[Cite as State v. Mathes, 2013-Ohio-4128.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLERMONT COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :       CASE NO. CA2013-02-014

                                                    :            OPINION
   - vs -                                                         9/23/2013
                                                    :

JAMES DAVID MATHES,                                 :

        Defendant-Appellant.                        :



     CRIMINAL APPEAL FROM CLERMONT COUNT COURT OF COMMON PLEAS
                          Case No. 2011CR00761



D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Paul Croushore, P.O. Box 75170, Cincinnati, Ohio 45275, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, James David Mathes, appeals a decision of the Clermont

County Court of Common Pleas denying his petition for postconviction relief. For the reasons

discussed below, we affirm the judgment of the trial court.

                                                 I. FACTS

        {¶ 2} In August 2011, appellant was indicted on charges of rape, unlawful restraint,

kidnapping, and tampering with evidence. The charges arose out of allegations that on June
                                                                    Clermont CA2013-02-014

4, 2010, appellant pinned A.C., a 14-year-old neighbor girl, down on a couch in his home for

three to five minutes, reached up her shorts, and digitally penetrated her vagina.

        {¶ 3} A jury trial was held in February 2012. At trial, A.C. testified that on June 4,

2010, appellant grabbed her while she was in his home, pinned her down on the couch,

reached up her shorts, and digitally penetrated her vagina. Emily Draper, a chemist with the

Ohio Bureau of Criminal Investigation, testified she tested DNA samples taken from

underneath appellant's fingernails and from his fingernail clippings. Draper explained that

she found A.C.'s DNA on the samples, that the samples taken from appellant's fingernails

produced more of A.C.'s DNA than appellant's own DNA, and that the amount of A.C.'s DNA

found on the nail scrapings was consistent with digital penetration of the mouth, vagina, or

anus.

        {¶ 4} Appellant testified at trial on his own behalf, maintaining that he had no contact

with A.C. Appellant suggested that A.C.'s DNA may have gotten on his fingernails when he

handled some of the clothing A.C. had left at his house for his niece to borrow. The jury

rejected appellant's version of events and found him guilty of rape, kidnapping, and unlawful

restraint. Appellant filed a motion for new trial, which was denied by the trial court on March

2, 2012. After finding that rape, kidnapping, and unlawful restraint were allied offenses of

similar import, the trial court sentenced appellant to five years in prison on the rape

conviction. Appellant directly appealed his conviction in March 2012, and this court affirmed

his conviction on April 29, 2013. State v. Mathes, 12th Dist. Clermont No. CA2012-03-028,

2013-Ohio-1732.

        {¶ 5} On December 6, 2012, after the filing of his direct appeal, appellant filed a

postconviction relief petition to vacate and set aside the judgment of conviction. Appellant

simultaneously requested a hearing on his petition and the appointment of an expert to

conduct DNA testing in accordance with R.C. 2953.71. Appellant's request for an expert and
                                               -2-
                                                                    Clermont CA2013-02-014

his petition for postconviction relief were denied by the trial court without a hearing on

January 16, 2013. Appellant now appeals the denial of his postconviction relief petition,

raising two assignments of error.

                                        II. ANALYSIS

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED IN DENYING THE [APPELLANT'S] POST-

CONVICTION PETITION WITHOUT A HEARING WHERE HE PROVIDED EVIDENCE OF

WHICH DEFENSE COUNSEL HAD NOT BEEN AWARE SHOWING THAT THE

PURPORTED VICTIM HAD APPROACHED THE [APPELLANT] A WEEK AFTER THE

SUPPOSED RAPE AND THAT A.C. AND HER FATHER LIED ABOUT THE INCIDENT.

       {¶ 8} In his first assignment of error, appellant argues the trial court erred in denying

his petition for postconviction relief without holding a hearing as the evidence he submitted in

support of his petition demonstrated that his trial counsel was unprepared to effectively

cross-examine A.C. at trial. Specifically, appellant contends his trial counsel failed to

adequately question and impeach A.C. on the issue of whether she voluntarily went to

appellant's house on June 14, 2010, ten days after the incident allegedly occurred. Appellant

contends that had his trial counsel been prepared to impeach and call into question A.C.'s

veracity as to this issue, the result of the trial would have been different as "A.C.'s veracity

was the key evidence in the case."

       {¶ 9} At trial, appellant testified that ten days after the incident allegedly took place,

A.C. came over and knocked on his door. Appellant explained that he called the Union

Township Police Department "to let them know [he] was having problems" with A.C., and "the

next thing [he] knows" the police, fire department, and a rescue squad responded to A.C.'s

house. At trial, A.C. denied going to appellant's house on June 14, 2010. Further, both A.C.



                                              -3-
                                                                                Clermont CA2013-02-014

and her father denied that the police had responded to A.C.'s house on June 14, 2010.1

Appellant now claims that if his trial counsel had adequately prepared to cross-examine A.C.,

his trial counsel would have impeached A.C.'s testimony by introducing a copy of a Union

Township Police Department Incident Run report ("Incident Run report"), which details a

dispatch to A.C.'s house on June 14, 2010 to treat a 10-year-old boy who had accidentally

stabbed himself. Appellant contends that he was prejudiced by "[t]he failure of trial counsel

to raise this issue [of A.C.'s attempt to visit on June 14, 2010] and [such] * * * evidence

should [have] be[en] considered by the jury in determining [whether] the purported victim is in

fact a sociopath who becomes enraged when thwarted, rather than being the victim of an

assault by [appellant]."

         {¶ 10} Petitions for postconviction relief are governed by R.C. 2953.21, which states,

in pertinent part:

                  (A)(1)(a) 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.


1. A.C.'s father testified at trial as follows:

                  Q: * * * Was there an incident approximately ten days later where the
                  police were called out to your house?

                  [FATHER]: Not that I'm aware of. There might have been.

                  Q: Might have been? Something you typically remember if police come out
                  to your house?

                  [FATHER]: It's possible.

                  ***

                  Q: Isn't it true that the police were called out to your house on June 14th
                  because [A.C.] had gone next door and rang Mr. Mathes doorbell?

                  [FATHER]: I don't recall that.
                                                       -4-
                                                                      Clermont CA2013-02-014

       {¶ 11} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, is a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist. Butler

Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, ¶ 8; State v. Calhoun, 86 Ohio

St.3d 279, 281 (1999). "In reviewing an appeal of postconviction relief proceedings, this

court applies an abuse of discretion standard." State v. Vore, 12th Dist. Warren Nos.

CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 10, citing State v. Wagers, 12th

Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶ 15. For this court to find an abuse of

discretion, we must find more than an error of judgment; we must find that the trial court's

ruling was unreasonable, arbitrary, or unconscionable. Id. A reviewing court will not overrule

the trial court's finding on a petition for postconviction relief where the finding is supported by

competent and credible evidence. Wagers at ¶ 15.

       {¶ 12} Furthermore, "[a]n evidentiary hearing is not automatically guaranteed each

time a defendant makes a petition for postconviction relief." Vore at ¶ 11. A trial court

properly denies a postconviction relief petition without a hearing if the supporting affidavits,

the documentary evidence, the files, and the records of the case do not demonstrate that the

petitioner set forth substantial operative facts to establish substantive grounds for relief.

Calhoun at paragraph two of the syllabus. See also R.C. 2953.21(C). The decision to grant

or deny the petitioner an evidentiary hearing is left to the sound discretion of the trial court.

Dillingham at ¶ 8.

       {¶ 13} We find no error in the trial court's decision to deny appellant's postconviction

relief petition without holding an evidentiary hearing. To prevail on an ineffective assistance

of counsel claim, an appellant must establish that his trial counsel's performance was

deficient and that such deficiency prejudiced the defense to the point of depriving the

appellant of a fair trial. Vore at ¶ 13, citing State v. Myers, 12th Dist. Fayette No. CA2005-12-

035, 2007-Ohio-915, ¶ 33. Trial counsel's performance will not be deemed deficient unless it
                                                -5-
                                                                    Clermont CA2013-02-014

"fell below an objective standard of reasonableness." Id., quoting Strickland v. Washington,

466 U.S. 688, 688, 104 S.Ct. 2052 (1984). To show prejudice, the appellant must prove

there exists "a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Id., quoting Strickland at 694.

       {¶ 14} In the present case, appellant's claim is barred by the doctrine of res judicata,

which states that "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 resulted in that judgment of conviction, or on

an appeal from that judgment." Wagers, 2012-Ohio-2258 at ¶ 10, citing State v. Szefcyk, 77

Ohio St.3d 93 (1996), syllabus. "Res judicata is a proper basis for dismissing a defendant's

petition for postconviction relief when the defendant, represented by new counsel on direct

appeal, fails to raise therein the issue of competent trial counsel and the issue could fairly

have been determined without resort to evidence outside the record." Id. at ¶ 11, citing State

v. Cole, 2 Ohio St.3d 112 (1982), syllabus. However, "there is an exception to the res

judicata bar when the petitioner presents competent, relevant, and material evidence outside

the record that was not in existence and available to the petitioner in time to support the

direct appeal." (Emphasis added.) Id. at ¶ 12, citing State v. Lawson, 103 Ohio App.3d 307,

315 (12th Dist.1995).

       {¶ 15} Here, appellant fails to identify any reason why his trial counsel's failure to

impeach A.C. with the Incident Run report could not have been raised on direct appeal.

From the record, it is clear that appellant knew of the existence of the report as early as

February 24, 2012, when he filed a motion for new trial and made mention of the Incident

Run report. Appellant's direct appeal of his conviction did not occur until March 30, 2012.

Any claim that his trial counsel was ineffective for failing to discover and use the Incident Run
                                               -6-
                                                                   Clermont CA2013-02-014

report could have, and should have, been raised on direct appeal.

       {¶ 16} Furthermore, appellant's claim that he was prejudiced by trial counsel's failure

to use such a report to impeach A.C.'s veracity is without merit. As discussed in appellant's

direct appeal, appellant's counsel spent a significant amount of time challenging A.C.'s

veracity at trial. Trial counsel focused on A.C.'s inconsistent statements and he thoroughly

cross-examined her about her changing statements to police. See Mathes, 2013-Ohio-1732,

¶ 11-12. Yet, the jury still found A.C. to be a credible witness. Given the overwhelming

evidence of appellant's guilt, including A.C.'s detailed description as to the manner in which

appellant assaulted her and the DNA evidence corroborating her account, appellant is unable

to prove with reasonable probability that the result of the trial would have been different had

his trial counsel impeached A.C.'s statement that the police had not responded to her house

on June 14, 2010.

       {¶ 17} Appellant's first assignment of error is, therefore, overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE TRIAL COURT ERRED IN DENYING THE POST-CONVICTION

PETITION WITHOUT A HEARING WHEN IT ALLEGED AND DEMONSTRATED THAT

DEFENSE COUNSEL WAS INEFFECTIVE AND THAT THE TRIAL COURT HAD BEEN

MADE AWARE OF THAT FACT PRIOR TO TRIAL.

       {¶ 20} In his second assignment of error, appellant argues the trial court erred in

denying his petition for postconviction relief without holding a hearing as the evidence he

submitted in support of his petition demonstrated that his trial counsel was unprepared for

trial and that the trial court judge knew counsel was not prepared. In support of his

argument, appellant asserts that his sister, Brenda Wilson, called the court the day before

appellant's trial began to inform the judge that appellant's counsel was unprepared and to

request a continuance.
                                              -7-
                                                                    Clermont CA2013-02-014

       {¶ 21} As an initial matter, we note that any claim that appellant was prejudiced by his

trial counsel's failure to adequately prepare for trial could have, and should have, been

brought on appellant's direct appeal. His claim is therefore barred by the doctrine of res

judicata. See Wagers, 2012-Ohio-2258 at ¶ 10.

       {¶ 22} Moreover, appellant's claim that his trial counsel was unprepared for trial is not

supported by affidavit, documentary evidence, or the record. Although appellant asserts in

his petition that his sister had called the court to request a continuance, nothing in the record

indicates that such a phone call ever took place. However, even if Wilson had called to

request a continuance, there is no evidence that Wilson had the right to request a

continuance on appellant's behalf or that she had any basis for her opinion that defense

counsel was unprepared for trial. After carefully reviewing the record, we find no evidence or

indication that appellant's trial counsel was unprepared for trial or that appellant was in any

way prejudiced by his trial counsel's performance.

       {¶ 23} Appellant's second assignment of error is, therefore, overruled.

                                      III. CONCLUSION

       {¶ 24} We find that the trial court did not abuse its discretion in denying appellant's

petition for postconviction relief without first holding an evidentiary hearing.

       {¶ 25} Judgment affirmed.


       S. POWELL and PIPER, JJ., concur.




                                               -8-
