[Cite as State v. Kiley, 2013-Ohio-634.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

STATE OF OHIO 

 Appellee 

 v. 

THOMAS E. KILEY 

 Appellant 

C.A. No. 12CA010254 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 08CR075579 

DECISION AND JOURNAL ENTRY

Dated: February 25, 2013 

 

BELFANCE, Presiding Judge. 

{¶1} Defendant-Appellant Thomas Kiley appeals from the decision of the Lorain 

County Court of Common Pleas denying his petition for postconviction relief. For the reasons 

set forth below, we affirm. 

I. 

{¶2} A jury found Mr. Kiley guilty of rape, kidnapping, and domestic violence in 2008. 

Mr. Kiley was sentenced to a total of five years in prison. He appealed, and this Court dismissed 

his appeal because his sentence contained an improper post-release control notification. We 

vacated the trial court’s sentencing entry and remanded the matter for a new sentencing hearing. 

On December 15, 2009, Mr. Kiley, through counsel, filed a petition for postconviction relief. On 

December 23, 2009, the trial court dismissed Mr. Kiley’s petition concluding that, because his 

sentence was void, there was no conviction upon which to request relief. That same day, a new 

sentencing entry was journalized. Mr. Kiley again appealed, challenging both his conviction and 
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the dismissal of his petition for postconviction relief. See State v. Kiley, 9th Dist. No. 

10CA009757, 2011-Ohio-1156. We affirmed his conviction but concluded that “this Court 

should not have vacated Mr. Kiley’s sentence[ and] * * * remand[ed] th[e] matter for 

consideration of his petition for post-conviction relief.” Id. at ¶ 34. 

{¶3} Mr. Kiley filed an amended petition for postconviction relief which included 

several additional affidavits and three new arguments.1 The trial court denied Mr. Kiley’s 

petition without a hearing and concluded that all Mr. Kiley’s arguments were barred by res 

judicata. Mr. Kiley has appealed, pro se, raising three assignments of error for our review. 

II. 

ASSIGNMENT OF ERROR I 

THE TRIAL COURT ABUSED IT[S] DISCRETION BY DENYING MR. 

KILEY’S PETITION FOR POST CONVICTION RELIEF BASED ON JUROR 

MISCONDUCT OF TALKING ON THEIR CELL PHONES ABOUT THE 

CASE AND AMONGST THEMSELVES DURING TRIAL IN VIOLATION OF 

THE OHIO AND UNITED STATES CONSTITUTIONS[.] 

ASSIGNMENT OF ERROR II 

THE TRIAL COURT ABUSED IT[S] DISCRETION BY DENYING MR. 

KILEY’S PETITION FOR POST CONVICTION RELIEF THAT CONFIRMED 

HE WAS CONVICTED WITH THE USE OF PERJURED TESTIMONY IN 

VIOLATION OF THE OHIO AND UNITED STATES CONSTITUTIONS[.] 

ASSIGNMENT OF ERROR III 

THE TRIAL COURT ABUSED IT[S] DISCRETION BY DENYING MR. 

KILEY’S PETITION FOR POST CONVICTION RELIEF BASED ON 

INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE OHIO 

AND UNITED STATES CONSTITUTIONS[.] 

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 The record also indicates that Mr. Kiley filed an additional petition for postconviction 

relief in 2010. However, that document is not part of the record on appeal. Nonetheless, from 

the trial court’s entry ruling on the instant matter it does not appear that the trial court was 

considering the 2010 filing in its ruling, nor does it appear that this appeal involves any 

challenges related to that document. 
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{¶4} Mr. Kiley asserts in his three assignments of error that the trial court abused its 

discretion in denying his petition for postconviction relief based upon his three new arguments 

contained in his amended petition and accompanying evidentiary materials. He does not appear 

to challenge the trial court’s conclusion that his original four arguments were barred by res 

judicata because they were identical to the arguments he made in his prior appeal. 

{¶5} We review a trial court’s decision denying a petition for post-conviction relief for 

an abuse of discretion. State v. Wesson, 9th Dist. No. 25874, 2012-Ohio-4495, ¶ 10. Petitions 

for postconviction relief are governed by R .C. 2953.21, which provides in pertinent part: 

Any person who has been convicted of a criminal offense * * * 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. 

{¶6} Before granting a hearing on a petition for postconviction relief, “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 * * *.” 

R.C. 2953.21(C). If the trial court finds no grounds for granting relief, it must make findings of 

fact and conclusions of law supporting its denial of relief. R.C. 2953.21(G). 

The petitioner is not automatically entitled to a hearing on the petition. The trial 

court serves a gatekeeping function in postconviction relief cases—it determines 

whether the petitioner will even receive a hearing. A trial court may dismiss a 

petition without a hearing where the petition, the supporting affidavits, the 

documentary evidence, the files, and the records do not demonstrate that 

petitioner set forth sufficient operative facts to establish substantive grounds for 

relief. The gatekeeping function includes the trial court’s decision regarding the 

sufficiency of the facts set forth by the petitioner and the credibility of the 
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affidavits submitted. On appeal, a court reviewing the trial court’s decision in 

regard to its gatekeeping function should apply an abuse-of-discretion standard. 

(Internal quotations and citations omitted.) Wesson at ¶ 9. 

{¶7} “Even assuming a defendant is able to state a cognizable claim of a constitutional 

error, a trial court may deny a defendant’s petition for postconviction relief if the claim[] raised 

in the petition is barred by the doctrine of res judicata.” (Internal quotations omitted.) State v. 

Smith, 9th Dist. No. 02CA0068, 2003-Ohio-4264, ¶ 10. “Under the doctrine of res judicata, 

constitutional issues cannot be considered in postconviction proceedings under R.C. 2953.21 et 

seq. where they have already been or could have already been litigated by the convicted 

defendant, while represented by counsel, either before conviction or on direct appeal.” State v. 

Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, ¶ 19. “Res judicata applies if the petition for postconviction relief does not include any material dehors the record in support of the claim for 

relief.” (Internal quotations and citations omitted.) State v. Fry, 9th Dist. No. 26121, 2012-

Ohio-2602, ¶ 4. To defeat the application of res judicata, the evidence presented from outside 

the record “must 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 

outside the record.” (Internal quotations and citation omitted.) Id. 

{¶8} In his amended petition, Mr. Kiley asserted that he was entitled to postconviction 

relief because of (1) alleged juror misconduct concerning jurors talking on their cell phones 

about the case; (2) the failure to call witnesses who could exonerate him; and (3) ineffective 

assistance of counsel for failing to investigate and call witnesses and for failing to object to the 

juror misconduct or bring it to the court’s attention. Mr. Kiley submitted five affidavits in 

support of his amended petition. 
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{¶9} With respect to Mr. Kiley’s assertion of juror misconduct, the trial court 

concluded that, because the affidavits he presented make it clear that he was aware of the issue 

prior to his direct appeal, that argument was barred by res judicata. With respect to the 

arguments related to the failure to call witnesses and Mr. Kiley’s claim of ineffective assistance 

of counsel, the trial court concluded that those arguments could have been raised on direct appeal 

and, thus, were barred by res judicata as well. We cannot say that Mr. Kiley’s arguments are 

barred by res judicata. 

{¶10} Given that the issues of the alleged juror misconduct and the failure to call 

witnesses were not discussed at trial, we fail to see how Mr. Kiley could have raised these issues 

on direct appeal as doing so would involve information outside the record. See State v. Garfield,

9th Dist. No. 09CA009741, 2011-Ohio-2606, ¶ 59. The fact that Mr. Kiley was aware of the 

issues at the time of his direct appeal does not mean that he could successfully have raised the 

issues in his direct appeal when he had no evidence in the record to support his assertions. See 

id. Nonetheless, “this Court will not reverse a correct judgment merely because of a flaw in the 

trial court’s analysis.” Wesson, 2012-Ohio-4495, at ¶ 31. Because this Court concludes that Mr. 

Kiley failed to “set forth sufficient operative facts to establish substantive grounds for relief[]” to 

warrant a hearing, we conclude the trial court did not err in denying Mr. Kiley’s petition without 

a hearing. (Internal quotations and citation omitted.) Id. at ¶ 9. 

{¶11} Mr. Kiley’s supporting affidavits do not present sufficient facts to support his 

claims for relief. Instead, the affidavits are conclusory in nature and lack specific information to 

support Mr. Kiley’s assertions. See State v. Calhoun, 86 Ohio St.3d 279, 284 (1999); see also 

State v. Clutter, 9th Dist. No. 24096, 2008-Ohio-3954, ¶ 11. With respect to Mr. Kiley’s 

argument concerning alleged juror misconduct, the affiants only assert that the jurors were 
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observed talking on their cell phones about Mr. Kiley’s case. There are no facts in the affidavits 

evidencing the content of the conversations or facts evidencing that Mr. Kiley was prejudiced by 

what was said. See Calhoun, 86 Ohio St.3d at 283 (“[I]t is not unreasonable to require the 

defendant to show in his petition for postconviction relief that such errors resulted in prejudice 

before a hearing is scheduled.”). 

{¶12} With respect to Mr. Kiley’s assertion that he was entitled to postconviction relief 

based upon a failure to call certain witnesses, the affidavits related to that argument also do not 

allege sufficient facts to warrant a hearing. The affidavits of the proposed witnesses simply 

indicate that they have information that will exonerate Mr. Kiley but do not indicate what 

information they have or how it would exonerate him. Further, to the extent that the affidavit of 

one proposed witness does offer what evidence she would testify to, there is nothing in the 

affidavit which indicates that that evidence would have materially affected the outcome of Mr. 

Kiley’s trial. See id. at 283. It appears the witness would testify to the manner in which Mr. 

Kiley left the crime scene in his truck. It is not apparent how the inclusion of this evidence 

would have altered the result of Mr. Kiley’s trial. 

{¶13} As for Mr. Kiley’s argument that he is entitled relief based upon trial counsel’s 

failure to raise the issue of juror misconduct and trial counsel’s failure to fully investigate and 

call certain witnesses, that argument is essentially founded upon the merits of Mr. Kiley’s other 

two arguments. As noted above Mr. Kiley’s evidentiary materials do not contain sufficient facts 

to establish substantive grounds for relief. Wesson, 2012-Ohio-4495, at ¶ 9. Mr. Kiley has not 

presented sufficient facts demonstrating that he was prejudiced by his trial counsel’s failures to 

object or call witnesses. See State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 62. Thus, 
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Mr. Kiley has not demonstrated that the trial court abused its discretion in denying his petition 

without a hearing. Accordingly, Mr. Kiley’s three assignments of error are overruled. 

III. 

{¶14} In light of the foregoing, we affirm the judgment of the Lorain County Court of 

Common Pleas. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Lorain, 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 constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court 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 make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 EVE V. BELFANCE 

 FOR THE COURT 

WHITMORE, J. 

CONCURS.
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CARR, J. 

DISSENTING.

{¶15} I respectfully dissent. In light of this Court’s determination that the issues raised 

by Mr. Kiley’s petition were not barred by the doctrine of res judicata, I would remand this 

matter to the trial court to consider those issues and render a judgment in the first instance. 

APPEARANCES:

THOMAS KILEY, pro se, Appellant. 

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting 

Attorney, for Appellee.