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Date: 06-18-2021
Case Style:
STATE OF OHIO v. PHIL D. MILLS
Case Number: 29856
Judge: Lynne S. Callahan
Court: IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Plaintiff's Attorney: SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney
Defendant's Attorney:
Description:
Akron, Ohio - Criminal defense attorney represented Phil D. Mills with f aggravated burglary with an accompanying firearm specification, aggravated robbery with an accompanying firearm specification, and having weapons while under disability charges.
In 2017, a jury found Mr. Mills guilty of aggravated burglary with an accompanying
firearm specification, aggravated robbery with an accompanying firearm specification, and having
weapons while under disability. The trial court merged the aggravated burglary and aggravated
robbery convictions and their specifications and sentenced Mr. Mills to concurrent prison terms of
six years for aggravated burglary and three years for having weapons while under disability and to
a prison term of three years for the firearm specification, to be served consecutively. Mr. Mills
appealed, and the transcript of proceedings in his direct appeal was filed on April 20, 2018. On
March 6, 2019, this Court affirmed his convictions, and on March 11, 2019, Mr. Mills filed a
timely petition for postconviction relief. Mr. Mills filed an application to reopen his direct appeal 2
on April 29, 2019. This Court granted the application and, on January 13, 2021, affirmed his
convictions in part but reversed and remanded for resentencing because the trial court did not
impose postrelease control properly. See State v. Mills, 9th Dist. Summit No. 28954, 2021-Ohio52.
{¶3} The trial court denied Mr. Mills’ petition for postconviction relief on September
14, 2020, concluding that his claims for relief were barred by res judicata. Mr. Mills filed this
appeal.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY DECLARING THAT THE APPELLANT’S
PETITION FOR POST-CONVICTION RELIEF WAS BARRED VIA THE RES
JUDICATA DOCTRINE.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED [ITS] DISCRETION BY DISMISSING THE
APPELLANT’S PETITION FOR POST-CONVICTION RELIEF (WHICH IS
SUPPORTED BY COMPETENT AND CREDIBLE EVIDENCE THEREFORE,
WARRANTING AN EVIDEN[TIARY] HEARING).
{¶4} In his two assignments of error, Mr. Mills argues that the trial court erred by
concluding that his claims were barred by application of res judicata and dismissing his petition
for postconviction relief without a hearing. Mr. Mills’ assignments of error are interrelated, so
they are combined for purposes of disposition.
{¶5} R.C. 2953.21(A)(1)(a) provides that:
[a]ny 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. 3
Trial courts considering a timely petition for postconviction relief must first decide whether a
hearing is warranted by determining whether there are substantive grounds for relief with reference
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(D). Consequently, a trial
court may summarily dismiss a petition that “does not allege facts which, if proved, would entitle
the prisoner to relief[]” or a petition whose allegations are negated by the supporting evidence and
the record. State v. Perry, 10 Ohio St.2d 175 (1967), paragraph two and three of the syllabus. See
also State v. Calhoun, 86 Ohio St.3d 279 (1999), paragraph two of the syllabus; State v. Lester, 41
Ohio St.2d 51 (1975), paragraph two of the syllabus.
{¶6} Courts must also consider whether the doctrine of res judicata bars the claims raised
in a petition for postconviction relief. See Perry at paragraph 8 of the syllabus. Res judicata is
grounds for summary dismissal of a petition. Lester at 55. “Postconviction review is a narrow
remedy, since res judicata bars any claim that was or could have been raised at trial or on direct
appeal.” State v. Steffen, 70 Ohio St.3d 399, 410 (1994). See also Perry at paragraph seven of the
syllabus. “When a trial court denies a petition for post-conviction relief on the basis of an issue of
law, such as the doctrine of res judicata, this Court reviews the matter de novo.” State v. Palmer,
9th Dist. Summit No. 28723, 2018-Ohio-1486, ¶ 19, citing State v. Tauwab, 9th Dist. Summit No.
28022, 2017-Ohio-81, ¶ 10.
{¶7} Mr. Mills asserted four claims for relief in his petition. In the first, he alleged that
he was deprived of due process because the indictment was not returned to a judge of the Court of
Common Pleas in a manner consistent with Crim.R. 6(F). Mr. Mills has not challenged the trial
court’s dismissal of this claim for relief. Mr. Mills’ second, third, and fourth claims for relief
alleged ineffective assistance of counsel. In his second claim for relief, Mr. Mills alleged that trial 4
counsel was ineffective by virtue of the fact that his attorney failed to argue that Mr. Mills should
have been identified as a suspect at an earlier date as a result of DNA collection in the criminal
justice system. Mr. Mills’ third claim for relief alleged that trial counsel was ineffective because
his attorney failed to retain an expert to explain inconsistencies between the testimony of a defense
witness and the victim. In his fourth claim for relief, Mr. Mills alleged that trial counsel was
ineffective because his attorney failed to investigate the physical similarities between a defense
witness and the victim’s description of the perpetrator.
{¶8} Courts apply the same standard for assessing ineffective assistance of counsel when
considering a petition for postconviction relief as is applied when the issue is raised on direct
appeal. See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 61. Thus, in order to
demonstrate ineffective assistance of counsel, a defendant must show (1) deficiency in the
performance of counsel “so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment” and (2) that the errors made by counsel were “so serious
as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 466 U.S. 668, 687 (1984).
A defendant must demonstrate prejudice by showing that, but for counsel’s errors, there is a
reasonable possibility that the outcome of the trial would have been different. Id. at 694. In
applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance[.]” Strickland at 689. Res judicata is a proper
basis for dismissing a petition that alleges ineffective assistance of trial counsel when the issue
could have been raised without resort to evidence outside the record on direct appeal and the
defendant did not do so, although represented by new appellate counsel. State v. Cole, 2 Ohio
St.3d 112 (1982), syllabus. 5
{¶9} Mr. Mills was represented by different counsel at trial and in his reopened direct
appeal.1
His second claim for relief—that trial counsel was ineffective because his attorney did
not argue that Mr. Mills was denied due process because he was not identified as a suspect
sooner—could have been raised on direct appeal. The substance of this claim is that his
prosecution could have commenced sooner had DNA been collected from him at various times
between the crime and his arrest. A delay did occur, but the source of that delay was a failure on
the part of law enforcement to obtain a confirmation sample in response to notification of a DNA
match, and the facts surrounding the delay were apparent from the trial court record and could
have been raised on direct appeal. Moreover, to the extent that Mr. Mills’ second claim for relief
argues that he was not brought to trial within the statute of limitations, a similar argument was
rejected in his direct appeal. Mills, 2021-Ohio-52, at ¶ 7-10.
{¶10} Mr. Mills’ third and fourth claims for relief, which alleged ineffective assistance of
counsel in connection with a defense witness, were also apparent from the record and could have
been raised in his direct appeal. The witness at issue, Elohim El-Jones, is an incarcerated
individual who claimed that he heard about the crime with which Mr. Mills was charged; realized
that he, himself, may have committed the crime; and determined to testify on Mr. Mills’ behalf.
With respect to Mr. Mills’ third claim for relief, any inconsistencies between Mr. El-Jones’
testimony and the testimony of the victim were apparent from the record, and ineffective assistance
in this regard could have been raised on direct appeal. Compare State v. Blanton, 4th Dist. Adams
Nos. 19CA1096, 19CA1097, 2020-Ohio-7018, ¶ 26-27. This situation is, therefore,
distinguishable from those cases in which res judicata does not apply because the basis for an
1
Trial counsel also did not participate in his direct appeal before this Court granted the
application for reopening. 6
ineffective assistance claim cannot be discerned from the record on direct appeal. See, e.g., In re
D.J., 9th Dist. Summit No. 29119, 2020-Ohio-3528, ¶ 19, citing State v. Dovala, 9th Dist. Lorain
No. 08CA009455, 2009-Ohio-1420, ¶ 17-18. Similarly, the basis for Mr. Mills’ fourth claim for
relief—which alleged that trial counsel was ineffective by virtue of failing to investigate the
physical similarities between Mr. El-Jones and the victim’s description of the perpetrator—was
also apparent from the record. Both the victim’s description and testimony regarding the physical
appearance of Mr. Mills and Mr. El-Jones were the subject of testimony at trial, and this
ineffective-assistance argument could have been raised on direct appeal. Compare State v. Burton,
9th Dist. Summit No. 28359, 2017-Ohio-7588, ¶ 12; State v. Shirey, 9th Dist. Summit No. 20930,
2002-Ohio-4151, ¶ 15-17.
{¶11} Mr. Mills suggests that his second, third, and fourth claims for relief should not
have been dismissed as res judicata because he appended exhibits to his petition that were not part
of the record on appeal. “‘For a defendant to avoid dismissal of the petition by operation of res
judicata, the evidence supporting the claims in the petition must be competent, relevant, and
material evidence outside the trial court record, and it must not be evidence that existed or was
available for use at the time of trial.’” State v. Jennings, 10th Dist. Franklin No. 17AP-248, 2018-
Ohio-3871, ¶ 17, quoting State v. Montgomery, 10th Dist. Franklin No. 13AP-1091, 2014-Ohio5756, ¶ 19. Accord State v. Dennison, 4th Dist. Lawrence No. 18CA6, 2018-Ohio-4502, ¶ 18;
State v. Long, 5th Dist. Richland No. 17CA15, 2017-Ohio-2848, ¶ 17.
{¶12} In support of his second, third, and fourth claims for relief, Mr. Mills provided the
trial court with numerous documents that appeared in the record on appeal or were otherwise
available at the time of trial. Specifically, Mr. Mills draws this Court’s attention to a Wikipedia
page, an entry in the World Book Encyclopedia, and a document that purports to describe the 7
physical characteristics of Mr. El-Jones. Even assuming that reference materials such as these are
“evidence” for purposes of postconviction relief, this Court notes that all of the information
contained in these documents existed and was available for use at the time of trial, so Mr. Mills
cannot defeat application of res judicata with resort to these materials. See In re D.J. at ¶ 14.
{¶13} The trial court did not err by dismissing Mr. Mills’ second, third, and fourth claims
for relief without a hearing. His first and second assignments of error are, therefore, overruled.
Outcome: Mr. Mills’ assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: