Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Paul A. Mancino, Jr. Mancino, Mancino
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Amy Venesile Assistant Prosecuting
BEFORE: S. Gallagher, J., McCormack, P.J., and E.T.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
Brandon Jones appeals the denial of his petition for
postconviction relief, claiming that the trial court erred in
adopting the proposed findings of fact and conclusions of law
submitted by the state or by denying Jones's motion
without an evidentiary hearing. We affirm.
Jones unsuccessfully appealed his convictions for aggravated
murder, murder, two counts of felonious assault, improperly
handling firearms in a motor vehicle, and having weapons
while under disability in State v. Jones, 8th Dist.
Cuyahoga No. 102318, 2015-Ohio-4694. In the course of that
appeal, Jones argued that his trial counsel was ineffective
for failing to present an alibi witness who would have
"confirmed" that Jones was not where every other
witness and the victim claimed Jones to be. Id. at
¶ 5-22. The ineffective-assistance claim was disregarded
at the time because it relied on facts outside the record.
Id. Jones followed the unsuccessful appeal with a
petition for postconviction relief to introduce the missing
evidence, attaching several affidavits substantiating the
alibi and trial counsel's failure to call the witness at
The trial court denied the petition in a judgment entry
adopted from the proposed findings of facts and conclusions
of law filed by the state. Jones did not submit any
objections to the proposed journal entry, nor did he submit
any counter proposals. Importantly, the trial court
concluded, in light of the overwhelming evidence identifying
Jones as the attacker at the scene of the crime, that any
alibi witness giving contrary testimony may have actually
undermined the defense's cause. According to the trial
court, even if the alleged alibi witness had been known
before trial, counsel's performance did not fall below a
competent standard in light of the overwhelming evidence
identifying Jones as the attacker. Jones's petition was
denied without an evidentiary hearing.
Under R.C. 2953.21(A)(1)(a), an offender convicted of a
criminal offense and who claims that there was a
constitutional violation that rendered the judgment void or
voidable may file a petition asking the court to set aside
the judgment or grant other appropriate relief. When the
petition is timely filed, the trial court considers the
petition and determines whether there are substantive grounds
for relief. R.C. 2953.21(C). "Unless the petition and
the files and records of the case show the petitioner is not
entitled to relief, the court shall proceed to a prompt
hearing on the issues even if a direct appeal of the case is
pending." R.C. 2953.21(E).
"The word 'hearing' as used in R.C. 2953.21(E)
does not mean" an evidentiary one. State v.
Hostacky, 8th Dist. Cuyahoga No. 103014, 2016-Ohio-397,
¶ 4. "It is well established that 'courts are
not required to hold a hearing in every postconviction
case.'" Id., quoting State ex rel.
Madsen v. Jones, 106 Ohio St.3d 178, 2005-Ohio-4381, 833
N.E.2d 291, ¶ 10. The trial court must first review the
evidence to determine if there are substantive grounds for
relief. Id., citing State v. Gondor, 112
Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51.
"Where the petition, the supporting affidavits, the
documentary evidence, the files, and the records do not
demonstrate that petitioner set forth sufficient operative
facts to establish substantive grounds for relief, " the
petition may be dismissed without a hearing. Id.,
citing State v. Calhoun, 86 Ohio St.3d 279,
1999-Ohio-102, 714 N.E.2d 905, paragraph two of the syllabus;
State v. Moon, 8th Dist. Cuyahoga No. 101972,
2015-Ohio-1550, ¶ 22. The trial court's decision to
grant or deny a petition for postconviction relief is
reviewed for an abuse of discretion. Id., citing
State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623,
885 N.E.2d 905, ¶ 45.
A person claiming ineffective assistance of counsel bears the
burden of establishing two elements: (1) that trial
counsel's performance fell below objective standards for
reasonably effective representation, and (2) that
counsel's deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687-688, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The trial court considered Jones's evidence credible -
inasmuch as Jones had a witness who claimed he was not at the
scene of the crime as the other witnesses and the victim
claimed. Even accepting the evidence as true, the trial court
concluded that Jones failed to present a colorable claim for
ineffective assistance of counsel. Before an evidentiary
hearing is necessary, the court must review the petition to
determine whether it alleges substantive grounds for relief
based on the documentary evidence presented in support. R.C.
2953.21(C); State v. Calhoun, 86 Ohio St.3d 279,
280, 1999-Ohio-102, 714 N.E.2d 905, paragraph two of the
syllabus. Thus, Jones's right to a hearing is dependent
on whether he alleged substantive grounds for relief in the
Even if we followed the trial court's lead and accepted
Jones's evidence that the alibi witness was knowingly
ignored for trial by Jones's trial counsel, for the sake
of argument, the decision to call a witness can be considered
a matter of trial strategy. State v. Vargas, 8th
Dist. Cuyahoga No. 97376, 2012-Ohio-2767, ¶ 14, citing
State v. Gooden, 8th Dist. Cuyahoga No. 88174,
2007-Ohio-2371, ¶ 38. In Hostacky, 8th Dist.
Cuyahoga No. 103014, 2016-Ohio-397, for example, the
defendant advanced a similar argument -that trial
counsel's performance fell below the standard for
reasonably effective representation because counsel failed to
call a witness to corroborate the defendant's story.
Id. at ¶ 12. Hostacky found no error
because under the trial strategy rubric, "trial counsel
may well have concluded that the [witness's] testimony
would be so self-serving that it would undermine the
defense." Id. at ¶ 14. Thus, when
considering whether trial counsel rendered a deficient
performance, the evidence presented at trial must be
considered and an attorney need not call every identified
alibi or corroborating witness if such a witness so lacks in
credibility as to risk undermining the defense.
This case exemplifies that point. At trial, several
eyewitnesses identified Jones as the attacker, including the
victim. The alibi witness Jones would have called to testify
at trial was his then significant other, who would have
claimed that Jones was elsewhere at the time of the crimes. A
reasonable attorney may have concluded, as in
Hostacky, that the witness's testimony was so
self-serving that the jury could have concluded that the
defense fabricated the story, thereby undermining the
defense's case in general. Further, cell phone records
placed Jones in or around the area of the crime and
contradicted the alleged alibi witness's claim that she
saw Jones making calls on his phone around the time of the
crime. Jones ignored the impact the trial evidence had on the
alleged alibi, but that impact must be considered in