COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73641 STATE OF OHIO : : Plaintiff-appellee : : : -vs- : JOURNAL ENTRY : AND : OPINION CLARENCE ROBERTS : : Defendant-appellant : DATE OF ANNOUNCEMENT : DECEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CR-180830 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Christopher L. Frey, Esq. Assistant Prosecutor 1200 Ontario Street 8th Floor Justice Center Cleveland, Ohio 44113 For defendant-appellant: Clarence Roberts, Pro Se Inmate No. 177-001 Trumbell Correctional Institute P.O. box 901 Leavittsburg, Ohio 44430-0901 MICHAEL J. CORRIGAN, J.: Clarence Roberts, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal -2- Division, Case No. CR-180830, in which the trial court denied defendant-appellant's petition for post-conviction relief without conducting an evidentiary hearing. Defendant-appellant assigns a single error for this court's review. Defendant-appellant's appeal is not well taken. On March 3, 1983, defendant-appellant was indicted by the Cuyahoga County Grand Jury. Defendant-appellant was charged with four counts of aggravated murder, one count of aggravated arson, one count of aggravated burglary and two counts of attempted murder. These charges arose out of a fire in defendant-appellant's residence during the early morning hours of February 26, 1983 in which defendant-appellant's wife and three children perished. A jury trial commenced on November 28, 1983. During trial, evidence was presented to demonstrate that on the date in question, defendant-appellant had been arguing with his wife. The Cleveland Police were called and defendant-appellant was removed from the residence and taken to his mother's home. Defendant-appellant returned later that night and the argument escalated. A neighbor testified that she had overheard defendant-appellant threaten to kill his wife. Soon after, a fire erupted ultimately causing the death of defendant-appellant's wife and three children. It was determined that the fire was caused by the use of gasoline. All accidental causes were ruled out. Defendant-appellant allegedly made statements to the police that he and his wife had poured gasoline on each other which accidentally ignited when his wife lit a cigarette while in the bathroom. -3- At the close of the state's case, the trial court granted defendant-appellant's motion for acquittal as to the charge of aggravated burglary and the two counts of aggravated murder. The three aggravated murder counts involving the death of defendant- appellant's three children were reduced to involuntary manslaughter. On December 6, 1983, the jury returned verdicts of guilty to the count of aggravated arson and the three counts of involuntary manslaughter.Defendant-appellant was acquitted of the aggravated murder of his wife. This court affirmed defendant-appellant's convictions on direct appeal. See Statev. Roberts (Jan. 10, 1985), Cuyahoga App. No. 48043, unreported. The Ohio Supreme Court declined to accept jurisdiction over defendant-appellant's further attempt to appeal from his convictions. On September 4, 1996, defendant-appellant filed the underlying petition for post-conviction relief. In the petition, defendant- appellant maintained that trial counsel had been ineffective in that counsel had failed to call defendant-appellant's emergency room physician and the attending nurse at Huron Road Hospital as witnesses for trial to bolster defendant-appellant's contention that his deceased wife had been responsible for the fire. Defendant-appellant maintained further that defense counsel failed to call several of his own family members and relatives as witnesses who would have testified that his wife was an abusive alcoholic who had threatened to kill defendant-appellant in the past. Defendant-appellant also claimed that his sentence should be -4- modified pursuant to Senate Bill 2. The state responded to defendant-appellant's petition with a motion to dismiss. On November 12, 1997, the trial court issued findings of fact and conclusions of law dismissing defendant-appellant's petition for post-conviction relief. The trial court determined that defendant- appellant failed to demonstrate that trial counsel was deficient or that the proposed testimony from the omitted witnesses would have altered the outcome of the trial in any manner. On December 5, 1997, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. Defendant-appellant's sole assignment of error on appeal states: THE APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DISPOSED OF THE PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING, INEFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant argues, through his sole assignment of error, that the trial court erred in dismissing his petition for post-conviction relief without first conducting an evidentiary hearing. Specifically, defendant-appellant maintains that his trial counsel was ineffective in that counsel failed to call as witnesses the treating physician from the emergency room, the attending nurse from the emergency room and certain family members and relatives. It is defendant-appellant's position that the emergency room personnel would have testified regarding certain exculpatory statements defendant-appellant made while being treated for burns sustained in the fire. The family members would have supposedly testified that defendant-appellant's wife was an -5- unstable alcoholic who had threatened defendant-appellant with violence in the past.1 R.C. 2953.21(A), which sets forth the procedures for filing petitions for post-conviction relief, provides in pertinent part: (A) Any person convicted of a criminal offense *** claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds for relief upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief. R.C. 2953.21(C) provides: (C) Before granting a hearing the court shall determine whether there are substantive grounds for relief ***. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of court, and the court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. The post-conviction relief process permits criminal defendants who allege that their conviction is void or voidable on state or federal constitutional grounds to petition the trial court for an evidentiary hearing pursuant to R.C. 2953.21(A). State v. Isham (Aug. 23, 1995), Montgomery App. No. 92-CR-2729/2, unreported. The 1Defendant-appellant did not raise the applicability of Senate Bill 2 to his sentence on appeal. However, that issue has previously been decided by the Supreme Court in State, ex rel. Lemmon v. Ohio Adult Parole Authority (1997), 78 Ohio St.3d 186. -6- petitioner bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his claim and merit a hearing. State v. Hamilton (Dec. 29, 1993), Clark App. No. 3015, unreported, citing State v. Kopper (1983), 5 Ohio St.3d 36. A petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner failed to submit evidentiary documents containing sufficient operative facts. State v. Scott (1989), 63 Ohio App.3d 304; State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus. Broad conclusory allegations are insufficient to entitle the petitioner to an evidentiary hearing. State v. Pankey (1981), 68 Ohio St.2d 58, 59, 428 N.E.2d 413. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. -7- The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. 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 separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. 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. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show 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. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. Accordingly, to show that 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, supra, at 141, 142. In the case sub judice, a review of the record from the trial court demonstrates that the trial court did not err in dismissing defendant-appellant's petition for post-conviction relief without -8- first conducting an evidentiary hearing. Defendant-appellant maintains that trial counsel was ineffective in that counsel failed to call the emergency room personnel from Huron Road Hospital and his relatives to testify on his behalf during his case in chief. However, defendant-appellant has failed to demonstrate that, had the omitted witnesses been called to testify, the outcome of his trial would have been different or that he was prejudiced in any way by defense counsel's performance. The emergency room doctor and the attending nurse had no first hand knowledge pertaining to the incident in question. They merely treated defendant-appellant, along with other emergency room personnel, for the injuries he sustained in the fire. There is nothing in the hospital records attached to the petition for post- conviction relief to support defendant-appellant's contention that, had they been called to testify, their testimony would have supported defendant-appellant's version of events leading up to the fire. Accordingly, this court cannot now say that trial counsel`s performance was deficient for failing to call the two emergency room personnel. State v. Lawson (1995), 103 Ohio App.3d 307. This is particularly true in light of the fact that defense counsel did call another treating physician from the emergency room who could not recall any statements made by defendant-appellant during treatment for his injuries that were exculpatory in any manner. Similarly, a review of the affidavits of defendant-appellant's brother, sister and first cousin attached to the petition for post- conviction relief do not satisfy the criteria for conducting a -9- hearing on defendant-appellant's post-conviction relief motion. It is apparent from the content of the affidavits that the trial court could have reasonably determined that each lacked credibility due to the fact that the statements contained therein were not based upon first hand knowledge of the events leading up to the fire but rather, were statements disparaging one of the victims made by close relatives of defendant-appellant. See State v. Moore (1994), 99 Ohio App.3d 748, 754, 651 N.E.2d 1319. In addition, even if one were to assume the truth of the allegations contained in the respective affidavits, defendant-appellant has failed to demonstrate that there would have been a reasonable probability that the outcome of the proceedings would have been different. See Strickland, 466 U.S. 694. This is particularly true in light of the fact that defendant-appellant was acquitted of the charge of aggravated murder of his wife and a number of additional charges were dismissed at the close of the state's case thereby demonstrating the competence of defense counsel. Under the totality of the circumstances, this court cannot now say that defendant-appellant was deprived effective assistance of trial counsel. State v. Sullivan (Oct. 15, 1998), Cuyahoga App. Nos. 72878, 72879, unreported. Accordingly, the trial court did not err in dismissing defendant-appellant's petition for post-conviction relief without first conducting an evidentiary hearing. See Sullivan, supra. Defendant-appellant's sole assignment of error is not well taken. -10- Judgment of the trial court is affirmed. -11- It is ordered that appellee recover of appellant 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 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. JAMES M. PORTER, P.J., AND DIANE KAKRPINSKI, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .