COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72231 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : WILLIE ALLEN : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CR.-290239 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: RANDI MARIE OSTRY, ESQ. JAMES D. INGALLS, ESQ. ASST. COUNTY PROSECUTOR 20th Floor, Standard Building 8th Floor, Justice Center 1370 Ontario Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- DYKE, P.J.: Appellant, Willie Allen, is appealing the trial court's denial of his motion for post conviction relief. For the following reasons, we affirm. Appellant was convicted of sexual battery, rape and kidnaping. The testimony at trial was that the victim, Megan Walsh, went to appellant's home to wash clothes. Appellant and Walsh were the only people in the home when sexual activity took place. Walsh testified that she was raped, while the appellant testified that the sexual activity was consensual. Walsh remained in the home until Janet Perry, Michelle Huge and Joanne (appellant's girlfriend) arrived. Janet Perry and Michelle Huge testified that Walsh did not appear upset. Appellant filed a motion for a new trial. He argued that he did not receive effective assistance of counsel because counsel failed to call Rosie Ahmed as a witness. No affidavits were attached to the motion for a new trial. The court denied the motion for a new trial. Appellant appealed the judgment of conviction in Cuyahoga App. No. 66346. Appellant did not appeal the journal entry denying the motion for a new trial. Appellant's first assignment of error asserted that appellant received ineffective assistance of counsel, because counsel failed to call known favorable witnesses. The favorable witnesses were Rosie Ahmed and Amy McGuire. This court denied appellant's motion to submit the affidavits of these two witnesses and an affidavit of -3- appellant's girlfriend, because these affidavits were not part of the trial court record. Appellant's conviction was affirmed. The petition asserts that appellant's trial counsel was ineffective for failing to call Rosie Ahmed and Amy McGuire as witnesses. The affidavits which the appeals court had stricken from the record were attached to this motion. The trial court denied the motion for postconviction relief, stating that the matter was res judicata. The affidavit of Rosie Ahmed states that the victim falsely testified that Rosie said to the victim after the alleged rape, you seem upset . The victim, Walsh, appeared normal and not upset. Walsh is a very emotional person, especially when hurt. The victim told Ahmed she had been raped twice before, but told others she had been raped three times before. Appellant's trial counsel never contacted Ahmed for an interview. The affidavit of Amy McGuire states that the victim gave conflicting accounts of the rape to mutual friends. Walsh told Ms. McGuire two conflicting stories about a detail of the rape. The victim told McGuire she had been raped twice before, and told others she had been raped three times before. Appellant's attorney never contacted McGuire for an interview. The affidavit of appellant's girlfriend, JoAnn Hugh, states that she asked appellant's counsel why he did not call McGuire and Ahmed to testify. Appellant's counsel replied, in a case like Defendant/Appellant's it is Ms. Walsh's word against the -4- Defendant/Appellant's and even if he brought the Pope on his behalf, it wouldn't matter. Appellant's first assignment of error states: APPELLANT WAS DENIED HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, PURSUANT TO THE SIXTH AND FOURTEENTH AMEND- MENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. If the issue of ineffective assistance of counsel could have fairly been raised on direct appeal without resort to evidence dehors the record, the doctrine of res judicata precludes con- sideration of the issue in a petition for postconviction relief. State v. Cole (1982), 2 Ohio St.3d 112. Even if ineffective assistance of counsel was assigned as error on appeal, the defen- dant may raise the issue in a petition for postconviction relief if the claim of ineffective assistance could only be fairly determined from matters outside the record. See State v. Smith (1985), 17 Ohio St.3d 98. In this case, the claim of ineffective assistance of counsel can only be fairly determined from matters outside the record. The affidavits of McGuire and Ahmed show what their testimony would have been had they been called to testify. On direct appeal, these affidavits were not available, and this court found: In the present case appellant has not properly put forth any evidence that the testimony would be a significant assistance to the defense to prove ineffectiveness of counsel. See State v. Allen (Feb. 2, 1995), Cuyahoga App. No. 66346, unreported, at 4-5. Hugh's affidavit attempts to shed light on trial counsel's strategy. This affidavit was not available on -5- direct appeal. The issue was not res judicata, because the matter could not be fairly determined without evidence dehors the record. See Smith, supra, State v. Gawloski (Aug. 14, 1997), Cuyahoga App. No. 71659, unreported, but see State v. Apger (Dec. 11, 1997), Cuyahoga App. No. 71787, unreported. We now turn to the issue of whether appellant has shown in his petition that he was denied effective assistance of counsel. To demonstrate ineffective assistance of counsel, appellant must show (1) that counsel substantially violated an essential duty, and (2) appellant was prejudiced by counsel's errors. Strickland v. Washington (1984),466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, State v. Bradley (1989), 42 Ohio St.3d 136. Deference is given to the strategic decisions of counsel. Id. Decisions whether to call witnesses concern defense counsel's trial strategy. State v. Montana (Mar. 24, 1994), Cuyahoga App. No. 65024, unreported. The affidavit of Joann Hugh does not establish that counsel failed in an essential duty by not calling Ahmed and McGuire. Appellant's attorney stated to Hugh that the testimony of these witnesses would not have helped appellant's case. Appellant's trial counsel could reasonably have decided that Ahmed and McGuire were not credible, or that they had other damaging testimony to offer. Appellant's petition did not establish that counsel failed in an essential duty, or that counsel was ineffective. Accordingly, this assignment of error is overruled. II. -6- Appellant's second assignment of error states: THE TRIAL COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S POST-CONVICTION PETITION WITHOUT AFFORDING HIM AN EVIDEN- TIARY HEARING. A hearing on a motion for postconviction relief is only required if the petition, supporting affidavits, files and records of the case show that there are substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107, 110. As discussed above, the petition and affidavits do not support a claim of ineffective assistance of counsel. The trial court did not err in failing to hold an evidentiary hearing. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -7- 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. NAHRA, J., AND SPELLACY, J., CONCUR. ANN DYKE 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 .