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State v. Dawson

Court of Appeals of Ohio, Fourth District, Pickaway

July 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DWAYNE DAWSON, et al., Defendants-Appellants.

          Dwayne Dawson, Chillicothe, Ohio, Pro Se Appellant.

          Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Carter, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          MATTHEW W. MCFARLAND, JUDGE

         {¶1} This is an appeal from a Pickaway County Court of Common Pleas decision denying Appellant's petition for post-conviction relief alleging his trial counsel was ineffective. Because we find the trial court did not abuse its discretion in denying Appellant's petition, the judgment of the trial court is affirmed.

         FACTS

         {¶2} The State charged Appellant with trafficking in heroin under R.C. 2925.03(a)(1)(C)(6)(a), and involuntary manslaughter under R.C. 29035.04(A). Appellant initially pleaded not guilty, but later, after reaching a plea agreement, he pleaded guilty. The trial court sentenced Appellant to 12 months for the trafficking and 11 years for involuntary manslaughter with the sentences to be served concurrently with each other, and five years of post-release control upon his release from prison.

         {¶3} Appellant filed a pro se motion to withdraw his plea, which the trial court denied. In a decision and entry dated March 23, 2018, this court affirmed Appellant's convictions on direct appeal in State v. Dawson, 4th Dist. Pickaway No. 17CA8, 2018-Ohio-1157.

         {¶4} Appellant filed a petition for post-conviction relief on August 13, 2018 alleging ineffective assistance of his trial counsel. The trial court denied Appellant's petition without a hearing on the basis of res judicata. The trial court found that Appellant should have raised the issue of ineffective assistance of trial counsel on direct appeal, but reasoned that he had remedied that defect by filing a motion to reopen his appeal under App.R. 26(B) asserting ineffective assistance of appellate counsel for failing to assert that Appellant's trial counsel was ineffective, which we denied. It is this judgment of the trial court that Appellant, acting pro se, appeals to this court, asserting two assignments of error.

ASSIGNMENTS OF ERROR
I. TRIAL COURT ABUSED IT'S [SIC] DISCRETION WHEN IT REFUSED TO HOLD AN EVIDENTARY HEARING AND ADJUDICATE APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN PRESENETED WITH OVERWHELMING EVIDENCE WHICH DE HORS THE RECORD AND WHICH CLEARLY PROVES INEFFECTIVE ASSISTENCE OF COUNSEL AND A VIOLATION OF APPELLANT'S DUE PROCESS AND EQUAL PROTECTION OF THE LAW, A VIOLATION OF APPELLANT'S 5TH, 6TH AND 14TH U.S. CONSTITUTIONAL AMENDMENTS AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
II. TRIAL COURT ABUSED IT'S [SIC] DISCRETION WHEN IT REFUSED TO ADJUDICATE APPELLANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BY DENYING SAID CLAIM AS BEING BARRED BY RES JUDICATA. TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS AND EQUAL PROTECTION OF THE LAW AND VIOLATED APPELLANT'S 5TH, 6TH, AND 14TH U.S. CONSTITUTIONAL AMENDMENTS AND ARTCLE I, SECTION 10 OF THE OHIO CONSTITUTION.

         STANDARD OF REVIEW

         {¶5} "A trial court's decision to grant or deny a R.C. 2953.21 petition for postconviction relief should be upheld absent an abuse of discretion." State v. Ulmer, 4th Dist Scioto No. 15CA3708, 2016-Ohio-2873, ¶ 11, citing State v. Bennett, 4th Dist. Scioto No. 15CA3682, 2015-Ohio-3832, ΒΆ 9. "An 'abuse of discretion' is more than an error of law or judgment; it implies that the trial court's attitude was unreasonable, ...


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