three counts of

possession of a controlled substance in violation of R.C. 2925.11(A)

and (C)(8)(f), felonies of the first degree, with MDO specifications attached

pursuant to R.C. 2941.1410; one count of having weapons while under

disability in violation of 2923.13(A)(3) and (B), a felony of the third

degree; one count of illegal manufacture of drugs, in violation of R.C.

2925.04(A), (C)(1), (C)(2) and (E), a felony of the first degree; one count

of illegal assembly or possession of chemicals for the manufacture of drugs

in violation of R.C. 2925.041(A), (B), and (C), a felony of the second

degree; and one count of illegal use or possession of drug paraphernalia in

violation of R.C. 2925.14(C)(1) and (F), a misdemeanor of the fourth

degree. Appellant’s girlfriend at the time was indicted as his co-defendant

on similar charges, but those charges were later dropped.

On September 27, 2017, appellant entered two guilty pleas. In case

No. CR0201701077, appellant pled guilty to carrying concealed weapons

and trafficking in a controlled substance with an MDO specification

4.
 attached. In exchange, appellee requested a nolle prosequi as to Count 3,

appellee’s recommendation that the prison sentence would not exceed 14

years when aggregated with case No. CR0201702181, and appellee’s

silence regarding judicial release. The plea agreement states:

I understand the nature of these charges and the possible defenses I

might have. I am satisfied with my attorney's advice, counsel and

competence. I am not now under the influence of drugs or alcohol. No

threats have been made to me. No promises have been made except as part

of this plea agreement, stated entirely as follows: The State of Ohio will

request nolle prosequi as to count three. The State of Ohio will recommend

that the prison sentence not exceed 14 years aggregated with CR-17-2181.

The State will remain silent regarding judicial release.

In case No. CR0201702181, appellant pled guilty to two counts of

trafficking in a controlled substance; in exchange, appellee requested a

nolle prosequi as to all other counts and all specifications, appellee’s

recommendation that the prison sentence would not exceed 14 years

aggregated with case No. CR0201701077, and appellee’s silence regarding

judicial release. The plea agreement appellant signed states:

I understand the nature of these charges and the possible defenses I

might have. I am satisfied with my attorney’s advice, counsel and

5.
 competence. I am not now under the influence of drugs or alcohol. No

threats have been made to me. No promises have been made except as part

of this plea agreement, stated entirely as follows: The State of Ohio will

request nolle prosequi as to count 2, 3, 4, the specification attached to count

5, counts 6, 7, 8, 9, 10, and their specifications, and count[s] 11, 12, 13, 14.

The State of Ohio will recommend that the prison sentence not exceed 14

years aggregated with CR-17-1077. The State will remain silent regarding

judicial release.

At the plea hearing on September 27, 2017, appellant indicated that

he could read, write, understand English, and that he was not under the

influence of anything that would affect his ability to understand the

proceedings. Appellant confirmed he understood the plea he was entering

and the maximum prison terms and fines he could face. Appellant verified

that he understood that his guilty plea was a complete admission of guilt.

The trial court explained appellant’s constitutional rights and appellant

indicated he understood by entering the plea, and he waived them. Upon

questioning by the trial court, appellant stated that he was satisfied with his

attorney’s advice and competence, that his attorney had represented him

“very well,” and that it was in his best interest to enter the plea agreement.

Appellant confirmed no threats had been made in order to induce him into

6.
 entering the plea. The trial court asked if there were any other

representations made to defendant to get him to enter the plea. Appellant

explained that he discussed the question with his attorney, stated that he

had enough time to discuss the question with his attorney, and answered in

the negative. Appellant agreed that he had an opportunity to review the plea

forms with his attorney and that he signed them. Appellant stated he did not

have any questions about anything that had taken place. The trial court

accepted the pleas and found appellant guilty.

On October 26, 2017, appellant filed a pro se motion to withdraw his

plea indicating that: “the plea bargain I took is unacceptable for the crime

and is cruel. There are things in the plea that I admitted to doing that I did

not do.”

On December 5, 2017, appellant’s counsel made a motion to

withdraw from representation of appellant, which was granted. Appellant

was then appointed new counsel on December 12, 2017, and a hearing on

his motion to withdraw his plea was scheduled for January 10, 2018. At the

January 10, 2018 hearing, appellant withdrew his motion to withdraw his

guilty plea in open court.

On February 20, 2018, the trial court sentenced appellant, on both

case numbers, to a mandatory term of two years in prison on both counts in

7.
 case No. CR0201701077, one year on the carrying concealed weapons

count, and a mandatory term of 11 years for the trafficking in a controlled

substance charge with a MDO specification attached, to be served

concurrently. In the aggregate, the total sentence appellant must serve was

13 mandatory years.

In May 2019, appellant retained new counsel who on behalf of

appellant, filed a second motion to withdraw appellant’s plea on May 3,

2019. After approved extensions, appellee filed their response on October

17, 2019. On November 15, 2019, the trial court denied appellant’s motion

to withdraw his plea.

This appeal was filed on December 18, 2019, to address whether the

trial court erred in denying appellant’s motion to withdraw his guilty plea.

In that appeal, Davis argued that the trial court erred by denying his post-

sentence motion to withdraw his guilty plea because the trial court failed to

hold an evidentiary hearing regarding his motion; the plea was not

knowingly, voluntarily, or intelligently made; he had ineffective assistance

of counsel; and he was coerced into entering the guilty pleas.

{¶ 3} In State v. Davis, supra, we found that Davis’ claims were untimely filed

and further, barred by the doctrine of res judicata. We found no error in the trial court’s

8.
decision denying appellant’s post-sentence motion to withdraw his guilty plea without a

hearing.

{¶ 4} On October 14, 2021, Davis filed a motion for a new trial and a petition for

postconviction relief with the trial court.

{¶ 5} In his petition, he presented five claims for relief.

FIRST CLAIM: DAVIS SUFFERED A DEPRIVATION OF

THE CONSTITUTIONAL RIGHT TO DUE PROCESS BECAUSE

THE SENTENCING JUDGE PREVIOUSLY REPRESENTED HIM AS

HIS ATTORNEY.

SECOND CLAIM: DAVIS SUFFERED A DEPRIVATION OF

THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

BECAUSE HE WAS REPEATEDLY GIVEN ERRONEOUS LEGAL

ADVICE.

THIRD CLAIM: DAVIS INCURRED INEFFECTIVE

ASSISTANCE OF COUNSEL DUE TO NEGLECT IN THE YEARS

2019, 2020, AND 2021.

FOURTH CLAIM: DAVIS HAS BEEN WRONGFULLY-

CONVICTED DUE TO FALSE TESTIMONY FROM A WITNESS.

9.
 FIFTH CLAIM: DAVIS IS WRONGFULLY-CONVICTED

BECAUSE HE DID NOT POSSESS NOR EXCHANGE ILLEGAL-

DRUGS.

{¶ 6} On March 31, 2022 the trial court denied Davis’ petitions for postconviction

relief. In denying appellant’s motions, the trial court found the petitions to be untimely

filed pursuant to R.C. 2953.21(A)(1) and further, barred under the doctrine of res

judicata. The court further found that the claims of ineffective assistance of counsel were

not cognizable in postconviction proceedings under R.C. 2953.21.

{¶ 7} In his appeal to this court in this instance, appellant presents three

assignments of error for our review.

{¶ 8} In his first two assignment of error, Davis asserts:

THE TRIAL COURT ERRED BY FAILING TO HOLD A POST-

CONVICTION HEARING CONCERNING POTENTIAL STRUCTURAL

ERROR CAUSED BY APPELLANT’S ORIGINAL TRIAL JUDGE

PREVIOUSLY SERVING AS HIS DEFENSE ATTORNEY.

THE TRIAL COURT ABUSED ITS DISCRETION BY

DISMISSING THE POST-CONVICTION PETITIONWITHOUT A

HEARING, AS THE PROFFERED EXHIBITS, TRANSCRIPT AND

AFFIDAVITS WARRANTED AN EVIDENTIARTY HEARING.

10.
 {¶ 9} Since these two assignments are rooted in the same fundamental argument

that the trial court abused its discretion in failing to hold a hearing on his petition, we will

address them together.

TIMELINESS

{¶ 10} R.C. 2953.21(A)(1)(a)(i) dictates that a petition for postconviction relief

must be filed no later than 365 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 * * * except as

provided in R.C. 2953.23. Here, the final judgment entry was February 22, 2018, and

Davis had 30 days to appeal that order, i.e., until March 22, 2018. Davis’ petition in this

instance was not filed until October 14, 2021--- more than 365 days after the transcripts

were filed. His petition was, therefore, untimely.

{¶ 11} Nevertheless, under 2953.23, a court may entertain an untimely petition

filed after the 365-day deadline set forth in R.C. 2953.21(A)(1)(a)(i) under the following

circumstances:

(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 division (A)(2) of section 2953.21 of the Revised Code or to the filing of

an earlier petition, the United States Supreme Court recognized a new

11.
 federal or state right that applies retroactively to persons in the petitioner’s

situation, and the petition asserts a claim based on that right. [and]

(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, no reasonable factfinder would have found the

petitioner eligible for the death sentence.

{¶ 12} Davis argues that he was unavoidably prevented from discovery of the facts

upon which he must rely to present his claims for relief.

{¶ 13} However, he submits affidavits concerning facts that were obviously

discoverable at the time of his direct appeal. Wanda Davis, appellant’s mother, alleges

that she did not have access to the journal entries to establish that the trial court

represented Davis in a case in 2003. However, the exhibit submitted to the trial court

indicates that it was file-stamped in the Office of Clerk of Courts of Lucas County on

March 4, 2003. This fact was easily discoverable as it was a matter of public record

available 14 years prior to the indictment in this case in April, 2017.

RES JUDICATA

{¶ 14} At the outset, we will note that a defendant is not automatically entitled to

an evidentiary hearing on a postconviction relief petition. State v. Jackson, 64 Ohio St.2d

12.
107, 110, 413 N.E.2d 819 (1980). R.C. 2953.21(D) provides that, before granting a

hearing on a petition * * * the court shall determine whether there are substantive

grounds for relief. Thus, Davis bears the initial burden of providing evidence that

demonstrates a cognizable claim of constitutional error. State v. Ibrahim, 10th Dist.

Franklin No. 14AP-355, 2014-Ohio-5307, ¶ 9.

{¶ 15} Because the burden is the petitioner, a postconviction relief petition may be

denied without an evidentiary hearing where the petition and supporting materials do not

demonstrate that the petitioner set forth sufficient operative facts to establish substantive

grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 282-83, 714 N.E.2d 905 (1999).

{¶ 16} Review of this question is mixed. State v. Barber, 10th Dist. Franklin No.

16AP-172, 2017-Ohio-9257, ¶ 17, 20; cf. State v. Kane, 10th Dist. Franklin No. 16AP-

781, 2017-Ohio-7838, ¶ 9.

{¶ 17} We review the factual findings of the trial court for compliance with

the Calhoun analysis and also for whether the trial court abused the “sound exercise of

discretion” permitted by Calhoun. Calhoun at 284; State v. Campbell, 10th Dist.

Franklin No. 03AP-147, 2003-Ohio-6305, ¶ 14.

{¶ 18} We review questions of law de novo. Barber at ¶ 20; Kane at ¶ 9. A

particular question of law for de novo review is whether a petition for postconviction

relief should have been dismissed without a hearing because it was barred by the doctrine

of res judicata. Ibrahim at ¶ 10.

13.
 {¶ 19} In criminal cases, res judicata generally bars a defendant from litigating

claims in a proceeding subsequent to the direct appeal if he or she raised or could have

raised the issue at the trial that resulted in that judgment of conviction or on an appeal

from that judgment. State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d

1023, ¶ 92.

{¶ 20} Therefore, notwithstanding the fact that a postconviction petition is a quasi-

civil proceeding, constitutional issues cannot be considered in postconviction proceedings

where those issues should have been raised on direct appeal and where the issues may be

fairly determined without resort to evidence dehors the record. State v. Cole, 2 Ohio

St.3d 112, 443 N.E.2d 169 (1982), syllabus; State v. Nichols, 11 Ohio St.3d 40, 41-42,

463 N.E.2d 375 (1984).

{¶ 21} In support of his first assignment, counsel presents no arguments other than

a suggestion “that a lawyer has the potential to discover shockingly negative information

from his/her criminal client” and that when that lawyer presides over a criminal case

involving a former client, it creates the appearance of a conflict-of-interest. Appellant

does acknowledge that there is a minimal likelihood of success based upon these

arguments, citing In re Disqualification of Ward, 77 Ohio St. 3d 1233, 1234, 674 N.E.2d

349 (1995).

{¶ 22} In this case, there is no argument nor any indication from the record before

us of any personal bias from the judge toward appellant.

14.
 {¶ 23} In fact, appellant states in his brief that “appellant cannot point to any bias

which occurred.” Davis did not proffer any evidence or indication of bias when he

presented his petition for relief before the trial court.

{¶ 24} Appellant has not presented any reason why his allegation of bias could not

have been brought in his direct appeal. There is no indication from the record before us

of any personal bias from the judge toward appellant. Thus, appellant was not denied

effective assistance of counsel, and this argument is without merit. See State v. Carles,

6th Dist. No. WD-05-0105, 2006-Ohio-3047, ¶ 47.

GUILTY PLEA

{¶ 25} Davis also submits affidavits of his personal friends in which they each

“recant” testimony. However, the record before this court is devoid of any testimony in

this case. On September 27, 2017, appellant entered two guilty pleas. In case No.

CR0201701077, appellant pled guilty to carrying concealed weapons and trafficking in a

controlled substance with an MDO specification attached. In exchange, appellee

requested a nolle prosequi as to Count 3, appellee’s recommendation that the prison

sentence would not exceed 14 years when aggregated with case No. CR0201702181, and

appellee’s silence regarding judicial release.

{¶ 26} Thus, the self-serving affidavits contradicting facts already admitted to by

the appellant does not present constitutional error at trial where no reasonable factfinder

would have found the petitioner guilty of the offense of which the petitioner was

15.
convicted. The substance that was found and tested by the Toledo Police Forensic

Laboratory and was found to contain controlled substances, specifically 5-Fluoro ADB

and MMB-FUBINACA. These substances are commonly known as the drug K2, which

is a Schedule I narcotic. Davis admitted to the truth of these factual allegations.

{¶ 27} As the Supreme Court stated in Menna v. New York 423 U.S. 61, 62-63, fn.

2, 96 S.Ct. 241, 46 L.Ed.2d 195(1975):

... a counseled plea of guilty is an admission of factual guilt so reliable that,

where voluntary and intelligent, it quite validly removes the issue of factual

guilt from the case. In most cases, factual guilt is a sufficient basis for the

State's imposition of punishment. A guilty plea, therefore, simply renders

irrelevant those constitutional violations not logically inconsistent with the

valid establishment of factual guilt and which do not stand in the way of

conviction, if factual guilt is validly established. State v. Pennington, 2002-

Ohio-2375, 2nd Dist., Clark County, No. 2001 CA 1.

{¶ 28} Other courts have previously held that where a defendant enters a guilty

plea, R.C. 2953.23(A)(1)(b)—requiring a defendant to establish by clear and convincing

evidence that no reasonable factfinder would have found him guilty but for constitutional

error at trial—does not apply. See, e.g., State v. Moore, 8th Dist. Cuyahoga No. 82734,

2003-Ohio-4819, ¶ 16 (“Appellant pled guilty to drug possession and no trial occurred;

therefore, [R.C. 2953.23(A) ] does not apply.”); State v. Halliwell, 134 Ohio App.3d 730,

16.
735, 732 N.E.2d 405 (8th Dist.1999) (defendant could not satisfy the requirement that

“but for constitutional error at trial, no reasonable fact finder would have found the

petitioner guilty of the offense of which the petitioner was convicted” where he was

convicted “pursuant to his plea of guilty, not by reason of trial”); State v. Hairston, 10th

Dist. Franklin No. 13AP-225, 2013-Ohio-3834, ¶ 8 (where appellant was convicted

pursuant to his guilty plea, not a trial, “the exception found in R.C. 2953.23(A)(1) does

not allow the trial court to consider appellant’s * * * petition”); State v. Demyan, 9th

Dist. Lorain No. 11CA0100096, 2012-Ohio-3634, ¶ 4 (because defendant pleaded guilty

instead of going to trial, he could not demonstrate that, “but for constitutional error at

trial, no reasonable factfinder would have found [him] guilty”); State v. Clark, 5th Dist.

Stark No. 2007 CA 00206, 2008-Ohio-194, ¶ 18 (appellant cannot satisfy the requirement

that but for constitutional error no reasonable factfinder would have found the petitioner

guilty of the offense at trial 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 also State v.

Pepper, 5th Dist. Ashland No. 13 COA 019, 2014-Ohio-364, ¶ 26.

{¶ 29} By entering a plea of guilty, the accused is not simply stating that he did

the discrete acts described in the indictment; he is admitting guilt of a substantive

crime. State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991),

17.
quoting United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927

(1989). Therefore, Davis has no basis to claim that a reasonable factfinder would not

have found him guilty but for constitutional error at trial. State v. Cool, 9th Dist. Summit

No. 24518, 2009-Ohio-4333, ¶ 14; see also State v. Estridge, 2d Dist. Greene No.2005

CA 136, 2006-Ohio-5310, ¶ 8.

{¶ 30} For the foregoing reasons, we find appellant’s first two assignments of

error to be not well-taken and DENIED.

{¶ 31} Davis presents a third assignment of error:

THE TRIAL COURT’S ORDER OF DISMISSAL ERRONEOUSLY DECLARED

THAT APPELLANT FAILED TO PRESENT EVIDENCE OUTSIDE THE RECORD

AND/OR NEW EVIDENCE SHOULD HAVE BEEN SUBMITTED TO THE COURT OF

APPEALS FIRST.

{¶ 32} Davis unartfully repeats his arguments in support of his first two

assignments. The trial court found that the facts alleged in the supporting affidavits were

barred by res judicata by virtue of the fact that the issues could have been raised in the

direct appeal.

{¶ 33} Appellant attempts to contort the finding of the trial court to mean that any

new evidence should have been submitted on appeal. Davis then admits that this

argument is itself absurd in that “new evidence cannot be submitted on appeal.”

18.
 {¶ 34} We find no merit in this circuitous argument. For the reasons previously

articulated, we find that the arguments raised by the affidavits were barred by res judicata

and by virtue of the guilty plea entered by Davis.

{¶ 35} Therefore, we find Davis’ third assignment of error to be found not well-

taken and denied.

CONCLUSION

{¶ 36} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24(A)(4).

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE

19.
 This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

20.