COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71348 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION LEE JACKSON : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 31, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-304570 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. LEE JACKSON, pro se Cuyahoga County Prosecutor No. 290-221 Grafton Correctional Inst. RALPH KOLASINSKI, ESQ. 2500 South Avon Belden Rd. Assistant County Prosecutor Grafton, Ohio 44044 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: Defendant-appellant appeals in this delayed accelerated appeal from his guilty plea conviction for attempted rape of a twelve- year-old child pursuant to a plea bargain. Defendant contends that he received ineffective assistance of counsel. On January 31, 1994, defendant was indicted by the grand jury for the forcible rape of the child in violation of R.C. 2907.02. If convicted of this offense, defendant faced a mandatory sentence of life imprisonment. R.C. 2907.02(B). After counsel was appointed, defendant entered a plea of not guilty. The record shows that the trial court conducted several pretrials. Defense counsel filed an extensive formal written discovery request to which the prosecution responded. On March 8, 1994, defendant appeared in court with counsel to withdraw his plea of not guilty and to enter a plea of guilty pursuant to a plea bargain. Defendant agreed to plead guilty to a reduced amended charge of attempted rape in return for a dismissal of the rape charge. The parties also specifically agreed that defendant would receive an indefinite sentence of four to fifteen years imprisonment and that defendant would not be eligible for shock or supershock probation. During the hearing, the trial court fully explained defendant's rights in compliance with Crim.R. 11(C). Defendant specifically stated that he was satisfied with the representation provided by his appointed counsel. (Tr. 4.) The trial court - 3 - explained, inter alia, that by his guilty plea defendant waived his right to insist that the prosecution prove he committed the offense. The trial court thereafter accepted defendant's guilty plea and sentenced him in accordance with the plea bargain. Prior to this delayed appeal defendant filed three petitions for post-conviction relief ("PCR Petitions"). The last two of these PCR Petitions raised the identical claims of ineffective assistance of defense counsel that he raises in this appeal. This court affirmed the denial of his third PCR Petition in State v. Jackson (May 2, 1996), Cuyahoga App. No. 69501, unreported. On September 30, 1996, defendant filed this delayed direct appeal from his guilty plea conviction and was appointed new appellate counsel. Appellate counsel subsequently filed a motion, pursuant to Anders v. California (1967), 386 U.S. 738, in which he sought to withdraw as counsel because there were no grounds for the appeal. This court granted appellate counsel's motion to withdraw as counsel. Defendant thereafter filed his own pro se brief, which raises the following sole assignment of error: INEFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL THROUGH ACTS AND OMISSION OF HIS ATTORNEY, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION. This assignment lacks merit. Defendant contends he was denied the effective assistance of defense trial counsel because counsel did not investigate the facts of the case by interviewing the victim or obtaining a transcript of the preliminary hearing on the original charge in the municipal - 4 - court. Defendant has appended a photocopy of the transcript from the preliminary hearing to his brief on appeal. Defendant's argument is not persuasive for several reasons. First, it ignores the distinction between direct appeals and post- conviction proceedings. An aggrieved party in a direct appeal is limited to matters in the record at the time the trial court made its final judgment, whereas PCR Petitions are based on matters outside the record at that time. As noted above, defendant raised these identical arguments based on evidence outside the record in his second and third PCR Petitions. Now on direct appeal from his conviction, the court cannot consider materials added to the record after his guilty plea. The record at the time of his guilty plea conviction, furthermore, does not support defendant's argument. As noted above, the record of original papers filed in the trial court shows that defense counsel conducted full, formal discovery. Moreover, contrary to defendant's contention, the child rape victim was listed by the prosecution as one of the witnesses against him for trial. Finally, defendant specifically stated during his guilty plea that he was satisified with the representation provided by his attorney. (Tr. 4.) Defendant's argument is unpersuasive even if we were to consider his claims relating to matters outside the record at the time of his guilty plea. Accord State v. Jackson, supra. First, the record contains nothing other than defendant's naked assertion that his counsel did not investigate the facts of the case. The - 5 - record flatly contradicts the claim and defendant has not explained how he "knows" that his attorney did not contact anyone who had any relevant information. Rape cases are not factually complex and do not raise a myriad of claims or defenses which necessitate extensive discovery. Defendant's remaining claim relates to a detective's statement that the victim was reluctant to testify at the preliminary hearing in the municipal court prior to his indictment in the common pleas court. Defendant has averred only that his new counsel did not obtain a transcript of this hearing. Defendant has not shown, however, that either he or his counsel was unaware of this information. Moreover, defendant also has not shown that it would make any difference whether his counsel was aware of this information. A municipal court preliminary hearing is merely a proceeding to determine whether there is probable cause to believe that an offense was committed by the accused. A person accused of a felony is entitled to indictment by a grand jury in the common pleas court regardless of the outcome of such a preliminary hearing. A witness' reluctance to testify at such a hearing does not mean that the witness will not testify at trial after the accused has been indicted by a grand jury. In fact, the prosecution in this case specifically listed the victim as a trial witness. Finally, even if defense counsel should have and did not contact the victim as defendant contends, a complaining child in a forcible rape case has absolutely no obligation to speak to defense counsel prior to - 6 - trial. The entire record, even as supplemented by defendant, demonstrates that defense trial counsel was effective and defendant has shown no prejudice from his representation. State v. Xie (1992), 62 Ohio St.3d 521. Counsel negotiated a plea bargain which reduced defendant's potential sentence from life imprisonment as a forcible child rapist to an indefinite term of four to fifteen 1 years. Defendant, quite remarkably, even mailed three letters to the trial judge thanking her and indicating satisfaction with the outcome of his case. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. 1 Despite obtaining the benefit of this reduction in sentence, defendant arguably breached his plea agreement by subsequently applying for supershock probation. - 7 - 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 M. PORTER, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE DIANE KARPINSKI, 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 .