STATE OF OHIO v. STEVEN COMBS
C.A. CASE NO. 25262
T.C. NO. 09CR1191
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
February 22, 2013
[Cite as State v. Combs, 2013-Ohio-620.]
DONOVAN, J.
(Criminal appeal from Common Pleas Court)
Rendered on the 22nd day of February, 2013.
ANDREW T. FRENCH, Atty. Rеg. 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
{¶ 1} Defendant-appellant Steven Combs appeals a decision of the Montgomery
{¶ 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 chargеs arose as a result of offenses that 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 indiсtment was 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 knоwingly, intelligently, and voluntarily entered as the result of the trial court‘s interrupting him when he “resisted the acceptance of a plea” at sentencing. Combs also argued that he was denied the effective assistanсe of trial counsel because counsel 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 plеa was knowingly, voluntarily, and intelligently entered. State v. Combs, 2d Dist. Montgomery No. 23904, 2011-Ohio-1734.
{¶ 5} While his appeal was pending before this Court, Combs filed his petition for post-conviction relief in which he arguеd that his plea was involuntary because of ineffective assistance of counsel. In particular, Combs argued that defense counsel was deficient for failing to contact necessary witnesses, 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 cоpy of the sentencing memorandum filed by his defense counsel, and a copy of a psychological evaluation report authored by Dr. Frederick Peterson of the Flexman Clinic. Significantly, the report was issued on August 20, 2009, approximately four and one-half months before he entered his no contest plea to the charge of forcible rape. In response, the State filed a motion for summary judgment requesting that Combs’ рetition be denied.
{¶ 6} On June 11, 2012, the trial court sustained 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 assistance of counsel were refuted by the record and therefore, without merit. The trial court also found that Combs’ argument regarding his desire to withdraw his plea was thoroughly analyzed in Combs I in his direct appeal. Accоrdingly, the trial court held that Combs’ claims were barred by res judicata.
{¶ 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 post-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 instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.
{¶ 11} “A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a cоntrary result.” AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 12} Initially, we note that a post-conviction proceeding is not an appeal of a criminal conviction, but a collateral civil attack on a criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). “Indeed, post-conviction state collateral review itself is not a constitutional right, even in capital cases.” Id., citing Murray v. 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 that was or could have been raised at trial or on direct appeal. Id. Accordingly, in a post-conviction proceeding, a convicted defendant has only the rights granted him by the lеgislature. 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 failed to assert an available, viable defense to the charges against him. Speсifically, Combs contends that he informed defense counsel at the beginning of the case that he suffered from a sleep disorder in which he engaged in sex acts while asleep with no memory of his actions upon waking. Moreover, Combs alleges that he informed defense counsel of two female witnesses who could testify regarding his condition, but they were never contacted. Combs also claims 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 dissatisfaction with his defense counsel and his unwillingness to enter into a plea, but the court “intimidated” him and forced him to accept thе plea.
{¶ 14} “We review the alleged instances of ineffective assistance 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 оr her conduct falls within the wide range of reasonable
{¶ 15} In order to decide the issue of ineffectiveness of Combs’ defense counsel, we must first look at whether his counsel‘s performance fell outside the range of professionally competent assistance. “Generally, counsel‘s performance falls below the norm if he fails to advocate the defendant‘s cause, fails to keep the defendant informed of importаnt developments, or fails to use the requisite level of skill necessary 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 conduсt violated any of these standards. The only new evidence presented by Combs in support of his claim of ineffective assistance of counsel was his own self-serving affidavit. Self-serving declarations, standing alone, dо 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. Petersоn authored the Flexman Report
{¶ 17} We also note that the Flexman Report dоes 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 experiences where he would have sex with them and not remеmber 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 daughter‘s leg and vaginal аrea, including inserting his finger into her vagina, but he merely thought he was touching someone else.
{¶ 18} We conclude that the record completely undermines Combs’ assertion that his trial counsel‘s performance was defiсient. Accordingly, Combs’ baseless speculation that his counsel was deficient is insufficient to meet the standard announced in Strickland.
{¶ 19} Lastly, Combs’ claim that he was intimidated by the trial court and his defense counsel and, thereforе, forced into entering his no contest plea was thoroughly reviewed by this Court in Combs I and rejected. As previously discussed, we concluded in
{¶ 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