[Cite as State v. Barber, 2020-Ohio-1635.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : No. 19AP-416 

 (C.P.C. No. 12CR-4433)

v. : 

 (REGULAR CALENDAR) 

Michael R. Barber, : 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on April 23, 2020 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. 

Gilbert, for appellee. 

On brief: Michael R. Barber, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

LUPER SCHUSTER, J. 

{¶ 1} Defendant-appellant, Michael R. Barber, appeals from a judgment of the 

Franklin County Court of Common Pleas denying his postconviction petition. For the 

following reasons, we affirm.

I. Facts and Procedural History 

{¶ 2} In August 2012, the Franklin County Grand Jury indicted Barber and 

codefendant Kelly Rupe on counts of possession of heroin and marijuana in violation of 

R.C. 2925.11. Barber pleaded not guilty, and the matter proceeded to a jury trial. In a prior 

appeal, we summarized the facts presented at 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 
No. 19AP-416 2 

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 
No. 19AP-416 3 

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 accordingly. 

State v. Barber, 10th Dist. No. 14AP-557, 2015-Ohio-2653, ¶ 3-7 ("Barber I"). 

{¶ 3} The trial court sentenced Barber to 11 years in prison for the heroin 

possession count and 3 years in prison for the marijuana possession count, to be served 

consecutively for a total of 14 years in prison. Barber timely appealed, arguing his 

convictions were not supported by sufficient evidence and were against the manifest weight 

of the evidence, the trial court erred in imposing consecutive sentences, and the trial court 

erred in denying his request to represent himself. Barber I at ¶ 8. This court rejected 

Barber's contention relating to his request to represent himself and his sufficiency and 

manifest weight arguments. Id. at ¶ 13,23. However, this court remanded the matter for 

resentencing based on the determination that the trial court erred in imposing consecutive 

sentences without making the findings required under R.C. 2929.14(C)(4). Id. at ¶ 30. In 

July 2015, the trial court reimposed the consecutive sentences. This court affirmed the 

reimposition of the consecutive sentences. State v. Barber, 10th Dist. No. 15AP-902, 2016-

Ohio-1409 ("Barber II"). 

{¶ 4} During the pendency of his first direct appeal, on April 3, 2015, Barber filed 

a pro se petition for postconviction relief with exhibits. On April 15, 2015, Barber filed two 

supplemental affidavits, including his own, in support of his postconviction petition. On 

May 8, 2015, the state of Ohio responded to the postconviction petition. On June 29, 2015, 

Barber moved for leave to amend his postconviction petition. On September 14, 2015, 

Barber again moved for leave to amend his postconviction petition. On September 17, 2015, 

the trial court denied Barber's postconviction petition without a hearing. Barber appealed 

from this denial, and this court reversed based on a finding that the trial court failed to use 

the appropriate legal analysis in reviewing his postconviction petition. State v. Barber, 

10th Dist. No. 16AP-172, 2017-Ohio-9257 ("Barber III"). This court remanded the matter 

to the trial court with instructions to review Barber's postconviction petition in accordance 

with law. Id. at ¶ 34. 
No. 19AP-416 4 

{¶ 5} After remand, on April 4, 2018, Barber filed an additional motion for leave to 

supplement his postconviction petition. On June 6, 2018, the trial court denied Barber's 

April 2018 motion for leave to supplement his postconviction petition but granted his 

motions to amend his postconviction petition filed in April 2015, June 2015, and September 

2015. The trial court also again denied Barber's postconviction petition without a hearing. 

{¶ 6} Barber timely appeals. 

II. Assignments of Error 

{¶ 7} Barber assigns the following errors for our review: 

[1.] The trial court erred by denying appellant's petition for post 

conviction relief by finding that trial counsel was not ineffective 

by misleading and misadvising appellant during plea 

negotiations prior to trial, thereby causing appellant to forego 

a beneficial plea offer, violating appellant's United States 

Constitutional rights under the Sixth and Fourteenth 

Amendment; Strickland v. Washington 104 S.Ct. 2052; Lafler 

v. Cooper, 132 S.Ct. 1376; and Article I, Sections 1, 2, 5, 8, 10 

and 20 of the Ohio Constitution. 

[2.] The trial court erred when it denied appellant's motion for 

leave to supplement his post-conviction. 

III. Discussion 

{¶ 8} Barber's first assignment of error alleges the trial court abused its discretion 

in denying his postconviction petition without a hearing. In his second assignment of error, 

Barber contends the trial court abused its discretion in denying his motion for leave to 

supplement his postconviction petition. These assignments of error lack merit. 

{¶ 9} R.C. 2953.21 governs the filing of postconviction petitions and affords a 

petitioner relief "if the court can find that there was such a denial or infringement of the 

rights of the prisoner as to render the judgment void or voidable under the Ohio 

Constitution or the United States Constitution." State v. Edwards, 10th Dist. No. 18AP704, 2019-Ohio-3905, ¶ 11; State v. Lacking, 10th Dist. No. 14AP-691, 2015-Ohio-1715, 

¶ 10. A petition for postconviction relief is a collateral civil attack on the prior criminal 

judgment, not an appeal of the judgment or a venue to relitigate substantive issues raised 

in a direct appeal. State v. Conway, 10th Dist. No. 17AP-504, 2019-Ohio-2260, ¶ 12; State 

v. Steffen, 70 Ohio St.3d 399, 410 (1994). Because the postconviction relief process is a 
No. 19AP-416 5 

collateral civil attack on a criminal judgment, "[i]t is a means to reach constitutional issues 

which would otherwise be impossible to reach because the evidence supporting those issues 

is not contained" in the trial court record. State v. Carter, 10th Dist. No. 13AP-4, 2013-

Ohio-4058, ¶ 15. 

{¶ 10} R.C. 2953.21(G) sets forth when a postconviction petition may be amended. 

Before the state responds to a postconviction petition, the petitioner is free to amend 

without leave of court. R.C. 2953.21(G)(2). However, after the state's response, a petitioner 

generally may amend a petition only with leave of court. R.C. 2953.21(G)(3); State v. 

Young, 10th Dist. No. 05AP-641, 2006-Ohio-1165, ¶ 28. We review a decision denying a 

motion for leave to amend a postconviction petition for an abuse of discretion. State v. 

Oteng, 10th Dist. No. 18AP-58, 2018-Ohio-3138, ¶ 15. The term "abuse of discretion" 

implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 11} A defendant is not automatically entitled to an evidentiary hearing on a 

postconviction relief petition. State v. Jackson, 64 Ohio St.2d 107, 110 (1980). R.C. 

2953.21(D) provides that "[b]efore granting a hearing on a petition * * * the court shall 

determine whether there are substantive grounds for relief." The petitioner bears the initial 

burden of providing evidence that demonstrates a cognizable claim of constitutional error. 

State v. Ibrahim, 10th Dist. No. 14AP-355, 2014-Ohio-5307, ¶ 9. Thus, the trial court may 

deny the petitioner's postconviction petition without an evidentiary hearing "if the petition, 

supporting affidavits, documentary evidence, and trial record do not demonstrate sufficient 

operative facts to establish substantive grounds for relief." State v. Sidibeh, 10th Dist. No. 

12AP-498, 2013-Ohio-2309, ¶ 13, citing State v. Calhoun, 86 Ohio St.3d 279 (1999). In 

reviewing whether the trial court erred in denying a petitioner's motion for postconviction 

relief without a hearing, this court applies an abuse of discretion standard. Calhoun at 284 

(stating the postconviction relief "statute clearly calls for discretion in determining whether 

to grant a hearing"). 

{¶ 12} We first address Barber's challenge to the trial court's denial of his April 4, 

2018 motion for leave to amend his postconviction petition. Barber filed his postconviction 

petition on April 3, 2015. He first requested to amend the petition on April 15, 2015. 

Because Barber filed that amendment before the state responded on May 8, 2015, it was 
No. 19AP-416 6 

unnecessary for him to request leave as to that filing. Barber again moved for leave to 

amend on June 29, 2015, September 14, 2015, and then over two years later, on April 4, 

2018. The trial court granted each of Barber's requests to amend his petition, except for his 

request filed April 4, 2018. In denying Barber's April 2018 motion for leave, the trial court 

noted that this motion was filed three years after he originally filed his postconviction 

petition. As such, the trial court viewed this motion as untimely. Further, the trial court 

resolved that the documents and exhibits attached to this motion offered nothing different 

in substance with respect to Barber's postconviction petition than the information already 

provided in earlier filings and considered by the trial court. 

{¶ 13} We find it was reasonable for the trial court to deny Barber's final motion for 

leave to amend his postconviction petition. Barber's April 2018 amendment would have 

been his fourth amendment. He filed it three years after he originally filed his 

postconviction petition and nearly four years after his conviction. The submission includes 

documents concerning Barber's postconviction efforts to obtain additional information 

from his trial counsel regarding the fingerprint evidence and to have disciplinary 

proceedings initiated against his trial counsel. Based on these circumstances, we cannot 

conclude that the trial court abused its discretion in denying Barber's April 2018 motion for 

leave to amend his postconviction petition. Accordingly, we overrule his second 

assignment of error. 

{¶ 14} Next, we address the trial court's decision to deny Barber's postconviction 

petition without a hearing. Barber alleges the trial court abused its discretion in denying 

his postconviction petition without a hearing because he submitted evidence that his 

counsel was ineffective during plea negotiations prior to trial. We are unpersuaded. 

{¶ 15} In order to prevail on a claim of ineffective assistance of counsel, a defendant 

must satisfy a two-prong test. First, he must demonstrate that his counsel's performance 

was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong 

requires the defendant to show that his counsel committed errors which were "so serious 

that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth 

Amendment." Id. Counsel can render deficient performance during plea bargaining either 

by failing to convey to the defendant a formal offer from the prosecution to accept a 

favorable plea deal or by giving unreasonable advice to the defendant about whether to 
No. 19AP-416 7 

accept the plea offer. State v. Fickenworth, 10th Dist. No. 14AP-542, 2015-Ohio-1556, ¶ 11; 

Lafler v. Cooper, 566 U.S. 156, 165-67 (2012) (the right to counsel extends to plea 

bargaining). 

{¶ 16} If the defendant can demonstrate deficient performance, he must then 

establish that he was prejudiced by the deficient performance. Strickland at 687. To show 

prejudice where a plea offer has lapsed or been rejected because of counsel's deficient 

performance, a defendant must demonstrate a reasonable probability that (1) he would 

have accepted the earlier plea had he been afforded effective assistance of counsel, (2) the 

prosecutor would not have canceled the plea, and (3) the trial court would have accepted 

the plea. Missouri v. Frye, 566 U.S. 134 (2012). "To establish prejudice in this instance, it 

is necessary to show a reasonable probability that the end result of the criminal process 

would have been more favorable by reason of a plea to a lesser charge or a sentence of less 

prison time." Id. at 147; see also Lafler at 163-64. 

{¶ 17} Barber asserts his trial counsel was deficient in falsely informing him that 

counsel had retained an expert to testify regarding the fingerprints found on a baggie 

containing heroin. In Barber's affidavit submitted in support of his postconviction petition, 

he stated that his trial counsel told him in October 2013 that he had hired a fingerprint 

expert to analyze the baggie of heroin found in Rupe's apartment. Barber's affidavit further 

stated that, three days before trial, his counsel told him that the results from the retained 

fingerprint expert were "inconclusive" because "there were not enough points to make a 

match to" Barber or anyone else, and that an expert would be called at trial on Barber's 

behalf. (Apr. 5, 2015 Barber Aff.) Trial counsel did not call the expert to testify at trial. 

Additionally, Barber asserts his trial counsel was deficient in misleading him regarding 

whether certain persons would testify at trial. According to Barber's affidavit submitted 

with his postconviction petition, in October 2013, he gave information regarding potential 

witnesses to his trial counsel. Other than Brittany Dellenbach, those witnesses did not 

testify at trial. Barber contends that, because of these alleged deficiencies, he declined the 

state's plea offer and proceeded to trial. 

{¶ 18} Contrary to Barber's arguments, he failed to show any deficient performance 

by his trial counsel in regard to the plea-bargaining process. Barber does not contend his 

trial counsel failed to convey to him a formal plea offer from the state. And he presents no 
No. 19AP-416 8 

evidence that his counsel advised him, reasonably or unreasonably, to reject a plea offer 

from the state. Before the start of trial, the parties informed the trial court that the state 

had offered Barber eight years in prison to resolve three pending criminal cases against 

him, and that Barber had rejected that offer and countered with six years in prison to 

resolve the cases. In support of his postconviction petition, Barber provided no evidence 

as to what advice his counsel gave to him regarding the state's offer. While Barber 

submitted evidence that he told his trial counsel about certain witnesses he viewed as being 

beneficial to his defense, he submitted no evidence that his counsel advised him prior to 

trial that the suggested witnesses, who were not called to testify, would materially assist his 

defense. Additionally, Barber offered no evidence that his trial counsel, in the context of 

the plea negotiations, advised him that the state's evidence was legally insufficient to 

convict him or otherwise gave legally erroneous advice. That Barber's trial counsel 

ultimately did not call the previously referenced fingerprint expert to testify does not 

demonstrate deficient performance. In this regard, trial strategy can change over time, and 

Barber presented no evidence that his counsel advised him that, in the absence of 

fingerprint evidence linking him to the baggie of heroin, he could not be convicted. The 

fingerprint evidence was not the only evidence establishing Barber's constructive 

possession of the drugs, as Rupe's trial testimony indicated that the drugs found in 

apartment A were Barber's. Therefore, Barber did not offer any evidence that his trial 

counsel gave him unreasonable advice in the context of plea negotiations. 

{¶ 19} In sum, Barber failed to present evidence that could overcome the 

presumption that his trial counsel's conduct with respect to pretrial plea negotiations was 

within the wide range of reasonable professional assistance. Because Barber failed to 

submit evidence showing any deficient performance by his trial counsel during the pleabargaining process, he correspondingly failed to demonstrate he received ineffective 

assistance of counsel. Therefore, we reject Barber's assertion that the trial court erred in 

denying his postconviction petition without a hearing based on his allegations of pretrial 

deficient performance by his trial counsel. 

{¶ 20} For these reasons, we overrule Barber's first assignment of error. 
No. 19AP-416 9 

IV. Disposition 

{¶ 21} Having overruled Barber's first and second assignments of error, we affirm 

the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

BROWN and NELSON, JJ., concur.