[Cite as State v. Starks, 2011-Ohio-2772.]


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

STATE OF OHIO                                          C.A. No.       25617

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
JAMES STARKS                                           COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2009 06 1984

                                  DECISION AND JOURNAL ENTRY

Dated: June 8, 2011



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, James Starks, appeals from the judgment of the Summit

County Court of Common Pleas, denying his petition for post-conviction relief. This Court

affirms.

                                                  I

        {¶2}     This Court recounted the underlying facts of this case in State v. Starks, 9th Dist.

No. 25155, 2010-Ohio-5980, at ¶2-6. After one mistrial, a jury convicted Starks of felonious

assault, and the court sentenced him to five years in prison. Starks appealed and challenged the

sufficiency of the verdict and the weight of the evidence. This Court affirmed his conviction.

Starks at ¶13.

        {¶3}     During the pendency of the direct appeal in this matter, Starks filed a pro se

petition for post-conviction relief. The basis for the petition was that Starks’ trial counsel was

ineffective and, had his counsel conducted additional discovery and been better prepared for
                                                  2


trial, he would have uncovered exculpatory evidence and been able to prove that Starks was

innocent. On September 8, 2010, the trial court denied the petition.

         {¶4}   Starks now appeals from the court’s denial of his petition and raises two

assignments of error for our review. For ease of analysis, we consolidate the assignments of

error.

                                                 II

                                 Assignment of Error Number One

         “APPELLANT’S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH
         AMENDMENT TO THE UNITED STATES CONSTITUTION WAS
         VIOLATED WHEN THE TRIAL COURT DISMISSED HIS PETITION TO
         VACATE OR SET ASIDE JUDGMENT AS LEGALLY INSUFFICIENT.”

                                Assignment of Error Number Two

         “APPELLANT’S RIGHT TO EFFECTIVE ASSISTANCE AND DUE
         PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO
         THE UNITED STATES CONSTITUTION WAS VIOLATED BY TRIAL
         COUNSEL’S FAILURE TO CHAMPION HIS CAUSE SKILLFULLY
         CONSEQUENTLY DEPRIVING HIM OF A FAIR TRIAL.”

         {¶5}   In his first assignment of error, Starks argues that the trial court erred by denying

his petition for post-conviction relief, as it demonstrated a cognizable claim based on ineffective

assistance of counsel. In his second assignment of error, Starks argues that he was denied

ineffective assistance of counsel because his counsel failed to conduct adequate discovery. We

disagree with both propositions.

         {¶6}   This Court reviews a trial court’s decision to deny a petition for post-conviction

relief for an abuse of discretion. State v. Craig, 9th Dist. No. 24580, 2010-Ohio-1169, at ¶12,

citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶45. An abuse of discretion means

that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219.
                                                3


       “Any person who has been convicted of a criminal offense *** and who claims
       that there was such a denial or infringement of the person’s rights as to render the
       judgment void or voidable under the Ohio Constitution or the Constitution of the
       United States *** may file a petition in the court that imposed sentence, stating
       the grounds for relief relied upon, and asking the court to vacate or set aside the
       judgment or sentence or to grant other appropriate relief. The petitioner may file
       a supporting affidavit and other documentary evidence in support of the claim for
       relief.” R.C. 2953.21(A)(1)(a).

A post-conviction relief petitioner who asserts an ineffective assistance of counsel claim has the

burden of meeting the test set forth in Strickland v. Washington (1984), 466 U.S. 668. State v.

Gorospe, 9th Dist. No. 24111, 2008-Ohio-6435, at ¶8. That is, he must show that: (1) counsel’s

performance was deficient to the extent that “counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment[,]” and (2) “the deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687. To demonstrate prejudice, a petitioner

must prove that “there exists a reasonable probability that, were it not for counsel’s errors, the

result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136,

paragraph three of the syllabus. “An error by counsel, even if professionally unreasonable, does

not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.”    Strickland, 466 U.S. at 691.     Furthermore, this Court need not address both

Strickland prongs if a petitioner fails to prove either one. State v. Ray, 9th Dist. No. 22459,

2005-Ohio-4941, at ¶10.

       {¶7}    Starks argues that his counsel was ineffective, and he was thus entitled to post-

conviction relief, because his counsel “failed to file pertinent pretrial motions” and “failed to

conduct a pretrial investigation that would have assisted him in impeaching the victim’s

identification of [him]” as the assailant. Starks relied upon his own affidavit in support of his

petition. In his affidavit, Starks maintained his innocence and averred that further investigation

on the part of his attorney would have uncovered evidence showing that Starks was not present
                                                 4


when the crime at issue occurred and that the victim lacked credibility because he was “a little on

the shady side.” The record reflects that Starks had different counsel at trial than he had on

direct appeal with this Court.

       {¶8}    To the extent Starks argues that his trial counsel was ineffective because he failed

to file pretrial motions, that argument is one that Starks could have raised on direct appeal, as he

has not pointed to any evidence dehors the record in support of his argument. See State v. Cole

(1982), 2 Ohio St.3d 112, syllabus (“Where 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 post[-]conviction relief.”). Post-conviction relief will not lie

“if the claim raised in the petition is barred by the doctrine of res judicata.” State v. Lynch, 9th

Dist. No. 06CA008938, 2006-Ohio-5813, at ¶7.

       “Under the doctrine of res judicata, a final judgment of conviction bars a
       convicted defendant who was represented by counsel from raising and litigating
       in any proceeding except an appeal from that judgment, any *** claimed lack of
       due process that *** could have been raised *** on an appeal from that
       judgment.” State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the
       syllabus.

To withstand the application of the doctrine, “[e]vidence outside the record ‘must demonstrate

that the claims advanced in the petition could not have been fairly determined on direct appeal

based on the original trial court record without resorting to evidence outside the record.’” State

v. Dovala, 9th Dist. No. 08CA009455, 2009-Ohio-1420, at ¶10, quoting State v. Stallings (Apr.

19, 2000), 9th Dist. No. 19620, at *1. Here, one could clearly discern from the trial court docket

the matter of whether defense counsel had filed certain pretrial motions. Because Starks had

different counsel on appeal and could rely upon the trial court record to make this argument, we

must conclude that it is barred by res judicata. State v. Ruvalcaba (Dec. 5, 2001), 9th Dist. No.
                                                   5


20585, at *1-2 (concluding petition barred by res judicata where petitioner relied upon trial court

docket to argue that his trial counsel was ineffective for failing to file pretrial motions).

        {¶9}    Starks’ second argument is that his counsel failed to fully investigate his case and,

therefore, did not uncover facts about the victim that would have undermined the victim’s

credibility.   Assuming without deciding that res judicata does not also bar Starks’ second

argument, see Dovala at ¶16-21 (concluding that res judicata did not bar certain portions of a

post-conviction relief petition, including that trial counsel did not fully investigate the State’s

case), Starks’ own affidavit was the only item he presented as evidence that his counsel did not

fully investigate his case. “General conclusory allegations as to counsel’s ineffectiveness or

broad assertions *** are inadequate as a matter of law to *** support a finding of post[-

]conviction relief.” State v. Sales, 9th Dist. No. 23498, 2007-Ohio-4136, at ¶7, quoting State v.

Guess (Oct. 8, 1997), 9th Dist. No. 18252, at *2. Based on our review of the record, Starks’ self-

serving affidavit does not demonstrate a claim for ineffective assistance. State v. Houser, 9th

Dist. No. 21555, 2003-Ohio-6811, at ¶17-18. The issue of Starks’ and the victim’s credibility

was squarely before the jury at trial, and the jury chose to believe the State’s version of the

events. Starks at ¶9-12. We agree with the trial court that Starks’ affidavit and petition did

nothing more than “rehash the evidence” and take issue with the jury’s ultimate determination.

Because Starks failed to set forth “sufficiently operative facts to support [his] assertion” that his

counsel was ineffective, Houser at ¶14, the trial court did not abuse its discretion by denying his

petition. Starks’ assignments of error are overruled.

                                                  III

        {¶10} Starks’ assignments of error are overruled. The judgment of the Summit County
                                                 6


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.


                                                     BETH WHITMORE
                                                     FOR THE COURT


MOORE, J.
BELFANCE, P. J.
CONCUR


APPEARANCES:

JAMES STARKS, pro se, Appellant.

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