COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70500 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION JOHN SWORTCHECK, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 27, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. CR-249740 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: George J. Sadd Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 -2- NAHRA, J.: This is an appeal of the court's denial of appellant's motion for postconviction relief. On February 19, 1991, appellant was convicted of two counts of rape and one count of kidnapping following a jury trial. This court affirmed appellant's conviction in State v. Swortcheck (February 25, 1993), Cuyahoga App. No. 61804, unreported, jurisdictional motion overruled 67 Ohio St.3d 1451. On September 16, 1994, the trial court denied appellant's petition for postconviction relief without holding a hearing. Appellant's petition contained affidavits of potential witnesses that presented facts sufficient to establish appellant's claim of ineffective assistance of counsel. This court reversed the decision of the trial court in State v. Swortcheck (1995), 101 Ohio App.3d 770, 656 N.E.2d 732, and remanded the case instructing the court to hold a hearing on appellant's petition for postconviction relief. On October 12, 1995, the trial court held a hearing on appellant's motion for postconviction relief. Appellant argued that he received ineffective assistance of trial counsel because he had informed his counsel of witnesses that would testify that the victim fabricated her allegations of rape. On his behalf, appellant called three witnesses, Phyllis McDonald, Michelle Ettinger, and himself. In addition to these witnesses, the court called appellant's trial counsel, Michael Molnar. -3- On March 14, 1996, the trial court entered its opinion and order denying appellant postconviction relief. It found that: Having heard the live testimony of the witnesses, Phyllis McDonald and Michelle Ettinger, as well as the defendant himself and his former attorney, Michael J. Molnar, this court is convinced that the victim Ollie at no time expressed a pretrial confession of fabrication to McDonald or to Ettinger; further, at no time did the defendant Swortcheck inform his attorney Molnar of any such fabrication. This court finds the separate affidavits of McDonald and Ettinger misleading and at odds with their live testimony. Also, the testimony of the defendant himself on this topic is unworthy of belief. This court does accept part of the testimony of these witnesses as truthful, including part of the testimony of the defendant himself, but not any part critical to the central issues here presented. The testimony of attorney Molnar was credible and consistent with his affidavit. *** Plainly, the statements of Ollie did not include admissions of fabricating rape/kidnapping charges. (Emphasis sic.) I. Defendant has designated four assignments of error for this court to review. The first three assignments read: 1. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO GRANT A NEW TRIAL BY REASON OF INEFFECTIVE ASSISTANCE OF COUNSEL. (TR. 121, 137, 141.) 2. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS NOT GRANTED A NEW TRIAL BY REASON OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THERE WAS NO INVESTIGATION. (TR. 113, 115, 136.) 3. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT USED THE WRONG STANDARD IN DETERMINING WHETHER DEFENDANT HAD BEEN DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. These assignments of error are interrelated and will be discussed concurrently. -4- In State v. Swortcheck (1995), 101 Ohio App.3d 770, 656 N.E.2d 732, this court remanded the case to hold a hearing on the petition for postconviction relief. In doing so, we stated: 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 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. *** While the trial court sub judice may ultimately conclude that Swortcheck's witnesses are not credible, that determination cannot be made without a hearing. 101 Ohio App.3d at 773; 656 N.E.2d at 734. (Emphasis added.) After a hearing, the trial court found that Ettinger and McDonald did not have credible evidence of fabrication of the charges by the victim and that trial counsel had no knowledge of such evidence. By failing to demonstrate the facts claimed in his petition, appellant is not able to demonstrate he received ineffective assistance of counsel. Accordingly, appellant's first assignment of error is overruled. Appellant complains that the court applied the wrong standard in determining that appellant did not receive ineffective assistance of counsel. In its conclusion, the trial court found that it "is unable to conclude that trial counsel committed error. Further, any speculative trial tactical error in all `reasonable -5- probability' would not have altered the outcome. See Strickland v. Washington (1984), 466 U.S. 688." The standard for determining whether counsel has provided ineffective assistance to a criminal defendant under Strickland has been stated by the Ohio Supreme Court as: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623; Strickland v. Washington (1984), 466 U.S. 668, followed.) To show a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136-37, 538 N.E.2d 373, 375. (Syllabus paragraphs 2 and 3.) The trial court noted in its denial of appellant's petition for postconviction relief, "[t]he fact is there is probative, effective, and reliable evidence of a brutal double rape - one perpetrated by a juvenile, and the other perpetrated by this defendant." Appellant has not supplied credible information that would undermine confidence either in the jury's verdict or of this court's affirmation of his conviction. Accordingly, appellant's third assignment of error is overruled. Appellant additionally argues his counsel was ineffective because he failed to conduct an investigation of appellant's case. Appellant cites case law which holds that the complete failure to -6- investigate by counsel constitutes ineffective assistance. See, e.g., Tosh v. Lockhart (C.A.8 1989), 879 F.2d 412; Blackburn v. Foltz (C.A.6 1987), 828 F.2d 1177. However, counsel interviewed appellant, appellant's juvenile accomplice, the investigating police officer, and made two trips to the sites involved in the case. Counsel's investigation did not fall below an objective standard of reasonable representation. See, Bradley, supra. Accordingly, appellant's second assignment of error is overruled. II. Appellant's fourth assignment of error states: 4. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CALLED MICHAEL MOLNAR AS A WITNESS AND OVERRULED HIS OBJECTION TO ATTORNEY-CLIENT PRIVILEGE. (TR. 80, 83, 96-99.) Appellant complains that the court erred by allowing his trial counsel to testify as to the privileged communication between himself and appellant. Evid.R.501 states: The privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience. R.C. 2317.02 provides in part: The following persons shall not testify in certain respects: (A) An attorney, concerning a communication made to him by his client in that relation or his advice to his client, except that the attorney may testify by express consent of the client, or, if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client and except that, if the client voluntarily -7- testifies or is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the attorney may be compelled to testify on the same subject; (Emphasis added.) Appellant testified as to his communications with his trial counsel. The court called appellant's counsel to testify as to those communications. Therefore, appellant's trial counsel was free to testify. Appellant's fourth assignment of error is without merit. Judgment affirmed. -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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .