[Cite as State v. Warmus, 2014-Ohio-928.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 99962 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

MATTHEW WARMUS

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-536383 

 BEFORE: Blackmon, J., Celebrezze, P.J., and Keough, J. 

 RELEASED AND JOURNALIZED: March 13, 2014
ATTORNEYS FOR APPELLANT

David L. Doughten 

Robert A. Dixon 

David L. Doughten Co. L.P.A. 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

T. Allan Regas 

Assistant Prosecuting Attorney 

9th Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

PATRICIA ANN BLACKMON, J.: 
{¶1} Petitioner-appellant Matthew Warmus appeals from the trial court’s 

decision that denied his petition for postconviction relief and assigns the following errors 

for our review: 

I. The trial court denied appellant[’s] due process of law and a fair trial by 

allowing a state expert witness to testify that he listened to an unintelligible 

recording of the petitioner and interpreted those words to constitute a 

possible confession by the petitioner. 

II. The prosecutor committed misconduct by introducing and arguing that 

the petitioner transported an illegal weapon in his vehicle. 

III. The trial court erred by not ensuring Warmus understood his right 

against self-incrimination as established by the Fifth Amendment to the 

United States Constitution. 

IV. The petitioner was deprived of his right to effective assistance of 

counsel and to due process of law as guaranteed by the Fifth, Sixth, and 

Fourteenth Amendment to the United States Constitution and Article I § 10 

and § 16 of the Ohio Constitution. 

V. The trial court erred by failing to hold an evidentiary hearing as the 

affidavits provided in petitioner’s motion to vacate filed pursuant to R.C. § 

2953.21 establish a meritorious issue. 

VI. Cumulative errors deprived the appellant of his due process right to a 

fair trial. 

{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s 

decision. The apposite facts follow. 

{¶3} On October 28, 2010, a jury found Warmus guilty of murdering a parking 

lot attendant in a dispute over a parking fee, rejecting his claim that he acted in 

self-defense. The trial court sentenced Warmus to 15 years to life, with three years 

consecutive on the firearm specification. Warmus directly appealed his convictions in 
State v. Warmus, 8th Dist. Cuyahoga No. 96026, 2011-Ohio-5827 (“Warmus I”).1

 In his 

direct appeal, Warmus assigned 11 errors that collectively raised issues concerning the 

trial court’s admission of testimony, jury instructions, ineffective assistance of counsel, 

prosecutorial misconduct, and the imposition of a fine. 

{¶4} On November 11, 2011, we affirmed Warmus’s convictions but remanded 

with instructions for the trial court to modify the fine to $15,000. The Ohio Supreme 

Court declined jurisdiction in State v. Warmus, 131 Ohio St.3d 1460, 2012-Ohio-648, 

961 N.E.2d 1137 (“Warmus II”). The United States Supreme Court also declined 

jurisdiction in Warmus v. Ohio, 133 S.Ct. 335, 184 L.Ed.2d 157 (2012) (“Warmus III”). 

 

{¶5} On July 15, 2011, while his appeal was pending before this court, Warmus 

filed a petition for postconviction relief. On May 9, 2013, the trial court denied the 

petition without a hearing based on the doctrine of res judicata and issued findings of fact 

and conclusions of law. 

Postconviction Relief

{¶6} Petitions for postconviction relief are governed by the standards set forth in 

R.C. 2953.21, which provides in pertinent part: 

 1

See Warmus I, ¶ 2-4, for a summary of the relevant facts surrounding 

Warmus’s convictions. 
(A)(1)(a) 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. 

* * * 

(C) The court shall consider a petition that is timely filed under division 

(A)(2) of this section even if a direct appeal of the judgment is pending. 

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 records of the clerk of the court, and the court reporter’s 

transcript. 

{¶7} A trial court’s decision granting or denying a postconviction petition filed 

pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State v. 

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of 

discretion is “more than an error of law or of judgment; it implies that the court’s attitude 

is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 

404 N.E.2d 144 (1980). A reviewing court should not overrule the trial court’s finding 

on a petition for postconviction relief that is supported by competent and credible 

evidence. Gondor at ¶ 58. 

{¶8} R.C. 2953.21(A) requires a petitioner for postconviction relief to allege a 

“denial or infringement” of his rights under the Ohio or United States Constitutions. In 
the instant case, Warmus asserted separate denials or infringements: first, that he was 

denied his due process rights to a fair trial under the Fifth, Sixth, and Fourteenth 

Amendments to the United States Constitution due to “prosecutorial misconduct”; second, 

that he was denied effective assistance of counsel as required by the Sixth Amendment to 

the United States Constitution; and third, that he was denied the Fifth Amendment 

protection against self incrimination. 

{¶9} At the outset, we are compelled to address one of the common doctrinal 

hurdles that postconviction relief petitioners must clear: the doctrine of res judicata. 

Under the doctrine of res judicata, a final judgment of conviction bars the 

convicted defendant from raising and litigating in any proceeding, except an 

appeal from that judgment, any defense or 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. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 13. 

{¶10} A petition for postconviction relief may be denied or dismissed on res 

judicata grounds if the trial court “finds that the petitioner could have raised the issues in 

the petition at trial or on direct appeal without resorting to evidence beyond the scope of 

the record.” Id. at ¶ 16; accord State v. Williams, 8th Dist. Cuyahoga No. 85893, 

2005-Ohio-6020, ¶ 7. 

{¶11} With these principles in mind, we will address the assigned errors out of 

sequence, where appropriate. 

Audio Recording
{¶12} In the first assigned error, and indeed, the first claim in his petition, Warmus 

complains that the trial court erred by allowing a state expert to invade the province of the 

jury by testifying outside his area of expertise to an ultimate issue to be decided by the 

jury. The witness, Thomas Ciula, an expert in audio and video technology, examined a 

recording of a 911 call placed on the scene of the shooting. Ciula testified that after 

optimizing the audio track for clarity, he could hear Warmus arguing with a bystander 

saying, “if my gun’s here, it’s my fault.” 

{¶13} In his petition, Warmus supplied the affidavit of Linda Luke, a forensic 

scientist, who recommended hiring an experienced audio/video expert to review the 

equipment, standard operating procedures, and Ciula’s final report. However, Warmus 

raised this issue verbatim in his direct appeal. In addressing this issue we stated: 

The court should not have allowed the expert to render an opinion as to 

what words he heard spoken on the tape. Because Warmus and the state 

fundamentally disagreed on what words were spoken, this became a factual 

issue for the jury to resolve. The court should have instructed the jury that 

the interpretation of what words were spoken on the 911 tape were for it to 

decide and that the audio recording was the best evidence. 

Despite this error, we cannot say that it was prejudicial. Having 

independently reviewed the audio of the 911 call, we cannot confidently say 

that either interpretation by the state or defense was completely accurate. 

The jury heard the audio and was able to compare it to the transcriptions 

made by both parties and weigh them against the actual recording. 

Moreover, to the extent the jury may have given undue weight to the 

expert’s conclusions, that error was certainly harmless given the 

overwhelming evidence of Warmus’s guilt. Even had the court excluded the 

expert’s testimony, there is no probability that the outcome of the trial 

would have been different. 

Warmus I at ¶ 30-31. 
{¶14} Here, having addressed the same issue in Warmus I, we decline to revisit 

this issue because it is barred by the doctrine of res judicata. Accordingly, we overrule 

the first assigned error. 

Prosecutorial Misconduct

{¶15} In the second assigned error, and his second claim for relief in his petition, 

Warmus argues that the prosecutor repeatedly suggested that he illegally transported a 

loaded firearm in his vehicle. Again, Warmus raised the same issue in his direct appeal. 

{¶16} In addressing the issue, we stated in pertinent part as follows: 

Warmus next argues that the state committed misconduct by creating the 

impression that he illegally transported his firearm, despite not being 

charged with that offense. The state argues that this was other acts evidence 

under Evid.R. 404(B) and properly introduced to counter Warmus’s 

assertion on direct examination that the “most trouble” he had been in 

before the shooting was “a speeding ticket.” 

Questions about Warmus’s transportation of a loaded firearm did not 

reasonably fall within any exception to the prohibition on other acts 

evidence under Evid.R. 404(B). They did not touch on “proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident.” The state cites to no exception for admissibility under 

the rule, nor can we discern any plausible basis for application of the rule. 

Despite the error in the state’s questions, we cannot find them so prejudicial 

that they deprived Warmus of a fair trial. Warmus conceded that he shot the 

victim, so questions about whether he illegally transported his firearm paled 

by comparison. We do not think it is remotely possible that questions about 

Warmus’s illegally transporting the gun somehow swayed the jury into 

rejecting the self-defense claim. Any misconduct by the state was thus 

harmless beyond a doubt. 

Warmus I at ¶ 37-40. 
{¶17} Here, having addressed this issue in Warmus’s direct appeal, we decline to 

revisit it on the grounds that it is also barred by the doctrine of res judicata. Accordingly, 

we overrule the second assigned error. 

Protection Against Self-Incrimination

{¶18} In the third assigned error, and his third claim for relief in his petition, 

Warmus argues that the trial court failed to secure a knowing and intelligent waiver of his 

Fifth Amendment protection against self-incrimination. In support of this argument, 

Warmus attached an affidavit averring that his attorney did not inform him of his right not 

to testify. 

{¶19} However, Warmus could have raised this issue in his direct appeal. As 

such, this issue is barred by the doctrine of res judicata. Accordingly, we overrule the 

third assigned error. 

Effective Assistance of Counsel

{¶20} In the fourth assigned error, and in his fourth claim for relief in his petition, 

Warmus argues he was denied the effective assistance of counsel. Again, Warmus alleged 

that he was denied the effective assistance of counsel in his direct appeal. Specifically, 

Warmus alleged that counsel was ineffective for failing to request a Remmer hearing and 

for failing to object to the jury instruction regarding the burden of proof on self-defense. 

Warmus I at ¶ 74. 

{¶21} In his petition, Warmus alleged that counsel was ineffective for failing to 

utilize evidence that he was a victim of a prior violent attack in Summit County, Ohio. 
Warmus also alleged that counsel was ineffective for failing to prepare for the possibility 

that the trial court might exclude a computer program that Warmus created to show 

physical layout of the crime scene. However, Warmus could have raised these additional 

allegations in his direct appeal. As such, this claim is likewise barred by the doctrine of 

res judicata. Accordingly, we overrule the fourth assigned error. 

Cumulative Errors

{¶22} In the sixth assigned error, Warmus argues that cumulative errors denied 

him the right to a fair trial. Again, we addressed this issue in the tenth assigned error in 

Warmus’s direct appeal. Warmus I at ¶ 81-83. There, we stated: 

As we have previously discussed, the only demonstrable errors we have 

found to this point are the court’s decision to allow an audio expert to 

testify to his interpretation of words spoken on an audio recording of a 911 

call, the state’s misconduct in questioning Warmus about the illegal 

transportation of a firearm, and the court’s inadvertent transposition of 

which party bore the burden of proving self-defense. These errors neither 

adversely affected the outcome of the trial nor did they cumulatively affect 

Warmus’s right to a fair trial. 

Id. 

{¶23} Here, given that this issue was raised and address in Warmus’s direct 

appeal, we decline to revisit it on the grounds that it is barred by the doctrine of res 

judicata. Accordingly, we overrule the sixth assigned error. 

Denial of Oral Hearing
{¶24} Finally, in the fifth assigned error, Warmus argues trial court erred by failing 

to hold a hearing on his petition for relief. 

{¶25} A trial court is not required to hold a hearing on a petition for postconviction 

relief if the record and the petition fail to show that the defendant is entitled to relief. 

State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905. The statute 

specifically reads that “[u]nless 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 * * * .” R.C. 2953.21(E); State v. Jones, 8th Dist. Cuyahoga No. 83601, 

2004-Ohio-3868. 

{¶26} In considering a petition, the pivotal question for the trial court is whether, 

upon consideration of all the files and records pertaining to the underlying proceedings 

and any supporting evidence attached, the petitioner has set forth “sufficient operative 

facts to establish substantive grounds for relief.” Calhoun, paragraph two of the syllabus. 

The trial court acts as a gatekeeper in determining whether a hearing is warranted. 

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. 

{¶27} The trial court’s “gatekeeping” function in the postconviction relief process 

is entitled to deference, including its decisions regarding the sufficiency of the facts set 

forth by the petitioner and the credibility of his affidavit. State v. West, 8th Dist. 

Cuyahoga No. 98680, 2013-Ohio-826, ¶ 9, citing Calhoun. This court reviews the trial 

court’s decisions for an abuse of discretion. Id. In this case, the trial court did not abuse 
its discretion in either declining to conduct an evidentiary hearing or applying the doctrine 

of res judicata. 

{¶28} R.C. 2953.21 affords a prisoner postconviction relief “only 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. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four 

of the syllabus. A postconviction petition is not intended to provide a petitioner a second 

opportunity to litigate his or her conviction. State v. Hessler, 10th Dist. Franklin No. 01 

AP-1011, 2002-Ohio-3321, ¶ 23. 

{¶29} Rather than a direct appeal, a petition for postconviction relief is a collateral 

civil attack on a criminal judgment. State v. Easley, 10th Dist. Franklin No. 09AP-10, 

2009-Ohio-3879, ¶ 9, citing State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639 

N.E.2d 67. The petition is meant to get to constitutional issues that would otherwise be 

impossible to reach because the evidence supporting those issues is not contained in the 

record. Easley at ¶ 9. 

{¶30} Based upon that rationale, as previously stated, constitutional issues cannot 

be considered in postconviction proceedings brought pursuant to R.C. 2953.21 where they 

have already, or could have been fully litigated by the defendant, either before his 

judgment of conviction or on direct appeal from that judgment. Perry, 10 Ohio St.2d 

175, 226 N.E.2d 104 (1967), at paragraph seven of the syllabus; State v. McCullough, 78 

Ohio App.3d 587, 591, 605 N.E.2d 962, (6th Dist.1992). Issues properly raised in a 
petition for postconviction relief are only those that could not have been raised on direct 

appeal because the evidence supporting such issues is outside the record. State v. 

Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975). If an issue has, or should 

have been, raised on direct appeal, the trial court may dismiss the petition on the basis of 

res judicata. State v. Dowell, 8th Dist. Cuyahoga No. 86232, 2006-Ohio-110, ¶ 10, citing 

Perry. 

{¶31} “New” evidence attached to the petition does not automatically defeat the 

res judicata bar. Rather, evidence outside the record must meet “some threshold standard 

of cogency; otherwise it would be too easy to defeat the holding of Perry by simply 

attaching as exhibits evidence which is only marginally significant and does not advance 

the petitioner’s claim[.]” State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362 

(12th Dist.1995), quoting State v. Coleman, 1st Dist. Hamilton No. C-900811, 1993 Ohio 

App. LEXIS 1485 (Mar. 17, 1993). Moreover, the evidence dehors the record must not 

be evidence that was in existence and available for use at the time of trial and that could 

and should have been submitted at trial if the defendant wished to use it. Dowell, 8th Dist. 

Cuyahoga No. 86232, 2006-Ohio-110, ¶ 10. 

{¶32} In this case, Warmus did not provide anything new to the trial court to 

warrant an evidentiary hearing. As discussed in the previous assigned errors, all of his 

assertions were ones that were, or could have been, presented in Warmus I. As such, 

the trial court did not err when it denied the petition without a hearing. Accordingly, we 

overrule the fifth assigned error. 
{¶33} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR