COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68232 & 68233 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL O. FULLER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 26, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case Nos. CR-276787, CR-277973 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MICHAEL O. FULLER, PRO SE CUYAHOGA COUNTY PROSECUTOR #257-390 BY: GEORGE J. SADD, ESQ. P.O. Box 1368 ASSISTANT COUNTY PROSECUTOR Mansfield, Ohio 44901 The Justice Center 1200 Ontario Street PAUL F. MARKSTROM, ESQ. Cleveland, Ohio 44113 208 Ohio Savings Building 22255 Center Ridge Road Rocky River, Ohio 44116 - 2 - DYKE, J.: Defendant-appellant, Michael Fuller appeals pro se the denial of his motion for post-conviction relief (PCR) which was predicated upon a claim of ineffective assistance of trial counsel. Appellant asserts that the court erred in denying his motion because defense counsel failed to object to evidence of other acts and elicited evidence of same during trial and because counsel ineffectively assisted him during the appeal of his convictions. Appellant further asserts that the court erred by stating in its Findings of Fact and Conclusions of Law that his claims were barred by the doctrine of res judicata. Upon review, we find appellant's assignments of error to be meritless. The denial of his PCR motion is affirmed. On June 5, 1992 appellant was convicted in consolidated case Nos. CR 63987 and CR 63988 of two counts of Rape with specifications (R.C. 2907.02); one count of Aggravated Robbery (R.C. 2911.11); Attempted Felonious Assault (R.C. 2923.02); Felonious Assault (R.C. 2903.11); Aggravated Burglary with specifications (R.C. 2911.11); Kidnapping with specifications (R.C. 2905.01); Trespassing (R.C. 2911.21) and Assault (R.C. 2903.13). Appellant's convictions were affirmed by this court in State v. Fuller (October 28, 1993) Cuyahoga App. Nos. 63987/63988, unre- ported. The Supreme Court of Ohio subsequently declined juris- diction to review appellant's appeal of Fuller, supra. On May 20, 1994 appellant filed a Petition to Vacate or Set Aside Sentence. Appellee filed a Motion to Dismiss appellant's petition which was - 3 - granted on June 22, 1994. On November 18, 1994 Findings of Fact and Conclusions of Law were issued by the trial court. On November 30, 1994 appellant filed the instant appeal which was reinstated on 1 May 17, 1995. He assigns the following errors for our I PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. In his first assignment of error appellant claims that the trial court erred in denying his motion because defense counsel violated Evid. R. 404(B) viz, other crimes, wrongs or acts, when he commented on the rocky relationship appellant had with the victim, Deshun Moore, during opening arguments; when he failed to object to Moore's direct testimony which alluded to prior acts of domestic violence; when he questioned Officer Yowell during cross- examination about beatings of Moore which occurred prior to December 19, 1991 and when he stated that there were no charges of domestic violence filed against appellant in closing argument. Upon review we find the trial court did not err in denying appellant's motion as this court determined in Fuller, supra, that defense counsel's conduct constituted a legitimate trial strategy. In Fuller, appellant advanced the following assignment of error: II. THE TRIAL COURT FAILED TO FOLLOW EVID.R. 404(B) AND COMMITTED PREJUDICIAL ERROR WHEN, OVER OBJECTION, A POLICE OFFICER WAS PERMITTED TO TESTIFY ABOUT PRIOR RESPONSES TO THE RESIDENCE OF DESHUN MOORE IMPLYING THAT THE APPELLANT HAD BEEN INVOLVED IN DOMESTIC VIOLENCE AND AGGRAVATED BURGLARIES AT THAT RESIDENCE ON THOSE 1 Appellant's initial appeal was dismissed sua sponte for failure to file praecipe pursuant to Local Rule 4. - 4 - OCCASIONS. In overruling this assignment we stated: It is apparent from the record that defense counsel sought to discredit Moore's testimony by relying on her desire to punish appellant. Specifically, counsel intended to show that Moore had a tendency to falsely press charges against appellant and then beg the state not to prosecute him. The desired result would be that the jury could infer that the present cases were brought against appellant based upon false charges as well. According to the defense, Moore, however could not withdraw her allegations this particular time because she was threatened with prosecution herself if she chose to withdraw them. Defense counsel's strategy thus required evidence that Moore previously pressed charges against the appellant or at least called police to her apartment because of appellant's actions. In light of this trial strategy, we are unwilling to find that Officer Cottom's testimony was prejudicial to the appellant. Even assuming arguendo that the defense did not possess such a trial strategy, defense counsel's failure to object to the prosecutor's initial reference to the parties' stormy relationship and police officers' familiarly with Moore and appellant because of incidents prior to December 19, 1991 constitutes a waiver of this error. Compare, State v. Hartford (1984), 21 Ohio App.3d 29 (objection to evidence of other crimes committed by a defendant, prohibited by Evid.R. 404(B), waived where it is first brought out on cross-examination by defendant's attorney.) Under these circumstances we fail to find the presence of plain error pursuant to Crim.R. 52(B). Appellant's second assignment of error is overruled. Fuller at 19. Our review of appellant's PCR motion reveals that the Evid.R. 2 404(B) errors he cited therein are ide errors he cited in his direct appeal. The only difference between the errors he assigned in his motion and those he assigned on appeal is the identity of the alleged violator of the rule. On direct appeal appellant claimed that the trial court violated 2 See, "Evidentiary Documentation" filed in support of appellant's motion. - 5 - Evid.R. 404(B). (See, Fuller, supra) In his PCR motion appellant claimed that defense counsel violated Evid.R. 404(B) by eliciting evidence of other acts and was therefore ineffective. However, it is well settled that when a defendant alleges ineffective assistance of counsel in a PCR petition, he must submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and to show that his defense was prejudiced by counsel's ineffectiveness. See, State v. Jackson (1980), 64 Ohio St.2d 107, syllabus and Strickland v. 3 Washington (1984), 466 U.S. 668, tiary Documentation" submitted by the appellant fails to demon- strate such operative facts of incompetence. Appellant's affidavit contains broad, conclusory and self-serving allegations of incompetence and prejudice which are insufficient in and of themselves to warrant relief from conviction and to contradict the determination of competency made by this court in Fuller, supra. Since, nothing before the lower court demonstrated that trial counsel was deficient in his performance or that the outcome of appellant's trial would have been otherwise, the trial court properly denied appellant's PCR motion. See, State v. Williams 3 A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. The burden of proving ineffectiveness is on the defendant. State v. Smith (1981), 3 Ohio App.2d 115. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153 To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. See, Strickland, supra. - 6 - (1991), 74 Ohio App.3d 686, 692-93. His first assignment of error is overruled. II PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH HIS DIRECT APPEAL. A claim of ineffective assistance of appellate counsel is not cognizable in a post-conviction relief petition. See, State v. Murnahan (1992), 63 Ohio St.3d 60. Appellant's second assignment of error is overruled. III THE TRIAL COURT ERRED IN FINDING CLAIMS TO BE BARRED FROM CONSIDERATION BY THE DOCTRINE OF RES JUDICATA. In his third assignment of error, appellant states that he was represented by the same attorney at trial and on appeal and that therefore, the trial court cannot use the doctrine of res judicata to bar his claims of ineffective assistance of counsel. See, State v. Lambert (1989), 58 Ohio App.3d 86. While appellant's propo- sition of law is correct his application of Lambert is not. Appellant's third assignment of error demonstrates his confusion between the alleged application of the doctrine of res judicata to bar his PCR motion and the application of the doctrine to bar the specific Evid.R. 404(B) claims he made in support of his motion. It is clear that the trial court did not utilize the doctrine of res judicata to bar appellant's claim of ineffective assistance of counsel brought by way of his PCR motion. On the contrary, the court reviewed and gave full consideration to appellant's motion as evidenced by the following paragraph: - 7 - After an examination of the entire proceeding and all the documents connected therewith, the Petition to Vacate or To Set Aside Sentence, the State's Motion to Dismiss, and all the files and records pertaining to the proceedings, the Court finds that no substantial grounds for post- conviction relief exist. Findings of Fact and Conclusions of Law, Volume 1350, Page 760. However, in considering appellant's motion, the trial court properly found and stated in its Findings of Fact and Conclusions of Law that the doctrine of res judicata barred the Evid.R. 404(B) violations appellant raised in his PCR motion as appellant had 4 already raised suc indicated, this court determined such alleged violations to constitute a legitimate trial strategy. See, Fuller, supra. Hence, the appellant was collaterally estopped from relitigating Evid.R. 404(B) violations by the issue preclusion branch of the doctrine of res judicata. Appellant has not been deprived of his right to pursue post-conviction relief asserting an ineffective assistance claim even though such effort proved to be unsuccessful as the grounds for appellant's motion to wit, Evid. R. 404(B) claims, were ultimately determined to be barred by the doctrine of res judicata. Appellant's third assignment of error is overruled. The judgment of the trial court is affirmed. 4 The court citing State v. Perry (1967), 10 Ohio St.2d 175, found that "[p]etitioner's claims were argued in an appeal and therefore are barred from consideration by the doctrine of res judicata." See, Findings of Fact and Conclusions of Law at 760. - 8 - 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., AND HARPER, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- manned of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .