[Cite as State v. Hill, 2015-Ohio-3311.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2015 CA 00041
CHRISTOPHER HILL

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2014 CR 00778


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         August 17, 2015



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN D. FERRERO                                 CHRISTOPHER HILL
PROSECUTING ATTORNEY                            PRO SE
KATHLEEN O. TATARSKY                            Lake Erie Correctional Institution
ASSISTANT PROSECUTOR                            Post Office Box 8000
110 Central Plaza South, Suite 510              Conneaut, Ohio 44030
Canton, Ohio 44702-1413
Stark County, Case No. 2015 CA 00041                                                     2

Wise, J.

       {¶1}. Appellant Christopher Hill appeals the decision of the Court of Common

Pleas, Stark County, which denied his petition for post-conviction relief. Appellee is the

State of Ohio. The relevant facts leading to this appeal are as follows.

       {¶2}. On or about May 9, 2014, appellant physically assaulted and threatened

Marcella Catlett, the mother of appellant's daughter. At the time, appellant was on

parole and prohibited from possessing a weapon. After appellant was arrested, he

contacted the victim and told her not to show up for the grand jury proceedings or any

other court appearances.

       {¶3}. On June 25, 2014, appellant was indicted on one count of felonious

assault with a repeat violent offender specification (R.C. 2903.11(A)(2) and R.C.

2941.149), a felony of the second degree, having a weapon under a disability (R.C.

2923.13(A)(2)), a felony of the third degree, domestic violence (R.C. 2919.25(A)), a

misdemeanor of the first degree, and intimidation of a witness or victim (R.C.

2921.04(A)), a misdemeanor of the first degree.

       {¶4}. On July 29, 2014, appellant, with the assistance of counsel, entered into a

negotiated guilty plea to the latter three charges, with the State dismissing the felonious

assault charge and RVO specification.

       {¶5}. Appellant was thereupon sentenced to twenty-four months in prison on the

count of having a weapon under disability, as well as six months concurrent on each of

the counts of domestic violence and intimidation of a victim or witness. A plea and

sentencing judgment entry was issued on August 14, 2014.
Stark County, Case No. 2015 CA 00041                                                      3


       {¶6}. On or about August 27, 2014, appellant filed a direct appeal to this Court.

However, the appeal was subsequently dismissed by the Court for want of prosecution.

       {¶7}. In addition, on January 9, 2015, appellant filed a delayed notice of appeal.

This Court denied leave for same on February 17, 2015.

       {¶8}. In the meantime, on September 15, 2014, appellant filed a pro se petition

for post-conviction relief in the trial court. An amended petition was filed by appellant on

October 17, 2014. A second amended petition was filed by appellant on October 22,

2014. The State responded with a written memorandum, motion to dismiss, and motion

for summary judgment on November 25, 2014.1

       {¶9}. The trial court, on February 24, 2015, invoking the doctrine of res judicata,

dismissed appellant's petitions for post-conviction relief.

       {¶10}. On March 19, 2015, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

       {¶11}. “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED

THE STATE'S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

AND DISMISSED THE APPELLANT'S PETITION FOR POST-CONVICTION RELIEF.”

                                                 I.

       {¶12}. In his sole Assignment of Error, appellant contends the trial court erred in

denying his petition and amended petitions for post-conviction relief. We disagree.

       {¶13}. A defendant is entitled to post-conviction relief under R.C. 2953.21 only

upon a showing of a violation of constitutional dimension that occurred at the time the

defendant was tried and convicted. State v. Powell (1993), 90 Ohio App.3d 260, 264,

1
 Appellant also filed a post-sentence motion to withdraw plea, the result of which is the
subject of Stark App.No. 2015CA00036.
Stark County, Case No. 2015 CA 00041                                                       4


629 N.E.2d 13, 16. A petition for post-conviction relief does not provide a petitioner a

second opportunity to litigate his or her conviction, nor is the petitioner automatically

entitled to an evidentiary hearing on the petition. State v. Wilhelm, Knox App.No. 05–

CA–31, 2006–Ohio–2450, ¶ 10, citing State v. Jackson (1980), 64 Ohio St.2d 107, 110,

413 N.E.2d 819. In reviewing a trial court's denial of an appellant's petition for post-

conviction relief, absent a showing of abuse of discretion, we will not overrule the trial

court's finding if it is supported by competent and credible evidence. State v. Delgado

(May 14, 1998), Cuyahoga App. No. 72288, citing State v. Mitchell (1988), 53 Ohio

App.3d 117, 559 N.E.2d 1370. An abuse of discretion connotes more than an error of

law or judgment, it implies the court's attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶14}. The test for ineffective assistance claims is set forth in Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, also State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. There is essentially a two-pronged

analysis in reviewing a claim for ineffective assistance of counsel. First, the trial court

must determine whether counsel's assistance was ineffective; i.e., whether counsel's

performance fell below an objective standard of reasonable representation and was

violative of any of his or her essential duties to the client. If the court finds ineffective

assistance of counsel, it must then determine whether or not the defense was actually

prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial

is suspect. This requires a showing that there is a reasonable probability that but for

counsel's unprofessional error, the outcome of the trial would have been different. Id.
Stark County, Case No. 2015 CA 00041                                                    5


      {¶15}. In the case sub judice, appellant now contends he was innocent of the

charges against him and that his trial attorney, an assistant public defender, "pressured"

him into pleading guilty. See Appellant's Brief at 10. Focusing on the weapons under

disability conviction, he asserts he did not have a gun on his person during the events in

question and did not use a gun to threaten the victim. He further maintains the

investigatory documents in the case would show that the victim accused him of

threatening her or her property with a hammer, not a firearm, and then asking her about

the whereabouts of his gun. He also provided the trial court with an unverified

photocopy of a police report indicating no fingerprints were found on the gun taken at

the scene, as well as a copy of an affidavit dated June 20, 2014, purportedly from the

victim, in which she indicates that she was intoxicated during the events of May 9, 2014

and could not recollect what happened. Appellant urges that his trial counsel failed to

properly investigate these matters.

      {¶16}. However, assuming arguendo trial counsel did not pursue sufficient

pretrial investigation as alleged herein by appellant, a particular decision by a trial

attorney not to investigate an issue must be assessed for reasonableness in light of all

the circumstances, with the application of "a heavy measure of deference to counsel's

judgments.” See Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574.

We note appellant's trial counsel in this instance successfully negotiated a dismissal of

the most serious count against appellant, a second-degree felonious assault, in

exchange for an aggregate term of two years in prison on the remaining counts.

Furthermore, as a general rule, recantations by witnesses are to be examined with

utmost suspicion. See State v. Thorne, 5th Dist. Stark No. 2003CA00388, 2004-Ohio-
Stark County, Case No. 2015 CA 00041                                                      6

7055, ¶ 35, citing State v. Germany (Sept. 30, 1993), Cuyahoga App. No. 63568, 1993

WL 389577.

       {¶17}. Finally, our review of the issue is somewhat impeded herein because

appellant has failed to provide this Court with a written transcript of the July 29, 2014

plea proceedings before the trial court. Pursuant to App.R. 9(B)(1), “[i]t is the obligation

of the appellant to ensure that the proceedings the appellant considers necessary for

inclusion in the record, however those proceedings were recorded, are transcribed in a

form that meets the specifications of App.R. 9(B)(6).” We certainly recognize that

appellant, in advancing his PCR arguments, has relied on information outside of what

would have been in the original trial court record, and the lack of the July 29, 2014

transcript per se is not necessarily fatal to appellant's claims. Nonetheless, we presently

have no established background record which might portray the conduct of appellant's

trial counsel at the plea proceedings, and the dynamics of his decision-making at that

time, against which we could view the import of appellant's newly-presented information.

Cf. State v. Gaitor, 7th Dist. Mahoning No. 96-CA-234, 1999 WL 420568.

       {¶18}. Although we do not concur with the trial court’s application of the doctrine

of res judicata in the case sub judice, upon review of the limited record and the post-

conviction pleadings, we hold the trial court did not abuse its discretion in denying

appellant's petitions for post-conviction relief without conducting an evidentiary hearing.
Stark County, Case No. 2015 CA 00041                                                 7


      {¶19}. Appellant's sole Assignment of Error is overruled.

      {¶20}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.
Stark County, Case No. 2015 CA 00041   8
