[Cite as State v. Alkhatib, 2017-Ohio-164.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                   JUDGES:
STATE OF OHIO                                      Hon. W. Scott Gwin, P. J.
                                                   Hon. John W. Wise, J.
        Plaintiff-Appellee                         Hon. Craig R. Baldwin, J.

-vs-
                                                   Case No. 2016 CA 00104
HEITHAM M. ALKHATIB

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2014 CR 00921


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         January 17, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                MICHAEL T. CALLAHAN
PROECUTING ATTORNEY                            The Delaware Building
RONALD MARK CALDWELL                           137 South Main Street
ASSISTANT PROSECUTOR                           Suite 300
110 Central Plaza South, Suite 510             Akron, Ohio 44308
Canton, Ohio 44702-1413
Stark County, Case No. 2016 CA 00104                                                    2

Wise, J.

       {¶1}   Appellant Heitham Alkhatib appeals from the denial of his post-conviction

petition to vacate his sentence, in the Court of Common Pleas, Stark County, pertaining

to his 2015 conviction for burglary. Appellee is the State of Ohio. The relevant facts

leading to this appeal are as follows.

       {¶2}   On May 30, 2014, A.R. was sleeping inside her apartment in Alliance, Ohio,

after her boyfriend departed for work at about 5:30 A.M. She awoke to find her neighbor,

Appellant Alkhatib, in her bed, fondling her upper thigh and buttock area. A.R. jumped out

of bed and screamed at him, at which time appellant ran out of the bedroom. A.R. chased

appellant out of the apartment, locked the door behind him, and called 911.

       {¶3}   Appellant, who also operated a convenience store and gas station across

the street from the apartment complex, had attempted several unwanted romantic

pursuits of A.R. during the time they were neighbors. At one point, A.R. had observed a

sign in appellant's kitchen window, facing her parking area, which said “whore.” A.R.

notified the landlord of the incident and showed him a picture of the sign. The landlord

told appellant to leave A.R. alone. A.R. subsequently found an unsigned note of apology

in her mailbox.

       {¶4}   On the morning of the incident in A.R.’s apartment, Officer William Johnson

of the Alliance Police Department was in the area and was dispatched to the complex for

a possible sexual assault. As he approached, he observed appellant walking from the

direction of A.R.'s apartment around the corner to his own porch and into his apartment.

When Johnson spoke with A.R. at her apartment, she identified and described appellant

as the intruder despite not knowing appellant's name. The description she provided
Stark County, Case No. 2016 CA 00104                                                        3


matched the man Johnson observed upon his arrival. Johnson then knocked on

appellant's apartment door. Appellant came to the door in blue pajama pants and no

shoes.

         {¶5}   Johnson thereupon arrested appellant and read him his Miranda rights,

After Johnson placed appellant in the back of his police cruiser, A.R. identified appellant

as the intruder. Appellant was then transported to the Alliance Police Department.

Johnson and another officer detected the odor of an alcoholic beverage on appellant's

person. Appellant said he had consumed three or four beers, but he was coherent and

able to walk. Appellant asked if there was something he could do so he wouldn't go to jail.

         {¶6}   Appellant was thereafter charged by indictment with one count of burglary,

R.C. 2911.12(A)(2), a felony of the second degree and one count of sexual imposition,

R.C. 2907.06(A)(1), a misdemeanor of the third degree. The aforesaid second count was

later dismissed upon motion of the State.

         {¶7}   Appellant waived his right to trial by jury and the matter proceeded to a

bench trial. The trial court found appellant guilty upon the sole count of burglary. Appellant

was sentenced to a prison term of five years.

         {¶8}   Appellant filed a direct appeal to this Court, raising issues as to the

admissibility of the victim’s identification of him at the scene of the burglary, whether

probable cause supported his arrest, and whether his conviction was against the manifest

weight the evidence. On September 14, 2015, we affirmed his conviction. See State v.

Alkhatib, 5th Dist. Stark No. 2014CA000212, 2015-Ohio-4094.
Stark County, Case No. 2016 CA 00104                                                   4


      {¶9}   Subsequently, appellant filed a petition to vacate or set aside sentence

under R.C. 2953.21, with a request for an evidentiary hearing. The trial court denied the

petition, without conducting a hearing, on April 28, 2016.

      {¶10} On May 25, 2016, appellant filed a notice of appeal. He herein raises the

following three Assignments of Error:

      {¶11} “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S POST

CONVICTION PETITION WITHOUT A HEARING BECAUSE HE WAS DENIED

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH

AMENDMENT OF THE UNITED STATES CONSTITUTION DUE TO TRIAL COUNSEL'S

FAILURE TO PRESENT AN AVAILABLE WITNESS WHO HAD DIRECT KNOWLEDGE

OF THE APPELLANT'S INNOCENCE

      {¶12} “II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S POST-

CONVICTION PETITION WITHOUT A HEARING AND FINDING THAT IT IS PROPER

FOR A TRIAL COURT TO ADOPT THE APPELLEE'S FINDINGS OF FACT AND

CONCLUSIONS OF LAW AS IT'S [SIC] OWN, EVEN THOUGH THE APPELLANT

SUPPORTED HIS PETITION WITH SWORN AFFIDAVITS; THEREBY DENYING

PETITIONER A MEANINGFUL REVIEW OF HIS PETITION.

      {¶13} “III. THE TRIAL COURT ERRED IN ACTING AS TRIER OF FACT IN THE

APPELLANT'S TRIAL BECAUSE SHE HAD A DIRECT CONFLICT DUE TO HER

SPOUSE BEING EMPLOYED BY THE ALLIANCE POLICE DEPARTMENT WHICH

ARRESTED AND ACTIVELY PROSECUTED THE APPELLANT.”
Stark County, Case No. 2016 CA 00104                                                        5


                                                 I.

       {¶14} In his First Assignment of Error, appellant contends the trial court erred in

dismissing his petition for post-conviction relief without a hearing, based on his claim of

ineffective assistance of trial counsel. We disagree.

       {¶15} It is well-settled that a petition for post-conviction relief brought pursuant to

R.C. 2953.21 will be granted only where the denial or infringement of constitutional rights

is so substantial as to render the judgment void or voidable. State v. Jackson, 5th Dist.

Delaware Nos. 04CA–A–11–078, 04CA–A–11–079, 2005–Ohio–5173, ¶ 13, citing State

v. Walden (1984), 19 Ohio App.3d 141, 146, 483 N.E.2d 859. A defendant is entitled to

post-conviction relief only upon a showing of a violation of constitutional dimension that

occurred at the time that the defendant was tried and convicted. State v. Powell (1993),

90 Ohio App.3d 260, 264, 629 N.E.2d 13, 16. In reviewing a trial court's denial of

appellant's petition for post-conviction relief, absent a showing of abuse of discretion, we

will not overrule the trial court's finding if it is supported by competent and credible

evidence. State v. Delgado, 8th Dist. Cuyahoga No. 72288, 1998 WL 72288, citing State

v. Mitchell (1988), 53 Ohio App.3d 117, 559 N.E.2d 1370. An abuse of discretion connotes

more than an error of law or judgment, it implies the court's attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶16} The test for ineffective assistance claims is set forth in Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, also State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. There is essentially a two-pronged

analysis in reviewing a claim for ineffective assistance of counsel. First, the trial court

must determine whether counsel's assistance was ineffective; i.e., whether counsel's
Stark County, Case No. 2016 CA 00104                                                       6


performance fell below an objective standard of reasonable representation and was

violative of any of his or her essential duties to the client. If the court finds ineffective

assistance of counsel, it must then determine whether or not the defense was actually

prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial

is suspect. This requires a showing that there is a reasonable probability that but for

counsel's unprofessional error, the outcome of the trial would have been different. Id.

       {¶17} However, trial counsel is entitled to a strong presumption that all decisions

fall within the wide range of reasonable professional assistance. State v. Sallie (1998), 81

Ohio St.3d 673, 675, 693 N.E.2d 267.

       {¶18} Furthermore, the Ohio Supreme Court has recognized: “In post-conviction

cases, a trial court has a gatekeeping role as to whether a defendant will even receive a

hearing.” State v. Gondor, 112 Ohio St.3d 377, 388, 860 N.E.2d 77, 2006–Ohio–6679, ¶

51. As an appellate court reviewing a trial court's decision in regard to the “gatekeeping”

function in this context, we apply an abuse-of-discretion standard. See id. at ¶ 52, citing

State v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905. Accord State v. Scott, 5th

Dist. Stark No. 2006CA00090, 2006–Ohio–4694, ¶ 34.

              Appellant's Claims of Ineffective Assistance of Trial Counsel

       {¶19} Although the text of appellant’s assigned error references “an available

witness” in the singular, appellant herein focuses on his claim that his trial counsel failed

to investigate and/or present the testimony of two witnesses in his defense: appellant’s

girlfriend and one of appellant’s neighbors.
Stark County, Case No. 2016 CA 00104                                                     7

                             Potential Witness Stella Downin

      {¶20} Appellant argues that his trial counsel was ineffective for not investigating

appellant’s girlfriend, Stella Downin, as a potential defense witness. According to a

proffered affidavit signed by Downin, on the evening of May 29, 2014, she and appellant

came home from working at the nearby convenience store at about 11:30 PM, after having

a late dinner at a restaurant. Appellant and Downin then watched television until about

2:00 AM, during which time he consumed at least four 24-ounce cans of beer. According

to Downin, appellant arose at an unspecified time after daybreak, went out to his car to

get some cigarettes, and “was gone only a few minutes before he got back in bed.”

Affidavit of Stella Downin at paragraph 8. Downin averred that the trip out to the car was

the only time appellant left their apartment during the time frame in question. Downin also

averred that she and appellant had had “several issues” with A.R. in the three years she

had lived in the apartment above theirs, including noise, different men coming to the

apartment late at night, and parking disputes, such that Downin avoided eye contact and

conversation with A.R.

                            Potential Witness Tonika Clayton

      {¶21} Appellant also argues that his trial counsel was ineffective for not

investigating appellant’s neighbor, Tonika Clayton, as a potential defense witness.

According to a proffered affidavit signed by Clayton, she was looking out of a window in

her apartment while charging her phone at some point after about 3:30 AM on the date

of incident at A.R.’s apartment. Clayton averred that “sometime later,” she saw appellant

exit his apartment, go to his car to retrieve something, and then return to his apartment.

Affidavit of Tonika Clayton at paragraphs 18-19. Clayton then recalled via her affidavit
Stark County, Case No. 2016 CA 00104                                                      8


that at the point in time that appellant had just reached his porch, she left the room to go

the bathroom. When she returned to one of her windows, she saw the police car and

lights, and the police going to appellant's apartment. She described appellant as “always

very polite and very nice,” but she averred she had had problems with A.R. in the past,

including an alleged propensity to “walk around her apartment with little to no clothes.”

Clayton Affidavit at paragraphs 7 and 8.

                                           Analysis

       {¶22} By statute, before granting a hearing on a PCR petition, the trial court in the

case sub judice was required to determine whether there were substantive grounds for

relief, which necessarily included balancing the above averments with the evidence in the

trial record. See R.C. 2953.21(C). The proposed testimony of Downin and Clayton

proposes a version of events in which appellant had little or no opportunity to make his

way to A.R.’s apartment during the early morning of May 30, 2014, directly contradicting

not only A.R.’s testimony, but also Officer Johnson, the responding police officer, who

had corroborated A.R.’s testimony regarding the identification and description of her

intruder. The trial transcript reveals that A.R.’s said description at the scene matched the

clothes and appearance of appellant, whom the officer had seen coming from the area

leading to A.R.’s apartment and not from his car. Appellant, by bringing his post-conviction

petition, essentially faced the burden of showing with reasonable probability that the

proposed testimony of the two uncalled witnesses, one of whom was the long-time

girlfriend of appellant and both of whom had had an inauspicious history with A.R., would

have persuaded the trial court, as the trier of fact in the 2014 bench trial, to come to the
Stark County, Case No. 2016 CA 00104                                                        9


conclusion that A.R. and Officer Johnson were lying or grossly mistaken in their

testimony.

                                         Conclusion

       {¶23} In addressing PCR claims, we remain mindful that “[a] defendant is entitled

to a fair trial but not a perfect one.” See State v. Bleigh, 5th Dist. Delaware No. 09–CAA–

03–0031, 2010–Ohio–1182, ¶ 133, quoting Bruton v. United States (1968), 391 U.S. 123,

135–136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (internal quotations omitted). Furthermore, an

attorney’s decision on whether or not to call a witness generally falls within the rubric of

trial strategy and will not be second-guessed by a reviewing court. See State v. Messer–

Tomak, 10th Dist. Franklin No. 10AP–847, 2011–Ohio–3700, ¶ 32, citing State v. Treesh,

90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001) (internal quotation marks omitted). In the

case sub judice, we are unable to conclude the trial court's conclusions in regard to the

two proposed witnesses and their potential credibility were unreasonable, arbitrary, or

unconscionable. Therefore, upon review, we hold the trial court did not abuse its

discretion in denying appellant's petition for post-conviction relief without a hearing.

       {¶24} Appellant's First Assignment of Error is therefore overruled.

                                             II.

       {¶25} In his Second Assignment of Error, appellant contends the trial court failed

to provide a meaningful review of his PCR petition and its accompanying affidavits by

declining to hold a hearing and by adopting by reference in its judgment entry the State’s

memorandum in response. We disagree.

       {¶26} A petition for post-conviction relief does not provide a petitioner a second

opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to
Stark County, Case No. 2016 CA 00104                                                       10

an evidentiary hearing on the petition. State v. Wilhelm, 5th Dist. Knox No. 05–CA–31,

2006–Ohio–2450, ¶ 10, citing State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413

N.E.2d 819. To make the determination as to holding a hearing, the court must consider

the petition, supporting affidavits, and files and records, including, but not limited to, the

indictment, journal entries, clerk's records, and transcript of the proceedings. See R.C.

2953.21(C). Among the factors a trial court should consider in determining the credibility

of supporting affidavits in post-conviction relief proceedings are (1) whether the judge

reviewing the post-conviction relief petition also presided at the trial, (2) whether multiple

affidavits contain nearly identical language, or otherwise appear to have been drafted by

the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the

affiants are relatives of the petitioner, or otherwise interested in the success of the

petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the

defense at trial. State v. Garner, 5th Dist. Stark No. 2011–CA–00075, 2011-Ohio-5582, ¶

40, quoting State v. Calhoun, supra.

       {¶27} Pursuant to R.C. 2953.21, if a trial court dismisses a petition for post-

conviction relief without a hearing it must provide findings of fact and conclusions of law

as to why the petition was dismissed. State v. Staats, 5th Dist. Stark No. 2015CA00207,

2016-Ohio-2921, ¶19, citing State v. Lester, 41 Ohio St.2d 51, 322 N.E.2d 656 (1975),

paragraph two of the syllabus. In the case sub judice, in lieu of issuing formal findings of

fact and conclusions of law, the trial court “[u]pon full review, *** adopt[ed] the

Memorandum contained in the State of Ohio’s response to Defendant’s petition.”

Judgment Entry, April 28, 2016, at 1. However, we have recognized that the utilization by

a trial court of such a procedure in ruling upon a post-conviction petition does not
Stark County, Case No. 2016 CA 00104                                                       11

necessarily violate an appellant's right to due process and meaningful review. See State

v. Scott, 5th Dist. Stark No. 2005CA00028, 2006-Ohio-257, ¶ 16.

       {¶28} A presumption of regularity attaches to all trial court proceedings. See, e.g.,

Chari v. Vore (2001), 91 Ohio St.3d 323, 325, 744 N.E.2d 763. In the case sub judice,

while some of the Calhoun factors appear to favor appellant’s position, we are

unpersuaded upon review that the trial court judge, who also conducted appellant’s 2014

bench trial, failed to duly review appellant’s petition, and we find no abuse of discretion in

the trial court’s decision to rule thereon without conducting a hearing.

       {¶29} Appellant's Second Assignment of Error is therefore overruled.

                                             III.

       {¶30} In his Third Assignment of Error, appellant contends the trial court erred in

conducting a bench trial in this matter based on an alleged conflict of interest by the trial

court judge, who is married to a sergeant in the Alliance Police Department.

       {¶31} As an initial matter, we note appellant in part presents his argument on this

issue as part of an “ineffective assistance” claim, even though the text of his Third

Assignment of Error does not reflect this. Clearly, appellant’s general claim of conflict of

interest by the trial court judge is no longer timely, leaving us to focus on the ineffective

assistance aspect of this issue.

       {¶32} However, appellant faces additional procedural hurdles at this point. Our

review of the PCR petition indicates that appellant did not therein argue the present

“conflict of interest” claim. Generally, the failure to raise an issue in a petition for post-

conviction relief results in a waiver of the right to assert the issue on appeal. See State v.

Barb, 8th Dist. Cuyahoga No. 94054, 2010-Ohio-5239, ¶ 25. Furthermore, “issues properly
Stark County, Case No. 2016 CA 00104                                                      12


raised in a post-conviction petition are those that could not have been raised on direct

appeal because the evidence supporting the issue is outside the record.” State v.

Bubenchik, 5th Dist. Stark No. 2016 CA 00086, 2016-Ohio-7289, ¶ 15, citing State v.

Snelling, 5th Dist. Richland No. 14CA19, 2014–Ohio–4614, ¶ 30. There is no dispute that

the trial court judge, immediately before the start of the 2014 proceedings, had fully

disclosed on the trial record the existence of her husband’s employment as a police officer

in Alliance. Trial Tr. at 7-8.1 Appellant thus could have raised his present concerns as part

of an ineffective assistance argument in his direct appeal.

       {¶33} As such, the doctrines of waiver and res judicata require that we deny

further consideration of appellant’s Third Assignment of Error.

       {¶34} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.




JWW/d 0104




1  The judge also noted at that time that her husband was in no way involved with
appellant’s case. Id.
