COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72923 VILLAGE OF MORELAND HILLS, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : ROBERT W. VAUGHAN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JUNE 11, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Bedford Municipal Court : Case No. 97-CRB-00501 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Paul B. Daiker Zukermam & Daiker 2000 East Ninth Street Suite 700 Cleveland, Ohio 44115 For defendant-appellant: Vance P. Truman 1901 Cliffview Road Suite 106 Cleveland, Ohio 44121 -2- NAHRA, P.J.: Appellant, Robert W. Vaughan, appeals his conviction of assault alleging ineffective assistance of counsel. On March 4, 1997, appellant, while at work, got into a heated argument with Michael Diorio, his employee. In the course of this argument, appellant struck his employee causing him to bleed and to require four stitches. Later that day, when questioned by police, appellant admitted to striking Diorio, but claimed that it was in self-defense. The appellant then reported to the police station where he made a formal statement. On March 24th, appellant appeared before the Bedford Municipal Court, was appointed an attorney, and entered a plea of not guilty. That same day a pre-trial was held providing counsel with full and open discovery. On March 27, 1997, a trial commenced which resulted in appellant's conviction. Appellant's sole assignment of error states: I. THE OMISSIONS AND COMMISSIONS OF APPELLANT'S TRIAL COUNSEL VIOLATED APPELLANT'S RIGHTS AS GUARANTEED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The federal and Ohio test for determining if a defendant was denied the effective assistance of counsel are strikingly similar. The federal test is whether counsel's conduct so undermined the proper functioning of the adversarial process that the defense was prejudiced. Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693. In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus, it was determined that in Ohio an ineffective assistance -3- claim requires proof that counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. Id. In order to establish such prejudice, the appellant must demonstrate that there is a reasonable probability that, were it not for counsel's errors, the results of the trial would have been different. State v. Bradley, supra, paragraph three of the syllabus. Furthermore, we operate under the presumption that counsel's assistance was both reasonable and professional. State v. Thompson (1987), 33 Ohio St.3d 1, 10, 514 N.E.2d 407, 416-417; see, also, Strickland, 446 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Here, appellant claims that his attorney committed prejudicial errors and omissions during the pre-trial proceedings. Specifically, appellant claims that his counsel's failure to file a specific motion for discovery requesting that the state reveal any and all evidence in its possession, prejudicially affected appellant because counsel was unable to effectively impeach the state's key witness, the victim. Further, counsel failed to discover and subpoena witnesses who had also seen Diorio act in an aggressive manner, and, in turn, could support appellant's claim of self-defense. In order to overcome a supposition of competency concerning counsel, appellant is required to affirmatively support a claim of ineffectiveness with evidence that this representation was so deficient that the verdict cannot be deemed reliable. Appellant -4- makes assertions concerning credibility and undiscovered testimony which are unsupported by any form of evidence or affidavit. Without this supporting evidence, trial counsel's performance is deemed competent. Accordingly, appellant's sole assignment of error is overruled. Judgment affirmed. -5- 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 Bedford Municipal 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. JOSEPH J. NAHRA PRESIDING JUDGE McMONAGLE, TIMOTHY E., J., and SWEENEY, JAMES D., J., CONCUR. 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 .