COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69633 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIE J. CURRY, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JULY 25, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. CR-278057 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Sherry F. McCreary Assistant County Prosecutor The Justice Center 1200 Ontario Street Eighth Floor Cleveland, Ohio 44113 For defendant-appellant: Willie J. Curry, Pro Se No. 259-255 Hocking Correctional Facility P.O. Box 59 Nelsonville, Ohio 45764 -2- NAHRA, J.: Defendant-appellant Willie J. Curry appeals the trial court's denial, without a hearing, of his second petition for postconviction relief. The record reflects appellant was originally indicted on February 24, 1992 on the following charges: count one, possession of heroin in an amount equal to or exceeding three times the bulk amount, R.C. 2925.03(A)(6); count two, trafficking in heroin, R.C. 2925.03(A)(2); count three, possession of criminal tools, R.C. 2923.24; and count four, having a weapon while under a disability, R.C. 2923.13. Counts one, two and four all contained a firearm specification. Appellant pleaded not guilty to the charges and retained counsel to represent him. Counsel soon thereafter filed a motion for discovery. While the case was pending, at least three pretrial conferences were held. On July 8, 1992, appellant entered into a plea bargain. By the terms of this agreement, the state amended count one of the indictment by deleting the gun specification and also dismissed counts two and three in exchange for appellant's plea of guilty to the amended count one and to count four. The trial court held a hearing pursuant to Crim.R. 11. Subsequently, appellant's guilty plea was accepted and a presentence investigation and report was ordered. -3- On September 1, 1992, appellant was duly sentenced. Thereafter, appellant filed no direct appeal from his convictions and sentences. On August 17, 1993, appellant filed a petition for postconviction relief pursuant to R.C. 2953.21, alleging his guilty plea was not knowingly, voluntarily and intelligently made. Appellant contended there had been no factual basis for the charges against him and, further, that neither defense counsel nor the trial court had informed him of the elements of the charges. The state opposed appellant's petition. On May 11, 1994, the trial court dismissed the petition without a hearing on the grounds of res judicata, stating that appellant's claims could have been raised on direct appeal and citing State v. Perry (1967), 10 Ohio St.2d 175 as authority for its decision. The trial court's decision was ultimately affirmed by this court in State v. Curry (Dec. 22, 1994), Cuyahoga App. No. 67303, unreported. On April 27, 1995, appellant filed a second petition for postconviction relief. This time, appellant argued his guilty plea was neither knowing nor voluntary because he was denied the effective assistance of trial counsel. Appellant asserted that counsel was deficient in the following particulars: 1) he failed to either conduct "any investigation" of appellant's case, request any pretrial hearings, or file any pretrial motions on appellant's behalf; 2) he failed to discuss "plausible defenses" and "alternative strategies" with appellant; 3) he advised appellant to -4- plead guilty to the charges without having either requested or received discovery from the prosecutor; and 4) he cooperated with the prosecutor in a plan to "coerce" appellant's guilty plea by "threaten[ing] to send [appellant's] girlfriend to the penitentiary." Appellant attached to his petition two items: a copy of a document purporting to be from the trial court's clerk's office and his affidavit. In his affidavit, without further information, appellant stated: I met my attorney at the Cuyahoga County Court House. The prosecutor was with my attorney and my girlfriend, Ms. Ernestine Cannon was present with me. We proceeded to a small room to discuss the pending cases. My attorney told me to listen to the prosecutor. I told my attorney that I still plan to plead not guilty. The prosecutor then stated that if I continued to plead not guilty, he would see to it that Ms. Cannon received three years in the penitentiary. The prosecutor then left the room. While the prosecutor was out of the room, my attorney stated to me that I had better listen to the prosecutor. My attorney then left the room so I could be alone with Ms. Cannon. On May 12, 1995, the state responded to appellant's petition with a motion to dismiss. On May 24, 1995, appellant filed a reply, but attached no evidentiary material thereto. Eventually, the trial court issued its findings of fact and conclusions of law with respect to appellant's second petition for postconviction relief, stating simply: Defendant's Petition to Vacate and Set Aside Sentence is dismissed without a hearing. Defendant has failed to provide evidentiary documents which provide substantive grounds for relief. State v. Williams (1991), 74 Ohio App.3d 686; State v. Combs (1994), 100 Ohio App.3d 90. -5- Appellant now appeals from the foregoing order. His sole assignment of error together with its accompanying "issue presented" are set forth verbatim as follows: INEFFECTIVE ASSISTANT OF COUNSEL, UNDER R.C. 2953.21, THAT THE JUDGMENT IS VOID OR VOIDABLE UNDER THE OHIO CONSTITUTION OR THE CONSTITUTION OF THE UNITED STATES. 1. WHERE THE ALLEGED ERROR OF COUNSEL IS FAILURE TO INVESTIGATE OR DISCOVER POTENTIAL EXCULPATORY EVIDENCE THE DETERMINATION WHETHER THE ERROR "PREJUDICED" THE DEFENDANT BY CAUSING HIM TO PLEAD GUILTY RATHER THAN GO TO TRIAL WILL DEPEND ON THE LIKELIHOOD THAT DISCOVERY OF THE EVIDENCE WOULD HAVE LED COUNSEL TO CHANGE HIS RECOMMENDATION AS TO THE PLEA. Appellant apparently argues the trial court erred in dismissing his petition without a hearing, contending he provided sufficient evidence to demonstrate at least a question as to his trial counsel's effectiveness during the pendency of his case. Appellant asserts trial counsel did not investigate his case, was ignorant of both the facts and the applicable law, and participated in coercing him to plead guilty to charges of which appellant was innocent. This court has reviewed the record, however, and finds appellant's argument is baseless. 1 R.C. 2953.21 provides in pertinent part: 2953.21 Petition to vacate or set aside sentence. (A) 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 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 1 A new version of the statute went into effect subsequent to the filing of appellant's second petition. -6- 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 ***. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. *** (E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues, hold the hearing, and make and file written findings of fact and conclusions of law upon entering judgment. (Emphasis added.) Absent a showing of abuse of discretion, a reviewing court will not overrule the trial court's decision on a successive petition for postconviction relief. State v. Steffan (1994), 70 Ohio St.3d 399 at 411; R.C. 2953.23(A); see, also, State v. Mitchell (1988), 53 Ohio App.3d 117; State v. Williams (1991), 74 Ohio App.3d 686. Moreover, in addressing an argument similar to appellant's, the supreme court stated the following in State v. Cole (1982), 2 Ohio St.3d 112: Appellant argues *** that he should have been afforded a hearing on his claim. A criminal defendant seeking to challenge his conviction(s) through a petition for postconviction relief, is not, however, automatically -7- entitled to such a hearing. State v. Jackson (1980), 64 Ohio St.3d 107, 110 [18 O.O.3d 348]. Indeed, the trial court has a statutorily imposed duty to ensure that the petitioner adduces sufficient evidence to warrant a hearing. As R.C. 2953.21(C), in pertinent part, provides "Before granting a hearing [on a petition for postconviction relief] the court shall determine whether there are substantive grounds for relief." (Emphasis added.) See, also, State v. Kapper (1983), 5 Ohio St.3d 36, State v. Pankey (1981), 68 Ohio St.2d 58. Since appellant was asserting for the second time his guilty plea was not knowingly and intelligently made, this time on the grounds that his trial counsel was ineffective, appellant had the duty to provide the trial court with cogent evidence sufficient to overcome the doctrine of res judicata. State v. Cole, supra; State v. Combs (1994), 100 Ohio App.3d 90. A review of the record reveals appellant failed to meet his burden; hence, the trial court's decision was proper. State v. Steffan, supra. In this case, appellant made many allegations in his petition concerning counsel's actions during the pendency of his case, all of which could have been raised on direct appeal. Therefore, his claims are barred by the doctrine of res judicata. State v. Perry (1967), 10 Ohio St.2d 175; State v. Combs, supra. Furthermore, assuming arguendo appellant could not have raised these issues in either a direct appeal or his first petition for postconviction relief, in State v. Jackson (1980), 64 Ohio St.2d 107 at 110-111, the court stated the standard applicable to claims such as those appellant made in his second petition as follows: The test as to whether an individual has been denied effective counsel was initially set forth by this court -8- in State v. Hester (1976), 45 Ohio St.2d 71, and thereafter slightly revised in State v. Lytle (1976), 48 Ohio St.2d 391. In State v. Hester, supra, at page 79, this court held "the test to be whether the accused, under all the circumstances, *** had a fair trial and substantial justice was done." In State v. Lytle, supra, this court stated, at pages 396-397: "When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. "On the issue of counsel's effectiveness, the appellant has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 229; State v. Williams (1969), 19 Ohio App.2d 234. *** Before a hearing is granted, the petitioner bears the initial burden in a post-conviction (sic) proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness. Broad assertions without a further demonstration of prejudice do not warrant a hearing for all post- conviction (sic) petitions. General conclusory allegations to the effect that a defendant has been denied effective assistance of counsel are inadequate as a matter of law to impose an evidentiary hearing. See Rivera v. United States (C.A. 9, 1963), 318 F.2d 606. (Emphasis in original; underscoring added.) Although appellant made many assertions against his trial counsel in his second petition, the record itself refuted most of them. -9- Clearly, counsel did conduct discovery and had a definite grasp of the facts surrounding appellant's case, since he filed motions and attended several pretrial conferences on appellant's behalf. Moreover, appellant provided insufficient evidence to support his remaining allegations. The trial court had before it only appellant's self-serving affidavit. Therein, although appellant made several statements, these statements had neither context nor independent verification, they did not mention to whom they applied, and they apparently related to only one of the allegations appellant made in his petition. In short, the statements appellant made in his affidavit were insubstantial. Without evidence to support the conclusory statements appellant made in his second petition for postconviction relief, appellant's mere assertion of "facts" concerning trial counsel's performance and the possible prejudice to appellant's defense did not create facts. State v. Jackson, supra. Cf. State v. Scott (1989), 63 Ohio App.3d 304; State v. Swortcheck (1995), 101 Ohio App.3d 770. Under these circumstances, appellant failed to meet his burden pursuant to R.C. 2953.21; therefore, the trial court properly dismissed his petition without a hearing. State v. Steffan, supra; State v. Cole, supra; State v. Kapper, supra; State v. Combs, supra; cf. State v. Gibson (1992), 78 Ohio App.3d 501; State v. Sowell (1991), 73 Ohio App.3d 672. Since a review of the record in his case reveals appellant failed to provide sufficient evidentiary materials to either -10- overcome the doctrine of res judicata or support his claim for relief, the trial court neither erred nor abused its discretion in dismissing appellant's second postconviction petition without a hearing. Accordingly, appellant's sole assignment of error is overruled. The order of the trial court is affirmed. -11- 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and PATTON, 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 .