{¶ 2} In June 2005, defendant was charged with nine counts of rape and one count of kidnapping. The matter proceeded to trial, and defendant was found guilty of these offenses. The evidence at trial demonstrated that defendant repeatedly raped the victim at her apartment over a period of days in June 2005, and that defendant constrained her there against her will during most of that time. It was defendant's position at trial that the sexual activity was consensual. Defendant was sentenced to nine years in *2
prison and was adjudicated to be a sexual predator. Defendant appealed to this court, which affirmed the judgment of the trial court. SeeState v. Madison, Franklin App. No. 06AP-1126,
{¶ 3} During the pendency of the direct appeal, defendant filed a petition for postconviction relief pursuant to R.C.
{¶ 4} In this appeal, defendant asserts the following four assignments of error for our review:
*3FIRST ASSIGNMENT OF ERROR:
THE TRIAL ATTORNEY FAILED TO CALL THE WITNESSES THAT [WERE] AT THE SCENE OF THE ALLEGED CRIME.
SECOND ASSIGNMENT OF ERROR:
THE TRIAL ATTORNEY FAILED TO GET THE PHONE RECORDS OF THE ALLEGED VICTIM TO SHOW THAT SHE DID IN FACT HAVE INTENSIVE CONTACT WITH OTHER PARTIES OUT SIDE OF THE HOME DURING THE TIME FRAME OF THE ALLEGED CRIME.
THIRD ASSIGNMENT OF ERROR:
THE STATE'S DENIAL TO GRANT THE DEFENDANT ASSISTANCE OF COUNSEL TO ASSIST HIM IN THE PREPARATION OF HIS PETITION.
FOURTH ASSIGNMENT OF ERROR:
THE STATE'S DENIAL TO GRANT THE DEFENDANT THE ASSISTANCE OF A PRIVATE INVESTIGATOR TO ASSIST HIM GETTING ANY STATEMENTS OR AFFIDAVITS OF THERE [sic] TAKE ON THE ACTUAL EVENTS THAT WAS TO HAVE TAKEN PLACE AT THE OF [sic] THE ALLEGED CRIME.
{¶ 5} By his assignments of error, defendant challenges the trial court's decision to deny his postconviction petition without a hearing and its decision to deny his motions for expert assistance and appointment of counsel he filed in connection with his postconviction petition.
{¶ 6} The postconviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment. State v.Calhoun (1999),
{¶ 7} In order for the trial court to grant a hearing, the petitioner must provide evidence that demonstrates a cognizable claim of constitutional error, R.C.
{¶ 8} In reviewing whether the trial court erred in denying a petitioner's motion for postconviction relief without a hearing, the appellate court applies an abuse-of-discretion standard. State v.Campbell, Franklin App. No. 03AP-147,
{¶ 9} Defendant's postconviction petition alleged ineffective assistance of counsel. A defendant alleging ineffective assistance of counsel must demonstrate: (1) defense counsel's performance was so deficient that he or she was not functioning as the counsel guaranteed under the
{¶ 10} In order to secure a hearing on an ineffective-assistance-of-counsel claim in a petition for postconviction relief, the petitioner bears the initial burden of submitting evidentiary documents that together contain sufficient operative facts which, if believed, would establish defense counsel substantially violated at least one of the defense attorney's essential duties to his client, and the defendant was prejudiced as a result. State v.Harris, Franklin App. No. 07AP-972,
{¶ 11} Defendant argues by his first assignment of error that his trial counsel was deficient for not subpoenaing and calling as witnesses two persons who were at the victim's apartment when at least one of the rapes reported by the victim occurred. "Generally, counsel's decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a reviewing court." State v. Treesh
(2001),
{¶ 12} By his second assignment of error, defendant argues that his counsel was deficient for not obtaining telephone records relating to the victim's apartment in order to show that the victim had extensive contact with others on the days she alleged the rapes occurred. This contention is unpersuasive.
{¶ 13} The record demonstrates that a subpoena was in fact issued to the keeper of records at "SBC-ATT" for information concerning local and long distance calls made to and from the victim's apartment during the days at issue in this matter. This subpoena was requested by defendant's trial counsel. A letter to defendant from his counsel, which defendant submitted in support of his postconviction petition, indicates that, in response to the subpoena, the phone company indicated that it no longer had the requested records, if it ever had them in the first place. Moreover, telephone records detailing *6 incoming and outgoing calls at the victim's residence would have had little, if any, probative value as to whether the sexual activity was consensual or whether the victim was constrained at the apartment against her will. Defendant's theory was that the sexual activity was consensual; it was not that the victim was not at her apartment during the days at issue. Also, the victim testified that she had contact with persons other than defendant during the days she was raped at her apartment but was unable to seek help because she was terrified that defendant would kill her as he had threatened to do.
{¶ 14} For these reasons, we conclude that the trial court did not err in denying, without a hearing, defendant's petition for postconviction relief. Thus, we overrule defendant's first and second assignments of error.
{¶ 15} Defendant's third and fourth assignments of error allege that the trial court erred in denying his motions for expert assistance and appointment of counsel. An indigent petitioner has neither a state nor a federal constitutional right to be represented by an attorney in a postconviction proceeding, State v. Crowder (1991),
{¶ 16} As to defendant's argument that he was entitled to funding for an expert, R.C.
{¶ 17} Accordingly, we overrule defendant's third and fourth assignments of error.
{¶ 18} Having overruled all four of defendant's assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.