COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70649 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JONATHAN LEWIS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-297049 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN GIBBONS, ESQ. Cuyahoga County Prosecutor 2000 Standard Building EDWARD F. FERAN, ESQ. 1370 Ontario Street Assistant Prosecuting Attorney Suite 1210 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted on four charges stemming from a police raid on a hotel room on May 7, 1993. Police found appellant in the room with his cousin, DeShawn Jackson, a juvenile, one hundred and ten rocks of crack cocaine and one thousand dollars. Appellant's indictment charged him with one count of selling or offering to sell cocaine in an amount equal to or greater than three times the bulk amount; possession of cocaine in an amount greater than or equal to three times the bulk amount; preparing to ship cocaine; and, possession of criminal tools. The first three counts each had two specifications, one juvenile specification and one prior drug abuse offense. Appellant initially entered a plea of not guilty to each of the four counts. On August 9, 1993 appellant changed his plea to guilty on count one, selling or offering to sell the cocaine. The State dismissed the other three charges and further amended the indictment to eliminate the two specifications from count one in return for the plea. The trial court confirmed that appellant's plea was entered knowingly, intelligently and voluntarily during the hearing. A week later, on appellant's fortieth birthday, the trial court sentenced appellant to an indefinite sentence of five to twenty-five years, with five years actual incarceration. This Court granted appellant's motion for a delayed appeal on June 24, 1996. Appellant asserts the following assignment of error. - 3 - I APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF COUNSEL'S MISREPRESENTATIONS TO APPELLANT CONCERNING AN EXCULPATORY WITNESS AND COUNSEL'S FAILURE TO PROPERLY INVESTIGATE BY CONTACTING SAID WITNESS, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO MAKE A KNOWING, VOLUNTARY AND INTELLIGENT PLEA OF GUILTY. Appellant alleges that his attorney was given an affidavit from appellant's cousin, DeShawn Jackson, prior to the entry of appellant's guilty plea. The affidavit stated that appellant had nothing to do with the cocaine found in the hotel room. Appellant told his attorney that DeShawn would testify on his behalf. His attorney later told appellant that DeShawn refused to testify. Based on this information and his attorney's promise that he would be out in three and a half years, appellant retracted his not guilty plea. Appellant asserts that he later learned that DeShawn Jackson had never been contacted by the attorney and would have been willing to testify on appellant's behalf. Appellant now requests an evidentiary hearing to determine whether his plea was entered knowingly, intelligently and voluntarily given the misrepresentations he alleges were made to him by his attorney. This Court has no authority to grant evidentiary hearings. After a review of the record as it currently exists, we find that appellant's claim of ineffective assistance of counsel is not well taken. To demonstrate a claim of ineffective assistance of counsel, appellant must prove that his trial attorney's performance was - 4 - deficient and "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty." State v. Kukla (Oct.3, 1996), Cuyahoga App. No. 70146, unreported, quoting Hill v. Lockhart (1985), 474 U.S. 52, 88 L.Ed.2d 203, 106 S.Ct. 366. Appellant alleges a deficiency in his trial attorney's performance. However, the allegation that his attorney misrepresented that DeShawn had been contacted and refused to testify is not supported by anything in the record. We have no way to review appellant's assertion without some factual basis included in the record. The Ohio Supreme Court held in a similar situation that: It may be that in the present case appellant can allege sufficient facts to state a claim of ineffective assistance of counsel. However, it is impossible to determine whether the attorney was ineffective in his representation of appellant where the allegations of ineffectiveness are based on facts not appearing in the record. For such cases, the General Assembly has provided a procedure whereby appellant can present evidence of his counsel's ineffectiveness. This procedure is through the post-conviction remedies of R.C. 2953.21. This court has previously stated that when the trial record does not contain sufficient evidence regarding the issue of competency of counsel, an evidentiary hearing is required to determine the allegation. State v. Hester [(1976), 45 Ohio St.2d 71.] Such a hearing is the proper forum for appellant's claim. Appellant should have no fear that the doctrine of res judicata will prevent him from raising the issue of ineffective assistance of counsel in a post-conviction hearing. "As long as no direct appeal was taken, or the claim of incompetent counsel was not raised and adjudicated on a direct appeal, res judicata does not bar the adjudication of this issue in postconviction proceedings." State v. Gibson (1980), 69 Ohio App. 2d 91, 99 [23 O.O.3d 130] (Krenzler, C.J., concurring). Since it is clear that the court of appeals in the present case did not adjudicate the issue, the doctrine of res judicata does not apply. Thus, appellant is free to - 5 - petition for a post-conviction evidentiary hearing to develop a record upon which this issue may be more effectively addressed. State v. Cooperrider (1983), 4 Ohio St.3d 226, 227-228. We are unable to adjudicate the issue of appellant's counsel's ineffectiveness. Therefore, he is free to petition for a post- conviction evidentiary hearing to produce support for his allegations pursuant to R.C. 2953.21 and R.C. 2953.23. Appellant's assignment of error is overruled. The conviction is 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 Court of Common Pleas 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. PATTON, P.J., AND SPELLACY, J., CONCUR. ANN DYKE JUDGE 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 of decision by the .