[Cite as State v. Combs , 2013-Ohio-620.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 25262

v. : T.C. NO. 09CR1191 STEVEN COMBS : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 22nd day of February , 2013.

. . . . . . . . . . ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E., Bloomingburg, Ohio 43106 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant Steven Combs a ppeals a decision of the Montgomery2 County Court of Common Pleas, Genera l Division, overruling his petition for post-conviction relief filed November 24, 2010. The tr ial court issued its opinion overruling Combs’ petition on June 11, 2012. Comb s filed a timely notice of appeal with this Court on June 27, 2012. {¶ 2} We set forth the history of the case in State v. Combs , 2d Dist. Montgomery No. 23904, 2011-Ohio-1734 (hereinafter “ Combs I ”), and repeat it herein in pertinent part: On April 27, 2009, Combs was indicted on one count each of forcible rape of a child under the age of ten years, gross sexual imposition of a child under the age of thirteen, and sexual battery of a child under the age of thirteen. All charges arose as a result of offenses th at were alleged to have occurred in early 2009 against Combs’s daughter. On January 8, 2010, Combs pled no contest to forcible rape by bill of information, and was found guilty by the court; the indictment wa s nolled. The parties agreed to a five-year mandatory term of imprisonment, to which the trial court sentenced him. {¶ 3} On appeal, Combs argued that his plea must be vacated because it was not knowingly, intelligently, and voluntarily entered as the result of the tria l court’s interrupting him when he “resisted the acceptance of a plea” at sentencing. Combs also argued that he was denied the effective assist ance of trial counsel because c ounsel should not have allowed him to enter a plea. {¶ 4} Ultimately, we affirmed the judgment of the trial court, finding that the record supported the State’s position that Combs’s plea was knowingly, voluntarily, and intelligently entered. State v. Combs , 2d Dist. Montgomery No. 23904, 2011-Ohio-1734.3 Additionally, we found that the record establis hed that Combs did not receive ineffective assistance of counsel regarding his decision to enter a no contest plea to forcible rape. Id

. Specifically, the record established that Comb s clearly acknowledged that he understood the ramifications of his no contest plea, wanted to plead, and affirmatively stated that he was neither coerced nor forced to en ter his plea by defense counsel. Id

. {¶ 5} While his appeal was pending before this Court, Combs filed his petition for post-conviction relief in which he argued that his plea was invol untary because of ineffective assistance of counsel. In particular, Combs ar gued that defense couns el was deficient for failing to contact necessary witne sses, failing to assert a viable defense to the charges against him, allowing him to plead no contest against his wishes, and disregarding his requests to withdraw his plea prior to sentencing. In support of his petition, Combs filed his own affidavit, a copy of the sentencing memorandum filed by his defense counsel, and a copy of a psychological evaluation report authored by Dr. Frederick Pete rson of the Flexman Clinic. Significantly, the report was issued on Augu st 20, 2009, approximately four and one-half months before he entered his no contest plea to th e charge of forcible rape. In response, the State filed a motion for summary judgment requesting that Combs’ petition be denied. {¶ 6} On June 11, 2012, the trial court sust ained the State’s motion for summary judgment and overruled Combs’ petition for post-conviction relief. Initially, the trial court concluded that Combs’ allegations of ineffective assistan ce of counsel were refuted by the record and therefore, without merit. The trial court also found th at Combs’ argument regarding his desire to withdraw his plea was thoroughly analyzed in Combs I in his direct appeal. Accordingly, the trial court held that Combs’ claims were barred by res judicata.4 {¶ 7} It is from this judgment that Combs now appeals. {¶ 8} Combs’ sole assignment of error is as follows: {¶ 9} “APPELLANT’S PLEA MUST BE VACATED DUE TO THE INEFFECTIVENESS OF COUNSEL.” {¶ 10} “[A]buse of discretion is the most prevalent standard [of review] for reviewing the dismissal of a petition for pos t-conviction relief without a hearing.” State v. Hicks , 4th Dist. Highland No. 09CA15, 2010-Ohio-89, at ¶10 (surveying other Ohio courts). “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc. , 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). It is to be expected that most in stances of abuse of di scretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. {¶ 11} “A decision is unreasonable if ther e is no sound reasoning process that would support that decision. It is not enough th at the reviewing court, were it deciding the issue de novo, would not have found that reasoni ng process to be pe rsuasive, perhaps in view of countervailing reasoni ng processes that would s upport a contrary result.” AAAA Enterprises, Inc. v. River Pla ce Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). {¶ 12} Initially, we note that a post-convicti on proceeding is not an appeal of a criminal conviction, but a collateral ci vil attack on a criminal judgment. State v. Steffen , 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). “Ind eed, post-conviction state collateral review itself is not a constitutional right, even in capital cases.” Id ., citing Murray v.5 Giarratano , 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 ( 1989). Post-conviction review is a narrow remedy, since res judicata bars any claim th at was or could have been raised at trial or on direct appeal. Id . Accordingly, in a post-convicti on proceeding, a convicted defendant has only the rights granted him by the legislature. State v. Moore , 99 Ohio App.3d 748, 751, 651 N.E.2d 1319 (1st Dist.1994). {¶ 13} In his sole assignment, Combs argues that he received ineffective assistance because his defense counsel faile d to assert an available, vi able defense to the charges against him. Specifically, Combs contends that he informed de fense counsel at the beginning of the case that he suffered from a sl eep disorder in which he engaged in sex acts while asleep with no memory of his actions upon waking. Moreover, Co mbs alleges that he informed defense counsel of tw o female witnesses who could testify re garding his condition, but they were never contacted. Combs also cla ims that he was told that a doctor would be contacted regarding his medical condition, but that never occurred. Combs further asserts that he ordered defense counsel on two occasions to withdraw his plea, but they would not return his or his mother’s phone calls. Lastly , Combs argues that he attempted to address the trial court regarding his di ssatisfaction with his defense counsel and his unwillingness to enter into a plea, but the court “intimidat ed” him and forced him to accept the plea. {¶ 14} “We review the alleged instances of ineffective assistan ce of trial counsel under the two prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable6 assistance. Strickland , 466 U.S. at 688. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonabl eness and that his errors we re serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time , and a debatable deci sion concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal citation omitted). State v. Mitchell , 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31. {¶ 15} In order to decide the issue of ine ffectiveness of Comb s’ defense counsel, we must first look at whether his counsel ’s performance fell outside the range of professionally competent assistance. “Gener ally, counsel’s performance falls below the norm if he fails to advocate the defendant’s cau se, fails to keep the defendant informed of important developments, or fails to use the re quisite level of skill n ecessary to ensure the integrity of the adversarial proceedings.” State v. Peeples, 94 Ohio App.3d 34, 640 N.E.2d 208 (4th Dist. 1994). Upon review, we can find nothing on this record which establishes that counsel’s conduct violated any of these standards. The only new evidence presented by Combs in support of his claim of ineffective assistance of couns el was his own self-serving affidavit. Self-serving decl arations, standing alone, do not rise to the level of evidence required in post-conviction proceedings. State v. Kapper , 5 Ohio St.3d 36, 448 N.E.2d 823 (1983). {¶ 16} Additionally, the record establishes that Dr. Frederick Peterson was contacted by defense counsel. Furthermore, Dr. Peterson authored the Flexman Report7 well in advance of Combs’ plea of no contest. According to Combs’ witness list, another doctor, Dr. Alan Jacobs, was also scheduled to testify on his be half. Thus, Combs’ argument that his defense counsel was ineff ective for failing to contact a doctor regarding the merits of a “sleep sexing” defense prior to his entering his no contest plea is undermined by the record. We note that the two female witnesses Combs claims could testify regarding his medical condition were, in f act, contacted and interviewed by defense counsel prior to his plea. Both women’s names also appear on Combs’ witness list and are referenced in the Flexman Report, thereby undermin ing his claim that the first mention of the two women was in defense counsel’s post-pl ea sentencing memorandum. {¶ 17} We also note that the Flexman Report doe s not establish that he had a “sleep sexing” defense to the charges against him. While the report states that some of Combs’ past girlfriends described expe riences where he would have se x with them and not remember it in the morning, the report also contains information regarding his sexual assault of his daughter, to wit: he was fully aware of what he was doing. Specifically, Combs stated that he remembered touching his da ughter’s leg and vaginal area, including inserting his finger into her vagina, but he merely thought he was t ouching someone else. {¶ 18} We conclude that the record comple tely undermines Comb s’ assertion that his trial counsel’s performance was deficient. Accordingly, Combs’ baseless speculation that his counsel was deficient is insuffi cient to meet the standard announced in Strickland

. {¶ 19} Lastly, Combs’ claim that he was intimidated by the trial court and his defense counsel and, therefore, forced into entering his no contest plea was thoroughly reviewed by this Court in Combs I and rejected. As previously discussed, we concluded in8 Combs I that the record contained no evidence that Combs’ no contest plea was made in less than a knowing, intelligent, and voluntary manner. Thus, the doctrine of res judicata bars Combs from raising the voluntariness of his pl ea in his petition for post-conviction relief. “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 * * * any defense or any claimed lack of due proce ss 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.” State v. Szefcyk , 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233, syllabus. {¶ 20} Combs’ sole assignment of error is overruled. {¶ 21} Combs’ sole assignment of error having been overruled, the judgment of the trial court is affirmed.

. . . . . . . . . . HALL, J. and WELBAUM, J., concur. Copies mailed to: Andrew T. French George A. Katchmer Hon. Frances E. McGee