[Cite as State v. Piesciuk,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-01-011

: OPINION - vs - 9/9/2013 :

JOSEPH PIESCIUK, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2003-03-0387

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Joseph Piesciuk, #A466-025, Grafton Correctional Institution, 2500 South Avon Beldon Road, Grafton, Ohio 44044, defendant-appellant, pro se

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Joseph Piesciuk, pro se, appeals a decision of the Butler

County Court of Common Pleas denying his petition for postconviction relief. For the reasons

discussed below, we affirm the judgment of the trial court.

I. FACTS

{¶ 2} In March 2003, the Butler County Grand Jury returned a 34-count indictment Butler CA2013-01-011

against appellant stemming from his role as the president of Original Home Improvement

Center ("OHIC"), a remodeling company located in Middletown, Ohio. The indictment

charged that, from April 1, 2000 to November 1, 2000, appellant used his company to take

money from multiple homeowners by securing numerous remodeling projects and then failing

to commence the project or perform the services as promised. Appellant left projects

incomplete and did not refund any of his customers' monies. The indictment further alleged

that appellant failed to pay subcontractors who performed work on certain construction

projects during the same time period. Following a jury trial in December of 2003, appellant

was convicted of 13 counts of theft by deception, eight counts of money laundering, and one

count of engaging in a pattern of corrupt activity. Appellant was sentenced to serve 21 years

in prison and ordered to pay restitution.

{¶ 3} Appellant directly appealed his conviction, and this court affirmed his conviction

and sentence but reversed and remanded a portion of the trial court's restitution order that

was not supported by sufficient evidence. State v. Piesciuk, 12th Dist. Butler No. CA2004-

03-055,

(the "direct appeal"). Thereafter, the Ohio Supreme Court reversed

appellant's sentence and remanded the matter to the trial court for resentencing pursuant to

State v. Foster,

,

. In re Ohio Criminal Sentencing Statutes

Cases,

,

.

{¶ 4} Appellant was resentenced in March 2007 to a 21-year prison term and was

again ordered to pay restitution. Appellant appealed, and this court affirmed appellant's

resentencing but modified the restitution order to correct a mathematical error. State v.

Piesciuk, 12th Dist. Butler No. CA2007-04-086,

. Appellant appealed his

resentencing to the Ohio Supreme Court but the court declined review. State v. Piesciuk,

,

.

{¶ 5} In March 2005, while appellant's direct appeal was pending before this court, -2- Butler CA2013-01-011

appellant filed a postconviction relief petition with the trial court, arguing that his conviction

and sentence violated a number of his constitutional rights. On April 1, 2005, the trial court

denied appellant's petition without holding an evidentiary hearing. The trial court did not

issue findings of fact or conclusions of law at this time. In an original action in mandamus,

this court ordered the trial court to file findings of fact and conclusions of law. State ex rel.

Piesciuk v. Hon. Andrew Nastoff, 12th Dist. Butler No. CA2011-07-137 (May 25, 2012)

(judgment entry).

{¶ 6} On January 7, 2013, the trial court issued its findings of facts and conclusions

of law for the denial of the March 2005 petition for postconviction relief. Appellant now

appeals from the denial of his petition, setting forth 10 assignments of error. Within his

assignments of error, appellant asserts that his trial counsel was ineffective, that he was

prejudiced by his counsel's ineffectiveness, and that he provided sufficient evidence and

information demonstrating his trial counsel's ineffectiveness to warrant an evidentiary hearing

prior to the court's decision on his petition for postconviction relief.

II. ANALYSIS

A. Standard of Review

{¶ 7} Pursuant to R.C. 2953.21, a defendant may collaterally attack his conviction

based upon an infringement or deprivation of his constitutional right. "In reviewing an appeal

of postconviction relief proceedings, this court applies an abuse of discretion standard."

State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106,

, citing State v. Wagers, 12th Dist. Preble No. CA2011-08-007,

, ¶ 15.

For this court to find an abuse of discretion we must find more than an error of judgment; we

must find that the trial court's ruling was unreasonable, arbitrary, or unconscionable.

Furthermore, a reviewing court will not overrule the trial court's finding on a petition for

postconviction relief where the finding is supported by competent and credible evidence. -3- Butler CA2013-01-011

Wagers at ¶ 15.

B. Ineffective Assistance of Counsel Claims

{¶ 8} In his ten assignments of error, appellant sets forth a multitude of claims under

which he believes his trial counsel was ineffective. Prior to addressing each claim, we first

note that "[w]hen determining whether a defendant's Sixth Amendment right to effective

assistance of counsel has been violated, 'a court must indulge in 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

actions might be considered sound trial strategy.'" Vore at ¶ 13, quoting Strickland v.

Washington,

,

(1984).

{¶ 9} To prevail on an ineffective assistance of counsel claim, an appellant must

establish that his trial counsel's performance was deficient and that such deficiency

prejudiced the defense to the point of depriving the appellant of a fair trial. Vore at ¶ 13,

citing State v. Myers, 12th Dist. Fayette No. CA2005-12-035,

. Trial

counsel's performance will not be deemed deficient unless it "fell below an objective standard

of reasonableness."

quoting

. To show prejudice, the appellant must

prove there exists "a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different."

quoting

.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AND FOURTEENTH

AMENDMENT[S] [TO] THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

16 OF THE OHIO CONSTITUTION, BY THE STATE'S SUPPRESSION AND/OR

ALTERATION, OF EXCULPATORY EVIDENCE.

{¶ 12} In his first assignment of error, appellant contends trial counsel was ineffective -4- Butler CA2013-01-011

for failing to investigate and find exculpatory evidence of payments he secured for the benefit

of OHIC after he sold his majority interest in OHIC to Steve Lajoye in late 2000. Specifically,

appellant contends his attorney would have found that appellant obtained $8,000 from OHIC

customer Bruce Huddleston, which appellant believes "would have shown that [he] provided

sufficient capital to operate OHIC and for Lajoye to begin fulfilling contracts [sic] obligations."

{¶ 13} Appellant did not raise this issue in his 2005 petition for postconviction relief.

We, therefore, cannot consider this issue for the first time on appeal. See State v. Miley,

(12th Dist. 1991) ("an appellate court need not consider an error which

a party complaining of the trial court's judgment could have called, but did not call, to the trial

court's attention at a time when such error could have been avoided or corrected by the trial

court").

{¶ 14} Accordingly, appellant's first assignment of error is overruled.

{¶ 15} Assignment of Error No. 2:

{¶ 16} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AND FOURTEENTH

AMENDMENT[S] [TO] THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

16 OF THE OHIO CONSTITUTION, BY THE STATE'S SUPPRESSION AND/OR 1 ALTERATION, OF EXCULPATORY EVIDENCE.

{¶ 17} In his second assignment of error, appellant asserts trial counsel was

ineffective for failing to discredit the state's trial Exhibit No. 52, a yellow pages advertisement

for OHIC publicizing the company's decades of experience in home remodeling. At trial, the

state introduced the advertisement into evidence as proof that appellant, who purchased

1. We note that while appellant has captioned his first and second assignments of error with identical language, the arguments contained within the two assignments of error are separate and distinct. Accordingly, we address each assignment of error in turn. -5- Butler CA2013-01-011

OHIC in 2000 with little experience in the field, placed the ad to entice and deceive

customers into contracting with OHIC. Appellant claims the advertisement was placed by

OHIC's previous owner, that the advertisement was altered by the prosecution, and that he

had informed his trial counsel "sufficiently in advance of trial" that he had not placed the ad,

but his counsel did not investigate these issues.

{¶ 18} We find that appellant's claim is barred by the doctrine of res judicata, which

states that "a final judgment of conviction bars a convicted defendant who was represented

by counsel from raising and litigating in any proceeding except an appeal from that judgment,

any defense or any claimed lack of due process that was raised or could have been raised by

the defendant at the trial which resulted in that judgment of conviction, or on an appeal from

that judgment." Wagers,

at ¶ 10, citing State v. Szefcyk,

(1996), syllabus. "Res judicata is a proper basis for dismissing a defendant's petition for

postconviction relief when the defendant, represented by new counsel on direct appeal, fails

to raise therein the issue of competent trial counsel and the issue could fairly have been

determined without resort to evidence outside the record." Id. at ¶ 11, citing State v. Cole,

(1982), syllabus. However, "there is an exception to the res judicata bar

when the petitioner presents competent, relevant, and material evidence outside the record

that was not in existence and available to the petitioner in time to support the direct appeal."

(Emphasis added.) Id. at ¶ 12, citing State v. Lawson,

(12th

Dist. 1995). Evidence outside the record, or evidence dehors the record, must demonstrate

that appellant could not have appealed the constitutional claim based upon information in the

original record and such evidence must not have been in existence and available to the

petitioner at the time of trial.

{¶ 19} Appellant's petition for postconviction relief clearly states that he knew

"sufficiently in advance of trial" about the yellow pages advertisement and that his trial -6- Butler CA2013-01-011

counsel had not sufficiently investigated the authenticity of the advertisement. Any claim that

his trial counsel was ineffective for failing to investigate the advertisement could have, and

should have, been raised on direct appeal.

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

{¶ 21} Assignment of Error No. 3:

{¶ 22} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AMENDMENT [TO] THE

UNITED STATES CONSTITUTION, BY TRIAL COUNSEL'S FAILURE TO OBTAIN "OHIC"

RECORDS, FROM THE MIDDLETOWN POLICE DEPARTMENT THAT HAD BEEN

STOLEN FROM THE "OHIC" IN A BREAK IN [SIC] THAT OCCURRED ON SEPTEMBER 5,

2000.

{¶ 23} In his third assignment of error, appellant claims trial counsel was ineffective for

failing to obtain records from the Middletown Police Department that were stolen from

appellant's business in a September 2000 break-in. Appellant claims that had his trial

counsel located the records and presented them at trial, the state would not have proved that

appellant intended to deceive OHIC's customers.

{¶ 24} We find that appellant's claim is barred by the doctrine of res judicata as

appellant could have raised this issue on direct appeal. See Wagers,

at ¶

10. We further note that appellant failed to attach any of the business records to his petition

for postconviction relief. Accordingly, the role that such records would have played in the

outcome of appellant's trial is nothing but mere speculation. "Conjecture built upon

insufficiently supported speculation does not establish substantive grounds entitling a

defendant to postconviction relief." State v. English, 9th Dist. Lorain No. CA 99CA007408,

, *4 (Mar. 8, 2000).

{¶ 25} Appellant's third assignment of error is overruled. -7- Butler CA2013-01-011

{¶ 26} Assignment of Error No. 4:

{¶ 27} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AMENDMENT [TO] THE

UNITED STATES CONSTITUTION BY TRIAL COUNSEL'S FAILURE TO OBTAIN "OHIC"

RECORDS FROM THE LAW FIRM PRATT, SINGER & THOMAS.

{¶ 28} In his fourth assignment of error, appellant asserts trial counsel was ineffective

for failing to present a letter from attorney Andrew Singer advising appellant on the

capitalization of OHIC. Appellant failed to attached a copy of the letter to his petition for

postconviction relief, but nonetheless contends that the letter would have countered the

state's theory that appellant undercapitalized the business in an attempt to deceive.

{¶ 29} Again, we find that appellant's claim is barred by the doctrine of res judicata as

appellant could have raised this issue on direct appeal. See

. Additionally, as

appellant did not attach a copy of the letter to his petition for postconviction relief, the trial

court did not abuse its discretion in determining that appellant was not prejudiced by his trial

counsel's choice not to enter the letter into evidence. As stated above, "[c]onjecture built

upon insufficiently supported speculation does not establish substantive grounds entitling a

defendant to postconviction relief." English at *4.

{¶ 30} Accordingly, appellant's fourth assignment of error is overruled.

{¶ 31} Assignment of Error No. 5:

{¶ 32} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AMENDMENT [TO] THE

UNITED STATES CONSTITUTION, BY TRIAL COUNSEL'S FAILURE TO INVESTIGATE

AND/OR CALL WITNESSES TO THE STAND WHO HAD EXCULPATORY EVIDENCE.

{¶ 33} In his fifth assignment of error, appellant asserts trial counsel was ineffective for

failing to call Jonathan Fox and other unnamed "exculpatory witnesses" at trial. Appellant -8- Butler CA2013-01-011

claims that Fox would have testified that OHIC was sufficiently capitalized and the other

unnamed "exculpatory witnesses" would have affirmatively established appellant had every

intention of completing his obligations to OHIC's customers.

{¶ 34} Other than Fox, appellant did not identify the names of the witnesses he

believes his counsel should have called at trial. Further, appellant did not attach affidavits

from any witnesses detailing what their testimony would have been had they been called as

witnesses at trial. We agree with the trial court that, absent information concerning the

substance of their testimony, any benefit such testimony would have had on appellant's case

is unknown. It would be pure speculation to conclude that the results of appellant's trial

would have been different had the unnamed individuals testified. Appellant has, therefore,

failed to demonstrate how he was prejudiced by his trial counsel's actions.

{¶ 35} Accordingly, appellant's fifth assignment of error is overruled.

{¶ 36} Assignment of Error No. 6:

{¶ 37} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AMENDMENT [TO] THE

UNITED STATES CONSTITUTION, BY TRIAL COUNSEL'S FAILURE TO INVESTIGATE

THE AMOUNT OF FUNDS PAID BY APPELLANT'S INSURANCE CARRIER TO

HOMEOWNERS.

{¶ 38} In his sixth assignment of error, appellant claims trial counsel was ineffective for

failing to present insurance documents to show that one customer, Judith Bierly, received

$18,872.33 from an insurance policy held by OHIC, which appellant contends ultimately

resulted in him being ordered to pay an inflated restitution amount. He also argues his

counsel should have presented evidence at trial that OHIC carried an insurance policy as a

way of demonstrating that appellant had no intention of harming his customers.

{¶ 39} We note that this court previously modified the amount of the restitution award -9- Butler CA2013-01-011

to Bierly on appeal from appellant's resentencing. Piesciuk,

. This issue is,

therefore, moot.

{¶ 40} With respect to counsel's failure to present evidence that OHIC carried an

insurance policy, we note that the trial court judge barred any reference to any insurance

payment received by Bierly. Any issue with the trial court's evidentiary ruling could have, and

should have, been raised on direct appeal. See

. Accordingly, we find that

appellant's claim is barred by res judicata.

{¶ 41} Appellant's six assignment of error is overruled.

{¶ 42} Assignment of Error No. 7:

{¶ 43} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AMENDMENT [TO] THE

UNITED STATES CONSTITUTION, BY TRIAL COUNSEL'S FAILURE TO MOVE THE

COURT FOR A CHANGE OF VENUE.

{¶ 44} In his seventh assignment of error, appellant asserts trial counsel was

ineffective for failing to move for a change of venue on the ground of prejudicial pretrial

publicity.

{¶ 45} We find that appellant's claim is barred by the doctrine of res judicata as

appellant could have raised the issue of change of venue on direct appeal. See

. Furthermore, appellant has failed to attach any evidence to his petition for postconviction

relief demonstrating that pretrial publicity prevented him from obtaining a fair and impartial

jury in Butler County. It would be pure speculation to conclude that the results of appellant's

trial would have been different had appellant's trial counsel sought a change in venue or had

the case been tried in a different county.

{¶ 46} Appellant's seventh assignment of error is, therefore, overruled.

{¶ 47} Assignment of Error No. 8: - 10 - Butler CA2013-01-011

{¶ 48} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AMENDMENT [TO] THE

UNITED STATES CONSTITUTION, BY TRIAL COUNSEL'S FAILURE TO SUBMIT TO THE

COURT EXCULPATORY EVIDENCE.

{¶ 49} In his eighth assignment of error, appellant argues trial counsel was ineffective

for failing to present an October 7, 2000 letter from Mary Miller, a homeowner who entered

into a contract with OHIC. Appellant contends this letter would have demonstrated that it was

Miller, and not appellant, who prevented the project from being completed.

{¶ 50} We find that appellant's claim is barred by the doctrine of res judicata as

appellant could have raised the issue on direct appeal. See

. Furthermore,

decisions about what evidence to present at trial are committed to counsel's professional

judgment and a strong presumption exists that licensed attorneys are competent and that the

challenged action is the product of sound trial strategy falling within the wide range of

reasonable professional assistance. See State v. Williams,

, 2003-Ohio-

4396, ¶ 127; State v. Bradley

(1990). Finally, as appellant did not

attach a copy of the October 7, 2000 letter to his petition for postconviction relief, we find that

the trial court did not abuse its discretion in determining that appellant was not prejudiced by

his trial counsel's choice not to enter the letter into evidence. Absent information on what the

letter actually stated, it would be pure speculation to conclude that the letter would have

affected the outcome of appellant's trial. Conjecture and speculation do not establish a

substantive ground entitling a defendant to postconviction relief. English,

at *4.

{¶ 51} Appellant's eighth assignment of error is, therefore, overruled.

{¶ 52} Assignment of Error No. 9:

{¶ 53} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL - 11 - Butler CA2013-01-011

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AMENDMENT [TO] THE

UNITED STATES CONSTITUTION, BY TRIAL COUNSEL'S FAILURE TO SUBMIT TO THE

COURT EXCULPATORY EVIDENCE.2

{¶ 54} In his ninth assignment of error, appellant argues trial counsel was ineffective

for failing to present documents in the possession of the accounting firm Clark, Schaeffer &

Hackett. Appellant contends the documents would have rebutted testimony from former

OHIC employee Amy Parker that OHIC suffered from poor bookkeeping. Appellant did not

attach any of these documents to his petition for postconviction relief.

{¶ 55} Appellant's claim is barred by the doctrine of res judicata as appellant could

have raised the issue on direct appeal. See

. Furthermore, as appellant did

not attach a copy of the records kept by Clark, Schaeffer & Hackett to his petition for

postconviction relief, we find that the trial court did not abuse its discretion in determining that

appellant was not prejudiced by his trial counsel's decision not to enter the records into

evidence. Without knowing the content of such records, it would be pure speculation to

conclude that the records would have affected the outcome of appellant's trial.

{¶ 56} Accordingly, appellant's ninth assignment of error is overruled.

{¶ 57} Assignment of Error No. 10:

{¶ 58} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND DUE PROCESS OF LAW IN VIOLATION OF THE SIXTH AMENDMENT [TO] THE

UNITED STATES CONSTITUTION, BY TRIAL COUNSEL'S FAILURE TO PROPERLY

INVESTIGATE AND/OR INTERVIEW STATE AND DEFENSE WITNESSES IN ORDER TO

2. We note that appellant has used identical language to caption his eighth and ninth assignments of error. As the arguments contained within the two assignments of error are separate and distinct, we shall address each assignment of error in turn. - 12 - Butler CA2013-01-011

ADEQUATELY PREPARE A DEFENSE AND PREPARE FOR TRIAL.

{¶ 59} In his tenth assignment of error, appellant asserts trial counsel was ineffective

for failing to investigate or interview material witnesses in preparing his defense. Specifically,

appellant contends that counsel failed to interview witnesses named in his supplemental

discovery responses filed on December 8, 2003 and December 15, 2003. Appellant

contends that without the testimony of such witnesses, his trial counsel could only provide a

"skeletal" defense at trial.

{¶ 60} Similar to his fifth assignment of error, appellant did not attach any affidavits

stating what each witness would have testified to at trial. We agree with the trial court that

absent information concerning the substance of each witness' testimony, any benefit such

testimony would have had on appellant's case is unknown. It would be pure speculation to

conclude that the results of appellant's trial would have been different had the witnesses

testified. Appellant, therefore, fails to demonstrate how he was prejudiced by his trial

counsel's actions.

{¶ 61} Appellant's tenth assignment of error is, therefore, overruled.

C. Evidentiary Hearing on Postconviction Relief Petition

{¶ 62} Within his assignments of error, appellant also contends the trial court abused

its discretion by not holding an evidentiary hearing prior to ruling on his petition for

postconviction relief. We find no merit to this argument.

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

makes a petition for postconviction relief." Vore,

. Rather, to be

entitled to a hearing, "the petitioner must show that there are substantive grounds for relief

that would warrant a hearing based upon the petition, the supporting affidavits, and the files

and records in the case." State v. Watson,

(12th Dist. 1998). See

also R.C. 2953.21(C). "The burden is on the petitioner to show that the claimed errors - 13 - Butler CA2013-01-011

resulted in prejudice before a hearing on a postconviction relief petition is warranted."

, citing State v. Widmer, 12th Dist. Warren No. CA2012-02-008,

.

{¶ 64} After reviewing the trial court's 19-page opinion, it is apparent that the trial court

was thorough in its analysis and did not abuse its discretion in overruling appellant's

postconviction petition without a hearing. The trial court did not find substantive facts

supporting a claim for postconviction relief on constitutional grounds. For the reasons

discussed above, we find that the record supports the trial court's conclusions. See Widmer

at ¶ 166;

. Thus, we overrule appellant's argument that the trial court abused

its discretion by denying his postconviction relief petition without holding an evidentiary

hearing.

III. CONCLUSION

{¶ 65} After thoroughly reviewing the record, we conclude that the trial court did not

abuse its discretion in denying appellant's postconviction relief petition or in doing so without

first holding an evidentiary hearing.

{¶ 66} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

- 14 -