COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69394 & 69425 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MILTON COTTON : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 1, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case Nos. CR-257742 & CR-259650. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor George J. Sadd Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Paul Mancino, Jr., Esq. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant Milton Cotton appeals on the accelerated docket from the denial of his September 9, 1994 Petition for Post- Conviction Relief filed pursuant to R.C. 2953.21. For the reasons adduced below, we affirm. A review of the record on appeal indicates that appellant was previously convicted of a number of felonies stemming from incidences of stolen automobiles. In Cuyahoga County Common Pleas Court Case No. CR-257742, appellant was convicted by a jury of theft, failure to comply with an order or signal of a police officer and possession of criminal tools, with each offense having violence specifications. This conviction was affirmed by this court in State v. Cotton (March 18, 1993), Cuyahoga App. No. 62104, unreported. In Cuyahoga County Common Pleas Case No. 259650, appellant was convicted by a jury of receiving stolen property with violence specifications. This conviction was affirmed by this court in State v. Cotton (March 18, 1993), Cuyahoga App. No. 62105, unreported. Leave to appeal both of these affirmances to the Supreme Court was denied in October of 1993. - 3 - On September 9, 1994, appellant filed identical joint Petitions for Post-Conviction Relief in each of the above- mentioned trial court cases alleging that "certain evidence was withheld and suppressed from the defendant" and that "false testimony was presented against the defendant." See Petition for Post-Conviction Relief, at 1. Attached to this Petition was an unauthenticated photocopy of an August 10, 1993 motion hearing transcript in State v. Cotton, Cuyahoga County Common Pleas Case Nos. 281730 and 281731, in which (1) a motion to sever the cases for trial purposes and (2) a motion to dismiss the charges due to a lack of a speedy trial were argued to the bench by counsel immediately prior to the start of the trial in those cases. No affidavit or other evidence was attached to the Petition. On September 29, 1994, the prosecution filed a motion to dismiss the joint Petition for Post-Conviction Relief. On October 4, 1994, defendant-appellant filed a brief in opposition to the motion to dismiss. On July 13, 1995, the trial court, without holding an evidentiary hearing on the joint Petition, issued its Findings of Fact and Conclusions of Law, stating in pertinent the following: FINDINGS OF FACT * * * 12. Petitioner alleges that certain evidence was suppressed and that false testimony was presented against the defendant. 13. Petitioner adduces as evidence a transcript from a subsequent trial held on - 4 - August 10, 1992 in case number CR-281730-31. Defendant alleges that the evidence mentioned above came out in evidence at that trial and is contained in the transcript of those proceedings attached to his motion. CONCLUSIONS OF LAW 1. Dismissal without a hearing is proper when the Petitioner failed to submit evidentiary documents containing sufficient operative facts to demonstrate that the Petitioner is entitled to relief. State v. Kapper (1983), 5 Ohio St.3d 36, 38. 2. A defendant's own self-serving declarations or affidavits or broad conclusory statements are insufficient to rebut the record and, as a matter of law, do not meet the requirements for an evidentiary hearing. Id. at 38-39. 3. Contrary to Petitioner's assertions, the statements to which he refers in his Petition for Post-Conviction Relief did not come out as evidence. The statements to which Petitioner alludes were made by defense counsel to the Judge in case number 281730-31 regarding a different issue and moreover, do not contain the information asserted by Petitioner. 4. Dialogue with the Court does not rise to the level of evidence sufficient to grant post- conviction relief. Id. at 38. 5. The instant petition offers no matter for which a hearing need be held. 6. The instant petition is hereby denied. ss. Timothy McCormick TIMOTHY McCORMICK, JUDGE These timely appeals from the denial of the joint Petition followed. The appeals have been consolidated for purposes of review, hearing and determination. Two assignments of error, which will be discussed jointly, are presented. - 5 - I THE COURT COMMITTED PREJUDICIAL ERROR IN RULING THAT DEFENDANT HAD SUBMITTED NO EVIDENCE IN SUPPORT OF HIS PETITION FOR POST-CONVICTION RELIEF. II DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS NOT GRANTED POST-CONVICTION RELIEF OR, AT LEAST A HEARING, WHERE STIPULATED EVIDENCE SHOWED THAT THE STATE HAD BEEN GUILTY OF MISCONDUCT AND WITHHELD EXCULPATORY INFORMATION FROM THE DEFENDANT. These assignments argue that sufficient evidence supported the Petition so as to necessitate a hearing and/or grant the relief requested. This argument is without merit. The following was stated in State v. Mayberry (November 18, 1993), Cuyahoga App. No. 64126, unreported, 1993 Ohio App. LEXIS 5569, relative to the evidentiary support in favor of a Petition for Post-Conviction Relief: A petition for post-conviction relief may be dismissed without a hearing when the petitioner fails to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819. Broad assertions without a further demonstration of prejudice and general conclusory allegations ... are inadequate as a matter of law to impose an evidentiary hearing. Id. at 111. The test to be applied is "whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case." State v. Strutton (1988), 62 Ohio App.3d 248, 251, 575 N.E.2d 466. Also see State v. Kapper, supra, and R.C. 2953.21(C). - 6 - In the present case, defendant-appellant relies solely on his allegation that the prosecutor, during a colloquy with the court and defense counsel at the motion hearing in trial court case number 281730-31, stipulated to the truth of what defendant's counsel proffered Mr. Cotton would testify to in that case, to- wit, that the police somehow set up Mr. Cotton or otherwise entrapped him by supplying him with a stolen vehicle in a sting operation and then arresting him for stealing the vehicle. Mr. Cotton did not testify to these allegations. Rather, these allegations were the unsworn, self-serving and conclusory statements of defense counsel made to the trial court in arguing the pending motions in that other case. Furthermore, we do not agree with defendant-appellant's assertion that there was, in fact, a stipulation entered into by the prosecutor in the other case motion hearing relative to the truth of defense counsel's assertions. The stipulation the prosecutor stated he would make referred to accepting the fact that Mr. Cotton would testify in accordance with what defense counsel asserted, not that the substance of Mr. Cotton's proffered testimony was, in fact, the truth. These statements of defense counsel do not satisfy the evidentiary burden placed on the petitioner to impose an evidentiary hearing, let alone grant post-conviction relief. State v. Kapper, supra; State v. Jackson, supra. Accordingly, the trial court did not abuse its discretion in denying the joint Petition without a hearing. - 7 - Assignments overruled. Judgments affirmed. - 8 - 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. JAMES D. SWEENEY, P.J. JAMES M. PORTER, J. JOSEPH J. NAHRA, J. 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, .