[Cite as State v. Cooper, 2016-Ohio-5074.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-15-1243

        Appellee                                 Trial Court No. CR0201102847

v.

Paul Cooper                                      DECISION AND JUDGMENT

        Appellant                                Decided: July 22, 2016

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Merle R. Dech, Jr., for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from an August 18, 2015 denial of appellant’s petition for

postconviction relief following appellant’s convictions on one count of murder, in

violation of R.C. 2903.02(A), an unclassified felony, and one count of murder while
committing felonious assault, in violation of R.C. 2929.02, an unclassified felony. For

the reasons set forth below, this court affirms the judgment of the trial court.

       {¶ 2} Appellant, Paul Cooper, sets forth the following assignment of error:

              I. The trial court erred in denying defendant’s motion for post-

       conviction relief.

       {¶ 3} The following undisputed facts are relevant to this appeal. On October 26,

2011, Darnell Frison was visiting with several of his cousins, and a girlfriend of one of

the cousins, at a residence in West Toledo. While spending time together, the group was

consuming alcohol and crack cocaine. When the supply began to run out, Frison walked

to a nearby neighborhood store in order to purchase additional alcohol.

       {¶ 4} While at the store, Frison encountered Michael Heidtman, the victim in this

case. Heidtman inquired if Frison knew of anyone from whom Heidtman could purchase

cocaine. Frison replied affirmatively and instructed the victim to accompany him back to

the residence where the group was partying.

       {¶ 5} Upon arrival back at the residence, Frison phoned appellant. Appellant had

sold drugs to Frison on multiple past occasions. Arrangements were made for Frison and

the victim to meet appellant in the parking lot of the neighborhood store where Frison

had just purchased the additional alcohol.

       {¶ 6} At the designated time and location, the parties met in the parking lot in

accordance with the previously arranged drug transaction with appellant. During the




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course of the transaction, the victim took the crack cocaine from appellant without paying

appellant and fled the scene on foot.

       {¶ 7} Frison commenced a foot chase of the victim into the adjacent

neighborhood. Ultimately, Frison caught the victim, tackled him, and retrieved

appellant’s crack cocaine from the victim’s pockets. The victim left the location. In the

interim, appellant arrived at the location. Upon retrieving his crack cocaine, appellant

became upset and proclaimed that his crack cocaine was diminished by the victim,

weighing less than it originally did.

       {¶ 8} At this point, the victim returned to the location. Appellant, armed with a

gun, approached the victim and shot him at point-blank range. The victim was killed.

       {¶ 9} Following these events, appellant was indicted on one count of murder, in

violation of R.C. 2903.02(A), an unclassified felony, and one count of murder while

committing felonious assault, in violation of R.C. 2903.02(B), an unclassified felony. On

September 21, 2012, the matter proceeded to jury trial. Appellant was found guilty on

both counts and sentenced to a total term of incarceration of 18 years to life.

       {¶ 10} On June 18, 2013, appellant filed a petition for postconviction relief. In

support, appellant maintained that reversible error occurred when trial counsel decided

not to call appellant’s fiancé as an alibi witness due to tactical considerations. Trial

counsel instead presented an alternative alibi witness. The matter was briefed by both

parties and on June 11, 2015, an evidentiary hearing was conducted.




3.
       {¶ 11} Trial counsel testified at the hearing that a strategic decision was made to

call an alternative witness in lieu of appellant’s fiancé due to the considerable risk that

cross-examination of appellant’s fiancé would result in testimony being placed on the

record of appellant’s history of drug dealing given the knowledge of the fiancé of those

unlawful activities. Trial counsel further testified that the decision on which alibi witness

to call was fully discussed with appellant at the time of the decision and that appellant

concurred in the determination.

       {¶ 12} By contrast, appellant’s fiancé testified at the hearing that although

appellant did leave her apartment on the night of the murder, she estimated that he

returned at a time frame she believed to be shortly before the murder was reported to

have occurred.

       {¶ 13} On August 17, 2015, the trial court found that appellant had failed to satisfy

the burden of proof in support of the petition for postconviction relief. The trial court

held in relevant part, “[C]ounsel’s decision was the result of a deliberate, strategic choice

that the potential benefits of [the fiancé’s] testimony * * * was outweighed by the risk of

producing a witness outside the criminal milieu who would corroborate defendant’s drug

dealing history.” The petition was denied. This appeal ensued.

       {¶ 14} A disputed trial court denial of a petition for postconviction relief will not

be reversed on appeal unless an abuse of discretion is demonstrated. State v. Rodriguez,

6th Dist. Wood No. WD-14-075, 2015-Ohio-562, ¶ 7. An abuse of discretion connotes

more than a mere error of law or judgment. It requires finding that the trial court’s




4.
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶ 15} In applying these controlling legal principles to the record of evidence in

this case, it cannot be shown that the considered, tactical determination of trial counsel to

not take the risk of utilizing a particular alibi witness due to probable adverse cross-

examination testimony, particularly when an alternative alibi witness not possessing

similar cross-examination risk was available, in any way breached a constitutional right

of appellant and caused material prejudiced to appellant. As such, we find that the record

does not show that the denial of appellant’s petition for postconviction relief was

unreasonable, arbitrary, or unconscionable.

       {¶ 16} Wherefore, we find that substantial justice has been done in this matter.

Appellant’s assignment of error is found not well-taken. The judgment of the Lucas

County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs

of this appeal pursuant to App.R. 24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     State v. Cooper
                                                                     C.A. No. L-15-1243




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Stephen A. Yarbrough, J.                                  JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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