COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60915 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JOHNNY RAY FULLER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 6, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CR-203914. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Karen L. Johnson Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Johnny Ray Fuller #190-634 Southern Ohio Correctional Facility P.O. Box 45699 Lucasville, Ohio 45699-0001 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant-petitioner Johnny Ray Fuller ("Fuller") appeals from the denial of his motion for post-conviction relief pursuant to R.C. 2953.21. For the reasons adduced below, we affirm. A review of the record reveals that Fuller was originally indicted on October 29, 1985, for one count of murder [R.C. 2903.02] with a gun specification [R.C. 2929.71]. Fuller retained as counsel George W. Whitehead. Dwight Davis, a partner of Mr. Whitehead, assisted in the defense. The first jury trial resulted in a mistrial due to a hung jury. The second jury trial resulted in a conviction on May 7, 1986. Fuller was sentenced to three years actual on the gun specification and fifteen years to life on the murder charge, sentences to run consecutively. Mr. Davis was appointed to represent Fuller on appeal. Fuller's conviction was affirmed by this court. State v. Fuller (July 2, 1987), Cuyahoga App. No. 52131, unreported, motion for leave to appeal overruled (April 27, 1988), No. 88- 188. On November 15, 1988, Fuller filed with the trial court a pro se "petition to vacate or set aside sentence, pursuant to O.R.C. 2953.21, et seq." As grounds for the petition, Fuller alleged ineffectiveness of trial counsel, yet submitted no evidentiary support with the petition save his own self-serving - 3 - allegations and affidavit. On November 23, 1988, the prosecutor filed a motion to dismiss Fuller's petition. On February 15, 1989, Fuller submitted the following "evidentiary documents" in support of his petition: (1) an unauthenticated copy of a written statement given by Phyllis Brown to the Cleveland Police on October 23, 1985; (2) an unauthenticated copy of a three-page handwritten letter authored by Phyllis Warren (aka Phyllis Brown), dated January 3, 1985, and allegedly witnessed by Messrs. Whitehead and Davis; (3) two unauthenticated letters from Mr. Davis to inmate Fuller, dated December 8 and 16, 1988, transmitting copies of the statement of Ms. Brown to Fuller as requested by Fuller. On July 21, 1989, Fuller filed a supplemental petition to vacate or set aside his sentence, addressing alleged ineffectiveness of appellate counsel in not raising a certain evidentiary issue regarding the testimony of a trial witness (Rosalyn Bell) as an assignment of error on direct appeal. On March 28, 1990, the trial court issued the following order: "Nunc pro tunc - January 16, 1990 Defendant's motion for post-conviction relief denied." On November 9, 1990, the trial court issued its findings of fact and conclusions of law. The court found there were no substantial grounds presented for post-conviction relief and, without an evidentiary hearing, granted the prosecution's motion to dismiss. Journal Vol. 975, pages 163-166. Fuller timely - 4 - appealed the granting of the motion to dismiss on November 26, 1990. Fuller presents five assignments of error for review. I UNDER THE TOTALITY OF THE CIRCUMSTANCES, VARIOUS INSTANCES OF INACTION BY TRIAL COUNSEL, --- TO THE PREJUDICE OF PETITIONER- APPELLANT --- DEPRIVED PETITIONER OF HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I OF OHIO'S CONSTITUTION. II DEFICIENT PERFORMANCE. WHERE A TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADMIT IN EVIDENCE THE PRIOR RECORDED TESTIMONY OF PHYLLIS BROWN, AN ABSENT WITNESS, WHERE SUCH WITNESS HAD PREVIOUSLY TESTIFIED THAT THE POLICE FORCED HER TO FABRICATE EVIDENCE AGAINST THE PETITIONER, AND, HAD DENIED CLAIMS THAT PETITIONER MADE INCULPATING STATEMENTS TO HER THAT HE SHOT OR KILLED A MAN. III DEFICIENT PERFORMANCE. WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO EITHER OBJECT AND ASK THAT ROSALYN BELL'S TESTIMONY AS TO "THREATS" BE STRICKEN, OR CALL PETITIONER'S SISTER, I.E., CHRISTINE CROSKEY, AS A REBUTTAL WITNESS ON THE ISSUE. IV WHETHER THE TRIAL COURT ERRED IN DISMISSING PETITIONER-APPELLANT'S O.R.C. 2953.21 ON THE PREMISE THAT PETITIONER DID NOT SUBMIT NO (SIC) EVIDENTIARY DOCUMENTATION IN SUPPORT OF HIS CLAIM THAT HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION OF THE UNTIED STATES CONSTITUTION, AMENDMENT SIX, AND OHIO'S CONSTITUTION, ARTICLE ONE, SECTION TEN. - 5 - V WHETHER TRIAL COUNSEL WAS INEFFECTIVE ON PETITIONER'S APPEAL WHERE HE FAILED TO RAISE THE ISSUE OF ROSALYN BELL'S TESTIMONY, AND ITS ADMISSION INTO EVIDENCE CONCERNING "THREATS" SHE RECEIVED FROM INDIVIDUALS OTHER THAN PETITIONER TO THE EIGHTH DISTRICT COURT OF APPEALS FOR LITIGATION. In ruling on a previous post-conviction relief case dealing with ineffectiveness of counsel, this court stated: Ohio case law holds that a properly licensed attorney is presumed to execute his duties in an ethical and competent manner. Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299, 31 O.O. 2d 567, 209 N.E. 2d 164; State v. Williams (1969), 19 Ohio App. 2d 234, 48 O.O. 2d 364, 250 N.E. 2d 907. The appellant, in order to overcome this presumption of effectiveness, must submit sufficient operative facts or evidentiary documents which, if proven, would show that appellant was prejudiced by said ineffective counsel. State v. Perry (1967), 10 Ohio St. 2d 175, 39 O.O. 2d 189, 226 N.E. 2d 104. In addition, the Ohio Supreme Court has formulated the following tests which must be applied to a claim of ineffective assistance of counsel in a petition to vacate sentence: "* * * Balancing the rights of the accused and of the public, we hold that the test to be whether the accused, under all the circumstances * * * had a fair trial and substantial justice was done." State v. Hester (1976), 45 Ohio St. 2d 71, 79, 74 O.O. 2d 156, 160-161, 341 N.E. 2d 304, 310. "* * * First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be - 6 - a determination as to whether the defense was prejudiced by counsel's ineffectiveness." State v. Lytle (1976), 48 Ohio St. 2d 391, 396-397, 2 O.O. 3d 495, 498, 358 N.E. 2d 623, 627, vacated as to the death penalty (1978), 438 U.S. 910. The United States Supreme Court has established a two-step process for evaluating an allegation of ineffective assistance of counsel. In Strickland v. Washington (1984), 466 U.S. 668, 687, the court concluded that: "* * * First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. * * *" (Emphasis added.) State v. Smith (Cuyahoga, 1987), 36 Ohio App. 3d 162, 163-164. also see, State v. Bradley (1989), 42 Ohio St. 3d 136; State v. Kapper (1983), 5 Ohio St. 3d 36. In the present case, Fuller alleges the following areas of ineffective representation by trial counsel in that counsel failed to offer the as yet undetermined evidence: (1) to show that his fingerprint found on the murder victim's vehicle was a police fabrication; (2) to refute the testimony of a prosecution witness, Eugene Brown, that Phyllis Brown had told this witness - 7 - that Fuller admitted to her of having killed the victim. See 1 assignment of error number one. Lacking any documentation that this alleged evidence in fact existed, it cannot be shown that counsel's performance was deficient or that any prejudice accrued to Fuller. The first assignment is overruled. In his second assignment of error, Fuller alleges ineffective assistance of counsel in that his attorney failed to offer into evidence at the second trial, the prior recorded testimony of Phyllis Brown which was in evidence at the first trial. Ms. Brown was absent from the second trial, despite a writ of attachment issued by the trial judge in an effort to require her presence. The decision not to introduce the prior recorded testimony was a trial strategy by defense counsel. By not offering this testimony at the second trial, the jury did not have the opportunity to examine Ms. Brown's written statement to police which contradicted her later recantation and implicated Fuller in the murder and post-murder threatening of potential witnesses. We cannot say that this strategy of counsel fell below contemporary professional standards violating the duty of competent representation to the client. We are also hesitant to 1 Counsel, at trial, objected to witness Eugene Brown's testimony. The admission of Mr. Brown's testimony was also the subject of an assignment of error on Fuller's direct appeal from the conviction. - 8 - conclude that Fuller was prejudiced by this strategy. Assignment two is overruled. In the third assignment of error, Fuller alleges ineffectiveness of trial counsel in: (1) failing to object to the testimony of State witness Rosalyn Bell, to-wit, that she had been threatened not to testify or to commit perjury by Phyllis Brown and Fuller's sister, Christine Croskey; (2) failing to call Ms. Croskey as a rebuttal witness to the testimony of Ms. Bell concerning threats. The decision to not object so as not to draw attention to the testimony or to not call a witness to testify is a decision involving trial strategy. State v. Hunt (1984), 20 Ohio App. 3d 310; State v. Reese (1982), 8 Ohio App. 3d 202; State v. Schoolcraft (September 25, 1990), Franklin App. No. 89AP-1076, unreported; State v. Shepeard (September 14, 1989), Cuyahoga App. No. 55844, unreported, at 6-7. The record is devoid of evidence as to what Ms. Croskey would have said under oath. State v. Kapper, supra. Lacking such evidence, we cannot say that Fuller was prejudiced by the lack of Ms. Croskey's purported testimony. Furthermore, considering the remaining evidence supporting the conviction of Fuller, namely, that (1) he claimed to have never been near the victim's car yet his fingerprint was found near the driver's door; (2) two eyewitnesses placed Fuller at the scene of the murder; (3) Fuller owned a handgun of the same caliber that was used in the murder, and (4) Eugene Brown testified that Ms. - 9 - Brown told him that Fuller had admitted to her of having shot the victim, it is not reasonable to assume that the outcome of the trial would have been different. Accordingly, the trial court was correct in determining that the claims of Fuller were meritless and no prejudice attached as a result of counsel's strategy. The third assignment of error is overruled. In the fourth assignment of error, Fuller takes issue with the trial court's conclusion of law which indicated that Fuller's petition lacked evidentiary support for his claim of ineffective assistance of counsel. The four unauthenticated copies of documents submitted by Fuller in support of his petition do not rise to the level of evidence contemplated by State v. Kapper, supra, to demonstrate a prima facie claim of ineffective counsel. The trial court was correct in its conclusion of law. Assignment four is overruled. In the fifth assignment of error, Fuller alleges the trial court erred in denying relief based on ineffectiveness of appellate counsel on his direct appeal in not raising the substance of his second, third, and fourth assignments herein as assignments of error in the direct appeal. The claim of Fuller against his appellate representation is outside the scope of a petition for post-conviction relief at the trial court level. State v. Scott (Cuyahoga, 1989), 63 Ohio App. 3d 304, 313-314. Assignment five is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. Exceptions. JOSEPH J. NAHRA, P.J., and LEO M. SPELLACY, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .