[Cite as State v. Brown, 2011-Ohio-6733.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                         C.A. No.     25710

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JAMES D. BROWN                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2009 05 1600

                                 DECISION AND JOURNAL ENTRY

Dated: December 28, 2011



        BELFANCE, Presiding Judge.

        {¶1}    James Brown appeals the trial court’s denial of his petition for postconviction

relief. For the reasons set forth below, we affirm.

                                                 I.

        {¶2}    Mr. Brown was charged with multiple counts of sexual abuse against A.W., the

daughter of Mr. Brown’s fiancée, Kimberly Truman. Following a bench trial, he was convicted

of four counts of rape, three counts of sexual battery, and four counts of corrupting another with

drugs. He appealed, and this Court affirmed his convictions but remanded to the trial court due

to a merger issue. While that appeal was pending, Mr. Brown petitioned the trial court for

postconviction relief.

        {¶3}    Though Mr. Brown alleged multiple grounds for relief, the trial court determined

that it only had jurisdiction to consider his claim that he received ineffective assistance of

counsel because his trial attorney did not thoroughly interview certain witnesses and call them to
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testify at trial. The trial court denied Mr. Brown’s petition without a hearing, and he has

appealed, raising a single assignment of error for review.

                                                II.

                                  ASSIGNMENT OF ERROR

       “THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN
       EVIDENTIARY HEARING FOLLOWING SUBMISSION OF WITNESS
       AFFIDAVITS THAT CONTAINED EVIDENCE DEHORS THE RECORD
       SUPPORTING THE ALLEGED VICTIM’S RECANTATION AND WHERE
       PETITIONER INTRODUCED AN EXPERT ATTORNEY’S OPINION THAT
       TRIAL COUNSEL WAS INEFFECTIVE AND THAT COUNSEL’S
       INEFFECTIVENESS PREJUDICED APPELLANT’S RIGHT TO A FAIR
       TRIAL.”

       {¶4}    Mr. Brown argues that, because he produced sufficient operative facts to

demonstrate that he received ineffective assistance of counsel, the trial court erred when it

dismissed his petition for postconviction relief without a hearing. We disagree.

       {¶5}    To prevail on a claim for postconviction relief, the petitioner must demonstrate a

denial or infringement of his rights in the proceedings resulting in his conviction that rendered

the conviction void or voidable under the Ohio or United States Constitutions.                R.C.

2953.21(A)(1)(a). Pursuant to R.C. 2953.21(C), before granting a hearing on the petition, the

court “shall determine whether there are substantive grounds for relief.” For this reason, a

petitioner seeking postconviction relief pursuant to R.C. 2953.21 is not automatically entitled to

an evidentiary hearing. Rather, “[i]n postconviction 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, 2006-

Ohio-6679, at ¶51; State v. Calhoun (1999), 86 Ohio St.3d 279, 282 (referring to mandatory

language contained in R.C. 2953.21(C)).          Accordingly, “a trial court properly denies a

defendant’s petition for postconviction relief without holding an evidentiary hearing where the

petition, the supporting affidavits, the documentary evidence, the files, and the records do not
                                                 3


demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for

relief.” Id. at paragraph two of the syllabus. See, also, State v. Jackson (1980), 64 Ohio St.2d

107, 111-12 (“It is only reasonable to require [a petitioner] to set forth, in his petition and

accompanying affidavits and supporting materials, sufficient operative facts to satisfy his initial

burden of proof[.]”). “[A] court reviewing the trial court’s decision in regard to its gatekeeping

function should apply an abuse-of-discretion standard.” Gondor at ¶52; see, also, Calhoun, 86

Ohio St.3d at 286. An abuse of discretion implies that the trial court’s attitude is unreasonable,

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

       {¶6}    Mr. Brown contends that he received ineffective assistance of counsel because his

lawyers failed to interview and ultimately call as witnesses, Mr. Buckner and Ms. Brown. Ms.

Brown is Mr. Brown’s daughter, and Mr. Buckner is A.W.’s boyfriend.

       {¶7}    In support of his petition, Mr. Brown submitted affidavits from A.W., Ms.

Truman, Ms. Brown, and Mr. Buckner. In addition, Mr. Brown submitted an affidavit from

Jerome Milano, an attorney who opined that Mr. Brown had been denied the effective assistance

of counsel.

       {¶8}     A.W. initially reported that Mr. Brown had sexually abused her on numerous

occasions and that he had given her alcohol and marijuana. During the bench trial of this matter,

A.W recanted and told the trial court that she had fabricated the allegations because she was

angry at her mother and Mr. Brown for disciplining her. In addition, she stated that she was

attempting to avoid being separated from her boyfriend and sent away to boarding school. Ms.

Truman testified that she had discovered A.W.’s fabrication of the sexual abuse by

eavesdropping on a phone call between A.W. and her boyfriend, Mr. Buckner. In assessing

A.W.’s testimony, the trial court also heard evidence that A.W. had been pressured by her
                                                  4


mother to recant her allegations, and that A.W.’s relatives took A.W. to report this to police. The

trial court also considered evidence after the disclosure of the sexual abuse, while at the CARE

center, Ms. Truman disclosed that she had suspicions about Mr. Brown. Finally, the trial court

considered evidence that when A.W. initially disclosed, she told police that some of the sexual

conduct had occurred in Mr. Brown’s car and she suggested that police might find evidence of

Mr. Brown’s semen in the car. At that time, Ms. Truman stated that she had never had sexual

relations with Mr. Brown in the car. The police searched the vehicle and the evidence indicated

that the semen found in the vehicle was Mr. Brown’s.         At trial, Ms. Truman, contrary to her

initial statement, testified that she previously had sexual relations in the car with Mr. Brown.

Ultimately, the trial court did not find A.W.’s recantation to be credible.

       {¶9}    In support of his petition for postconviction relief, Mr. Brown attached affidavits

of A.W. and Ms. Truman. In her affidavit, A.W. averred that she had falsely accused Mr. Brown

and that Ms. Truman had discovered her deception by eavesdropping on a phone call between

A.W. and Mr. Buckner. Ms. Truman averred in her affidavit that A.W. repeatedly recanted the

allegations to her and that Mr. Brown’s counsel told her he refused to subpoena Ms. Brown,

because he did not want to drive to personally serve her.

       {¶10} Ms. Brown averred that she had never observed Mr. Brown behave

inappropriately with A.W. She also averred that she had seen Mr. Brown chase A.W. down the

street when A.W. attempted to run away and that A.W. had yelled that she was “‘going to ruin

his (sic) life[.]’” According to Ms. Brown’s affidavit, she spoke with one of Mr. Brown’s

attorneys about her potential testimony but only for “no more than three minutes[.]” In Mr.

Buckner’s affidavit, he averred that he did speak with A.W. on the phone and that she told him
                                                   5


that she had made up all the charges.        He also stated that he only spoke with Mr. Brown’s

attorneys for five minutes on the first day of trial.

        {¶11} In evaluating a claim alleging ineffective assistance of counsel, Mr. Brown was

required to set sufficient operative facts to “show (1) deficient performance by counsel, i.e.,

performance falling below an objective standard of reasonable representation, and (2) prejudice,

i.e., a reasonable probability that but for counsel’s errors, the proceeding’s result would have

been different.” State v. Mundt, 115 Ohio St.3d 22, 2007–Ohio–4836, at ¶62, citing Strickland v.

Washington (1984), 466 U.S. 668, 687–688, 694. At its core, “this requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial[.]” Gondor at ¶61,

citing Strickland, 466 U.S. at 687.

        {¶12} With respect to the first requirement, the trial court found that Mr. Brown could

not establish deficient performance because the decision whether to call a particular witness is a

matter of trial strategy. However, we disagree with the trial court’s reasoning on this point. An

attorney has a “duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. When a decision not

to investigate or a mere cursory investigation is made by an attorney, that decision must be

“directly assessed for reasonableness in all the circumstances, applying a heavy measure of

deference to counsel’s judgments.” Id. Thus, if counsel fails to diligently examine potential

witnesses, it does not follow that a “strategic” decision can take place, as there is essentially

nothing to evaluate. See, e.g, English v. Romanowski (C.A. 6, 2010), 602 F.3d 714, 728-279

(concluding that defendant’s counsel was deficient for failing to investigate witness because

“[c]ounsel simply had no reason to believe that an investigation was unnecessary”); Ramonez v.

Berghuis (C.A. 6, 2007), 490 F.3d 482, 488 (“[T]he investigation leading to the choice of a so-
                                                 6


called trial strategy must itself have been reasonably conducted lest the ‘strategic’ choice erected

upon it rest on a rotten foundation.”)

       {¶13} Assuming without deciding that Mr. Brown’s counsel’s failure to more fully

investigate the potential testimony of Ms. Brown and Mr. Buckner fell below a reasonable

standard of representation, Mr. Brown was also required to allege sufficient operative facts that

there was “a reasonable probability that but for [his] counsel’s errors, the proceeding’s result

would have been different.” Mundt at ¶62. The premise underlying Mr. Brown’s claim of

prejudice is that the there is a reasonable probability that the outcome of the trial would have

been different if Ms. Brown and Mr. Buckner had testified. In this regard, we note that the

excluded evidence would have potentially corroborated the trial testimony. Mr. Buckner’s

testimony would have corroborated Ms. Truman’s and A.W.’s testimony about the telephone

conversation. Ms. Brown’s affidavit testimony is ambiguous. It could have been viewed as

corroborating A.W.’s assertion that she was angry with Mr. Brown for disciplining her and that

she was motivated to fabricate the allegations. However, Ms. Brown’s affidavit testimony could

also be viewed as a threat by A.W. that she would disclose the sexual abuse.

       {¶14}    In light of the record before us, we are not persuaded that Mr. Brown alleged

sufficient operative facts to establish a reasonable probability that the outcome of the trial would

have been different had Mr. Buckner and Ms. Brown testified. State v. Turner, 10th Dist. No.

04AP-1143, 2006-Ohio-761, at ¶33 (“[A] trial court may deny a post-conviction petition without

a hearing when the evidence presented is merely cumulative or alternative to evidence presented

at trial.”). Accordingly, we cannot say that the trial court abused its discretion in failing to

conduct a hearing upon Mr. Brown’s claim for postconviction relief.

       {¶15} Mr. Brown’s assignment of error is overruled.
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                                                III.

       {¶16} Mr. Brown’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



WHITMORE, J.
CONCURS

MOORE, J.
CONCURS IN JUDGMENT ONLY
                                         8


APPEARANCES:

DAVID C. SHELDON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
