COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65828 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIE J. MILTON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 1, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-285055 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: A. Steven Dever Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James C. Young 350 Courthouse Square Building 310 Lakeside Avenue, N.W. Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Willie Milton, is appealing the trial court's denial of his motion to withdraw his guilty plea. He contends he did not receive effective assistance of counsel and his guilty plea was not knowing and voluntary. For the following reasons, we affirm. Appellant was indicted for aggravated murder with a firearm specification. He was released on bond. His counsel filed several discovery motions and five or six pre-trials were held. Defense counsel filed a list of five witnesses. On the date of the trial, appellant pled guilty to an amended indictment for voluntary manslaughter with a firearm specification. The prosecutor stated the agreed sentence was ten to twenty-five years incarceration, plus three years actual incarceration on the gun specification to be served consecutively, and that appellant would not be eligible for probation. The judge spoke with appellant and inquired if appellant understood the consequences of his plea and his constitutional rights. Appellant's motion to withdraw his plea alleged his counsel failed to determine whether the prosecution could prove its case. According to appellant, there were witnesses available to prove appellant's innocence. Only one of these witnesses was interviewed by defense counsel. Counsel also failed to interview two state witnesses. Appellant stated counsel's advice might have been different if counsel interviewed these witnesses. -3- An affidavit of appellant's brother-in-law, Al Kyles, is attached to appellant's motion to withdraw his plea. Klyes averred that on the date set for trial, he heard appellant's counsel advise appellant to plead guilty, or appellant would be remanded into custody that day. Kyles felt appellant was pressured into pleading guilty because appellant wanted to attend his sister's wedding and be with his seriously ill father. Appellant's sole assignment of error states: WHETHER THE TRIAL COURT ERRED IN SUMMARILY DENYING THE APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WITHOUT GRANTING THE APPELLANT A HEARING TO DETERMINE THE PROPRIETY OF HIS MOTION. A defendant is entitled to a hearing on his post-sentence motion to withdraw his plea if the facts alleged by defendant, if accepted as true, would require the court to permit the plea to be withdrawn. State v. Hamed (1989), 63 Ohio App.3d 5, State v. Blatnik (1984), 17 Ohio App.3d 201. A court may allow post- sentence withdrawal of a plea if there was manifest injustice. Crim.R. 32.1, State v. Smith (1977), 49 Ohio St.2d 261. Ineffective assistance of counsel can constitute manifest injustice. Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. To prove ineffective assistance of counsel, appellant must show: (1) that counsel's assistance was below an objective standard of reasonableness, and (2) that there is a reasonable probability that but for counsel's unprofessional errors, the result would have been different. Id., State v. Xie (1992), 62 Ohio St.3d 521. -4- Appellant alleged his attorney failed to interview witnesses. This allegation is not supported by an affidavit or other evidentiary materials. It is well-settled that a trial court may deny a petition for post conviction relief or a Crim. R. 32.1 motion to withdraw a guilty plea without conducting an evidentiary hearing when defendant fails to submit sufficient evidentiary materials and the record demonstrates defendant is not entitled to relief. See, State v. Legree (1988), 61 Ohio App.3d 568, 574. State v. Mitchell (March 18, 1993), Cuyahoga App. No. 64231, unreported, see State v. Peeples (Dec. 31, 1992), Cuyahoga App. No. 61544, unreported, State v. Ledger (1984), 17 Ohio App.3d 94, 98. Appellant's allegation his attorney did not interview witnesses does not mandate a hearing because it is unsupported by affidavit or other evidence. The record demonstrates defense counsel did conduct adequate discovery. Even if an affidavit was not required, the allegations in appellant's motion are insufficient to entitle him to relief. Appellant's motion to withdraw the plea does not allege appellant was prejudiced by counsel's failure to interview witnesses. The motion states that counsel's advice might have been different had he interviewed the witnesses. To demonstrate prejudice, appellant must show there was a reasonable probability he would not have pled guilty and would have insisted upon going to trial. See Hill, supra. Appellant does not allege there was a reasonable probability counsel would have advised appellant to plead not guilty. The case at hand is distinguishable from State v. Hamed, supra, where the defendant alleged counsel undertook no -5- investigation whatsoever. In Hamed, counsel's inaction was clearly prejudicial to the defendant. Appellant also alleged he was pressured into pleading guilty because counsel told him he would be incarcerated that day unless he did so. It is incredible that someone would plead guilty solely to avoid going to jail that day, only to face a thirteen to twenty- five year prison sentence. The trial court did not abuse its discretion in finding appellant's allegation incredible, and denying appellant's request to withdraw his plea. See State v. Caraballo (1985), 17 Ohio St.3d 66. The evidentiary materials submitted by appellant did not show he was entitled to relief. Appellant also claims the guilty plea was not in accordance with Crim.R. 11(C)(2)(a), because he was not informed he was ineligible for probation. The prosecutor stated that appellant was ineligible for probation. The judge told appellant the court had to sentence him to prison. The trial court substantially complied with Crim.R. 11(C). See State v. Stewart (1977), 51 Ohio St.2d 86; State v. Gibson (1986), 34 Ohio St.3d 146. Accordingly, appellant's assignment of error is overruled. The decision of the trial court is affirmed. -6- 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. NUGENT, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA JUDGE 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 .