[Cite as State v. Casey, 2018-Ohio-2084.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLINTON COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :      CASE NO. CA2017-08-013

                                                  :            OPINION
    - vs -                                                      5/29/2018
                                                  :

LARRY L. CASEY,                                   :

        Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                          Case No. CRI 2015-5239



Mike DeWine, Ohio Attorney General, Joel King, Assistant Attorney General, 441 Vine
Street, 1600 Carew Tower, Cincinnati, Ohio 45202, for plaintiff-appellee

Larry L. Casey, #A722225, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe,
Ohio 45601, defendant-appellant, pro se



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, Larry L. Casey, appeals from a decision of the Clinton

County Court of Common Pleas denying his petition for postconviction relief without holding a

hearing. For the reasons set forth below, we affirm the trial court's decision.

        {¶ 2} The underlying facts relevant to appellant's appeal were previously set forth by

this court in State v. Casey, 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013,
                                                                        Clinton CA2017-08-013

2017-Ohio-790 (hereafter, "Casey I") and are as follows:

              On March 25, 2015, the Clinton County Grand Jury returned an
              indictment charging Casey with failing to notify of his change of
              address as a Tier III sex offender. Thereafter, on June 22, 2015,
              the Clinton County Grand Jury returned another indictment
              charging Casey with five counts of sexual battery, five counts of
              rape, and one count of unlawful sexual conduct with a minor.
              With the exception of the one count alleging unlawful sexual
              conduct with a minor, all of the charges included a sexually
              violent predator specification. According to the bill of particulars,
              these charges stemmed from allegations Casey engaged in
              various sex acts with N.J., both before and after she turned 13
              years old.

              The matter ultimately proceeded to a four-day jury trial that
              concluded on January 8, 2016. At trial, N.J., who was then 15
              years old, testified to several instances where Casey had sexual
              intercourse with her both before and after she turned 13.
              According to N.J.'s testimony, these incidents occurred multiple
              times between 2009 and 2014 while she was living in both
              Warren County and Clinton County. Casey denied ever engaging
              in any sex acts with N.J. Rather, Casey claimed N.J. was lying
              and that the allegations were all part of a grand conspiracy
              between N.J. and her father.

              After both parties rested, the jury returned a verdict finding Casey
              guilty of two counts of sexual battery, one count of rape, and for
              having unlawful sexual conduct with a minor. The jury also found
              Casey guilty of failing to provide notice of his change of address.
              After the jury reached its verdict, the trial court held a hearing
              wherein it classified Casey as a sexually violent predator
              and sentenced him to serve a mandatory indefinite term of 25
              years to life in prison.

Casey I at ¶ 2-4.

       {¶ 3} Appellant directly appealed his convictions, arguing his trial counsel provided

ineffective assistance by (1) failing to object to hearsay testimony, (2) failing to object to

unqualified expert testimony, and (3) eliciting testimony that he was in jail at the time of trial.

Casey I at ¶ 10-14. Appellant also argued his conviction should be reversed as a result of

trial counsel's cumulative errors. Id. at ¶ 16-17. We found appellant's arguments to be

without merit, overruled his assigned errors, and affirmed his convictions. Id. at ¶ 18.


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       {¶ 4} Subsequent to our decision in Casey I, appellant moved to reopen his appeal

pursuant to App.R. 26(B). Appellant argued his appellate counsel was ineffective for either

neglecting to raise or failing to adequately explain trial counsel's ineffective representation as

it related to trial counsel's failure to (1) object to hearsay statements, (2) object to the

admission of evidence, (3) object to Evid.R. 404(B) evidence, (4) adequately prepare for trial,

(5) attempt to negotiate a plea deal, (6) research and develop a theory of defense, and (7)

object to improper statements by the prosecutor. Appellant also argued appellate counsel's

representation was deficient as appellate counsel failed to challenge the sufficiency and

weight of the evidence supporting appellant's convictions. Appellant's application to reopen

his appeal was denied by this court on August 10, 2017. State v. Casey, 12th Dist. Clinton

Nos. CA2016-01-001 and CA2016-06-013 (Aug. 10, 2017) (Entry Denying Application for

Reopening). Appellant asked the court to reconsider its denial of his motion and filed a

"Motion to Establish Good Cause" to reopen the appeal. His request was denied. State v.

Casey, 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013 (Nov. 8, 2017) (Entry

Denying Motion to Establish Good Cause).

       {¶ 5} While seeking to reopen his appeal, appellant also sought postconviction relief

in the trial court.    On April 3, 2017, appellant, through counsel, filed a Petition for

Postconviction Relief and Request for Hearing. In his petition, appellant argued he was

denied his constitutional right to effective representation as his trial counsel (1) had limited

communication with him, (2) failed to inform he faced a potential life sentence of

incarceration, (3) failed to discuss or explain the sexually violent predator specification

(hereafter, "SVP specification"), (4) failed to advise him about whether he should accept a

plea offer by the state, (5) elicited the fact that appellant was incarcerated during trial and

failed to request a curative jury instruction, (6) applied a flawed trial strategy, and (7) failed to

object to or seek to limit or restrict the state's use of Evid.R. 404(B) evidence. Attached to

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appellant's petition was his own affidavit and the affidavit of an independent defense

attorney. The defense attorney attested that he considered himself to be an "ordinary trial

counsel," he had read appellant's trial transcripts, and he found "[t]rial counsel's strategy * * *

was so outside the realm of legitimate trial strategy [that he] scoffed upon reading it." In his

own affidavit, appellant averred, in relevant part, as follows:

              5. Prior to trial, trial counsel communicated with me no more than
              three (3) times for a total of no more than forty-five (45) minutes.

              6. Trial counsel did not inform me I was facing a potential penalty
              of a life term in prison.

              7. Trial counsel did not discuss with or explain to me the sexually
              violent offender specification * * * or its potential consequences.

              8. Trial counsel never advised me whether or not I should accept
              the State of Ohio's offer or if I should present my case to trial.

              9. Trial counsel did not inform me I was testifying at trial until
              approximately five (5) minutes before taking the witness stand.

              ***

              12. I did not know of trial counsel's trial strategy nor did I agree
              with it.

       {¶ 6} The state filed a memorandum in opposition to appellant's petition for

postconviction relief and moved for summary judgment on the petition pursuant to R.C.

2953.21(E). The state argued that the majority of appellant's claims were bared by the

doctrine of res judicata, as they were either raised and addressed on appellant's direct

appeal in Casey I or were capable of being raised on direct appeal. As for those claims that

were not barred by res judicata, the state argued the record of proceedings contradicted the

assertions set forth in appellant's petition and his self-serving affidavit.

       {¶ 7} On July 17, 2017, the trial court dismissed appellant's petition for postconviction

relief without holding a hearing after determining substantive grounds for relief had not been

demonstrated. The trial court concluded that the majority of appellant's claims were barred

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by res judicata. As for those claims not barred by res judicata, the court found that the record

did not support appellant's claims of ineffective assistance of counsel.

         {¶ 8} Appellant appealed, pro se, raising three assignments of error.1

         {¶ 9} Assignment of Error No. 1:

         {¶ 10} APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE

PROCESS COMPORTING WITH THE FOURTEENTH AMENDMENT WHEN THE TRIAL

COURT JUDGE ABUSED HIS DISCRETION AND DISMISSED THE PETITION FOR

POSTCONVICTION RELIEF.

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

dismissing his petition for postconviction relief without holding an evidentiary hearing as his

affidavit and the affidavit of the independent defense attorney set forth sufficient operative

facts to establish substantive grounds for relief. Specifically, appellant argues the record of

proceedings combined with the information set forth in the affidavits demonstrates trial

counsel made numerous mistakes leading up to and during trial, failed to sufficiently prepare

for trial, and employed a strategy that was "outside the realm of [a] legitimate trial strategy."

Appellant contends trial counsel's errors prejudiced his right to a fair trial.

         {¶ 12} 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



1. We note that appellant has attached as exhibits to his appellate brief letters and affidavits that were obtained
subsequent to the filing of his petition for postconviction relief and the trial court's dismissal of said petition.
These letters and affidavits, which seek to further explain and describe trial counsel's alleged deficient
representation, do not appear in the trial court record. Pursuant to App.R. 9(A)(1), "[t]he original papers and
exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy
of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all
cases." An appellate court "is confined to the record, and cannot consider evidence offered for the first time on
appeal." State v. Garr, 12th Dist. Butler No. CA2009-01-014, 2009-Ohio-6241, ¶ 23. Therefore, as the letters
and affidavits do not appear in the trial court record, they are not properly before us and will not be considered on
appeal.


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St.3d 279, 281 (1999). Postconviction relief petitions are governed by R.C. 2953.21, which

states, in pertinent part, 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 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. The petitioner may
              file a supporting affidavit and other documentary evidence in
              support of the claim for relief.

R.C. 2953.21(A)(1)(a).

       {¶ 13} Initial petitions for postconviction relief under R.C. 2953.21 may be resolved in

one of three ways. The trial court may (1) summarily dismiss the petition without holding an

evidentiary hearing pursuant to R.C. 2953.21(D), (2) grant summary judgment on the petition

to either party who moved for summary judgment pursuant to R.C. 2953.21(E), or (3) hold an

evidentiary hearing on the issues raised by the petition pursuant to R.C. 2953.21(F). State v.

Statzer, 12th Dist. Butler CA2017-02-022, 2018-Ohio-363, ¶ 12; State v. McKelton, 12th Dist.

Butler No. CA2015-02-028, 2015-Ohio-4228, ¶ 9.

       {¶ 14} "An evidentiary hearing is not automatically guaranteed each time a defendant

makes a petition for postconviction relief." State v. Vore, 12th Dist. Warren Nos. CA2012-06-

049 and CA2012-10-106, 2013-Ohio-1490, ¶ 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 sufficient operative facts to establish substantive grounds for relief.         State v.

Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 9. See also R.C.

2953.21(D).

       {¶ 15} Furthermore, a petition for postconviction relief may be dismissed without an


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evidentiary hearing when the claims raised are barred by the doctrine of res judicata. State

v. Perry, 10 Ohio St. 2d 175, 180 (1967). "Under 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 resulted in that judgment of conviction, or on an appeal from that

judgment." (Emphasis sic.) Id. at paragraph nine of the syllabus. Res judicata bars a

petitioner from "re-packaging" evidence or issues that either were or could have been raised

in trial or on direct appeal. State v. Rose, 12th Dist. Butler No. CA2012-03-050, 2012-Ohio-

5957, ¶ 20.

      {¶ 16} The presentation of competent, relevant, and material evidence outside the

trial record may defeat the application of res judicata. State v. Lawson, 103 Ohio App.3d

307, 315 (12th Dist.1995). Where a petitioner argues ineffective assistance of counsel

through a postconviction relief motion, the petitioner can avoid the bar of res judicata by

submitting evidence outside the record on appeal that demonstrates that the petitioner could

not have raised the claim based on information in the original record. Id. However,

"'[e]vidence presented outside the record must meet some threshold standard of cogency.'"

Statzer, 2018-Ohio-363 at ¶ 16, quoting Lawson at 315. If it does not meet this threshold, a

petitioner could overcome res judicata "'by simply attaching as exhibits evidence which is

only marginally significant and does not advance the petitioner's claim beyond mere

hypotheses and a desire for further discovery.'" Lawson at 315, quoting State v. Coleman,

1st Dist. Hamilton No. C-900811, 1993 Ohio App. LEXIS 1485, *21 (Mar. 17, 1993).

      {¶ 17} A trial court's decision to summarily deny a postconviction petition without

holding an evidentiary hearing is left to the sound discretion of the trial court. McKelton,

2015-Ohio-4228 at ¶ 11. The term "abuse of discretion" connotes more than an error of law

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or judgment; it implies the court's attitude was unreasonable, arbitrary, or unconscionable.

Statzer, 2018-Ohio-363 at ¶ 14.

       {¶ 18} Where the basis of a petition for postconviction relief is a claim of ineffective

assistance of counsel, the defendant must show that his or her counsel's actions were

outside the wide range of professionally competent assistance, and that prejudice resulted by

reason of counsel's actions. State v. Martin, 12th Dist. Warren Nos. CA2003-06-065 and

CA2003-06-066, 2004-Ohio-702, ¶ 12, citing Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052 (1984).       To show prejudice, a defendant must prove there exists "a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." State v. Wilson, 12th Dist. Madison No. CA2013-10-

034, 2014-Ohio-2342, ¶ 17, quoting Strickland at 694.

                   Res Judicata: Testimony of Incarceration, Curative
                           Instruction, and 404(B) Evidence

       {¶ 19} In the present case, we find no error in the trial court's decision to dismiss

appellant's petition for postconviction relief without holding an evidentiary hearing. Many of

the claims appellant set forth in his petition for postconviction relief are barred by the doctrine

of res judicata, as they were either raised on direct appeal in Casey I, 2017-Ohio-790, or

could have been raised on direct appeal. For instance, this court already addressed

appellant's complaints that his trial counsel was deficient for eliciting testimony that he was

incarcerated during trial and for not seeking a curative instruction for the same. We found

these arguments to be without merit. See Casey I at ¶ 13. Appellant is therefore barred by

the doctrine of res judicata from raising and litigating these issues in his postconviction

proceedings.

       {¶ 20} The doctrine of res judicata also bars review of appellant's Evid.R. 404(B)

claim. Whether trial counsel was ineffective for not objecting to or seeking to restrict the


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state's use of evidence that appellant previously sexually assaulted a minor was an issue

capable of being raised on direct appeal as resolution of the issue does not require or involve

evidence outside of the trial court record. The claim is therefore barred by res judicata. See

Perry, 10 Ohio St.2d at 180.

                 SVP Specification and Life Sentence of Incarceration

       {¶ 21} Appellant's argument that he is entitled to postconviction relief due to trial

counsel's failure to explain or discuss the SVP specification and counsel's failure to inform

appellant that he faced a life term of incarceration if convicted of rape with the specification

are without merit. Even accepting as true appellant's contentions that his trial counsel failed

to discuss the SVP specification and failed to inform him of the potential penalty he faced if

convicted, appellant is unable to demonstrate he was prejudiced by these alleged

deficiencies. The record supports the trial court's finding that it advised appellant about the

nature and severity of the charges he faced, including the SVP specification, as well as the

potential sentences that accompanied the charges. On the eve of trial, the court continued to

advise appellant of the penalties he faced if convicted, stating:

              THE COURT: [I]f [appellant] is found guilty of some of the
              charges we are looking at a mandatory life in prison no discretion
              of the Court, no possibility of parole. So we are taking about
              essentially if [appellant] is convicted, he would spend the rest of
              his life in prison.

              ***

              Okay, and your understanding [is] that if you are convicted of
              some of these crimes, uh the Court has no discretion in terms of
              the sentence; if you are found guilty you will be basically be sent
              to prison for life without the possibility of being released.

              [Appellant]: Yeah.

              THE COURT: Are you prepared to go forward with this?

              [Appellant]: Yes, Your Honor, I am.


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       {¶ 22} As appellant was advised of the SVP specification and of the fact that he faced

a sentence of life in prison if convicted, he cannot establish the prejudice prong of Strickland.

His claims, therefore, fail. See State v. Childs, 12th Dist. Butler No. CA2009-03-076, 2010-

Ohio-1814, ¶ 49 (noting that the failure to satisfy either the "performance" or "prejudice"

prong of Strickland is fatal to an ineffective assistance of counsel claim).

                                  Discussion of Plea Offer

       {¶ 23} Appellant's argument that he is entitled to postconviction relief due to trial

counsel's failure to advise him on whether or not he should accept a plea offered by the state

also fails. Pursuant to the offered plea, if appellant pled guilty to multiple rape charges, the

state would have dismissed the remaining charges and recommended an 18-year sentence,

rather than the mandatory indefinite sentence of 25 years to life in prison. Appellant rejected

the plea offer. In his affidavit in support of his petition for postconviction relief, appellant

asserted that "[t]rial counsel never advised me whether or not I should [have] accept[ed] the

State of Ohio's offer or if I should [have] present[ed] my case to trial."

       {¶ 24} To establish ineffective assistance of counsel occurring during plea

negotiations, a defendant who did not accept a plea offer must show not only deficient

representation but also that there is a reasonable probability that (1) the defendant would

have accepted the plea offer, (2) the offer would not have been withdrawn and would have

been accepted by the trial court, and (3) that the conviction or sentence, or both, under the

plea would have been more favorable to the defendant. Lafler v. Cooper, 566 U.S. 156, 164,

132 S.Ct. 1376 (2012).

       {¶ 25} The record demonstrates that the state's proposed plea deal was

communicated to appellant and appellant spoke with counsel about the plea offer. Appellant

rejected the offer, and trial counsel noted on the record, that

              [i]n all my discussions with Mr. Casey, I can assure the Court that

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              Mr. Casey does understand the gravity of the situation and he
              understands what the potential penalties are. His position from
              the beginning is that he would not plea[d] to something that he
              did not do. Obviously, his constitutional presumption is that he is
              innocent. Uh, he is maintaining that, doesn't see the need to
              plead guilty to anything, any lesser type of charge or anything that
              is negotiated with lesser time because he doesn't believe that he
              committed any of these acts. Uh, we have discussed that and for
              that reason there was no counteroffer.

       {¶ 26} The record further demonstrates that the court discussed the plea offer with

appellant. After appellant rejected the plea offer, the court asked appellant, "[A]nd there

have been no, after discussing with your attorney there is no counter proposals that you

instructed him to make in terms of trying to resolve this case?" Appellant responded, "That is

correct, Your Honor."

       {¶ 27} Although appellant believes trial counsel should have done more when

communicating the plea offer to him, appellant cannot establish that he would have accepted

the advice offered by counsel or that the trial court would have accepted the plea offer, even

if jointly presented by the parties. Appellant, therefore, cannot establish a claim of ineffective

assistance of counsel as it relates to the plea offer. See State v. Burton, 8th Dist. Cuyahoga

No. 100716, 2014-Ohio-4207, ¶ 13 (rejecting a claim of ineffective assistance of counsel for

the alleged failure to advise the defendant to accept an offered plea where the record

indicated the defendant was "not interested" in accepting a plea bargain).

           Preparation for Trial, Limited Communication, and Trial Strategy

       {¶ 28} Appellant also contends trial counsel was ineffective for failing to sufficiently

prepare for trial, for only meeting with him "three (3) times for a total of no more than forty-

five (45) minutes," for not giving him advance notice that he would be called in his own

defense at trial, for not discussing the nature of his testimony or the "benefits and detriments"

of testifying on one's own behalf, and for applying a "flawed trial strategy." Appellant

supported these contention with his own affidavit and the affidavit of an independent defense

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attorney who reviewed the record of the trial proceedings.

       {¶ 29} Where a petitioner attaches affidavits in support of his petition for

postconviction relief, the trial court "should give due deference to [the] affidavits sworn to

under oath * * * but may, in the sound exercise of discretion, judge their credibility in

determining whether to accept the affidavits as true statements of fact." Calhoun, 86 Ohio

St.3d at 284. In determining the credibility, or lack thereof, of affidavits submitted in support

of a petition for postconviction relief, a court should consider

              (1) whether the judge reviewing the postconviction relief petition
              also presided at the trial, (2) whether multiple affidavits contain
              nearly identical language, or otherwise appear to have been
              drafted by the same person, (3) whether the affidavits contain or
              rely on hearsay, (4) whether the affiants are relatives of the
              petitioner, or otherwise interested in the success of the
              petitioner's efforts, and (5) whether the affidavits contradict
              evidence proffered by the defense at trial.

Id. at 285. "Depending on the entire record, one or more of these factors or other factors

may be sufficient to justify the conclusion that an affidavit asserting information outside the

record lacks credibility. Such a decision should be within the discretion of the trial court." Id.

       {¶ 30} In the present case, the same judge who presided over the trial also reviewed

appellant's petition for postconviction relief. Therefore, though appellant claimed to have only

met with his attorney on three occasions in the six months that elapsed between trial counsel

being appointed and the case proceeding to trial, the court had knowledge of the multiple

pretrial hearings at which appellant appeared with his counsel.            The court also had

knowledge of efforts counsel had taken to represent his client and to prepare for trial,

including opposing the state's motion to consolidate the cases for trial, requesting a bill of

particulars, and seeking to have statements the victim made to a children services' agency

turned over in discovery. The record, therefore, contradicts appellant's self-serving affidavit

and demonstrates trial counsel took substantial steps to investigate the case and prepare for


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trial. See, e.g., State v. King, 12th Dist. Butler Nos. CA2013-11-199 and CA2014-06-138,

2014-Ohio-5393, ¶ 19 (finding a defendant's claim that trial counsel was unprepared for trial

was not supported by the record where counsel filed a bill of particulars, demanded

discovery, and sought leave to file a motion to suppress).

       {¶ 31} The record further contradicts appellant's statement that trial counsel failed to

discuss with him whether or not he should take the stand in his own defense. At trial,

appellant specifically stated he and trial counsel had discussed this issue. Prior to appellant

testifying, the following discussion was held:

              [Trial Counsel]: Your Honor, I believe when we return, Mr. Larry
              Casey himself wants to take the stand and testify on his own
              behalf.

              THE COURT: Okay. Mr. Casey, I don't often do this when a
              Defendant indicates that he or she would like to testify, but I'm
              going to at least advise you. You know, you do have a right to
              remain silent. Anything you say obviously here in court could be
              used against you, and you are presumed innocent of any
              wrongdoing, and there is no requirement that you take the stand
              and testify. If you do take the stand, you must answer questions
              of the State of Ohio's prosecutor truthfully, do you understand
              that?

              [Appellant]: I do, Your Honor.

              THE COURT: Have you gone over this issue as to whether or
              not you should testify and give up your right to remain silent with
              you attorney?

              [Appellant]: Yes, sir, I have.

              THE COURT: And after conferring [with] him, and talking to him,
              uh, it is your intention to testify in this case?

              [Appellant]: That's correct, Your Honor.

(Emphasis added.)

       {¶ 32} Given the foregoing, it is clear that appellant did discuss the issue of testifying

at trial with his attorney and that he was apprised of the "detriments" of testifying on his own


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behalf. Trial counsel was not deficient merely because appellant chose to testify on his own

behalf. See, e.g., State v. Ryan, 6th Dist. Wood No. WD-05-064, 2006-Ohio-5120, ¶ 23-24

(noting that "whether or not a defendant testifies is a purely tactical decision" and that the

"ultimate decision of whether a defendant will testify on his own behalf is the defendant's").

See also State v. Bey, 85 Ohio St.3d 487, 499 (1999) (noting that a defendant's right to

testify or not testify on his own behalf is a personal right that only the defendant can waive).

Appellant's arguments that counsel provided ineffective assistance for not communicating

with him or not adequately preparing for trial are, therefore, without merit.

       {¶ 33} As for appellant's claim that trial counsel applied a "flawed trial strategy," in his

defense of appellant, we note that "[t]he decision regarding which defense to pursue at trial is

a matter of trial strategy, and trial strategy decisions are not the basis of a finding of

ineffective assistance of counsel." State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-

053, 2014-Ohio-1584, ¶ 43. Although appellant submitted an affidavit by a defense attorney

who stated he found trial counsel's strategy "so outside the realm of legitimate trial strategy

[that he] scoffed upon reading it," the defense attorney did not specifically identify any

alleged errors or flaws in trial counsel's strategy. Rather than identifying specific instances

where trial counsel's arguments or strategies fell below the wide range of professionally

competent assistance, the defense attorney used broad, general, and conclusory language in

his affidavit to note his disagreement with trial counsel's strategy. The defense attorney's

affidavit, therefore, does not provide support for appellant's claim of ineffective assistance of

counsel.

       {¶ 34} Moreover, as the trial court noted when it rejected appellant's ineffective

assistance claim, "[t]he fact that another defense attorney may have employed a different

approach does not mean the alternative strategy fell below an objective standard of

reasonableness." "[T]here is a strong presumption that counsel has rendered adequate

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                                                                      Clinton CA2017-08-013

assistance and made all significant decisions in the exercise of reasonable professional

judgment." State v. Rowley, 12th Dist. Clinton No. CA2016-10-019, 2017-Ohio-5850, ¶ 62,

citing State v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. Here,

the strategy employed by trial counsel resulted in the jury finding appellant not guilty on two

counts of rape and two counts of sexual battery. The fact that trial counsel's defense

strategy was unsuccessful as to other counts in the indictment does not mean counsel's

representation amounted to ineffective assistance. See State v. Murphy, 12th Dist. Butler

No. CA2009-05-128, 2009-Ohio-6745, ¶ 43 ("the fact that the trial strategy was ultimately

unsuccessful or that there was another possible and better strategy available does not

amount to ineffective assistance of counsel").

       {¶ 35} Accordingly, for the reasons stated above, we conclude that the trial court did

not abuse its discretion in dismissing appellant's petition for postconviction relief without

holding an evidentiary hearing. Appellant's petition and the affidavits submitted in support of

said petition failed to contain sufficient operative facts to demonstrate a claim of ineffective

assistance of counsel. Appellant's first assignment of error is, therefore, overruled.

       {¶ 36} Assignment of Error No. 2:

       {¶ 37} APPELLANT         WAS      DENIED       HIS   FOURTEENTH          AMENDMENT

CONSTITUTIONAL DUE PROCESS RIGHTS WHEN HIS TRIAL COURT JUDGE DID NOT

RECUSE      HIMSELF      FROM      THE     POSTCONVICTION          PROCEEDINGS          AFTER

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WERE RAISED AGAIN[ST] THE

TRIAL ATTORNEY HE HAD RECOMMENDED.

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

by not recusing himself from the postconviction relief proceedings because the judge

"recommended to [a]ppellant that he have [trial counsel] assigned to represent him."

Appellant contends that the judge was therefore "biased towards any proceedings which

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attacked the effectiveness" of trial counsel.

       {¶ 39} "It is well settled that a judge who presided at trial will not be disqualified from

hearing a petition for postconviction relief in the absence of evidence of bias, prejudice, or a

disqualifying interest." In re Disqualification of Nastoff, 134 Ohio St.3d 1232, 2012-Ohio-

6339, ¶ 9. In the present case, appellant did not seek to have Judge John W. Rudduck

disqualified from proceeding over his petition for postconviction relief, as is permitted by R.C.

2701.03. Rather, appellant waited until his motion for postconviction relief was denied to

argue – for the first time on appeal – that Judge Rudduck should have recused himself from

the case as he was "biased."

       {¶ 40} We find no evidence in the record to support appellant's assertion that Judge

Rudduck personally "recommended" appellant's trial counsel or that the judge was biased in

reviewing and ruling on the petition for postconviction relief. The record reveals that

appellant's trial counsel was appointed by a magistrate on June 26, 2015 after appellant

indicated he was indigent and unable to obtain his own representation. Therefore, contrary

to appellant's assertions, Judge Rudduck did not personally recommend trial counsel and he

did not have a disqualifying interest in determining the merits of the petition for postconviction

relief. Judge Rudduck was not required to sua sponte recuse himself from proceeding over

the petition for postconviction relief.

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

       {¶ 42} Assignment of Error No. 3:

       {¶ 43} APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE

ASSISTANCE OF APPELLATE COUNSEL COMPORTING WITH THE SIXTH AND

FOURTEENTH AMENDMENT.

       {¶ 44} In his third assignment of error, appellant argues he received ineffective

assistance by his "appellate counsel," who in addition to representing appellant on his direct

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appeal in Casey I also filed appellant's petition for postconviction relief. Appellant argues his

appellate counsel was ineffective for (1) "failing to better argue that trial counsel was

ineffective for failing to competently implement a coherent trial strategy," (2) failing to prepare

an adequate strategy, (3) failing to argue that his trial counsel was ineffective for not

interviewing witnesses, and (4) failing to raise a Brady claim.

       {¶ 45} To the extent that appellant is seeking to challenge the representation he

received by his appellate counsel while on direct appeal in Casey I, we find that his

arguments are not properly before us. The proper vehicle to raise the issue of ineffective

assistance of appellate counsel is through an application to reopen the appeal made

pursuant to App.R. 26(B). See State v. Teets, 4th Dist. Pickaway No. 15CA31, 2016-Ohio-

7274, ¶ 16. Appellant previously sought to reopen his appeal to raise the issue of ineffective

assistance of appellate counsel, and this court denied his request. See State v. Casey, 12th

Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013 (Aug. 10, 2017) (Entry Denying

Application for Reopening) and State v. Casey, 12th Dist. Clinton Nos. CA2016-01-001 and

CA2016-06-013 (Nov. 8, 2017) (Entry Denying Motion to Establish Good Cause). Appellant

cannot circumvent our denial of his application to reopen his appeal by now raising

arguments relating to appellate counsel's alleged deficiencies on direct appeal.

       {¶ 46} As for appellant's arguments that his appellate counsel provided ineffective

representation as it related to the filing of his petition for postconviction relief, we note that

the right to effective assistance of counsel guaranteed by the Sixth Amendment to the United

States Constitution "does not extend to state postconviction relief proceedings." State v.

McKelton, 12th Dist. Butler No. CA2015-10-183, 2016-Ohio-3216, ¶ 31. See also State v.

Wesson, 9th Dist. Summit No. 28412, 2018-Ohio-834, ¶ 10 ("there is no constitutional right to

the effective assistance of post-conviction counsel"); State v. Brown, 7th Dist. Mahoning No.

01 CA 229, 2003-Ohio-3551, ¶ 12 (finding the right to effective assistance of counsel "does

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not extend to civil post-conviction relief proceedings").

       {¶ 47} In Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546 (1991), the

United States Supreme Court recognized that as "[t]here is no constitutional right to an

attorney in state post-conviction proceedings * * * a petitioner cannot claim constitutionally

ineffective assistance of counsel in such proceedings." The Supreme Court later recognized

a "narrow exception" to this general rule. In Martinez v. Ryan, 566 U.S. 1, 17, 132 S.Ct. 1309

(2012), the Court held that

              [w]here, under state law, claims of ineffective assistance of trial
              counsel must be raised in an initial-review collateral proceeding, a
              procedural default will not bar a federal habeas court from
              hearing a substantial claim of ineffective assistance at trial if, in
              the initial-review collateral proceeding, there was no counsel or
              counsel in that proceeding was ineffective.

       {¶ 48} To the extent that appellant relies on Martinez to support his claim of

ineffective assistance of his postconviction counsel, we note that Martinez "address[es]

ineffective assistance in the context of what may constitute cause to excuse a procedural

default in a federal habeas case." Wesson, 2018-Ohio-834 at ¶ 10. It does not affect our

analysis under Ohio's statutory postconviction procedures. See id., citing State v. Jackson,

149 Ohio St.3d 55, 2016-Ohio-5488, ¶ 104 ("Martinez is directed toward federal habeas

proceedings and is intended to address issues that arise in that context"). See also State v.

Waddy, 10th Dist. Franklin No. 15AP-397, 2016-Ohio-4911, ¶ 63 (recognizing that the

procedural default doctrine discussed in Martinez, "while applicable to federal habeas corpus

proceedings, does not apply to state post-conviction relief proceedings"); State v. Boles, 12th

Dist. Brown No. CA2016-07-014, 2017-Ohio-786, ¶ 23-31.

       {¶ 49} Accordingly, as the right to effective assistance of counsel does not extend to

state postconviction relief proceedings, appellant cannot maintain a claim of constitutionally

ineffective assistance by his postconviction counsel. Appellant's arguments are without merit


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and his third assignment of error is, therefore, overruled.

       {¶ 50} Judgment affirmed.


       S. POWELL, P.J., and PIPER, J., concur.




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