COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67686 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ANDREW L. MARBLEY : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 1, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CR-222492. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Karen Johnson Assistant Prosecuting Attorney 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Andrew L. Marbley, pro se Serial #R-146-951 P.O. Box 511 Columbus, Ohio 43216 SWEENEY, JAMES D., J.: Defendant-appellant Andrew Marbley appeals his conviction for aggravated burglary in violation of R.C. 2911.11, and aggravated robbery in violation of R.C. 2911.01. Subsequent to his guilty plea, the appellant was sentenced to concurrent terms of incarceration of six to twenty-five years on each count, to be served concurrently with the appellant's sentence on case number 221802. No direct appeal was taken from the appellant's conviction, instead he filed a motion for post-conviction relief. After denying the motion, the trial judge issued findings of fact and conclusions of law which note that the appellant raised three claims: 1) the indictment was void because the Grand Jury received "false and misleading" evidence; 2) no crime took place; and 3) the appellant's trial counsel coerced him into entering a guilty plea. Attached to the motion were the indictments, the sentencing transcript, the affidavits of the appellant and of Andrea Marbley; a copy of the Shaker Heights Police Department report; copies of pleadings made in actions pursuant to R.C. 149.43, the Public Records Act. The trial court determined that the appellant was entitled to neither a hearing nor relief as the documentary evidence submitted by the appellant was not of such evidentiary quality as to establish substantive grounds for relief. The appellant's first assignment of error: - 3 - I DEFENDANT/APPELLANT WAS ILLEGALLY INDICTED WITH THE EVIDENCE WHICH WAS FALSE AND MISLEADING TO THE GRAND JURY. In his brief, the appellant has failed to set forth any argument relating to this assignment of error. Rather, the appellant's brief states that he was misled by his counsel into entering a plea to aggravated robbery. He argues that his plea was involuntary, and that he is entitled to a hearing to prove that he knew nothing of the alleged robbery. The statutory basis for post-conviction relief is set forth in R.C. 2953.21, which states in pertinent part: (A) Any person convicted of a criminal offense or adjudged delinquent 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 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. (C) Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. Such court reporter's transcript, if ordered and certified by the court, shall be taxed as court - 4 - costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. The prosecuting attorney bears the responsibility of presenting evidence to the grand jury. The proceedings are secret, and may not be disclosed unless permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment. Crim.R. 6. If a defendant demonstrates a particularized need, Crim.R. 6(E) gives him the right to inspect relevant portions of grand jury testimony. The question of whether or not a particularized need has been demonstrated is within the discretion of the trial court. State v. Lawson (1992), 64 Ohio St.3d 336, 345. In the case sub judice, the appellant did not request a transcript of the grand jury proceedings. Without such evidence, the appellant has failed to attach evidentiary quality documents to his motion which would demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. The appellant's first assignment of error is overruled. The appellant's second and third assignments of error: II APPELLANT WAS ARRESTED FOR AGGRAVATED BURGLARY AS OUTLINED IN POLICE REPORT NO. 87-28196. III APPELLANT STATES THAT THE TRIAL COUNSEL PURPOSELY AND INTENTIONALLY CONSPIRED WITH THE PROSECUTION TO INTINIDATE (SIC) HIM INTO PLEADING GUILTY WHEN HE DID NOT UNDERSTAND TO - 5 - WHAT HE WAS PLEADING GUILTY TO AND IF HE KNOWN (SIC) HE WOULD NOT HAVE PLEAD. The appellant argues that his plea was coerced by counsel, and was not voluntary as he did not realize he was entering a plea of guilty to the charge of aggravated robbery. In State v. Kapper (1983), 5 Ohio St.3d 36, the court dealt with similar allegations. 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 Civ.R.11, indicates that the petitioner is not entitled to relief and that the petitioner failed to submit evidentiary documents containing sufficient operative facts to demonstrate that the guilty plea was coerced or induced by false promises. Here, the appellant not only failed to file a transcript of the plea hearing, but failed to file documentary evidence containing sufficient operative facts to demonstrate that the guilty plea was coerced. Without such evidence, this court must find that the trial court committed no error. The appellant's second and third 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 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. JOHN T. PATTON, C.J., and JAMES M. PORTER, J., CONCUR. JAMES D. SWEENEY 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 .