[Cite as State v. Combs, 2013-Ohio-620.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :             C.A. CASE NO.    25262

v.                                                 :             T.C. NO.   09CR1191

STEVEN COMBS                                       :             (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                        :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the    22nd        day of       February    , 2013.

                                           ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E.,
Bloomingburg, Ohio 43106
      Attorney for Defendant-Appellant

                                           ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Steven Combs appeals a decision of the Montgomery
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County Court of Common Pleas, General Division, overruling his petition for

post-conviction relief filed November 24, 2010.           The trial court issued its opinion

overruling Combs’ petition on June 11, 2012. Combs filed a timely notice of appeal with

this Court on June 27, 2012.

       {¶ 2}    We set forth the history of the case in State v. Combs, 2d Dist. Montgomery

No. 23904, 2011-Ohio-1734 (hereinafter “Combs I”), and repeat it herein in pertinent part:

       On April 27, 2009, Combs was indicted on one count each of forcible rape of

       a child under the age of ten years, gross sexual imposition of a child under the

       age of thirteen, and sexual battery of a child under the age of thirteen. All

       charges arose as a result of offenses that were alleged to have occurred in

       early 2009 against Combs’s daughter. On January 8, 2010, Combs pled no

       contest to forcible rape by bill of information, and was found guilty by the

       court; the indictment was nolled.          The parties agreed to a five-year

       mandatory term of imprisonment, to which the trial court sentenced him.

       {¶ 3}    On appeal, Combs argued that his plea must be vacated because it was not

knowingly, intelligently, and voluntarily entered as the result of the trial court’s interrupting

him when he “resisted the acceptance of a plea” at sentencing. Combs also argued that he

was denied the effective assistance of trial counsel because counsel should not have allowed

him to enter a plea.

       {¶ 4}    Ultimately, we affirmed the judgment of the trial court, finding that the

record supported the State’s position that Combs’s plea was knowingly, voluntarily, and

intelligently entered. State v. Combs, 2d Dist. Montgomery No. 23904, 2011-Ohio-1734.
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Additionally, we found that the record established that Combs did not receive ineffective

assistance of counsel regarding his decision to enter a no contest plea to forcible rape. Id.

Specifically, the record established that Combs clearly acknowledged that he understood the

ramifications of his no contest plea, wanted to plead, and affirmatively stated that he was

neither coerced nor forced to enter his plea by defense counsel. Id.

       {¶ 5}    While his appeal was pending before this Court, Combs filed his petition for

post-conviction relief in which he argued that his plea was involuntary because of ineffective

assistance of counsel. In particular, Combs argued that defense counsel was deficient for

failing to contact necessary witnesses, failing to assert a viable defense to the charges against

him, allowing him to plead no contest against his wishes, and disregarding his requests to

withdraw his plea prior to sentencing. In support of his petition, Combs filed his own

affidavit, a copy of the sentencing memorandum filed by his defense counsel, and a copy of

a psychological evaluation report authored by Dr. Frederick Peterson of the Flexman Clinic.

Significantly, the report was issued on August 20, 2009, approximately four and one-half

months before he entered his no contest plea to the charge of forcible rape. In response, the

State filed a motion for summary judgment requesting that Combs’ petition be denied.

       {¶ 6}    On June 11, 2012, the trial court sustained the State’s motion for summary

judgment and overruled Combs’ petition for post-conviction relief. Initially, the trial court

concluded that Combs’ allegations of ineffective assistance of counsel were refuted by the

record and therefore, without merit. The trial court also found that Combs’ argument

regarding his desire to withdraw his plea was thoroughly analyzed in Combs I in his direct

appeal. Accordingly, the trial court held that Combs’ claims were barred by res judicata.
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          {¶ 7}    It is from this judgment that Combs now appeals.

          {¶ 8}    Combs’ sole assignment of error is as follows:

          {¶ 9}    “APPELLANT’S       PLEA     MUST      BE   VACATED       DUE     TO    THE

INEFFECTIVENESS OF COUNSEL.”

          {¶ 10} “[A]buse of discretion is the most prevalent standard [of review] for

reviewing the dismissal of a petition for post-conviction relief without a hearing.” State v.

Hicks, 4th Dist. Highland No. 09CA15, 2010-Ohio-89, at ¶10 (surveying other Ohio courts).

 “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248

(1985).      It is to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are unconscionable or

arbitrary.

          {¶ 11}   “A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it deciding the

issue de novo, would not have found that reasoning process to be persuasive, perhaps in

view of countervailing reasoning processes that would support a contrary result.” AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990).

          {¶ 12} Initially, we note that a post-conviction proceeding is not an appeal of a

criminal conviction, but a collateral civil attack on a criminal judgment. State v. Steffen, 70

Ohio St.3d 399, 410, 639 N.E.2d 67 (1994).           “Indeed, post-conviction state collateral

review itself is not a constitutional right, even in capital cases.” Id., citing Murray v.
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Giarratano , 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). Post-conviction review is a

narrow remedy, since res judicata bars any claim that was or could have been raised at trial

or on direct appeal. Id. Accordingly, in a post-conviction proceeding, a convicted defendant

has only the rights granted him by the legislature. State v. Moore, 99 Ohio App.3d 748, 751,

651 N.E.2d 1319 (1st Dist.1994).

       {¶ 13} In his sole assignment, Combs argues that he received ineffective assistance

because his defense counsel failed to assert an available, viable defense to the charges

against him.    Specifically, Combs contends that he informed defense counsel at the

beginning of the case that he suffered from a sleep disorder in which he engaged in sex acts

while asleep with no memory of his actions upon waking. Moreover, Combs alleges that he

informed defense counsel of two female witnesses who could testify regarding his condition,

but they were never contacted. Combs also claims that he was told that a doctor would be

contacted regarding his medical condition, but that never occurred. Combs further asserts

that he ordered defense counsel on two occasions to withdraw his plea, but they would not

return his or his mother’s phone calls. Lastly, Combs argues that he attempted to address

the trial court regarding his dissatisfaction with his defense counsel and his unwillingness to

enter into a plea, but the court “intimidated” him and forced him to accept the plea.

       {¶ 14} “We review the alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley

(1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable
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assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been

different. Id. Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal

citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.

          {¶ 15} In order to decide the issue of ineffectiveness of Combs’ defense counsel,

we must first look at whether his counsel’s performance fell outside the range of

professionally competent assistance. “Generally, counsel’s performance falls below the

norm if he fails to advocate the defendant’s cause, fails to keep the defendant informed of

important developments, or fails to use the requisite level of skill necessary to ensure the

integrity of the adversarial proceedings.” State v. Peeples, 94 Ohio App.3d 34, 640 N.E.2d

208 (4th Dist. 1994). Upon review, we can find nothing on this record which establishes

that counsel’s conduct violated any of these standards. The only new evidence presented by

Combs in support of his claim of ineffective assistance of counsel was his own self-serving

affidavit. Self-serving declarations, standing alone, do not rise to the level of evidence

required in post-conviction proceedings. State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823

(1983).

          {¶ 16} Additionally, the record establishes that Dr. Frederick Peterson was

contacted by defense counsel.      Furthermore, Dr. Peterson authored the Flexman Report
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well in advance of Combs’ plea of no contest. According to Combs’ witness list, another

doctor, Dr. Alan Jacobs, was also scheduled to testify on his behalf.          Thus, Combs’

argument that his defense counsel was ineffective for failing to contact a doctor regarding

the merits of a “sleep sexing” defense prior to his entering his no contest plea is undermined

by the record. We note that the two female witnesses Combs claims could testify regarding

his medical condition were, in fact, contacted and interviewed by defense counsel prior to

his plea. Both women’s names also appear on Combs’ witness list and are referenced in the

Flexman Report, thereby undermining his claim that the first mention of the two women was

in defense counsel’s post-plea sentencing memorandum.

       {¶ 17} We also note that the Flexman Report does not establish that he had a “sleep

sexing” defense to the charges against him. While the report states that some of Combs’

past girlfriends described experiences where he would have sex with them and not remember

it in the morning, the report also contains information regarding his sexual assault of his

daughter, to wit: he was fully aware of what he was doing. Specifically, Combs stated that

he remembered touching his daughter’s leg and vaginal area, including inserting his finger

into her vagina, but he merely thought he was touching someone else.

       {¶ 18} We conclude that the record completely undermines Combs’ assertion that

his trial counsel’s performance was deficient. Accordingly, Combs’ baseless speculation

that his counsel was deficient is insufficient to meet the standard announced in Strickland.

       {¶ 19} Lastly, Combs’ claim that he was intimidated by the trial court and his

defense counsel and, therefore, forced into entering his no contest plea was thoroughly

reviewed by this Court in Combs I and rejected. As previously discussed, we concluded in
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Combs I that the record contained no evidence that Combs’ no contest plea was made in less

than a knowing, intelligent, and voluntary manner. Thus, the doctrine of res judicata bars

Combs from raising the voluntariness of his plea in his petition for post-conviction relief.

“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 * *

* 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.” State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233,

syllabus.

        {¶ 20} Combs’ sole assignment of error is overruled.

        {¶ 21} Combs’ sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

                                        ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Andrew T. French
George A. Katchmer
Hon. Frances E. McGee
