[Cite as State v. Adams, 2017-Ohio-519.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

STATE OF OHIO, : 

 : Case No. 16CA23 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

JASON M. ADAMS, : 

 : 

 Defendant-Appellant. : Released: 02/06/17 

_____________________________________________________________ 

APPEARANCES: 

Jason Adams, Lima, Ohio, Pro Se Appellant. 

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert 

C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, 

Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} Jason Adams appeals the judgment entry of the Lawrence 

County Court of Common Pleas, dated July 11, 2016, which dismissed his 

petition for post-conviction relief without a hearing. On appeal, Appellant 

asserts the trial court erred by: (1) failing to conduct a hearing pursuant to 

R.C. 2953.21(C); and (2) failing to provide findings of fact and conclusions 

of law. Upon review, we find no merit to Appellant’s arguments. 

Accordingly, we overrule Appellant’s sole assignment of error and affirm 

the judgment of the trial court. 
Lawrence App. No. 16CA23 2

FACTS 

{¶2} A Lawrence County Common Pleas Jury convicted Appellant of 

complicity to aggravated robbery, a felony of the first degree. By final 

judgment entry of December 23, 2014, he was sentenced to a nine-year 

prison term. 

{¶3} Appellant’s conviction arose from an ill-conceived plan to rob 

Charles (Sam) Jones, an elderly “bookie” in Ironton, Ohio. On January 14, 

2014, church volunteers near Central Christian Church saw a commotion in 

front of the church, observed two men running away, and assisted Jones and 

Appellant, who appeared to have been robbed. One of the assailants was 

chased to a black Dodge Durango pickup truck. Once surveillance video of 

the robbery and truck was obtained from a nearby school, the investigation 

quickly unfolded. Appellant, his long-time friend Scott Lewis, and a third 

man, Ed Hampton, Lewis’s uncle, were subsequently indicted for robbing 

Jones.1

{¶4} Appellant’s co-defendants entered guilty pleas and did not 

proceed to trial. Appellant, however, an Iraq war veteran with no prior 

criminal record and good standing in the community, proceeded to trial and 

testified on his own behalf. Appellant maintained throughout the 

 

1

 Appellant was indicted on March 25, 2014. 
Lawrence App. No. 16CA23 3

investigation and during his testimony at trial that he was not involved in 

planning or participation and was, in fact, also a victim of the crime. 

{¶5} The State presented testimony from Jones, the 

bystanders/witnesses at the church, the investigating officers, Scott Lewis, 

and additional witnesses who identified the State’s exhibits. The State’s 

exhibits included surveillance film of the robbery and escape; records of 

multiple phone contacts between Appellant and Lewis before, during, and 

after the incident; Appellant’s initial statement to responding officers; 

Appellant’s recorded statement at the police station; surveillance film from a 

local store showing Appellant and his co-defendants purchasing toy guns on 

the day of the incident; and photographs of the victim’s injuries. 

{¶6} The defense strategy was to attempt to cast doubt as to the 

credibility of the investigating officers and Scott Lewis. However, the jury 

must have found the circumstantial evidence overwhelming and Appellant 

not to be a credible witness. After Appellant was sentenced, a timely appeal 

followed. 

{¶7} In his direct appeal, Appellant raised six assignments of error, 

including manifest weight of the evidence, an evidentiary issue, sentencing 

issues, and an ineffective assistance of counsel claim. On June 14, 2016, 

while his direct appeal was still pending, Appellant filed a petition for post-
Lawrence App. No. 16CA23 4

conviction relief, alleging his conviction was void or voidable under the 

Sixth and Fourteenth Amendments to the United States Constitution and 

Article I, Section 10 of the Ohio Constitution because his trial counsel did 

not render effective assistance. On July 11, 2016, the trial court dismissed 

Appellant’s petition without conducting an evidentiary hearing and by 

judgment entry which did not separately caption findings of fact and 

conclusions of law. 

{¶8} On July 25, 2016, Appellant filed a notice of appeal of the 

court’s decision on his post-conviction petition. On November 10, 2016, 

this court issued its decision in the direct appeal. See State v. Adams, 4th 

Dist. Lawrence No. 15CA2, 2016-Ohio-7772. We overruled four 

assignments of error which included the ineffective assistance claim, 

declined to consider one which the parties had resolved, and found merit to 

Appellant’s post-release control notification argument. We now consider 

the appeal of the dismissal of Appellant’s post-conviction petition. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING THE APPELLANT’S PETITION FOR 

POSTCONVICTION RELIEF WITHOUT A HEARING 

PURSUANT TO R.C. 2953.21(C), WHEN APPELLANT 

PROVIDED SUFFICIENT EVIDENCE DEHOR THE 

RECORD TO WARRANT A HEARING.” 
Lawrence App. No. 16CA23 5

“II. THE TRIAL COURT ABUSED ITS DISCRETION AND 

COMMITTED REVERSIBLE ERROR WHEN IT DENIED 

APPELLANT’S POSTCONVICTION PETITION WITHOUT 

FURNISHING FINDINGS OF FACTS AND CONCLUSIONS 

OF LAW.” 

A. STANDARD OF REVIEW 

{¶9} “[A] trial court's decision granting or denying a post-conviction 

petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of 

discretion; a reviewing court should not overrule the trial court's finding on a 

petition for post-conviction relief that is supported by competent and 

credible evidence.” State v. Black, 4th Dist. Ross No. 15CA3509, 2016-

Ohio-3104, ¶7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio6679, 860 N.E.2d 77, ¶ 58. “A trial court abuses its discretion when its 

decision is unreasonable, arbitrary, or unconscionable.” State v. Knauff, 4th 

Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 19, citing Cullen v. State 

Farm Mut. Auto Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 

614, ¶ 19. Because Appellant’s assignments of error are related, we 

consider them jointly. 

B. LEGAL ANALYSIS 

{¶10} A petition for post-conviction relief brought pursuant to R.C. 

2953.21 provides convicted individuals with a means to collaterally attack 

their convictions. Black, supra, at ¶ 8, citing In re B.C.S., 4th Dist. 
Lawrence App. No. 16CA23 6

Washington No. 07CA60, 2008-Ohio-5771, ¶ 10. “It is a civil proceeding 

designed to determine whether ‘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 Constitution of the United States.” R.C. 2953.21(A). 

Thus, a petitioner must demonstrate errors of a constitutional magnitude and 

resulting prejudice before being entitled to relief under the statute.” Id . R.C. 

2953.21 specifically provides: 

(A)(1)(a) Any person who has been convicted of a criminal 

offense or 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 Constitution of the United States * * * may 

file a petition in the court that imposed sentence, stating the 

grounds for relief relied upon, and asking the court to vacate or 

set aside the judgment or sentence or to grant other appropriate 

relief. The petitioner may file a supporting affidavit and other 

documentary evidence in support of the claim for relief. 

* * * 

(C) * * * Before granting a hearing on a petition filed under 

division (A) of this section, the court shall determine whether 

there are substantive grounds for relief. In making such a 

determination, the court shall consider, in addition to the 

petition, the supporting affidavits, and the documentary 

evidence, all the files and records pertaining to the proceedings 

against the petitioner, including, but not limited to, the 

indictment, the court's journal entries, the journalized record of 

the clerk of the court, and the court reporter's transcript. The 

court reporter's transcript, if ordered and certified by the court, 

shall be taxed as court costs. If the court dismisses the petition, 

it shall make and file findings of fact and conclusions of law 

with respect to such dismissal. 
Lawrence App. No. 16CA23 7

 * * * 

(E) Unless the petition and the files and records of the case 

show the petitioner is not entitled to relief, the court shall 

proceed to a prompt hearing on the issues even if a direct appeal 

of the case is pending. 

* * * 

{¶11} However, a petitioner seeking post-conviction relief is not 

 automatically entitled to an evidentiary hearing. Black, supra, at ¶ 9, citing 

State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999); State v. 

Slagle, 4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 13. Rather, 

before granting a hearing on a petition, the trial court must first determine 

that substantive grounds for relief exist. R.C. 2953.21(C). “Substantive 

grounds for relief exist and a hearing is warranted if the petitioner produces 

sufficient credible evidence that demonstrates the petitioner suffered a 

violation of the petitioner's constitutional rights.” In re B.C.S. at ¶ 11. 

Furthermore, in order to merit a hearing, the petitioner must show that the 

claimed “errors resulted in prejudice.” Id., quoting Calhoun at 283. 

{¶12} Res judicata applies to proceedings involving post-conviction 

relief. Black, supra, at ¶ 10, citing State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 

N.E.2d 233 (1996). “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, 
Lawrence App. No. 16CA23 8

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. Perry, 10 Ohio 

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. 

“Therefore, ‘any issue that could have been raised on direct appeal and was 

not is res judicata and not subject to review in subsequent proceedings.’ ” 

State v. Segines, 8th Dist. Cuyahoga No. 99789, 2013-Ohio-5259, ¶ 8, 

quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 

824, ¶ 16. 

1. Failure to conduct evidentiary hearing. 

{¶13} Appellant argues the trial court abused its discretion in denying 

his petition without a hearing as it never gave any consideration to the 

evidence that he attached to his petition, never addressed the issues of the 

witnesses’ credibility, and never explained why Appellant’s evidence was 

lacking in credibility. Appellant asserted in his petition that defense counsel 

was provided information from the private investigator that placed severe 

scrutiny in the truthfulness and credibility of the lead detective, Joe Ross, 

Appellant’s co-defendant Scott Lewis, and the victim Sam Jones. Appellant 

concludes an evidentiary hearing would have considered the issue of what 
Lawrence App. No. 16CA23 9

was reasonable or strategic, given the information within counsel’s 

possession. 

{¶14} A trial court may dismiss a petition for post-conviction relief 

without holding an evidentiary hearing when the claims raised in the petition 

are barred by the doctrine of res judicata. State v. Canada, 10th Dist. 

Franklin No. 16AP-7, 2016-Ohio-5948, at ¶ 23; State v. Ibrahim, 10th Dist. 

Franklin No. 14AP355, 2014-Ohio-5307, at ¶ 10; State v. Sullivan, 10th 

Dist. Franklin No. 13AP–861, 2014-Ohio-1260, ¶ 10, citing State v. 

Melhado, 10th Dist. Franklin No. 13AP–114, 2013-Ohio-3547, ¶ 10. 

However, the doctrine of res judicata does not apply where the petitioner 

relies on competent, relevant, and material evidence, outside the trial court's 

record, and such evidence must not be evidence that existed or was available 

for use at the time of trial. Id. at ¶ 11, citing State v. Braden, 10th Dist. 

Franklin No. 02AP–954, 2003-Ohio-2949, ¶ 27. “Where new counsel 

represents a defendant on direct appeal and the ineffectiveness of trial 

counsel could have been determined without resort to evidence outside the 

record, a petition for post-conviction relief alleging ineffective assistance of 

trial counsel is barred by res judicata.” Id.

{¶15} Here, Appellant’s supplemental answers to discovery filed in 

the trial court proceedings were attached to his post-conviction petition. 
Lawrence App. No. 16CA23 10

During the underlying proceedings, Appellant hired a private investigator 

who submitted various memoranda and reports to defense counsel who, in 

turn, provided them in discovery. The various memoranda and reports 

included: 

1) Interview of Shannon Colson; 

2) Telephone interview of Thomas Adams, Appellant’s 

father (March 22, 2014); 

3) Written statement of Jim Carry, Appellant’s father-inlaw; 

4) Telephone interview of Thomas Adams (June 7, 

2014); 

5) Interviews of Josh Wheeler and Tracy Wheeler 

(March 17, 2014); 

6) Follow-up telephone interviews of Josh Wheeler 

(April 29, 2014 and August 18, 2014); 

7) Telephone interview of Travis Waulk (April 9, 2014); 

8) In-person interview of Curtis Cooke (March 31, 

2014); 

9) In-person interview of Eric Williams (March 25, 

2014); 

10) Telephone interview of Blake Copley, Appellant’s 

co-worker (April 17, 2014); 

11) Telephone interview of Chris Bowman, Acting 

Police Chief of Ironton Police Department (May 16, 

2014); 
Lawrence App. No. 16CA23 11

12) In-person interview of Rich Blankenship, Mayor of 

Ironton (April 23, 2014); 

13) Memorandum by the private investigator to defense 

counsel entitled “Defense Investigator Impressions and 

Judgements” (June 16, 2014); 

14) Memorandum by private investigator to defense 

counsel entitled “Initial Discovery File Review” (March 

26, 2014); 

15) Telephone interview of Lucas Morris (October 4, 

2014); 

16) Memorandum of Investigation entitled “Collection 

of Video from Cell Phone” (Meeting with Appellant after 

phone call between Appellant and co-defendant Edward 

Hampton on October 2, 2014); 

17) Memorandum of Investigation entitled “Collection of 

Video from Cell Phone”) (Meeting with Appellant after 

second phone call between Appellant and co-defendant 

Hampton, October 16, 2014); 

18) Synopsis prepared by Captain Joseph Ross, Ironton 

Police Department (January 14, 2014); 

19) Email between Nicole Adams, Appellant’s wife, and 

the investigator (June 15, 2014); 

20) Continuation of Investigation, Captain Joseph Ross 

(June 10, 2014). 

{¶16} We are unable to determine whether all of the memoranda and 

reports submitted with Appellant’s petition were submitted with discovery 

and actually made part of the trial court record. However, it is clear that all 

the memoranda and reports were submitted to defense counsel and available 
Lawrence App. No. 16CA23 12

for use at trial. A petition for post-conviction relief is not the proper vehicle 

to raise issues that were or could have been determined on direct appeal. 

Black, supra, at ¶ 11, citing State v. Perry, supra, 10 Ohio St.2d at 182, 226 

N.E.2d at 109. 

{¶17} We pause to recognize that pursuant to our decision in State v. 

Keeley, 989 N.E.2d 80, 2013-Ohio-474, the doctrine of res judicata would 

not apply to bar a trial court’s consideration of post-conviction claims that 

were not raised in an appeal of right that was pending at the time the postconviction petition was filed. There we stated: 

“[W]e have found no precedent to determine whether res 

judicata may be invoked during postconviction proceedings 

when the first appeal of right is pending. We believe, for the 

following reasons, that the answer to that question is in the 

negative. First, as noted above, the Szefcyk syllabus is phrased 

in past tense and, thus, suggests that res judicata may be 

invoked after the first appeal of right has been determined. * * * 

Second, and more important, invoking the doctrine of res 

judicata while a first appeal of right is pending renders R.C. 

2953.21(C) meaningless. The Ohio General Assembly 

instructed trial courts that they could consider the merits of 

such petitions even while an appeal is pending. However, to 

allow the application of res judicata at that stage of an appeal 

means that a trial court could always avoid ruling on the 

petition’s merits as long as no decision had been rendered on 

the appeal.” 

{¶18} While Appellant’s appeal was pending at the time he filed his 

post-conviction petition and the trial court ruled on it, we as an appellate 

court are not precluded from utilizing the doctrine of res judicata where it is 
Lawrence App. No. 16CA23 13

applicable. We find Appellant’s case somewhat akin to the situation in 

Black, supra, in that Appellant’s current claims of ineffective assistance of 

trial counsel could have, and should have, been raised in the direct appeal of 

his conviction. Appellant, like Black, was present during the trial court 

proceedings and was well aware of the actions, and inactions of his counsel. 

Black claimed that prior to trial he instructed his trial counsel to contact 

witnesses on his behalf, but counsel failed to do so. Black also claimed that 

he provided his trial counsel with information about the victim, but that 

counsel failed to use the information at trial. This court reasoned that Black 

was cognizant of these claims and other claims and could have included 

them in his direct appeal. We further observed Black obtained new counsel 

for his direct appeal, presumably so that he could pursue such a claim. 

{¶19} Importantly, we observed that Black's direct appeal raised the 

issue of ineffective assistance without including the arguments that he raised 

in his post-conviction petition, and that Black could have included those 

arguments in the direct appeal but did not. We found the doctrine of res 

judicata applied to bar Black's ineffective assistance of counsel claims, and 

that the trial court did not err by dismissing Black's petition. 

{¶20} In Appellant’s post-conviction petition, he argued his counsel 

was ineffective for: (1) failing to utilize evidence of inconsistent statements 
Lawrence App. No. 16CA23 14

made by his co-defendant and the victim; and (2) failing to attack the 

credibility of the detective in the case.2

 And, Appellant specifically sets 

forth in his petition: 

“Defense counsel had these statements and information that was 

given to him from the private investigator, (SEE 

ATTACHMENTS) but never brought this information into the 

trial for the jury to hear. * * * Counsel for the defendant had 

this information but failed to use any of it at trial to attack the 

truthfulness and credibility of the lead detective. In this matter. 

(sic.) Counsel for Defendant failed to call the Private Detective, 

Mr. Pennington as a witness to clarify all of these things 

involving the Lead Detective, Scott Lewis, and the victim. 

Counsel for the Defendant failed to even put on a rudimentary 

defense that was readily available * * *. None of the evidence 

and/or information described herein was hidden from trial 

counsel or not available for trial. * * * The information was 

presented to counsel during the course of his review of 

materials * * *.” 

{¶21} We find, as in Black, that Appellant’s current claims of 

ineffective assistance of trial counsel could have and should have been 

raised in the direct appeal of his conviction. Appellant had different counsel 

in his direct appeal and did not raise an ineffective assistance of counsel 

claim. Although the trial court could not have relied on res judicata because 

Appellant’s direct appeal was still pending at the time the petition was 

dismissed, it is applicable. Like Black, Appellant was well aware of his 

 

2

 In Appellant’s direct appeal, he claimed ineffective assistance occurred when defense counsel failed to 

object to numerous instances throughout his trial when the jury was informed of his co-defendants’ guilty 

pleas. We found no merit to this argument, observing that counsel’s failure to object fell within the realm 

of reasonable trial strategy and also noted the overwhelming circumstantial evidence of Appellant’s guilt. 
Lawrence App. No. 16CA23 15

counsel’s actions and/or claimed inactions. Like Black, Appellant generally 

claims he provided his counsel with evidence and information which his 

counsel failed to use at trial. Appellant, like Black, was aware of these 

claims and others and could have included them in his direct appeal. For the 

foregoing reason, we find the claims Appellant raised his post-conviction 

petition are barred by the doctrine of res judicata. Accordingly, the trial 

court did not err by dismissing his petition. We hereby overrule the first 

assignment of error. 

2. Failure to issue findings of fact and conclusions of law. 

{¶22} Appellant argues the trial court’s entry concluded that defense 

counsel’s decisions fall within a wide range of trial strategy, but did not 

reference any evidence that Appellant was using competent trial strategy, 

and simply stated “This was a well tried two day jury trial before twelve 

jurors who found the Defendant guilty.” Further, the entry did not address 

the issue of the witnesses’ credibility. Appellant contends the findings of 

fact and conclusions of law should be explicit to give the appellate court a 

clear understanding of the ground for the court’s decision and concludes the 

judgment entry of the trial court lacks recognition of the basis of the 

decision. 
Lawrence App. No. 16CA23 16

{¶23} When a trial court dismisses a post-conviction relief petition 

without holding an evidentiary hearing, it must enter findings of fact and 

conclusions of law. R.C. 2953.21(C). State v. Jackson, 10th Dist. Franklin 

No. 03AP–1065, 2004-Ohio-6438, ¶ 11, citing State v. Lester, 41 Ohio 

St.2d. 51 (1975), paragraph two of the syllabus (“Pursuant to R.C. 2953.21, 

if the trial court finds no grounds for an evidentiary hearing, the court is 

required to make and file findings of fact and conclusions of law as to the 

reasons for dismissal and to the grounds for relief relied upon in the 

petition.”). “ ‘While a trial court need not discuss every issue that the 

petitioner raises or engage in an elaborate and lengthy discussion in its 

findings of fact and conclusions of law, its findings must be sufficiently 

comprehensive and pertinent to the issues to form a basis upon which the 

evidence supports the conclusion.’ ” State v. Banks, 10th Dist. Franklin No. 

10AP–1065, 2011-Ohio-2749, ¶ 5, quoting State v. McKnight, 4th Dist. 

Vinton No. 06CA645, 2006-Ohio-7104, ¶ 5, citing Calhoun at 291-92. 

Failure to make the required findings of fact and conclusions of law in 

denying a petition for post-conviction relief is prejudicial error. Jackson at 

¶ 11, citing State v. Brown, 41 Ohio App.2d 181, 185 (8th Dist.1974). 

{¶24} The trial court’s decision stated, in pertinent part: 

“The essence of the State of Ohio’s argument in response to the 

petition for postconviction relief is that Defense Counsel’s 
Lawrence App. No. 16CA23 17

decision whether to call certain witnesses or Counsel’s decision 

to pursue a particular line of questioning falls within the area of 

trial strategy, State v. Davis, 2013-Ohio-3878, 22 (Ct. App. 

2013). * * * This was a well tried two day jury trial before 

twelve jurors who found the Defendant guilty. This Court finds 

that the Defendant failed to make a prima facie argument or 

argue substantive grounds for relief as required in R.C. 

2953.21(C).” 

{¶25} Here, we find Appellant’s ineffective assistance claims are 

barred by the doctrine of res judicata and we decline to consider Appellant’s 

argument herein. As such, we do not find the trial court’s dismissal of 

Appellant’s post-conviction petition constituted prejudicial error. Therefore, 

we also overrule Appellant’s second assignment of error, and affirm the 

judgment of the trial court. 

 JUDGMENT AFFIRMED. 
Lawrence App. No. 16CA23 18

Harsha, J., dissenting: 

{¶26} I respectfully dissent. In his first assignment of error Adams 

asserts that the trial court erred by failing to conduct a hearing on his 

petition. The principal opinion relies on our opinion in State v. Black, 4th 

Dist. Ross No. 15CA3509, 2016-Ohio-3104, to hold that res judicata barred 

Adams’s claim of ineffective assistance of his trial counsel. But in State v. 

Keeley, 2013-Ohio-474, 989 N.E.2d 80, ¶ 7-8 (4th Dist.), we held that the 

doctrine of res judicata does not bar consideration of postconviction claims 

that were not raised in an appeal of right that was pending at the time the 

postconviction petition was filed. 

{¶27} In Black we upheld a trial court’s dismissal of a petition for 

postconviction relief without holding an evidentiary hearing based in part on 

res judicata although the petition was filed when a direct appeal was 

pending. However, Black is distinguishable from both Keeley and this case 

because the trial court there dismissed the defendant’s petition for 

postconviction relief after we decided the defendant’s appeal. The trial 

court could correctly rely on res judicata to resolve the pending 
Lawrence App. No. 16CA23 19

postconviction petition based on res judicata at that point because his direct 

appeal was no longer pending.3

{¶28} Conversely, the facts in this case are more like the 

circumstances in Keeley than the situation in Black, i.e., when the trial court 

dismissed Adams’s petition for postconviction relief, his direct appeal was 

still pending. Based on Keeley we should sustain Adams’s first assignment 

of error and remand the cause to the trial court to consider the petition. On 

remand, because his direct appeal is no longer pending, the trial court is free 

to consider whether his claims are now barred by res judicata. 

{¶29} In his second assignment of error Adams argues that the trial 

court erred by failing to issue findings of fact and conclusions of law. The 

principal opinion finds that because res judicata bars his claims, any failure 

by the trial court was not prejudicial. But because the trial court erred in 

dismissing the petition based on res judicata when his direct appeal was still 

pending, the opinion’s rationale on his second assignment of error is also 

erroneous. “Ohio law requires a trial court to make findings of fact and 

conclusions of law when it dismisses a petition or denies postconviction 

relief on the merits.” State v. Brooks, 4th Dist. Scioto No. 09CA3329, 2010–

Ohio–3262, ¶ 4, citing R.C. 2953.21(C) and (G). We should sustain 

 

3 See, Black (Harsha, J., concurring) in which this judge applied res judicata to some of Black’s claims and 

rejected its application to two others. 
Lawrence App. No. 16CA23 20

Adams’s second assignment of error and direct the trial court on remand to 

issue findings of fact and conclusions of law if it determines that dismissal 

of the petition without a hearing is warranted. 

{¶30} Therefore, I dissent. We should sustain Adams’s assignments 

of error and reverse and remand the cause to the trial court. 
Lawrence App. No. 16CA23 21

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and costs be 

assessed to Appellants. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Lawrence County Common Pleas Court to carry this judgment into 

execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment Only. 

Harsha, J.: Dissents with Dissenting Opinion. 

 For the Court, 

 BY: __________________________________ 

 Matthew W. McFarland, Judge

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.