[Cite as In re D.J. , 2020-Ohio-3528.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: D.J. C.A. No. 29119

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DL 11 11 2532

DECISION AND JOURNAL ENTRY Dated: June 30, 2020

CALLAHAN, Presiding Judge. {¶1} Appellant, D.J., appeals the decision of the Summit County Cour t of Common Pleas, Juvenile Division, that dismissed his petition for postc onviction relief without a hearing. This Court affirms in pa rt and reverses in part.

I. {¶2} In 2012, D.J. was adjudicated delinquent by virtue of committin g rape, a violation of R.C. 2907.02(A)(1)(b), and murder, a violation of R.C. 2903. 02(B). The charges arose out of the rape and subsequent death of D .J.’s three-year-old sister, M.R.J., following a period of time in which she was in his care. D.J. was fifteen years old at the t ime of the offense. The juvenile court found that D.J. was a serious youthful offender and committed h im to the custody of the Ohio Department of Youth Services ( “ODYS”) through his twenty-first birthday. The juvenile court also imposed an adult sentence on the rape charge of life impri sonment with parole eligibility after twenty-five years, but stayed the adult portion of the sentence pending D.J.’s completion of the2

juvenile disposition. D.J. file d, but voluntarily dismissed, a n appeal from his adjudication and disposition. {¶3} During the juvenile portion of his disposition, D.J. appeared b efore the juvenile court for periodic dispositional reviews. During these reviews , the juvenile court made findings that reflected a mixed view of his progress. On October 7, 201 6, the State moved to invoke the adult portion of D.J.’s sentence, arguing that he had not engag ed in sex offender treatment while in the custody of ODYS. Because D.J. was within two months of his twenty-first birthday, the State also moved for an expedited hearing on the motion. Durin g that hearing, D.J.’s treatment providers testified about his pro gress toward successful comple tion of sex offender treatment and

his evaluation under a tool know n as the Juvenile Sex Offender Assessment Protocol-II (“J-SOAPII”). {¶4} The juvenile court granted the motion to invoke the adult sente nce on November 22, 2016, five days before D.J.’s twenty-first birthday. In gr anting the motion, the juvenile court emphasized D.J.’s failure to pa rticipate in sex offender progra mming until January 2016 and his “superficial” participation th ereafter. The juvenile court not ed that “[D.J.]’s defiance and failure to timely engage in treatment c onstitutes conduct that demonstr ates that [D.J.] has not been rehabilitated during the course of his ODYS commitment and cann ot complete treatment so that he can safely enter the community in the few days that remain b efore his 21st birthday.” On November 23, 2016, the trial court imposed the adult portion of D.J.’s sentence. {¶5} D.J. appealed the juvenile court’ s order that granted the State ’s motion to invoke the adult portion of his sentence. On January 29, 2018, while that appeal was pending, D.J.3

petitioned the juvenile court for postconviction relief, assert ing five claims for relief. 1 The juvenile court did not take any action on the petition while the direct appeal was pending in this Court. On February 13, 2018, this Court affi rmed the juvenile court’s ord er that granted the State’s motion to invoke the adult portion of D.J.’s sentence. In re D.J. , 9th Dist. Summit No. 28472, 2018-Ohio569. On February 28, 2018, the juve nile court determined that upon its initial review of the petition, D.J. would be allowed an evidentiary hearing on claim s one, two, four, and five, but not on claim three. The juvenile court also ordered the parties to submit briefs on claims one, two,

and four. The State m oved to dismiss the petition, arguing tha t all of D.J.’s cla ims for relief were barred by res judicata or other wise without merit. In response , D.J. conceded that claims three and four could have been raised on direct appeal. {¶6} On June 29, 2018, the juvenile court ruled on D.J.’s remaining claims for relief without having conducted an evide ntiary hearing, concluding tha t each was barred by res judicata. D.J. filed this appeal.

II.

ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN DISMISSING CLAIMS ONE, TWO, AND FIVE OF [D.J.]’S POST-CONVICTION PETITION ON RES JUDICATA GROUNDS, BECAUSE THE CLAIMS RELIED UPON EVIDENCE OUTSIDE THE RECORD. {¶7} In his only assignment of error, D.J. argues that the juvenile court erred by concluding that each of his cla ims for relief was barred by res judicata. {¶8} R.C. 2953.21(A)(1)(a) provides that:

1 The petition was originally time stamped on January 31, 2018. On June 3, 2020, the juvenile court ordered the time stamp to be amended under Civ.R . 60(A) to indicate that the petition was filed on January 29, 2018.4

[a]ny person who has been * * * adjudicated a delinquent child and who claims that there was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio Constitution or the Co nstitution of the United States * * * may file a petition in the court that impos ed sentence, stating the grounds for relief relied upon, and asking the court to vac ate or set aside the judgment or sentence or to gra nt other appropriate relief. Trial courts considering a time ly petition for postconviction r elief must first decide whether a hearing is warranted by determining whether there are substanti ve grounds for relief with reference to “the petition, the supporting a ffidavits, and the documentar y evidence, all the files and records pertaining to the proceedings against the petitioner[.]” R.C. 2953.21(D). Consequently, a trial court may summarily dismiss a petition that “doe s not allege fa cts which, if proved, would entitle the prisoner to relief[]” or a petition whose allegations are n egated by the supporting evidence and

the record. State v. Perry , 10 Ohio St.2d 175 (1967), paragr aph two and three of the syll abus. See

also State v. Calhoun , 85 Ohio St.3d 279 (1999), para graph two of the syllabus; State v. Lester , 41 Ohio St.2d 51 (1975), paragraph two of the syllabus. {¶9} Courts must also consider whether the doctrine of res judicata bars the claims raised in a petition for postconviction relief. Perry at paragraph 8 of the syllabus. Res judicata is grounds for summary dismissal of a petition. Lester at 55. For this reason, postconviction review is “a narrow remedy.” State v. Steffen , 70 Ohio St.3d 399, 410 (1994). “Constitutional issues cannot be considered in postconviction proceedings * * * where they ha ve already been or could have been fully litigated by the prisoner while represented by couns el, either before his judgment of conviction or on direct appeal from that judgment, and thus hav e been adjudicated against him.” Perry at paragraph seven of the syllabus. See , e.g. , State v. Reynolds , 79 Ohio St.3d 158, 162 (1997). “When a trial court denies a petition for post-conviction reli ef on the basis of an issue of law, such as the doctrine of res judicata, this Court reviews t he matter de novo.” State v. Palmer ,5

9th Dist. Summit No. 28723, 2018-Ohio-1486, ¶ 19, citing State v. Tauwab , 9th Dist. Summit No. 28022, 2017-Ohio-81, ¶ 10. {¶10} In his first claim for relief, D.J. asserted that he was in c ustody for purposes of the

Fifth Amendment “when he was administered the J-SOAP-II instrum ent and when he participated in group and individual sex offe nder treatment” during his conf inement with ODYS. Consequently, he maintained, th e ODYS staff was required to adm inister Miranda warnings to him before each of these activities, and the use of his stateme nts in the invocation hearing violated his right against self-incrimination. In his second claim for relief, D.J. alleged that the

administration of the J-SOAP-II and his sex offender treatment were “critical stage[s] of his criminal proceedings” for purposes of the Sixth Amendment and, consequently, that he was denied his right to counsel when he par ticipated in these activities. {¶11} D.J.’s first and second claims for relief raise “constitutional issues * * * that could have been fully litigated” in the course of the juvenile court proceedings or on direct appeal. See Perry at paragraph seven of the sylla bus. As such, res judicata bar s litigation of these claims in postconviction proceedings. See , e.g. , State v. Johnson , 14 Ohio St.2d 67, 68 (1968) (right to counsel); State v. Lawson , 12th Dist. Clermont No. CA2013–12–093, 2014-Ohio-3554, ¶ 67 (failure to advise of Miranda rights); State v. Jones , 3d Dist. Defiance No. 4-08-13, 2008-Ohio5318, ¶ 12 (failure to advise of Miranda rights); State v. Adams , 11th Dist. Trumbull No. 2003– T–0064, 2005-Ohio-348, ¶ 40-41 (right to counsel and failure to advise of Miranda rights); State v. Blassengale , 8th Dist. Cuyahoga No. 61329, 1992 WL 209601, *1 (Aug. 27, 19 92) (failure to

advise of Miranda rights). {¶12} D.J. argues that res judicata should not apply to these claims because his petition was supported by evidence outside the record in the form of his affidavit. The fact that a petitioner6

references evidence from outsi de the record, however, does not automatically prevent application of the doctrine of res judicat a to a postconviction claim. State v. Dovala , 9th Dist. Lorain No. 08CA009455, 2009-Ohio-1420, ¶ 10, quoting State v. Stallings , 9th Dist. Summit No. 19620, 2000 WL 422423, *1 (Apr. 19, 2000). “Evidence outside the record ‘m ust demonstrate that the claims advanced in the petition could not have been fairly determined on direct appeal based on the original trial court record without resorting to evidence outsi de the record.’” Dovala at ¶ 10, quoting Stallings at *1. {¶13} Evidence that is drawn from the trial court record or that was available to the

defendant at the time of trial is not evidence outside the reco rd for purposes of determining whether a claim for relief could have been raised on direct appeal. See State v. Griffin , 9th Dist. Lorain No. 14CA010680, 2016-Ohio-2988, ¶ 13. See also State v. Smith , 9th Dist. Lorain No. 97CA006739, 1998 WL 46747, *3 (Jan. 28, 1998). “‘For a defendant to avoid dismissal of the petition by operation of res judicata, the evidence supporting the claims in the petition must be competent, relevant, and material evidence outside the trial co urt record, and it must not be

evidence that existed or was available for use at the time of t rial.’” State v. Jennings , 10th Dist. Franklin No. 17AP-248, 2018-Ohio-3871, ¶ 17, quoting State v. Montgomery , 10th Dist. Franklin No. 13AP-1091, 2014-Ohio-5756, ¶ 19. Accord State v. B.J.T. , 12th Dist. Warren No. CA2018- 06-062, 2019-Ohio-1049, ¶ 26 (Piper, J., concurring); State v. Dennison , 4th Dist. Lawrence No. 18CA6, 2018-Ohio-4502, ¶ 18; State v. Long , 5th Dist. Richland No. 17CA15, 2017-Ohio-2848, ¶ 17. {¶14} D.J.’s affidavit provided that he was not told that he had a ri ght to remain silent or to have an attorney with him during his treatment and that he w as unaware that his statements would be used against him in the future. This information was within D.J.’s possession and was7

available for use prior to and during the juven ile court procee dings related to the invocation of his

adult sentence. See Griffin at ¶ 13. To this extent, his affidavit was not “evidence outs ide the record” for purposes of defeating application of res judicata. Id . Even if considered to be “evidence outside the record,” however, these statements in D.J .’s affidavit do not demonstrate

that his first and second claims for relief “‘ could not have be en fairly determined on direct appeal based on the original trial court record.’” See Dovala at ¶ 10, quoting Stallings at *1. The trial court did not err, therefore, by concluding that D.J.’s first a nd second claims for relief were barred by application of res judicata and dismissing his petition on t hat basis. {¶15} D.J.’s fifth claim for relief alleged that his attorney during the invocation proceedings rendered ineffective assistance of counsel in five respects: by failing to adequately cross-examine the witnesses who testified regarding their use o f the J-SOAP-II instrument; by failing to retain an expert for the purpose of explaining the l imitations of that assessment tool; by failing to file a motion to suppress on the grounds advanced in his first and second claims for relief; and by failing to seek a trial b y jury during the invocation pr oceedings. {¶16} Res judicata is a proper basis for dismissing a petition that a lleges ineffective

assistance of trial counsel when the issue could have been rais ed without resort to evidence outside the record on direct appeal and the defendant did not do so, al though represented by new appellate

counsel. State v. Cole , 2 Ohio St.3d 112 (1982), syllabus. The same is true when an indigent defendant is represented by different attorneys from the same p ublic defender’s office at trial and on direct appeal. State v. Lentz , 70 Ohio St.3d 527, 529 (1994). “Generally, the introduction in an R.C. 2953.21 petition of evidence dehors the record of ineff ective assistance of counsel is sufficient, if not to mandate a hearing, at least to avoid dism issal on the basis of res judicata.” Cole at 114. This rule, however, is not absolute. See generally id. ; Dovala at ¶ 18. Evidence outside8

the record offered in support of an ineffective-assistance clai m must still demonstrate that the petitioner’s claims “could not fairly have been determined base d on the original record or without

resort to evidence out side the record.” Dovala at ¶ 19-20. {¶17} D.J.’s fifth basis for his ineffective-assistance claim—that tr ial counsel failed to request a trial by jury in conn ection with his invocation proce edings, to object to the trial court’s findings of fact, and to object on equal protection grounds—cou ld have been determined based on the original record in his dir ect appeal. The trial court pro perly dismissed this portion of his fifth claim for relief as res judicata. {¶18} With respect to the remaining four arguments advanced in D.J.’s fifth claim for relief, this Court reaches a dif ferent result. Trial counsel d id not cross-examine D.J.’s treatment providers regarding the appropria teness of, or their use of, th e J-SOAP-II instrument. The effectiveness of cross-examination is a subject that can often be raised in the context of a direct appeal. See , e.g. , State v. Keenan , 9th Dist. Summit No. 20633, 2002 WL 57999, *2 (Jan. 16, 2002). In this case, however, the record on appeal contained n o evidence from which this Court

could have determined whether c ounsel was ineffective on this b asis. Res judicata , therefore, did not bar this argument. {¶19} Similarly, an ineffective-assistance claim based on failure to retain an expert and present expert testimony is not res judicata when it could not have been raised based on the

evidence contained i n the record on appeal. See Dovala , 2009-Ohio-1420, at ¶ 17-18. In order to meet this standard, such expert testimony must not be merely du plicative of other evidence that was presented at trial. See , e.g. , Stallings , 2000 WL 422423, at *2 (concluding that an ineffectiveassistance claim based on failure to present expert testimony w as res judicata when the proposed evidence duplicated some expert testimony in the record and con tradicted other testimony offered9

by the defense). There is no evidence in the record from which this Court could have determined, on direct appeal, whether trial counsel was ineffective based o n the decision not to retain an expert and present testimony regarding the limitations of the J-SOAP-I I assessment tool. Accordingly, the trial court erred by determin ing that D.J.’s second argumen t in his fifth claim for relief was barred by res judicata. {¶20} With respect to the third and fourth arguments in D.J.’s fifth claim for relief, the

trial court also erred. This C ourt has conclude d that a claim of ineffective assistance of counsel

based on failure to raise lack of Miranda warnings cannot be addressed on direct appeal when evidence necessary to address the claim is absent from the reco rd. See State v. Helmick , 9th Dist. Summit No. 27179, 2014-Ohio-4187, ¶ 20; State v. West , 9th Dist. Summit No. 25434, 2011-Ohio5476, ¶ 23. Similarly, there was no e vidence in the record on appeal from which this Court could have determined D.J.’s argument t hat trial counsel failed to ra ise the fact that he was unrepresented during his treatment and evalua tion process had that argument b een raised. See generally State v.

Sweeten , 9th Dist. Lorain No. 07CA009106, 2007-Ohio-6547, ¶ 10-12. Th e trial court, therefore, erred by rejecting D.J.’s third and fourth arguments in his fif th claim for relief on the basis of res judicata. {¶21} In conclusion, the trial court di d not err by determining that D.J.’s first and second claims for relief were barred by res judicata, nor did the tria l court err by rejecting D.J.’s fifth argument in his fifth claim for relief on the same basis. The trial court erred, however, by dismissing the remainder of D.J .’s fifth claim for relief on th e basis that it was res judicata. D.J.’s assignment of error is, there fore, overruled in part and sustai ned in part.10

III. {¶22} D.J.’s assignment of error is ove rruled with respect to his fir st and second claims for relief and the fifth argument in his fifth claim for relief . His assignment of error is sustained with respect to the remainder of his fifth claim for relief. T he judgment of the Summit County Juvenile Court is affirmed in pa rt and reversed in part. This matter is remanded for proceedings consistent with this opinion. See generally R.C. 2953.21(D). Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed equall y to both parties.

LYNNE S. CALL AHAN FOR THE COURT11

CARR, J. HENSAL, J. CONCUR.

APPEARANCES: JENNIFER M. KINSLEY, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.