COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71856 STATE OF OHIO JOURNAL ENTRY AND OPINION Plaintiff-appellee vs. ANTHONY MARTIN Defendant-appellant DATE OF ANNOUNCEMENT October 9, 1997 OF DECISION CHARACTER OF PROCEEDINGS Civil appeal from Court of Common Pleas Case No. CR-240722 JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender The Justice Center, 8th Floor ROBERT L. LANE, ESQ. 1200 Ontario Street Assistant Public Defender Cleveland, OH 44113 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 - 2 - PATTON, P.J. The issue in this appeal is whether the trial court erred by denying, without a hearing, petitioner Anthony Martin's petition for postconviction relief. We find the petition either raised facts that could have been raised on direct appeal and were therefore subject to res judicata or that those facts that arguably appear outside the record would not demonstrate the claimed error. In 1989, the grand jury returned an indictment charging petitioner with seven counts of raping his twelve year old daughter. It appears the grand jury also indicted the daughter's grandfather as a codefendant. As part of a plea bargain, peti- tioner agreed to plead guilty to three counts of sexual battery and one count of attempted rape. The court accepted petitioner's guilty plea to those counts, pronounced sentence, and ordered execution of sentence in January 1990. Petitioner did not file a direct appeal from that plea, but did file a motion to suspend further execution of sentence. The trial court denied that motion without opinion. In September 1996, petitioner filed the petition for postconviction relief currently on appeal to this court. In that petition, he claimed he had been denied effective assistance of counsel during plea negotiations because counsel failed to conduct a thorough investigation of the charges before advising petitioner to plead guilty. In support of his argument, petitioner appended to the petition a letter he wrote to the public defender and an affidavit signed by his daughter. The daughter's affidavit stated - 3 - she reported her grandfather's sexual abuse, but specifically told prosecutors that her father had not been involved in the abuse. She claimed, I was removed from my home and kept from having contact with any family member. Her placement in a foster home led her to believe that everything turned out fine with peti- tioner. She claimed she later discovered that her father had been convicted of sexual battery and attempted rape solely because the state convinced my father that I had pressed charges and would testify against him unless he accepted a plea bargain. The trial judge rejected these contentions as a basis for granting postconviction relief. The court found any contention concerning the plea itself or the effectiveness of counsel could have been raised on direct appeal or through a motion to vacate the guilty plea. Moreover, the trial court found the admissible substantive evidence produced in favor of the petition insufficient to support the petition. Finally, the trial court denied the request for an evidentiary hearing, finding petitioner had not shown what information he would obtain on discovery that would justify the unusual or extraordinary relief requested by him ***. - 4 - I The first assignment of error complains the trial court erred by applying principles of res judicata to find that any argument raised in a petition for postconviction relief that had not been first raised on direct appeal were barred from consideration. In paragraph nine of the syllabus to State v. Perry (1967), 10 Ohio St.2d 175, the court held that any defense or claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment is barred by res judicata. (Emphasis omitted). Res judicata has been held to bar postconviction proceedings *** until such time as appellate relief has been sought. State v. Nichols (1984), 11 Ohio St.3d 40, 42; State v. Wilson (Mar. 5, 1992), Cuyahoga App. No. 59983, unre- ported. An exception to that rule exists when a postconviction claim of ineffective assistance of counsel is based solely on facts appearing outside the record. We have held it is unreasonable to require a defendant to file first a direct appeal raising factual matters that are outside the record on appeal and which would not afford a basis for relief on direct appeal. See State v. Gibson (1980), 69 Ohio App.2d 91; State v. Brooks (Oct. 31, 1991), Cuyahoga App. No. 59724, unreported; State v. Lee (Oct. 10, 1996), Cuyahoga App. No. 70406, unreported. The substantive grounds for relief raised in the petition for postconviction relief were: (1) petitioner's guilty pleas were - 5 - induced by a promise of probation which he did not receive and (2) petitioner pleaded guilty because he had been falsely informed that his daughter would testify against him. The first ground, relating to promises of probation in exchange for the guilty pleas, raises matters contained in the record. Prior to sentencing, petitioner made an oral motion to withdraw his guilty plea, apparently because he thought he was pleading to only one count of sexual assault. Excerpts from the sentencing transcript show that defense counsel specifically negotiated with the state to arrange for a plea to probationable offenses. Petitioner later told the court, I'm not smart. When you said twenty years, I get twenty years or maybe probation, the only thing that was on my mind was probation. If petitioner misunderstood the nature of his plea, he should have filed a direct appeal and raised that point. Because the substance of this claim is fully supported by facts appearing in the record, the trial court did not err by finding this aspect of the petition for postconviction relief barred by res judicata. The second ground, that petitioner had been falsely informed that his daughter would testify against him arguably raises matters outside the record and not subject to application of res judicata. Nevertheless,we have held that we may nonetheless dispose of that issue if the trial court's refusal to grant relief would have been correct for other reasons. See State v. Brooks, supra. The trial court held, in the alternative, that petitioner presented no evidentiary basis to justify a hearing. The court - 6 - found petitioner's unsworn affidavit could not constitute evidence and, in any event, would be largely inadmissible because it contained evidence that petitioner could not have learned first- hand. We agree. In order to prove a claim of ineffective assistance of counsel, petitioner must show that there has been a substantial violation of an essential duty owed to the client and the defense had been prejudiced by counsel's ineffectiveness. State v. Johnson (1986), 24 Ohio St.3d 87, 89. In State v. Jackson (1980), 64 Ohio St.2d 107, the syllabus states: In a petition for post-conviction relief, which asserts ineffective assistance of coun- sel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. The trial court is not required to conduct a hearing on a petition for postconviction relief if the petition does not contain operative facts which, if true, would establish grounds for relief. State v. Apanovitch (1996), 113 Ohio App.3d 591, 597. The trial court may also consider that evidence is specious and properly refuse to grant a hearing on that basis. Id., citing State v. Cole (1982), 2 Ohio St.3d 112. Even if we assume the admissibilty of petitioner's letter, we find it ultimately fails to serve its intended purpose because defendant could have presented this as an issue at trial. The letter shows petitioner entered into the plea agreement after careful consideration of his options and despite his own belief - 7 - that the daughter did not name him as a perpetrator of the offenses. The letter describes petitioner's reluctance to enter into a plea agreement and characterizes the state's offer of a plea bargain as being motivated by its desire to keep the daughter from testifying. Petitioner stated he agreed to the plea, after discussion with his wife, in large part because his father-in-law received a jail sentence. He decided that the best option was the plea bargain for probation. The letter continues that my wife and I always knew [the state] was bluffing about our daughter naming me, but we couldn't prove it. The record from the sentencing hearing further undermines petitioner's arguments and shows defense counsel did not fail to perform any essential duties by recommending the plea bargain. When petitioner told the court that he wished to withdraw his guilty plea because he did not understand the consequences of the plea, defense counsel adamantly replied that he had many discus- sions with petitioner and fully explained the deal offered by the state and what the possible penalties would be. The best peti- tioner could do was to say that he had his mind on probation and apparently blocked out from his own mind the possibility that he could receive jail time. Nothing in the petition for postconviction relief demonstrates any operative facts which might establish grounds for relief. The assigned errors are overruled. Judgment affirmed. - 8 - 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY,.J. HOLMES, J..,* CONCUR. PRESIDING JUDGE JOHN T. PATTON .