[Cite as State v. Kuck, 2018-Ohio-3290.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      DARKE COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-15
                                                 :
 v.                                              :   Trial Court Case No. 2014-CR-233
                                                 :
 KLINT P. KUCK                                   :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 17th day of August, 2018.

                                            ...........

R. KELLY ORMSBY, Atty. Reg. No. 0020615, Prosecuting Attorney, Darke County
Prosecutor’s Office, 504 South Broadway, Greenville, Ohio 45331
      Attorney for Plaintiff-Appellee

DWIGHT BRANNON, Atty. Reg. No. 0021657 and MATTHEW SCHULTZ, Atty. Reg. No.
0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402
     Attorneys for Defendant-Appellant

                                           .............




TUCKER, J.
                                                                                           -2-




       {¶ 1} Defendant-appellant Klint Kuck appeals from a judgment of the Darke County

Court of Common Pleas denying his petition for post-conviction relief. We find that

Kuck’s petition, along with its supporting materials, fails to demonstrate substantive

grounds for relief. Accordingly, the judgment of the trial court is affirmed.



                                   I. Procedural History

       {¶ 2} Kuck was indicted on two counts of selling or furnishing beer or intoxicating

liquor to an underage person in violation of R.C. 4301.69(A), two counts of rape (sexual

conduct when the other person’s ability to resist or consent is substantially impaired) in

violation of R.C. 2907.02(A)(1)(c), and one count of kidnapping in violation of R.C.

2905.01. The charges involve two separate victims and dates.1 Following trial, he was

convicted of both counts of selling or furnishing beer or intoxicating liquor to an underage

person, one count of rape, and one count of sexual battery in violation of R.C.

2907.03(A)(2), a lesser included offense of rape. Kuck was acquitted of the kidnapping

charge. Following a timely appeal, we affirmed the convictions. State v. Kuck, 2016-

Ohio-8512, 79 N.E.3d 1164 (2d Dist.).

       {¶ 3} On September 30, 2016, while his direct appeal was pending, Kuck filed a

petition for post-conviction relief in which he raised thirty-four grounds for relief. On

November 30, 2017, the trial court denied the petition. Kuck appeals.




1
 For a full discussion of the facts and procedural history of this case, refer to this court’s
decision in State v. Kuck, 2016-Ohio-8512, 79 N.E.3d 1164 (2d Dist.).
                                                                                          -3-


                          II. Ineffective Assistance of Counsel

       {¶ 4} Kuck’s first assignment of error states as follows:

       TRIAL    COUNSEL        PROVIDED       INEFFECTIVE          ASSISTANCE     OF

       COUNSEL.

       {¶ 5} Kuck contends that the trial court should have granted his petition for post-

conviction relief because he affirmatively demonstrated that his trial counsel was

ineffective. He specifically claims that trial counsel did not provide effective assistance

because he failed to have the recorded statements of the victims and other witnesses

transcribed, failed to utilize favorable eyewitnesses, and failed to hire a private

investigator.

       {¶ 6} Post-conviction relief is a collateral attack on a criminal judgment, not an

appeal of that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905

(1999).   “It is a means to reach constitutional issues which would otherwise be

impossible to reach because the evidence supporting those issues is not contained in the

record of the petitioner's criminal conviction.” State v. Murphy, 10th Dist. Franklin No.

00AP-233, 2000 WL 1877526, * 2 (Dec. 26, 2000). A post-conviction proceeding is a

civil proceeding and is controlled by R.C. 2953.21. The statute does not mandate an

automatic hearing for every post-conviction relief petition filed with the trial court. State

v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). A post-conviction relief

petition may be disposed of by summary judgment, and no hearing is necessary, if the

petition and its supporting evidentiary documents do not contain operative facts that

would, if proven, establish a substantive ground for relief. State v. Armstrong, 56 Ohio

App.3d 105, 108, 564 N.E.2d 1070 (1988).
                                                                                         -4-


       {¶ 7} This court reviews the decision of the trial court under an abuse of discretion

standard. State v. Quinn, 2017-Ohio-8107, __N.E.3d__, ¶ 20 (2d Dist.), citing State v.

Perkins, 2d Dist. Montgomery No. 25808, 2014-Ohio-1863, ¶ 27; State v. Jordan, 2d Dist.

Montgomery No. 27208, 2017-Ohio-7342, ¶ 10; State v. Hicks, 4th Dist. Highland No.

09CA15, 2010-Ohio-89, ¶ 10 (surveying other Ohio appellate districts). A trial court

abuses its discretion when its decision demonstrates an attitude that is arbitrary,

capricious or unreasonable.     Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶ 8} When a convicted defendant alleges that he has been denied the effective

assistance of counsel, he must demonstrate that counsel's performance was so deficient

that he was not functioning as the counsel guaranteed under the Sixth Amendment to the

United States Constitution, and that counsel's errors prejudiced him so as to deprive him

of a reliable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In assessing

counsel's performance, “an objective review of counsel's performance must be conducted

in light of professional norms prevailing when the representation took place.” State v.

Herring, 142 Ohio St.3d 165, 2014–Ohio–5228, 28 N.E.3d 1217, ¶ 68, citing Bobby v.

Van Hook, 558 U.S. 4, 7, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009); Strickland, at 688.

“Under the deficient-performance prong, the court should ‘indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance.’ ”

Herring at ¶ 68, quoting Strickland at 689. “Hindsight is not permitted to distort the

assessment of what was reasonable in light of counsel’s perspective at the time, and a

debatable decision concerning trial strategy cannot form the basis of a finding of
                                                                                             -5-

ineffective assistance of counsel.” State v. Jordan, 2d Dist. Montgomery No. 27208,

2017-Ohio-7342, ¶ 21 (Citation omitted). In the context of a petition for post-conviction

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.” State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169

(1982).

         {¶ 9} Kuck first contends that trial counsel was ineffective for failing to call two

eyewitnesses to testify on his behalf. Each witness would have testified regarding the

victim we referred to as “Jane” in our decision on Kuck’s direct appeal.       Specifically, he

claims that Mitch Engle and Michael Brown would have provided testimony favorable to

his defense.     Affidavits of both men are attached to the petition for relief.       In their

affidavits, both men aver that they informed trial counsel of the information set forth in

their affidavits, but counsel informed them that their testimony would not be needed at

trial.    Kuck contends that the failure to utilize these witnesses cannot constitute

reasonable trial strategy as their testimony would have discredited the claims of the

victims. We disagree.

         {¶ 10} Counsel’s failure to call a witness whose testimony could allow a jury to

acquit may rise to the level of ineffective assistance of counsel. State v. Jenkins, 2d Dist.

Miami No. 2003-CA-1, 2003-Ohio-4428, ¶ 7. However, decisions concerning whether a

witness should be called involve trial strategy, and such decisions “will often fall within the

range of [presumptively acceptable] trial strategy.” Id. quoting State v. Johnson, 2d Dist.

Montgomery No. 16803, 1998 WL 453768, *5.
                                                                                       -6-


      {¶ 11} Engle’s affidavit testimony was, in most respects, consistent with Kuck’s

trial testimony concerning Jane’s interaction with Kuck at the bar and the events which

occurred at Kuck’s home.      Counsel, given this, may have concluded that Engle’s

testimony was not needed, since he knew that Kuck was going to testify, and that its

presentation created the risk, especially during cross-examination, that Engle’s testimony

would depart from Kuck’s anticipated testimony. The decision not to call Engle as a

witness may be debatable, but, as noted, a debatable trial strategy decision cannot

constitute ineffective assistance of counsel.     Engle’s second affidavit recounts an

encounter he had with Darke County Sheriff’s Detective Haws wherein Haws, premised

upon Engle’s cooperation with Kuck’s prosecution, offered Engle leniency in an unrelated

matter, and Haws, in the same conversation, suggested that Engle could potentially be

charged with aiding and abetting Kuck’s conduct. There is no indication in the record

that counsel had any knowledge of this encounter. Thus, counsel’s failure to present

Engle’s testimony concerning his interaction with Haws cannot constitute ineffective

assistance of counsel. And, even assuming counsel had knowledge of the Engle-Haws

interaction, a decision not to call Engle to recount the discussion would not amount to

ineffective assistance of counsel. This is so because the Engle-Haws discussion was

not directly relevant to that which occurred between Kuck and Jane, and placing Engle

on the witness stand to recount the interaction would have allowed cross-examination of

all issues which, as already noted, created the possibility that Engle’s testimony would

not square with Kuck’s anticipated testimony.

      {¶ 12} Brown’s affidavit averred that, during the time he observed Jane, the other

victim was not impaired nor served drinks. He also averred that he thought she was
                                                                                         -7-


“trouble” because she appeared to be interested in Kuck’s wealth. However, Brown did

not aver that he watched the victim and Kuck the entire time that they were together.

Trial counsel did call numerous other individuals, four of whom also claimed to be

eyewitnesses to the events, as witnesses at trial. Thus, counsel may have concluded

that Brown’s testimony did not add any useful testimony to that of the other eyewitnesses.

Therefore, we cannot conclude that Kuck demonstrated counsel was ineffective for failing

to utilize Brown and Engle.

         {¶ 13} Kuck next contends that counsel was ineffective because he did not cause

the statements of the victims, made to the police and recorded on audiotape, to be

transcribed. Kuck contends that without a transcription of those statements for use

during trial, counsel was not able to conduct an effective cross-examination of the victims.

Specifically, he claims counsel was not able to properly impeach the victims.

         {¶ 14} Kuck raised this claim in his direct appeal. We addressed the argument

and concluded that “[c]ounsel cross-examined both victims at trial using copies of their

prior written statements. And parts of the recorded interviews were played during the

trial.   There is certainly nothing close to a showing here that the jury would have

obviously come to different conclusions about Kuck’s guilt if only transcripts of some

pretrial interviews had been obtained and used.” Kuck, 2016-Ohio-8512, 79 N.E.3d

1164, ¶ 76 - 81. Since this argument was raised in the direct appeal, it is now barred by

the doctrine of res judicata.2


2 In State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), the Ohio Supreme Court
explained that “[u]nder 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 defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial, which
                                                                                         -8-


       {¶ 15} Kuck attempts to overcome the res judicata bar by including the transcripts

of both victims’ audio statements as exhibits to his petition. However, this does not

change our analysis of his argument. It is clear from a review of the trial record that

counsel had his own notes regarding what was said by the victims during the audiotaped

interviews, and that counsel used these notes during cross-examination. Further, with

regard to one victim, counsel used the audio recording to aid in his cross-examination.

There is nothing contained within the transcripts of the victims that would compel a finding

of ineffective assistance of counsel. Thus, we conclude that the trial court did not err in

finding that this claim lacked merit.

       {¶ 16} Next, Kuck raises the same argument with regard to other witnesses whose

statements were not transcribed by trial counsel for use at trial. Specifically, he states

that “the State provided trial counsel with approximately twenty-two recordings taken

during law enforcement interviews with potential witnesses.        Trial counsel failed to

prepare these recorded statements for use at trial by having them transcribed. Upon

information and belief, trial counsel failed to even review most of these recordings.”

       {¶ 17} While the petition does contain the generalized self-serving claim that

counsel did not review the recordings, it is devoid of any evidence to confirm the

statement. There are no affidavits containing sworn statements that counsel failed to

review the documents. Nor is there any evidence to support a finding that counsel failed

to transcribe the statements. Further, even if the statements were not transcribed, the

petition does not set forth any operative facts that would cause us to conclude that



resulted in that judgment or conviction, or on an appeal from that judgment.” Id. at 113.
                                                                                          -9-


counsel’s representation was adversely affected. In short, there is nothing in this record

or in the post-conviction petition and attached exhibits that would support the conclusion

that counsel was ineffective in this regard.

       {¶ 18} Finally, Kuck contends that counsel was ineffective because he failed to hire

a private investigator. Again, we find nothing in the petition or its exhibits that would

support this claim. Kuck did not execute an affidavit in support of the petition, and there

was no other evidence to support a claim that counsel did not, in fact, utilize a private

investigator. Further, even if counsel failed to hire an investigator, we cannot conclude

that he was ineffective. The record shows that counsel submitted a witness list of 46

witnesses. He also submitted a list of six exhibits for use at trial. Clearly, this indicates

that counsel investigated the case. While Kuck did attach the affidavit and report of an

investigator who investigated the case for purposes of the post-conviction motion, there

is nothing contained within those documents to support a finding that trial counsel failed

to properly investigate the case.

       {¶ 19} Kuck failed to demonstrate operative facts that established substantive

grounds for relief. Accordingly, the first assignment of error is overruled.



                                    III. New Evidence

       {¶ 20} Kuck asserts the following as his second assignment of error:

       IN LIGHT OF THE NEW EVIDENCE ATTACHED TO THE PETITION FOR

       POST-CONVICTION RELIEF, THE FINDINGS OF GUILTY ON THE

       CHARGES OF RAPE, SEXUAL BATTERY, AND FURNISHING ALCOHOL

       TO AN UNDERAGE PERSON WERE AGAINST THE MANIFEST WEIGHT
                                                                                          -10-


       OF THE EVIDENCE.

       {¶ 21} Kuck’s second assignment of error addresses, it seems, the second part of

the Strickland test, the showing of prejudice. However, since Kuck has not demonstrated

that trial counsel’s representation was deficient, there is no reason to further discuss this

assignment of error. Accordingly, Kuck’s second assignment of error is overruled.3



                                      IV. Conclusion

       {¶ 22} Both of Kuck’s assignments of error being overruled, the judgment of the

trial court is affirmed.



                                      .............



FROELICH, J. and HALL, J., concur.



Copies mailed to:

R. Kelly Ormsby
Dwight Brannon
Matthew Schultz
Hon. Jonathan P. Hein




3
 Kuck, on July 23, 2018, filed a document entitled “Supplemental Argument Of Appellant
Klint Kuck.” The appellate rules make no provision for the presentation of a
supplemental argument. Nonetheless, we have reviewed the supplemental argument,
but its content does not alter our conclusions.
