[Cite as State v. Onunwor, 2012-Ohio-4818.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97895



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                CLIFTON ONUNWOR
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                              AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-517054

        BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                      October 18, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

By: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

      {¶1} Clifton Onunwor appeals the denial of his petition for post-conviction relief

in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.

      {¶2} Appellant was indicted on October 23, 2008, and charged with one count of

aggravated murder and two counts of tampering with evidence.       Following a jury trial,

appellant was found to be guilty of all counts and sentenced to life without parole for

aggravated murder, to be served consecutively to a three-year firearm specification.   The

trial court further sentenced appellant to two two-year prison terms on the tampering with

evidence counts, to be served concurrently.

      {¶3} Appellant brought a direct appeal of his convictions to this court wherein he

asserted eight assignments of error, essentially amounting to procedural errors, improper

admission of evidence and ineffective assistance of counsel due to the failure to preserve

certain issues for appeal.   On November 18, 2010, this court affirmed appellant’s

convictions. State v. Onunwor, 8th Dist. No. 93937, 2010-Ohio-5587 (“Onunwor I”).

Appellant petitioned for leave to appeal to the Ohio Supreme Court, but the court denied

appellant’s petition and dismissed the appeal.   State v. Onunwor, 128 Ohio St.3d 1415,

2011-Ohio-828, 942 N.E.2d 386.

      {¶4} During the pendency of his direct appeal, appellant filed a petition for

postconviction relief in the Cuyahoga County Court of Common Pleas on April 26, 2010.
 Appellant asserted that he received ineffective assistance from his trial counsel and that

the prosecution failed to produce exculpatory evidence to him prior to trial.     The trial

court summarily denied appellant’s petition for postconviction relief.

      {¶5} Appellant appeals from the trial court’s denial of his petition asserting the

following sole assignment of error:

      The trial court’s summary dismissal of Clifton Onunwor’s petition for
      post-conviction relief violated his right to due process because the court did
      so without meaningfully addressing the new evidence upon which the
      petition was based or analyzing its impact on the [sic] Onunwor’s case
      overall.

      {¶6} Petitions for postconviction relief are governed by the standards set forth in

R.C. 2953.21, which provides, in pertinent part:

      (A)(1)(a) Any person who has been convicted of a criminal offense * * *
      and who claims that there was such a denial or infringement of the person’s
      rights as to render the judgment void or voidable under the Ohio
      Constitution or the Constitution of the United States * * * may file a
      petition in the court that imposed sentence, stating the grounds for relief
      relied upon, and asking the court to vacate or set aside the judgment or
      sentence or to grant other appropriate relief. The petitioner may file a
      supporting affidavit and other documentary evidence in support of the claim
      for relief.

      ***



      (C) The court shall consider a petition that is timely filed under division
      (A)(2) of this section even if a direct appeal of the judgment is pending.
      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.

       {¶7} A trial court’s decision granting or denying a postconviction petition filed

pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of

discretion is “more than an error of law or of judgment; it implies that the court’s attitude

is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980). A reviewing court should not overrule the trial court’s finding

on a petition for postconviction relief that is supported by competent and credible

evidence. Gondor at ¶ 58.

       {¶8} A trial court’s decision to deny a postconviction petition without a hearing

is also reviewed under the abuse of discretion standard. State v. Broom, 8th Dist. No.

96747, 2012-Ohio-587, ¶ 13, citing State v. Abdussatar, 8th Dist. No. 92439,

2009-Ohio-5232, ¶ 15.

       {¶9} The Ohio Supreme Court has held that a trial court, pursuant to R.C.

2953.21(C), may dismiss a 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, 1999-Ohio-102, 714 N.E.2d 905, at paragraph two of the syllabus. According

to the Ohio Supreme Court, it is “not unreasonable to require the defendant to show in his
petition for postconviction relief that such errors resulted in prejudice before a hearing is

scheduled.” Id. at 283.

       {¶10}   Pursuant to State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975),

       there are two conditions that must be satisfied prior to the court holding a
       hearing: the petitioner must state substantive grounds for relief, and the
       issue cannot be determined through a review of the record. This court,
       therefore, additionally recognized that trial courts are required to hold an
       evidentiary hearing only if the petitioner is relying on facts outside the
       record. Broom, ¶ 14.

       {¶11}   R.C. 2953.21(A) requires a petitioner for postconviction relief to allege a

“denial or infringement” of his rights under the Ohio or United States Constitutions.     In

the case sub judice, appellant asserted two separate denials or infringements: first, that he

was denied effective assistance of counsel as required by the Sixth Amendment to the

United States Constitution because his trial counsel did not “investigate, develop, and

present evidence that would have undermined the prosecution’s case”; and second, that he

was denied his due process rights to a fair trial under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution due to “prosecutorial misconduct.”

       {¶12}   Both of appellant’s arguments are related to records of appellant’s cell

phone activity during the time frame of his mother’s murder on the night of September

18, 2008, and the early morning hours of September 19, 2008. Appellant argues that these

phone records show a near-constant exchange of text messages and phone calls between

appellant and others (primarily his girlfriend) on the night of the murder and that, due to

this exchange, appellant would have been unable to commit the crime as alleged.
Appellant further argues that the phone records contradict and would have discredited

testimony, including time frames of his activity that night, provided by prosecution

witnesses at trial.   Appellant’s ineffective assistance of counsel claim stems from his

trial counsel’s alleged failure, despite appellant’s alleged repeated requests, to obtain the

phone records for use at trial.    Appellant’s prosecutorial misconduct claim stems from

his assertion that the prosecution possessed the cell phone records prior to trial but failed

to produce them to the defense as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963).

       {¶13}    At the outset, we are compelled to address one of the common doctrinal

hurdles that postconviction relief petitioners must clear: the doctrine of res judicata.

       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 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.

(Internal quotation marks and citation omitted.)        Abdussatar, 8th Dist. No. 92439,

2009-Ohio-5232, ¶ 13.

       {¶14}    A petition for postconviction relief may be denied or dismissed on res

judicata grounds if the trial court “finds that the petitioner could have raised the issues in

the petition at trial or on direct appeal without resorting to evidence beyond the scope of

the record.”   (Emphasis added.) Id. at ¶ 16; accord State v. Williams, 8th Dist. No.

85893, 2005-Ohio-6020, ¶ 7.
        {¶15} With these principles in mind, we find that appellant’s prosecutorial

misconduct claim is barred by res judicata.               Appellant asserts that the prosecution

provided in discovery that it had obtained phone records and, despite his own submitted

records indicating that he possessed at least three separate cell phone accounts, appellant

assumes that the state must have possessed the particular cell phone records upon which

he now bases his arguments. Accordingly, it is apparent that appellant’s prosecutorial

misconduct claim is rooted in actions that occurred during the pretrial discovery process.

Records of that process, and the parties’ motions and responses therein, would certainly

be within the scope of the record on direct appeal.             Similarly, appellant acknowledged

his own awareness of these particular cell phone records prior to trial as he asserts that he

implored his trial counsel to obtain the records for use in his defense. Appellant was,

therefore, required to present his prosecutorial misconduct argument on direct appeal and,

having failed to do so, the argument is barred by res judicata. Accordingly, we dismiss

appellant’s prosecutorial misconduct claim.1


1
  Even were we to consider the merits of appellant’s prosecutorial misconduct claim, we would not
find it convincing. Brady requires that evidence “material either to guilt or to punishment” may not be
suppressed by the prosecution. Brady, 373 U.S. 83, 87, 83 S.Ct. 1194. Evidence is “material” when
“there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375,
87 L.Ed.2d 481 (1985). For reasons more fully explored below, on the facts before us, we are not
convinced that the phone records at issue were material evidence. In addition, the defense’s
argument rests on a prosecution discovery response that lists “Cell phones and records” in an
“Evidence List.” There is no indication of what the “records” were, or to what cell phone numbers
they corresponded. Appellant’s brief notes that appellant’s own trial counsel first requested records
for two telephone numbers under appellant’s name that had been discontinued and only afterwards did
his appellate counsel obtain the phone records corresponding to the number that appellant was
       {¶16}    In contrast to appellant’s prosecutorial misconduct argument, his claim of

ineffective assistance of counsel argument is firmly based on evidence that was outside

the scope of the trial record: namely, the cell phone records attached to his petition for

postconviction relief.     “It is well-established in Ohio law that where an ineffective

assistance of counsel claim cannot be supported solely on the trial court record, it should

not be brought on direct appeal.” Williams v. Anderson, 460 F.3d 789, 800 (6th Cir.

2006), citing, inter alia, State v. Cooperrider, 4 Ohio St.3d 226, 228-229, 448 N.E.2d 452

(1983); State v. Coleman, 85 Ohio St.3d 129, 134, 707 N.E.2d 476 (1999). Because the

phone records at issue were not part of the record prior to appellant’s petition for

postconviction relief, they were not proper subjects of direct appeal and, therefore,

appellant’s claim of ineffective assistance of counsel is not barred by res judicata.

       {¶17} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and      (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different. Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. Pursuant to Strickland, courts need not undertake analysis of both prongs:



allegedly using at the time of the homicide. There is no indication in the record that the phone
records referenced in the prosecution’s discovery records have any relation to the phone records at
issue in this appeal.
“[i]n particular, a court need not determine whether counsel’s performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Strickland at 697; accord Bradley, at 143.

       {¶18} We are prevented from examining appellant’s alleged ineffective assistance

of counsel claim due to his failure to furnish the court with the transcripts and exhibits

from his trial. In Ohio, the appellant has the duty to file the transcript or such parts of

the transcript that are necessary for evaluating the lower court’s decision. App.R. 9(B);

State v. Peterson, 8th Dist. No. 96958, 2012-Ohio-87, ¶ 7.              Failure to file the transcript

prevents an appellate court from reviewing an appellant’s assignments of error. State v.

Turner, 8th Dist. No. 91695, 2008-Ohio-6648, ¶ 13. In order to evaluate appellant’s

arguments that the phone records would have altered the outcome of the case by

discrediting prosecution witnesses, review of the trial transcripts is a necessity. 2

Lacking the requisite materials in the record to evaluate the trial court’s analysis pursuant

to R.C. 2953.21(C), we must presume regularity in the proceedings below.                       State v.

Lababidi, 2012-Ohio-267, 969 N.E.2d 335, ¶ 13 (8th Dist.); State v. Rice, 8th Dist. No.

95100, 2011-Ohio-1929, ¶ 6.             Because appellant did not file a transcript of the

proceedings below and the accompanying exhibits that are necessary for our

determination of the issue at bar, his argument that the trial court abused its discretion in



2
 The trial court noted in its journal entry that appellant was provided with a full opportunity at trial
to cross-examine the witnesses, including his girlfriend, regarding his phone conversations,
whereabouts and activity on the night in question.
denying his petition for postconviction relief without holding an evidentiary hearing is

without merit.3

       {¶19} We do note that our examination of appellant’s phone records, without

reference to the transcript and exhibits from trial, does not reveal exculpatory evidence.

It is incredulous for appellant to suggest that one is incapable of multitasking by having

an open phone call while simultaneously discharging a firearm.                The records, a

significant portion of which were text messages, do not demonstrate that appellant could

not have been engaged in other activities while he was using the phone throughout the

night. Any observer of modern society would note that cell phone users are (often

regrettably) capable of performing multiple tasks while using their phones.

       {¶20}      The phone records provided by appellant offer nothing more than the date,

time, phone number from which a call was placed or to which a call was placed and the

call length.   They do not specify the location of the phone at the time the call was being

had or call into question appellant’s ability to have been present at the victim’s home on

the night of the murder.

       {¶21}      The court does acknowledge that appellant’s phone activity on the night in

question was, during certain parts of the night, prolific, but nevertheless there are

numerous gaps in time in which no activity was recorded. It is not this court’s position,

or duty, to speculate as to how long it would take to commit the crime that occurred in

this case but, particularly in light of appellant’s failure to provide us with the record from

3
 Appellant’s failure to provide the record would similarly preclude a proper examination of his
trial, we cannot say that the trial court abused its discretion in concluding that,

“[n]otwithstanding his phone use, [appellant] had full opportunity to commit the offenses

within the window of time established by the state.”

       {¶22}    Appellant’s sole assignment of error is overruled.

       {¶23}    The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
COLLEEN CONWAY COONEY, P.J., CONCURS
IN JUDGMENT ONLY




claim of prosecutorial misconduct even if that argument was not barred by res judicata.
