[Cite as State v. Liles, 2017-Ohio-240.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-16-33 

 v. 

DEMOND D. LILES, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR 2013 0472 

Judgment Affirmed 

Date of Decision: January 23, 2017 

 

APPEARANCES: 

 

Kenneth J. Rexford for Appellant 

 Jana E. Emerick for Appellee 
Case No. 1-16-33 

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PRESTON, P.J. 

{¶1} Defendant-appellant, Demond D. Liles (“Liles”), appeals the June 9, 

2016 judgment entry of the Allen County Court of Common Pleas dismissing 

Liles’s petition for postconviction relief. For the reasons that follow, we affirm. 

{¶2} In 2014, Liles pled guilty to four counts of trafficking in cocaine—

felonies of varying degrees—and to various specifications with those counts. (See

Doc. Nos. 125, 126). The trial court sentenced Liles on December 1, 2014, and 

Liles appealed the trial court’s judgment entry of sentence.1

 (See Doc. No. 143). In 

that direct appeal, we affirmed the judgment of the trial court. State v. Liles, 3d 

Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 45. 

{¶3} On January 22, 2016, Liles filed a petition for postconviction relief. 

(Doc. No. 171). In his petition, Liles requested “a vacating of the judgment of 

conviction and/or sentencing in this matter and a granting of a new trial and/or 

resentencing.” (Id. at 1). As grounds for the requested relief, Liles alleged that he 

“was denied the equal protection of the laws in violation of the Ohio Constitution 

or the United States Constitution because the sentence imposed upon the petitioner 

for the felony was part of a consistent pattern of disparity in sentencing by the judge 

who imposed the sentence, with regard to the petitioner’s race, gender, ethnic 

 

1

 In Liles’s direct appeal from his convictions and sentence, this court recited much of the factual and 

procedural background of this case, and we will not duplicate those efforts here. See State v. Liles, 3d Dist. 

Allen No. 1-14-61, 2015-Ohio-3093. 
Case No. 1-16-33 

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background, or religion.” (Id. at 2, citing R.C. 2953.21(A)(5)). Additionally, Liles 

stated as grounds for relief that he received ineffective assistance of counsel and 

that his guilty pleas “were secured through vindictiveness by the government,” both 

in violation of his constitutional rights.2

 (Id. at 8). On February 3, 2016, Liles filed 

an “additional proffer supporting petition for post-conviction relief.” (Doc. No. 

175). On February 19, 2016, the State filed its response to and motion to dismiss 

Liles’s petition for postconviction relief. (Doc. No. 179). On February 26, 2016, 

Liles filed his memorandum in opposition to the State’s motion to dismiss his 

petition for postconviction relief. (Doc. No. 180). 

{¶4} On June 9, 2016, the trial court filed the judgment entry that is the 

subject of this appeal. (Doc. No. 182). In that entry, the trial court dismissed Liles’s 

petition for postconviction relief. (Id.). 

{¶5} On July 6, 2016, Liles filed a notice of appeal. (Doc. No. 184). He 

raises three assignments of error for our review. We will address the assignments 

of error together. 

Assignment of Error No. I 

The Trial Court erred in ruling that Evidence Rule 901 applies to 

exhibits attached to a Petition for Post-Conviction Relief. 

 

2

 Liles’s counsel prepared the memorandum in support containing the arguments related to disparity in 

sentencing. Liles’s arguments in support of these additional grounds for relief were contained in a separate 

memorandum in support prepared by Liles, not his counsel, “because [Liles] lacked financial resources to 

have [his counsel] research and draft this separate portion of the instant petition.” (Doc. No. 171 at 12). 
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Assignment of Error No. II 

The Trial Court erred in treating the State Motion to Dismiss as 

if it were a Motion for Summary Judgment, handling the same 

improperly, and thereby dismissing Mr. Liles’ Petition. 

Assignment of Error No. III 

The Trial Court erred in dismissing Mr. Liles’ petition because, 

contrary to the Court’s ruling, the petition sufficiently stated two 

grounds for granting the requested relief and therefore merited 

an evidentiary hearing. 

{¶6} In his first assignment of error, Liles argues that the trial court erred 

when it stated that the documents submitted by Liles in support of his petition for 

postconviction relief are inadmissible under Evid.R. 901. In his second assignment 

of error, Liles argues that the trial court improperly treated the State’s motion to 

dismiss Liles’s petition for postconviction relief as a motion for summary judgment. 

In his third assignment of error, Liles argues that the trial court erred in dismissing 

his petition for postconviction relief without an evidentiary hearing because his 

petition sufficiently stated two grounds for relief. First, he argues that he was denied 

equal protection of the laws because his sentence was part of a consistent pattern of 

racially disparate sentences by the sentencing judge. Second, although unclear, he 

appears to argue “outrageous government conduct by Sheriff Crish.” (Appellant’s 

Brief at 1). 

{¶7} “R.C. 2953.21 governs petitions for post-conviction relief.” State v. 

Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing State v. Kinstle, 
Case No. 1-16-33 

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3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets forth who may 

petition for postconviction relief: 

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. 

R.C. 2953.21(A)(1)(a). 

{¶8} “The filing of a petition for postconviction relief does not automatically 

entitle the petitioner to an evidentiary hearing.” State v. Andrews, 3d Dist. Allen 

No. 1-11-42, 2011-Ohio-6106, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 282 

(1999). Under R.C. 2953.21(C), “Before granting a hearing on a petition * * *, the 

court shall determine whether there are substantive grounds for relief.” See State v. 

Brown, 3d Dist. Allen No. 1-11-68, 2012-Ohio-2126, ¶ 6, citing Calhoun at 282-

283 and R.C. 2953.21(C); State v. Schwieterman, 3d Dist. Mercer No. 10-09-12, 
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2010-Ohio-102, ¶ 22, citing State v. Jones, 3d Dist. Defiance No. 4-07-02, 2007-

Ohio-5624, ¶ 12. 

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 records of the clerk of the court, 

and the court reporter’s transcript 

R.C. 2953.21(C). See Schwieterman at ¶ 22, citing Jones at ¶ 12. 

{¶9} “‘[I]f the court determines that there are no substantive grounds for 

relief, it may dismiss the petition without an evidentiary hearing.’” State v. Driskill, 

3d Dist. Mercer Nos. 10-07-03 and 10-07-04, 2008-Ohio-827, ¶ 13, quoting Jones 

at ¶ 14. “The decision to grant the petitioner an evidentiary hearing is left to the 

sound discretion of the trial court.” Andrews at ¶ 11, citing Calhoun at 284. 

Accordingly, “[w]e review the trial court’s dismissal of a post-conviction petition 

without a hearing for abuse of discretion.” State v. Jeffers, 10th Dist. Franklin No. 

10AP-1112, 2011-Ohio-3555, ¶ 23, citing State v. Banks, 10th Dist. Franklin Nos. 

10AP-1065, 10AP-1066, and 10AP-1067, 2011-Ohio-2749, ¶ 11. See also Driskill

at ¶ 14. An abuse of discretion suggests the trial court’s decision is unreasonable, 
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arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 

(1983). 

{¶10} We can quickly dispose of Liles’s first and second assignments of 

error. Regarding Liles’s first assignment of error, although the trial court stated that 

the documents Liles submitted in support of his postconviction petition are 

inadmissible because they do not comply with Evid.R. 901, the trial court 

nevertheless considered those documents and alternatively addressed the merits of 

Liles’s grounds for relief. Therefore, we need not and do not address the trial court’s 

conclusions regarding Evid.R. 901. See Slane v. Hilliard, 10th Dist. Franklin No. 

15AP-493, 2016-Ohio-306, ¶ 37 (10th Dist.). Rather, in our treatment below of 

Liles’s third assignment of error, we will assume without deciding that the trial court 

should not have applied Evid.R. 901 in the manner it did. In other words, we need 

not address Liles’s Evid.R. 901 arguments in order to dispose of his assignments of 

error. Liles’s first assignment of error is without merit. 

{¶11} Regarding Liles’s second assignment of error, Liles does not specify 

precisely what leads him to believe that the trial court converted the State’s motion 

to dismiss into a motion for summary judgment. It appears that he believes the trial 

court implicitly converted the motion to dismiss when it considered the credibility 

of the documents Liles submitted in support of his petition and “dismissed the 

petition on a factual basis.” (Appellant’s Brief at 15). The trial court’s actions do 
Case No. 1-16-33 

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not suggest that it somehow implicitly converted the State’s motion to dismiss into 

a motion for summary judgment. 

{¶12} The postconviction statute states that the petitioner “may file a 

supporting affidavit and other documentary evidence in support of the claim for 

relief” and that the trial 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(A)(1)(a), 

(C). Here, Liles attached an affidavit and other documentary evidence to the 

postconviction petition, and as Liles acknowledges, the State in moving to dismiss 

his petition did not raise “matters outside of the pleadings.” (Appellant’s Brief at 

13). The trial court’s consideration of the documents Liles attached to the petition—

including their credibility—does not convert the State’s motion to dismiss into a 

motion for summary judgment, and Liles directs us to no authority suggesting 

otherwise. See State v. Hines, 8th Dist. Cuyahoga No. 89848, 2008-Ohio-1927, ¶ 

13. In short, the record does not reflect that the trial court converted the State’s 

motion to dismiss into a motion for summary judgment. See State v. Johnson, 12th 

Dist. Clinton No. CA97-07-006, 1998 WL 1701, *5 (Jan. 5, 1998). For these 

reasons, we reject Liles’s arguments under his second assignment of error. 

{¶13} We will now address Liles’s third assignment of error. Liles argues 

that the trial court should have granted him an evidentiary hearing because his 
Case No. 1-16-33 

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postconviction petition set forth two substantive grounds for relief warranting an 

evidentiary hearing. The first ground put forth by Liles is an equal-protection 

violation based on “sentencing disparity” on the part of the sentencing judge. 

(Appellant’s Brief at 16-17). Liles does not articulate precisely what the second 

ground is; however, it appears he argues that the second ground is “outrageous 

government conduct by Sheriff Crish.”3

 (Appellant’s Brief at 1). We will address 

each of these grounds in turn. 

{¶14} First, Liles argues that his petition sufficiently established that he was 

denied equal protection of the laws because his sentence was part of a consistent 

pattern of racially disparate sentences by the sentencing judge. R.C. 2953.21(A)(5) 

provides, in relevant part: 

If the petitioner in a petition filed under division (A) of this section 

was convicted of or pleaded guilty to a felony, the petition may 

include a claim that the petitioner was denied the equal protection of 

the laws in violation of the Ohio Constitution or the United States 

Constitution because the sentence imposed upon the petitioner for the 

felony was part of a consistent pattern of disparity in sentencing by 

 

3

 The portion of Liles’s postconviction petition prepared by Liles, as opposed to his counsel, appears to 

contain additional grounds that formed the basis of Liles’s petition—for example, that he received ineffective 

assistance of trial counsel because his trial counsel did not inform him of the availability of the affirmative 

defense of entrapment. In this appeal, Liles does not offer argument concerning these additional grounds; 

therefore, we will not address them. 
Case No. 1-16-33 

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the judge who imposed the sentence, with regard to the petitioner’s 

race, gender, ethnic background, or religion. 

R.C. 2953.21(A)(5). 

{¶15} Among the documents Liles attached to his postconviction petition 

was a letter from Liles’s counsel to Steve Van Dine (“Van Dine”), the chief of the 

Bureau of Research at the Ohio Department of Rehabilitation and Correction, 

requesting “sentencing data from Allen County for the years 2008-2014 for F1 and 

F2 offenders sent to prison by Allen County judges.” (Doc. No. 171 at 5, Ex. 1). 

Liles also attached to his petition the data spreadsheet that Van Dine provided in 

response to Liles’s counsel’s request. (Id., Ex. 2). The spreadsheet contains a listing 

of each “CASE WITH AT LEAST ONE F1 OR F2.” (Id.). Listed for each case are 

the offender’s name, race, sex, and date of birth, along with the year, the identity of 

the sentencing judge, the offense or offenses, the number of “priors,” and the 

sentence given. (Id.). Attached as Exhibit 3 to Liles’s petition for postconviction 

relief is a purportedly “similar statistical analysis” regarding third-degree felonies 

that Liles’s counsel conducted “on behalf of a different client” in “early 2007.” (Id.

at 8, Ex. 3). 

{¶16} Based on these documents attached to his postconviction petition, 

Liles argued in his petition that the sentencing judge “managed to account for nearly 

a 2:1 sentencing disparity against black offenders,” whereas another judge of the 
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same court “managed to have racially consistent sentencing over the past decade.” 

(Id. at 10). The State argues that the documents attached to Liles’s petition 

“included absolutely no information whatsoever about the numerous offenders or 

the facts of the cases that defendant purported to compare.” (Appellee’s Brief at 9). 

In dismissing Liles’s petition without an evidentiary hearing, the trial court stated 

that precedent from the United States Supreme Court and the Supreme Court of 

Ohio requires that a petitioner, in order to establish an equal-protection violation, 

demonstrate the existence of purposeful discrimination that had a discriminatory 

effect on the petitioner. (Doc. No. 182 at 10). The trial court concluded that this 

precedent does “not permit the consideration of the statistical evidence offered by 

petitioner.” (Id.). The trial court added, however, that even considering the 

statistical evidence offered by Liles, “it is not determinative” because of the 

relatively small sample size of defendants and because it addressed only “a few 

variables underlying the sentences reviewed.” (Id. at 10-11). 

{¶17} “It is well-established that the Equal Protection Clauses of both the 

Ohio and United States Constitutions protect ‘similarly situated’ persons from being 

treated differently by the government.” State v. Murphy, 5th Dist. Cochocton No. 

02-CA-13, 2003-Ohio-128, ¶ 8, citing State ex rel. Riter v. Indus. Comm., 91 Ohio 

St.3d 89, 93 (2001). “[I]t is a basic and generally applicable principle of Fourteenth 

Amendment equal protection analysis that a party claiming an equal protection 
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violation has the burden of proving purposeful discrimination.” State v. Keene, 81 

Ohio St.3d 646, 654 (1998), citing McClesky v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 

1756 (1987), quoting Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643 (1967). 

“A corollary to this principle is that a criminal defendant must prove that the 

purposeful discrimination ‘had a discriminatory effect’ on him.” McCleskey at 292, 

quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524 (1985). In the 

context of an argument involving race-based sentencing disparity, “rather than make 

a general showing of disparity, a defendant ‘“must show that racial considerations 

affected the sentencing process in his case”’ for equal protection to be implicated.” 

(Emphasis sic.) State v. Frazier, 6th Dist. Lucas No. L-07-1388, 2008-Ohio-5027, 

¶ 67, quoting State v. Skatzes, 2d Dist. Montgomery No. 15848, 2003-Ohio-516, ¶ 

395, quoting State v. Steffen, 31 Ohio St.3d 111, 124 (1987). 

{¶18} In this case, we hold that the trial court did not abuse its discretion in 

concluding that Liles failed in his equal-protection argument to demonstrate a 

substantive ground for relief entitling him to an evidentiary hearing. First, we agree 

with the trial court that the quality of data that Liles attached to his postconviction 

petition is not the sort that would allow him to establish a substantive ground for 

relief on an equal-protection theory. That is, the documents that Liles submitted 

with his petition fail to establish that the offenders listed in the spreadsheet are 

“similarly situated” to Liles. See Murphy at ¶ 8. 
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{¶19} Exhibit 2 attached to Liles’s petition reveals only the race, sex, and 

age of each offender, along with the offense or offenses, the sentence given, and the 

number of “priors.” As the trial court aptly summarized, this data provides only “a 

few variables underlying the sentences reviewed,” whereas “many factors can go 

into sentencing determinations and each case is unique”—a point Liles concedes in 

his postconviction petition. (Doc. No. 182 at 11). (See also Doc. No. 171 at 6). 

The trial court compared Liles’s data to the study in McCleskey, which was an 

“extensive analysis, taking account of 230 variables that could have explained the 

disparities on nonracial grounds.” McCleskey at 287. Even that study, the United 

States Supreme Court held, was “clearly insufficient to support an inference that 

any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.” 

Id. at 297. Exhibit 3 to Liles’s petition is even more unhelpful to Liles in his attempt 

to establish a substantive ground for relief—that data similarly contains relatively 

few variables, focuses on third-degree felonies, and was prepared in “early 2007” 

for “a different client.” In short, the documents attached to Liles’s petition do not 

reflect whether the other offenders were “similarly situated” to him. 

{¶20} A second reason why the trial court did not abuse its discretion in 

concluding that Liles failed to demonstrate a substantive ground for relief: Liles did 

not direct the trial court to documentation or portions of the record demonstrating 

the existence of purposeful discrimination that had a discriminatory effect on him. 
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See McCleskey at 297. Liles instead relied solely on the sentencing data attached to 

his petition. However, as with the study in McCleskey, the data offered by Liles is 

clearly insufficient to support an inference that the sentencing judge in Liles’s case 

acted with a discriminatory purpose. See id. 

{¶21} To the extent Liles argues that R.C. 2953.21(A)(5) creates a statutory 

right that somehow dispenses with his need to satisfy basic standards in the equalprotection analysis, we reject his argument. R.C. 2953.21(A)(5) “is nothing more 

than an opportunity for prisoners to allege an equal-protection violation when their 

sentence ‘was part of a consistent pattern of disparity in sentencing’ regarding the 

petitioner’s ‘race, gender, ethnic background, or religion.’” State v. Cowan, 101 

Ohio St.3d 372, 2004-Ohio-1583, ¶ 17. In other words, in making the equalprotection claim invited by R.C. 2953.21(A)(5), a petitioner must nevertheless 

satisfy basic principles of equal-protection analysis. 

{¶22} For all of the reasons above, we hold that the trial court did not abuse 

its discretion in concluding that Liles failed to demonstrate a substantive ground for 

relief based on equal protection entitling him to an evidentiary hearing. 

{¶23} We next address Liles’s apparent argument that he stated as a ground 

for relief “outrageous government conduct by Sheriff Crish.” (Appellant’s Brief at 

1). Liles argues that he “put forward a shocking account of the events leading up to 

his prosecution,” including allegations that Allen County Sheriff Sam Crish 
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borrowed $20,000 from Liles and then used an informant “to target Liles for 

controlled sales” of drugs. (Id. at 20, 7). Liles argues that it was “frankly 

unreasonable” for the trial court to find not credible Liles’s allegations of 

“outrageous government conduct.” (Id. at 21). We need not reach that issue because 

Liles’s arguments concerning “outrageous government conduct” were known to 

him at the time he entered into a plea agreement in this case and at the time of his 

sentencing. 

{¶24} “‘[A] post-conviction relief hearing is not warranted for claims that 

were raised or could have been raised on direct appeal.’” State v. McKinney, 3d 

Dist. Defiance No. 4-11-01, 2011-Ohio-3521, ¶ 20, quoting State v. Yarbrough, 3d 

Dist. Shelby No. 17-2000-10, 2001 WL 454683, *4, citing State v. Reynolds, 79 

Ohio St.3d 158, 161 (1997). “‘The principle of res judicata will operate as a bar to 

any claim that was raised or could have been raised on direct appeal.’” Id., quoting 

Yarbrough at *4, citing State v. Lentz, 70 Ohio St.3d 527 (1994) and State v. Perry, 

10 Ohio St.2d 175 (1967), syllabus. In other words, “[a]lthough a defendant may 

challenge his conviction and sentence by either a direct appeal or a petition for 

postconviction relief, any claims raised in a postconviction relief petition will be 

barred by res judicata where the claim was or could have been raised on direct 

appeal.” Schwieterman, 2010-Ohio-102, at ¶ 23, citing State v. Wilson, 3d Dist. 

Allen No. 1-08-60, 2009-Ohio-1735, ¶ 15, citing Reynolds at 161. 
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{¶25} Here, even assuming “outrageous government conduct” could serve as 

a substantive ground for relief entitling Liles to a hearing, his argument is barred by 

res judicata because he knew of the purportedly outrageous government conduct 

during the pendency of the underlying case. For example, at the sentencing hearing, 

Liles relayed to the sentencing judge the story underlying what he says amounts to 

“outrageous government conduct.” (See Dec. 1, 2014 Tr. at 17-31). Indeed, in his 

brief, Liles concedes, “These facts were available to the defense.” (Appellant’s 

Brief at 7). Therefore, any arguments related to this purportedly “outrageous 

government conduct” on the part of Sheriff Crish were available to Liles at the time 

of his direct appeal and are therefore barred by res judicata. See McKinney at ¶ 20; 

State v. King, 12th Dist. Butler Nos. CA2013-11-199 and CA2014-06-138, 2014-

Ohio-5393, ¶ 18; State v. Ibrahim, 10th Dist. Franklin No. 14AP-355, 2014-Ohio5307, ¶ 16. For these reasons, we hold that the trial court did not abuse its discretion 

in concluding that Liles failed to demonstrate a substantive ground for relief based 

on “outrageous government conduct.” 

{¶26} In summary, the trial court did not abuse its discretion in dismissing 

Liles’s petition for postconviction relief without a hearing. 

{¶27} Liles’s assignments of error are overruled. 
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{¶28} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI and SHAW, J.J., concur. 

/jlr