COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73523 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION LEONARD ROBINSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 29, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. CR-304,142 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor DANIEL M. MARGOLIS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DAVID L. DOUGHTEN Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44103 KENNETH A. ROCCO, J.: -2- Appellant appeals the trial court's denial of his motion for postconviction relief without holding a hearing. Since the record indicates no hearing was required, the trial court properly denied appellant's petition, and appellant's counsel was not ineffective, we affirm. Appellant Leonard Robinson was indicted on one count of felonious assault in violation of R.C. 2903.11, with a firearm specification, one count of aggravated burglary in violation of R.C. 2911.11, with a firearm specification and one count of improperly discharging a firearm into a habitation or school in violation of R.C. 2923.61. The facts giving rise to appellant's indictment are as follows. Appellant and his wife were neighbors of Dwayne Whittaker and his wife. In June 1993, appellant accused Mr. Whittaker of having an affair with his wife and of giving her a venereal disease. Mr. Whittaker denied the accusation. According to Mr. Whittaker's testimony, appellant repeated his accusations in September and October 1993. On November 8, 1993, appellant knocked on the Whittakers' door, and when Mr. Whittaker opened the door, appellant punched him, causing him to fall to the ground. As Mr. Whittaker attempted to stand, appellant hit him several times with the butt of his gun. Mr. Whittaker fell to the ground again, and appellant kicked him repeatedly in the stomach and face. Appellant also pointed the gun at him and threatened to shoot him. -3- While appellant and Mr. Whittaker were struggling, appellant's daughter came to the door. Mr. Whittaker tried to use the oppor- tunity to run to the door, but appellant shot his gun into the floor, told Mr. Whittaker to sit back down, and told his daughter to go home. Appellant eventually left the Whittakers' home. Appellant's version of the events differed slightly. According to appellant, Mr. Whittaker invited him into his home to discuss appellant's accusations. Appellant alleged that Mr. Whittaker pushed him first; appellant then pushed back, and a fight ensued. He claimed that the gun he had tucked into his waistband accidentally fell to the ground and discharged, that he retrieved the gun first and hit Mr. Whittaker with it. Appellant maintains that he left when Mr. Whittaker's daughter came to the door. A jury trial commenced on April 24, 1994. The jury found appellant guilty of felonious assault with a firearm specification and not guilty on the remaining two counts. Appellant was sen- tenced to a term of three to fifteen years with an additional three years for the firearm specification. Appellant appealed his conviction, alleging the trial court's jury instructions were improper and that he received ineffective assistance of counsel. Appellant's conviction was affirmed. State v. Robinson (June 1, 1995) Cuyahoga App. No. 67363, unreported, 1995 WL 329004. Appellant subsequently filed an appeal to the Supreme Court of Ohio. The appeal was dismissed. Appellant filed a Petition to Vacate or Set Aside Sentence pursuant to R.C. 2953.21 on September 20, 1996 in the lower court. -4- The trial court denied the petition without a hearing and issued findings of fact and conclusions of law on October 16, 1997. Appellant appealed the trial court's dismissal of his petition. Appellant's first assignment of error alleges: THE TRIAL COURT ERRED IN SUMMARILY DISMISSING APPELLANT ROBINSON'S R.C. 2953.21 POSTCONVIC- TION PETITION WITHOUT ACCORDING HER (SIC) AN EVIDENTIARY HEARING. It is well settled that: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defen- dant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175. Thus, res judicata is a proper basis upon which to dismiss a petition brought pursuant to R.C. 2953.21 without a hearing. Id. Appellant contends that res judicata is not applicable to the within action because the evidence in support of appellant's position comes from affidavits dehors the record. Appellant sub- mits eight affidavits in support of his contentions, all from either relatives or friends. In pertinent part, the affiants essentially stated that the trial judge, after instructing the court reporter not to transcribe his statements, informed those present in the courtroom that the jury had asked him whether they were all required to agree on the aggravated assault charge and that he had answered their question off the record. -5- The transcript of the proceeding reflects the following: THE COURT: It is my understanding that the jury has reached a verdict; is that correct? MR. BRUCE [THE FOREMAN]: That is correct. THE COURT: If Mr. Bruce, the foreman, would hand the verdict forms to my bailiff. First the record should reflect that we have a short while ago received a note from the jury with a question: Do we have to be unanimous on the aggravated assault charge, and it was signed Robert Bruce, the fore- man. And this Court, with the approval of both parties an- swered it, Yes, and signed and sent it back in; is that correct? MR. BRUCE: That's correct. This exchange indicates that the incident which is the basis for appellant's contention was on the record; there was no need to resort to appellant's alleged evidence dehors the record in order to raise the issue on appeal. Therefore, any error alleged to have resulted from the court's action could have been raised on direct appeal. The trial court correctly concluded that appellant's post- conviction relief petition was barred pursuant to the doctrine of res judicata; thus, the trial court was not required to conduct a hearing on the matter. See Perry, supra. -6- Moreover, before a petitioner is entitled to a hearing in claim for postconviction relief, he first bears the initial burden to submit evidentiary documents containing sufficient operative to hafacts demo (1996), 113 Ohio App.3d 591, 597, citing State v. Jackson (1980), 64 Ohio St.2d 107. No hearing is required where the supporting evidentiary documents do not contain sufficient operative facts which, if true, would establish substantive grounds for relief. Apanovitch, supra, citing State v. Sowell (1991), 73 Ohio App.3d 672. Although appellant submits evidence dehors the record, our review of the statements contained in the eight affidavits indi- cates that they do not contain sufficient operative facts to establish substantive grounds for relief. This court has noted that the affidavits must be accepted as true when determining whether there are substantive grounds for postconviction relief to warrant a hearing. State v. Swortcheck (1995), 101 Ohio App.3d 770, 772.1 However, when the evidence presented is specious, a hearing is not required. Apanovitch, supra; see, also, State v. Caldwell (Sep. 10, 1998), Cuyahoga App. No. 73748, unreported. In the matter sub judice, the affiants are all either friends or relatives of appellant. Moreover, the trial judge commented on the record that he answered the jury's question with the approval 1 Recently, the Ohio Supreme Court at State v. Smith (1998), 81 Ohio St.3d 1430, certified for conflict the following issue: *** whether, when reviewing a post-conviction relief petition, the trial court must accept affidavits presented in support of the petition as true. The case in conflict is Swortcheck. -7- of both parties. This court will presume regularity in the trial court's proceedings. See, e.g., Palmer v. Kaiser Foundation Health (1991), 64 Ohio App.3d 140, 143. Thus, considering appellant's affidavits in view of the trial court's disclosure on the record, appellant failed to demonstrate any substantive grounds for relief. The trial court did not err when it determined that no hearing was required. Appellant's first assignment of error is overruled. Appellant's second assignment of error alleges: THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. Appellant alleges his trial counsel was ineffective for failing to call key witnesses, for failing to object to the trial court's instruction to the jury off the record, and for failing to object to the judge's request to the court reporter that he not transcribe the judge's announcement regarding his communication with the jury. As noted in the discussion of appellant's first assignment of error, the trial court, on the record, acknowledged that it had responded to the jury's question off the record with the approval of both parties. Since appellant was represented by new counsel on his direct appeal, appellant had the opportunity to protest his trial counsel's failure to object on that appeal. State v. Cole (1982), 2 Ohio St.3d 112, 114. Appellant's allegations relating to the judge's instruction to the jury are therefore barred pursuant to the doctrine of res judicata. Appellant also argues, however, that he has evidence outside of the record which demonstrates that his trial counsel was -8- ineffective. Appellant submits the sworn statements of both his daughter and his brother, wherein they state that appellant's trial counsel was ineffective for failing to call them to testify on appellant's behalf. The Ohio Supreme Court devised a two-step process that should be employed when a court considers an allega- tion of ineffective assistance of counsel. State v. Nicholas (1993), 66 Ohio St.3d 431, citing State v. Bradley (1989), 42 Ohio St.3d 136, 141-142: First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically sepa- rate from the question of whether the defen- dant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's inef- fectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910 [98 S.Ct. 3135, 57 L.Ed.2d 1154]. Id.The above standard is essentially the same as the test devised by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that coun- sel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a -9- breakdown in the adversary process that ren- ders the result unreliable. Id. at 687. Where ineffective assistance of counsel is alleged in a petition for postconviction relief, the defendant, in order to secure a hearing on his petition, must proffer evidence which, if believed, would establish not only that his trial counsel had substantially violated at least one of a defense attorney's essential duties to his client but also that said violation was prejudicial to the defendant. State v. Cole (1982), 2 Ohio St.3d 112, 114, citing State v. Jackson, supra; State v. Lytle (1976), 48 Ohio St.2d 391. Even accepting the information contained in appellant's affidavits as true, there is not sufficient evidence to indicate that appellant's trial counsel either violated any essential duty or prejudiced his client. The selection of witnesses is a matter of trial strategy, and an appellate court will not second-guess the attorney's decisions. See, e.g. State v. Thompson (June 11, 1998), Cuyahoga App. No. 72641, unreported, 1998 WL 308110. Furthermore, there is no indication in the record that the ultimate result of the trial would have been different had appellant's counsel called these witnesses. The affidavits submitted by appellant fail to sufficiently state a substantive claim for ineffective assistance of counsel. Appellant's second assignment of error is not well taken. The judgment of the trial court is affirmed. -10- -11- 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 Cuyahoga County 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. JAMES D. SWEENEY, J. and MICHAEL J. CORRIGAN, J. CONCUR PRESIDING JUDGE KENNETH A. ROCCO 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 .