[Cite as State v. Quinones, 2016-Ohio-7225.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104016



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                 ANDREW QUINONES
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-562226-A

        BEFORE: Kilbane, P.J., Blackmon, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                    October 6, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
Erika B. Cunliffe
Sarah E. Gatti
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Anthony T. Miranda
Holly Welsh
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, Andrew Quinones (“Quinones”), appeals from the

trial court’s decision denying his petition for postconviction relief without a hearing. For

the reasons set forth below, we affirm.

       {¶2} The facts underlying this appeal were previously set forth by this court in

Quinones’s direct appeal, State v. Quinones, 8th Dist. Cuyahoga No. 100928,

2014-Ohio-5544 (“Quinones I”):

                                  I. Procedural History

       On December 4, 2012, [Quinones] was indicted on three counts of rape,
       four counts of kidnapping, one count of gross sexual imposition, and one
       count of pandering obscenity involving a minor. The indictment was
       rendered based on allegations that [Quinones] had molested [the ]victim
       [and his ex-sister-in-law], S.H., seven years earlier when she was between
       the ages of nine and ten.

       On May 6, 2013, the case proceeded to a jury trial. At the conclusion of the
       state’s case, the state dismissed Count 9, pandering obscenity involving a
       minor. At the conclusion of trial, the jury was deadlocked and a mistrial
       was declared. A new trial was set for July 8, 2013.

       On July 26, 2013, a new attorney filed a notice of appearance on behalf of
       [Quinones], and a bench trial began on November 19, 2013. At the
       conclusion of trial, the trial court found [Quinones] guilty on all counts.

       At sentencing, [Quinones] was sentenced to five years for gross sexual
       imposition, ten years for rape, and life with the possibility for parole after
       ten years for kidnapping. The sentences were ordered to run concurrently.
       The court also declared [Quinones] to be an aggravated sexually-oriented
       offender.
                         II. Statement of the Facts

In March 2004, Heather H. became romantically involved with [Quinones].
 Shortly thereafter, Heather learned that she was pregnant with
[Quinones’s] child. On May 24, 2004, Heather and [Quinones] married.
During Heather’s pregnancy, [Quinones] was in the military and stationed
in Pensacola, Florida while Heather remained in Ohio.

In September 2004, [Quinones] returned to Ohio, without permission from
his superiors, when he learned that Heather was experiencing medical
complications due to her pregnancy. [Quinones] moved in with Heather
and her family in order to care for Heather during the remainder of her
pregnancy. At the time, Heather lived with her mother Helen, her
10-year-old sister S.H., and her 11-year-old brother W.H.

***

S.H. testified that when she was between the ages of nine and ten,
[Quinones] began sexually abusing her. According to S.H., the abuse
began with a kiss and escalated into [Quinones] instructing her to “touch his
penis,” inappropriately touching her, and directing her to perform oral sex.
S.H. testified that [Quinones’s] requests became more frequent and
aggressive. On a specific occasion, [Quinones] forced her to perform oral
sex by pulling her elbows together and pushing her head down. S.H.
testified that on a number of occasions, he took her down to the basement
and forced her to have anal sex. S.H. explained that she complied with
[Quinones’s] directions because she felt that she had to obey him or she
would be punished. S.H. stated that the abuse ended when she moved to
Crawford County with her mother and brother in the fall of 2005.

***

When S.H. was approximately 16 years old, * * * S.H. disclosed that she
had been “molested by a family member” when she was younger and living
in Cleveland. * * * Following this conversation, [her school guidance
counselor] contacted Crawford County Children and Family Services. [The
guidance counselor] also contacted S.H.’s mother, Helen, and set up a
meeting where S.H. told her mother about the abuse.

Devon Sipes Ruiz, a case worker for Crawford County Children and Family
Services, testified that she was assigned to perform an assessment of S.H.
Ruiz testified that once she confirmed that S.H. was no longer residing in
       the home with [Quinones], she contacted law enforcement and made them
       aware of the allegations. Thereafter, Ruiz conducted an interview of S.H.
       where S.H. described some specific details of her sexual abuse. Ruiz
       testified that she subsequently sent a copy of her assessment to the
       Newburgh Heights Police Department.

       Detective Brian O’Connell of the Newburgh Heights Police Department
       was assigned to investigate the sexual assault of S.H. * * * Following his
       interview of S.H., Det. O’Connell conducted a non-custodial interview of
       [Quinones]. Det. O’Connell described [Quinones] as “evasive” and
       “physically uptight.”

Id. at ¶ 2-7, 10, 12-15.

       {¶3} On appeal, Quinones argued that he was denied effective assistance of

counsel. Specifically he argued: (1) defense counsel used improper strategy and tactics,

i.e., defense counsel attempted to discredit S.H.’s testimony with testimony from

Quinones’s past sexual partners, suggesting that it was “anatomically impossible” for him

to anally rape S.H. without causing her serious physical injuries; (2) allowed

impermissible evidence to be admitted at trial, i.e., defense counsel elicited testimony

during the cross-examination of Heather and Case Worker Ruiz relating to whether they

believed S.H.’s allegations and defense counsel asked Det. O’Connell if he formed an

opinion as to Quinones’s guilt; and (3) failed to adequately prepare for trial, i.e., defense

counsel’s conduct throughout the trial placed his level of preparation into question. Id. at

¶ 20. We affirmed his convictions, finding that

       the perceived errors in defense counsel’s performance did not impact the
       sufficiency of the state’s evidence. As noted by the trial court at the
       sentencing hearing, S.H.’s testimony was consistent throughout the
       proceedings despite defense counsel’s attempts to impeach her credibility
       and time line. (Tr. 1620-22). As such, [Quinones’s] ineffective assistance
       of counsel arguments fail the second prong in Strickland [v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].”

Id. at ¶ 27.

       {¶4} On August 29, 2014, Quinones filed a petition for postconviction relief. In

support of his petition, Quinones included his own affidavit. Quinones argued defense

counsel was deficient in the following three respects: (1) trial strategy and tactics, i.e.,

the allegations of sexual abuse were not credible based on the size of Quinones’s penis;

(2) evidentiary issues, i.e., Heather’s testimony that their marriage was terrible and the

testimony of Heather, Ruiz, and Det. O’Connell commenting on Quinones’s credibility;

and (3) trial preparation, i.e., calling Quinones as a witness, and defense counsel was

unprepared for voir dire. The trial court denied Quinones’s motion and issued findings

of fact and conclusions of law. The trial court found that Quinones’s claims related to

trial counsel’s strategies in cross-examination and counsel’s failure to object to certain

trial testimony are barred by res judicata.      The court further found that Quinones’s

affidavit was self-serving and unsupported by any evidence in the record, and Quinones

failed to establish “prejudice from trial counsel’s conduct merely because his trial was

presided over by a different judge [after the original trial judge recused himself].”

       {¶5} It is from this order that Quinones appeals, raising the following single

assignment of error for review.

                                    Assignment of Error

       The trial court violated [Quinones’s] right to due process when it denied his
       petition [for] post-conviction relief without a hearing even though he
       demonstrated a genuine issue of material fact and it was not barred by res
       judicata.

       {¶6} Quinones argues that he was entitled to a hearing because he “made a

showing sufficient to demonstrate that his rights under the Constitution were violated due

to ineffective assistance of counsel.”

       {¶7} The trial court’s decision to deny a postconviction petition without a

hearing is reviewed under the abuse of discretion standard. State v. Abdussatar, 8th Dist.

Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 16.

       {¶8} R.C. 2953.21 (A)(1)(a), governs postconviction petitions and provides that

       [a]ny person who has been convicted of a criminal offense * * * 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.

       {¶9} In order to be entitled to a hearing on a petition for postconviction relief

alleging ineffective assistance of counsel, the petitioner must submit evidentiary

documents containing sufficient operative facts to demonstrate the lack of competent

counsel and that the defense was prejudiced by counsel’s ineffectiveness.          State v.

Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus. See also State v. Cole, 2

Ohio St.3d 112, 114, 443 N.E.2d 169 (1982)

       (“[w]here ineffective assistance of counsel is alleged in a petition for
       postconviction relief, the defendant, in order to secure a hearing on his
       petition, must proffer evidence which, if believed, would establish not only
       that his trial counsel had substantially violated at least one of a defense
       attorney’s essential duties to his client but also that said violation was
       prejudicial to the defendant.”)

If a petitioner fails to meet this burden, the trial court may dismiss the petition for

postconviction relief without a hearing. Jackson at 111.

       {¶10} In the instant case, Quinones argues defense counsel was ineffective for the

following reasons:    (1) trial strategy and tactics, i.e., defense counsel’s attempt to

discredit S.H.’s testimony with testimony from Quinones’s past sexual partners

suggesting that it was “anatomically impossible” for him to anally rape S.H. without

causing her serious physical injuries, and the allegations of sexual abuse were not credible

based on the size of Quinones’s penis; (2) evidentiary issues, i.e., Heather’s testimony

that their marriage was terrible and the testimony of Heather, Ruiz, and Det. O’Connell

commenting on Quinones’s credibility; and (3) trial preparation, i.e., calling Quinones as

a witness, and defense counsel was unprepared for voir dire.1

       {¶11} A postconviction petitioner who asserts a claim of ineffective assistance

bears the initial burden of submitting evidentiary documents containing sufficient

operative facts to demonstrate “that his attorney seriously erred and that the deficient

performance actually prejudiced him.” State v. Theis, 8th Dist. Cuyahoga No. 82161,

2003-Ohio-1968, ¶ 10, citing Strickland, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052

(1984); Jackson at syllabus. In order to satisfy the prejudice requirement, “the defendant


       1 We note that at appellate oral argument, Quinones’s appellate counsel
advised that defense counsel is facing disciplinary proceedings. We recognize,
however, that this information is outside of the record, and we cannot consider it for
purposes of this appeal.
must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would be different.” Strickland at 694.

       {¶12} Additionally, any claim for postconviction relief that was or could have been

raised on direct appeal is barred from consideration by the doctrine of res judicata. State

v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Res

judicata, however, does not bar claims for postconviction relief when the petition presents

evidence outside the record that was not in existence and was not available to the

petitioner in time to support a direct appeal. Cole, 2 Ohio St.3d at 114, 443 N.E.2d 169.

       {¶13} In the instant case, all of Quinones’s postconviction arguments going to the

effectiveness of counsel, except the “voir dire” argument, are based upon issues that were

in fact previously litigated in Quinones I. Therefore, these issues are barred by res

judicata.

       {¶14} Likewise, the “voir dire argument” is also barred by res judicata. Quinones

introduced the “voir dire argument” for the first time in his petition for postconviction

relief. In support of this argument, Quinones averred that defense counsel insisted on

going forward with a bench trial, after the original trial judge recused himself, because

defense counsel was unprepared for voir dire. This evidence, however, is insufficient to

demonstrate defense counsel’s ineffectiveness. It is not new evidence demonstrating

how he was prejudiced by defense counsel. Moreover, Quinones should have presented

this evidence to this court in his direct appeal. It was discussed on the record by the trial

court on the scheduled trial date, November 18, 2013. The trial court stated:
         I informed the parties [that I don’t feel comfortable acting in terms of a
         bench trial] and after some consideration a determination was made to keep
         the case here and to go with a jury trial and I’m comfortable with doing
         that.

         Because of it converting to a jury trial and the fact that counsel had not
         prepared for voir dire, we had a discussion in chambers. My suggestion
         was we would start at 1:30; I would conduct my portion of the voir dire, the
         prosecution would do their portion of the voir dire, and if they did not feel
         they were adequately prepared to conduct their portion of the voir dire, we
         would recess for the day and allow them to come back and continue
         tomorrow morning at nine.

         So, it now is scheduled for us to commence the jury selection process at
         1:30 this afternoon.

         {¶15} Thereafter, the court took a recess. When the matter was back on the

record, Quinones informed the new trial judge that he wished to proceed with a bench

trial.

         {¶16} Having failed to provide any evidentiary documents containing sufficient

operative facts to demonstrate the lack of competent counsel and that Quinones was

prejudiced by defense counsel’s ineffectiveness, the trial court did not abuse its discretion

when it dismissed the petition without a hearing.

         {¶17} The sole assignment of error is overruled.

         {¶18} Judgment is affirmed.

         It is ordered that appellee recover of appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
