State v. West , 2019 Ohio 4826 ( 2019 )


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  • [Cite as State v. West, 
    2019-Ohio-4826
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    BUTLER COUNTY
    STATE OF OHIO,                                  :
    Appellee,                                :        CASE NO. CA2018-09-183
    :               OPINION
    - vs -                                                      11/25/2019
    :
    WILLIAM TROY WEST,                              :
    Appellant.                               :
    CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
    Case No. CR2015-03-0497
    Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
    Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
    Rion, Rion & Rion, L.P.A., Inc., Jon Paul Rion, Jason D. Norwood, 130 W. Second Street,
    Suite 2150, Dayton, Ohio 45402, for appellant
    RINGLAND, J.
    {¶ 1} Appellant, William Troy West, appeals the decision of the Butler County Court
    of Common Pleas denying his petition for postconviction relief. For the reasons detailed
    below, we affirm.
    {¶ 2} On May 7, 2015, West and codefendant, Catherina Schaper, entered guilty
    pleas on a bill of information to one count of the sale of an unregistered security in violation
    Butler CA2018-09-183
    of R.C. 1707.44(C)(1) and one count of fraudulent acts or practices in the sale of securities in
    violation of R.C. 1707.44(G), both felonies of the second degree. West, Schaper, and their
    company, North Shore Energy, LLC, were represented at the plea and sentencing by the
    same defense attorney.
    {¶ 3} The charges stemmed from West and Schaper's sale of unregistered
    promissory notes from December 1, 2010 through September 10, 2011 in Butler County to
    16 investor-victims to raise money for North Shore Energy for the alleged purpose of drilling
    oil wells in Texas. During the plea hearing, the state explained that West and Schaper failed
    to disclose to the investors that, at the time of the sales, North Shore Energy was in litigation
    involving the lease rights to Texas land where the company was drilling. The amount of
    fraudulent sales totaled more than $2.2 million, the vast majority of which was not returned to
    the investors. The state further explained that, had the state indicted on all sales, West and
    Schaper would have each faced 36 counts including several first-degree felonies.
    {¶ 4} The plea agreement provided that sentencing would be delayed to allow West
    and Schaper to pursue legitimate efforts to raise restitution. Nearly two years later, West had
    not paid any restitution and the trial court set the matter for sentencing.
    {¶ 5} At the June 5, 2017 sentencing hearing, the trial court sentenced West to two
    concurrent six-year prison terms and ordered him to make the outstanding restitution amount.
    West appealed, raising two assignments of error. First, West claimed he was adversely
    affected at sentencing by his attorney's joint representation of him and Schaper, as his
    attorney was not able to argue that he was less culpable than Schaper at the sentencing
    hearing. Second, West argued the trial court violated his constitutional rights when it
    sentenced him to prison based on his inability to pay full restitution. This court overruled
    West's assignments of error and affirmed the trial court's decision. State v. West, 12th Dist.
    Butler No. CA2017-07-091, 
    2018-Ohio-640
    , ¶ 48. The Ohio Supreme Court declined review.
    -2-
    Butler CA2018-09-183
    02/06/2019 Case Announcements, 
    2018-Ohio-2380
    .
    {¶ 6} Subsequently, this court denied West's pro se motions to reopen his appeal
    and to certify a conflict and the Ohio Supreme Court declined review. State v. West, Butler
    No. CA2017-07-091 (Oct. 2, 2018) (Entry Denying Application to Reopen Appeal);
    02/06/2019 Case Announcements, 
    2019-Ohio-345
    .
    {¶ 7} On July 5, 2018, West petitioned the trial court for postconviction relief. In his
    petition, West raised two claims of ineffective assistance of counsel. First, West claims his
    trial counsel failed to thoroughly investigate his defenses to fraud. Second, because of the
    joint representation, West argued that his defense attorney failed to negotiate a more
    favorable plea bargain for him "despite his lessened culpability."
    {¶ 8} The trial court dismissed West's petition on the basis of res judicata. West now
    appeals, raising three assignments of error for review.
    {¶ 9} Assignment of Error No. 1:
    {¶ 10} THE DOCTRINE OF RES JUDICATA DOES NOT BAR POST-CONVICTION
    CLAIMS THAT ARE SUPPORTED BY EVIDENCE THAT IS OUTSIDE THE DIRECT
    APPEAL RECORD.
    {¶ 11} Assignment of Error No. 2:
    {¶ 12} APPELLANT'S POST-CONVICTION MOTION WAS NOT FILED OUT OF
    TIME--THE TRIAL COURT WAS NOT DIVESTED OF JURISDICTION TO CONSIDER THE
    MOTION ON THE MERITS.
    {¶ 13} Assignment of Error No. 3:
    {¶ 14} WHEN A POST-CONVICTION PETITION ASSERTS VALID CLAIMS OF
    CONSTITUTIONAL VIOLATIONS AND SUPPORTS THOSE CLAIMS BY ATTACHING
    UNCONTROVERTED EVIDENCE DEHORS THE RECORD, THE COURT MUST GRANT
    RELIEF OR, AT A MINIMUM, HOLD A HEARING ON THE CLAIMS.
    -3-
    Butler CA2018-09-183
    {¶ 15} As an initial matter, West claims the trial court denied his petition of
    postconviction relief based on timeliness. However, we conclude the trial court's final
    judgment entry, though it discusses the issue of timeliness, entered its ruling based on the
    doctrine of res judicata. As a result, we will address the substance of West's claims. For
    ease of discussion, we will address West's assignments of error together.
    {¶ 16} A postconviction proceeding is not an appeal of a criminal conviction, but
    rather, a collateral civil attack on a criminal judgment. State v. Bayless, 12th Dist. Clinton
    Nos. CA2013-10-020 and CA2013-10-021, 
    2014-Ohio-2475
    , ¶ 8.                Initial petitions for
    postconviction relief are governed by R.C. 2953.21, which provides three methods for
    adjudicating the petition. State v. Chamberlain, 12th Dist. Brown No. CA2015-03-008, 2015-
    Ohio-2987, ¶ 5.      When a criminal defendant challenges his conviction through a
    postconviction relief petition, the trial court may (1) summarily dismiss the petition without
    holding an evidentiary hearing, (2) grant summary judgment on the petition to either party
    who moved for summary judgment, or (3) hold an evidentiary hearing on the issues raised by
    the petition. R.C. 2953.21(D) thru (F). 
    Id.
    {¶ 17} A trial court's decision to summarily deny a postconviction petition without
    holding an evidentiary hearing pursuant to R.C. 2953.21(D) will not be reversed absent an
    abuse of discretion. State v. Simon, 12th Dist. Butler No. CA2014-12-255, 
    2015-Ohio-2989
    ,
    ¶ 11. The term "abuse of discretion" implies that the court's attitude is unreasonable,
    arbitrary or unconscionable. State v. Thornton, 12th Dist. Clermont No. CA2012-09-063,
    
    2013-Ohio-2394
    , ¶ 34.
    {¶ 18} In the present case, West filed an affidavit in support of his petition for
    postconviction relief. As noted above, West advanced two reasons why he is entitled to
    relief. First, West argues that his trial counsel failed to conduct a thorough investigation
    regarding defenses to his fraudulent actions. Second, because his trial counsel was jointly
    -4-
    Butler CA2018-09-183
    representing his codefendant, West argues that his defense attorney failed to negotiate a
    more favorable plea bargain for him "despite his lessened culpability."
    {¶ 19} Following review, we find the trial court did not err by denying West's petition for
    postconviction relief without a hearing. West did not support his petition with competent,
    relevant, and material evidence outside the record and his petition for postconviction relief is
    barred by res judicata.
    {¶ 20} "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 of conviction, or on an appeal from that judgment." State v. Rose,
    12th Dist. Butler No. CA2012-03-050, 
    2012-Ohio-5957
    , ¶ 20. Res judicata bars a petitioner
    from "re-packaging" evidence or issues that were or could have been raised in trial or direct
    appeal. 
    Id.
    {¶ 21} The presentation of competent, relevant, and material evidence outside the trial
    record may defeat the application of res judicata. State v. Statzer, 12th Dist. Butler No.
    CA2017-02-022, 
    2018-Ohio-363
    , ¶ 16. Where a petitioner argues ineffective assistance of
    counsel through a postconviction relief motion, the petitioner can avoid the bar of res judicata
    by submitting evidence outside the record on appeal that demonstrates that the petitioner
    could not have raised the claim based on information in the original record. 
    Id.
    {¶ 22} As to his first argument, West maintains that the money raised from Ohio
    investors was not obtained through any fraudulent practice. Rather, West alleges that the
    investors were accurately told that their money was being raised to fund new oil well ventures
    and that his proposal was based upon scientific research demonstrating the likelihood that oil
    and gas reserves would be found. West claims that the losses sustained by investors were a
    -5-
    Butler CA2018-09-183
    direct result of the related oil wells being found to be "dry wells," despite scientific evidence
    predicting otherwise.
    {¶ 23} However, any claim that West was prejudiced by his trial counsel's failure to
    adequately investigate the case could have and should have been brought during his direct
    appeal. West does not identify any new evidence or any reason why his claims regarding
    trial counsel's ineffectiveness could not have been raised on direct appeal. Furthermore, as
    correctly found by the trial court, West's claims are directly contradicted by the record.
    During the plea colloquy, the state recited the facts giving rise to the guilty plea. The
    transcript shows that the fraud charge, which West claims could not be proven, was not
    based on dry oil wells, but rather that he and his codefendant failed to disclose to the
    investors that, at the time of the sales, North Shore Energy was in litigation involving the
    lease rights to Texas land where the company was drilling. West then affirmatively stated on
    the record that the state provided an accurate statement of what happened.
    {¶ 24} We similarly find that West's second argument with respect to his defense
    attorney's joint representation is without merit. In his direct appeal, this court found that there
    was no actual conflict of interest in West's defense counsel's joint representation. West,
    
    2018-Ohio-2380
     at ¶ 28-33. Furthermore, this court rejected West's argument that he
    received ineffective assistance of counsel when his trial counsel failed to pursue the
    alternative strategy "that he was less culpable than [his codefendant] for the wrongdoing." 
    Id.
    Those issues were addressed in his prior appeal. 
    Id.
    {¶ 25} We note that West raised one issue that this court declined to address in his
    direct appeal, as it violated the well-established rule against raising new arguments or issues
    in a reply brief. Id. at ¶ 23, fn. 4. To the extent that West may argue that this court did not
    address that issue in his direct appeal, we again note that res judicata bars both the "re-
    packaging" of arguments already made, as well as arguments that could have been made in
    -6-
    Butler CA2018-09-183
    a direct appeal. Rose, 
    2012-Ohio-5957
     at ¶ 20. As a result, the trial court correctly
    determined that West's arguments were barred by res judicata. Therefore, we find the trial
    court did not err by denying West's petition for postconviction relief without a hearing. West's
    three assignments of error are overruled.
    {¶ 26} Judgment affirmed.
    HENDRICKSON, P.J., and S. POWELL, J., concur.
    -7-