[Cite as State v. Bubenchik, 2016-Ohio-7289.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2016 CA 00086
STEVEN P. BUBENCHIK, JR.

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2013 CR 01293


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         October 11, 2016



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN D. FERRERO                                 STEVEN P. BUBENCHIK, JR.
PROSECUTING ATTORNEY                            MANSFIELD CORR. INSTITUTION
RENEE M. WATSON                                 Post Office Box 788
ASSISTANT PROSECUTOR                            Mansfield, Ohio 44901
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016 CA 00086                                                      2

Wise, J.

       {¶1}   Appellant Steven P. Bubenchik, Jr. appeals from the decision of the Court

of Common Pleas, Stark County, which denied his petition for post-conviction relief and

his two ancillary motions, pertaining to his 2013 convictions for attempted murder,

felonious assault, and other offenses and/or specifications. Appellee is the State of Ohio.

The relevant facts leading to this appeal are as follows.

       {¶2}   On the evening of August 8, 2013, officers from the Massillon Police

Department went to appellant’s residence to conduct a check on his welfare, having been

informed by appellant’s estranged wife that she had received a potentially suicidal voice

mail message from him about seeing her in the “next lifetime.” Officers Rogers, Alexander

and Riccio responded to the Geiger Avenue SW address, but they left after seeing no

lights on and no movement inside. Later that evening, obtaining the assistance of

appellant’s parents, the officers returned, with Sergeant Smith in charge. Ultimately, the

parents indicated that they wanted the officers to enter appellant’s house.

       {¶3}   As the officers commenced their entry procedures, a gunshot sounded from

inside. Officer Riccio came back outside, and all the officers scattered for cover. A man,

later identified as appellant's brother, ran out the front door and was taken to the ground

and handcuffed. In the meantime, appellant leaned out a window with a firearm, yelling

that he was “going to kill you motherfuckers.” Appellant then began shooting at the officers

from the window. The officers did not return fire, fearing someone else was inside. A

SWAT team was called, and after about three hours of negotiations, appellant put down

his pistol and surrendered.
Stark County, Case No. 2016 CA 00086                                                         3


       {¶4}   Appellant was subsequently charged with three counts of attempted murder

and three counts of felonious assault, all with repeat violent offender specifications and

firearm specifications, and one count of having weapons under a disability.1 Prior to trial,

appellant filed a motion to suppress, which was overruled by the trial court.

       {¶5}   The case proceeded to a jury trial commencing on December 10, 2013. The

jury subsequently found appellant not guilty of attempted murder as to Officer Riccio and

Sergeant Smith, guilty of attempted murder as to Officer McConnell (another officer who

had reported to the scene), guilty of felonious assault as to all three officers, and guilty of

having weapons under a disability. The trial court merged the felonious assault conviction

with the attempted murder conviction as to Officer McConnell. Appellant was sentenced

to eleven years in prison for attempted murder, eleven years for each felonious assault,

thirty-six months for having weapons under a disability (to run concurrently), nine years

in prison on the three firearm specifications and two years in prison on each repeat violent

offender specification, for a total sentence of forty-eight years.

       {¶6}   Appellant then filed a direct appeal to this Court, challenging as his sole

assigned error the trial court’s decision to overrule his motion to suppress. On November

14, 2014, we affirmed appellant’s convictions. See State v. Bubenchik, 5th Dist. Stark No.

2014CA00020, 2014-Ohio-5056. The Ohio Supreme Court thereafter declined to accept

the case for further appeal.

       {¶7}   On December 8, 2014, appellant filed in the trial court a pro se petition for

post-conviction relief, as well as a request for appointed counsel and a ballistics expert.




1   Two additional counts related to events from a different time frame were on the
indictment, but these were handled separately via a plea.
Stark County, Case No. 2016 CA 00086                                                        4


On August 13, 2015, appellant filed a motion to amend his prior petition. In both instances,

appellant asserted ineffective assistance of trial counsel. On January 29, 2016, the State

filed a response to the petition, as well as a motion to dismiss and a motion for summary

judgment.2 Appellant filed a reply on March 1, 2016.

        {¶8}    On April 5, 2016, the trial court issued a judgment entry denying appellant’s

petition and corresponding motions, essentially finding that he had failed to support his

post-conviction claims and that his arguments were additionally barred by the doctrine of

res judicata.

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

following sole Assignment of Error:

        {¶10} “I.    THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION IN NOT

HOLDING AN EVIDENTARY [SIC] HEARING.”

                                               I.

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

not granting him an evidentiary hearing on his PCR petition and amended petition. We

disagree.

        {¶12} A defendant is entitled to post-conviction relief under R.C. 2953.21 only

upon a showing of a violation of constitutional dimension that occurred at the time the

defendant was tried and convicted. State v. Powell (1993), 90 Ohio App.3d 260, 264, 629

N.E.2d 13, 16. 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

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



2   In said response, the State did not contest the timeliness of appellant’s PCR petition(s).
Stark County, Case No. 2016 CA 00086                                                         5

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

N.E.2d 819. In reviewing a trial court's denial of an 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 241988, citing State v. Mitchell (1988), 53 Ohio App.3d

117, 559 N.E.2d 1370. When a defendant files a post-conviction petition pursuant to R.C.

2953.21, the trial court must grant an evidentiary hearing unless it determines that “the

files and records of the case show the petitioner is not entitled to relief.” See R.C.

2953.21(E). We apply an abuse of discretion standard when reviewing a trial court's

decision to deny a post-conviction petition without a hearing. State v. Holland, 5th Dist.

Licking No. 12–CA–56, 2013-Ohio-905, ¶ 17. 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.

       {¶13} 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

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
Stark County, Case No. 2016 CA 00086                                                      6


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.

       {¶14} In the case sub judice, appellant first contends that information from the BCI

investigation reports, certain photographs and/or diagrams (allegedly “withheld” by his

trial counsel), and testimony from one of the police officers during the preliminary hearing

would support his ineffective assistance claims. He also makes a cryptic assertion that

“[t]estimony appellant gave during trial is consistent with the B.C.I. Report and was not

presented to the Jurors.” Appellant’s Brief at 4.

       {¶15} However, under the doctrine of res judicata, a final judgment of conviction

bars a defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that the defendant raised or

could have raised at the trial which resulted in that judgment of conviction or on an appeal

from that judgment. State v. Callahan, 7th Dist. Mahoning No. 12 MA 173, 2013-Ohio-

5864, ¶ 9, quoting State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).

Conversely, issues properly 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. Snelling, 5th Dist. Richland No. 14CA19, 2014-Ohio-4614, ¶ 30. In

other words, “[u]nder Ohio law, where a defendant, ‘represented by new counsel upon

direct appeal, fails to raise therein the issue of competent trial counsel and said issue

could fairly have been determined without resort to evidence dehors the record, res

judicata is a proper basis for dismissing defendant's petition for postconviction relief.’ ”

State v. Dickerson, 10th Dist. Franklin No. 13AP-249, 2013-Ohio-4345, ¶ 11, quoting State
Stark County, Case No. 2016 CA 00086                                                       7

v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), syllabus, modifying State v. Hester, 45

Ohio St.2d 71, 341 N.E.2d 304 (1976).

       {¶16} In its response brief, the State directs us to the discovery receipt document

from the trial court file, dated October 21, 2013, which indicates the crime scene

photographs and/or diagrams were provided by the State in pre-trial discovery.

Furthermore, a large number of such photographs and a “scene diagram” were submitted

to the trial court as part of the State’s exhibits, and as such would not be dehors the

record. See Tr. at 722-726. Finally, appellant does not reveal why the referenced

preliminary hearing or trial testimony should be considered as outside of the trial court

record. We therefore find no abuse of discretion in the trial court’s application of the

doctrine of res judicata to deny the aforesaid claims without a hearing.

       {¶17} In regard to the aforesaid BCI reports, the record would again reflect that

these documents were provided in discovery, although we do not presently ascertain that

they were referenced as part of the trial exhibits. Appellant herein essentially asserts that

said investigative reports reveal several discrepancies in the State’s case as to where

certain bullet fragments were found and which officers and police vehicles were targeted.

However, assuming arguendo this information is indeed dehors the record and not

blocked by res judicata, appellant fails to persuade us that his defense was thereby

prejudiced on this point. Strickland, supra. It has been aptly stated that “the evidence

presented outside the record must meet some threshold standard of cogency; otherwise

it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence

which is only marginally significant and does not advance the petitioner's claim beyond
Stark County, Case No. 2016 CA 00086                                                       8

mere hypothesis and a desire for further discovery.” State v. Coleman, 1st Dist. Hamilton

No. C-900811, 1993 WL 74756.

       {¶18} Appellant secondly contends that his trial counsel was ineffective for

allegedly failing to interview various witnesses and/or police officers, procure a ballistics

expert, and adequately communicate with appellant. Assuming arguendo trial counsel did

not pursue sufficient pretrial investigation as alleged herein by appellant, a particular

decision by a trial attorney not to investigate an issue must be assessed for

reasonableness in light of all the circumstances, with the application of “a heavy measure

of deference to counsel's judgments.” See Kimmelman v. Morrison (1986), 477 U.S. 365,

384, 106 S.Ct. 2574. Furthermore, this Court has recognized that “* * * complaints of

uncalled witnesses are not favored, because the presentation of testimonial evidence is

a matter of trial strategy and because allegations of what a witness would have testified

are largely speculative.” State v. Phillips, 5th Dist. Stark No. 2010CA00338, 2011–Ohio–

6569, ¶ 26, quoting Buckelew v. United States (5th Cir.1978), 575 F.2d 515, 521 (internal

quotation marks omitted).

       {¶19} We find appellant in this regard has chiefly relied on the self-serving

memorandum he presented with his petition and his present undeveloped suggestion that

the aforesaid evidence would have revealed discrepancies in his case. Appellant thus

fails to demonstrate in what manner he was prejudiced by trial counsel’s performance.

Upon review of the record and the post-conviction pleadings, we hold the trial court did

not abuse its discretion in denying appellant's petition and amended petition for post-

conviction relief without conducting an evidentiary hearing.
Stark County, Case No. 2016 CA 00086                                           9


      {¶20} Appellant's sole Assignment of Error is therefore overruled.

      {¶21} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is hereby affirmed.



By: Wise, J.

Farmer, P. J., and

Gwin, J., concur.



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