COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74948 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DONNIE L. SMELCER : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 17, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-257,585 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor DIANE SMILANICK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DONNIE L. SMELCER, pro se #233-941 Post Office Box 788 Mansfield, Ohio 44901-0788 PER CURIAM: This cause came on to be heard upon the accelerated calendar -2- pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuya- hoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Appellant challenges the trial court's dismissal of his petition for postconviction relief, asserting two assignments of error: I. THE TRIAL COURT ERRED BY DISMISSING, WITHOUT AN EVIDENTIARY HEARING, APPEL- LANT'S POST CONVICTION PETITION BY WAY OF RES JUDICATA WHERE THE ISSUE OF COMPETENT COUNSEL HAD NOT BEEN PREVIOUSLY ADJUDI- CATED AMD REQUIRED REVIEW OF EVIDENCE DEHORS THE RECORD. (SEE, FINDINGS OF FACT AND CONCLUSIONS OF LAW, PG. 2) II. THE TRIAL COURT ERRED BY DISMISSING, WITHOUT AN EVIDENTIARY HEARING, APPEL- LANT'S POST CONVICTION PETITION WHERE CREDIBLE EVIDENCE EXISTED DEHORS THE RECORD IN SUPPORT OF A HEARING MANDATED BY STATUTE. (SEE FINDINGS OF FACT AND CONCLUSIONS OF LAW, PGS. 2-3.) For the reasons that follow, the court rejects both assign- ments of error and affirms the dismissal of the petition. Appellant was indicted for three counts of rape on Septem- ber 17, 1990. Each of these counts carried a potential sentence of life imprisonment. The record discloses that appellant was offered a plea agreement whereby he would plead guilty to three counts of sexual battery, a third degree felony punishable by a definite term of imprisonment of up to two years per count. Thus, if all the sentences on all three counts were to run consecutively, the maximum sentence under the offered plea would be six years. Appellant rejected this offer and proceeded to a jury trial. After trial, appellant was convicted of all three counts of -3- rape. On May 31, 1991, he was sentenced to a term of life impri- sonment on count one and ten to twenty-five years imprisonment on each of counts two and three, the sentences on counts two and three to run concurrent with one another and consecutive to count one. On direct appeal from his conviction, appellant's new appel- late counsel raised the following ten assignments of error, each of which was rejected by this court in a decision journalized on June 21, 1993: I. Defendant was denied a fair trial when the court allowed other witnesses to testify as to the credibility and verac- ity of the prosecuting witness, Donnie Smelcer, Jr. II. The defendant was denied a fair trial when the court permitted evidence of alleged abuse with reference to Kissa Smelcer, daughter of defendant, for which the defendant had not been charged. III. Defendant was denied his right to present a defense when the court would not allow evidence to show the sexual sophistica- tion of Donnie Smelcer, Jr. IV. Defendant was denied due process of law when the court constructively amended the statute by modifying the definition of force. V. Defendant was denied his constitutional right of allocution (sic) at the time of sentencing. VI. Defendant was denied due process of law when the court proceeded to construc- tively amend counts two and three of the indictment. VII. Defendant was denied due process of law when he was convicted under an indictment which failed to change an offense and the -4- court did not properly instruct the jury as to the elements of the crime. *** VIII. Defendant was denied due process of law when the court overruled a motion for judgment of acquittal as to Count One of the indictment. IX. Defendant was denied a fair trial when the court allowed evidence of other sex- ual activity of the defendant in viola- tion of the statutory prohibition. X. Defendant was denied due process of law and subjected to a cruel and unusual punishment when he was convicted of the offense of rape rather than sexual bat- tery as demonstrated by the record in this case. Appellant's motion for leave to appeal to the Supreme Court of Ohio was overruled on December 6, 1993. Appellant filed his petition for postconviction relief on September 23, 1996, asserting the following single claim: DEFENDANT-PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN THAT COUNSEL FAILED TO CONSULT OR INFORM DEFENDANT-PETITIONER THAT COUNSEL'S ACTS OR OMISSIONS DURING PRETRIAL PROCEEDINGS AND THE GUILT PHASE OF TRIAL DENIED DEFENDANT-PETITIONER DUE PROCESS OF LAW, CONFRONTATION WITH THE WITNESSES AGAINST HIM, COMPULSORY PROCESS OF OBTAINING WITNESSES IN HIS FAVOR, RIGHT TO SPEEDY TRIAL, AND EQUAL PROTECTION OF THE LAWS, IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION. In findings of fact and conclusions of law issued June 24, 1998, the trial court determined that appellant's claim of inef- fective assistance of counsel could have been addressed on direct appeal without resort to evidence dehors the record, so the issue was barred by res judicata. The court further found appellant had -5- offered no credible evidence outside the record that would indicate that his attorney may have been ineffective or that appellant was prejudiced. Therefore, the court dismissed the petition. Appellant first asserts that res judicata did not bar his petition for post-conviction relief because his claim of ineffec- tive assistance of counsel could not have been determined on direct appeal without resort to evidence outside the record. This court agrees (and, indeed, the trial court agreed) that at least some issues raised in the petition could not have been determined on direct appeal. Nevertheless, some issues could have been raised on direct appeal, and these matters are barred by res judicata. Evidence outside the record was not necessary to prove appellant's contention that his counsel was ineffective because he (a) did not timely move to exclude evidence of appellant's past sexual history, (b) failed to request funds to retain an expert witness, (c) failed to pursue discovery,1 (d) admitted certain documents into evidence without the proper signatures to verify the validity of the documents, and (e) moved in limine to exclude the testimony of Kissa Smelcer rather than file a motion to suppress her testimony. All of these issues could have been raised and determined on direct appeal and are now barred by res judicata. The first assignment of error is therefore overruled. 1The state asserts it provided discovery to appellant's counsel in accordance with his discovery request. For the purpose of determining whether an evidentiary hearing was required on appellant's petition, however, the court will accept as accurate appellant's assertion that counsel did not pursue the discovery request. -6- In his second assignment of error, appellant argues he submitted evidentiary materials sufficient to demonstrate counsel's ineffectiveness and resulting prejudice so the court was required to hold an evidentiary hearing on his petition. In determining whether a petition for postconviction relief states substantive grounds for relief which would warrant a hearing, the affidavits offered in support of the petition generally should be accepted as true provided they do not contain indicia of unreliability and are not patently incredible. State v. Swortcheck (1995), 101 Ohio App.3d 770, 772; State v. Caldwell (Sep. 10, 1998), Cuyahoga App. No. 73748, unreported. The petitioner 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 ***. State v. Cole (1982), 2 Ohio St.3d 112, 114. Trial counsel is strongly presumed to have rendered adequate assistance. State v. Oliver (1995), 101 Ohio App.3d 587, 594. Appellant alleges that his attorney admitted he was not pre- pared for trial, but the record does not disclose such an admis- sion; counsel said that he was not prepared to conduct a minia- ture trial regarding other acts testimony. This assertion does not amount to an admission that counsel was not prepared for trial. Appellant asserts his attorney denied him effective assistance when he moved to continue the trial date. Appellant also complains that his attorney lied to the court in the motion for continuance. -7- Appellant does not explain how he was prejudiced by the continuance or by any false statements made by his attorney in the motion. Appellant complains that his attorney was unaware that appellant's estranged wife would testify at trial and failed to prepare for her testimony. The trial testimony cited by appellant belies this assertion. Counsel appears to have cross-examined this witness on the very issues appellant now raises. Appellant does not show how he was prejudiced by counsel's failure to introduce the specific documentary evidence appellant apparently wishes he had introduced. Moreover, the court will not second-guess what could be considered a matter of trial strategy. Oliver, 101 Ohio App.3d at 594. Appellant contends his attorney did not investigate potential witnesses and did not properly interview actual witnesses. Appellant claims he told his attorney of defense information the attorney could have obtained from these witnesses and asserts this information bears upon the credibility of prosecution and defense witnesses at trial. The record does not disclose what appellant told his attorney about the potential witnesses' testimony; how- ever, given counsel's knowledge of the substance of the alleged testimony, counsel may reasonably have determined that the testi- mony would not have assisted the defense. Appellant has failed to present sufficient evidence that his attorney provided ineffective assistance by failing to interview potential witnesses. Appellant urges that his attorney did not begin to investigate until three months after appellant's arrest and made minimal -8- contacts with witnesses and with the appellant. He complains that his attorney met with him only twice before trial, for approxi- mately fifteen minutes each time, and repeatedly urged him to accept a plea bargain. There is nothing objectively unreasonable about these actions nor has appellant shown he was prejudiced by them. Indeed, the advantages of the plea bargain counsel obtained for appellant speaks volumes for the effectiveness of counsel's pretrial preparation. It was appellant who chose to gamble on a jury verdict. Finally, appellant argued his counsel did not discuss trial strategy with him before or during trial. Counsel is required to consult with his client on important trial decisions. State v. Smith (1985), 17 Ohio St.3d 98, 101, n.1. However, the general allegation that counsel did not discuss strategy with the appellant is insufficient to require a hearing. The court finds no error in the trial court's determination that there were no substantive grounds for postconviction relief. Accordingly, this court affirms the trial court's dismissal of the petition. Judgment affirmed. This cause is affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. -9- 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. __________________________________ JOHN T. PATTON, PRESIDING JUDGE __________________________________ KENNETH A. ROCCO, JUDGE __________________________________ JAMES D. SWEENEY, 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 .