[Cite as State v. Hartung, 2023-Ohio-1736.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MATHEW RICHARD HARTUNG,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 BE 0029
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 20 CR 313
BEFORE:
David A. D’Apolito, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950, for
Plaintiff-Appellee
Atty. Sterling E. Gill, II, 1544 East Broad Street, Suite 201, Columbus, Ohio 43203, for
Defendant-Appellant.
Dated: May 23, 2023
–2–
D’Apolito, P.J.
{¶1} Appellant, Mathew Richard Hartung, appeals the denial of his petition for
postconviction relief by the Belmont County Court of Common Pleas. He advances three
assignments of error.
{¶2} In his first two assignments of error, Appellant argues that the trial court
abused its discretion and/or committed prejudicial error when it failed to conduct an
evidentiary hearing and when it failed to make findings of fact and conclusions of law. In
his third assignment of error, Appellant argues there was insufficient evidence to sustain
his conviction after evidence of a due process violation was admitted at the sentencing
hearing.
{¶3} For the following reasons, the judgment entry of the trial court denying the
petition is affirmed.
LAW
{¶4} Postconviction relief allows a petitioner to collaterally attack a criminal
conviction by filing a petition to set aside the judgment, where the petitioner’s
constitutional rights were denied to such an extent the conviction is void or voidable under
the Ohio or United States Constitutions. R.C. 2953.21(A); State v. Perry, 10 Ohio St.2d
175, 226 N.E.2d 104 (1967); paragraph four of the syllabus. A common pleas court may
grant relief from a conviction pursuant to R.C. 2953.21 et seq., where the petitioner proves
that he suffered a violation of his constitutional rights during the proceedings resulting in
the conviction.
{¶5} The petitioner has the initial burden to demonstrate in the petition,
supporting affidavits, and the files and records of the case, that there are “substantive
grounds for relief.” R.C. 2953.21(C). Substantive grounds for relief exist if the petition
presents a prima facie claim there was a constitutional violation. The petition must contain
factual allegations that cannot be determined by an examination of the trial record. State
v. Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975).
{¶6} In resolving a post-conviction petition, a trial court may exercise one of three
options:
Case No. 22 BE 0029
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The first is to deny the petition without hearing, in accordance with the law
as set forth in R.C. 2953.21 and the Ohio Supreme Court’s decision in State
v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The second is to
act on the state’s motion for summary judgment by applying the standards
set forth in Civ.R. 56. The third is to schedule an evidentiary hearing on [the
defendant’s] petition, at which time the trial court, as the trier of fact, is
authorized to weigh the evidence and enter judgment.
State v. Paige, 7th Dist. Mahoning No. 17 MA 0146, 2018-Ohio-2782, ¶ 16.
{¶7} A post-conviction petition may be dismissed without a hearing where the
claims are barred by res judicata. State v. West, 7th Dist. Jefferson No. 07 JE 26, 2009-
Ohio-3347, ¶ 24. Res judicata bars any claim or defense that was raised, or could have
been raised, in an earlier proceeding:
Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant 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 of conviction or on an appeal from that judgment.
Perry, 10 Ohio St.2d at 180-181.
{¶8} Appellate courts review a trial court’s ruling on a petition for postconviction
relief for abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 58. Abuse of discretion implies that the court’s attitude is unreasonable,
arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980).
FACTS AND PROCEDURAL HISTORY
{¶9} On March 4, 2021, Appellant was indicted for one count of drug trafficking
(cocaine) in violation of R.C. 2925.03(A)(1), 2925.03(C)(4)(g), a felony of the first degree,
with a major drug offender specification pursuant to R.C. 2941.1410(A) (in an amount at
Case No. 22 BE 0029
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least 370.41 grams); one count of drug possession (cocaine) in violation of R.C.
2925.11(A), 2925.11(C)(4)(f), a felony of the first degree, with a major drug offender
specification pursuant to R.C. 2941.1410(A) (in an amount at least 370.41 grams); one
count of drug trafficking (Alprazolam – the generic name for Xanax) in violation of R.C.
2925.03(A)(1), 2925.03(C)(2)(e), a felony of the first degree; one count of drug
possession (Alprazolam) in violation of R.C. 2925.11(A), 2925.11(C)(2)(d), a felony of the
first degree; and two counts of receiving stolen property in violation of R.C. 2913.51(A),
2913.51(C), felonies of the fourth (AR-15) and fifth (nine televisions) degrees. Two
forfeiture specifications, pursuant to R.C. 2941.1417(A), are stated in the Indictment. The
first specification seeks the forfeiture of fourteen long guns and eleven pistols, and the
second seeks forfeiture of $14,989 in cash.
{¶10} The charges resulted from the execution of two search warrants at
Appellant’s residence at 4207 Trumbull St. in Bellaire, Ohio. The first search warrant was
requested by Bellaire Police Department on November 16, 2020, and the second was
requested by Bridgeport Police Department.
{¶11} The first search warrant was predicated in part on a controlled buy
performed by Kelsey Garrett on October 29, 2020, at the behest of Bellaire Police
Department officer, Gene Grim. Grim did not frisk Garrett on the video from Garrett’s
body camera prior to dispatching her from the Bellaire Police Department to Appellant’s
residence. Consequently, there is no evidence in the record that Garrett did not possess
the two blue Xanax bars prior to arriving at Appellant’s house.
{¶12} Of equal concern, the footage does not clearly depict the hand-to-hand
exchange of product or money. Further, Appellant and Garrett do not openly discuss the
alleged sale, but instead the details of Appellant’s recent overdose, imprisonment, and
hospitalization. Finally, the time stamp on the footage is the wrong date.
{¶13} More specifically, when Appellant answers the door of his residence, Garrett
admires his braided hair, then tells him she heard that he was arrested. Immediately
upon Garrett’s entrance, Appellant reaches to the floor, then stands and reaches into
what appears to be an article of clothing hanging behind him. In a single frame, Appellant
appears to have something small and blue in his hand.
Case No. 22 BE 0029
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{¶14} As he regales Garrett with stories of his overdose (he purportedly
overdosed on Xanax and hallucinated for eleven days), Garrett asks, “[i]s it seven or
eight?” Although Appellant does not respond, the question can be interpreted as an
inquiry regarding the cost of a single blue Xanax bar. Shortly thereafter, Appellant
inquires, “[t]wo?” Although Garrett does not answer, the question can be interpreted to
confirm that Appellant sold Garrett two Xanax bars. (Video at 9:19:07.)
{¶15} Further, as Garrett returns to the police station in her automobile, she
engages in a stream of consciousness on the audio portion of the footage. At one point,
Garrett says, “On my God. Grim what the fuck you got me doin’? Clearly you can see
that there are bars.” (Video at 9:23:39.) She holds a small, shiny packet in front of the
body camera, but the footage does not clearly depict its contents. Further, upon her
return to the police station, the video is black but the audio remains. Garrett asks, “Is that
a whole bar?” Grim responds, “Yeah. It’s a bar.” Garrett replies, “I never knew that. Fuck
me.”
{¶16} According to Grim’s affidavit in support of the first search warrant, Garrett
purchased two blue Xanax bars from Appellant at a cost of $16.00. The affidavit further
reads that Grim conducted surveillance of Appellant’s house in the weeks following the
controlled buy. Grim avers that he witnessed people going to the residence at all hours
of the day and night. Grim further avers that he performed traffic stops of the automobiles
leaving Appellant’s residence, and the driver and/or the passengers in the automobiles
informed Grim that they “were in the area to purchase Xanax from [Appellant].” (11/16/20
Aff., p. 2.)
{¶17} Grim was subsequently terminated from his position with the Bellaire Police
Department, based on documented proof provided by Janae Snyder, a recidivist female
drug offender and Appellant’s girlfriend, of a sexual relationship between Grim and
Snyder. Snyder asserted that she participated in the sexual relationship with Grim in
exchange for Grim’s willful ignorance of her drug crimes.
{¶18} According to Snyder’s affidavit, which was attached to the motion to dismiss
(addressed procedurally as a motion to suppress), Grim told Snyder that he intended to
“set up” Appellant in order to remove Appellant as a rival for Snyder’s affection. Grim told
Snyder that she should not be affiliated with Appellant because he is a rapist. Following
Case No. 22 BE 0029
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Grim’s termination, Snyder and a second woman filed and ultimately settled a federal civil
rights lawsuit against Grim and the Bellaire Police Department.
{¶19} Grim admitted to the state that he had engaged in a consensual sexual
relationship with Snyder after the execution of the second search warrant. According to
a statement made at a pretrial hearing on Appellant’s motion to disqualify J. Kevin
Flanagan, the Belmont County prosecutor assigned to the case (his cousin, Richard
Flanagan is the Chief of Bellaire Police Department), the state chose to “take [their] lumps
in court” instead of allowing Appellant to use the inappropriate relationship as leverage in
this case.
{¶20} At the suppression hearing, Grim, who had been terminated from the
Bellaire Police Department and was under criminal investigation regarding the allegations
in the federal civil rights action, asserted his Fifth Amendment right against self-
incrimination. As a consequence, the sole witness offered by the state was Chief
Flanagan, who oversaw Grim’s investigation of Appellant.
{¶21} Chief Flanagan conceded that Grim did not record the two blue Xanax bars
allegedly purchased from Appellant. Further, the two blue Xanax bars did not appear in
the toxicology report provided by the state to the defense during discovery. However, it
is important to note that Appellant was not charged for the sale of the two blue Xanax
bars in the Indictment.
{¶22} Chief Flanagan further conceded that the hand-to-hand exchange of
product for money was not clearly captured by the body camera, but he explained that
drug deals are typically performed without any actual discussion, and the hand-to-hand
exchange is performed surreptitiously to avoid surveillance. Chief Flanagan testified that
Garrett was given $16.00 in buy money.
{¶23} In the post-hearing brief on the motion to dismiss/suppress, Appellant
argued that Grim did not follow protocol for the controlled buy (although he cited no case
law nor Bellaire Police Department regulations establishing the alleged protocol).
Specifically, Appellant cited Grim’s failure to frisk Garrett prior to the buy, Grim’s failure
to mark the money (typically done in a buy/bust scenario), and Grim’s failure to include a
clear depiction of the two blue Xanax bars allegedly purchased by Garrett in the body
camera video. Appellant likewise challenged the failure of the body camera footage to
Case No. 22 BE 0029
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capture the exchange of product and money and the fact that the video bore a time stamp
of “2008.”
{¶24} Appellant further argued that Grim’s invocation of the Fifth Amendment at
the hearing effectively foreclosed Appellant’s opportunity to demonstrate that Grim
included intentionally or recklessly false statements in the affidavit. “To successfully
attack the veracity of a facially sufficient search warrant affidavit, a defendant must show
by a preponderance of the evidence that the affiant made a false statement, either
‘intentionally, or with reckless disregard for the truth.’ ” State v. McKnight, 107 Ohio St.3d
101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 31; citing State v. Waddy, 63 Ohio St.3d 424,
441, 588 N.E.2d 819 (1992); Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674,
57 L.Ed.2d 667 (1978). “Reckless disregard” means that the affiant had serious doubts
about the truth of an allegation. State v. Hilliard, 7th Dist. Belmont No. 21 BE 0024, 2022-
Ohio-2849, ¶ 39, appeal not allowed, 168 Ohio St.3d 1475, 2022-Ohio-4501, 199 N.E.3d
559, ¶ 39, citing United States v. Williams, 737 F.2d 594, 602 (C.A. 7, 1984). Omissions
count as a false statement if “designed to mislead, or * * * made in reckless disregard of
whether they would mislead, the magistrate.” (Emphasis deleted.) Hilliard, quoting United
States v. Colkley, 899 F.2d 297, 301 (C.A. 4, 1990).
{¶25} The trial court overruled the motion to dismiss/suppress, finding that the
contents of Grim’s affidavit were sufficient to demonstrate probable cause for the
issuance of the first search warrant. The trial court likewise overruled the motion to
disqualify the Belmont County Prosecutor’s Office.
{¶26} Ultimately, the state agreed to amend the first count of the Indictment to
aggravated trafficking in violation of R.C. 2925.03(A)(1), a felony of the first degree, and
dismiss the major drug offender specification related to count one, as well as all of the
other charges in exchange for Appellant’s no contest plea. The parties stipulated to an
agreed sentence of eight to twelve years at the plea hearing.
{¶27} At the sentencing hearing, defense counsel offered into evidence the
undated affidavit of Garrett, which is signed but not sworn. The affidavit reads, in relevant
part:
In an attempt to avoid some legal problems that I had, Officer Gene Grimm
[sic] said that he would make those problems go away, if I would help him
Case No. 22 BE 0029
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set up [Appellant]. So, on or about 10/29/2020, I went to 4207 Trumbull St.
in Bellaire, Ohio with an audio/video device and $16 cash given to be by
Officer Grimm [sic]. I did have two (2) Xanax bars on my person and was
not searched by Officer Grimm [sic] before I arrived at [Appellant’s] house.
After I left his house, I ate one (1) of the Blue Xanax bars and gave the other
one (1) to Officer Grimm [sic].
The copy of the identical affidavit, sworn on March 21, 2022 by a notary public, is attached
to the petition.
{¶28} At the sentencing hearing, defense counsel warranted that he had received
the affidavit for the first time when he entered the courtroom. Based on the affidavit,
defense counsel requested that Appellant be permitted to convert his no-contest plea into
an Alford plea. The trial court overruled the oral motion, and observed, “Don’t see the
significance, quite frankly.” (Plea Hrg., p. 6.)
{¶29} Significantly, defense counsel did not make an oral motion to withdraw
Appellant’s plea or request a continuance of the sentencing hearing to file a written motion
to withdraw plea based on the averments in the affidavit. Instead, Appellant participated
in the sentencing hearing without objection.
{¶30} Appellant filed his petition on April 14, 2022. Appellant filed his direct appeal
on April 20, 2022 (“22 BE 0018”). The state did not respond to the petition, and as a
consequence, Appellant filed a motion for summary judgment on the petition on May 9,
2022. On May 26, 2022, the trial court denied the petition for the following reasons:
[Appellant] has failed to establish the purported [Garrett affidavit], contains
newly discovered evidence that could not have been available earlier
through due diligence.1 In fact, that form, although then unsigned [it was
1The trial court appears to conflate evidence de hors the record with newly
discovered evidence. R.C. 2953.23, captioned “Second or successive petitions;
order; appeal,” which governs both second successive petitions, as well as
untimely petitions, reads, in relevant part:
Case No. 22 BE 0029
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signed but not sworn], appears to be the same one presented to the Court
earlier when [Appellant] asked to convert his No Contest plea to an Alford
plea. Thus, if [Appellant] wanted a trial, he could have called [Garrett] to
testify.
Furthermore, the record contains sufficient information to counter that
purported Affidavit and to support all of the decisions of the Court.
Based upon the entire record, [Appellant] has failed to establish any
substantive grounds for relief. As a consequence, he is not entitled to an
oral hearing and his Petition is without merit.
(5/26/22 J.E., p. 1.) This timely appeal followed.
(A) Whether a hearing is or is not held on a petition filed pursuant to section
2953.21 of the Revised Code, a court may not entertain a petition filed after the
expiration of the period prescribed in division (A) of that section or a second petition
or successive petitions for similar relief on behalf of a petitioner unless division
(A)(1) or (2) of this section applies:
(1) 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 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 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, no
reasonable factfinder would have found the petitioner eligible for the death
sentence.
Case No. 22 BE 0029
– 10 –
{¶31} On October 28, 2022, prior to the filing of Appellant’s brief in 22 BE 0018,
Appellant filed a motion to dismiss his direct appeal. The motion reads, in relevant part,
“After careful review of the facts and circumstances, and due to issues being similar in
[the above-captioned appeal], Appellant has decided against further pursuing this matter.”
This Court granted the motion to dismiss Appellant’s direct appeal on November 7, 2022.
ANALYSIS
{¶32} Appellant voluntarily dismissed his direct appeal prior to briefing. He
predicated the dismissal of his direct appeal on the fact that his arguments there mirrored
the arguments he advances here.
{¶33} However, res judicata bars all claims that could have been raised on direct
appeal, even where no direct appeal is taken, with the sole exception of claims for
ineffective assistance of counsel. State v. Staples, 2nd Dist. Greene No. 2013-CA-52,
2014-Ohio-2556, ¶ 28. Insofar as Garrett’s affidavit was a part of the record on direct
appeal, res judicata bars Appellant from raising his constitutional claim in a post-
conviction petition.
{¶34} Appellant writes, “[t]he newly discovered evidence submitted herewith was
not available for use in [Appellant’s] last hearing as [Appellant] had no knowledge that
[Garrett] played the significant role she played until after Petitioner was sentenced.” (Pet.,
p. 7.) However, Appellant confuses newly-discovered evidence (required for a second,
successive, or untimely petition), with evidence outside of the record (required for a post-
conviction petition).
{¶35} Garrett’s affidavit was a part of the record on direct appeal, having been
identified and marked as an exhibit at the sentencing hearing. Therefore, any due
process argument based on the Garrett affidavit could have been raised in his direct
appeal. Accordingly, we find that Appellant’s petition is barred by res judicata. Assuming
arguendo that the petition is not procedurally barred, we find for the following reasons
that Appellant’s assignment of error have no merit.
Case No. 22 BE 0029
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ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDICIAL ERROR BY NOT MAKING FINDINGS OF FACT AND
CONCLUSIONS OF LAW TO EACH GROUND SET FORTH IN
APPELLANT’S PETITION ACCORDING TO STATE V. MAPSON, 1 OHIO
ST.3D 217, 219, 438 N.E.2D 910, AND STATE V. LESTER (1975), 41
OHIO ST.2D 51.
{¶36} R.C. 2953.21(H), provides in pertinent part, “If the court does not find
grounds for granting relief, it shall make and file findings of fact and conclusions of law
and shall enter judgment denying relief on the petition.” Here, the trial court plainly stated
the facts and case law upon which the dismissal of the petition was predicated.
{¶37} First, the trial court concluded that the petition was barred by res judicata
(although the trial court based its conclusion on the dearth of newly discovered evidence
rather than the fact that the petition was predicated upon evidence within the record of a
direct appeal). Next, the trial court addressed the substantive grounds, finding that the
Garrett affidavit was directly contradicted by the body camera footage of the controlled
buy. Accordingly, we find that the trial court complied with the post-conviction statute and
that Appellant’s first assignment of error is meritless.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDICIAL ERROR BY NOT ORDERING AN EVIDENTIARY
HEARING THAT WOULD HAVE PROVEN, INTER ALIA, APPELLANT
WAS ENTITLED TO AN ALFORD PLEA.
{¶38} Appellant asserts that the trial court abused its discretion in declining to
conduct a hearing on the petition. Rather than arguing that the petition contained prima
facie evidence of a constitutional violation, Appellant argues that a hearing was required
in order for Appellant to demonstrate that he should have been permitted to convert his
no contest plea into an Alford plea.
Case No. 22 BE 0029
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{¶39} A plea of guilty is a complete admission of the defendant’s guilt. Crim.R.
11(B)(1). A plea of no contest is not an admission of defendant’s guilt, but is an admission
of the truth of the facts alleged in the indictment, information, or complaint and such plea
or admission cannot be used against the defendant in any subsequent civil or criminal
proceedings. Crim.R. 11(B)(2). Typically, a defendant will enter a no contest plea in order
to preserve an appeal on a pre-trial motion. In a plea entered pursuant to North Carolina
v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), the defendant, while maintaining his
innocence, pleads guilty to some offense in order to lessen the possible penalty from what
it might be were he convicted as charged.
{¶40} Appellant raises his argument regarding the conversion of his plea for the
first time on appeal. The petition asserts a single constitutional challenge, that is, his
conviction is supported by “tainted evidence in violation of the Fourteenth Amendment.”
(Pet., p. 2.)
{¶41} Generally, errors not raised in the trial court cannot be raised for the first
time on appeal. State v. Anderson, 7th Dist. Belmont No. 14 BE 0041, 2016-Ohio-4651,
¶ 14. However, an appellate court may still review the record for plain error. State v.
Ferrara, 7th Dist. Mahoning No. 14 MA 4, 2015-Ohio-3822, ¶ 23.
{¶42} “The power afforded to notice plain error, whether on a court’s own motion
or at the request of counsel, is one which courts exercise only in exceptional
circumstances, and exercise cautiously even then.” State v. Long, 53 Ohio St.2d 91, 94,
372 N.E.2d 804 (1978). A plain error is one that is: (1) an obvious defect in a proceeding,
(2) that deviates from a legal rule, (3) which in turn affects a substantial right of the party.
State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. Appellant
does not articulate any prejudice that he suffered as a result of the trial court’s denial of
his oral motion to convert his plea. Accordingly, we find that Appellant’s second
assignment of error is meritless.
ASSIGNMENT OF ERROR NO. 3
THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION
AFTER EXCULPATORY [SIC] AFFIDAVIT WAS SUBMITTED.
Case No. 22 BE 0029
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{¶43} In his final assignment of error, Appellant challenges the trial court’s
substantive conclusion that the petition does not demonstrate a prima facie constitutional
claim. Appellant contends that the first search warrant, which yielded evidence of
Appellant’s crimes, was predicated upon fabricated evidence regarding the controlled
buy. However, Garrett’s body camera footage depicts an exchange of a blue product, an
inquiry by Garrett regarding the price of the product, and an inquiry regarding the amount
of the product requested by Garrett. Further, Garrett’s assertion that she had the two
blue Xanax bars on her person prior to the controlled buy is contravened by her statement
to Grim at the conclusion of the body camera footage that she was unfamiliar with Xanax
bars. Based upon a review of the body camera footage, we find that the trial court did
not abuse its discretion in concluding that the petition fails to state a prima facie claim for
a due process violation.
CONCLUSION
{¶44} For the foregoing reasons, we find that Appellant’s petition is barred by res
judicata, or in the alternative, the trial court did not abuse its discretion in denying the
petition for postconviction relief. Accordingly, the judgment entry of the trial court denying
the petition is affirmed.
Robb, J., concurs.
Hanni, J., concurs.
Case No. 22 BE 0029
[Cite as State v. Hartung, 2023-Ohio-1736.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Belmont 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.