[Cite as State v. Lewis,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 10CA3181 : v. : : DECISION AND JOSEPH M. LEWIS, : JUDGMENT ENTRY : Defendant-Appellant. : File Stamped Date: 9-30-11

APPEARANCES:

Joseph M. Lewis, pro se, Appellant.

Matthew S. Schmidt,1 Ross County Prosecutor, and Jeffrey C. Marks, Ross County Assistant Prosecutor, Chillicothe, Ohio, for Appellee.

Kline, J.:

{¶1} Joseph M. Lewis (hereinafter “Lewis”) appeals the judgment of the Ross

County Court of Common Pleas, which dismissed his petition for postconviction relief

without a hearing. In his petition, Lewis claimed that his trial counsel was ineffective for

failing to call two specific defense witnesses. And on appeal, Lewis contends that the

trial court erred by dismissing his petition on the grounds of res judicata. Because

Lewis submitted sufficient evidence outside the record, we agree. Next, Lewis contends

that the trial court erred by dismissing his petition on substantive grounds. We agree.

The trial court found that Lewis’s proposed witnesses lacked credibility, but this finding

1 Michael M. Ater was the Ross County Prosecuting Attorney when this appeal was filed, and Mr. Ater participated in the briefing of this case. Ross App. No. 10CA3181 2

is not supported by competent, credible evidence. Accordingly, we find that that the trial

court abused its discretion by dismissing Lewis’s petition, and we reverse the judgment

of the trial court.

I.

{¶2} Lewis was convicted of robbery and sentenced to six-years in prison. On

direct appeal, we affirmed Lewis’s conviction in State v. Lewis, Ross App. No.

09CA3123,

(hereinafter “Lewis I”). Because Lewis I details both the

robbery and Lewis’s conviction, we will not repeat those facts here. See id. at ¶2-11.

{¶3} On January 21, 2010, Lewis filed a petition for postconviction relief. In his

petition, Lewis asserted several claims of ineffective assistance of counsel, including his

claim that trial counsel was ineffective for failing to call Loretta Henry (hereinafter

“Henry”) and Malik Wahid (hereinafter “Wahid”) as defense witnesses. Lewis attached

several affidavits in support of his petition. In one of the affidavits, Lewis gave his

eyewitness account of the supposed robbery. Henry gave a similar eyewitness account

in her own affidavit. Essentially, both Lewis and Henry claimed that there was no

robbery. Instead, they claimed that the victim lost his money in a drug deal gone bad.

{¶4} Lewis also submitted an affidavit related to Wahid’s alleged testimony. Wahid

did not attest to this particular affidavit. Instead, Lewis signed the notarized affidavit

and, in his own words, claimed that “[t]his is what Malik Wahid would [have] testifie[d]

to[.]” The information in the Wahid-related affidavit matches the version of events given

by Lewis and Henry.

{¶5} In opposing Lewis’s petition, the state noted the criminal records of Henry and

Wahid. The state claimed that “Henry was convicted of Aggravated Possession of Ross App. No. 10CA3181 3

Drugs in May of 2009, prior to the date of the jury trial in this matter [and that] Wahid

was convicted of five (5) counts of forgery in 2006.” Motion to Dismiss Defendant’s

Petition at 7. Based on this, the state argued that “[t]rial strategy also likely played a

role in any decision to not have these individuals testify. If each party were to testify,

their felony records would be introduced as evidence.” Id.

{¶6} On August 5, 2010, the trial court dismissed Lewis’s petition without holding

an evidentiary hearing. The trial court found that Lewis’s petition “is barred by the

doctrine of res judicata.” August 5, 2010 Judgment Entry at 6. Additionally, the trial

court found that Lewis’s petition and evidentiary materials “do not establish substantive

grounds for relief.” Id.

{¶7} Lewis appeals and asserts the following two assignments of error: I. “The

court below erred to the appellant’s prejudice by holding that his criminal trial was not

prejudiced by the ineffective assistance of counsel.” And, II. “The court below erred to

the appellant’s prejudice by holding that his post-conviction relief petition was barred by

res judicata.”

II.

{¶8} The trial court did not hold a hearing before dismissing Lewis’s petition for

postconviction relief. Consequently, we will review Lewis’s appeal under an abuse-of-

discretion standard. State v. Hicks, Highland App. No. 09CA15,

, at ¶10

(stating that “abuse of discretion is the most prevalent standard for reviewing the

dismissal of a petition for postconviction relief without a hearing”). An abuse of

discretion is more than an error of judgment; “it implies that the court’s attitude is Ross App. No. 10CA3181 4

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983),

.

{¶9} “The post-conviction relief statute, R.C. 2953.21, provides a remedy for a

collateral attack upon judgments of conviction claimed to be void or voidable under the

Constitutions of the United States or Ohio.” State v. Bradford, Ross App. No.

08CA3053,

, citing State v. Hatton (Aug. 4, 2000), Pickaway App.

No. 00CA10. In order to prevail on a postconviction-relief petition, the petitioner must

establish that he has suffered an infringement or deprivation of his constitutional rights.

See R.C. 2953.21(A)(1); State v. Calhoun,

, 283,

.

{¶10} A criminal defendant seeking to challenge his conviction through a petition for

postconviction relief is not automatically entitled to a hearing. See State v. Cole (1982),

; State ex rel. Jackson v. McMonagle,

,

. “Before granting a hearing on a petition * * *, 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.” R.C.

2953.21(C).

{¶11} Indeed, R.C. 2953.21(C) imposes a duty on the trial court to ensure that the

petitioner adduces sufficient evidence to warrant a hearing.

; State v.

Weddington, Lawrence App. No. 10CA19,

. “The court may

dismiss a petition for post-conviction relief without a hearing when the petitioner fails to Ross App. No. 10CA3181 5

submit evidentiary material setting forth sufficient operative facts to demonstrate

substantive grounds for relief.” Bradford at ¶10, citing State v. Jackson (1980),

.

{¶12} In his petition for postconviction relief, Lewis made several different claims of

ineffective assistance of counsel. But on appeal, Lewis focuses exclusively on his trial

counsel’s failure to call Henry and Wahid as witnesses. Therefore, we will address only

Lewis’s failure-to-call-witnesses claim.

A.

{¶13} For ease of analysis, we will review Lewis’s second assignment of error out of

order. In his second assignment of error, Lewis contends that the trial court erred by

dismissing his petition on the grounds of res judicata. Because Lewis submitted

sufficient evidence outside the record, we agree. (In resolving Lewis’s second

assignment of error, we have addressed only the arguments and evidence related to

Henry. Thus, we need not address the competency or credibility of Lewis’s Wahid-

related evidence.)

{¶14} Lewis based his petition on ineffective assistance of counsel. As part of his

argument, Lewis claimed that his attorney was ineffective for refusing to call Henry as a

witness. “For a defendant to avoid dismissal of the petition by operation of res judicata,

the evidence supporting the claims in the petition must be competent, relevant, and

material evidence outside the trial court record, and it must not be evidence that existed

or was available for use at the time of the trial.” In re B.C.S., Washington App. No.

07CA60,

, at ¶14, citing State v. Lawson (1995),

(other citations omitted). In support of his petition, Lewis submitted Henry’s Ross App. No. 10CA3181 6

affidavit, which contained Henry’s eyewitness account of the supposed robbery. And

according to Lewis, Henry’s testimony could have changed the outcome of his trial.

{¶15} “Generally, the introduction in an R.C. 2953.21 petition of evidence dehors

the record of ineffective assistance of counsel is sufficient, if not to mandate a hearing,

at least to avoid dismissal on the basis of res judicata.”

; State v. Rector,

Carroll App. No. 04 CA 810,

. Because Henry’s affidavit

constitutes evidence outside the record, Lewis could not have raised his failure-to-call-

witnesses claim on direct appeal. Therefore, the trial court erred in dismissing this

particular claim on res-judicata grounds. See, e.g., State v. Goza, Cuyahoga App. No.

91085,

(“Because [the petitioner’s] medical records and [a

doctor’s] letter are evidence outside the record, the claim could not have been raised on

direct appeal, and the trial court erred in dismissing this claim on the basis of res

judicata.”); Rector at ¶11 (“Appellant’s postconviction relief theory depends upon the

testimony of five witnesses who were not called to testify at trial, and who have

knowledge of certain facts that were not made known at trial. Many of these facts were

not in the record on direct appeal, and thus, could not have been used to support

Appellant’s earlier arguments of ineffective assistance of counsel.”).

{¶16} Accordingly, as it relates to his failure-to-call-witnesses claim, we sustain

Lewis’s second assignment of error.

B.

{¶17} In his first assignment of error, Lewis contends that the trial court erred by

dismissing his petition for postconviction relief on substantive grounds. As noted earlier, Ross App. No. 10CA3181 7

Lewis claimed that his trial counsel was ineffective for failing to call Henry and Wahid as

witnesses.

{¶18} “In Ohio, a properly licensed attorney is presumed competent and the

appellant bears the burden to establish counsel’s ineffectiveness.” State v. Norman,

Ross App. Nos. 08CA3059 & 08CA3066,

, at ¶65 (internal quotations

omitted); see, also, State v. Wright, Washington App. No. 00CA39,

;

State v. Hamblin (1988),

, cert. den. Hamblin v. Ohio (1988)

. To succeed on an ineffective-assistance-of-counsel claim, one must

show two things: (1) “that counsel’s performance was deficient * * *[,]” which “requires

showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment[;]” and (2) “that the

deficient performance prejudiced the defense * * *[,]” which “requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland v. Washington (1984),

. See, also,

Norman at ¶65. “Failure to satisfy either prong is fatal as the accused’s burden requires

proof of both elements.” State v. Hall, Adams App. No. 07CA837,

, citing State v. Drummond,

,

, at ¶205.

1. Evidence Related to Wahid’s Potential Testimony

{¶19} Initially, we note that the trial court did not consider the evidence related to

Wahid’s potential testimony. As the trial court found, “[T]he information provided by

Petitioner attached to the Petition concerning statements of Malik Wahid are not in the

form of an affidavit. Therefore, they will not be considered.” We, however, disagree Ross App. No. 10CA3181 8

with this finding. Although the record is somewhat confusing, we believe that Lewis’s

Wahid-related evidence is in the form of an affidavit.

{¶20} Black’s Law Dictionary defines an “affidavit” as “[a] voluntary declaration of

facts written down and sworn to by the declarant before an officer authorized to

administer oaths.” Black’s Law Dictionary (9th ed. 2009). And here, Lewis submitted his

own written statement, wherein he declared that “[t]his is what Malik Wahid would

testifie [sic] to[.]” Then, Lewis described a version of events that differed from the

version of events presented at his trial. Granted, Lewis’s submission is all hearsay, but

the document is in the form of an affidavit – the document contains both a notary seal

and the signature of the notary public.

{¶21} The trial court could have found that Lewis’s Wahid-related affidavit lacked

credibility for any number of reasons. For example, Lewis’s affidavit contains nothing

but hearsay. See Calhoun at 285. Additionally, as the affiant, Lewis is interested in the

success of his petition. Id. And finally, Lewis drafted multiple affidavits that contain

similar language. Id. Nevertheless, in the proceedings below, the trial court discounted

Lewis’s Wahid-related affidavit for an incorrect reason. Because of this, we find that the

trial court abused its discretion by not considering the evidence related to Wahid’s

potential testimony.

2. Witness Credibility

{¶22} In considering Lewis’s failure-to-call-witnesses claim, the trial court found the

following: “Trial counsel was not ineffective in refusing to call the Petitioner’s two

purported witnesses, Malik Wahid and Loretta Henry. As pointed out by the State, both

Wahid and Henry have extensive criminal convictions including drug offenses. The Ross App. No. 10CA3181 9

credibility of these witnesses is tainted by these convictions. [T]rial counsel is granted

great leeway in formulating a trial strategy.” August 5, 2010 Judgment Entry at 7

(emphasis added). Essentially, the trial court found that Lewis’s trial counsel engaged

in a reasonable trial strategy because Henry and Wahid would not have been credible

witnesses.

{¶23} Here, we acknowledge that “appellate courts will not review, for purposes of

ineffective assistance claims, trial ‘strategy,’ even if that trial strategy proves to be

ultimately unsuccessful.” State v. Keck, Washington App. No. 09CA50, 2011-Ohio-

1643, at ¶67 (citations omitted). We also acknowledge that “[t]he failure to call a

witness to testify ordinarily is a matter of trial strategy that will not be second-guessed

by a reviewing court.” State v. Clinard, Clark App. No. 2010 CA 13,

, at

¶51 (internal quotation omitted). Nevertheless, in the present case, we must find that

the record does not support the trial court’s lack-of-credibility finding.

{¶24} When considering a petition for postconviction relief, “[t]he Supreme Court of

Ohio has stated that we should conduct a ‘plain and adequate review’ based upon the

trial court’s findings of fact and conclusions of law. State ex rel. Kaldor v. Court of

Common Pleas of Belmont Cty. (1984),

. Thus, we must

determine whether the trial court’s findings are supported by competent, credible

evidence in the record. State v. Isham (Aug. 23, 1995), Montgomery App. No. 15136[.]”

State v. Fuller (Nov. 21, 1995), Athens App. No. 95CA1653. Here, the trial court based

its lack-of-credibility finding on the criminal records of Henry and Wahid. As the state

noted, “Henry was convicted of Aggravated Possession of Drugs in May of 2009, prior

to the date of the jury trial in this matter[, and] Wahid was convicted of five (5) counts of Ross App. No. 10CA3181 10

forgery in 2006.” Motion to Dismiss Defendant’s Petition at 7. However, the record

contains no evidence of either Henry’s or Wahid’s convictions. There are only the

state’s assertions about their criminal histories, and, in our view, the state’s bare

assertions do not constitute competent, credible evidence. See, generally, State ex rel.

Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis,

,

(rejecting an argument, in part, because a party provided

no evidence “aside from the bare unverified assertions in their appellate brief”). As a

result, we must find (1) that the record does not support the trial court’s lack-of-

credibility finding and (2) that the trial court abused its discretion by dismissing Lewis’s

petition on the failure-to-call-witnesses claim.

{¶25} Accordingly, as it relates to his failure-to-call-witnesses claim, we sustain

Lewis’s first assignment of error.

III.

{¶26} Having sustained both of Lewis’s assignments of error, we find that the trial

court abused its discretion by dismissing Lewis’s petition for postconviction relief without

an evidentiary hearing. On remand, the trial shall grant Lewis a hearing under R.C.

2953.21(E).

{¶27} Accordingly, we reverse the decision of the trial court and remand this cause

for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED. Ross App. No. 10CA3181 11

Harsha, P.J., concurring:

{¶28} In spite of my previous conclusion that a mixed standard of review is more

appropriate to determine whether substantive grounds for relief exist, see In re: B.C.S.,

Washington App. No. 07CA60,

, at 9, I now join my colleagues in

applying the abuse of discretion standard of review here. I do so because of my

rereading of State v. Calhoun,

, which states, “the statute

clearly calls for discretion in determining whether to grant a hearing, * * *.” Although it

seems illogical to apply an abuse of discretion standard to determine whether a petition

meets a certain legal standard, so be it. Ross App. No. 10CA3181 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED AND THE CAUSE BE REMANDED for further proceedings consistent with this opinion. Appellee shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas 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. Exceptions.

Harsha, P.J..: Concurs in Judgment and Opinion with Concurring Opinion. Abele, J.: Concurs in Judgment and Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.