[Cite as State v. Bubenchik, 2016-Ohio-7289.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsSTEVEN P. BUBENCHIK, JR. 

 Defendant-Appellant 

JUDGES: 

Hon. Sheila G. Farmer, P. J. 

Hon. W. Scott Gwin, J. 

Hon. John W. Wise, J. 

Case No. 2016 CA 00086 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 2013 CR 01293 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: October 11, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO STEVEN P. BUBENCHIK, JR. 

PROSECUTING ATTORNEY MANSFIELD CORR. INSTITUTION 

RENEE M. WATSON Post Office Box 788 

ASSISTANT PROSECUTOR Mansfield, Ohio 44901 

110 Central Plaza South, Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2016 CA 00086 2

Wise, J. 

{¶1} Appellant Steven P. Bubenchik, Jr. appeals from the decision of the Court 

of Common Pleas, Stark County, which denied his petition for post-conviction relief and 

his two ancillary motions, pertaining to his 2013 convictions for attempted murder, 

felonious assault, and other offenses and/or specifications. Appellee is the State of Ohio. 

The relevant facts leading to this appeal are as follows. 

{¶2} On the evening of August 8, 2013, officers from the Massillon Police 

Department went to appellant’s residence to conduct a check on his welfare, having been 

informed by appellant’s estranged wife that she had received a potentially suicidal voice 

mail message from him about seeing her in the “next lifetime.” Officers Rogers, Alexander 

and Riccio responded to the Geiger Avenue SW address, but they left after seeing no 

lights on and no movement inside. Later that evening, obtaining the assistance of 

appellant’s parents, the officers returned, with Sergeant Smith in charge. Ultimately, the 

parents indicated that they wanted the officers to enter appellant’s house. 

{¶3} As the officers commenced their entry procedures, a gunshot sounded from 

inside. Officer Riccio came back outside, and all the officers scattered for cover. A man, 

later identified as appellant's brother, ran out the front door and was taken to the ground 

and handcuffed. In the meantime, appellant leaned out a window with a firearm, yelling 

that he was “going to kill you motherfuckers.” Appellant then began shooting at the officers 

from the window. The officers did not return fire, fearing someone else was inside. A 

SWAT team was called, and after about three hours of negotiations, appellant put down 

his pistol and surrendered. 
Stark County, Case No. 2016 CA 00086 3

{¶4} Appellant was subsequently charged with three counts of attempted murder 

and three counts of felonious assault, all with repeat violent offender specifications and 

firearm specifications, and one count of having weapons under a disability.1 Prior to trial, 

appellant filed a motion to suppress, which was overruled by the trial court. 

{¶5} The case proceeded to a jury trial commencing on December 10, 2013. The 

jury subsequently found appellant not guilty of attempted murder as to Officer Riccio and 

Sergeant Smith, guilty of attempted murder as to Officer McConnell (another officer who 

had reported to the scene), guilty of felonious assault as to all three officers, and guilty of 

having weapons under a disability. The trial court merged the felonious assault conviction 

with the attempted murder conviction as to Officer McConnell. Appellant was sentenced 

to eleven years in prison for attempted murder, eleven years for each felonious assault, 

thirty-six months for having weapons under a disability (to run concurrently), nine years 

in prison on the three firearm specifications and two years in prison on each repeat violent 

offender specification, for a total sentence of forty-eight years. 

{¶6} Appellant then filed a direct appeal to this Court, challenging as his sole 

assigned error the trial court’s decision to overrule his motion to suppress. On November 

14, 2014, we affirmed appellant’s convictions. See State v. Bubenchik, 5th Dist. Stark No. 

2014CA00020, 2014-Ohio-5056. The Ohio Supreme Court thereafter declined to accept 

the case for further appeal. 

{¶7} On December 8, 2014, appellant filed in the trial court a pro se petition for 

post-conviction relief, as well as a request for appointed counsel and a ballistics expert. 

 

1 Two additional counts related to events from a different time frame were on the 

indictment, but these were handled separately via a plea. 
Stark County, Case No. 2016 CA 00086 4

On August 13, 2015, appellant filed a motion to amend his prior petition. In both instances, 

appellant asserted ineffective assistance of trial counsel. On January 29, 2016, the State 

filed a response to the petition, as well as a motion to dismiss and a motion for summary 

judgment.2 Appellant filed a reply on March 1, 2016. 

{¶8} On April 5, 2016, the trial court issued a judgment entry denying appellant’s 

petition and corresponding motions, essentially finding that he had failed to support his 

post-conviction claims and that his arguments were additionally barred by the doctrine of 

res judicata. 

{¶9} On April 25, 2016, appellant filed a notice of appeal. He herein raises the 

following sole Assignment of Error: 

{¶10} “I. THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION IN NOT 

HOLDING AN EVIDENTARY [SIC] HEARING.” 

I. 

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

not granting him an evidentiary hearing on his PCR petition and amended petition. We 

disagree. 

{¶12} 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, 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, 5th Dist. Knox No. 05–CA–31, 

 

2 In said response, the State did not contest the timeliness of appellant’s PCR petition(s).
Stark County, Case No. 2016 CA 00086 5

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, 8th Dist. 

Cuyahoga No. 72288, 1998 WL 241988, citing State v. Mitchell (1988), 53 Ohio App.3d 

117, 559 N.E.2d 1370. When a defendant files a post-conviction petition pursuant to R.C. 

2953.21, the trial court must grant an evidentiary hearing unless it determines that “the 

files and records of the case show the petitioner is not entitled to relief.” See R.C. 

2953.21(E). We apply an abuse of discretion standard when reviewing a trial court's 

decision to deny a post-conviction petition without a hearing. State v. Holland, 5th Dist. 

Licking No. 12–CA–56, 2013-Ohio-905, ¶ 17. 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. 

{¶13} 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 
Stark County, Case No. 2016 CA 00086 6

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.

{¶14} In the case sub judice, appellant first contends that information from the BCI 

investigation reports, certain photographs and/or diagrams (allegedly “withheld” by his 

trial counsel), and testimony from one of the police officers during the preliminary hearing 

would support his ineffective assistance claims. He also makes a cryptic assertion that 

“[t]estimony appellant gave during trial is consistent with the B.C.I. Report and was not 

presented to the Jurors.” Appellant’s Brief at 4. 

{¶15} However, under the doctrine of res judicata, a final judgment of conviction 

bars a defendant from raising and litigating in any proceeding, except an appeal from that 

judgment, any defense or any claimed lack of due process that the defendant raised or 

could have raised at the trial which resulted in that judgment of conviction or on an appeal 

from that judgment. State v. Callahan, 7th Dist. Mahoning No. 12 MA 173, 2013-Ohio5864, ¶ 9, quoting State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). 

Conversely, issues properly raised in a post-conviction petition are those that could not 

have been raised on direct appeal because the evidence supporting the issue is outside 

the record. State v. Snelling, 5th Dist. Richland No. 14CA19, 2014-Ohio-4614, ¶ 30. In 

other words, “[u]nder Ohio law, where a defendant, ‘represented by new counsel upon 

direct appeal, fails to raise therein the issue of competent trial counsel and said issue 

could fairly have been determined without resort to evidence dehors the record, res 

judicata is a proper basis for dismissing defendant's petition for postconviction relief.’ ” 

State v. Dickerson, 10th Dist. Franklin No. 13AP-249, 2013-Ohio-4345, ¶ 11, quoting State 
Stark County, Case No. 2016 CA 00086 7

v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), syllabus, modifying State v. Hester, 45 

Ohio St.2d 71, 341 N.E.2d 304 (1976). 

{¶16} In its response brief, the State directs us to the discovery receipt document 

from the trial court file, dated October 21, 2013, which indicates the crime scene 

photographs and/or diagrams were provided by the State in pre-trial discovery. 

Furthermore, a large number of such photographs and a “scene diagram” were submitted 

to the trial court as part of the State’s exhibits, and as such would not be dehors the 

record. See Tr. at 722-726. Finally, appellant does not reveal why the referenced 

preliminary hearing or trial testimony should be considered as outside of the trial court 

record. We therefore find no abuse of discretion in the trial court’s application of the 

doctrine of res judicata to deny the aforesaid claims without a hearing. 

{¶17} In regard to the aforesaid BCI reports, the record would again reflect that 

these documents were provided in discovery, although we do not presently ascertain that 

they were referenced as part of the trial exhibits. Appellant herein essentially asserts that 

said investigative reports reveal several discrepancies in the State’s case as to where 

certain bullet fragments were found and which officers and police vehicles were targeted. 

However, assuming arguendo this information is indeed dehors the record and not 

blocked by res judicata, appellant fails to persuade us that his defense was thereby 

prejudiced on this point. Strickland, supra. It has been aptly stated that “the evidence 

presented outside the record must meet some threshold standard of cogency; otherwise 

it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence 

which is only marginally significant and does not advance the petitioner's claim beyond 
Stark County, Case No. 2016 CA 00086 8

mere hypothesis and a desire for further discovery.” State v. Coleman, 1st Dist. Hamilton 

No. C-900811, 1993 WL 74756. 

{¶18} Appellant secondly contends that his trial counsel was ineffective for 

allegedly failing to interview various witnesses and/or police officers, procure a ballistics 

expert, and adequately communicate with appellant. 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. Furthermore, this Court has recognized that “* * * complaints of 

uncalled witnesses are not favored, because the presentation of testimonial evidence is 

a matter of trial strategy and because allegations of what a witness would have testified 

are largely speculative.” State v. Phillips, 5th Dist. Stark No. 2010CA00338, 2011–Ohio–

6569, ¶ 26, quoting Buckelew v. United States (5th Cir.1978), 575 F.2d 515, 521 (internal 

quotation marks omitted). 

{¶19} We find appellant in this regard has chiefly relied on the self-serving 

memorandum he presented with his petition and his present undeveloped suggestion that 

the aforesaid evidence would have revealed discrepancies in his case. Appellant thus 

fails to demonstrate in what manner he was prejudiced by trial counsel’s performance. 

Upon review of the record and the post-conviction pleadings, we hold the trial court did 

not abuse its discretion in denying appellant's petition and amended petition for postconviction relief without conducting an evidentiary hearing. 

 
Stark County, Case No. 2016 CA 00086 9

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

{¶21} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Stark County, Ohio, is hereby affirmed. 

By: Wise, J. 

Farmer, P. J., and 

Gwin, J., concur. 

JWW/d 0928