COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67562 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION PABLO SANTIAGO : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-234432 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HARVEY B. BRUNER, ESQ. CUYAHOGA COUNTY PROSECUTOR BRET JORDAN, ESQ. BY: WINSTON GRAYS, ESQ. HARVEY B. BRUNER & ASSOCIATES ASSISTANT COUNTY PROSECUTOR 1600 Illuminating Building The Justice Center 55 Public Square 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-Appellant, Pablo Santiago, appeals the trial court's denial of his petition for post-conviction relief ("PCR"). In a single assignment of error, appellant claims that the trial court erred in denying his petition because the guilty plea he entered to one count of Rape (R.C. 2907.02) and Felonious Assault (R.C.2903.11) was involuntary. He also claims that the trial court's denial was error because he received ineffective assistance of counsel. Upon review, we find appellant's assignment of error to be without merit. Accordingly, we affirm the decision of the trial court. Appellant was indicted for the above-cited offenses on December 20, 1988. On September 11, 1989, after multiple pre-trials, the appointment of two public defenders and the subsequent retention of private counsel, trial commenced. Appellant's counsel arrived 1 shortly after trial began. Prior to voir dire, the State requested a ten-minute recess indicating that the appellant wished to withdraw his not-guilty plea. Appellant then entered a guilty plea to the above-cited offenses and received two concurrent 6-25 year sentences. He never appealed these convictions. On October 10, 1989, appellant filed a pro se motion to withdraw his plea which was overruled on October 31, 1989. On November 1, 1993 appellant, represented by counsel, filed a second 1 Appellant claims that counsel arrived 20-30 minutes after commencement. Trial counsel and the prosecutor stated that such arrival occurred 10 minutes after commencement. - 3 - motion to withdraw guilty plea along with the instant PCR petition. Appellant's PCR hearing was held on February 17, 1994 and written 2 briefs were submitted thereafter by both parties. The trial court denied the petition on May 5, 1994 and the instant appeal followed. I THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY DENYING DEFENDANT-APPELLANT'S MOTION FOR POST CONVICTION 3 RELIEF PURSUANT TO R.C. 2953.21. In his first assignment of error, appellant claims that counsel's tardiness; counsel's comments that he would not win his case and the absence of his alibi witness on the morning of trial compelled him to enter an involuntary guilty plea. We find appellant's arguments to be unpersuasive. While the record demonstrates that appellant's counsel arrived after the court began its preliminary instruction to the jury, counsel did arrive prior to the commencement of voir dire. Hence, the appellant cannot claim that he was unrepresented. See, Serfass 2 Appellant voluntarily withdrew his second motion to withdraw guilty plea at the close of his PCR hearing as no witnesses appeared to testify on his behalf. 3 R.C. 2953.21 (A) provides in relevant part that: Any person convicted of a criminal offense *** claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which 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 such supporting affidavit and other documentary evidence as will support his claim for relief. - 4 - v. United States (1975), 420 U.C. 377 which holds that a state jury trial commences and double jeopardy attaches when the jury is empaneled and sworn. The record also demonstrates the trial court scrupulously adhered to the mandates of Crim.R. 11 in accepting appellant's guilty plea. While appellant maintains that he always intended to go to trial and never discussed a plea, he stated prior to entering his plea that he had discussed "possible" sentences with counsel and the prosecutor. (Trial Tr. 32) This statement was corroborated by appellant's trial counsel and the assigned prosecutor during the instant PCR hearing. Both individuals testified that multiple pre-trials were conducted; that plea bargains were discussed at almost every pre-trial and that the appellant was interested in pleading to sexual battery but the state would not consider any lesser included offenses. They also testified to discussing a possible 6-25 year sentence with the 4 appellant which is in fact what he received. (PCR. Tr. 70) While appellant contends that fear, confusion and coercion compelled his plea, such claim is controverted by the record. Prior to entering his plea, appellant affirmatively stated that he had been represented by counsel throughout proceedings, that he was fully satisfied with such representation; that he understood that he was waiving his constitutional right to subpoena witnesses and 4 Also indicative of appellant's active participation in pre- trial plea bargaining negotiations is his statement that a 4 or 5 -25 year term and not a 6-25 year term was discussed. (PCR Tr. 54) - 5 - proceed to trial and that he also understood the maximum and minimum sentences associated with his offenses and the non- probationable nature of such offenses. Appellant's claim, to wit, that his plea was rendered involuntary by the tardiness of counsel and the absence of his alibi witness is unconvincing. Appellant had requested several continuances during his ninth month period of pre-trial incarceration. Hence, he was experienced enough with the legal system to request a continuance or recess to confer with counsel had he been so conflicted about entering a plea. Also, the fact that his alleged alibi witness was not in court was not prejudicial as the State would be presenting its case first and it is unlikely that the court would have denied appellant's subpoena motions. A trial court does not commit prejudicial error under Crim.R. 11(C)(2) by entering a judgment of conviction upon a plea of guilty where the record demonstrates that: (1) the defendant was represented throughout the proceedings by counsel; (2) the trial court conducted a discussion with the defendant apprising him of the nature of the charges and the minimum and maximum sentences for each offense, and determining the voluntariness of the submitted plea; * * * and (5) the defendant was literate and had obtained a ninth grade education. State v. Caudill (1979), 48 Ohio St.2d 342. Our review indicates that there is ample evidence in the record to support the trial court's finding that the appellant entered a knowing, voluntary and intelligent guilty plea. With respect to appellant's ineffective assistance of counsel claim it is well settled that: - 6 - [I]n a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. State v. Jackson (1980), 64 Ohio St.2d 107, syllabus. The evidentiary documents submitted by the appellant in support of his petition consisted of his own affidavit, his mother's affidavit and that of his purported alibi witness. In his own affidavit, appellant averred that counsel did not appear with him at trial; that counsel was unprepared for trial; that counsel was unaware that trial was scheduled for that date and that counsel had not subpoenaed his alibi witness. During appellant's PCR hearing however, trial counsel specifically denied all but the last allegation. He did state that he had filed an alibi and the court affirmatively apprised the appellant of his right to subpoena witnesses prior to accepting his plea. A review of appellant's mother's affidavit demonstrates that it is unsupported by the record and a review of appellant's alleged alibi witness' affidavit demonstrates a highly unconvincing alibi as such witness stated that the appellant was at her home until 5 midnight. However, medical records indicate that the alleged rape 5 Such affidavit also did not specify a calendar date. It merely indicated that the appellant was at affiant's home until midnight on the day of the rape. - 7 - 6 occurred around midnight. (PCR Tr.45) Our review demonstrates that appellant received effective representation. Trial counsel filed a bill of particulars on behalf of the appellant as well as three suppression motions, a discovery motion and a bond motion. In light of the prosecutor's testimony about the strength of the state's case, it was not ineffective for counsel to advise the appellant to consider a 7 plea. In applying the two-part standard set forth in Strickland v. Washington (1988), 466 U.S. 668, we find that appellant has 6 Appellant took the stand during PCR proceedings and claimed that he would not have entered a plea had counsel showed him the victim's medical record indicating the following entry, "victim denies sexual assault at that time." (PCR Tr. 45) However, appellant's claim was wholly refuted when the prosecutor demonstrated that an entry made on the following day confirming that the rape occurred between "11:30 and midnight on 11-28/11- 27-88." The medical record also confirmed that the hospital notified the Cleveland Police Department. (Id.) The prosecutor again revealed the baselessness of appellant's involuntary plea claim by asking the appellant why he was so interested in these medical records (which documented the rape and beating of Sandra Borrero) when he had filed an alibi and allegedly was elsewhere at the time of the rape. Lastly, the prosecutor raised the issue of the victim's subsequent death. The appellant denied knowing that the victim had committed suicide and claimed that he only heard that she had "passed away." (PCR Tr. 57) Such circumstances would support an inference that appellant was petitioning for a trial because the victim was no longer able to testify. 7 The record demonstrates that on the morning of trial, the appellant heard the State indicate that it would be calling the victim, three investigating/arresting officers, three physicians and one other witness to testify against him. (Trial Tr. 8) The record also demonstrates that the State had evidence that the victim defended herself with a knife and had incriminating photographs the appellant. (PCR Tr. 11, 12, 68) In light of such evidence, appellant's claim that counsel's statement that "he didn't have a chance of beat[ing] the case" (PCR Tr.40) was neither coercive nor prejudicial. - 8 - failed to prove by a preponderance of the evidence a violation of any of defense counsel's essential duties. We further find that appellant provided no evidence, aside from his self-serving affidavits, that counsel's representation resulted in any prejudice. Having reviewed the relevant transcripts as well as other elements of the record, we are satisfied that there is ample evidence therein to support the court's denial of appellant's PCR petition. Appellant's sole assignment of error is overruled. The judgment of the trial court is affirmed. - 9 - 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. SPELLACY, P.J., AND DAVID T. MATIA, J., CONCUR. ANN DYKE JUDGE 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. .