[Cite as State v. Hartman, 2017-Ohio-7933.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27162
                                                    :
 v.                                                 :   Trial Court Case No. 2014-CR-834
                                                    :
 MARK HARTMAN                                       :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                         Rendered on the 29th day of September, 2017.

                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

S. ADELE SHANK, Atty. Reg. No. 0022148, 3380 Tremont Road, Suite 270, Columbus,
Ohio 43221
LAWRENCE J. GREGER, Atty. Reg. No. 002592, 1100 Liberty Tower, 120 West Second
Street, Dayton, Ohio 45402
       Attorneys for Defendant-Appellant

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



WELBAUM, J.
                                                                                         -2-




       {¶ 1} Defendant-appellant, Mark Hartman, appeals from a decision of the

Montgomery County Court of Common Pleas granting the State’s motion for summary

judgment on his petition for post-conviction relief and summarily dismissing the petition

without a hearing. For the reasons outlined below, the judgment of the trial court will be

affirmed.



                                 I. Course of Proceedings

       {¶ 2} On July 18, 2014, the Montgomery County Grand Jury indicted Hartman on

three counts of Rape, felonies of the first degree, in violation of R.C. 2907.02(A)(2).

Hartman pled not guilty to the charges and subsequently waived his right to a jury trial.

The matter proceeded to a bench trial. On October 10, 2014, the trial court found

Hartman guilty of all three charges. Hartman moved for a new trial. The trial court

overruled the motion for a new trial and sentenced Hartman to four years in prison on

each of the counts of Rape, to be served concurrently. Hartman appealed from his

conviction and sentence.1

       {¶ 3} On April 27, 2015, while his direct appeal from his conviction and sentence

was pending, Hartman filed a petition for post-conviction relief pursuant to R.C. 2953.21.

Dkt. 5.     In his petition, Hartman raised nine grounds for relief based on ineffective

assistance of trial counsel and one ground for relief based on an alleged violation of Brady

v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After obtaining an



1For a more complete recitation of the background leading up to Hartman’s trial, see our
May 6, 2016 Opinion at State v. Hartman, 2016-Ohio-2883, 64 N.E.3d 519 (2d Dist.).
                                                                                          -3-


extension of time from the trial court, the State filed its answer to the petition on May 15,

2015. Dkt. 7, 9. The trial court issued an entry on May 19, 2015, setting a telephone

status conference for June 2, 2015. Dkt. 10. On the date of the status conference, the

trial court issued a briefing schedule for the State’s motion for summary judgment, which

required the State to file its motion by July 13, 2015. Dkt. 13.

       {¶ 4} The State filed its motion for summary judgment on Hartman’s petition on

July 13, 2015, contending that Hartman failed “to show actual or even perceived

prejudice” on any of the grounds for relief in his petition. Dkt. 21. On May 31, 2016, the

trial court granted the State’s motion for summary judgment on Hartman’s petition for

post-conviction relief.2 The trial court found that Hartman’s petition also was subject to

dismissal without the need for an evidentiary hearing. Dkt. 42. Hartman now appeals

from that decision.



             II. The State’s Motion For Summary Judgment Was Timely Filed

       {¶ 5} Hartman’s First Assignment of Error states:

              THE TRIAL COURT ERRED IN FINDING THAT HARTMAN

       WAIVED HIS ARGUMENT THAT THE STATE’S MOTION FOR SUMMARY

       JUDGMENT WAS UNTIMELY FILED.

       {¶ 6} R.C. 2953.21(D) provides that either party may move for summary judgment

on a petition for post-conviction relief “[w]ithin twenty days from the date the issues are




2 On May 6, 2016, we affirmed the judgment of conviction and sentence in Hartman’s
direct appeal. State v. Hartman, 2016-Ohio-2883, 64 N.E.3d 519 (2d Dist.).
                                                                                            -4-


raised.” 3   The petition for post-conviction relief was filed on April 27, 2015.        After

obtaining an extension of time from the trial court, the State filed its answer to the petition

on May 15, 2015. Therefore, the issues were “raised” as of May 15, 2015, which began

the twenty-day period set forth in R.C. 2953.21(D). Eighteen days later, on June 2, 2015,

the trial court issued a briefing schedule for the State’s motion for summary judgment,

which required the State to file its motion by July 13, 2015. In short, the trial court set

the briefing schedule for the State’s motion for summary judgment prior to the expiration

of the twenty-day period set forth in R.C. 2953.21(D), but the briefing schedule allowed

the State to file its motion after the expiration of this twenty-day period.

       {¶ 7} Hartman contended in his opposition to the motion for summary judgment

that the State’s motion should be overruled as untimely because the motion was filed

more than twenty days after the issues were raised. The trial court rejected Hartman’s

contention, finding (Dkt. 42, p 7-8):

               [T]he court, on its own initiative, scheduled a telephone conference

       to discuss scheduling issues relating to Mr. Hartman’s petition.            The

       parties, during this telephone conference, discussed and agreed upon the

       following schedule: the State’s summary judgment motion to be filed on or

       before July 13, 2015, Mr. Hartman’s response to be filed on or before

       August 17, 2015, with the State’s reply memorandum to be filed on or before

       August 28, 2015. This sequence is evidenced by the court’s docket which


3 R.C. 2953.21 was amended by Senate Bill 139, effective April 6, 2017. This
amendment did not change any of the language relevant to this appeal. However, the
language that was contained in R.C. 2953.21(C) and (D) is now in R.C. 2953.21(D) and
(E), respectively. For purposes of clarity and convenience, we will cite to the pre-April 6,
2017 version of the statute.
                                                                                       -5-


      reflects the court, by entry dated May 19, 2015, scheduled the June 2, 2015

      telephone conference and by the June 2, 2015 filing of a briefing schedule

      reflecting the indicated dates.

             This sequence, the court concludes, supports a conclusion, with this

      conclusion consistent with this writer’s recollection, that Mr. Hartman,

      through counsel, discussed and agreed upon a summary judgment filing

      date beyond the twenty day time period established by R.C. 2953.21(D).

      Mr. Hartman, by this acquiescence, has waived any claim the State’s

      summary judgment motion was untimely filed under R.C. 2953.21(D).

             It is further concluded, assuming a contrary conclusion regarding the

      timeliness of the summary judgment motion, that, nonetheless, Mr.

      Hartman’s petition is subject to dismissal without the need for an evidentiary

      hearing.

      {¶ 8} Hartman contends that the trial court erred in finding that he had waived any

argument that the State’s motion for summary judgment was untimely filed. According

to Hartman, acquiescence in a briefing schedule cannot overrule the strict time limits set

forth in R.C. 2953.21(D). The State responds that a number of appellate court decisions

have held that the time limits in R.C. 2953.21(D) are directory to courts rather than

mandatory.

      {¶ 9} At oral argument, Hartman’s appellate counsel cited our prior decision in

State v. Tucker, 2d Dist. Darke No. CA1181, 1988 WL 38147 (April 18, 1988), as

precedent requiring a strict application of the twenty-day period in R.C. 2953.21(D). In

Tucker, we noted that the defendant “relie[d] upon a strict interpretation” of R.C.
                                                                                          -6-


2953.21(D) in arguing that the State’s motion for summary judgment was untimely. But

we did not adopt the defendant’s strict interpretation. Rather, we found that, due to a

tolling of time caused by a motion filed by the defendant, the State had filed its motion for

summary judgment within the twenty-day period. Tucker at *5.

       {¶ 10} In State v. McCabe, 4th Dist. Washington No. 97CA32, 1998 WL 725985

(Sept. 14, 1998), the court faced a similar situation as that faced by the trial court in the

present case. In McCabe, the State filed its motion for summary judgment more than

twenty days after it filed its answer. The State had received an extension of time from

the trial court in which to file its motion for summary judgment. On appeal, the petitioner

contended that the trial court erred in granting summary judgment to the State because

the motion was filed outside the twenty-day period set forth in R.C. 2953.21(D). The

court rejected this contention, noting that a “ ‘court is not required to reject late motions

under the statute, though it may certainly do so.’ ” McCabe at *2, quoting State v. Harris,

2d Dist. Montgomery No. 13114, 1992 WL 190653, *5 (Aug. 13, 1992). The court also

pointed out that the petitioner had waived the issue on appeal by failing to object to the

timeliness of the motion before the trial court.       McCabe at *2.      Finally, the court

concluded that even if it were to hold that the motion for summary judgment should not

have been considered, such error was harmless due to the trial court’s independent duty

to analyze the petition under R.C. 2953.21(C).

       {¶ 11} We find the analysis in McCabe persuasive. We conclude that the trial

court could extend the time for filing a motion for summary judgment beyond the twenty

days provided for in R.C. 2953.21(D). Hartman’s petition for post-conviction relief was

lengthy and raised a number of issues for the trial court and the State to consider. After
                                                                                         -7-


a status conference with the parties, the trial court issued a briefing schedule for the

State’s motion for summary judgment. The briefing schedule was issued prior to the

expiration of the twenty-day period provided in R.C. 2953.21(D), and the parties relied on

this briefing schedule when filing their memoranda in support of or in opposition to the

motion for summary judgment. The trial court found that Hartman’s counsel agreed to

this briefing schedule during the status conference and did not object to the briefing

schedule at that time. Further, the trial court found that even if the summary judgment

motion had been rejected as untimely, the trial court would have dismissed the petition

without a hearing pursuant to R.C. 2953.21(C).

      {¶ 12} We conclude that the trial court did not err in finding that the State’s motion

for summary judgment was timely filed. The first assignment of error is overruled.



          III. The Trial Court’s Decision To Consider Hartman’s Petition Under Both The

               Summary Dismissal Analysis in R.C. 2953.21(C) And The Summary

              Judgment Analysis Under R.C. 2953.21(D) Did Not Prejudice Hartman

      {¶ 13} Hartman’s Second Assignment of Error states:

             THE COURT ERRED WHEN IT CONFUSED AND CONFLATED

      THE STANDARDS FOR DISMISSAL UNDER R.C. §2953.21(C) AND FOR

      GRANTING SUMMARY JUDGMENT UNDER R.C. §2953.21(D).

      {¶ 14} In this assignment of error, Hartman contends that the trial court confused

and conflated the standards for dismissal under R.C. 2953.21(C) and for granting

summary judgment under R.C. 2953.21(D).           According to Hartman, the trial court

considered matters outside the record in granting summary judgment despite the fact that
                                                                                          -8-


R.C. 2953.21(D) specifically states that the “right to summary judgment shall appear on

the face of the record.” Hartman lists seven instances in which the trial court cited either

the affidavits attached to Hartman’s petition, an affidavit attached to the State’s reply in

support of its motion for summary judgment, or the trial court judge’s own representation

of what he remembered from the trial. According to Hartman, these seven instances

show that the trial court relied on evidence not “on the face of the record” in granting the

State’s motion for summary judgment.

       {¶ 15} R.C. 2953.21(D) provides simply that the right to summary judgment “shall

appear on the face of the record.” On the other hand, R.C. 2953.21(C) goes into more

detail as to what should be considered by the trial court, providing, in part:

               Before granting a hearing on a petition filed under division (A) of this

       section, the court shall determine whether there are substantive grounds for

       relief. In making such a determination, the court shall consider, in addition

       to the petition, the supporting affidavits, and the documentary evidence, all

       the files and records pertaining to the proceedings against the petitioner,

       including, but not limited to, the indictment, the court's journal entries, the

       journalized records of the clerk of the court, and the court reporter's

       transcript.

       {¶ 16} In State v. Francis, 2014-Ohio-443, 8 N.E.3d 371, ¶ 11-13 (12th Dist.), the

court gave the following instructive analysis of the trial court’s options in adjudicating a

petition for post-conviction relief:

               R.C. 2953.21 provides three methods for adjudicating a PCR

       petition. First, under R.C. 2953.21(D), either party may move for summary
                                                                                 -9-


judgment on the issues raised. In ruling on a summary judgment motion in

proceedings involving a PCR petition, the trial court must use the same

standards set forth in Civ.R. 56(C), i.e., a party is entitled to summary

judgment only if there is no genuine issue of material fact and reasonable

minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made. State v.

Williams, 165 Ohio App.3d 594, 2006-Ohio-617, 847 N.E.2d 495, ¶ 23 (11th

Dist. 2006).   Also, in granting summary judgment, the trial court must

construe any conflicts in the evidence in favor of the nonmoving party. Id.

Summary judgment in postconviction proceedings is appropriate only if the

right to summary judgment appears on the face of the record.             R.C.

2953.21(D); State v. Halliwell, 134 Ohio App.3d 730, 736, 732 N.E.2d 405

(8th Dist.1999). Therefore, the trial court is not authorized to consider

evidence “dehors” the record i.e., outside the record, in determining the

motion. Williams at ¶ 25.

       Second, under R.C. 2953.21(C), “a trial court properly denies a

defendant's petition for postconviction relief without holding an evidentiary

hearing where the petition, the supporting affidavits, the documentary

evidence, the files, and the records do not demonstrate that petitioner set

forth sufficient operative facts to establish substantive grounds for relief.”

State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905, paragraph two of the

syllabus (1999).    “In reviewing a petition for postconviction relief filed

pursuant to R.C. 2953.21, a trial court should give due deference to
                                                                                           -10-


       affidavits sworn to under oath and filed in support of the petition, but may,

       in the sound exercise of discretion, judge the credibility of the affidavits in

       determining whether to accept the affidavits as true statements of fact.” Id.

       at paragraph one of the syllabus. If the court summarily dismisses the

       petition without holding an evidentiary hearing, it must make and file findings

       of fact and conclusions of law with respect to such dismissal.              R.C.

       2953.21(C).

              Third, under R.C. 2953.21(E), if the petition and the files and records

       of the case fail to show that the petitioner is not entitled to relief, the court

       must hold a prompt evidentiary hearing on the issues raised.

       {¶ 17} In Francis, the appellate court noted that the trial court could not grant the

State’s request for summary judgment on the petitioner’s ineffective assistance of counsel

claims because resolution of those claims was dependent on affidavits of petitioner and

his trial counsel, which constituted evidence outside the record. Id. at ¶ 14. However,

the Francis court ultimately construed the trial court’s decision as one that summarily

dismissed the petition under 2953.21(C) rather than as one that granted summary

judgment to the State under R.C. 2953.21(D) based on the fact that the trial court

considered the affidavit evidence and noted in its decision that a hearing was not

necessary because the petitioner had failed to establish substantive grounds for relief in

his petition. Id. at ¶ 15.

       {¶ 18} The trial court in the present case, unlike the trial court in Francis, made it

clear that it was denying Hartman’s petition under both a summary dismissal analysis

pursuant to R.C. 2953.21(C) and a summary judgment analysis pursuant to R.C.
                                                                                          -11-


2953.21(D). Dkt. 42, p. 6-8. Therefore, in order to establish prejudicial error, Hartman

will need to show that the trial court improperly dismissed the petition under both R.C.

2953.21(C) and (D). McCabe, 1998 WL 725985 at *2 (holding that even if the State’s

motion for summary judgment was untimely, the trial court’s consideration of the motion

would have been harmless error because R.C. 2953.21(C) requires the trial court to sua

sponte analyze the petition).

       {¶ 19} Hartman contends that the trial court improperly relied on the affidavit of

K.L. and the affidavit of Hartman in ruling on the State’s motion for summary judgment.

Hartman Appellate Brief, p. 17. Hartman also criticizes the trial court’s consideration of

the affidavit of Detective Norris attached to the State’s reply memorandum in support of

its motion for summary judgment. Finally, Hartman cites four instances in which the trial

court judge referenced his own recollections as support for the grant of summary

judgment. Id. at 19. According to Hartman, these seven total instances in which the

trial court considered evidence outside the record requires us to reverse the trial court’s

decision granting the State’s motion for summary judgment on Hartman’s petition. We

do not agree. As discussed below in our analysis of the remaining assignments of error,

the trial court’s references to matters outside the record were not necessary to its decision

on the motion for summary judgment. Further, the trial court’s conclusion that Hartman’s

petition was subject to summary dismissal without a hearing pursuant to R.C. 2953.21(C)

is supported by the record, which renders moot any alleged error by the trial court in

considering evidence outside the record in ruling on the State’s motion for summary

judgment.

       {¶ 20} We conclude that Hartman has failed to establish prejudicial error in the trial
                                                                                         -12-


court’s decision to consider Hartman’s petition under both R.C. 2953.21(C) and (D). The

second assignment of error is overruled.



               IV. The Trial Court Properly Dismissed The First Ground For Relief In

                                         Hartman’s Petition

       {¶ 21} Hartman’s Third Assignment of Error states:

              THE COURT ERRED WHEN IT FOUND THAT HARTMAN HAD

       NOT MET HIS INITIAL BURDEN TO RAISE SUBSTANTIVE ISSUES

       SUPPORTED BY EVIDENCE DEHORS THE RECORD (§2953.21(C)) BUT

       THEN GRANTED THE STATE’S MOTION FOR SUMMARY JUDGMENT

       (§2953.21(D)) ON EACH SUBSTANTIVE GROUND ALLEGED ALL

       WITHOUT AN EVIDENTIARY HEARING.

       {¶ 22} In this assignment of error, Hartman contends that the trial court erred by

granting summary judgment on the following first ground for relief in his petition:

Hartman was denied effective assistance of counsel when his trial counsel, Chris Conard,

labored under a conflict of interest by representing both Gordon (the person who supplied

alcohol at the party where the criminal conduct occurred) and Hartman. Specifically,

Hartman contends that the following evidence establishes that summary judgment should

have been denied and an evidentiary hearing granted with regard to his claim of

ineffective assistance of counsel based on an actual conflict of interest: (1) Hartman told

his trial counsel that the trash from the night of the rape was in Gordon’s car; (2) trial

counsel did nothing to secure or preserve this evidence; (3) trial counsel failed to ask

Gordon at trial about the trash or wine bottles; and (4) trial counsel consulted with Gordon
                                                                                       -13-


through emails.

      {¶ 23} The trial court rejected Hartman’s contentions, finding (Dkt. 42, p. 11-12):

             Mr. Hartman’s only contention that suggests an actual conflict of

      interest is the assertion that Mr. Conard, through Mark Hartman, knew that

      Gordon [ ] retained the trash from the [R.] home, that included within the

      trash were the empty wine bottles consumed by [Courtney] and [M.W.], and

      that Mr. Conard, despite this knowledge, took no action to preserve the wine

      bottles. Mr. Hartman suggests that Mr. Conard did not take such action

      because “[T]he exposure to criminal liability of Gordon [ ], trumped

      preserving evidence for his client Mark Hartman.”

             Mr. Hartman’s contention is belied by his statement (Trial Ex. 24)

      given to Detective Norris on January 2, 2014. Mr. Conard directed Mr.

      Hartman to write the statement, he reviewed and revised the statement, and

      he directed Mr. Hartman to provide the statement to Detective Norris. The

      statement sets forth in some detail the alcohol consumption Marcus [ ],

      Gordon [ ], and he engaged in, and, further, mentions the wine consumed

      by [M.W.] and Courtney [ ]. Mr. Conard’s knowledge and allowance of the

      underage drinking details contained in Mr. Hartman’s statement is

      completely inconsistent with Mr. Conard’s suggested mission to protect

      [Gordon] from criminal exposure regarding underage drinking.

             Mr. Hartman’s petition and his response to the State’s summary

      judgment motion is devoid of any evidentiary support for the contention that

      Mr. Conard failed to act to preserve the wine bottles in an effort to protect
                                                                                            -14-


      Gordon [ ] from potential criminal charges. The petition states that on

      December 31 Mr. Hartman informed Mr. Conard that Gordon [ ] possessed

      the trash generated by the party at the [R.] home, and that Mr. Conard met

      with Gordon [ ] on December 31. These assertions are not supported by

      affidavit evidence or otherwise making Mr. Hartman’s core actual conflict

      assertion unsupported allegations inconsistent with Mr. Hartman’s “initial

      burden to submit evidentiary material containing operative facts sufficient to

      demonstrate substantive grounds for relief which merit a hearing.” * * *

             It is concluded that Mr. Hartman has failed to raise a factual issue

      that Mr. Conard did not act to preserve the wine bottles based upon a

      decision to place his loyalty to Gordon [ ] ahead of his duty to Mark Hartman.

      It is simply not plausible, given Mr. Hartman’s statement given to Detective

      Norris on January 2, that this is the case.

      {¶ 24} In support of his first ground for relief in his petition, Hartman primarily relied

on emails that were attached to the Affidavit of K.L., the father of Gordon. We agree with

the trial court that these emails are insufficient to establish any actual conflict with

counsel’s representation of Hartman and do not set forth sufficient operative facts to

establish substantive grounds for relief. As the trial court points out, any alleged intent

by trial counsel to protect Gordon to the detriment of Hartman is belied by the statement

that counsel helped Hartman draft and then present to the detective.

       {¶ 25} Hartman also contends that the trial court erred by considering the affidavit

of Detective Norris, which was attached to the State’s reply memorandum in support of

its motion for summary judgment, because the affidavit “is not apparent on the face of the
                                                                                               -15-


record” as required by R.C. 2953.21(D). While the trial court noted the Norris affidavit in

its discussion of Hartman’s first ground for relief, the trial court did not rely on it in granting

summary judgment on this ground for relief. Rather, the trial court relied on the fact that

Hartman’s statement to police, which was authored in conjunction with counsel, made it

very clear that alcohol was provided at the house where Gordon was housesitting, which

contradicts Hartman’s theory that his counsel was not zealously representing Hartman in

order to protect Gordon from potential criminal liability resulting from providing alcohol at

the party. Finally, the trial court was permitted to consider K.L.’s affidavit, along with the

attached emails, under the court’s summary dismissal analysis pursuant to R.C.

2953.21(C). Therefore, Hartman has failed to demonstrate prejudicial error.

       {¶ 26} We conclude that the trial court properly dismissed the first claim for relief

in Hartman’s petition for post-conviction relief without a hearing. The third assignment

of error is overruled.



              V. The Trial Court Properly Dismissed The Second Ground For Relief In

                                            Hartman’s Petition

       {¶ 27} Hartman’s Fourth Assignment of Error states:

               THE COURT ERRED IN FINDING THERE WERE NO GENUINE

       ISSUES OF MATERIAL FACT AS TO WHETHER THE ATTORNEY

       CLIENT PRIVILEGE WAS VIOLATED AND WHETHER THE VIOLATION

       CAUSED       PREJUDICE        TO    HARTMAN        WHEN TRIAL           COUNSEL

       INCLUDED HARTMAN’S FAMILY IN PRIVILEGED MEETINGS AND

       SHARED PRIVILEGED MATERIALS WITH THEM.
                                                                                        -16-


      {¶ 28} In this assignment of error, Hartman contends that the trial court erred in

granting summary judgment on the following second ground for relief in his petition:

Hartman was denied the effective assistance of counsel when counsel failed to maintain

the attorney client privilege and instead included Hartman’s family members in almost

every meeting about Hartman’s case.        According to Hartman, his counsel rendered

ineffective assistance by creating “tension between Hartman’s Fifth Amendment right to

remain silent and not to disclose confidential information in the presence of third persons

absent informed consent, and his Sixth Amendment right to freely disclose all matters to

his attorney * * * .” Hartman Appellate Brief, p. 29. This alleged tension was created by

the fact that meetings with his counsel often took place with family members present,

which ultimately may have led Hartman to withhold key facts in his statement to the police,

which then led to a credibility issue with the trier of fact. According to Hartman, had he

“fully disclosed and described the use of marijuana, the French kissing, and the digital

penetration in his written statement, his credibility would have been judged differently,

because the prejudice of his failure to include those facts, elicited on cross-examination

by the State, would have been eliminated.” Id. at 30.

      {¶ 29} The trial court rejected Hartman’s contention, stating (Dkt. 42, p. 12-13):

             Mr. Hartman’s contention, assuming its accuracy, is insufficient to

      create a factual issue requiring an evidentiary hearing. The confidentiality

      of the attorney-client relationship is of extreme importance, and any

      violation of its strictures is concerning. Mr. Hartman, this being said, has

      not, in either his petition or in the response to the summary judgment

      motion, articulated how the asserted conduct in probability altered the
                                                                                          -17-


       outcome of the litigation.

              * * * Such conclusory language is not sufficient to meet Mr. Hartman’s

       initial burden “to submit evidentiary material containing operative facts

       sufficient to demonstrate substantive grounds that merit a hearing.[”]

       {¶ 30} In order to succeed on an ineffective assistance claim, Hartman must show

that his trial counsel rendered deficient performance and that counsel’s deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, Hartman must prove

that his trial counsel’s performance fell below an objective standard of reasonable

representation. Id. at 688; State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373

(1989). In evaluating counsel’s performance, “a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that, under the circumstances the

challenged action ‘might be considered sound trial strategy.’ ” Strickland at 689, quoting

Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶ 31} To show prejudice, Hartman must establish that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d

864, ¶ 204, citing Strickland at 687-688, 694; Bradley at paragraph two of the syllabus.

The failure to make a showing of either deficient performance or prejudice defeats a claim

of ineffective assistance of counsel. Strickland at 697.

       {¶ 32} Hartman’s contentions in this assignment of error are very speculative and

conclusory. In essence, Hartman is contending that he may have withheld key facts from
                                                                                            -18-

his trial counsel because he may have been uncomfortable stating these facts in front of

his family members who were present when Hartman met with his trial counsel. And

these allegedly withheld facts, if they instead had been shared with trial counsel, may

have led to a different credibility determination by the trial judge and to a different verdict.

The only evidence provided in support of these contentions by Hartman are affidavits of

family members stating that they were present when Hartman met with his trial counsel.

Noticeably missing in these affidavits of family members are any statements based on

personal knowledge that Hartman intentionally withheld key facts due to some sort of

hesitancy caused by the presence of his family. Indeed, there is no statement at all in

Hartman’s affidavit that he intentionally withheld facts or did so because of the presence

of his family. And there is no statement by Hartman that he did not voluntarily consent

to having his family in his meetings with his trial counsel or that he told his counsel that

he did not want his family present during discussions with his counsel. Finally, we note

that Hartman’s mother, in paragraph nine of her affidavit, stated that Hartman and his trial

counsel spoke on the phone alone for a few minutes outside the presence of family

members. There is no record of what was or was not discussed during that telephone

call.

        {¶ 33} We conclude that Hartman has failed to show either that his trial counsel

provided ineffective assistance by allowing family members to be involved in his

discussions with Hartman or that there is a reasonable probability that, but for the

presence of family members in these discussions, the outcome of the trial would have

been different. Consequently, the trial court properly dismissed the second ground for

relief in Hartman’s petition. The fourth assignment of error is overruled.
                                                                                       -19-




               VI. The Trial Court Properly Dismissed The Third Ground For Relief In

                                        Hartman’s Petition

       {¶ 34} Hartman’s Fifth Assignment of Error states:

              THE COURT ERRED IN FINDING THAT THERE WERE NO

       GENUINE ISSUES OF MATERIAL FACT ON THE QUESTION OF

       WHETHER TRIAL COUNSEL WERE INEFFECTIVE BY DELIVERING

       HARTMAN’S CONCOCTED STATEMENT TO THE LEAD DETECTIVE,

       ABSENT A KNOWING AND INTELLIGENT WAIVER OF THE ATTORNEY

       CLIENT PRIVILEGE, THE ATTORNEY WORK PRODUCT PRIVILEGE,

       OR THE FIFTH AMENDMENT RIGHT TO REMAIN SILENT.

       {¶ 35} In this assignment of error, Hartman contends that the trial court erred in

granting summary judgment on the following third ground for relief in his petition:

Hartman received ineffective assistance of counsel when counsel delivered Hartman’s

statement to the lead detective, absent a knowing and intelligent waiver of the attorney

client privilege and/or the attorney work product privilege when the statement was

concocted by counsel.

       {¶ 36} The trial court rejected Hartman’s third ground for post-conviction relief,

finding, in part (Dkt. 42, p. 13-15):

              Mark Hartman, as to this third ground for post-conviction relief,

       asserts, in summary, that Mr. Hartman’s statement contained, at Mr.

       Conard’s instruction, language from a previous statement Mr. Conard used

       when representing another client, and that providing Mr. Hartman’s
                                                                                 -20-


statement to Detective Norris before Mr. Conard had determined whether

the physical evidence aligned with Mr. Hartman’s version of events and

what other witnesses may have told Detective Norris constituted an

objectively deficient defense strategy. The contention regarding providing

Mr. Hartman’s statement to Detective Norris before Mr. Conard knew how

the evidence aligned is barred by res judicata. This issue was raised on

appeal with the appellate court * * * .

          This determination, as indicated, precludes further consideration of

Mr. Conard’s decision to provide Mark Hartman’s statement to Detective

Norris.

          Res judicata, however, does not eliminate the issue regarding Mr.

Conard instructing Mr. Hartman to insert into his statement language from

a statement apparently used by another similarly situated client represented

by Mr. Conard.

          ***

          Though the incorporation of another client’s statement into Mr.

Hartman’s statement may be questioned, Mr. Hartman signed his name to

the statement indicating he concurred in the sentiment being expressed.

Further, the language, though stilted, is not inconsistent with Mr. Hartman’s

assertion the sexual activity was consensual. This court, given the highly

deferential standard used to evaluate an attorney’s performance cannot

conclude Mr. Conard engaged in ineffective assistance of counsel by having

Mr. Hartman incorporate the language at issue into his statement.
                                                                                          -21-


              Additionally, and importantly, Mr. Hartman has failed to demonstrate

       that the exclusion of the contested language would have, within a

       reasonable probability, changed the outcome of the case.

       {¶ 37} According to Hartman, the trial court failed to address the absence of a

knowing and intelligent waiver of his right to remain silent. Hartman also contends that

res judicata does not bar this ground for relief because his third ground for relief depended

on evidence outside the record on the direct appeal, namely, Exhibits F, G, I, and J to his

affidavit. Finally, Hartman points out that the trial court relied on evidence outside the

record when it stated “this writer can state the language at issue did not affect the

assessment of Mr. Hartman’s credibility.” Dkt. 42, p. 15.

       {¶ 38} While the trial court judge’s statement that the language did not affect his

assessment of Hartman’s credibility is technically evidence outside the face of the record

that should not have been considered in ruling upon the motion for summary judgment,

this statement was not necessary to the trial court’s grant of summary judgment. In his

direct appeal, Hartman did raise ineffective assistance of counsel based on the delivery

of the statement to the lead detective. In overruling his assignment of error, we held that

“It was reasonable, in light of counsel’s perspective at the time, to pursue a strategy not

to let the victim’s version of events go unanswered in the investigative stage.          We

conclude that counsel’s strategy of cooperation with the police investigation, under the

circumstances of this case, did not constitute ineffective assistance of counsel.”

Hartman, 2016-Ohio-2883, ¶ 46.

       {¶ 39} In State v. Goldwire, 2d Dist. Montgomery No. 20838, 2005-Ohio-5784, ¶

11, we addressed the role res judicata plays in the analysis of petitions for post-conviction
                                                                                              -22-


relief:

                 “The most significant restriction on Ohio's statutory procedure for

          post-conviction relief is that the doctrine of res judicata requires that the

          claim presented in support of the petition represent error supported by

          evidence outside the record generated by the direct criminal proceedings.”

          State v. Monroe, Franklin App. No. 04AP-658, 2005-Ohio-5242. “Under

          the doctrine of res judicata, a final judgment of conviction bars the convicted

          defendant 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.”

          State v. Perry (1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104. “Our

          statutes do not contemplate relitigation of those claims in post conviction

          proceedings where there are no allegations to show that they could not have

          been fully adjudicated by the judgment of conviction and an appeal

          therefrom.” Id. “To overcome the res judicata bar, the petitioner must

          produce new evidence that renders the judgment void or voidable, and

          show that he could not have appealed the claim based upon information

          contained in the original record.”      State v. Aldridge (1997), 120 Ohio

          App.3d 122, 151, 697 N.E.2d 228. “ ‘Res judicata also implicitly bars a

          petitioner from “repackaging” evidence or issues which either were, or could

          have been, raised in the context of the petitioner's trial or direct appeal.[’] ”

          Monroe.
                                                                                         -23-


      {¶ 40} We agree with the trial court that much of what Hartman raises in his third

ground for relief is barred by res judicata, because these arguments were raised or could

have been raised in his direct appeal. Goldwire at ¶ 11. Further, there is no evidence

that Hartman did not agree with his counsel’s advice or that he did not knowingly waive

his rights. Rather, the evidence submitted by Hartman in his petition supports a finding

that Hartman and his counsel discussed writing a statement and Hartman then wrote a

statement that both he and his counsel revised before it was presented to the lead

detective. We agree with the trial court that the emails between Hartman and his trial

counsel, which were attached to Hartman’s petition for post-conviction relief, are

insufficient to create a genuine issue of material fact that Hartman’s counsel committed

professional errors or that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. R.C.

2953.21(D). Moreover, these emails are insufficient to warrant an evidentiary hearing.

R.C. 2953.21(C).

      {¶ 41} We conclude that the trial court properly dismissed the third ground for relief

in Hartman’s petition. The fifth assignment of error is overruled.



             VII. The Trial Court Properly Dismissed The Fourth Ground For Relief In

                                         Hartman’s Petition

      {¶ 42} Hartman’s Sixth Assignment of Error states:

             THE     COURT      ERRED      WHEN      IT   GRANTED       SUMMARY

      JUDGMENT ON HARTMAN’S FOURTH GROUND FOR RELIEF THAT

      TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO SECURE
                                                                                             -24-


      HARTMAN’S TAPE RECORDED STATEMENTS PRIOR TO TRIAL OR

      UPON FINDING THAT THEY DID NOT EXIST BY NOT WITHDRAWING

      AS COUNSEL TO BECOME A WITNESS AS TO THE CONTENTS OF

      HARTMAN’S STATEMENTS.

      {¶ 43} In this assignment of error, Hartman contends that the trial court erred in

granting summary judgment on the following fourth ground of relief in his petition:

Hartman was denied the effective assistance of counsel (1) when counsel failed to secure

Hartman’s tape recorded statements made to Detective Norris prior to trial and (2) when

counsel failed to withdraw as counsel to become a witness as to the contents of Hartman’s

prior statements when it was discovered that there were no tape recorded prior

statements.

      {¶ 44} The trial court rejected this ground for relief, finding (Dkt. 42, p. 15-17):

              This issue was discussed in the Court’s March 6, 2015 decision

      overruling Mark Hartman’s motion for a new trial with the discussion

      occurring within the context of Mr. Hartman’s contention that the State

      committed a Brady violation by its failure to produce Mark Hartman’s

      recorded interviews with Detective Norris. * * * It, quite obviously, cannot

      reasonably be concluded that not obtaining statements which were not

      recorded constituted ineffective assistance of counsel or had any effect

      upon the trial’s outcome.

              * * * Mr. Hartman next asserts, it seems, that Mr. Conard should

      have ascertained before trial that the recordings did not exist, and, in

      anticipation of the need for him to be a witness regarding the content of the
                                                                                          -25-


       interviews, withdrawn as counsel. Mr. Hartman, from this, concludes that

       if Mr. Conard had been available as a witness he could have rebutted the

       notion that Mr. Hartman mentioned digital penetration for the first time

       during his trial testimony.

              It is initially noted there is no evidentiary support for Mr. Hartman’s

       assertion that he informed Detective Norris that digital penetration occurred.

       This constitutes a failure regarding Mr. Hartman’s burden to submit

       evidentiary material setting forth facts demonstrating grounds for relief that

       require a hearing. Further, and more importantly, Mr. Amos’ comment was

       made during the rebuttal closing argument, the comment, as such, was not

       evidence and had no effect upon this court’s verdicts. The court assessed

       the credibility of Mr. Hartman and [M.W.] – the participants in the events at

       issue – and based upon this testimony and the remaining trial evidence,

       came to the verdicts which were rendered. The fact that Mr. Amos

       mentioned Mr. Hartman’s failure to include reference to digital penetration

       in his statement simply was not a factor in the verdicts which were reached.

       {¶ 45} It appears undisputed that no recordings exist from the interview with

Detective Norris.   Thus, there cannot be a supportable claim that trial counsel was

ineffective for failing to secure something that did not exist. Further, in his motion for a

new trial, Hartman raised this issue of the recordings as part of a potential Brady violation

by the State. Indeed, the primary evidence Hartman cites in his petition in support of his

fourth ground for relief are citations to the transcript from the hearing on his motion for a

new trial and letters from his trial counsel that were either presented with his motion for a
                                                                                        -26-


new trial or reference contentions that were made in his motion for a new trial. In short,

Hartman could have raised this particular ineffective assistance of counsel claim in his

direct appeal from his conviction and sentence. Therefore, this ground for relief is barred

by res judicata. Goldwire at ¶ 11.

      {¶ 46} We conclude that the trial court properly dismissed the fourth ground for

relief in Hartman’s petition. The sixth assignment of error is overruled.



              VIII. The Trial Court Properly Dismissed The Fifth Ground For Relief In

                                         Hartman’s Petition

      {¶ 47} Hartman’s Seventh Assignment of Error states:

             THE       TRIAL   COURT     ERRED      IN   GRANTING       SUMMARY

      JUDGMENT ON HARTMAN’S FIFTH GROUND FOR RELIEF THAT

      ADVISING         HARTMAN     TO    TAKE     POLYGRAPH        EXAMS      WAS

      INEFFECTIVE ASSISTANCE OF COUNSEL.

      {¶ 48} In this assignment of error, Hartman contends that the trial court erred by

granting summary judgment on the following fifth ground for relief in his petition:

Hartman was denied effective assistance of counsel based on counsel’s repeated advice

to Hartman to take a polygraph despite the absence of any agreement with the State that

the polygraphs would be admissible.       According to Hartman, he was prejudiced by

counsel’s ineffectiveness when he made additional inculpatory statements to law

enforcement and when the trial court was made aware that Hartman did not pass all of

his polygraph tests.

      {¶ 49} The trial court granted summary judgment on this ground for relief, finding
                                                                                      -27-


(Dkt. 42, p. 17-18):

              Mark Hartman, in this ground for relief, asserts that allowing him to

       take two polygraph examinations conducted by Centerville Officer Nadine

       Dexter amounted to prejudicial ineffective assistance.         It cannot be

       concluded, given the deferential standard when reviewing an ineffective

       assistance of counsel claim, that allowing the two polygraph examinations

       constituted ineffective assistance.   Mark Hartman passed a polygraph

       examination arranged by Mr. Conard and conducted by Richard Emmons.

       This report was presented to Detective Norris who requested that Officer

       Dexter conduct a second examination.              Officer Dexter evidently

       determined this examination demonstrated deception. Mr. Hartman, again

       evidently, was extremely nervous and emotional during this examination

       resulting in another examination conducted by Officer Dexter, with Officer

       Dexter concluding, again evidently, that Mr. Hartman was being deceptive.

              The polygraph test results were, of course, not admitted at trial. It

       cannot be concluded that having Mr. Hartman take the Officer Dexter

       examinations constituted ineffective assistance. If the Dexter polygraph

       results had been favorable to Mr. Hartman, this could have resulted in the

       investigation terminating before the case was presented to the grand jury.

       This was the “upside” to the strategy with, since admission of the results

       into evidence was not possible, there being no “downside” to the polygraph

       examinations.      The   employed     polygraph    strategy,   under   these

       circumstances, simply did not constitute ineffective assistance.
                                                                                            -28-


       {¶ 50} The parties appear to agree that the polygraph evidence was not formally

submitted to the trial court or admitted into evidence.         Apparently, the existence of

polygraph tests was brought up during a pretrial conference with the court. The parties

blame each other for the polygraphs coming up at all during that conference. In its

decision denying the petition for post-conviction relief, the trial court stated that it did not

recall any polygraph results being before it when it found Hartman guilty.

       {¶ 51} As the trial court found, the decision to allow his client to take polygraph

examinations without an agreement in place to admit these results into evidence is a trial

strategy that does not establish ineffective assistance of counsel. See State v. Clark,

6th Dist. Lucas No. L-15-1160, 2016-Ohio-5173, ¶ 16. Reviewing courts do not second

guess trial counsel’s tactics or related strategic decisions. State v. Hubbard, 150 Ohio

App.3d 623, 2002-Ohio-6904, 782 N.E.2d 674, ¶ 37 (7th Dist.), citing State v. Carter, 72

Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Moreover, the decision whether to submit

to a polygraph test rested with Hartman. Clark at ¶ 16. “When a defendant agrees to

undergo a polygraph test, presumably he knows whether he is telling the truth and is

willing to assume the risk of error.” State v. Lascola, 61 Ohio App.3d 228, 234, 572

N.E.2d 717 (10th Dist.1988).

       {¶ 52} Further, these results were not admitted into evidence and we presume,

unless shown otherwise, that the trial court did not rely on them in making its decision.

We acknowledge that the statement by the trial court judge that he does not recall any

discussion about polygraphs arguably is evidence outside the record that should not have

been considered by the trial court.        But that statement by the trial court was not

necessary to resolution of the motion for summary judgment on this issue or to grant
                                                                                           -29-


summary dismissal without a hearing. Finally, Hartman has failed to show that that there

is a reasonable probability that the result of the trial would have been different if Hartman’s

trial counsel did not let him take polygraph examinations.

       {¶ 53} We conclude that the trial court properly dismissed the fifth ground for relief

in Hartman’s petition. The seventh assignment of error is overruled.



               IX. The Trial Court Properly Dismissed The Sixth Ground For Relief In

                                           Hartman’s Petition

       {¶ 54} Hartman’s Eighth Assignment of Error states:

              THE     COURT      ERRED       WHEN      IT   GRANTED        SUMMARY

       JUDGMENT ON HARTMAN’S SIXTH GROUND FOR RELIEF ALLEGING

       HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN A

       DIAGRAM OF THE COMFORTER STAINS WAS PRODUCED FOR THE

       FIRST TIME AT TRIAL.

       {¶ 55} In this assignment of error, Hartman contends that the trial court erred by

granting summary judgment on the following sixth ground for relief in his petition:

Hartman was denied effective assistance of counsel when a diagram of the comforter

stains found in the lab technician’s notes was produced for the first time at trial and his

counsel did not take sufficient affirmative steps regarding that late production.

       {¶ 56} The trial court rejected Hartman’s contention on the basis of res judicata,

stating (Dkt. 42, p. 19):

              It is initially concluded that this ineffective assistance claim is barred

       by res judicata. As noted, the res judicata doctrine bars a petitioner from
                                                                                          -30-


      asserting a post-conviction ground for relief which was, or could have been,

      raised on direct appeal. * * * The issue of the diagram, and Mr. Conard’s

      reaction to it, is a part of the trial record. Mr. Hartman could have raised this

      ineffective assistance claim on direct appeal with this failure triggering the

      application of the res judicata bar as to this claim.

Further, the trial court found that even if Hartman’s contention was not barred by res

judicata, this particular ground for relief would be denied because “Mr. Hartman has

provided no evidentiary support that the suggested stain analysis would have, within a

reasonable probability, made the trial’s outcome different.” Id. at 20.

      {¶ 57} In support of this ground for relief, Hartman only cited evidence that was

submitted to the trial court in support of Hartman’s motion for a new trial. The motion for

a new trial, along with the affidavit in support of the motion, were part of the record in

Hartman’s direct appeal from his conviction and sentence. Hartman could have raised

this same argument with the same evidence in his direct appeal from his conviction and

sentence. Therefore, we agree with the trial court that Hartman’s claim in his sixth

ground for relief is barred by res judicata. Goldwire at ¶ 11.

      {¶ 58} We conclude that the trial court properly dismissed the sixth ground for relief

in Hartman’s petition. The eighth assignment of error is overruled.



              X. The Trial Court Properly Dismissed The Eighth Ground For Relief In

                                         Hartman’s Petition

      {¶ 59} Hartman’s Ninth Assignment of Error states:

             THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
                                                                                       -31-


      HARTMAN’S EIGHTH GROUND FOR RELIEF ALLEGING THE STATE OF

      OHIO COMMITTED A BRADY VIOLATION.

      {¶ 60} In this assignment of error, Hartman contends that the trial court erred in

granting summary judgment on the following eighth ground for relief in his petition: the

State committed a Brady violation by not providing any information through discovery

regarding the test results that showed where on the comforter the Montgomery County

Lab technician found stains containing DNA confirmed to be from Hartman and/or M.W.

      {¶ 61} In granting summary judgment on this ground for relief, the trial court noted

that the alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963), previously was raised in Hartman’s motion for new trial, which the trial court

overruled. Dkt. 42, p. 21. The trial court then found (id.):

             Since the Brady issue regarding the comforter diagram was argued

      and, following an evidentiary hearing, resolved by the trial court, this issue

      could have been presented on direct appeal. Accordingly, the res judicata

      doctrine bars consideration of this ground for relief.

             It is noted, however, that even if res judicata did not act as a bar to

      consideration and assuming the State suppressed the diagram, there

      would, nonetheless, be no basis to grant postconviction relief. This is so

      because, as discussed, the court, when reaching the verdicts, did consider

      the location of the stains on the comforter, and concluded, for the discussed

      reasons, that the location of the stains on the comforter did not affect

      [M.W.]’s credibility nor this court’s acceptance of her version of the events

      at issue.
                                                                                        -32-


       {¶ 62} This issue was one of three primary issues on which Hartman moved for a

new trial. On Hartman’s direct appeal, he contended, in his second assignment of error,

that the trial court erred in denying his motion for new trial, but he apparently did not

address the alleged Brady violation regarding the diagram. Moreover, in his petition, he

does not cite any evidence in support of this Brady violation that was not available in his

direct appeal. Consequently, Hartman could have raised this claim in his direct appeal

from his conviction and sentence and his failure to do so bars him from raising that same

claim in a petition for post-conviction relief. Goldwire at ¶ 11.

       {¶ 63} We conclude that the trial court properly dismissed the eighth ground for

relief in Hartman’s petition. The ninth assignment of error is overruled.



               XI. The Trial Court Properly Dismissed The Ninth Ground For Relief In

                                           Hartman’s Petition

       {¶ 64} Hartman’s Tenth Assignment of Error states:

              THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON

       HARTMAN’S NINTH GROUND FOR RELIEF ALLEGING INDIVIDUALLY

       AND CUMULATIVELY INEFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 65} In this assignment of error, Hartman contends that the trial court erred in

granting summary judgment on his ninth ground for relief in his petition: Hartman was

denied the effective assistance of counsel due to counsel’s failure to prepare properly for

trial and failure to act zealously on his client’s behalf.

       {¶ 66} The trial court rejected this ground for relief by noting that this issue was

raised and resolved against Hartman in his direct appeal from his conviction. Dkt. 42, p.
                                                                                           -33-


22. The trial court cited to paragraphs 54-57 of our prior opinion and concluded “Mark

Hartman’s assertion regarding Mr. Conard’s purported lack of adequate preparation is,

based upon the appellate court’s resolution of the issue, barred by the res judicata

doctrine.” Id. at 23. Hartman contends that the trial court erred in relying on res judicata

to grant summary judgment on this ineffective assistance of counsel claim. According to

Hartman, the affidavits attached to his petition for post-conviction relief identified at least

fifteen “examples of the ineffectiveness of trial counsel, to which res judicata does not

apply.” Hartman Brief, p. 55.

       {¶ 67} In his direct appeal from his conviction and sentence, Hartman raised

ineffective assistance of counsel claims based on his counsel’s failure to adequately

investigate the case in the following ways: failing to interview the victim’s friend, failing

to interview the lab witness, failing to seek discovery of the notes of the forensic lab

analyst, and failing to obtain the recordings from Hartman’s police interviews. In the

current appeal, however, Hartman raised the following examples of inadequate

preparation: (1) counsel brought up conducting a mock trial and Hartman’s family said

they would pay for it but counsel never held a mock trial; (2) a private investigator was

hired 42 days before trial and suggested further areas of investigation that were never

pursued; (3) counsel never spoke with any witness before trial and the investigator only

spoke with one; (4) counsel was confident that there would be no criminal charges and

stated that he “could try the case tomorrow sitting on his hands” even though he had yet

to hire an investigator; (5) Hartman’s grandfather encouraged counsel to speak with the

forensic analyst who performed the tests on the comforter but counsel did not; (6) counsel

failed to impeach the lead detective with a false date and time that was contained in the
                                                                                          -34-


lead detective’s report regarding the medical authorization sought from the victim; (7)

Detective Norris failed to record that a third meeting occurred with the victim and the raw

notes of the lead detective were not requested or produced; (8) Co-counsel Sasha

VanDeGrift Blaine lacked preparation; (9) Co-counsel Blaine conducted harmful and

prejudicial cross-examination of Courtney because of her late entry into the case and lack

of preparation; (10) Hartman was never prepared for cross-examination; (11) Hartman’s

direct examination was conducted by Blaine, who entered the case three days before

trial; (12) Blaine did not prepare Hartman for direct examination until after the first day of

trial; (13) counsel did not discuss whether or not Hartman should testify on the second

day after his story was read into the record on the first day by the detective, which would

have saved him from cross-examination; (14) no testing was done on the sheets from the

night in question despite the fact that Hartman allegedly ejaculated into the sheets; and

(15) no testing of the sheets was done even though the lead detective’s supplemental

reports state that the victim said she wrapped a sheet around her and then exited the

bathroom.

       {¶ 68} The trial court relied solely on res judicata in granting summary judgment

on this issue. But res judicata does not appear to apply to all of the fifteen instances

identified above, because these instances are based on affidavit evidence that was not

available in the direct appeal. Therefore, the trial court erred by relying solely on res

judicata to dismiss the ninth ground for relief in Hartman’s petition.         However, we

conclude that the trial court’s error was not prejudicial to Hartman because the fifteen

examples of alleged inadequate preparation identified by Hartman do not establish

ineffective assistance of counsel.
                                                                                          -35-


       {¶ 69} Many of Hartman’s examples of inadequate preparation involve potential

actions that trial counsel considered but did not pursue or actions that he pursued but not

to the extent that Hartman’s family thought counsel should have pursued. For example,

Hartman criticizes his trial counsel for not conducting a mock trial, not speaking to the

forensic analyst prior to trial, not performing tests on the sheets that were present at the

time of the criminal activity, not hiring a private investigator earlier than forty-two days

before trial, not speaking to certain witnesses before trial, and not preparing Hartman for

testimony earlier in the process. But “ ‘[a]ttorneys need not pursue every conceivable

avenue; they are entitled to be selective.’ ” State v. Murphy, 91 Ohio St.3d 516, 542,

747 N.E.2d 765 (2001), quoting U.S. v. Davenport, 986 F.2d 1047, 1049 (7th Cir.1983).

“Even unsuccessful tactical or strategic decisions will not constitute ineffective assistance

of counsel.” State v. Williams, 2d Dist. Montgomery No. 24548, 2012-Ohio-4179, ¶ 28,

citing State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Further, we must

keep in mind that “[h]indsight 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.” (Citation omitted.) State v. Hill, 2d Dist. Greene No. 2004 CA 79, 2005-Ohio-

3176, ¶ 13.

       {¶ 70} Hartman also criticizes trial counsel for claiming that he was confident that

no criminal charges would be brought against Hartman and for stating that he “could try

the case tomorrow sitting on his hands.” But these criticisms do not establish how the

trial would have been different if counsel did not make these statements.

       {¶ 71} Hartman further criticizes trial counsel for failing to effectively impeach the
                                                                                         -36-


lead detective, waiting too long to bring in a co-counsel, and choosing a co-counsel who

lacked preparation and conducted a “harmful and prejudicial” cross-examination of a

witness. Hartman Appellate Brief, p. 53-54. Hartman’s criticisms of what trial counsel

did or did not do during the examination of witnesses at trial could have been raised in

his direct appeal from his conviction and sentence. Indeed, Hartman did raise criticisms

of his counsel’s performance and preparation in his direct appeal. We conclude that

these claims are barred by res judicata as “ ‘repackag[ed]’ evidence or issues which either

were, or could have been, raised in the context of the petitioner's trial or direct appeal.”

State v. Monroe, 10th Dist. Franklin No. 04AP-658, 2005-Ohio-5242, ¶ 9, quoting State

v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321, ¶ 27.

       {¶ 72} We conclude that Hartman has failed to put forth sufficient operative facts

to establish that his trial counsel provided ineffective assistance of counsel. Therefore,

the trial court properly dismissed the ninth ground for relief in Hartman’s petition without

a hearing. The tenth assignment of error is overruled.



              XII. The Trial Court Properly Dismissed The Tenth Ground For Relief In

                                         Hartman’s Petition

       {¶ 73} Hartman’s Eleventh Assignment of Error states:

              THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON

       HARTMAN’S       TENTH     GROUND       FOR    RELIEF     ALLEGING      THAT

       HARTMAN WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

       BECAUSE COUNSEL FAILED TO ACCURATELY ADVISE HARTMAN ON

       THE COSTS AND BENEFITS OF WAIVING A JURY TRIAL.
                                                                                         -37-


       {¶ 74} In this assignment of error, Hartman contends that the trial court erred in

granting summary judgment on his tenth ground for relief in his petition: counsel failed

to obtain informed consent to the waiver of a jury trial.

       {¶ 75} The trial court summarized Hartman’s contentions and rejected this ground

for relief, finding (Dkt. 42, p. 23-25):

               Mark Hartman, in this final ground in support of post-conviction,

       asserts, while acknowledging Mr. Hartman executed a jury waiver in open

       court following a discussion of this issue with the court, that the jury waiver

       was not made with informed consent. Mr. Hartman asserts Mr. Conard

       recommended a jury waiver based upon his relationship with this judge, that

       this judge raised three sons and, thus, would understand Mr. Hartman’s

       situation, that given the media coverage of campus sexual assaults he could

       not expect all twelve jurors to believe him, that in a bench trial the judge

       determines the facts with the facts not equating to a conclusion that a rape

       had occurred, and that it would be in Mr. Hartman’s interests to have an

       educated judge as opposed to twelve uneducated jurors decide the case.

       Mr. Hartman takes issue with some of this advice, including a criticism that

       informing him that in the current media climate he could not expect twelve

       jurors to believe his version of events because this statement implied that

       he, not the State, had the burden of proof. Mr. Hartman is also critical of

       what Mr. Hartman was not told including that on direct appeal review of

       asserted evidentiary errors would be severely limited and that if one juror

       concluded the State failed in its burden of proof this would prevent a guilty
                                                                                       -38-


      verdict.

             ***

             It is concluded, turning to the pending case, that Mr. Conard’s

      preference for a bench trial was a matter of trial strategy. This decision,

      which is not subject to the distorting influence of hindsight, was, given the

      circumstances, a reasonable strategic decision.

             Though it is unfortunate, if accurate, that Mr. Hartman was informed

      that [t]his writer raised sons as opposed to daughters, it cannot be

      concluded that this inaccurate information rendered the jury waiver

      recommendation ineffective assistance. Further, Mr. Conard’s failure to

      apprise Mr. Hartman that appellate review of evidentiary issues is limited

      following a bench trial (a dubious assertion given the number of evidentiary

      issues raised on direct appeal) and that one juror could cause a “hung jury”

      and, thus, a mistrial did not make Mr. Conard’s jury waiver advise ineffective

      assistance. Here, similar to State v. Linehan, [2d Dist. Montgomery No.

      16841, 1998 WL 905347 (Sept. 4, 1998)], Mr. Hartman subjectly [sic]

      asserts his jury waiver was not an informed waiver but there is nothing in

      the record to demonstrate that the advise or the manner in which it was

      given was “objectively unreasonable.” Id.

      {¶ 76} Hartman contends that the trial court erred in finding that counsel’s advice

to waive a jury trial was not objectively unreasonable.      According to Hartman, the

following evidence shows that there is a genuine issue of material fact as to whether the

advice was objectively unreasonable: (1) Counsel first informed the trial court at a bond
                                                                                          -39-


conference “that the family would probably be going with a bench trial”; (2) counsel told

Hartman’s family that he had a good relationship with the judge, which Hartman’s

grandfather interpreted as being strong enough for the judge to find reasonable doubt;

(3) counsel informed Hartman that the trial court judge raised three sons when in fact he

had raised three daughters; (4) counsel did not explain the benefits of the jury trial and

that one juror could save the defendant; (5) on August 11, 2014, counsel stated to the

family that he had not been provided with all the discovery and was going to write a letter;

(6) counsel did not write the discovery letter until August 26, 2014, and (7) Hartman

executed the jury trial waiver on August 20, 2014. Hartman Appellate Brief, p. 57-58.

        {¶ 77} “Defense counsel’s [advice] to a client to waive his right to a jury trial has

been considered sound trial strategy in the absence of record evidence showing

otherwise.” State v. Neitzel, 2d Dist. Miami No. 98 CA 11, 1998 WL 735942, *6 (Oct. 23,

1998). Further, Hartman “has not suggested a single reason why the outcome of the

trial would probably have been otherwise had he been tried by a jury rather than before

a judge.” Id. See also State v. Aaron, 10th Dist. Franklin No. 00AP-268, 2000 WL

1753151, *4 (Nov. 30, 2000) (“Without supporting evidence, the mere claim that a jury

would have believed defendant falls far short of establishing a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”).

        {¶ 78} We conclude that trial counsel’s advice to Hartman to waive his right to a

jury trial was a reasonable trial strategy that does not rise to the level of ineffective

assistance of counsel and Hartman has failed to put forth sufficient operative facts to

establish that there is a reasonable probability that the result of the trial would have been
                                                                                         -40-


different if it was tried to a jury rather than a judge. Therefore, the trial court properly

dismissed the tenth ground for relief in Hartman’s petition. The eleventh assignment of

error is overruled.



                                      XIII. Conclusion

       {¶ 79} All of Hartman’s assignments of error having been overruled, the judgment

of the trial court is affirmed.



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



HALL, P.J. and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
S. Adele Shank
Lawrence J. Greger
Montgomery County Common Pleas Court
c/o Hon. Mary Katherine Huffman, Administrative Judge
