[Cite as State v. Williams, 2013-Ohio-2706.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99357




                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                 MICHAEL WILLIAMS
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-550955

        BEFORE: Rocco, P.J., Blackmon, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: June 27, 2013

                                                  -i-
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:

       {¶1} Petitioner-appellant Michael Williams appeals from the trial court order that

denied his petition for postconviction relief.

       {¶2} Williams presents three assignments of error in which he claims (1) the

evidence attached to his petition was sufficient to warrant an oral hearing, (2) the trial

court misapplied the doctrine of res judicata, and (3) the trial court did not independently

prepare its findings of fact and conclusions of law.

       {¶3} A review of the record leads this court to disagree with Williams’s claims.

Consequently, his assignments of error are overruled, and the trial court’s order is

affirmed.

       {¶4} The facts surrounding Williams’s original convictions in his criminal case

were set forth by this court in State v. Williams, 8th Dist. No. 97730, 2012-Ohio-4277

(“Williams I”). In pertinent part, those facts are set forth as follows:

              The facts in the instant case arise from events that occurred on April
       27, 2010. The victim, Wilson Clark, received a telephone call from
       Williams who inquired about purchasing an automobile from Clark. Clark
       and Williams had known each other for many years prior to the incident.
       Clark and his girlfriend, Dominique Hearn, drove to meet Williams so that
       he could look at the car. Upon arriving at E. 133 and Holyoke in Cleveland,
       Ohio, Clark called Williams to tell him that he had arrived.

              Clark testified that Williams approached and entered the car. Clark
       stated that Williams pulled a gun and told Clark, “you know what it is.”
       Clark then explained that this was slang for a robbery. Clark testified that
       Williams was pointing the gun at him and he responded by giving Williams
       $9 that he had in his pocket.
              Clark stated that at this point, Williams had one leg in and one leg out of the car
       and that although Williams instructed him “[d]on't pull off in this car, man,” he began to
       drive hoping that Williams would fall from the car. Clark testified that when he began to
       drive, Williams shot him once in the side of his mouth which exited through his neck and
       once in the chest. Clark crashed his car into a house and was later transported to the
       hospital. Hearn was not injured during the altercation.

               Cleveland police officer Randy Hicks testified that he arrived at the scene shortly
       after the shooting. Officer Hicks testified that he repeatedly asked Clark who shot him
       and Clark responded “Mike Jones.” Officer Hicks stated that, from his experience
       working with the narcotics unit in this area, he knew that “Mike Jones” was Williams’
       alias. Officer Hicks testified that he went to Williams’ residence to search for him but
       that he was not at home.

             Dominick Allen testified that he witnessed, through the window of his apartment,
       Williams running from the car shortly after he heard gunshots. Allen also testified that he
       knew Williams prior to this incident because he and Williams lived in the same apartment
       complex.

               During the investigation, police interviewed Hearn and, during that interview, she
       identified Michael Houston as the shooter. During that same interview, however, she
       repeatedly denied having seen the shooter. Hearn testified that she identified Houston
       because she knew that she and Clark were meeting a “Mike” and that Michael Houston
       was the only person by that name whom she knew to live in the area. Houston was later
       dropped as a suspect in the case because he had an alibi for the entire day of the incident.

               Clark was unconscious for nearly a month after the incident and awoke on May 17,
       2010, in the hospital. Shortly after that date, Clark identified Williams from a police photo
       array. A blind administrator was later used to present the same photo array to Clark. He
       again identified Williams as the shooter. At the time of trial, Clark made an in-court
       identification of Williams as the man who shot him on April 27, 2010.

              Williams waived his right to a jury and the court convicted him of two counts of
       attempted murder with one and three-year firearm specifications, two counts of felonious
       assault with one and three-year firearm specifications, two counts of aggravated robbery
       with one and three-year firearm specifications and two counts of improperly handling a
       firearm in a motor vehicle. He was sentenced to serve 15 years with five years of
       postrelease control.

(Emphasis added.) Id. at ¶ 2-9.
       {¶5} In his direct appeal of his convictions, Williams raised as his first assignment of error a

claim of ineffective assistance of trial counsel. Id. at ¶ 10-25; this court responded to his arguments in

pertinent part as follows:

              Williams argues that his counsel should have impeached Dominick Allen with
       discrepancies in his statements. In a supplemental discovery response filed by the state of
       Ohio on October 18, 2011, the state provided that Allen, on October 17, 2011, reported
       that he did not know who he saw running from the car “when confronted with his written
       statement, it was the defendant he saw jump from the vehicle following the gunshots.”

              ***

               With respect to witness Allen, his initial identification was that of the appellant
       and, over one year later, he indicated to the prosecuting attorney that he did not know who
       it was that jumped from the vehicle. However, when presented with his written statement,
       he acknowledged that it was the appellant that he had seen jump.

              ***

              The choice to impeach a witness is a trial tactic. The Supreme Court of Ohio has

       held, “we will not second-guess trial strategy decisions, and a court must indulge a strong

       presumption that counsel’s conduct falls within the wide range of reasonable professional

       assistance.” State v. Mason, 82 Ohio St.3d 144, 157-158, 1998 Ohio 370, 694 N.E.2d 932

       (1998) (overruled on other grounds). Furthermore, “Debatable trial tactics do not

       constitute a denial of effective assistance of counsel.” State v. Clayton, 62 Ohio St.2d 45,

       49, 402 N.E.2d 1189 (8th Dist. 1980). Here, trial counsel’s decision not to impeach must

       be granted deference.

              ***

              Williams also argues that his defense counsel never offered evidence to show that

       Williams * * * told officers that he knew nothing about the shooting and that he was at
     his girlfriend’s house at the time of the incident. This information was provided to defense

     counsel in supplemental discovery filed by the state on October 20, 2011. Williams does

     not explain why it was error for his counsel to not use this evidence, nor does he establish

     the likelihood of a different outcome if it were to have been used. The omission of this

     evidence by trial counsel was a tactical decision that we will not second-guess.

            Williams next argues that Hearn related to the state on
     June 22, 2011, that she was told by Clark that she “picked the wrong guy” from the photo
     array shown to her when she identified Michael Houston as the assailant.

            On June 27, 2011, the state of Ohio filed a supplemental response to discovery that
     reflected that on June 22, 2011, Sgt. Cunningham related that Dominque Hearn stated to
     him that Michael Williams was not the shooter. Counsel failed to explore that information
     through examination of either Sgt. Cunningham or Dominique Hearn.

            We find this evidence to be irrelevant. At no point was Hearn utilized at trial to
     identify Williams as the shooter. She testified at trial as to what happened the day of the
     incident, and to explain why she initially identified Houston as the shooter. Hearn always
     maintained that she never saw the shooter. As such, this evidence cannot be used to
     establish a claim of ineffective assistance of counsel.

            Williams argues that trial counsel should have filed motions to preserve all
     evidence and a motion to suppress eyewitness identification as the East Cleveland Police
     Department lost the photo arrays that they had showed Clark the first time they visited
     him in the hospital. Williams claims that counsel should have tested the procedures used
     in administering the photo arrays. This does not create evidence that had this error not
     occurred there is a reasonable probability of a different outcome. Clark identified
     Williams in a second identical photo array administered by a “blind administrator” and
     also in open court during trial. The photo array that was lost does not somehow nullify
     the other three instances wherein Clark identified Williams as the shooter. Further, Clark
     knew Williams for many years prior to the incident.

(Emphasis added.)
      {¶6} Because each of his assertions was rejected, Williams’s claim of ineffective assistance

failed. Id. During the pendency of his direct appeal of his convictions, Williams filed a petition for

postconviction relief pursuant to R.C. 2953.21.

      {¶7} Williams claimed in his petition that he had received ineffective assistance of counsel in the

trial proceedings. In particular, Williams claimed that counsel failed to: (1) investigate his case to

check his alibi, (2) confer with him to prepare a defense, (3) explain the implications before Williams

waived his right to trial by jury, and (4) file a motion to suppress the identification testimony due to

improper police procedure.

             {¶8} Williams attached to his petition his affidavit, in which he merely averred that

      the allegations he made in his petition were true. He also attached copies of documents.

      One of these purported to be a sign-in sheet for an Alcoholics Anonymous meeting that

      took place on April 27, 2010 and that he asserted contained his signature. Others

      purported to be inmate request forms that indicated Williams had made numerous

      requests for his trial counsel to visit him prior to the commencement of his trial.

             {¶9} The state filed an opposition brief. Subsequently, the trial court denied

      Williams’s petition.

             {¶10} Two months later, Williams filed a request for findings of fact and

      conclusions of law. The state responded to Williams’s request by filing for the trial

      court’s consideration proposed findings of fact and conclusions of law.

             {¶11} Six weeks after the state’s response, the trial court issued an order that

      clearly adopted the state’s proposals in their entirety.      After outlining the evidence
       adduced at trial and setting forth the relevant parts of this court’s opinion in Williams I,

       the court found that Williams’s materials submitted in support of his petition did not

       constitute admissible evidence and that Williams’s claims were barred by the doctrine of

       res judicata, because they were, or could have been, raised in his direct appeal.

                {¶12} Williams appeals from the trial court’s order with three assignments of

       error.

                   I. Defendant was denied due process of law when [the] court
             dismissed his petition for post-conviction relief without an evidentiary
             hearing.
                   II. Defendant was denied due process of law when the court
             dismissed his petition based on an erroneous application of res judicata.
             III. Defendant was denied due process of law when the court did not
       independently prepare findings of fact and conclusions of law.

       {¶13} Williams argues in his assignments of error that he supplied evidence that was sufficient

to warrant an oral hearing on his petition, that the trial court improperly utilized the doctrine of res

judicata in denying his petition, and that, because the trial court adopted the state’s proposed findings of

fact and conclusions of law, the court did not independently review the record. The record, however,

supports none of these arguments.

       {¶14} A trial court is not required to hold a hearing on a petition for postconviction relief if the

record and the petition fail to show that the defendant is entitled to relief. State v. Calhoun, 86 Ohio

St.3d 279, 714 N.E.2d 905 (1999). The statute specifically reads that “[u]nless the petition and the

files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a

prompt hearing on the issues * * * .” R.C. 2953.21(E); State v. Jones, 8th Dist. No. 83601,

2004-Ohio-3868.
       {¶15} In considering a petition, the pivotal question for the trial court is whether,

upon consideration of all the files and records pertaining to the underlying proceedings

and any supporting evidence attached, the petitioner has set forth “sufficient operative

facts to establish substantive grounds for relief.”      Calhoun, paragraph two of the

syllabus.       The trial court acts as a gatekeeper in determining whether a hearing is

warranted. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77.

       {¶16} The trial court’s “gatekeeping” function in the postconviction relief process

is entitled to deference, including its decisions regarding the sufficiency of the facts set

forth by the petitioner and the credibility of his affidavit. State v. West, 8th Dist. No.

98680, 2013-Ohio-826, ¶ 9, citing Calhoun.          This court reviews the trial court’s

decisions for an abuse of discretion. Id. In this case, the trial court did not abuse its

discretion in either declining to conduct an evidentiary hearing or applying the doctrine of

res judicata.

       {¶17} R.C. 2953.21 affords a prisoner postconviction relief “only if the court can

find that there was such a denial or infringement of the rights of the prisoner as to render

the judgment void or voidable under the Ohio Constitution or the United States

Constitution.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four

of the syllabus. A postconviction petition is not intended to provide a petitioner a second

opportunity to litigate his or her conviction. State v. Hessler, 10th Dist. No. 01 AP-1011,

2002-Ohio-3321, ¶ 23.
       {¶18} Rather than a direct appeal, a petition for postconviction relief is a collateral

civil attack on a criminal judgment. State v. Easley, 10th Dist. No. 09AP-10,

2009-Ohio-3879, ¶ 9, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67

(1994). The petition is meant to get to constitutional issues that would otherwise be

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

record. Easley at ¶ 9.

       {¶19} Based upon that rationale, constitutional issues cannot be considered in

postconviction proceedings brought pursuant to R.C. 2953.21 where they have already, or

could have, been fully litigated by the defendant, either before his judgment of conviction

or on direct appeal from that judgment. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), at paragraph seven of the syllabus; State v. McCullough, 78 Ohio App.3d 587,

591, 605 N.E.2d 962 (1992). Issues properly raised in a petition for postconviction relief

are only those which could not have been raised on direct appeal because the evidence

supporting such issues is outside the record. State v. Milanovich, 42 Ohio St.2d 46, 50,

325 N.E.2d 540 (1975). If an issue has, or should have been, raised on direct appeal, the

trial court may dismiss the petition on the basis of res judicata. State v. Dowell, 8th Dist.

No. 86232, 2006-Ohio-110, ¶ 10, citing Perry.

       {¶20} 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 both the lack of competent

counsel and that the defense was prejudiced by counsel’s ineffectiveness. (Emphasis
added.) 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) (“Where 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”).

       {¶21} “New” evidence attached to the petition does not automatically defeat the

res judicata bar. Rather, evidence outside the record must meet “some threshold standard

of cogency; otherwise it would be too easy to defeat the holding of Perry by simply

attaching as exhibits evidence which is only marginally significant and does not advance

the petitioner’s claim[.]” State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362

(1995), quoting State v. Coleman, 1st Dist. No. C-900811, 1993 Ohio App. LEXIS 1485

(Mar. 17, 1993). Moreover, the evidence dehors the record must not be evidence which

was in existence and available for use at the time of trial and which could and should

have been submitted at trial if the defendant wished to use it. Dowell, 8th Dist. No.

86232, 2006-Ohio-110, ¶ 10.

       {¶22} In this case, Williams provided nothing to the trial court to warrant an

evidentiary hearing. All of his assertions about his trial counsel’s alleged lack of effort

on his behalf were ones that were, or could have been, presented in Williams I. Indeed,

in Williams I, this court discussed the issues Williams presented in his petition and found
that: (1) trial counsel’s decision to forgo presenting evidence of Williams’s alleged alibi

was a tactical decision, (2) in light of the facts that the victim knew Williams and looked

at him directly during the incident, but his girlfriend did not and had not, preservation of

the photo arrays would not have changed the outcome of trial, and (3) Williams waived

his right to a jury, a decision that was placed on the record.

       {¶23} In addition, Williams attached no competent evidence to support his claim

that his trial counsel provided ineffective assistance. His affidavit was general and

conclusory, and none of the documents he provided was either verified or authenticated.

See State v. Richmond, 8th Dist. No. 97616, 2012-Ohio-2511, ¶ 10-12. At any event,

even if Williams’s documents were deemed of evidentiary quality, none established his

claim and all were in existence at the time of trial.

       {¶24} Based upon the foregoing, Williams’s first and second assignments of error

are overruled.

       {¶25} The argument Williams raises in his third assignment of error has been

addressed by this court in State v. Bradley, 8th Dist. No. 90290, 2008-Ohio-3536 as

follows:

               Bradley argues that the trial court improperly dismissed his petition
       for reasons other than res judicata without making findings of fact and
       conclusions of law. He argues that the trial court never engaged in personal
       fact-finding as required by R.C. 2953.21 because it adopted the State’s
       proposed findings * * * .

        Civ.R. 52 provide[s] that it is within the trial court’s discretion to “require any or
all of the parties to submit proposed findings of fact and conclusions of law.” Moreover,
this court has previously held that: “[i]n the absence of demonstrated prejudice, it is not
erroneous for the trial court to adopt, in verbatim form, findings of fact and conclusions
      of law which are submitted by the state.” State v. Thomas, Cuyahoga App. No. 87666,
      2006 Ohio 6588, citing State v. Powell (1993), 90 Ohio App.3d 260, 263, 629 N.E.2d 13;
      State v. Sowell (1991), 73 Ohio App.3d 672, 676, 598 N.E.2d 136.

              “A trial court may adopt verbatim a party’s proposed findings of fact and
      conclusions of law as its own if it has thoroughly read the document to ensure that it is
      completely accurate in fact and law.” Thomas, citing State v. Jester, Cuyahoga App. No.
      83520, 2004 Ohio 3611. Thus, “the trial court’s adoption of the findings of fact and
      conclusions of law submitted by the state does not, by itself, deprive the petitioner of a
      meaningful review of his petition for postconviction relief and does not constitute error *
      * * .” State v. Powell (1993), 90 Ohio App.3d 260, 629 N.E.2d 13.

      {¶26} Similarly, nothing in this case indicates that the trial court did not review the record and

the materials submitted before adopting the state’s proposed findings of fact and conclusions of law.

The trial judge was the same one who had presided over Williams’s trial, so he was familiar with

Williams’s demeanor when waiving the right to a jury trial, the manner in which trial counsel

conducted the defense, the evidence of Williams’s guilt, and the accuracy of the state’s proposed facts.

Additionally, the state applied the appropriate legal analysis to the facts presented. Under these

circumstances, the trial court did not abuse its discretion in adopting the state’s proposed findings of

fact and conclusions of law.

             {¶27} Williams’s third assignment of error is also overruled.

             {¶28} The trial court’s order is affirmed.

             It is ordered that appellee recover from 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.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR
