COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69492 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WARNER WILCOX : : Defendant-appellant : : DATE OF ANNOUNCEMENT : APRIL 18, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CR-252985 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. WARNER WILCOX, PRO SE Cuyahoga County Prosecutor A224-567 L. Christopher Frey, Esq. G.C.I. A-4 Assistant County Prosecutor 2500 S. Avon-Belden Road 8th Floor, The Justice Center Grafton, OH 44044 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. A jury found petitioner Warner Wilcox guilty of possession of heroin, carrying a concealed weapon and having a weapon while under disability. On direct appeal, we affirmed his conviction, but remanded for resentencing on the drug law violation. See State v. Wilcox (June 11, 1992), Cuyahoga App. Nos. 60851 and 60886, unreported. Petitioner then filed this petition for postconviction relief, claiming he received ineffective assistance of trial counsel because (1) counsel failed to file a formal discovery request; (2) counsel failed to serve properly a potential witness; and (3) counsel failed to remove from the jury's consideration a prior vacated conviction that increased the degree of the drug law violation. In findings of fact and conclusions of law, the trial court denied all three claims, finding petitioner failed to demonstrate counsel made any errors or that he was prejudiced by counsel's alleged deficiencies. This appeal followed, the sole assignment of error challenging the trial court's findings. A claim of ineffective assistance of counsel requires the defendant to demonstrate counsel performed deficiently and the deficiency prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Bradley (1989), 42 Ohio St.3d 135, paragraph two of the syllabus. This requires a defendant to - 3 - show counsel's performance fell beneath an objective standard of reasonableness and that but for counsel's errors, the result of the proceeding would have been different. Bradley, supra, at paragraph three of the syllabus. In cases where trial counsel prosecutes a direct appeal, a petitioner may raise questions concerning the effectiveness of counsel in postconviction proceedings. State v. Cole (1982), 2 Ohio St.3d 112, syllabus; State v. Ledger (1984), 17 Ohio App.3d 94; State v. Lembrecht (1989), 58 Ohio App.3d 86. The substance of petitioner's claims arise from various statements made by this court in his direct appeal or by the United States Court of Appeals, Sixth Circuit in petitioner's federal court habeas corpus petition. For the reasons that follow, we find these statements, standing alone, do not present a prima facie showing of ineffective assistance of trial counsel; therefore, absent evidence to support his claim, petitioner fails to carry his burden of demonstrating either deficient performance or substantial prejudice and the trial court did not err by refusing to grant postconviction relief. I Petitioner's first argument relates to trial counsel's failure to make a written request for discovery. He claims this failure caused the defense to be "blindsided" when a police detective testified petitioner admitted the packet found on him contained heroin. - 4 - This argument formed the substance of petitioner's second assignment of error on direct appeal. We denied that assignment, finding absent a motion for discovery, the state had no obligation to provide discovery under Crim.R. 16. State v. Wilcox, supra, unreported at 10-11. Although our previous opinion spoke in terms of counsel's failure to file a motion for discovery, we find trial counsel did not violate an essential duty to his client because the record clearly shows trial counsel did file an informal request for discovery. Just prior to the hearing on petitioner's motion to suppress evidence, trial counsel told the court, "*** we filed discovery requests on July 26th. We have not been furnished the written response to discovery that we filed in that." This statement to the court corresponds with the state's later demand for discovery in which it stated its request came "in response to the defendant's written demand for discovery ***." (emphasis added). We note Crim.R. 16(A) requires a defendant to file a written request for discovery. A motion demanding discovery should be filed in the event the state fails to produce the requested material. Only after a defendant files a motion for discovery is the state permitted to seek discovery from a defendant. See Crim.R. 16(C)(1)(a). The claim that the defense filed an informal written request for discovery would certainly form the basis for the state's own demand for discovery, so we know trial counsel did - 5 - make a request for discovery. In fact, the court continued a pretrial at petitioner's request so that petitioner could complete discovery. Moreover, the record clearly indicates trial counsel knew petitioner made an oral statement to the police as early as the suppression hearing. When trial counsel objected to the detective's testimony that petitioner said, "I got a record. Don't arrest me for the gun," on grounds that the state did not provide the statement, the court noted the detective spoke to trial counsel on the morning of the hearing. Further, the assistant prosecuting attorney indicated he told trial counsel petitioner made an oral statement after his arrest. Trial counsel did not deny knowledge of the oral statement, but claimed there was a discrepancy because one "report" indicated there may have been a statement while another report apparently did not indicate whether petitioner made a statement. When trial counsel asked to see the detective's report, the court informed counsel he could see it at trial. Hence trial counsel knew defendant made some statements to the police. Moreover, petitioner's claim that the detective's testimony relating to petitioner's admission to owning the heroin "blindsided" the defense mischaracterizes the element of surprise shown on this record. Trial counsel did not object to the statement until the state rested its case, and did so chiefly on grounds that the detective failed to give that same statement during the suppression hearing. Additionally, trial counsel cross- - 6 - examined the detective on his failure to mention the heroin statement during the suppression hearing and managed to have the detective admit he did not make the statement during his prior sworn testimony. Under the circumstances, we fail to see how the state's failure to provide the defense with the statement concerning the heroin prejudiced the defense. When a petitioner asserts ineffective assistance of counsel in a postconviction petition, he bears the initial burden to submit evidentiary materials containing sufficient operative facts to demonstrate counsel's incompetency and prejudice to the defense. State v. Jackson (1980), 64 Ohio St.2d 107, syllabus. Petitioner failed to carry this burden by doing nothing more than relying on various parts of prior legal decisions associated with this case. He gives no indication how the defense would have altered its strategy had it known the substance of the statement, nor does he submit the affidavit of trial counsel detailing how the statement ruined the defense strategy. Standing alone, our previous opinion does not contain sufficient operative facts to demonstrate prejudice to the defense and permit the trial court to grant postconviction relief. II Petitioner's second argument relating to the effectiveness of trial counsel is trial counsel failed to execute properly subpoenas for two witnesses who would have testified petitioner did not own - 7 - the gun arresting officers saw him throw away. He claims these witnesses would have testified they owned the gun the police recovered after seeing petitioner throw it away as they chased him. Citing to our previous opinion which stated, "*** the court did not abuse its discretion in refusing to issue writs of attachment where the defense failed to obtain personal service on their subpoenas," Id., at 12-13, he now argues trial counsel's failure to secure the presence of these two witnesses prejudiced the defense. The trial court correctly refused to grant postconviction relief on this claim because petitioner failed to present any evidence to substantiate petitioner's claim of prejudice. Jackson, supra. More to the point, we only have petitioner's self-serving characterization of what the witnesses would have testified to at trial -- not concrete evidence in the record. Petitioner cites to a portion of the trial transcript where he claims counsel told the court a witness named Mae Copeland would testify she owned the gun and threw it out the window when she heard the police approach. He claims Copeland's husband, Richard, would have verified Mae Copeland's testimony. Contrary to petitioner's claim, it appears counsel sought this testimony from one Gloria Moore, not Mae Copeland. Counsel told the court he had a witness "who said it was her gun, and she threw the gun on the porch." When asked if that witness was either of the Copelands, counsel replied, "*** it was not either of the - 8 - Copelands," but a woman whose name he could not immediately recall. Counsel did know he requested service on the woman. A return from the Sheriff's office shows the defense subpoenaed three persons: the Copelands and Gloria Moore. The return receipt shows the Sheriff could not complete service on Moore because she could not be found in the county, the notation "moved" appearing as an explanation. Counsel did not fail an essential duty to petitioner because he did, in fact, attempt to subpoena Moore. Our previous opinion simply noted the trial court could not compel Moore's attendance with a writ of attachment when the sheriff had not perfected service of the subpoena. See Wilcox, supra, unreported at 12-13. Hence, our previous statements were not intended to imply the failure to serve Moore rested with trial counsel, only that the court could not compel the attendance of a witness who had no notice to appear at trial. III Petitioner's final argument relates to trial counsel's failure to secure a copy of petitioner's previously vacated conviction in CR-208993. See State v. Wilcox (Mar. 14, 1988), Cuyahoga App. No. 53460, unreported (reversed and vacated for chain of custody violation in handling of cocaine). At trial, the court submitted this conviction to the jury as a prior conviction to enhance the degree of the weapons charge after finding trial counsel did not produce a certified copy of this court's decision vacating the - 9 - prior conviction. On direct appeal, we found trial counsel placed "no clear and hard evidence" of the prior conviction before the trial court. Id. at 11. Our review of the record convinces us trial counsel did not violate an essential duty to petitioner by failing to locate a certified copy of this court's journal entry in CR-208993. The transcript shows counsel's failure to produce the journal entry vacating the conviction arose because the state listed the wrong case number (CR-208995) on the indictment. Hence, we cannot say counsel failed to locate the journal entry through any fault of his own. In any event, we previously stated, "*** after reviewing the remaining evidence, we do not believe that the decision of the jury with respect to Count One would have been different but for the erroneous prior conviction record in evidence. In short, the error herein was harmless." State v. Wilcox (June 11, 1992), Cuyahoga App. Nos. 60851 and 60886, unreported at 12. In conclusion, we find petitioner failed to carry his burden to show either that counsel failed to fulfill an essential duty to his client or that any failure prejudiced the defense. According- ly, the trial court did not err by refusing to grant postconviction relief. The assigned error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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. O'DONNELL, J. BLACKMON, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .