COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68004 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN SWORTCHECK : PER CURIAM : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 20, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-249740 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: GEORGE J. SADD, ESQ. PAUL MANCINO, JR., ESQ. Assistant County Prosecutor 75 Public Square 8th Floor Justice Center Suite 1016 1200 Ontario Street Cleveland, Ohio 44113-2098 Cleveland, Ohio 44113 -2- PER CURIAM: This appeal was filed and briefed as an accelerated appeal pursuant to Local App.R. 25. John Swortcheck, defendant-appellant, appeals the trial court's dismissal of his petition for post-conviction relief. Swortcheck assigns the following errors for our review: I. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ORDERED A HEARING IN THIS CASE AND THEN, WITHOUT NOTICE, GRANTED A MOTION TO DISMISS. II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DISPOSED OF THE PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING. III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS NOT AWARDED A NEW TRIAL BY REASON OF INEFFECTIVE ASSISTANCE OF COUNSEL. For the reasons set forth below, we reverse the decision of the trial court. Swortcheck was convicted of two counts of rape and one count of kidnapping. He filed a petition for post-conviction relief and alleged the denial of effective assistance of counsel because his trial counsel failed to use material witnesses available to him for trial. In support of the petition, Swortcheck provided three affidavits. Michelle Ettinger and Phyllis McDonald averred to the following: Both of them were employed at Duke's Bar on West 130th Street in Cleveland, Ohio at the time of the alleged rape and kidnapping. After the incident was alleged to have taken place, Georgia Ollie, who was a regular patron, came into Duke's Bar. -3- Ollie told them she and another woman went for a ride with Swortcheck in his car, because she wanted him to take her to buy some cocaine and go home with her. As they were riding, Ollie had a fight with the other woman, and Swortcheck ordered her out of his car. Two weeks later, Ollie came back into the bar, told them she was angry at Swortcheck for rejecting her and made up the rape claim to get revenge. Swortcheck averred the following: He told his trial counsel, Michael J. Molnar, about the two witnesses, Ettinger and McDonald. He told Molnar the substance of their testimony, but Molnar did not take any action to have them testify at trial. During the course of the trial, McDonald showed up in the courtroom, but Molnar refused to consider using her as a witness. The State filed a motion to dismiss the petition for post- conviction relief. In support of the motion to dismiss, the State provided the affidavit of Michael J. Molnar. Molnar averred the following: He was never told about Ettinger and McDonald. Had he known they were potential witnesses, he would have contacted them and, if satisfied with their reliability, would have called them to testify on Swortcheck's behalf. Upon these facts, the trial court determined Swortcheck could not demonstrate ineffective assistance of counsel, the motion to dismiss the petition was granted, and this appeal followed. In this appeal, Swortcheck's three assignments of error essentially raise the same issue: whether his petition for post- conviction relief was sufficient to warrant a hearing. "Before -4- granting a hearing, the court shall determine whether there are substantive grounds for relief.***" R.C. 2953.21(C). "Thus, the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavit and the files and records of this cause." E.g. State v. Jackson (1980), 64 Ohio St.2d 107, 110. When determining whether there are substantive grounds for post-conviction relief which would warrant a hearing, the affidavits offered in support of the petition should be accepted as true. See State v. Strutton (1988), 62 Ohio App.3d 248, 252. The affidavit or affidavits in support need only present sufficient prima facie evidence of ineffective assistance of counsel to warrant a hearing. Id. at 253. In State v. Scott (1989), 63 Ohio App.3d 304, this court held an affidavit containing evidence of the availability of mitigating evidence and the failure of trial counsel to attempt to obtain the mitigating evidence set forth sufficient operative facts to show substantial grounds for relief. Id. at 310-311. Because there were substantive grounds for relief, this court held that a hearing should have been granted, and remanded the case for a hearing on the claim of ineffective assistance counsel during the mitigation phase. Id. at 311. The case sub judice presents a similar basis for relief. The affidavits of Michelle Ettinger and Phyllis McDonald contain evidence which, if believed, would seriously impeach the credibility of the victim, Georgia Ollie, and could possibly exonerate Swortcheck. Swortcheck's affidavit contains evidence his -5- trial counsel knew Ettinger and McDonald were potential witnesses, but failed to interview them, or call them as witnesses. Accordingly, the affidavits contain sufficient operative facts showing substantive grounds for relief and a hearing should have been held. The State's opposition to the petition merely raises a question of credibility. The state claims Swortcheck's lawyer did not know of the witnesses. Swortcheck says he did. The credibil- ity of the witnesses offering the affidavits is for the trier of fact to resolve at the hearing. See Killilea v. Sears, Roebuck & Co. (1985), 27 Ohio App.3d 163 (held credibility not proper basis for summary judgment). See, also, State v. Willison (Aug. 18, 1994), Perry App. No. CR-93-462, unreported; State v. Ramos (June 8, 1994), Lorain App. No. 93CA005741, unreported, citing State v. Xie (1992), 62 Ohio St.3d 521, 525. Thus, the credibility of witnesses and any conflict in evidence is properly resolved at the post-conviction hearing, not before. State v. Rios (Apr. 15, 1993), Cuyahoga App. No. 63509, unreported (Blackmon, J., dissenting). While the trial court sub judice may ultimately conclude Swortcheck's witnesses are incredible, that determination cannot be made without a hearing. Accordingly, this case is reversed and remanded for a hearing on the petition for post-conviction relief. Judgment reversed and remanded. -6- This cause is reversed and Remanded. It is, therefore, considered that said Appellant recover of said Appellee his costs herein. 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, PRESIDING J. SARA J. HARPER, JUDGE JOSEPH J. NAHRA, 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. .