[Cite as State v. Starks , 2011-Ohio-2772.]

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

STATE OF OHIO Appellee

v. JAMES STARKS Appellant C.A. No. 25617

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2009 06 1984

DECISION AND JOURNAL ENTRY Dated: June 8, 2011

WHITMORE, Judge. {¶1} Defendant-Appellant, James Starks, appeals from the judgment of the Summit County Court of Common Pleas, denying his petiti on for post-conviction relief. This Court

affirms.

I {¶2} This Court recounted the underlying facts of this case in State v. Starks , 9th Dist. No. 25155, 2010-Ohio-5980, at ¶2-6. After one mistria l, a jury convicted Starks of felonious assault, and the court sentenced h im to five years in prison. Star ks appealed and challenged the sufficiency of the verdict and the weight of the evidence. This Court a ffirmed his conviction.

Starks at ¶13. {¶3} During the pendency of the direct appeal in this matter, Starks filed a pro se petition for post-conviction relief. The basis for the petition was that Starks’ trial counsel was ineffective and, had his counsel conducted additional discovery and been better prepared for2

trial, he would have uncovered exculpatory evid ence and been able to prove that Starks was innocent. On September 8, 2010, th e trial court denied the petition. {¶4} Starks now appeals from the court’s denial of his petition and raises two assignments of error for our review. For ease of analysis, we consolidate the assignments of

error. II Assignment of Error Number One

“APPELLANT’S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT DISMISSED HIS PETITION TO VACATE OR SET ASIDE JUDGMENT AS LEGALLY INSUFFICIENT.” Assignment of Error Number Two

“APPELLANT’S RIGHT TO EFFECTIVE ASSISTANCE AND DUE PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY TRIAL COUNSEL’S FAILURE TO CHAMPION HIS CAUSE SKILLFULLY CONSEQUENTLY DEPRIVING HIM OF A FAIR TRIAL.” {¶5} In his first assignment of error, Starks argues that the trial court erred by denying his petition for post-conviction relie f, as it demonstrated a cogniz able claim based on ineffective assistance of counsel. In his second assignment of error, Starks argues that he was denied

ineffective assistance of counsel because his counsel failed to conduct adequate discovery. We disagree with both propositions. {¶6} This Court reviews a trial court’s decision to deny a petition for post-conviction

relief for an abuse of discretion. State v. Craig , 9th Dist. No. 24580, 2010-Ohio-1169, at ¶12, citing State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, ¶45. An abuse of discretion means that the trial court was unreasonable, arb itrary, or unconscionable in its ruling. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219.3

“Any person who has been convicted of a criminal offense *** and who claims that there was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States *** may file a petition in th e court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.” R.C. 2953.21(A)(1)(a). A post-conviction relief pe titioner who asserts an ineffective a ssistance of counsel claim has the burden of meeting the test set forth in Strickland v. Washington (1984), 466 U.S. 668. State v. Gorospe , 9th Dist. No. 24111, 2008-Ohio-6435, at ¶8. That is, he must show that: (1) counsel’s performance was deficient to th e extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Ame ndment[,]” and (2) “the deficient performance prejudiced the defense.” Strickland , 466 U.S. at 687. To demonstrate prejudice, a petitioner must prove that “there exists a reasonable proba bility that, were it not for counsel’s errors, the

result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. “An error by coun sel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland , 466 U.S. at 691. Furthermore, this Court need not address both

Strickland prongs if a petitioner fails to prove either one. State v. Ray , 9th Dist. No. 22459, 2005-Ohio-4941, at ¶10. {¶7} Starks argues that his counsel was ineffective, and he was thus entitled to postconviction relief, because his couns el “failed to file pertinent pretrial mo tions” and “failed to conduct a pretrial investigation that would ha ve assisted him in impeaching the victim’s identification of [him]” as the assailant. Star ks relied upon his own affi davit in support of his petition. In his affidavit, Starks maintained his innocence and averred that further investigation on the part of his attorney would have uncovere d evidence showing that Starks was not present4

when the crime at issue occurred and that the victim lacked credibility because he was “a little on the shady side.” The record reflects that Star ks had different counsel at trial than he had on direct appeal with this Court. {¶8} To the extent Starks argues that his tria l counsel was ineffective because he failed to file pretrial motions, that argument is one that Starks could have raised on direct appeal, as he has not pointed to any evidence dehors the record in support of his argument. See State v. Cole (1982), 2 Ohio St.3d 112, syllabus (“Where defe ndant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel a nd said issue could fairly have

been determined without resort to evidence dehor s the record, res judicata is a proper basis for dismissing defendant’s petition for post[-]convicti on relief.”). Post-convic tion relief will not lie “if the claim raised in the petition is barred by the doctrine of res judicata.” State v. Lynch , 9th Dist. No. 06CA008938, 2006-Ohio-5813, at ¶7. “Under the doctrine of res judicata, 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 *** claimed lack of due process that *** could have been raised *** on an appeal from that judgment.” State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. To withstand the application of the doctrine, “[ e]vidence outside the r ecord ‘must demonstrate that the claims advanced in the petition could not have been fairly determined on direct appeal based on the original tria l court record without resorting to evidence outside the record.’” State

v. Dovala , 9th Dist. No. 08CA009455, 2009-Ohio-1420, at ¶10, quoting State v. Stallings (Apr. 19, 2000), 9th Dist. No. 19620, at *1. Here, one coul d clearly discern from the trial court docket

the matter of whether defense c ounsel had filed certain pretrial motions. Because Starks had different counsel on appeal and could rely upon the trial court record to ma ke this argument, we

must conclude that it is barred by res judicata. State v. Ruvalcaba (Dec. 5, 2001), 9th Dist. No.5

20585, at *1-2 (concluding petition barred by res judicata where petitioner relied upon trial court docket to argue that his trial counsel was inef fective for failing to file pretrial motions). {¶9} Starks’ second argument is that his counsel failed to fully investigate his case and, therefore, did not uncover facts about the vi ctim that would have undermined the victim’s credibility. Assuming without deciding that res judicata does not also bar Starks’ second argument, see Dovala at ¶16-21 (concluding that res judi cata did not bar certain portions of a post-conviction relief petition, includi ng that trial counsel did not fully investigate the State’s case), Starks’ own affidavit was the only item he presented as evidence th at his counsel did not fully investigate his case. “General conclusory allegations as to counsel’s ineffectiveness or broad assertions *** are inadequate as a ma tter of law to *** support a finding of post[- ]conviction relief.” State v. Sales , 9th Dist. No. 23498, 2007-Ohio-4136, at ¶7, quoting State v.

Guess (Oct. 8, 1997), 9th Dist. No. 18252, at *2. Base d on our review of the record, Starks’ selfserving affidavit does not demonstrate a claim for ineffective assistance. State v. Houser , 9th Dist. No. 21555, 2003-Ohio-6811, at ¶17-18. The issu e of Starks’ and the victim’s credibility was squarely before the jury at trial, and the jury chose to believe the State’s version of the

events. Starks at ¶9-12. We agree with the trial c ourt that Starks’ affi davit and petition did nothing more than “rehash the evidence” and take issue with the jury’s ultimate determination. Because Starks failed to set forth “sufficiently op erative facts to support [h is] assertion” that his counsel was ineffective, Houser at ¶14, the trial court did not a buse its discretion by denying his petition. Starks’ assignments of error are overruled.

III {¶10} Starks’ assignments of error are overrul ed. The judgment of the Summit County6

Court of Common Pleas is affirmed. 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 manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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 (E). 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. Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

MOORE, J. BELFANCE, P. J. CONCUR

APPEARANCES: JAMES STARKS, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.