State v. Ibrahim

[Cite as State v. Ibrahim, 2014-Ohio-5307.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 14AP-355
v. : (C.P.C. No. 12CR-01-509)

Mohamed A. Ibrahim, : (REGULAR CALENDAR)

Defendant-Appellant. :
___

D E C I S I O N

Rendered on November 28, 2014
___

Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellee.

Alan D. Gabel, for appellant.
____
APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Defendant-appellant, Mohamed A. Ibrahim ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas denying a hearing on his
petition for postconviction relief and ultimately denying the same. For the following
reasons, we affirm in part and reverse in part.
{¶ 2} In February 2013, appellant was convicted of one count of aggravated
burglary, in violation of R.C. 2911.11, a felony of the first degree; two counts of felonious
assault, in violation of R.C. 2903.11, felonies of the second degree; eleven counts of
kidnapping, in violation of R.C. 2905.01, felonies of the first degree; and eleven counts of
aggravated robbery, in violation of R.C. 2911.01, felonies of the first degree, all with
accompanying firearm specifications. The charges arose from a home invasion in which
appellant, and his co-defendant, Mohamed M. Noor ("Noor"), entered the home of
Farheyo Abdulkar ("Farheyo"), and robbed her and 10 of her guests at gunpoint.
No. 14AP-355 2

Appellant was sentenced to a total of 57 years' imprisonment. Noor was convicted of the
same, as well as having a weapon under disability. He was sentenced to a total of 65 years
in prison.1
{¶ 3} Ibrahim and Noor were tried together before a jury. Both appealed their
convictions. In his appeal, Ibrahim set forth two assignments of error alleging that the
trial court erred because: (1) the court used an interpreter who was not qualified pursuant
to R.C. 2911.14; and (2) the court abused its discretion when it imposed a 57-year prison
sentence. Noor set forth five assignments of error alleging the trial court erred because:
(1) the court failed to instruct the jury on the mental state required to convict as an aider
or abettor; (2) the court permitted certain testimony of police officer witnesses; (3) the
court failed to appoint an interpreter qualified by the Supreme Court of Ohio and failed to
record the foreign language testimony; (4) the court refused to instruct on trespass as a
lesser-included offense of aggravated burglary; and (5) the court erred by not merging the
kidnapping and aggravated robbery charges.
{¶ 4} On February 25, 2014, we affirmed appellant's convictions in State v.
Ibrahim, 10th Dist. No. 13AP-167, 2014-Ohio-666; on August 5, 2014, we affirmed in part
and reversed in part Noor's convictions in State v. Noor, 10th Dist. No. 13AP-165, 2014-
Ohio-3397, and remanded the case to the trial court for further proceedings consistent
with our finding that the trial court erred in not merging the aggravated robbery and
kidnapping offenses. The facts regarding the home invasion are extensively summarized
in the aforementioned cases and will not be summarized here.
{¶ 5} On November 12, 2013, Ibrahim filed a petition for postconviction relief,
pursuant to R.C. 2953.21(C). He asserted the following grounds for relief:
 Ineffective assistance of trial counsel:

o For failure to investigate and adequately prepare for trial;

o For failure to subpoena key witnesses to testify on appellant's
behalf;

1 Noor appealed his sentence, and this court found that the trial court erred in not merging his convictions

for aggravated robbery and kidnapping. We therefore reversed and remanded the case for the trial court to
conduct further proceedings, consistent with our decision. State v. Noor, 10th Dist. No. 13AP-165, 2014-
Ohio-3397. On August 13, 2014, the state moved that we reconsider our decision, which we denied. State v.
Noor, 10th Dist. No. 13AP-165 (Nov. 25, 2014) (memorandum decision).
No. 14AP-355 3

o For failure to inform appellant sufficiently to enable him to
assist in his own defense;

o For failures relating to the use of an interpreter at trial:

 Failure to preserve the record of translation;

 Failure to request interpreter's qualifications be established
on the record;

 Failure to question the availability of a certified interpreter;

 Failure to object to less than a word-for-word translation;

 Failure to request that the interpreter be sworn in on the
record.

o Failure to argue self-defense or to request a self-defense
instruction;

o Failure to adequately present or develop significant evidence at
trial;

o Failure to investigate, evaluate and present evidence of mitigating
circumstances with respect to appellant's sentencing;

o Failure to object to appellant's conviction of both aggravated
robbery and kidnapping and failure to object to non-merger of the
same.2

 Cumulative error and effect.

 Ineffective assistance of appellate counsel:

o For failure to raise on appeal ineffective assistance of trial counsel for
failures relating to the use of an interpreter at trial;

o For failure to raise on appeal ineffective assistance of trial counsel
for failure to request severance of trial for Ibrahim from Noor or to
ask for a mistrial when Noor's counsel shifted the blame for the
criminal activity to appellant;

2 Appellant does not address this issue on appeal and, therefore, we will not address it. Furthermore, such a claim was

apparent from the transcript of the trial, was raised by co-defendant Noor on appeal, and could have been raised by
appellant's counsel on appeal. Therefore, it is barred by res judicata.
No. 14AP-355 4

o For failure to raise on appeal ineffective assistance of trial counsel
for failure to object to appellant's conviction of both aggravated
robbery and kidnapping and failure to object to non-merger of the
same.
The state moved to dismiss for being untimely3 and filed an answer to the same. On
April 1, 2014, the trial court, without holding a hearing on the petition, issued a decision
and denied the petition. Appellant filed a timely appeal, alleging the following assignment
of error:
THE TRIAL COURT ERRED IN FAILING TO GRANT
APPELLANT A HEARING ON HIS PETITION FOR POST-
CONVICTION RELIEF.

{¶ 6} At the outset, we note that appellant's claims regarding the ineffective
assistance of appellate counsel are not proper grounds for relief in a petition for
postconviction relief but, rather, are more properly raised in an application to reopen
appeal pursuant to App.R. 26(B). See State v. Mayrides, 10th Dist. No. 03AP-347, 2004-
Ohio-1623 ("The trial court also properly denied appellant's claim for ineffective
assistance of appellate counsel, as such claims are not cognizable in post-conviction
proceedings."). Therefore, we will not consider or address these claims in our discussion
of whether the trial court erred in failing to grant appellant a hearing before denying his
petition for postconviction relief.
{¶ 7} R.C. 2953.21 states in relevant part:
(A)(1)(a) 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
the 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.
3 R.C. 2953.21(A)(2) states: "[e]xcept as otherwise provided in section 2953.23 of the Revised Code, a petition under
division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial
transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication." The trial
court accepted appellant's petition to be timely given appellant's counsel's unfamiliarity with the court's e-filing system
and due to a technicality in the e-filing system which rejected the petition. We accept the trial court's finding that the
petition was timely filed.
No. 14AP-355 5

***

(C) * * * Before granting a hearing on a petition filed under
division (A) of this section, the court shall determine whether
there are substantive grounds for relief. In making such a
determination, the court shall consider, in addition to the
petition, the supporting affidavits, and the documentary
evidence, all the files and records pertaining to the
proceedings against the petitioner, including, but not limited
to, the indictment, the court's journal entries, the journalized
records of the clerk of the court, and the court reporter's
transcript.

***

(E) 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.

I. Purpose of Postconviction Relief
{¶ 8} The postconviction relief process is a civil collateral attack on a criminal
judgment, not an appeal of that judgment. State v. Davis, 10th Dist. No. 13AP-98, 2014-
Ohio-90, ¶ 17, citing State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). Postconviction
relief is a means by which the petitioner may present constitutional issues to the court
that would otherwise be impossible to review because the evidence supporting those
issues is not contained in the record of the petitioner's criminal conviction. State v.
Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15, citing State v. Murphy, 10th Dist.
No. 00AP-233 (Dec. 26, 2000). Postconviction review is not a constitutional right but,
rather, is a narrow remedy which affords a petitioner no rights beyond those granted by
statute. Calhoun at 281-82. A postconviction relief petition does not provide a petitioner
a second opportunity to litigate his or her conviction. State v. Hessler, 10th Dist. No.
01AP-1011, 2002-Ohio-3321, ¶ 32; Murphy.
II. Requirements to Have a Hearing
{¶ 9} A defendant is not automatically entitled to an evidentiary hearing on a
petition for postconviction relief. State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-
2309, ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107, 110-13 (1980). We review a trial
No. 14AP-355 6

court's decision to deny a postconviction petition with a hearing for an abuse of
discretion. State v. Holloman, 10th Dist. No. 06AP-608, 2006-Ohio-6789, ¶ 7. To warrant
an evidentiary hearing on a petition for postconviction relief, a petitioner bears the initial
burden of providing evidence that demonstrates a cognizable claim of constitutional
error. State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305, ¶ 15, citing R.C.
2953.21(C); Hessler at ¶ 33. As the Supreme Court of Ohio noted in State v. Cole, 2 Ohio
St.3d 112, 113 (1982), a trial court has a statutorily imposed duty to ensure a defendant
presents evidence sufficient to warrant a hearing. The evidence must show "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." R.C.
2953.21(A)(1)(a); Calhoun at 282-83. Pursuant to R.C. 2953.21(C), a defendant's petition
for postconviction relief may be denied by a trial court without holding an evidentiary
hearing where the petition, the supporting affidavits, the documentary evidence, the files,
and the records do not demonstrate that the petitioner set forth sufficient operative facts
to establish substantive grounds for relief. Id. at paragraph two of the syllabus.
III. Res Judicata Bars Hearing
{¶ 10} A trial court may also dismiss a petition for postconviction relief without
holding an evidentiary hearing when the claims raised in the petition are barred by the
doctrine of res judicata. Campbell at ¶ 16, citing State v. Szefcyk, 77 Ohio St.3d 93 (1996),
syllabus. "Res judicata is applicable in all postconviction relief proceedings." Szefcyk at
95. Under the doctrine of res judicata, a defendant who was represented by counsel is
barred from raising an issue in a petition for postconviction relief if the defendant raised
or could have raised the issue at trial or on direct appeal. Id. at syllabus; State v.
Reynolds, 79 Ohio St.3d 158, 161 (1997). Similarly, to the extent that appellant contends
that the trial transcript contains evidence of deficient performance on the part of trial
counsel, appellant may not rely upon such evidence in support of his petition. Davis,
citing Cole at 113-14.
{¶ 11} In order to avoid the defense of res judicata, support for the claims in the
petition for postconviction relief must be competent, relevant, and material evidence,
outside the trial court's record, and it must not be evidence that existed or was available
for use at the time of trial. See State v. Braden, 10th Dist. No. 02AP-954, 2003-Ohio-
No. 14AP-355 7

2949, ¶ 27. Where new counsel represents a defendant on direct appeal and the
ineffectiveness of trial counsel could have been determined without resort to evidence
outside the record, a petition for postconviction relief alleging ineffective assistance of
trial counsel is barred by res judicata. Cole at 114.
{¶ 12} We find that several of appellant's claims in his petition for postconviction
relief were barred by res judicata. Appellant claimed ineffective assistance of trial counsel
for failures relating to the use of an interpreter at trial. Appellant argued that trial counsel
failed to preserve the record of the translation, failed to request that the interpreter's
qualifications be established on the record, failed to question the availability of a certified
interpreter, failed to object to less than a word-for-word translation, and failed to request
that the interpreter be sworn in on the record. In support of his arguments, he points in
particular to Sup.R. 88. All these alleged errors were readily apparent from the trial
transcript and could have been raised either at trial or on direct appeal. Indeed, both
appellant and his co-defendant, Noor, raised issues in their direct appeal related to
alleged failures relating to the use of an interpreter at trial. Noor also supported his
arguments with reference to Sup.R. 88. We addressed the merits of those arguments in
Ibrahim at ¶ 6-14, Noor at ¶ 61-77. We decline to address the interpreter issues again as
appellant's claims in this regard are barred by res judicata. Therefore, we affirm the trial
court's denial of the petition for postconviction relief without a hearing on grounds of
ineffective assistance of trial counsel for failures relating to the use of the interpreter at
trial.
{¶ 13} Appellant also claimed ineffective assistance of counsel for failure to object
and request a mistrial when counsel for co-defendant Noor indicated appellant's guilt in
an attempt to exonerate Noor. He further claimed that his attorney was ineffective by not
asking for severance of the trials for appellant and Noor. Although these issues were not
raised on appeal, they could have been, as appellate counsel could have determined these
issues upon review of the transcript and without resort to evidence outside the record.
We decline to address this issue as it was barred by res judicata. Therefore, we affirm the
trial court's denial of the petition for postconviction relief on grounds of ineffective
assistance of trial counsel for failure to object and request a mistrial and/or request
severance of the trials from co-defendant Noor.
No. 14AP-355 8

{¶ 14} Appellant claimed ineffective assistance of counsel for failure to call as a
witness on his behalf an expert on Somalian tribal interaction and customs in order to
show: (1) that appellant would have removed his shoes before entering the apartment;
and (2) that there was significant tension between the Monnguer Somalia tribe, of which
appellant is a member, and the Somalilander tribe, of which the prosecuting witnesses
were members. The transcript, however, reflects that trial counsel questioned appellant
regarding Somali culture, as well as regarding the custom of removing shoes before
entering a home. Appellant testified that he removed his shoes before entering Farheyo's
home. He also testified that one of the victims asked him where he was from and made an
issue of this. Yet, appellant did not elaborate in his testimony regarding the tension
between the Somali tribes. If appellant felt that the questioning was ineffective, or that an
expert should have been called to address the same, he could have raised this on appeal,
but he did not. We decline to address these issues as they were barred by res judicata.
Therefore, we affirm the trial court's denial of the petition for postconviction relief on
grounds of ineffective assistance of trial counsel for failure to further address the issues of
the removal of shoes and the tension between the Somalilander tribe and the Monnguer
Somalia tribe.
{¶ 15} Appellant makes several other claims of ineffective assistance of counsel,
including, in general, failure to investigate and adequately prepare for trial, failure to
subpoena key witnesses, and failure to inform appellant regarding the progress of his case
and the availability of a self-defense instruction. Many of these claims too were barred by
res judicata.
{¶ 16} Appellant claimed that trial counsel was ineffective because he failed to
inform appellant regarding the affirmative defense of self-defense. He does not support
this argument in his appellate brief, however, other than to say that, when his
postconviction relief attorney explained self-defense to him, he realized it would have
been applicable to him. It was clear from the transcript that self-defense was not raised
by trial counsel at the jury instructions conference, and the trial court did not instruct the
jury regarding self-defense. This claim could have been raised on direct appeal and,
accordingly, is barred by res judicata. Therefore, we affirm the trial court's denial of the
No. 14AP-355 9

petition for postconviction relief on grounds of ineffective assistance of trial counsel for
failure to advise appellant regarding the affirmative defense of self-defense.
{¶ 17} Appellant also claimed that counsel should have questioned the witnesses at
trial regarding: (1) the fact that there was no blood on his face mask because he removed
it before entering the apartment; (2) the fact that the police only collected the cellphones
of appellant and co-defendant Noor; (3) the fact that appellant's wallet and $80 were
stolen from him during the incident; (4) the fact that appellant did not own the gun;
(5) the fact that the apartment was a known drug house; (6) the fact that appellant had an
altercation with Abdi Mohamed ten days prior to the robbery; and (7) the fact that the
prosecuting witnesses fabricated a story. Several police officers testified at trial and could
have been questioned as to the issues relating to physical evidence. Appellant himself
testified that he did not own a gun, and numerous witnesses testified that the apartment
was a known drug house. Appellant also testified that he and Abdi Mohamed had gotten
into it on the streets before and that the prosecuting witnesses must have coordinated
their stories. All of this was clear from the transcript. These claims could have been
raised on direct appeal and, accordingly, are barred by res judicata. Therefore, we affirm
the trial court's denial of the petition for postconviction relief on grounds of ineffective
assistance of trial counsel for failure to advise appellant regarding these issues.
IV. Ineffective Assistance of Counsel
{¶ 18} A convicted defendant alleging ineffective assistance of counsel must
demonstrate that: (1) defense counsel's performance was so deficient that he or she was
not functioning as the counsel guaranteed under the Sixth Amendment to the United
States Constitution; and (2) that defense counsel's errors prejudiced defendant, depriving
him or her of a trial whose result is reliable. Campbell at ¶ 24, citing Strickland v.
Washington, 466 U.S. 668 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph
two of the syllabus, cert. denied, 497 U.S. 1011 (1990). 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 had
substantially violated at least one of a defense attorney's essential duties to his client and
that the defendant was prejudiced as a result. Cole at 114; Jackson at syllabus. "Judicial
No. 14AP-355 10

scrutiny of counsel's performance must be highly deferential * * * [and] a court must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland at 689; Bradley at 141. In Ohio, a
properly licensed attorney is presumed competent. Davis at ¶ 20, citing Vaughn v.
Maxwell, 2 Ohio St.2d 299, 301 (1965). Trial counsel is entitled to a strong presumption
that all decisions fall within the wide range of reasonable professional assistance. State v.
Sallie, 81 Ohio St.3d 673, 675 (1998). With this in mind, we consider the remainder of
appellant's claims.
{¶ 19} Furthermore, with regard to appellant's averments that he asked his trial
counsel to further investigate certain issues, we keep in mind that appellant did not
present the affidavit of his trial counsel to corroborate either that trial counsel had been
advised of these issues and witnesses by appellant or that he did not further investigate
these issues. The lack of such an affidavit by trial counsel is significant because there is no
evidence indicating what steps trial counsel took to prepare for trial. State v. Messer-
Tomak, 10th Dist. No. 10AP-847, 2011-Ohio-3700, ¶ 14-15 ("Defendant claims her trial
counsel failed to investigate various topics that would have enhanced counsel's ability to
cross-examine the state's witnesses * * *, however, [h]e did not attach to her petition for
post-conviction relief an affidavit from her trial counsel, or anyone else, stating what steps
trial counsel took to prepare for cross-examination * * * [and therefore failed] to present
sufficient operative facts indicating the extent of investigation counsel undertook * * *
[and failed] to establish substantive grounds for a hearing or for relief on her claim of
ineffective assistance of counsel based on counsel's failure to investigate [the case]."). See
State v. Silverman, 10th Dist. No. 06AP-1278, 2007-Ohio-6498, ¶ 27, discretionary
appeal not allowed, 117 Ohio St.3d 1459, 2008-Ohio-1635 (concluding the petitioner's
claim that her trial counsel failed to effectively investigate or prepare the case for trial was
unmeritorious where "the record [did] not include an affidavit from trial counsel, the
investigator, or any other non-interested party with personal knowledge of what steps
trial counsel took in preparing appellant's case for trial").
V. Credibility of Appellant's Own Self-Serving Affidavit
{¶ 20} In support of his other claims that trial counsel was ineffective for failing to
investigate and subpoena witnesses, appellant provided ten affidavits, including his own
No. 14AP-355 11

and those of two family members. Appellant argues that " '[w]hen determining whether
there are substantive grounds for postconviction relief that would warrant a hearing the
affidavits offered in support of the petition should be accepted as true.' " (Emphasis sic.)
(Appellant's Brief, 1, quoting State v. Swortcheck, 101 Ohio App.3d 770 (8th Dist.1995).).
The Supreme Court of Ohio has stated, however, that " 'in reviewing a petition for
postconviction relief filed pursuant to R.C. 2953.21, a trial court should give due deference
to affidavits sworn to under oath and filed in support of the petition, but may, in the
sound exercise of discretion, judge their credibility in determining whether to accept the
affidavits as true statements of fact.' " State v. Jeffers, 10th Dist. No. 10AP-1112, 2011-
Ohio-3555, ¶ 11, quoting Calhoun at 284.
{¶ 21} In postconviction relief proceedings, the trial court may, under appropriate
circumstances, deem affidavit testimony to lack credibility without first observing or
examining the affiant. State v. Taylor, 10th Dist. No. 14AP-166, 2014-Ohio-3574, ¶ 16;
Davis at ¶ 26, citing Calhoun at 284. The trial court in this case, without observing or
examining appellant, determined that his affidavit could be viewed as self-serving due to
his vested interest in the petition.
{¶ 22} This court has previously held that a petitioner's own self-serving affidavit is
legally insufficient to rebut the record in the underlying criminal proceedings. State v.
Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-2749, citing State v. Kapper, 5 Ohio St.3d
36, 38 (1983); Mayrides. Consistent with this holding, we find that appellant's own self-
serving affidavit is legally insufficient to support his claim that trial counsel was
ineffective for failing to secure footage from security cameras located in front and in back
of the apartment. Appellant claimed that said footage would have corroborated his
testimony that he was not inside the apartment robbing people and that the prosecuting
witnesses fled the apartment carrying drugs. In support of this alleged ineffective
assistance of counsel, appellant points to his own affidavit, and nothing more. Although
affiant Abdullah Aboke avers that the security cameras existed, neither he nor appellant
aver that they viewed the security footage. Notwithstanding, appellant avers the security
footage would have rebutted the evidence presented at trial. As noted above, appellant's
self-serving affidavit alone is legally insufficient to establish operative facts with regard to
this claim. We affirm the trial court's denial of the petition for postconviction relief on
No. 14AP-355 12

grounds of ineffective assistance of trial counsel for failure to secure footage from security
cameras.
VI. Assessing Credibility of Supporting Affidavits
{¶ 23} The fact that a petitioner's affidavit can be viewed as self-serving and legally
insufficient on its own does not mean it can always be completely disregarded. We have
said that, "[u]nless the petition is also supported by operative facts other than those
contained in the petitioner's affidavit, the petition may be denied without a hearing."
Taylor at ¶ 16. Therefore, contrary to the trial court's conclusion that the affidavits of
appellant's aunt and brother are also self-serving and thus "immediately discredited," we
must examine these affidavits, as well as the affidavits of the remaining affiants, to
determine if they present sufficient operative facts in support of the averments in
appellant's affidavit to warrant a hearing.
{¶ 24} The Supreme Court of Ohio has provided courts guidance regarding how to
determine the credibility of supporting affidavits in postconviction relief proceedings.
The Supreme Court instructed that trial courts should consider all relevant factors,
including:
(1) whether the judge reviewing the postconviction relief
petition also presided at the trial,4 (2) whether multiple
affidavits contain nearly identical language, or otherwise
appear to have been drafted by the same person, (3) whether
the affidavits contain or rely on hearsay, (4) whether the
affiants are relatives of the petitioner, or otherwise interested
in the success of the petitioner's efforts, and (5) whether the
affidavits contradict evidence proffered by the defense at trial.

Taylor at ¶ 23, citing Calhoun at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-56
(1st Dist.1994). Further, in Calhoun, the Supreme Court stated:

Depending on the entire record, one or more of these or other
factors may be sufficient to justify the conclusion that an
affidavit asserting information outside the record lacks
credibility. Such a decision should be within the discretion of
the trial court. A trial court that discounts the credibility of

4The judge who reviewed the postconviction relief petition was the same judge who presided at trial.
However, the averments on which we focus now were not facts presented at trial. Therefore, the judge did
not have the opportunity to view witnesses testifying to or assess such evidence at trial.
No. 14AP-355 13

sworn affidavits should include an explanation of its basis for
doing so in its findings of fact and conclusions of law, in order
that meaningful appellate review may occur.

Taylor at ¶ 25, citing Calhoun at 285.
VII. Affidavits of Fatima Ali Yussuf, Hussein Ibrahim, Luuley Mohamed,
Mohamed Bukdow, Abdullah Aboke, and Marian Mohamed

{¶ 25} The affidavits of Fatima Ali Yussuf, Hussein Ibrahim, Luuley Mohamed, and
Mohamed Bukdow contain nearly identical language and appear to have been drafted by
the same person. Furthermore, these affidavits, as well as the affidavit of Abdullah Aboke,
state generally that the affiants "had information" to offer but do not specify what
particular information they would have offered, nor whether the information would have
been helpful to appellant at trial. The affidavit of Marian Mohamed establishes that the
information she would have offered to an investigator or at trial was made known to her
after appellant's trial. Trial counsel cannot be considered ineffective for failing to
investigate information gathered after trial. For these reasons, we find the trial court did
not err in not holding a hearing to determine the credibility of these six affiants.
VIII. Affidavits of Amina Manguera, Mowlina Aboke, and Aweis Ibrahim.
{¶ 26} In addition to his own affidavit, appellant offered the affidavits of Amina
Manguera ("Manguera"), Mowlina Aboke ("Mowlina"), and Aweis Ibrahim ("Aweis"),
and, in support of his claims that trial counsel was ineffective for failing to investigate,
subpoena witnesses, and question witnesses regarding the following information:
 That alleged victim Abdi Mohamed bragged that a robbery did not occur
(appellant, Aweis, Manguera, Mowlina)

 That another prosecuting witnesses stated that a robbery did not occur
(Manguera)

 That the prosecuting witnesses attempted to extort $10,000 from
appellant's family in exchange for their silence at the trial (Manguera,
Aweis, Mowlina)
{¶ 27} Manguera is appellant's aunt, and she states that she is also the ex-wife of a
member of the Somalilander tribe who manages their drug business. Manguera averred
that she personally spoke with one of the alleged victims, who informed her that appellant
No. 14AP-355 14

had seen the drugs and money in the apartment and, therefore, they beat him and made
up the robbery story because they were afraid he would reveal their secret. She also stated
that the alleged victim told her that the gun used in the incident did not belong to
appellant. Additionally, she averred that the alleged victim told her that no robbery had
occurred and that, if the family of appellant would give the group $10,000, they would
remain silent and make the case go away. Finally, she stated that the alleged victim did
testify at trial against appellant and subsequently called her to apologize for doing so.
{¶ 28} Aweis is the brother of appellant. Aweis stated that he was personally aware
that Abdi Mohamed had been bragging at Star Coffee that he beat appellant, the member
of another Somalian tribe, and put him in jail. He further averred that Somalilander
witnesses approached his family attempting to extort $10,000 in exchange for their
silence at appellant's trial. He indicated that he personally heard prosecuting witness
Farheyo indicate that she wanted appellant to keep his mouth shut concerning her drug
operation. Aweis made several other averments of which he claims to have had personal
knowledge, but which we would consider to be speculation—such as his averment that his
uncle, prosecuting witness Abdul Kadir Aden ("Aden"), implicated appellant in this crime
in order "to avoid deportation, as he is a truck driver who transported drugs for the
alleged Somalian victims in this incident." (Aweis Ibrahim Affidavit at No. 16.) Aweis did
not aver that Aden personally told him this and, thus, it is not clear how he could
personally have knowledge of this information.
{¶ 29} The fact that Manguera and Aweis are related to appellant, and also that one
of the prosecuting witnesses allegedly involved in the Somalilander drug operations is
Manguera's ex-husband, are factors which point to a lack of credibility. However, the fact
that their averments, and those of appellant, are consistent not only with the averments of
each other but also with the averments of affiant Mowlina, points to credibility.
Mowlina's affidavit does not indicate any relation to appellant, nor any other interest in
his success. Mowlina averred that he is the owner of a barbershop and that prosecuting
witness Abdi Mohamed came into his barbershop. While there, Abdi Mohamed told
Mowlina that there had been no robbery and that the robbery had been falsely reported to
protect themselves from appellant after he saw the drugs in the apartment. Mowlina also
averred that Abdi Mohamed told him that he and the prosecuting witnesses had offered
No. 14AP-355 15

appellant's family $10,000 "to make the case go away." Mowlina made several other
averments of which he claims to have had personal knowledge, but which we would
consider to be speculation—such as his averment that "[Abdi] Mohamed did not like
[appellant], who was from a different Somali tribe than his, and wanted revenge against
him." (Mowlina Aboke Affidavit at No. 28.) He also made several general averments that
he "had information" regarding the incident with Abdi Mohamed at Star Coffee and
regarding the nature of the activities typically occurring at the apartment. However, he
did not specifically state what particular information he would have offered, nor whether
the information would have been helpful to appellant at trial. Nevertheless, his apparent
disinterest, and the fact that his other averments were consistent with those of Manguera,
Aweis, and appellant, lend credibility to their averments.
{¶ 30} Also lending credibility to the averments of Mowlina, Manguera, Aweis and
appellant is exhibit No. 15, a purported jail visitor list showing that two of the prosecuting
witnesses, Farheyo Adbulkar and Abdi Aden, attempted to visit appellant in jail. Appellant
himself does not aver that he had personal knowledge of the alleged extortion attempt or
that he informed his attorney of the same. In support of this claim, however, appellant
points to the affidavit of his brother, Aweis, who stated that he and his mother had made
several attempts to contact trial counsel and inform him of the same—repeatedly going to
his office, repeatedly calling and leaving messages for him, appearing at court dates,
which ultimately were rescheduled—all to no avail because trial counsel was not present
and did not return their phone calls. This assertion that trial counsel was unavailable is
consistent with that averred by appellant himself. Appellant stated that, during the time
he was being represented by counsel, counsel was suffering from cancer and often was
coughing and having difficulty breathing on the five occasions they did meet. As noted
above, appellant also presents the affidavits of Manguera and Mowlina to support the
claim that witnesses attempted to extort his family. The fact that these specific averments
of the affiants are not rebutted by any of the evidence presented at trial also lends
credibility to these affiants.
{¶ 31} The state argues that the averments of the witnesses summarized above are
hearsay and, therefore, would not have been admissible at trial. The state also argues that
the affidavits do not show that any deficiency on the part of trial counsel resulted in
No. 14AP-355 16

prejudice to appellant. While it may be true that the averments constituted hearsay,
Farheyo and Aden testified at trial, and appellant's counsel could have cross-examined
them regarding the same. Counsel likewise could have subpoenaed Abdi Mohammed and
examined him. Such cross-examination, in particular with regard to the jail visitor list,
could have been damaging to the credibility of all the witnesses.
{¶ 32} The trial court did not address appellant's extortion claims, nor the
purported jail visitor list. The state likewise did not address the jail visitor list and, as to
the extortion claims, only argued that the claim is unpersuasive and not credible.
{¶ 33} Taking all of this into consideration, we find that the jail visitor list, along
with the consistent averments of the witnesses summarized above, most particularly those
of Mowlina, together set forth sufficient operative facts, which, if believed, would establish
substantive grounds that trial counsel had substantially violated at least one of a defense
attorney's essential duties to his client. We also find that, if believed, these averments
could implicate all of the state's prosecuting witnesses (victims stated no robbery actually
occurred; victims tried to extort money for their silence). Such implication of all the
prosecuting witnesses could have resulted in a different outcome at trial, thereby
prejudicing appellant. Therefore, we find the trial court erred in not holding a hearing to
determine the credibility of the affiants as to these averments.
IX. Mitigating Evidence of Penalty
{¶ 34} Appellant claimed ineffective assistance of counsel for failure to call
witnesses to supply information on his behalf for the purpose of mitigation of his
sentence. He claims that the witnesses would have testified that he is a devoted father of
two young sons and a hard worker employed in the construction trade. He suggests his
mother would have testified that he came to the United States at the age of seven and was
a good student, athlete, and chess club member while attending school. He presented the
affidavits of Manguera and Aweis in support of his own averment regarding the same.
{¶ 35} Generally, a defense counsel's decision as to what mitigating evidence to
present during the penalty phase of a capital trial is a matter of trial strategy. Campbell at
¶ 37, citing State v. Keith, 79 Ohio St.3d 514, 530 (1997), cert. denied, 523 U.S.
1063; Hessler at ¶ 42. Defense counsel has a duty to investigate mitigating circumstances
in order to make informed tactical decisions about which information would be most
No. 14AP-355 17

helpful to a client's case. State v. Jackson, 10th Dist. No. 01AP-808, 2002-Ohio-3330,
¶ 84, citing State v. Johnson, 24 Ohio St.3d 87, 90 (1986). However, out-of-record
evidence that is merely cumulative of, or alternative to, other mitigation evidence defense
counsel presented does not provide substantive grounds for a claim of ineffective
assistance of counsel at mitigation. Hessler; State v. Combs, 100 Ohio App.3d 90, 98, 105
(1st Dist.1994). Further, decisions regarding what witnesses to call falls within the
purview of trial strategy and, absent prejudice, generally will not constitute ineffective
assistance of counsel. Campbell at ¶ 38, citing Hessler at ¶ 42. To demonstrate prejudice,
a petitioner must show not only that there was mitigating evidence that counsel failed to
present, but also that "there is a reasonable probability that the evidence would have
swayed the jury to impose [a lesser sentence]." Keith at 536. We find that appellant
himself informed the court that he had a family. Furthermore, although appellant's
counsel did not present all the mitigating evidence Manguera and Aweis presented, we
cannot say there was a reasonable probability that the evidence would have swayed the
jury to impose a lesser sentence. Therefore, we affirm the trial court's denial of the
petition for postconviction relief without a hearing on grounds of ineffective assistance of
trial counsel for failure to raise mitigating evidence at sentencing.
X. Cumulative Error
{¶ 36} Finally, appellant claimed the cumulative effect of the errors alleged in his
postconviction petition warrant the grant of a new trial and sentencing hearing or, at a
minimum, a postconviction evidentiary hearing on the grounds presented in the petition.
Pursuant to the doctrine of cumulative error, a judgment may be reversed where the
cumulative effect of errors deprives a defendant of his constitutional rights, even though
the errors individually do not rise to the level of prejudicial error. State v. Garner, 74 Ohio
St.3d 49 (1995), cert. denied, 517 U.S. 1147 (1996); State v. DeMarco, 31 Ohio St.3d 191
(1987), paragraph two of the syllabus.
{¶ 37} Because we have reversed the trial court on its denial of a hearing with
regard to Manguera, Aweis, Mowlina, and appellant as to the specific averments
summarized at ¶ 26, we find this claim to be moot and will not address it at this time.
No. 14AP-355 18

XI. Conclusion
{¶ 38} For the foregoing reasons, we overrule in part and sustain in part
appellant's assignment of error. Therefore, we affirm in part and reverse in part the
judgment of the Franklin County Court of Common Pleas and remand this case to that
court for further proceedings, in accordance with law and consistent with this decision.
Judgment affirmed in part, reversed
in part, and cause remanded.

KLATT and O'GRADY, concur.

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