COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71659 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION RAYMOND GAWLOSKI : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 14, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-214637 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor The Brownhoist Bldg. 4403 St. Clair Avenue JOHN CLOUGH, ESQ. Cleveland, Ohio 44103 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: On May 4, 1987, petitioner, Raymond Gawloski, after pleading no contest, was found guilty of kidnapping and felonious assault. Each count contained violence specifications. He was sentenced to 10 to 25 years on the first count, to run concurrently with a sentence of 8 to 15 years on the second. Petitioner was appointed new counsel for a direct appeal. On November 20, 1987, while his direct appeal was proceeding, petitioner filed his first pro se petition for postconviction relief ("PCR"). In this first petition he stated as follows: "[f]urther, counsel did make certain promises to this Petitioner concerning his sentence at the time the plea of no contest was made." (First Petition at page four). Meanwhile, his conviction was affirmed by this court. State v. Gawloski (June 16, 1988), Cuyahoga App. No. 54057, unreported. Soon after, the trial court granted petitioner's motion to amend his petition. On October 24, 1988, petitioner filed an amended pro se petition, which stated in part as follows: 36. Petitioner was assured that if his appeal did not get him relief, the attorney would file a petition for super shock parole, and if that didn't provide relief, the maximum petitioner would serve of his sentence would be 4 to 5 years. 37. This attorney also promised petitioner that he had it fixed with the judge that he would serve his sentence at Chillicothe and nowhere else, due to powerful enimies [sic] petitioner has, see transcripts at 22(16). Mr. Doughten made me several promises to induce me to enter my plea of no contest. - 3 - Defendant voluntarily dismissed both petitions on December 14, 1988. Seven years later, on December 20, 1995, petitioner filed the instant petition for postconviction relief along with a motion to withdraw his guilty plea. In this petition, defendant raised two arguments to justify postconviction relief. First, he claimed the sentence was in error; second, he claimed his trial counsel induced him to plead no contest. Attached to the petition was the affidavit of his trial counsel David L. Doughten, who averred in part as follows: 3. He did inform Raymond Gawloski that if he entered a no contest plea in this case that he would receive a minimum sentence. Further, on a minimum sentence counsel informed Mr. Gawloski he would [sic] no more than 7 1/2 to 8 years before he went before the parole board provided that he had good conduct within prison rules and regulations. He further informed him that he would not serve 10 years. 4. He believes that, without the inducements as detailed in paragraph 3, Raymond Gawloski would not have entered a no contest plea. 5. He believed the information concerning the amount of time the defendant would serve as detailed in paragraph 3 was accurate and true. 6. He did not purposely mislead Raymond Gawloski but believes that his advice misled Raymond Gawloski into a plea of no contest in that he has served 11 years in prison in spite of his good conduct. 7. He believes that without the inducement of serving 7 1/2 to 8 years in prison, Raymond Gawloski would not have entered a plea of no contest and would have taken his case to trial. 8. He believes that Raymond Gawloski would not have entered a plea of guilty and was persuaded by counsel to enter a no contest plea instead of proceeding with a trial. - 4 - On January 2, 1996, petitioner, pro se, filed in the trial court a motion for voluntary dismissal of this petition for postconviction relief. The trial court, however, denied the petition in an order signed on December 26, 1995 and journalized on January 8, 1996. A notice of appeal was filed. Two months later, this court granted petitioner's motion for voluntary dismissal of his appeal. On September 19, 1996, petitioner's counsel filed a supplemental petition for postconviction relief. This supplement did not make any new claims for relief; it merely referenced the petition filed on December 20, 1995, requested findings of facts and conclusions of law, and added the affidavits of petitioner and 1 his sister. In his affidavit, petitioner specifically averred as follows: 2) I was prepared to take the above mentioned case to trial, as found in [paragraph] 1, however, David L. Doughten, my Trial Attorney, asked me to consider a no contest plea, to which I objected to [sic] at first; 3) It was only counsel's representations that I would serve no more than 7 1/2 to 8 years in prison that persuaded me to enter a no contest plea; and he further stated that I would serve no more than 10 years at the far extreme, which was my minimum sentence; * * * 7) I would not have pled guilty, but for the representation that would serve 7 1/2 to 8 years in prison, and certainly no more than 10 years, which was made by my Trial Counsel David L. Doughten, to me, to 1 We will treat this supplemental petition as a new petition that incorporates the arguments and supporting affidavit from the petition filed on December 20, 1995. - 5 - induce me to plead to the conviction and sentence in the case identified in [paragraph] 1. The trial court denied this petition and issued findings of facts and conclusions of law on October 28, 1996. Without holding a hearing, the trial court denied the petition and explained that petitioner waived any errors regarding his sentence by not raising the issue on direct appeal. Additionally, the trial court held that defendant's argument that his plea was induced by defense counsel's representation he would serve only 7 1/2 to 8 years in prison was barred by the doctrine of res judicata, because this issue could also have been raised on direct appeal. Petitioner timely appealed and raised the following assignment of error. I. THE TRIAL COURT IMPROPERLY DENIED THE PETITION ON THE MISTAKEN GROUNDS OF RES JUDICATA AND IMPROPERLY DENIED AN EVIDENTIARY HEARING IN VIOLATION OF DUE PROCESS AS GUARANTEED BY THE U.S. CONSTITUTION. Petitioner's claim is that his plea was induced by trial counsel's assurance that he would serve no more than 7 1/2 to 8 years. On appeal, petitioner argues that the trial court erred by dismissing the petition on res judicata grounds, because his argument could not have been raised on direct appeal. After reviewing the record, we agree that this argument could not have been raised on direct appeal; however, we affirm the judgment of the trial court on other grounds: (1) res judicata bars this petition because the claim was raised in two prior postconviction petitions, and (2) the supporting materials submitted by plaintiff are not sufficient to warrant a hearing or relief. - 6 - RES JUDICATA Generally, the doctrine of res judicata bars any claim in a postconviction petition that was or could have been raised at trial or on direct appeal. State v. Steffen (1994), 70 Ohio St.3d 399, 410. However, res judicata based on a prior direct appeal will not apply if the petition raises matters outside the original record and, therefore, matters not capable of being raised on direct appeal. State v. Cole (1982), 2 Ohio St.3d 112. In the case at bar, attached to the petition were affidavits which were not part of the original record on direct appeal. To proceed on the claim he was making, petitioner had to provide evidence dehors the record. Such evidence may form the basis of a petition for postconviction relief, but may not for a direct appeal. See, State v. Gibson (1980), 69 Ohio App.2d 91; State v. Lee (Oct.10, 1996), Cuyahoga App. No. 70406, unreported. Therefore, the trial court erred by holding that res judicata applied to the issue of the coerced plea on the grounds it could have been raised on direct appeal. However, res judicata does apply for a different reason: petitioner raised the argument of a coerced plea in previously filed petitions for postconviction relief. Petitioner first raised this argument in a petition filed on November 20, 1987, which was supplemented on August 24, 1988. Both the petition and the supplement were voluntarily dismissed by petitioner on December 14, 1988. - 7 - Thereafter, petitioner again raised the argument of a coerced plea in another petition filed on December 20, 1995. This petition included the affidavit of trial counsel. On January 2, 1996, acting pro se, he voluntarily dismissed his petition. Postconviction proceedings are goverened by the Ohio Rules of Civil Procedure. State v. Pless (1993), 91 Ohio App.3d 197. Under Civ.R. 41(A), this second voluntary dismissal acts as an adjudica- tion on the merits. Graham v. Pavarini (1983), 9 Ohio App.3d 89. Therefore, the issue of whether petitioner's plea was coerced is to be treated as if adjudicated on the merits. This adjudication has the effect of res judicata and will bar the raising of the issue in the supplemental petition or in any future petitions. MERITS OF THE PETITION Additionally, even if res judicata had not resulted from the second dismissal, a review of the record reveals that the claim raised by petitioner lacks merit. In State v. Kapper (1983), 5 Ohio St.3d 36, the Court held that a postconviction petition alleging a plea was coerced was properly dismissed without a hearing. The Court stated as follows: * * * [A]n allegation of a coerced guilty plea involves actions over which the State has no control. Therefore, the defendant must bear the initial burden of submitting affidavits or other supporting materials to indicate that he is entitled to relief. Defendant's own self-serving declarations or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review which shows that his plea was voluntary. A letter or affidavit from the court, prosecutors or defense counsel alleging a defect in the plea process may be sufficient to rebut the record on review and require an evidentiary hearing. - 8 - Kapper at 38 (emphasis added). The petitioner in Kapper alleged that his guilty plea was based on trial counsel's promises concerning the amount of time petitioner would spend in jail. In the case at bar, petitioner has additionally submitted defense counsel's affidavit, which makes similar assertions. However, this affidavit never rises to the level of alleging a defect in the plea process. In State v. Poland (1984), 16 Ohio App.3d 303, this court followed Kapper and held that a petitioner who claimed he pled guilty on advice from counsel that he would receive probation was not entitled to a hearing before his petition was dismissed by the trial court. In both Kapper and Poland, the evidence submitted was deemed insufficient to rebut the record from the guilty plea hearing in which the petitioner pled guilty and averred that no promises had been made to them. In the case at bar, our review of petitioner's claim must begin with the plea hearing and sentencing when petitioner stated he understood he was going to jail for a minimum of ten years. Initially, the prosecutor said that the range of possible sentences for the first count was 10 to 25 years. (Tr. 6.) The court then stated the following: It's my duty to inform you that if you plead no contest to kidnapping and the first specification, and to aggravated -- to felonious assault with specification on the first count, the Court could sentence you to 10, 11, 12, 13, 14, or 15 to 25 years and fine you up to $10,000. (Tr. 13,14.) The following discussion then occurred. - 9 - THE COURT: Have any threats or promises been made to you other than what has been stated by the prosecutor here in open court? THE DEFENDANT: No, sir. THE COURT: Do you understand that I'm not promising you any particular sentence? THE DEFENDANT: Yes, sir. THE COURT: And I've outlined what the possible sentences could be. You understand. THE DEFENDANT: Yes, sir. (Tr. 16-17.) Petitioner then pled no contest, and defendant's trial counsel stated to the court: I believe that Raymond will be deserving of the minimum time considering that he's looking at a time of 10 years of this plea, (Tr. 19.) At sentencing, trial counsel again stated that the minimum sentence was ten years. Yes, just a few words. As you know, Raymond understands that he has to go to jail for at least 10 years for this. That's for the understanding of the plea and that's for the understanding now. I would ask the court to impose just the minimum 10 years for the reasons that just as well, there's no excuse for the actions. * * * I would ask the Court, and that Raymond is serious about getting rid of his alcohol problem and I would ask the Court to give him the minimum 10 years for this. (Tr. 21-22.) Thereafter, the court sentenced petitioner as follows: It will be the sentence of this court on the first count of the indictment that you plead guilty, or found guilty of, that you be sentenced to 10 to 25 years and cost and on the second count that you be sentenced 8 to 15 years and cost. The sentences will be served concurrently and you may serve them at the Chillicothe Correctional Institution. - 10 - (Tr. 25.) Now in his petition and supplemental petition, defendant attempts to contradict this record containing numerous instances when petitioner heard the prosecutor, judge, and defense counsel state that his minimum sentence would be 10 years. In support of his claim he presents the affidavits of himself and his trial counsel. The affidavit from defense counsel, however, does not contradict the record from the plea hearing. Trial counsel never said the minimum would be anything less than 10 years. In State v. Eddings (July 2, 1992), Cuyahoga App. No. 62983, unreported, this court held that an affidavit from trial counsel was insufficient to rebut the record that petitioner's plea was knowing and voluntary. The affidavit stated that trial counsel believed the judge would order probation and that counsel may have communicated this belief to petitioner. Such evidence was deemed insufficient to warrant a postconviction hearing. See also, State v. Yonkings (Dec. 30, 1994), Lorain App. Nos. 94CA005807, 94CA005825, unreported (letters from trial counsel insufficient to warrant a hearing under Kapper). In the case at bar, the statements alleged to have "induced" petitioner into pleading guilty are similarly insufficient. These statements were merely trial counsel's predictions about parole. A petition for postconviction relief does not present a viable claim merely because trial counsel's prediction about parole did not come true. In State v. Xie (1992), 62 Ohio St.3d 521, 524-5, the Ohio - 11 - Supreme Court stated, "*** a defendant who bases a plea decision on parole eligibility will often be relying on a factor beyond the prediction of defense counsel, and beyond the actual control of a defendant." See also, State v. Kesterson (May 24, 1996), Miami App. No. 95 CA 39 (predictions as opposed to promises about jail time do not state a triable claim for postconviction relief because of a coerced plea). Throughout the petition and the affidavits, petitioner also protests that although he has been a model prisoner he has still not been granted parole. A decision by a parole board, however, is not a proper subject of postconviction relief, because the petitioner has not been deprived of any due process right or liberty interest. State v. Martinelli (Dec. 5, 1996), Cuyahoga App. No. 70120, unreported. Accordingly, because the evidence submitted by petitioner was insufficient to rebut the record from the plea hearing, which shows he was aware of the minimum number of years the court was imposing as a sentence, petitioner's plea was knowing and voluntary. Therefore, for all the above reasons, the trial court did not err in dismissing the petition without a hearing. Judgment affirmed. - 12 - 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. PATRICIA A. BLACKMON, 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 .