from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
Michael Barber, pro se.
1} Defendant-appellant, Michael Barber, appeals a
decision of the Franklin County Court of Common Pleas
originally filed on May 11, 2015, and thereafter amended and
filed on September 17, 2015, concerning a motion for
postconviction relief. We agree that one of Barber's
claims in his postconviction petition was res judicata and
appropriately dismissed without a hearing. We find that the
trial court committed legal error in not using the
appropriate legal analysis in deciding whether to consider
Barber's affidavits. This error makes it premature to
determine whether the trial court properly denied Barber a
hearing, and we remand this matter to the trial court with
FACTS AND PROCEDURAL HISTORY
2} On August 30, 2012, a Franklin County Grand Jury
indicted Barber and a co-defendant, Kelly Rupe, for
possession of heroin in an amount equal to or exceeding 250
grams and possession of marijuana in an amount equal to or
exceeding 5, 000 grams but less than 20, 000
grams. (Aug. 30, 2012 Indictment.) He pled not
guilty on September 12. (Sept. 12, 2012 Plea Form.)
3} On three occasions prior to trial (the last of
which was the morning trial began) the State made plea
offers, all of which Barber declined. (Apr. 17, 2013 Hearing
Tr. at 11, filed Oct. 6, 2014; Jan. 6, 2014 Plea Form; Jan.
13, 2014 Trial Tr. Vol. 1 at 6-9, filed Oct. 6, 2014.) Under
what was most likely the most favorable of these, Barber
would have served eight years in prison to resolve all
charges against him, including some in other pending cases.
(Trial Tr. Vol. 1 at 6-9.) After Barber turned down the last
plea offer on the morning of trial, Barber's attorney
indicated to the trial court that Barber had lost faith in
him and that Barber did not want to continue to be
represented by that attorney. Id. at 9. The trial
court informed Barber that it would not continue the case at
that late juncture, and that Barber could proceed pro se or
he could keep current counsel. Id. at 9-18. Faced
with that choice, Barber elected to keep his counsel.
Id. at 18. At one point in the pretrial discussions,
Barber asked if he could act as co-counsel but that matter
was tabled in order to address the jury waiver with respect
to the weapon under disability charge; Barber never renewed
the request. Id. at 22-23.
4} We have previously summarized the facts as
presented in the trial:
After complaints were made about possible drug activity at an
apartment building located at 500 South Westgate Avenue in
Columbus, Ohio, a police investigation discovered evidence of
possible drug trafficking at that address. Subsequently, the
police obtained and executed a warrant to search 2 upstairs
units in the building, labeled apartment A and apartment B.
Among other things, police found 12 wrapped bricks of
marijuana weighing more than 5, 000 grams, a gun, a baggie
containing 315 grams of heroin, scales, and miscellaneous
pills in apartment A. In apartment B, they found $17, 000 in
cash, some heroin, a scale, a ledger sheet, and the tape used
to wrap the bricks of marijuana.
Rupe testified that he was living in apartment A at the time
of the search. Sometime before the search, appellant moved in
with Rupe. Appellant and Rupe had known one another for a
long time. Two or three months before the search, however,
appellant moved to apartment B after they had a fight.
Appellant was living in apartment B on the day of the search.
According to Rupe, when appellant lived with him in apartment
A, appellant began bringing heroin into the apartment.
Appellant would cut the heroin, weigh it, and package it in
baggies for sale. Rupe became involved in the drug
transactions after appellant asked him to sell some heroin to
someone. Rupe testified that he sold drugs for appellant
between 50 and 100 times. He said that when people contacted
appellant to purchase heroin, appellant would let Rupe know
they were coming to his apartment and the quantity of drugs
they wanted to buy. Rupe then took care of the transaction.
(Tr. 319.) Rupe thought that by helping appellant out in this
way, he would get appellant out of his apartment faster.
With respect to the drugs found in his apartment pursuant to
the search warrant, Rupe denied knowing how the drugs got
there. However, he stated that appellant might have had keys
to his apartment. Appellant's fingerprint was found on
the baggie of heroin recovered from apartment A. Rupe also
explained that appellant liked to keep his money separate
from his drugs, which could account for why the drugs were
found in Rupe's apartment and the money was found in
appellant's apartment. Paperwork found in appellant's
apartment appeared to be a ledger sheet which kept track of
how much money people owed and the quantity of drugs they
wanted. (Tr. 256.)
Appellant presented one witness who testified that she bought
a lot of heroin from Rupe in apartment A but never saw
appellant or purchased heroin from him. In closing arguments,
appellant's trial counsel argued that the drugs were
Rupe's, not appellant's, and that it was Rupe who
kept the money away from his drugs in apartment B. The jury
rejected that argument and found appellant guilty of both
drug possession counts and the trial court sentenced him
State v. Barber, 10th Dist. No. 14AP-557,
2015-Ohio-2653, ¶ 3-7.
5} The trial court sentenced Barber to 14 years in
prison; 11 years on the heroin count and 3 years on the
marijuana count. (June 13, 2014 Jgmt Entry.) Barber timely
appealed and, among his other assignments of error, argued
that "[t]he trial court committed reversible error in
denying appellant's request to represent himself."
Barber, 2015-Ohio-2653, ¶ 8. This Court
ultimately overruled that assignment of error in our decision
on June 30, 2015, but we remanded the case to the trial court
because it had failed to make the appropriate findings for
imposing consecutive sentences under R.C. 2929.14(C)(4).
Id. at ¶ 24-30. At a hearing on July 30, 2015,
the trial court reimposed the 14-year sentence, this time
making the relevant findings for consecutive sentences
pursuant to R.C. 2929.14(C)(4). (July 30, 2015 Hearing Tr.,
filed Nov. 17, 2015; July 31, 2015 Jgmt. Entry; Aug. 28, 2015
Am. Jgmt. Entry.) Appeals from that sentence have proven
unsuccessful. State v. Barber, 10th Dist. No.
15AP-902, 2016-Ohio-1409; State v. Barber, 10th
Dist. No. 15AP-1140 (Jan. 22, 2016) (dismissing duplicate
appeal in light of case No. 15AP-902).
6} While the direct appeal was pending, on April 3,
2015, Barber filed pro se a petition for postconviction
relief with exhibits. (Apr. 3, 2015 Postconviction Petition.)
On April 15, before the State responded, Barber filed two
supplemental affidavits, including his own. (Apr. 15, 2015
Postconviction Petition Supp.) Barber's petition proposed
six claims for relief:
1. That his counsel was ineffective (claims 1-3) in failing
to interview and subpoena witnesses or otherwise develop
evidence on the following topics:
a. That Barber did not have unlimited access to Rupe's
apartment or keys thereto;
b. That Rupe was a regular user and dealer of heroin,
independent of Barber;
c. That Rupe had nice cars, funded an expensive drug habit,
collected valuable exotic fish, had sold a great deal of
heroin over many years, and had other indications of being a
large-volume drug dealer to rebut the State's contrasting
photographs showing Barber's nice apartment and
Rupe's less luxurious apartment;
2. That the trial court abused its discretion in not
permitting Barber to replace his counsel before the trial
began (claim 4);
3. That counsel failed to develop evidence to contest the
State's fingerprint expert who testified that
Barber's fingerprint was on a package of heroin found in
Rupe's apartment (claim 6); and
4. That counsel misled Barber into believing that he had
obtained an expert to refute the State's expert on the
fingerprint analysis and thus misled Barber into rejecting
the offered plea (claim 5).
(Apr. 3, 2015 Postconviction Petition.)
7} Barber's affidavit supported his
petition's claims by swearing that defense counsel told
him he had hired a fingerprint expert and that there were not
enough points of similarity to match his fingerprints to the
print on a baggie of heroin recovered from the scene. (Apr.
1, 2015 Barber Aff. at ¶ 16, 22, 24, filed Apr. 15,
2015.) His affidavit explained that counsel indicated that he
was contacting witnesses whom Barber had identified.
Id. at ¶ 16. Barber averred, however, that
during trial, counsel failed to call the expert he had hired,
failed to visually compare Barber's fingerprints with the
evidence fingerprint due to counsel's inability to
competently use courthouse display technology, and had
forgotten to contact (and thus was unable to call) any of
Barber's witnesses. Id. at ¶ 25-28. Barber,
in his affidavit, concluded that, had he been accurately
advised by counsel of counsel's lack of preparation, he
would have taken the eight-year plea deal that was offered.
Id. at ¶ 28.
8} The State filed a memorandum in opposition and
motion to dismiss on May 8, 2015. (May 8, 2015 Memo. Contra
& Mot. to Dismiss.) Three days later, without giving
reasoning of any kind, the trial court summarily denied
Barber's postconviction petition. (May 11, 2015 Entry
Denying Postconviction Petition.) On June 29, 2015, Barber
sought leave to amend his petition with a fingerprint report
obtained from his former counsel. (June 29, 2015 Mot. for
Leave to Amend.) The following day, the State responded that
the motion should be denied as the petition had already been
denied and there was thus nothing to amend. (June 30, 2015
Memo. Contra Mot. to Amend.) On July 2, the trial court
summarily denied leave to amend, stating no reason for
judgment. (July 2, 2015 Entry Denying Leave to Amend.)
9} Shortly thereafter, on August 31, 2015, Barber
filed a motion for a final order pointing out that his
postconviction petition could not, as a matter of statute, be
dismissed without findings of fact and conclusions of law.
(Aug. 31, 2015 Mot. for Final Appealable Order at 1, citing
former R.C. 2953.21(C)). On September 14, 2015,
Barber again sought to amend his petition, this time with an
affidavit from his landlord to the effect that he and Rupe
did not live together and that, to his knowledge, Barber did
not have a key to Rupe's apartment. (Sept. 14, 2015 Mot.
for Leave to Amend.)
10} Three days later, on September 17, 2015, the
trial court issued an order granting Barber leave to amend
and supplement in respect to the April 15 and September 14
motions, but leaving in place the denial of the June 29, 2015
attempt to amend. (Sept. 17, 2015 Entry Denying
Postconviction Petition.) The same order ...