[Cite as State v. Petway, 2015-Ohio-4158.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJOHN W. PETWAY 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. Patricia A. Delaney, J. 

Case No. 15CAA010003 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of 

Common Pleas, Case No. 13CRI070343 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: October 2, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAROL HAMILTON O'BRIEN JEFFREY P. UHRICH 

MARK C. SLEEPER Law Office of Jeffrey P. Uhrich 

Assistant Prosecuting Attorney P.O. Box 1977 

Delaware County Prosecutor's Office Westerville, Ohio 43086 

140 North Sandusky Street 

Delaware, Ohio 43015 
Delaware County, Case No. 15CAA010003 2

Hoffman, P.J. 

{¶1} Defendant-appellant John W. Petway appeals the December 4, 2014 

Judgment Entry entered by the Delaware County Court of Common Pleas denying his 

Petition for Post-Conviction Relief. Plaintiff-appellee is the state of Ohio. 

STATEMENT OF THE CASE1

{¶2} On July 31, 2013, Delaware County Grand Jury indicted Appellant on 

twenty-five counts: two counts of rape, in violation of R.C. 2907.02(A)(2), both felonies 

of the first degree; three counts of sexual battery, in violation of R.C. 2907.03(A)(5), 

felonies of the second degree; nine counts of rape, in violation of R.C. 2907.02(A)(2), 

felonies of the first degree; seven counts of sexual battery, in violation of R.C. 

2907.03(A)(5); one count of menacing by stalking, in violation of R.C. 2903.211(A), a 

felony of the fourth degree; one count of importuning, in violation R.C. 2907.07(A), a 

felony of the second degree; and one count of importuning, in violation of R.C. 

2907.07(D)(1), a felony of the fourth degree. 

{¶3} On October 10, 2013, Appellant entered a negotiated plea of guilty to two 

counts of rape. In return, the State agreed to dismiss the remaining charges. The State 

also agreed to recommend a prison term of twenty years. 

{¶4} The trial court accepted the plea of guilty, and convicted Appellant of the 

two counts of rape. The trial court immediately proceeded in sentencing Appellant to 

ten years on each count to be served consecutively and by agreement pursuant to R.C. 

2953.08(D). 

 

1 A rendition of the underlying facts is unnecessary for our resolution of the appeal. 
Delaware County, Case No. 15CAA010003 3

{¶5} On December 5, 2013, Appellant filed an appeal with this Court, assigning 

in his first two assignments of error his trial counsel's failure to investigate and pursue 

the issues pertaining to Appellant's competency prior to entering the plea of guilty. 

{¶6} On August 12, 2014, Appellant filed a motion for post-conviction relief 

pursuant to R.C. 2951.21. 

{¶7} Appellant asserted in his motion for post-conviction relief his constitutional 

rights were violated in that he was denied the effective assistance of counsel in trial 

counsel's failure to investigate his medical, educational and social history. Appellant's 

petition asserted counsel failed to request a competency evaluation, related to both his 

cognitive understanding and mental state. Appellant further argued counsel failed to 

request a pre-sentence investigation. Appellant argued counsel's failures resulted in his 

not voluntarily, knowingly and intelligently entering his plea. 

{¶8} Via Opinion and Judgment Entry of September 29, 2014, this Court 

rejected Appellant's arguments and affirmed Appellant's conviction and sentence. 

{¶9} On October 10, 2014, Appellant filed a motion in the trial court for the 

approval of expense money to retain a psychologist for the purpose of evaluating the 

mental condition of Appellant. The trial court denied the motion via Judgment Entry of 

October 22, 2014. 

{¶10} On November 14, 2014, the trial court conducted an evidentiary hearing to 

address Appellant's petition for post-conviction relief. At the hearing, the trial court 

heard the testimony of Appellant and Appellant's prior trial counsel. 

{¶11} Via Judgment Entry of December 4, 2014, the trial court denied 

Appellant's petition for post-conviction relief. 
Delaware County, Case No. 15CAA010003 4

{¶12} Appellant appeals, assigning as error: 

{¶13} "I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S 

PETITION FOR POST-CONVICTION RELIEF INASMUCH AS THERE WAS 

EVIDENCE TO SUPPORT THAT DEFENDANT'S TRIAL COUNSEL WAS 

INEFFECTIVE BY FAILING TO INVESTIGATE ISSUES PERTAINING TO 

DEFENDANT'S COMPETENCY, INCLUDING INVESTIGATING DEFENDANT'S 

MEDICAL, EDUCATIONAL, AND SOCIAL HISTORY PRIOR TO ENTERING A GUILTY 

PLEA PURSUANT TO PLEA BARGAIN." 

I. 

{¶14} Appellant maintains his trial counsel was ineffective; therefore, the trial 

court erred in denying his petition for post-conviction relief. 

{¶15} O.R.C. 2953.21 governs the filing of a petition for post-conviction relief, 

 (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, and any person who has been convicted of a criminal offense that 

is a felony and who is an offender for whom DNA testing that was 

performed under sections 2953.71 to 2953.81 of the Revised Code or 

under former section 2953.82 of the Revised Code and analyzed in the 

context of and upon consideration of all available admissible evidence 

related to the person's case as described in division (D) of section 2953.74 

of the Revised Code provided results that establish, by clear and 
Delaware County, Case No. 15CAA010003 5

convincing evidence, actual innocence of that felony offense or, if the 

person was sentenced to death, establish, by clear and convincing 

evidence, actual innocence of the aggravating circumstance or 

circumstances the person was found guilty of committing and that is or are 

the basis of that sentence of death, 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. 

 *** 

 (2) Except as otherwise provided in section 2953.23 of the Revised 

Code, a petition under division (A)(1) of this section shall be filed no later 

than three hundred sixty-five days after the date on which the trial 

transcript is filed in the court of appeals in the direct appeal of the 

judgment of conviction or adjudication or, if the direct appeal involves a 

sentence of death, the date on which the trial transcript is filed in the 

supreme court. If no appeal is taken, except as otherwise provided in 

section 2953.23 of the Revised Code, the petition shall be filed no later 

than three hundred sixty-five days after the expiration of the time for filing 

the appeal. 

{¶16} In State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, the Ohio 

Supreme Court held: 
Delaware County, Case No. 15CAA010003 6

 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, any 

defense or any claimed lack of due process that was raised or could have 

been raised by the defendant at trial, which resulted in that judgment of 

conviction, or on an appeal from that judgment. (Emphasis added.) 

{¶17} Here, Appellant asserts he has a tenth grade education. He further 

asserts he suffers from an 80% hearing loss and is dependent on the use of hearing 

aids and lip reading. He maintains he communicated these issues to trial counsel prior 

to and during trial. He further maintains he takes daily medications, including Prozac 

and Propanolol ER, which he communicated to trial counsel. However, his trial counsel 

did not pursue any further investigation of his physical or mental disabilities. As a result, 

Appellant maintains he was pressured by counsel to accept the plea, and he "shut down 

mentally" after counsel did not support his position, causing his depression and anxiety 

to worsen. When asked by the trial court to list his medications, Appellant stated he 

listed the medications he could remember, but was intimidated and nervous, not listing 

all the medications. Appellant asserts his trial counsel was ineffective in not intervening. 

{¶18} During trial, Appellant advised the trial court he did not require 

accommodations for his hearing loss. However, Appellant now maintains due to his 

feelings of depression and being coerced into accepting the plea, he did not complain to 

the trial court of his inability to hear or understand the proceedings. As a result, he now 

claims he was unable to hear or understand the proceedings during the change of plea 

proceedings. 
Delaware County, Case No. 15CAA010003 7

{¶19} On direct appeal in State v. Petway, 5th Dist. No. 3CAA120084, 2014-

Ohio-4439, Appellant assigned as error in Assignments of Error one and two, 

{¶20} “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF 

COUNSEL WHEN COUNSEL DID NOT CONDUCT AN INVESTIGATION INTO THE 

MEDICAL, EDUCATIONAL, AND SOCIAL HISTORY OF THE 

DEFENDANT/APPELLANT PRIOR TO ENTERING A GUILTY PLEA PURSUANT TO A 

PLEA BARGAIN.” 

{¶21} “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF 

COUNSEL WHEN COUNSEL FAILED TO REQUEST A PRESENTENCE 

INVESTIGATION TO INQUIRE INTO THE EXTENT OF THE 

DEFENDANT/APPELLANT'S DOCUMENTED PHYSICAL AND MENTAL 

DISABILITIES AND FURTHER FAILED TO PROVIDE ANY MITIGATION 

INFORMATION AT SENTENCING.” 

{¶22} This Court held, 

 During the plea hearing, appellant was placed under oath, and the 

trial court explained to him that he could interrupt him at anytime if he did 

not understand an explanation or question or wished a clarification. T. at 

4–5. The trial court emphasized that he wanted to make sure appellant 

was “completely understanding of everything going on.” T. at 4. 

 Appellant informed the trial court that he had a tenth grade 

education, could read and write, and the only special education courses 

he had taken were a result of his impaired hearing. T. at 5–6, 7. Appellant 
Delaware County, Case No. 15CAA010003 8

stated he could hear the judge. T. at 6. The trial court offered appellant 

hearing devices to help him, but he declined. T. at 6–7. 

 The trial court asked appellant if he was on any medications and 

appellant stated, “I am taking Diovan for high blood pressure. I am taking 

Propanolol to slow my heart down. And I'm taking metformin for diabetic, 

and I am taking another meds for cholesterol.” T. at 8. The trial court found 

appellant to be alert and not under the influence of alcohol or drugs. Id.

 Appellant admitted he was entering his plea on the advice of 

counsel, and he was one hundred percent satisfied with his trial counsel's 

representation. T. at 12, 19. 

 From the record before this court, we find the trial court was aware 

of appellant's medical, educational, and social history prior to accepting 

the plea. The trial court was aware of appellant's hearing disability and 

took the time to offer assistance and to make further explanations and 

clarifications if necessary. We find no ineffective assistance of counsel on 

this issue. 

{¶23} Upon review, we find Appellant's arguments on appeal are barred by the 

doctrine of res judicata as the arguments were raised on direct appeal. We find nothing 

presented at the November 14 hearing justifies further review of that prior conclusion. 

Accordingly, the assigned error is overruled. 
Delaware County, Case No. 15CAA010003 9

{¶24} Based upon the above, the judgment of the Delaware County Court of 

Common Pleas denying Appellant's petition for post-conviction relief is affirmed. 

By: Hoffman, P.J. 

Farmer, J. and 

Delaney, J. concur