[Cite as State v. Cooper, 2011-Ohio-1822.]




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

STATE OF OHIO                                      :
                                                   :    Appellate Case No. 23930
        Plaintiff-Appellee                         :
                                                   :    Trial Court Case No. 08-CR-1431
v.                                                 :
                                                   :    (Criminal Appeal from
DONALD COOPER                                :     (Common Pleas Court)
                                                   :
        Defendant-Appellant                        :
                                                   :
                                               ...........

                                              OPINION

                            Rendered on the 15th day of April, 2011.

                                               ...........

MATHIAS H. HECK, JR., by TIMOTHY J. COLE, Atty. Reg. #0084117, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building,
Post Office Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

DONALD COOPER, A589-973, Lebanon Correctional Institution, Post Office Box 56,
Lebanon, Ohio 45036
     Defendant-Appellant, pro se

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

FAIN, J.

        {¶ 1} Defendant-appellant Donald Cooper appeals from the denial of his

petition for post-conviction relief, without a hearing. Cooper contends that the trial

court should have held a hearing upon his claims that his trial counsel was ineffective

for having failed to obtain, and produce, various items of evidence at his trial.
                                                                                         2


       {¶ 2} We conclude that the trial court properly denied his petition without a

hearing. With one exception, Cooper’s claims that favorable evidence existed are

entirely speculative. The one exception is a record generated while Cooper was in

prison, following his conviction, indicating the existence of a physical impairment that

would limit his lifting ability to ten pounds. But it is clear that this record did not exist

at the time of trial, so trial counsel, who did present some evidence of Cooper’s

physical limitations, and used that evidence in his closing argument, can hardly have

been ineffective for having failed to submit a piece of evidence that did not exist at

the time of trial.



                                                 I

       {¶ 3} The facts are set forth in our opinion in Cooper’s direct appeal, State v.

Cooper, Montgomery App. No. 23143, 2010-Ohio-5517, ¶¶ 2-9, as follows:

       {¶ 4} “Shortly after 6:00 a.m. on March 29, 2008, twenty-year-old D.D. was

on her way home from work. When she got off of the bus in downtown Dayton, she

called her mother to pick her up, who told her daughter that she (the mother) did not

have enough gas. Not wanting to wait for another bus, D.D. decided to walk to the

Five Oaks neighborhood in which she lived.

       {¶ 5} “As D.D. walked north on Main Street, approaching Helena Street, she

heard a man at the bus stop across the street call out, ‘Hey girl. Come here.’ D.D.

looked up and saw the man (later identified as Cooper) walking toward her. D.D.

kept walking, but Cooper started walking faster, catching up to her. Cooper grabbed

D.D.'s arm and asked her where she was going, insisting that he wanted to talk to
                                                                                     3


her. The two talked for a couple of minutes, then D.D. told Cooper that she had to

get home to her daughter.

      {¶ 6} “Being only two blocks away from her home, D.D. tried to walk away,

but Cooper followed her, continuing to talk. Becoming more concerned, D.D. sent a

text message to her mother, asking for help. Cooper suddenly kissed D.D., who

pushed him away, and repeated that she needed to get home to her child. Cooper

grabbed her arm and told her, ‘You're not going anywhere.’ As Cooper dragged

D.D. into an alley, she hit the send button on her phone to text her mother again.

      {¶ 7} “In the alley, Cooper pushed D.D. onto her knees and shoved his penis

into her mouth. Cooper then withdrew his penis and forced D.D. to masturbate him.

 D.D. managed to call her mother, who could hear her begging someone to leave her

alone. The call was disconnected, and D.D.'s mother left the house to look for her

daughter. D.D. claimed that Cooper then turned her around and pulled down her

pants. D.D. testified on direct examination that Cooper vaginally raped her from

behind, but on re-direct examination, she testified that Cooper anally raped her.

When Cooper withdrew, D.D. ran down the alley to her home, where she told her

siblings what had happened. D.D.'s mother arrived home a couple of minutes later,

and the family went looking for Cooper, finding him back at the bus stop where D.D.'s

ordeal began. They saw a police officer at a nearby store and reported the attack.

      {¶ 8} “The officer arrested Cooper, and D.D. was taken to the hospital. She

suffered from cut, swollen, and bruised lips, bruising to both arms, and an abrasion to

her cervix.   Cooper was indicted on two counts of rape and one count of gross

sexual imposition.
                                                                                     4


       {¶ 9} “Cooper testified that he had sex with D.D., but he insisted that it was

consensual. He said D.D. was a prostitute and that he paid her $20 and shared

some crack cocaine with her in exchange for oral sex that morning. Cooper also

offered the testimony of Daphne Tillman, a drug addict and prostitute with an

extensive criminal history. Tillman claimed that she knew D.D. to be a prostitute.

She testified that she saw D.D. and Cooper smoking crack cocaine at the bus stop

before walking together down the alley.

       {¶ 10} “On rebuttal, the State offered the testimony of several police officers

who stated that D.D. did not appear to be under the influence of either drugs or

alcohol when they spoke to her. A detective in the vice squad was not familiar with

either D.D .'s name or her face, and at the time of this offense there were no police

records for D.D. for any crime, including prostitution.

       {¶ 11} “A jury found Cooper guilty of gross sexual imposition and one count of

rape for the act of fellatio, but not guilty of the other count of rape. The trial court

ordered Cooper to serve consecutive sentences of ten years for rape and eighteen

months for gross sexual imposition. * * *.”

       {¶ 12} On his direct appeal, Cooper’s conviction was affirmed. Id.

       {¶ 13} Cooper filed a petition for post-conviction relief. The trial court denied

the petition, without a hearing.       This appeal is taken from the order denying his

petition for post-conviction relief.



                                                 II

       {¶ 14} Cooper’s sole assignment of error is as follows:
                                                                                      5


       {¶ 15} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT

FAILED TO HOLD AN EVIDENTIARY HEARING BEFORE DISMISSING PETITION

FOR POST-CONVICTION RELIEF, A VIOLATION OF R.C. SECTION 2953.21 AND

THE 14TH AMENDMENT DUE PROCESS, AND SUCH FAILURE AMOUTED [sic]

TO PLAIN ERROR.”

       {¶ 16} A petitioner for post-conviction relief is not automatically entitled to a

hearing upon his petition. State v. Calhoun (1999), 86 Ohio St.3d 279. Although

Cooper, in his petition, has cited various federal and state constitutional grounds for

relief, they are all predicated upon various allegations that his trial counsel was

ineffective. The absence of evidentiary documents containing sufficient operative

facts to make out a claim of ineffective assistance of trial counsel is a proper basis

for denying a petition for post-conviction relief without a hearing. State v. Kapper

(1983), 5 Ohio St.3d 36, 39.

       {¶ 17} In support of his three claims for relief, Cooper set forth the following as

the facts supporting each claim:

       {¶ 18} “CLAIM NUMBER ONE

       {¶ 19} “ * * * *

       {¶ 20} “Trial counsel failed to have examined, and submitted key evidence

which could have substantiated claim of consensual sex and proved innocence.

       {¶ 21} “ * * * *

       {¶ 22} “A drug analysis of alleged victim’s bodily materials contained in the

State’s rape-kit will substantiate claim of ‘sex for drugs,’ and an inspection of alleged

victim’s clothings (also in evidence) will disprove element of force by dragging alleged
                                                                                        6


victim into allley.

       {¶ 23} “ * * * *

       {¶ 24} “CLAIM NUMBER TWO

       {¶ 25} “ * * * *

       {¶ 26} “Trial attorney failed to call an expert witness who could have

established that the prosecution’s medical documents and photos (taken hours after

alleged abrasions) were not consistent to the offenses of rape and gross sexual

imposition by force, and could have proved innocence.

       {¶ 27} “ * * * *

       {¶ 28} “If granted a hearing, Mrs. Janet Aubrey Jackson, Nursing Supervisor at

Good Sam. Hospital, Dayton, Ohio, who has a Master’s Degree, and seventeen (17)

years experience, will testify that had she been called at trial she could have

examined the State’s medical documents and photos, and possibly proved

innocence.

       {¶ 29} “CLAIM NUMBER THREE

       {¶ 30} “ * * * *

       {¶ 31} “Trial counsel failed to provide key evidence which could have shed

more doubt on the prosecution’s case, and no reasonable fact finder would have

found Petitioner guilty; to wit: medical records of Petitioner, and evidence of false

testimony and false written statements made by alleged victim.

       {¶ 32} “Attached hereto are the following evidence and affidavit: (1) A medical

document showing limitations of Petitioner after a physical exam done one working

day after he arrived at prison; and (2) Petitioner’s Affidavit.” (Underlining in original.)
                                                                                     7


       {¶ 33} The “Petitioner’s Affidavit” referred to is Cooper’s own affidavit, which

essentially repeats the allegations set forth in his petition.

       {¶ 34} We have the record, and the victim’s clothing was neither offered, nor

received, in evidence. Likewise, the rape kit was neither offered, nor received, in

evidence, although the Miami Valley Regional Crime Laboratory’s report concerning

its findings and conclusions from the rape kit was received in evidence as State’s

Exhibit 11.

       {¶ 35} The only documentary evidence Cooper submitted in support of his

petition have to do with his claim that he had a physical infirmity, or impairment, that

would have made it unlikely that he could have “dragged” his victim off the main

street into an alley. There are two problems with this claim. The first is that the

documents in question were generated in prison after Cooper was tried and

convicted. One of these is a statement that Cooper was issued an arm and wrist

splint on September 7, 2009, which, by its terms, evidently constituted a “pass,” e.g.,

permission for Cooper to possess the splint, which would otherwise be considered

contraband. The other is a “Medical Restriction(s) Statement,” dated November 17,

2008, reflecting the existence of three long-term restrictions beginning that date:

“Low Bunk,” “Low Range,” and “No lifting greater than 10 lbs.”

       {¶ 36} Cooper’s trial counsel presented evidence of Cooper’s physical

limitations at trial, and argued to the jury that these limitations made it unlikely that

Cooper could have forced his victim into the alley. Obviously, trial counsel cannot

be deemed to have been ineffective for having failed to offer the prison documents

Cooper submitted in support of his petition for post-conviction relief, since they did
                                                                                    8


not exist at the time of trial.

       {¶ 37} The second problem with this claim is that the evidence at trial did not

establish that Cooper “dragged” his victim into the alley in the most literal sense of

that verb. On direct, the victim testified that: “He grabbed my arm and took me to

the back of the alley.” When asked if she went with him willingly, or if he forced her,

she testified: “He forced me * * * .”

       {¶ 38} The victim was then asked some questions about what happened on

the way to and through the alley, in which the prosecutor used the verb “to drag,” but

the victim did not use that verb. On cross-examination, defense counsel used the

verb “to pull,” and the victim did use this verb, herself, e.g.:

       {¶ 39} “Q. Reached across, grabbed you with this arm, pulled you into the

alleyway?

       {¶ 40} “A. Yes. Because I was turned as he was pulling me.

       {¶ 41} “Q. Okay. You were turned meaning he pulled your body around?

       {¶ 42} “A. Yes.”

       {¶ 43} If we were to assume: (1) that the victim’s clothing from the time of the

alleged offense still existed, in the same condition, at the time that Cooper’s trial

counsel began representing him; and (2) that the victim’s clothing would have been

intact, without any unusual wear and tear, both of which assumptions are entirely

speculative, that still would not have been inconsistent with the victim’s testimony

concerning the offense. Therefore, we cannot find that trial counsel’s failure to have

sought the production of the victim’s clothing would have satisfied the prejudice

prong of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
                                                                                       9


674.

       {¶ 44} The rest of Cooper’s claims are entirely speculative.            There is no

reason to believe that an analysis of the victim’s hair would have established that she

was a crack cocaine addict. No evidence, beyond Cooper’s bare allegation, has

been submitted to establish that Janet Aubrey Jackson would have testified and

“possibly proved innocence.” And Cooper has offered no evidence, beyond his bare

assertion, that there was evidence of the victim’s false testimony and false written

statements, other than the discrepancies that trial counsel did, in fact, exploit at trial,

and the testimony of a witness, Daphne Tillman, that the victim appeared to be

smoking crack cocaine with Cooper before they went into the alley, which was, in

fact, presented to the jury at the trial.

       {¶ 45} We conclude that the trial court correctly found that Cooper’s petition

for post-conviction relief lacked sufficient support, in the form of documentary

materials other than his own, self-serving affidavit, to justify an evidentiary hearing

upon his petition. Cooper’s sole assignment of error is overruled.



                                                 III

       {¶ 46} Cooper’s sole assignment of error having been overruled, the order of

the trial court denying his petition for post-conviction relief is Affirmed.

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

DONOVAN and FROELICH, JJ., concur.

Copies mailed to:

Mathias H. Heck
Timothy J. Cole
                        10


Donald Cooper
Hon. Dennis J. Langer
