State v. Ibrahim , 2014 Ohio 5307 ( 2014 )


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  • [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.
    ______________