COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60387 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : VALENTINE TORRES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 21, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 245562 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Laura T. Palinkas Cuyahoga County Prosecutor 11701 Tonsing Drive By: Karen L. Johnson Cleveland, Ohio 44125 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Valentine Torres was indicted, along with three co-defendants, for trafficking in marijuana (R.C. 2925.03) and possession of criminal tools (R.C. 2923.24). One attorney represented all of the defendants. Plea negotiations ensued and the state offered to recommend the court dismiss one count of the indictment in exchange for the defendants' agreement to plead to the other charge. The state's offer was dependent upon all the Defendants' entering pleas. The defendants accepted the state's offer. Torres chose to plead guilty to the drug trafficking charge. The court nolled the criminal tools count as to Torres. In a timely appeal, Torres raises one assignment of error. The defendant argues he was denied effective assistance of trial counsel based upon alleged conflicts of interests in his attorney's representation of all the defendants. Upon a review of the record, we affirm the conviction. The right to effective assistance of counsel is a fundamental right guaranteed by the Sixth Amendment. Argersinger v. Hamlin (1972), 407 U.S. 25; Cuyler v. Sullivan (1980), 446 U.S. 335. This guarantee includes the right to representation without conflicts of interests. Glasser v. United States (1942), 315 U.S. 60. See, also, State v. Haberek (1988), 47 Ohio App. 3d 35. In order to establish a violation of this Sixth Amendment right, "a - 2 - defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, supra, at 348. See, also, Haberek, supra, at 7; State v. Mollohan (April 28, 1983), Cuyahoga App. No. 44350 and 44351, unreported at 3. The record demonstrates Torres raised no objection to his attorney's representation of all four defendants. At the March 16, 1990 hearing, the court engaged in the following dialogue with Torres: "THE COURT: For the record, this is Case No. 245562, the State of Ohio versus Valentine Torres, Nancy Sosic, Lilly Sosic and David Aiken. "The defendants are in court with their attorney of record, R.J. Stidham. "Because of the representation by one attorney of four defendants, it presents a potential conflict in the course of the trial. "Do you understand that: "MR. TORRES: Yes. "*** "THE COURT: It may well be, and I can't visualize every possible conflict which may exist, but there may be some defendants who desire to testify, some defendants who will not testify. I do not know. No one can know. But if a defendant testifies, the same attorney could be required to cross-examine his own client. "Have all of the potential problems and conflicts been explained to you and do you understand the problem as I have outlined it to you? "MR. TORRES: Yes. "*** - 3 - "THE COURT: You still all desire to be represented by Mr. Stidham? "MR. TORRES: Yes." (March 16, 1990, Tr. 2-3). Three months later, the defendants appeared before the court and the state presented the plea offer. The court again queried the defendants about their desire for co-representation and informed each defendant that they had a right to separate counsel. (June 14, 1990, Tr. 6, 12). Torres indicated, as did the other defendants, that he was satisfied with the joint representation. (Tr. 7, 17). Four days afterwards, Torres entered his plea. The court sentenced Torres a month later at which time the defendant stated he was guilty. He again raised no objection to counsel's performance. For the first time on appeal, Torres contends his attorney acted under a conflict of interest. Torres claims two of his co- defendants would have testified at trial that he had no knowledge of the marijuana found in the vehicle at the time of his arrest and that these two co-defendants would have placed the blame on the remaining fourth defendant. Since the state's offer was conditioned upon all of the defendants' entering pleas, the attorney allegedly was faced with an actual conflict of interest in jointly representing his clients. The record contains no evidence to support the defendant's claim that two of his co-defendants would have exonerated him. As the Supreme Court held in State v. Cooperrider (1983), 4 Ohio St. 3d 226, 228, it is impossible to evaluate a claim of ineffective - 4 - assistance of counsel when the allegations are based upon purported evidence not appearing in the record. Further, it is well-established that an appellate court cannot consider matters outside the trial record. State v. Ishmail (1978), 54 Ohio St. 3d 402. Since the defendant has failed to demonstrate by way of evidence any actual conflict of interest which affected his attorney's performance, we are compelled to reject his argument. Accordingly, the assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., JOHN F. CORRIGAN, J., CONCUR. JUDGE ANN MCMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .