COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70083 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DERRICK EVANS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : ____OCT. 31, 1996______ CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. CR-288167 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DIANE SMILANICK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DERRICK EVANS, pro se #273-001 Lima Correctional Institute Post Office Box 4571 Lima, Ohio 45802 - 2 - SARA J. HARPER, J.: Defendant-appellant Derrick Evans ("appellant") appeals pro se from the trial court's order denying his motion to withdraw guilty plea. A careful review of the record compels affirmance. Appellant was indicted by the Cuyahoga County Grand Jury on October 6, 1993 for twenty-three counts of Aggravated Drug Trafficking, in violation of R.C. 2925.03, with firearm specifications. Appellant pled guilty on February 8, 1993 to one count of Aggravated Drug Trafficking including the firearm specification. Appellant was sentenced to a term of four to fifteen years, plus three years actual incarceration on the firearm specification. On December 30, 1993, appellant filed a motion to withdraw guilty plea. The trial court, on January 3, 1994, denied appellant's motion. Subsequently, appellant appealed, pro se from the trial court's decision. This court dismissed appellant's appeal sua sponte on May 31, 1995, for failure to file a praecipe. (App. No. 68972). On July 17, 1995, appellant filed a motion for reconsideration and a notice of appeal to this court. This court sua sponte dismissed appellant's appeal on August 1, 1995 for failure to file a timely notice of appeal. (App. Nos. 69308 & - 3 - 68972). Next, appellant filed a motion for post-conviction relief in the trial court. The trial court denied appellant's motion and issued Findings of Fact and Conclusions of Law on December 20, 1995. Appellant timely appeals the trial court's order denying his motion for post-conviction relief and raises the following assignments of error for the court to review: I. THE TRIAL COURT PRECLUDED THE DEFENDANT FROM A FAIR AND IMPARTIAL ADJUDICATION WHEN THE COURT ITSELF LIMITED THE SCOPE OF EVIDENCE WITH WHICH THE DEFENDANT PRESENTED CONCERNING THE COURT'S PRIOR TREATMENT ON MOTION FILED UNDER CRIM.R. 32.1 AND R.C. 2943.03, REGARDING TRIAL COUNSEL OF RECORD DAVID SNOW ESQUIRE. [sic] II. THE TRIAL COURT IMPROPERLY DENIED THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHEN THE FOUNDATION REQUIREMENT TO JUSTIFY THE NECESSITY OF THE STATUTE R.C. 2953.21(E) AND (G) ON MATTER OF SUCCESSOR TRIAL COUNSEL OF RECORD JAMES C. YOUNG, ESQ., WAS LADE TO OVER-COME SUMMARY DISMISSAL. [sic] III. THE TRIAL COURT PRECLUDED THE DEFENDANT FROM A FAIR AND IMPARTIAL DETERMINATION WHEN THE COURT ITSELF DECIDED IT'S PRIOR DECISION FOR MOTION TO WITHDRAW PLEA OF GUILTY THAT FAILED TO GIVE WRITTEN FINDINGS OF FACTS AND CONCLUSIONS OF LAW. [sic] IV. THE TRIAL COURT IMPROPERLY DISMISSED DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHEN FROM A NON-IMPARTIAL RESOLUTION OF FINDINGS OF FACTS AND CONCLUSIONS OF LAW AS THE COURT ITSELF SET THE SCOPE OF EVIDENCE TO IT'S OWN RULING. [sic] Appellant's first and third assignments of error are - 4 - interrelated and will be addressed simultaneously. Appellant submits the trial court erred when it limited the scope of evidence concerning the trial court's denial of his Crim.R. 32 motion to withdraw guilty plea filed by privately-retained counsel "Mr. Snow, Esq." He further asserts that the trial court erred when it failed to provide written findings of fact and conclusions of law when it denied his motion to withdraw guilty plea. Crim.R. 32.1 requires trial courts to apply a "manifest injustice" standard to post-sentence motions to withdraw guilty pleas. The rule provides as follows: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. See, also, State v. Xie (1992), 62 Ohio St.3d 521, paragraph two of the syllabus (where the court noted that Crim.R. 32.1 requires that the "manifest injustice" standard must be used to evaluate a post-sentence motion to withdraw guilty plea). This standard is much more demanding than that for pre-sentence motions, which are liberally granted provided there is reasonable and legitimate basis. Id. at 527. Post-sentence motions to withdraw are only permitted in extraordinary cases. State v. Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus. Defendant has the burden of establishing manifest injustice. Id. The decision to grant a post-sentence motion to withdraw guilty plea is within - 5 - the discretion of the trial court. Id. at paragraph two of the syllabus. When reviewing a trial court's judgment with respect to a motion to withdraw a guilty plea, an appellate court must use the "abuse of discretion" standard. Xie, supra; State v. Lambros (1988), 44 Ohio App.3d 102; State v. Posta (1987), 37 Ohio App.3d 144. We note that the term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Xie, supra; State v. Montgomery (1991), 61 Ohio St.3d 410; State v. Moreland (1990), 50 Ohio St.3d 58. When applying the "abuse of discretion" standard, a reviewing court is not free merely to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, citing Berk v. Matthews (1990), 53 Ohio St.3d 161. Upon this court's review of the record, we find that appellant has not established the existence of "manifest injustice." Appellant has not set forth facts or evidence to demonstrate that under the "manifest injustice" standard, the trial court abused its discretion when it denied his post- sentence motion to withdraw guilty plea. Accordingly, appellant's assignments of error are not well taken. Appellant's second and fourth assignments of error are interrelated; therefore, they can be addressed simultaneously. In the second assignment of error, appellant charges his motion for post-conviction relief should have been granted on the ground - 6 - he received ineffective assistance of counsel. In the fourth assignment of error, appellant charges the trial court improperly dismissed his petition for post-conviction relief. The post-conviction relief process permits criminal defendants who allege that their conviction is void or voidable on state or federal constitutional grounds to petition the trial court for an evidentiary hearing pursuant to R.C. 2953.21(A). State v. Isham (Aug. 23, 1995), Montgomery App. No. 15136, unreported. The petitioner bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his claim and merit a hearing. State v. Hamilton (Dec. 29, 1993), Clark App. No. 3015, unreported, citing State v. Kopper (1983), 5 Ohio St.3d 36. A petition for post- conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner is not entitled to relief and that the petitioner failed to submit evidentiary documents containing sufficient operative facts. State v. Scott (1989), 63 Ohio App.3d 304; State v. Jackson (1980), 64 Ohio St.2d 107, syllabus. A trial court is not required to hold a hearing on all post-conviction motions. State, ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450. If the trial court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. State v. Isham, supra. Issues properly before a court on a petition for post- conviction relief are issues which could not be raised on direct - 7 - appeal due to the fact that the evidence supporting such issues is dehors the record. State v. Milanovich (1975), 42 Ohio St.2d 46; State v. Durr (July 2, 1994), Cuyahoga App. No. 65958, unreported. The doctrine of res judicata applies to the facts of this case. If a court finds that an issue raised in a petition for post-conviction relief has, or should have, been raised in a direct appeal or in a previous post-conviction relief motion, the trial court may dismiss the petition on the grounds of preclusion. State v. Perry (1967), 10 Ohio St.2d 175, paragraph seven of the syllabus; State v. Spisak (Apr. 13, 1995), Cuyahoga App. No. 67229, unreported. In order to substantiate a claim of ineffective assistance of counsel, defendant-appellant is required to demonstrate that (1) the performance of defense counsel was seriously flawed and deficient and (2) the result of defendant-appellant's trial or legal proceeding could have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim for ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. A review of the record from the trial court demonstrates that appellant's claim for ineffective assistance of counsel could have been raised on direct appeal to this court, but was - 8 - raised in appellant's motion for post-conviction relief. The trial court, thus, properly dismissed appellant's petition for post-conviction relief as appellant's claims are barred by the doctrine of res judicata. Perry, supra. Given the foregoing, appellant's assignments of error are not well taken. Judgment affirmed. - 9 - 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 Cuyahoga County Court of Common Pleas 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. PATRICIA BLACKMON, P.J. and JAMES M. PORTER, J. CONCUR JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .