COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69803 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ROBERT PINKAVA, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JUNE 13, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. CR-44237 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Karen L. Johnson Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Robert Pinkava, Pro se No. A155-820 Grafton Correctional Institute 2500 S. Avon-Belden Road Grafton, Ohio 44044 -2- NAHRA, J.: Defendant-appellant Robert Pinkava appeals the trial court's denial, without a hearing, of his fourth petition for postconviction relief. The record reflects appellant was originally indicted in 1978 on nine counts of rape, eight counts of felonious sexual penetration and eights counts of gross sexual imposition. According to the trial court's docket entries, after appellant entered pleas of not guilty to all these charges, requests for discovery were filed in the case by both parties and several defense motions were filed and ruled upon by the trial court. On August 16, 1979, the trial court conducted a hearing during which appellant indicated he had entered into a plea bargain. By the terms of this agreement, in exchange for appellant's plea of guilty to only two counts of rape, the remaining charges were dismissed by the state. The record reflects as follows: At the trial level the Appellant was fully informed by the trial court of the charges against him and the alternative sentence the Court could impose. The Appellant during the plea process on the record indicated that he understood the proceedings, the nature of the charges, and the possible consequences of such plea. (R 8-11). State v. Pinkava (Aug. 1, 1988), Cuyahoga App. No. 52499, unreported, at p. 7. The trial court sentenced appellant to two concurrent terms of incarceration of five to twenty-five years. Thereafter, appellant filed no direct appeal from his convictions and sentences. -3- In January 1980, however, appellant filed a petition for postconviction relief pursuant to R.C. 2953.21. Appellant alleged in his petition he was denied effective assistance of counsel at his plea hearing. The trial court denied appellant's petition but filed no findings of fact or conclusions of law; thus, although appellant attempted to appeal to this court from the trial court's decision, without a final appealable order his attempt was unsuccessful. See, e.g., State v. Lester (1975), 41 Ohio St.2d 51. In June 1982, appellant filed a second petition for postconviction relief, again claiming he was denied the effective assistant of counsel at his plea hearing. In his second petition, as two of the bases for this claim, appellant specifically stated the following: 5. Although no action had been taken by the Court on two vital motions filed as long as six months prior to the trial date, no attempt was made to force such action either by Mandamus or Procedendo. This failure had severely prejudicial effects on any trial or plea bargaining result. 6. Counsel failed to demand information favorable to the Petitioner and known to be in the possession of the Prosecutor but never submitted under the rules of Discovery as mandated by the Ohio Revised Code. State v. Pinkava (June 30, 1983), Cuyahoga App. No 45721, unreported. (Emphasis added.) The state opposed appellant's second petition; ultimately, the trial court again dismissed it without an evidentiary hearing. -4- However, the trial court issued findings of fact and conclusions of law which made its order reviewable. Thereafter, appellant filed a timely appeal in this court from the trial court's decision. In State v. Pinkava (June 30, 1983), Cuyahoga App. No. 45721, unreported, this court affirmed the trial court's decision on the basis that appellant's petition had "failed to meet the test of [State v.] Milanovich [(1975), 42 Ohio St.2d 46]." Id., Slip opinion at 6. In April 1986, appellant filed a third petition for postconviction relief. Again, appellant alleged he was denied effective assistance of counsel at his plea hearing. Appellant attached to his petition the affidavit of one of his trial attorneys. Appellant's counsel stated in pertinent part only as follows: Affiant further states that he and co-counsel *** requested discovery of the County Prosecutor. (Cuyahoga) In response thereto the prosecutor delivered copies of Mr. Pinkava's statements to the police. The prosecutor also furnished a so-called "Bill of Particulars" which was very incomplete simply reciting the statutory charges. We consequently filed Motions to compel discovery and other Motions. These Motions were not ruled on [(sic)] prior to the time the "Plea Bargain" was made and entered on the record. (Emphasis added.) The record reflects the state filed a motion to dismiss appellant's third petition. Subsequently, the trial court dismissed the petition without a hearing and issued findings of fact and conclusions of law. -5- Appellant again appealed the trial court's decision to this court. In State v. Pinkava (July 21, 1988), Cuyahoga App. No. 52499, unreported, this court held appellant's claim of ineffective assistance of counsel was barred "on the basis of the doctrine of res judicata." Moreover, appellant's assertion that counsel's ineffectiveness prevented him from entering a knowing and intelligent guilty plea was rejected in the following terms: For the third time in post-sentencing proceedings the Defendant is claiming that his plea of guilt was not knowingly and intelligently entered. Three trial judges and one Court of Appeals panel have found to the contrary concerning Appellant's claims. The current panel renders the same finding. Id., Slip opinion at 7. Furthermore, this court reviewed appellant's counsel's affidavit and essentially held the affidavit failed to establish any operative facts warranting relief. Consequently, the trial court's order of dismissal was affirmed. In November 1988, appellant attempted to obtain review of this court's decision by filing a motion for leave to appeal in the Ohio Supreme Court; however, in January 1989 the supreme court overruled his motion. In November 1989, appellant filed a motion in the trial court for a writ of mandamus, seeking to force the state to release the following documents which he alleged were "refused" to defense counsel during discovery in his case: copies of the victims' "statements" and "medical reports of the examinations" made of the victims. The trial court took no action in response to appellant's -6- motion. Appellant later filed the motion in this court. In August 1990, this court granted appellant's writ and ordered the prosecutor's office to produce any statements or medical reports made by or for the victims. The record reflects the prosecutor's office responded to the writ by declaring there were no such records in its possession. In May 1995, appellant filed a motion in this court requesting leave to file a delayed appeal of his original conviction. Although appellant's motion received a case number, viz., App. No. 69042, in June 1995 his motion was denied. On July 27, 1995, appellant filed his fourth petition for postconviction relief in the trial court. In his petition, appellant alleged his guilty plea was not "intelligently" made because the state "did not disclose to him the results of the medical examination reports of the [victims] made by physicians" in 1 November "1979." Appellant also made the following allegations in his fourth petition: 1) he believed the victims' medical reports contained evidence "favorable to the defense;" 2) the reports would have provided "medical support" for a not guilty plea; and 3) appellant was not aware of this evidence at the time he entered his guilty plea because the evidence "was not disclosed" by the state during discovery. 1 It can be surmised appellant intended the relevant date to read "1978." -7- Appellant attached to his fourth petition his affidavit, in which he stated: *** had I known that the [victims] identified another person to [hospital] officials *** as the perpetrator of the crimes against them, I would not have pled guilty to any offense and would have instead chose to go to trial with the belief that a sufficient defense existed to the crimes with which I was charged. On August 16, 1995, the state filed a motion to dismiss 2 appellant's petition. On October 2, 1995, the trial court issued its findings of fact and conclusions of law with respect to appellant's fourth petition for postconviction relief, stating simply: Defendant-petitioner's Petition for Post-Conviction (sic) Relief, filed July 29, 1995, is dismissed without a hearing. Defendant-petitioner has failed to file evidentiary quality documents in support of his claims. State v. Kapper (1983), 5 Ohio St.3d 36. Appellant now appeals from the foregoing order. His sole assignment of error follows: THE TRIAL COURT ERRED BY DISMISSING APPELLANT'S POSTCONVICTION RELIEF PETITION WITHOUT A HEARING WHEN THE FILES AND RECORDS OF THE CASE DO NOT SHOW THAT HE IS NOT ENTITLED TO RELIEF. Appellant argues he is entitled to an evidentiary hearing pursuant to R.C. 2953.21 on his claim the state "intentionally" violated his constitutional right to a fair trial by withholding evidence material to his guilt or innocence. This court disagrees. 2 On August 25, 1995, while his fourth petition for postconviction relief was thus pending, appellant filed yet another petition for a writ of mandamus in this court, which was assigned App. No. 69466. On March 13, 1996, this court denied the writ. -8- 3 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 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. 3 A new version of the statute went into effect subsequent to the filing of appellant's fourth petition. -9- 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 entitled to such a hearing. State v. Jackson (1980), 64 Ohio St.2d 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 fourth time his guilty plea was not knowingly and intelligently made, appellant had the duty to provide the trial court with cogent evidence sufficient to overcome the doctrine of res judicata. State v. Combs (1994), 100 Ohio App.3d 90. A review of the record reveals appellant failed to meet this burden; hence, the trial court's decision was proper. State v. Steffan, supra. Over the years of his incarceration, although appellant had made numerous efforts both in this court and in the trial court to compel production of "exonerating" evidence he claims was withheld from him by the prosecution, no such evidence has come to light. Moreover, there is nothing in the record, even in trial counsel's -10- affidavit, to suggest the existence of any such evidence. Cf., McMullen v. Maxwell, Warden (1965), 3 Ohio St.2d 160. The trial court had before it only appellant's self-serving affidavit. Therein, appellant made several conclusory statements. Without evidence to support these statements, however, appellant's mere assertion of "facts" did not create them. 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. Kapper, supra; State v. Combs, supra; State v. Hamblin (Dec. 15, 1994), Cuyahoga App. No. 66556, unreported; 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 this case reveals appellant failed to provide sufficient evidentiary materials to support his claim for relief, the trial court neither erred nor abused its discretion in dismissing appellant's fourth 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. SPELLACY, C.J., and MATIA, DAVID T., 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 .