Therefore, in order for an appellant to overcome the presumption of effectiveness, he "must submit sufficient operative facts or evidentiary documents which, if proven, would show that appellant was prejudiced by said ineffective counsel." State v. Smith (1987), 36 Ohio App. 3d 162, 163, 521 N.E.2d 1112. Until appellant has proven prejudice as a result of ineffective counsel, an evidentiary hearing is not required.
Accordingly, "a petitioner in a postconviction relief proceeding must submit sufficient operative facts or evidentiary material which, if proven, would show petitioner was prejudiced by said ineffective assistance of counsel." Id., citing State v. Smith (1987), 36 Ohio App.3d 162, 163. Just as a winning defense strategy is not required for effective assistance of counsel, "[debatable tactics do not necessarily constitute a violation of defense counsel's duties."
This evidence includes trial counsel's failure to file a motion to suppress. Under these circumstances, res judicata may not be a bar to postconviction relief. State v. Smith (1987), 36 Ohio App.3d 162, 165. {¶ 12} The State also asserts appellant's post-conviction relief should be dismissed as untimely.
In order to overcome the presumption of counsel's competency, Speed is required to submit sufficient operative facts or documents that, if proven, would show that he was prejudiced. State v. Smith (1987), 36 Ohio App.3d 162, 163. We particularly note the wording "if proven."
To overcome the presumption of trial counsel's competency, a postconviction petitioner must submit sufficient operative facts or evidentiary documents that, if proven, would show that the petitioner was prejudiced by ineffective assistance of counsel. State v. Smith (1987), 36 Ohio App.3d 162, 163. {¶ 65} As an initial matter, we note that the trial court erred by barring this cause of action by the doctrine of res judicata.
{¶ 21} Therefore, in order for an appellant to overcome the presumption of effectiveness, he "must submit sufficient operative facts or evidentiary documents which, if proven, would show that appellant was prejudiced by said ineffective counsel." State v. Smith (1987), 36 Ohio App.3d 162, 163, 521 N.E.2d 1112. Until appellant has proven prejudice as a result of ineffective counsel, an evidentiary hearing is not required.
In order to overcome this presumption of effective assistance, a petitioner in a postconviction relief proceeding must submit sufficient operative facts or evidentiary material which, if proven, would show petitioner was prejudiced by said ineffective assistance of counsel. State v. Smith (1987), 36 Ohio App.3d 162, 163. Effective assistance of defense counsel does not equate with a winning defense strategy.
Strickland v. Washington (1984), 466 U.S. 668, 687. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162 . Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153.
A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162 . Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment.
A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment.