[Cite as State v. Hall, 2013-Ohio-5856.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No.      13 CAA 03 0043
HARRY P. HALL JR.                              :                     13 CAA 03 0044
                                               :                     13 CAA 03 0045
                     Defendant-Appellant       :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Delaware County
                                                   Court of Common Pleas, Case
                                                   Nos.11CRI080452,11CRI090470, &
                                                   11CRI010031

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            December 30, 2013




APPEARANCES:




For Plaintiff-Appellee                             For Defendant-Appellant

CAROL HAMILTON O’BRIEN                             TODD WORKMAN
BRIAN WALTER                                       Box 687
Delaware County Prosecutor’s Office                Delaware, OH 43015
140 North Sandusky Street
Delaware, OH 43015
[Cite as State v. Hall, 2013-Ohio-5856.]


Gwin, P.J.

        {¶1}     Defendant-appellant Harry P. Hall, Jr. appeals from the April 25, 2013

Judgment Entry of the Delaware County Court of Common Pleas overruling his

Amended Motion to Vacate Conviction under R.C. 2953.21. Plaintiff-appellee is the

State of Ohio.

                                           Facts and Procedural History

        {¶2}     In February of 2012, a jury convicted Hall of one count of Aggravated

Menacing, four counts of Menacing, and eight counts of Violating a Protection Order

pursuant to three separate indictments.

        {¶3}     On February 22, 2013, this Court upheld Hall's convictions and sentences.

State v. Hall, 5th Dist. Delaware Nos. 12CAA030017, 12CAA030018, 12CAA030019,

2013-Ohio-660 [“Hall I”].

        {¶4}     On November 7, 2012, Hall pro se filed his post-conviction petition

pursuant to R.C. 2953.21. By Judgment Entry filed March 5, 2013, counsel was

appointed to represent Hall on his post conviction relief petition. Counsel filed an

amended petition for post conviction relief on March 11, 2013.

        {¶5}     On April 16, 2013, the trial court held an oral hearing on Hall's petition for

post conviction relief.

        {¶6}     At the hearing, Hall maintained that he was denied effective assistance of

trial counsel because 1). His trial attorney met with him only two days before the jury

trial; 2). Trial counsel failed to subpoena witnesses; 3). Trial counsel did not discuss the

case with Hall nor obtained physical evidence necessary for his defense; 4). Trial

counsel did not provide Hall a copy of the discovery filed in Hall’s cases until two days
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045                             3


before trial; and 5). Hall claims he was under the influence of medications at the time he

met with trial counsel and during the jury trial and was unable to participate fully and

understand the proceedings.1 Hall further offered evidence of an alleged plea

negotiation that he contends was not relayed to him by trial counsel.2 By Judgment

Entry filed April 25, 2013, the trial court denied the petition.

                                        Assignments of Error

        {¶7}    Hall raises the following assignment of error,

        {¶8}    “I. THE DEFENDANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED UNDER SECTION 16, ARTICLE I OF THE OHIO

CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION WAS VIOLATED BY TRIAL COUNSEL'S FAILURE TO

DISCLOSE A PROFFERED PLEA AGREEMENT, FAILURE TO ADEQUATELY KEEP

DEFENDANT APPRISED OF HIS CASE, AND FAILURE TO ADEQUATELY PREPARE

FOR TRIAL.”

                                                    I.

        {¶9}    In his sole assignment of error, Hall argues that the trial court erred in

dismissing his petition based on ineffective assistance of counsel. Specifically, Hall

argues that trial counsel was ineffective for failing to inform Hall of a plea offer, failed to

keep Hall adequately informed about his case, and failed to provide Hall with copies of

discovery until two days before trial.
        1
          Hall has neither briefed nor argued this ground in the present appeal. See, App.R. 12(A)(2);
App.R.16 (A)(7); State v. Norman, 5th Dist. Guernsey No. 2010-CA-22, 2011-Ohio-596, ¶29; State v.
Untied, 5th Dist. Muskingum No. CT20060005, 2007 WL 1122731, ¶141.
        2
          This ground was not raised in his petition for post conviction relief or amend petition for post
conviction relief. Rather, this contention was raised in Hall’s “Motion for Modification of Sentence and
Reduction” filed March 13, 2013. The trial court denied this motion by Judgment Entry filed March 18,
2013.
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045                4


       {¶10} A post conviction petition is a special statutory proceeding governed by

R.C. 2953.21. This statute provides in section (A)(1) that “[a]ny person who has been

convicted of a criminal offense or adjudicated a delinquent child 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 * * *.” See, also, State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph four of the syllabus.

       {¶11} When the trial court has conducted an evidentiary hearing relative to an

appellant's post conviction petition, a reviewing court should not overrule its findings if

they are supported by competent and credible evidence. State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58, accord State v. White, 118 Ohio St.3d

12, 2008–Ohio–1623, 885 N.E.2d 905, ¶ 45; State v. Mitchell, 53 Ohio App.3d 117, 119,

559 N.E.2d 1370 (8th Dist.1988). The weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. As the court in Gondor held,

the judge presiding “at a post conviction hearing is in a totally different position from the

appellate judges. The post conviction judge sees and hears the live post conviction

witnesses, and he or she is therefore in a much better position to weigh their credibility

than are the appellate judges.” Gondor, at ¶ 55.

                                       1. Plea offer.

       {¶12} In the case at bar, Hall first argues that trial counsel was ineffective

because counsel failed to convey a plea offer made by the state.
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045             5


       {¶13} During the hearing, Hall submitted a document marked Defendant’s

Exhibit A, which he contended, was an offer on behalf of the state. In reviewing this

contention the trial court found,

              Exhibit A purports to be an offer on the case 12 CR I-01-0031, the

       most recent case which was consolidated with the other two. No

       signatures appear on the document and the testimony did not support that

       it was a plea offer.

       {¶14} Our review of Defendant’s Exhibit A leads us to conclude that the trial

court did not abuse its discretion. The document has signature lines for the assistant

prosecutor, defense counsel and the defendant. None is signed. No date appears

anywhere on the document. No recommendations or agreements are detailed by any

party within the document.

       {¶15} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Hall must show counsel's performance fell below an

objective standard of reasonable representation and but for counsel's error, the result of

the proceedings would have been different. 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 other words, Hall must show that counsel's conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

       {¶16} Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), concerned the

right to effective assistance of counsel with respect to communicating formal plea offers
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045              6

to a criminal defendant. Id. at 1408. The court in Frye held that “defense counsel has

the duty to communicate formal offers from the prosecution to accept a plea on terms

and conditions that may be favorable to the accused.” Id. (Emphasis added). The

Court’s decision was based on “[t]he reality * * * that plea bargains have become so

central to the administration of the criminal justice system that defense counsel have

responsibilities in the plea bargain process, responsibilities that must be met to render

the adequate assistance of counsel that the Sixth Amendment requires in the criminal

process at critical stages.” Id., ––– U.S. ––––, 132 S.Ct. at 1407, 182 L.Ed.2d 379.

       {¶17} In Frye, defense counsel had received a letter from the prosecutor offering

a choice of two plea bargains. The offers were for a sentence substantially less than

what the defendant otherwise faced; both of the offers had an expiration date. Id., –––

U.S. ––––, 132 S.Ct. at 1404, 182 L.Ed.2d 379. Defense counsel never advised his

client of the offers, and they expired. Id. The defendant eventually pled guilty and was

sentenced to the lengthier sentence.

       {¶18} The Supreme Court concluded that, “[w]hen defense counsel allowed the

offer to expire without advising the defendant or allowing him to consider it, defense

counsel did not render the effective assistance the Constitution requires.” Id., ––– U.S. –

–––, 132 S.Ct. at 1408, 182 L.Ed.2d 379. The Supreme Court declined, however, “to try

to elaborate or define detailed standards for the proper discharge of defense counsel’s

participation in the process.” Id. In this regard, the Court reasoned that elaboration

would be neither “prudent nor practicable” because “[t]he alternative courses and tactics

in negotiation are so individual.” Id.
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045            7


       {¶19} The Supreme Court made it clear it was only deciding about ineffective

assistance of trial counsel claims where the prosecutor makes an offer which is

rejected,

       The prosecution and the trial courts may adopt some measures to help

       ensure against late, frivolous, or fabricated claims after a later, less

       advantageous plea offer has been accepted or after a trial leading to

       conviction with resulting harsh consequences. First, the fact of a formal

       offer means that its terms and its processing can be documented so that

       what took place in the negotiation process becomes more clear if some

       later inquiry turns on the conduct of earlier pretrial negotiations. Second,

       States may elect to follow rules that all offers must be in writing, again to

       ensure against later misunderstandings or fabricated charges. See N .J.

       Ct. Rule 3:9–1(b) (2012) (“Any plea offer to be made by the prosecutor

       shall be in writing and forwarded to the defendant’s attorney”). Third,

       formal offers can be made part of the record at any subsequent plea

       proceeding or before a trial on the merits, all to ensure that a defendant

       has been fully advised before those further proceedings commence. At

       least one State often follows a similar procedure before trial.

       Frye, 132 S.Ct. at 1408–1409.

       {¶20} In the case at bar, Defendant’s Exhibit A does not support Hall’s

contention that a formal plea offer was made by the state and communicated to his trial

counsel. No evidence was submitted to prove Hall’s trial counsel was aware of the

existence of Defendant’s Exhibit A or its contents. We also conclude the trial court did
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045               8


not err by finding Hall’s testimony to be vague, contradictory and to lack specificity. Hall

presented no other witness or evidence to support his testimony. There was no

testimony or affidavit from Hall’s trial attorney or the assistant prosecutor concerning the

plea negotiations. The record does not include an affidavit or testimony from any other

non-interested party with personal knowledge of the plea negations.

       {¶21} As self-serving testimony, the trial court could give it little or no weight.

See, State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999); State v. Kapper,

5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983) (letter or affidavit from the court,

prosecutors, or defense counsel alleging a defect in the plea process might be sufficient

to warrant a hearing, although defendant's own affidavit alleging same defect would not,

because the former are not self-serving declarations);State v. Elmore, 5th Dist. No.

2005-CA-32, 2005-Ohio-5740, ¶109. The judge who reviewed defendant's post

conviction relief petition and conducted the hearing was the same judge who presided

at the jury trial and the sentencing hearing. Thus, the trial judge was familiar with the

underlying proceedings and was in the best position to observe Hall and therefore

assess the credibility of his testimony during the hearing on his petition for post

conviction relief. Calhoun, supra, 86 Ohio St.3d 279, 286.

       {¶22} The petition, the documentary evidence, the files, the transcript and the

records do not demonstrate that Hall set forth sufficient operative facts to establish

substantive grounds for relief concerning counsel's effectiveness during plea

negotiations. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C.

2953.21(C). The trial court’s findings are supported by competent and credible

evidence.
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045                     9


                   2. Failure to meet with Hall and prepare for trial.

        {¶23} Hall next argues that his trial counsel was ineffective because counsel had

insufficient contact with Hall before his jury trial and failed to review discovery with him.

        {¶24} “Not every restriction on counsel’s time or opportunity * * * to consult with

his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right

to counsel.” Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).

“[T]here is generally no basis for finding a Sixth Amendment violation unless the

accused can show how specific errors of counsel undermined the reliability of the

finding of guilt.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d

657 (1984)United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657

(1984) fn. 26; Accord, State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d

1032.

        {¶25} In the case at bar, Hall points to no specific attorney errors that resulted

from the denial, and he makes no showing of prejudice. We cannot presume that the

defendant has suffered prejudice. Hancock, 108 Ohio St.3d 57, ¶112, citing, State v.

Coleman, 85 Ohio St.3d 129 at 144, 707 N.E.2d 476 (1999); State v. Sanders, 92 Ohio

St.3d 245 at 277, 750 N.E.2d 90 (2001).

        {¶26} The petition, the documentary evidence, the files, the transcript and the

records do not demonstrate that Hall set forth sufficient operative facts to establish

substantive grounds for relief concerning counsel's effectiveness concerning counsel’s

preparation and representation during Hall’s jury trial. Calhoun, 86 Ohio St.3d at

paragraph two of the syllabus; see R.C. 2953.21(C). The trial court’s findings are

supported by competent and credible evidence.
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 10


                           3. Failure to subpoena witnesses.

       {¶27} Hall’s final contention is that trial counsel failed to subpoena witnesses on

his behalf during trial.

       {¶28} “In order to obtain a reversal on ineffective assistance of counsel based on

a failure to subpoena a witness, a defendant must demonstrate that the testimony of the

witness would be of significant assistance to the defense.” State v. Reese, 8 Ohio

App.3d 202, 203, 456 N.E.2d 1253 (1st Dist.1982). Accord, State v. Varner, 5th Dist.

No. 98CA00016, 1998 WL 667620 (Sept. 14, 1998). We note the record is devoid of a

proffer of the testimony the purported witnesses. Based upon the status of the record

presently before this Court, we find Hall is unable to demonstrate the testimony would

have been of significant assistance to his defense. Further, he has not established that

there is a reasonable probability that the outcome of the trial would have been different

if counsel would have subpoenaed and called the witnesses on his behalf.

       {¶29} The petition, the documentary evidence, the files, the transcript and the

records do not demonstrate that Hall set forth sufficient operative facts to establish

substantive grounds for relief concerning counsel's failure to subpoena witnesses.

Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C. 2953.21(C). The trial

court’s findings are supported by competent and credible evidence.

       {¶30} Hall’s sole assignment of error is overruled.
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 11


      {¶31} For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Delaware County Court of Common Pleas is affirmed.

By Gwin, P.J., and

Hoffman, J., and

Delaney, J., concur




                                         _________________________________
                                         HON. W. SCOTT GWIN


                                         _________________________________
                                         HON. WILLIAM B. HOFFMAN


                                         _________________________________
                                         HON. PATRICIA A. DELANEY



WSG:clw 1203
[Cite as State v. Hall, 2013-Ohio-5856.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
HARRY P. HALL JR.                                 :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO.      13 CAA 03 0043
                                                                        13 CAA 03 0044
                                                                        13 CAA 03 0045



       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Delaware County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY
