COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67685 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANDREW L. MARBLEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 18, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-221802 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: KAREN L. JOHNSON, ESQ. ANDREW L. MARBLEY, PRO SE Assistant County Prosecutor Serial #R-146-951 8th Floor, Justice Center P.O. Box 511 1200 Ontario Street Columbus, OH 43216 Cleveland, OH 44113 - 2 - PATTON, C.J. In Case No. CR- 221802, petitioner Andrew Marbley entered guilty pleas on one count of aggravated burglary and one count of aggravated robbery. Each count contained a firearm specification. He did not appeal from those pleas. In 1989, he filed a petition to vacate the judgment or set aside the sentence. The trial court granted the state's motion to dismiss the petition, but failed to issue findings of fact and conclusions of law. In 1994, petitioner filed a second petition for postconviction relief, relying on essentially same grounds set forth in the first petition. The trial court again granted the state's motion to dismiss the petition, this time filing findings of fact and conclusions of law. 1 Petitioner appeals , complaining the trial court erred by failing to grant the requested relief because he was illegally indicted on false and misleading evidence. Petitioner raises three arguments on appeal: (1) the grand jury wrongfully indicted him on charges of aggravated robbery because the police report did not charge him with that offense, (2) his conviction for aggravated burglary cannot stand since the structure in which the burglary occurred was unoccupied, and (3) the above errors rendered his guilty pleas involuntary . 1 Ordinarily, the petitioner's failure to perfect an appeal within thirty days of the trial court's 1988 order would deprive us of jurisdiction to hear this appeal. However, the trial court's failure to issue findings of fact and conclusions of law pursuant to the requirements of R.C. 2953.21(C) tolled the time for appeal until such time as the court did comply with the statute. See State v. Mapson (1982), 1 Ohio St.3d 217. - 3 - The trial court properly rejected petitioner's first argument. As the court noted, the grand jury, not the arresting authority, determines the charges in a felony case. See R.C. 2939.08; Crim.R. 6. The grand jury is not restricted to the charge made in the affidavit or information. "[G]rand juries have plenary and inquisitorial powers and may lawfully upon their own motion originate charges against offenders.***" See State v. Klingenberger (1925), 113 Ohio St. 418, 426; State v. Adams (1982), 69 Ohio St.2d 120, 125. The grand jury did not exceed its authority by returning an indictment that differed from the initial complaint and affidavit. Petitioner's second contention is the trial court erred by refusing to void that part of the indictment relating to the aggravated burglary. He maintains the grand jury had no evidence the dwelling was occupied, hence it could not return an indictment for aggravated burglary. The trial court found the police report petitioner submitted with the petition showed petitioner had trespassed in an unoccupied structure while he had a deadly weapon under his control in violation of R.C. 2911.11(A)(2). Although we agree with the trial court's findings on this issue, we believe a broader basis exists for denying this aspect of the petition. It is fundamental we may not attempt to substantiate the grand jury's indictment by seeking to assess the quality of the evidence it may have considered in deciding to return an indictment. "The grand jury in its inquest of crimes and offenses, - 4 - and in its finding a presentation of indictments to the court of common pleas, does not exercise a judicial function. It only acts as the formal and constitutional accuser of crime and those it believes to be probably guilty thereof." State ex rel. Doerfler v. Price (1920), 101 Ohio St. 50, paragraph one of the syllabus. Therefore, the grand jury is not bound by the same rules of evidence as the courts. See Wickline v. Alvis (1957), 103 Ohio App. 1, 10-12. In United States v. Calandra (1974), 414 U.S. 343, 344-345, the court stated: "The grand jury's sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence ***." (citations omitted). See, also, State v. Muenick (1985), 26 Ohio App.3d 3. Because grand jury proceedings are secret, State v. Greer (1981), 66 Ohio St.2d 139, paragraph one of the syllabus; Crim.R. 6(E), we do not know what evidence the grand jury considered. In any event, given the grand jury's broad authority to consider widely drawn information, we cannot call into question the quality of the evidence forming the basis of its decision to return an indictment against petitioner. Finally, petitioner claims he was denied effective assistance of counsel because counsel coerced his guilty plea. The sentencing transcript and the affidavits submitted in support of the motion simply do not demonstrate the coercion alleged by petitioner. - 5 - Since petitioner failed to provide sufficient evidentiary support for the petition, the trial court did not err by denying the requested postconviction relief. See State v. Cole (1982), 2 Ohio St.3d 112, 114. The assignments of error are overruled. Judgment 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 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. JAMES D. SWEENEY, J. JAMES M. PORTER, J., CONCUR. CHIEF JUSTICE 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, .