COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60418 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION EUGENE GOAD : : Defendant-appellant : : DATE OF ANNOUNCEMENT : APRIL 16, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 203938 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: Stephanie Tubbs-Jones Eugene Goad, #194-113 Cuyahoga County Prosecutor c/o P.O. Box 120 Karen L. Johnson Lebanon, OH 45036 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. Petitioner-appellant, Eugene Goad, appeals pro se the trial court's dismissal of his petition for post-conviction relief. On November 21, 1985, appellant was indicted for kidnapping (R.C. 2905.01), aggravated robbery (R.C. 2911.01), and felonious assault (R.C. 2903.11). Each count of the indictment included a gun specification and an aggravated felony specification. On June 5, 1986, appellant entered a guilty plea to felonious assault with specifications. Pursuant to the prosecutor's recommendation, the remaining counts were nolled. On August 21, 1986, prior to sentencing, appellant filed a motion to withdraw his guilty plea. After conducting a hearing, the trial court overruled appellant's motion. Thereafter, appellant was sentenced to a term of twelve to twenty-five years of imprisonment plus three years of actual incarceration for the gun specification. On direct appeal, appellant's conviction and the denial of appellant's motion to withdraw his guilty plea were affirmed. State v. Goad (Sep. 24, 1987), Cuyahoga App. No. 52704, unreported. Appellant's motion for leave to appeal was denied by the Ohio Supreme Court for want of a substantial constitutional question. On October 23, 1989, appellant filed his seventy- five-page petition for post-conviction relief alleging: (1) ineffective assistance of trial counsel at the hearing on the motion to withdraw his guilty plea; (2) ineffective assistance of - 3 - counsel on appeal; (3) abuse of discretion by the trial court in denying his motion to withdraw his guilty plea; (4) that his guilty plea was induced by false promises of the prosecutor; and (5) prosecutorial misconduct. The trial court dismissed appellant's petition and issued the required findings of fact and conclusions of law. Appellant brings a timely appeal from the dismissal. Appellant's first assignment of error provides: IN DISMISSING THE APPELLANT'S "POST- CONVICTION" CLAIM THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED BY FINDING SAID CLAIM RES JUDICATA AND THAT THE CLAIM WAS UNSUPPORTED BY THE RECORD. Appellant argues that he received ineffective assistance of counsel. Specifically, appellant alleges the following deficien- cies in counsel's performance: (1) failure to introduce evidence of appellant's drug addiction; (2) making false promises that appellant would receive a sentence of eight to fifteen years to induce appellant's guilty plea; and (3) failure to introduce exculpatory evidence at the hearing on his motion to withdraw his guilty plea. For the following reasons appellant's contentions lack merit. Under R.C. 2953.21(A), one seeking post-conviction relief must file a verified petition stating the grounds for relief and supplement the petition with documentary evidence demonstrating the existence of these grounds. In a petition for post- conviction relief asserting a claim for ineffective assistance of - 4 - counsel, the petitioner bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that he was prejudiced by counsel's ineffectiveness. State v. Jackson (1980), 64 Ohio St. 2d 107, syllabus. Furthermore, where ineffective assistance of counsel is alleged in a petition for post-conviction relief, the defendant, in order to secure a hearing on his petition, must proffer evidence which would establish not only that his trial counsel had substantially violated at least one of a defense attorney's essential duties to his client but also that said violation was prejudicial to the defendant. State v. Cole (1982), 2 Ohio St. 3d 112, 114. Initially, appellant argues that counsel should have introduced evidence of appellant's drug addiction at the hearing on his motion to withdraw his guilty plea. Review of the record reveals that appellant testified about his drug problem at the hearing on the motion to withdraw his guilty plea. Specifically, appellant testified he injected heroin into his system approxi- mately one hour before he appeared in court and pled guilty to the felonious assault charge. Thus, the trial court was aware of appellant's drug use. Further, any additional evidence of appellant's drug dependency would have merely been cumulative. In light of the above, we are unable to conclude that counsel for the appellant was rendered ineffective by failing to - 5 - present cumulative evidence of appellant's drug dependency, nor are we able to conclude that appellant suffered prejudice therefrom. Appellant next argues that counsel wrongfully induced his plea by promising him a sentence of eight to fifteen years. Appellant has failed to present adequate evidentiary support which would demonstrate that counsel promised him a sentence of eight to fifteen years. We thus reject his argument. In State v. Jackson, supra, it was held that a defendant's own self-serving declarations or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review which shows that his plea was voluntary. See, also, State v. Poland (1984), 16 Ohio App. 3d 103. At appellant's June 5, 1986 plea hearing, his counsel made the following statement to the court: "I might indicate that before this plea I had discussed the matter with the prosecutor and I basically indicated to him that my client would plead to the same thing that Keith Ledger pled to, who was co-defendant in this case, and we further discussed the sentence Mr. Ledger received. Although I realize myself, and I've indicated this to my client, that I can't guarantee to him how this court will ultimately sentence him." (June 8, 1986 hearing, Tr. 12.) In addition to his own self-serving affidavit, the appellant produced a letter from his trial counsel. However, counsel's letter merely states, ". . . the sentence you received was - 6 - unfair." Counsel did not indicate that appellant's guilty plea was coerced. Given counsel's statement at the plea hearing that he specifically informed the appellant he could not guarantee the court's ultimate sentence, we conclude the appellant's self- serving declarations or affidavits are insufficient to rebut the record which shows that his plea was voluntary. Poland, supra. Appellant next argues counsel was ineffective in failing to call as witnesses Keith Ledger, Larry Lee Beckley, and Marilyn Goad at the hearing to withdraw his guilty plea. Initially, we note that an attorney's failure to call witnesses is within the realm of trial tactics and will not, absent a showing of prejudice, deny a defendant effective assistance of counsel. State v. Hunt (1984), 20 Ohio App. 3d 310. Keith Ledger, appellant's co-defendant is currently serving his sentence for felonious assault. In his affidavit Ledger indicates that the appellant "took no part in the crimes." In the affidavit of Marilyn Goad, appellant's wife, she indicates that the appellant abused drugs. Larry Lee Beckley is a close friend of the appellant. In his affidavit Beckley reveals he was contacted by Charles Mavjokes, the victim of the instant robbery who told him that he wished to contact the appellant to inform him that he recanted his initial identification of the appellant. - 7 - After reviewing the record, we are unable to conclude that the appellant was prejudiced by the failure to call these witnesses. The statements contained in Beckley's affidavit regarding the victim's alleged recantation constitute inadmissible hearsay and thus may not be relied upon to show prejudice. The statements of Marilyn Goad regarding the appellant's drug abuse are merely cumulative of appellant's own testimony at the hearing to withdraw his guilty plea. As we have previously held herein, we are unable to conclude that failure to present cumulative evidence of appellant's drug dependency constituted ineffective assistance or that appellant suffered prejudice therefrom. Finally, the statement of Keith Ledger, appellant's co-defendant who previously pled guilty to the same offense lacked credibility and was insufficient to demonstrate the requisite prejudice. Consistent with the foregoing, appellant's first assignment of error is overruled. Appellant's second assignment of error provides: IN DISMISSING APPELLANT'S "POST CONVICTION" CLAIM THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, THE TRIAL COURT ERRED BY FINDING SUCH A CLAIM WAS NOT COGNIZABLE IN A "POST CONVICTION" PROCEEDING. Appellant argues that a claim of ineffective assistance of appellate counsel is cognizable in a petition for post-conviction relief. Appellant's argument lacks merit. - 8 - Recently, the Ohio Supreme Court has held that claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21. State v. Murnahan (1992), 63 Ohio St. 3d 60. Accordingly, appellant's second assignment of error is overruled. Appellant's third and fourth assignments of error are interrelated and will be discussed together. They provide: III. IN DISMISSING THE APPELLANT'S "POST CONVICTION" CLAIM THAT IT WAS AN ABUSE OF DISCRETION TO DENY HIS "MOTION FOR NEW TRIAL," THE TRIAL COURT ERRED IN FINDING SAID CLAIM RES JUDICATA AND THAT THE APPELLANT'S RELIANCE ON STATE v. WALTON WAS MISPLACED. IV. IN DISMISSING THE APPELLANT'S "POST CONVICTION" CLAIM OF PROSECUTORIAL MISCONDUCT AND THAT HIS GUILTY PLEA WAS INDUCED BY FALSE PROMISES MADE BY THE STATE, THE TRIAL COURT ERRED BY FINDING SAID CLAIM RES JUDICATA AND THAT THE CLAIM WAS UNSUPPORTED BY THE RECORD. Appellant argues that the trial court abused its discretion by denying his motion to withdraw his guilty plea where the state promised him a sentence of eight to fifteen years in exchange for his guilty plea. Additionally, appellant alleges prosecutorial misconduct in the nondisclosure of the victim's recantation of appellant's identification. A petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner is not entitled to relief and that the petitioner - 9 - failed to submit evidentiary documents containing sufficient operative facts to demonstrate that the guilty plea was coerced or induced by false promises. State v. Kapper (1983), 5 Ohio St. 3d 36. Further, a defendant's own self-serving declarations or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review which shows that his plea was voluntary. State v. Jackson, supra. In the instant case, the appellant's self-serving declarations or affidavits alleging that the prosecutor promised a sentence of eight to fifteen years are insufficient to rebut the record which shows that his plea was voluntary. Specifically, the record reveals that sentencing was discussed between defense counsel and the prosecution but that no specific sentence was promised. (June 5, 1986 hearing, Tr. 12.) Accordingly, we conclude appellant's self-serving affidavit is insufficient to establish that he is entitled to relief. Jackson, supra. Similarly, we find that the appellant failed to submit sufficient evidentiary documents establishing that the victim recanted his identification of the appellant or that the prose- cutor had knowledge thereof. Conspicuously absent from appel- lant's evidentiary documents is an affidavit from the victim verifying that he recanted appellant's identification. Appel- lant's affidavits are, therefore, insufficient to establish that he is entitled to relief. Jackson, supra. - 10 - Accordingly, we reject appellant's third and fourth assign- ments of error. Appellant's fifth assignment of error provides: THE TRIAL COURT ERRED IN DISMISSING THE APPELLANT'S "POST CONVICTION" PETITION WITHOUT FIRST HOLDING AN EVIDENTIARY HEARING. Appellant argues he was entitled to an evidentiary hearing. Appellant argument lacks merit. In State v. Jackson, supra, at 111, the court stated: Before a hearing is granted, the petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness. Similarly, in State v. Kapper, supra, at 38, the court stated: Accordingly, we hold that a petition for post-conviction relief is subject to dismissal without a hearing when the record, including the dialogue conducted between the court and the defendant pursuant to Crim. R. 11, indicates that the petitioner is not entitled to relief and that the petitioner failed to submit evidentiary documents containing sufficient documents containing sufficient operative facts to demonstrate that the guilty plea was coerced or induced by false promises. Thus, a defendant bears the burden of submitting evidentiary documents containing sufficient operative facts to demonstrate ineffective assistance of counsel or that the guilty plea was coerced or induced by false premises before a hearing is granted. - 11 - In the instant case, the appellant has not met his burden; hence, the trial court did not err in dismissing his petition for post- conviction relief without a hearing. Kapper, supra. Accordingly, appellant's fifth assignment of error is overruled. Judgment affirmed. - 12 - 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 Cuyahoga County Court of Common Pleas 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. ANN McMANAMON, J. CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .