[Cite as State v. Bulls,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27713

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DWAYNE M. BULLS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 12 3518

DECISION AND JOURNAL ENTRY

Dated: December 9, 2015

SCHAFER, Judge.

{¶1} Defendant-Appellant, Dwayne Bulls, appeals the judgment of the Summit County

Court of Common Pleas denying his request for post-conviction relief. For the reasons that

follow, we affirm.

I.

{¶2} After a jury trial, Bulls was convicted on one count of rape in violation of R.C.

2907.02(A)(1)(b). The victim in this matter was Bulls’ 11-year old stepdaughter. The facts

underlying Bulls’ conviction are more fully described in our opinion resolving Bulls’ direct

appeal. See State v. Bulls, 9th Dist. Summit No. 27029,

. The trial

court subsequently sentenced Bulls to a term of life imprisonment with the possibility of parole

after 25 years. On direct appeal, we affirmed Bulls’ conviction and sentence. Id. at ¶ 28. The

Supreme Court of Ohio declined to accept Bulls’ appeal. State v. Bulls,

,

. 2

{¶3} While his direct appeal was pending before this Court, Bulls filed a timely

petition for post-conviction relief in the trial court. His petition asserted three grounds for relief.

The first two grounds related to the failure of Bulls’ trial counsel to obtain records that would

purportedly show the minor victim’s propensity to lie. Bulls alleged that this failure amounted to

ineffective assistance of counsel that prejudiced his defense. The third ground for relief was that

the State possibly withheld information from Bulls during discovery in violation of Brady v.

Maryland,

(1963). Based on these allegations, Bulls requested that the trial court

vacate his conviction or, in the alternative, allow him to conduct additional discovery and present

his petition at an evidentiary hearing.

{¶4} Bulls’ new counsel executed an affidavit that was attached to the petition for post-

conviction relief. In it, the new counsel averred that he reviewed the file of Bulls’ trial counsel

and “noticed that a number of items were missing” including social service records, school

records, “and other records that are key to the presentation of a defense[.]” The affidavit also

includes new counsel’s conclusion that “[t]he failure to obtain these records was prejudicial to []

Bulls’ defense.” As to the possible Brady violations, new counsel attested that he was aware of

two other cases involving the Summit County Prosecutor’s Office in which Brady violations led

to the overturning of convictions.

{¶5} Without holding a hearing, the trial court denied Bulls’ petition for post-

conviction relief. The trial court found as follows regarding Bulls’ first two asserted grounds for

relief:

[Bulls] has not submitted any evidence supporting his argument that he received ineffective assistance of counsel. [Bulls’] new attorney doesn’t point to any evidence outside the record. He only suggests that such evidence might exist. In fact, some of the statements made in [new counsel]’s affidavit are completely irrelevant to the court’s determination of whether [Bulls] received ineffective assistance of counsel. 3

The trial court similarly rejected Bulls’ third asserted ground for relief, the possibility of a Brady

violation, as “merely speculative.”

{¶6} Bulls timely appealed the denial of his post-conviction relief petition, raising one

assignment of error for our review.

II.

Assignment of Error

The trial court erred when it granted the State’s motion to dismiss Appellant’s post[-]conviction petition, in violation of Section 2953.21 et. [sic] seq[.] of the Ohio Revised Code; Article One, Section Sixteen of the Ohio Constitution; and the Fifth and Fourteenth Amendments to the United States Constitution.

{¶7} In his sole assignment of error, Bulls argues that the trial court erroneously denied

his petition for post-conviction relief. His position on appeal is that the petition sufficiently

asserted two bases for relief: ineffective assistance of counsel and possible Brady violations. We

disagree.

A. Standard for Post-Conviction Relief

{¶8} We review the trial court’s denial of a post-conviction relief petition for an abuse

of discretion. State v. Jones, 9th Dist. Summit No. 27294,

. An abuse of

discretion implies the court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore

v. Blakemore,

(1983). When applying this standard, a reviewing court is

precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio

State Med. Bd.,

(1993).

{¶9} A convicted defendant may petition the trial court to vacate his conviction on the

basis that it is void or voidable under the United States Constitution or the Ohio Constitution.

R.C. 2953.21(A)(1). The defendant “is not automatically entitled to a hearing” on his petition, 4

State v. Calhoun,

(1999), and the “trial court has a gatekeeping role as to

whether a defendant will even receive a hearing,” State v. Gondor,

, 2006-

Ohio-6679, ¶ 51. In light of this gatekeeping role, the Supreme Court of Ohio has previously

declared that “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 petitioner set forth sufficient

operative facts to establish substantive grounds for relief.” Calhoun at paragraph two of the

syllabus; accord State v. McNeill,

(9th Dist. 2000) (“A petitioner for

post-conviction relief has an initial burden of providing evidence of sufficient operative facts to

demonstrate a cognizable claim of constitutional error.”). Moreover, to obtain post-conviction

relief and avoid the preclusive effect of res judicata, a petitioner must present claims in his

petition that are based on evidence outside of the original record that existed during direct

appellate proceedings. See

(“[A] petition for post-conviction relief may defeat the

res judicata bar only if its claims are based on evidence de hors the record.”).

{¶10} We address the three grounds asserted in Bulls’ petition for post-conviction relief

in turn. Since Bulls’ first two grounds both implicate his ineffective assistance of counsel

argument, we address them together.

B. First and Second Grounds: Ineffective Assistance of Counsel

{¶11} When reviewing a trial court’s denial of post-conviction relief petition that is

predicated on ineffective assistance of counsel, we must consider the underlying legal standard.

State v. Evans, 9th Dist. Medina No. 12CA0044-M,

. To establish

ineffective assistance of counsel, a defendant must show that his trial counsel’s performance was

deficient and that the deficient performance affected the outcome of trial. Strickland v. 5

Washington,

(1984). We addressed a trial court’s denial of a post-conviction

relief petition asserting ineffective assistance of counsel in State v. Kiley, 9th Dist. Lorain No.

12CA010254,

. There, the petitioner argued that he was denied the effective

assistance of counsel since trial counsel failed to call certain witnesses. But, the petitioner’s

affidavits in support of his petition were “conclusory in nature and lack[ed] specific information

to support [the petitioner]’s assertions.” Id. at ¶ 11. Specifically, we noted that “[t]he affidavits

of the proposed witnesses simply indicate[d] that they have information that will exonerate [the

petitioner] but do not indicate what information they have or how it would exonerate [the

petitioner].” Id. at ¶ 12. As a result, we concluded that the petitioner “ha[d] not presented

sufficient facts demonstrating that he was prejudiced by his trial counsel’s failure to * * * call

witnesses” and we determined that the trial court did not abuse its discretion by denying the

petition without a hearing. Id. at ¶ 13.

{¶12} Bulls only offered the affidavit of his new counsel in support of his petition for

post-conviction relief. Like the affidavits in Kiley, the affidavit in this matter is conclusory and

fails to state specific information regarding the claimed ineffectiveness of Bulls’ trial counsel.

Bulls’ new counsel simply averred that there were some records missing in the file of Bulls’ trial

counsel and that those records would aid Bulls’ defense. We cannot determine from such bare

assertions whether these missing records even exist, let alone whether they relate to Bulls’

defense. In light of the conclusory nature of the claims, the trial court properly found that the

affidavit merely “suggests that such evidence might exist,” which falls far below the requisite

showing of a cognizable constitutional claim. (Emphasis added.) As a result, taking the record

and petition as a whole, we conclude that Bulls has failed to present sufficient facts

demonstrating that he received ineffective assistance of counsel. The trial court, consequently, 6

did not abuse its discretion in rejecting the first two grounds for relief in Bulls’ petition without a

hearing.

C. Third Ground for Relief: Possible Brady Violations

{¶13} “[T]he suppression by the prosecution of evidence favorable to an accused upon

request violates due process when the evidence is material either to guilt or to punishment[.]”

Brady,

. “‘However, it is the defendant’s burden to establish that the evidence is

both favorable and material and that there is reasonable probability that the outcome would have

been different if the evidence had been provided.’” (Alterations removed.) State v. Charlton, 9th

Dist. Lorain No. 12CA010206,

, quoting State v. Moultry, 9th Dist.

Summit No. 25065,

, ¶ 9.

{¶14} As with his first two grounds for relief, Bulls failed to offer sufficient operative

facts in his petition to show entitlement to post-conviction relief for a purported Brady violation.

The affidavit attached to Bulls’ petition lists no exculpatory or otherwise favorable evidence that

was withheld from him during the trial court proceedings. Rather, it merely claims that such

evidence may exist since other cases with different defendants featured a Brady violation on the

part of the Summit County Prosecutor’s Office. Such bare facts cannot satisfy the Brady

standard. See State v. Ross, 9th Dist. Summit Nos. 22447, 22598,

(“This

Court is not inclined to presume that the State has committed a Brady violation absent some

affirmative evidence from the record.”), rev’d in part sub nom. In re Ohio Criminal Sentencing

Statutes Cases,

,

, ¶ 2 (vacating sentence and remanding for

resentencing in accordance with State v. Foster,

,

).

Accordingly, the trial court did not abuse its discretion in rejecting Bulls’ third ground for post-

conviction relief without a hearing. 7

{¶15} Finally, we also reject Bulls’ contention that he should have been provided

additional discovery to determine whether the grounds for his post-conviction relief petition

existed. “[T]his Court has repeatedly held that there is no right to discovery in a post-conviction

proceeding.” State v. Coleman, 9th Dist. Summit No. 27506,

, ¶ 5 (collecting

cases). As a result, we cannot determine that the trial court abused its discretion by not allowing

Bulls to conduct further discovery during the pendency of these post-conviction proceedings.

{¶16} Accordingly, we overrule Bulls’ sole assignment of error.

III.

{¶17} Having overruled Bulls’ assignment of error, we affirm the judgment of the

Summit County Court of Common Pleas.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 8

Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. MOORE, J. CONCUR.

APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.