COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72031 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) -VS- ) AND ) JEFFREY TALANI ) OPINION ) Defendant-Appellant ) Date of Announcement of Decision NOVEMBER 26, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Case No. CR-313066 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JEFFREY TALANI, PRO SE Cuyahoga County Prosecutor Inmate No. 205-158 DIANE SMILANICK, Assistant Grafton Corr. Institute Prosecuting Attorney 2500 South Avon-Belden Rd. 1200 Ontario Street Grafton, Ohio 44044-9412 Cleveland, Ohio 44113 2 JAMES M. PORTER, J.: Defendant-appellant Jeffrey Talani, pro se, appeals from the trial court's denial of his petition to vacate or set aside his sentence for sex crimes pursuant to R.C. 2953.21, the post- conviction relief statute. Defendant contends the trial court erred in holding the petition barred by res judicata and in failing to hold an evidentiary hearing on his claim of ineffective assistance of counsel. We find no error and affirm. Following a jury trial, on February 15, 1995, the defendant, a former Brooklyn Heights Chief of Police, was found guilty of rape (R.C. 2907.02) and gross sexual imposition (R.C. 2907.05) of a nine year old female. The offenses were found to have occurred on February 18, 1983 when the victim was sleeping over at defendant's house. It was not until 1994 that the victim, Danielle Triscari, accused the defendant of the offenses in a session with a counselor after being diagnosed with colitis. Danielle refused to disclose the rape prior to 1994 because the defendant told her that if she told anyone about the incident he would kill her family. Defendant was sentenced to life imprisonment for the rape and a term of two years for the gross sexual imposition, consecutive to each, and to sentences for other sexual crimes for which he was imprisoned at the time of trial. Defendant's conviction was affirmed by this Court. State v. Talani (Jan. 11, 1996), Cuyahoga App. No. 68750, unreported. On July 3, 1996, the Ohio Supreme Court denied defendant's leave to appeal as not involving any substantial constitutional question. 3 Defendant's Supreme Court motion for reconsideration was denied on July 31, 1996. Defendant filed his petition for post-conviction relief below on September 20, 1996. The State opposed the petition and moved to dismiss. The same judge who presided at the trial denied said petition without a hearing and issued findings of fact and conclusions of law on or about January 14, 1996 from which defendant filed this timely appeal. We will address Assignment of Error II first because we find it dispositive of the appeal. II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CONDUCT AN EVIDENTIARY HEARING, AFTER A SUBSTANTIAL SHOWING OF TRIAL COUNSEL'S INEFFECTIVENESS, AND THE FACT THAT OTHER FAVORABLE EVIDENCE WAS IN THE POSSESSION OF THE STATE OF OHIO, YET NEVER DISCLOSED. As the post-conviction statute (R.C. 2953.21(C)) makes clear, courts are not required to hold a hearing on all post-conviction cases. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450, 451. This Court recently stated the tests to be applied in determining the necessity for a post-conviction hearing in State v. Pariseau(Dec. 15, 1994), Cuyahoga App. No. 67496, unreported at 4- 5: A petition for post-conviction relief may be dismissed without a hearing when the petitioner fails to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. The test to be applied is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case. State v. 4 Strutton (1988), 62 Ohio App.3d 248, 251. A petitioner satisfies his initial burden by submitting evidence outside the record sufficient to avoid dismissal. See State v. Williams (1991), 74 Ohio App.3d 686, 692. Defendant attached to his petition what he described as proof that would make his convictions void or voidable and argues that these exhibits were exculpatory and should have been used at trial to contradict incriminating testimony from the State's witnesses. Defendant argues that his trial counsel was ineffective for not using the specifically listed evidence. This Court recently described the standard of review to make a showing of ineffective assistance of counsel in Lakewood v. Town (1995), 106 Ohio App.3d 521, 525-26: The standard of review for ineffective assistance of counsel requires a two-part test and is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. [T]he defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must also prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Furthermore, when determining whether counsel's performance was deficient a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 5 `might be considered sound trial strategy.' Strickland v. Washington (1984), 466 U.S. 668, 689. A defendant's failure to satisfy either of the two Strickland tests is sufficient to dismiss the claim of ineffective assistance of counsel. As the Supreme Court noted in State v. Bradley (1989), 42 Ohio St.3d 136, 143: *** there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. *** [citing Strickland, supra at 697]. We find from a review of the record and the transcript that the conduct of defense counsel did not fall outside the range of effective representation to which defendant was entitled; that the failure to use the exculpatory statements represented sound trial strategy; and defendant was not prejudiced because defendant had the benefit of those statements through defense counsel's cross- examination of the State's witnesses. The first item of evidence that defendant argues should have been presented as evidence by his counsel was a handwritten letter from Danielle Triscari, the victim, written when she was age 14, to Judge Stephanie Tubbs Jones. She asked Judge Jones to grant shock 6 probation to Talani following his earlier convictions for sexual crimes against other neighborhood children. This letter was written in 1988, before Danielle disclosed that defendant had raped her. The second item of evidence was a written statement made by Linda and Vincent Triscari, the parents of the victim, in 1988. The parents' statement was that they let their children sleep over at Talani's house and Jeff has always looked out for all of the children in the neighborhood. This statement was also given before they knew he raped their daughter. The third item of evidence consisted of a written summary report made by investigator Joan Layman who interviewed the Triscaris on October 17, 1987. This report was again made before defendant was indicted for the present crime and before the Triscaris knew that he raped their daughter. The interview was apparently conducted after the sexual molestation charges against Talani were made by Cindy Silver, another neighborhood child. The report reflected the Triscaris' belief, at that time, that Talani was very good to all the neighborhood children, had never molested their daughter and they could not believe him capable of such conduct. The fourth item was a written statement by the victim that a neighborhood boy, after viewing a bikini-clad poster in her brother's room, said he wanted to touch her sexually. According to this statement, the episode happened on February 19, 1988. 7 Defendant's counsel was not ineffective for not introducing such evidence at his trial. Prior to trial, defense counsel got a favorable in limine ruling that excluded prior criminal acts or convictions of defendant. However, the court did allow Annette Algie to testify to defendant's specific sexual misconduct with her. (Tr. at 15-16). The challenged statements, if used by the defense at trial, would have opened the door widely to the prosecution bringing out the fact that defendant was not only accused but also convicted of sexually molesting other neighborhood girls, Annette Algie and Cindy Silver, for which he was already serving time. This was why Danielle Triscari was asking Judge Jones to give Talani shock probation. Such statements, the requisite foundation for them and the prosecution's subsequent inquiry, would have seriously undercut the benefit of the in limine rulings. The use of such statements would have been materially prejudicial to defendant's case and defense counsel cannot be faulted for not using them in the exercise of strategic judgment. Procedurally, it is questionable that these hearsay statements would have been admissible. Evidence Rule 613(B) states: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. There is nothing inconsistent about the challenged statements when placed in context. 8 While Ohio has adopted a liberal view as to what constitutes inconsistency, no bright line delineates the degree of contradiction which suffices to justify admission of impeachment testimony. See, e.g., State v. McMillan (1990), 69 Ohio App.3d 36, 46 (admission of extrinsic evidence reversed on grounds of insufficient inconsistency between the prior statement by the witness that he had sexual intercourse with his sister when they were teenagers and his testimony at trial that he never molested or raped anyone). State v. Ward (July 31, 1996), Lorain App. No. 95CA006214, unreported at 6. The statements by the victim's parents in 1988 were made when they were ignorant of the fact that defendant had raped their daughter. After being informed of the rape, their opinions and statements about the defendant changed dramatically as would be expected. In 1988, neither the victim out of fear, nor her parents out of ignorance, were contending that defendant did anything improper. These are changed opinions, not inconsistent statements. In any event, we find no prejudice from the failure to use these documents. Defense counsel, through careful and skillful cross-examination of the State's witnesses, was able to obtain the same exculpatory testimony without exposing the defendant to unreasonable prejudice. E.g., on cross-examination, the victim admitted that in 1987 when Annette Algie was accusing Talani of sexual things, she repeatedly denied to the police, her parents and Joan Layman that Jeff had done anything to her. (Tr. at 409-413). The victim's parents did not testify that defendant did anything sexual to their daughter so their 1988 statement would not have contradicted their testimony or offered anything exculpatory. 9 The Joan Layman report would have confirmed no more than the parents knew nothing in 1988 about defendant molesting their daughter and she repeatedly denied to them that he did anything to her. This added no more than was already in evidence. The reference to the remark by the neighbor boy in 1988 had no relevance to the crimes at issue. Accordingly, we find no prejudice from defense counsel's failure to use these exculpatory statements. Indeed, the risk of prejudice was far greater from their use than their non-use, as previously noted. The issue before this Court on post-conviction relief is whether the trial court abused its discretion in dismissing a petition without a hearing. Absent a showing of abuse of discretion, a reviewing court will not overrule the trial court's findings on a post-conviction petition which is supported by competent and credible evidence. State v. Mitchell (1988), 53 Ohio App.3d 117, 119. An abuse of discretion connotes more than an error of law or judgment; it implies conduct that is arbitrary, unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. Defendant has not shown any abuse of discretion in the trial court's decision. Defendant's Assignment of Error II is overruled. Given our disposition of Assignment of Error II, it is unnecessary to consider Assignment of Error I which is moot. App. R. 12(A)(1)(c). 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 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. BLACKMON, P.J., and NAHRA, J., CONCUR. JAMES M. PORTER 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 .