COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72387 STATE OF OHIO : ACCELERATED CASE : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MURRAY L. HOLLAMAN : : Defendant-Appellant : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 24, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE CUYAHOGA COUNTY COURT OF COMMON PLEAS COURT CASE CR-319060 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DANIEL M. MARGOLIS (#0067330) Assistant County Prosecutor The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: MURRAY L. HOLLAMAN, PRO SE #310-894 2500 S. Avon Belden Road Grafton, Ohio 44044 PER CURIAM: Defendant-appellant, Murray Hollaman ( appellant ), appeals the judgment of the trial court denying his Petition to Vacate or -2- Set Aside Sentence. Appellant assigns the following two errors for our review: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION WITHOUT A HEARING AS APPELLANT'S PETITION [] (SIC) WITH SUPPORTING AFFIDAVITS CONTAINED SUFFICIENT OPERATIVE FACTS TO DEMONSTRATE THE LACK OF COMPETENT COUNSEL AND THAT APPELLANT WAS PREJUDICED BY COUNSEL'S INEFFECTIVENESS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENT OF THE UNITED STATES AND OHIO CONSTITUTION. II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S PETITION WITHOUT A HEARING AS APPELLANT'S PETITION, WITH SUPPORTING AFFIDAVITS CONTAINED SUFFICIENT OPERATIVE FACTS TO DEMONSTRATE THE LACK OF A VOLUNTARY, KNOWING, AND INTELLIGENT GUILTY PLEA. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On February 1, 1995, appellant was issued a three count indictment. Count I charged appellant with drug possession in violation of R.C. 2925.03, with two violence specifications. Count II charged appellant with drug trafficking in violation of R.C. 2925.03, also with two violence specifications. Count III charged appellant with possession of criminal tools in violation of R.C. 2923.24, with two violence specifications. On June 6, 1995, appellant plead guilty to Counts I and III as indicted. Count II was nolled. Appellant was sentenced for four (4) to ten (10) years on Count I and, two (2) to five (5) years on Count III. Both sentences were to be served consecutively. On March 15, 1996, appellant filed a Petition to Vacate or Set -3- Aside Sentence in the trial court. On March 31, 1997, the trial court denied appellant's Petition to Vacate or Set Aside Sentence. II. For purposes of this appeal, appellant's assignments of error will be addressed together. Appellant's first assignment of error sets forth a claim of ineffective assistance of counsel. In his second assignment of error, appellant alleges that his guilty plea was coerced and that his trial counsel misrepresented the sentence which he would receive. Appellant further asserts that it was error for the trial court to deny his petition without first holding an evidentiary hearing. In his petition for post-conviction relief, appellant alleged ineffective assistance of counsel. Specifically, appellant contended that his trial counsel improperly induced his plea by misrepresenting to appellant the sentence which would be imposed. The trial court rejected this argument, concluding that the record before it did not present evidence that appellant was not afforded effective assistance of counsel and that res judicata barred appellant's claim. In his brief to this court, however, appellant contends his ineffective assistance of counsel claim is based upon evidence dehors the record. Furthermore, appellant argues that the trial court's determination that res judicata was applicable because the claim could have been raised at trial or on direct appeal did not satisfy the trial court's duty to render sufficient factual findings pursuant to R.C. 2953.21(C). R.C. 2953.21(A) states that: -4- Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which imposed the sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief. R.C. 2953.21(C) addresses evidentiary hearings: Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. Such court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. The remedy provided for in R.C. 2953.21 is extremely limited, its purpose being to permit a defendant to raise only issues which could not have been resolved on direct appeal. State v. Mason (June 6, 1997), Marion App. No. 9-96-70, unreported, citing Riley v. Havener (S.D. Ohio, 1974), 391 F.Supp. 1177, 1179 ( The Ohio Supreme Court has given this statute an extremely limited application by applying the doctrine of res judicata to petitions seeking such relief ). Thus, only if the issues raised in the petition are addressed by reference to evidence outside the record -5- is the court required to hold a hearing and permit the parties to present relevant evidence. See R.C. 2953.21(E). Post-conviction relief proceedings in Ohio have historically been cognizable as quasi-civil. State v. Nichols (1984), 11 Ohio St.3d 40. Thus, the doctrine of res judicata is applicable to post-conviction relief proceedings. State v. Perry (1967), 10 Ohio St.2d 175, paragraph eight of syllabus. Moreover, res judicata has been most recently utilized to justify dismissal of post-conviction relief proceedings where the issue in question was never raised on direct appeal from the original judgment and sentence. State v. Cole (1982), 2 Ohio St.3d 112. The presentation of competent, relevant and material evidence de hors the record has been found to defeat the application of res judicatain a claim for post-conviction relief. See State v. Smith (1985), 17 Ohio St.3d 98. However, evidence presented from outside the record must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence which is only of marginal significance and does little to establish petitioner's claim beyond mere hypothesis and a desire for further discovery. State v. Hawkins (June 26, 1996), Hamilton App. No. C-950130, unreported, citing State v. Coleman (March 17, 1993), Hamilton App. No. C- 900811, unreported. We find, following a review of the record of this case, that appellant has failed to present the requisite evidence in support of his contentions. Although appellant submitted, with his -6- petition, his own personal affidavit, an affidavit of his trial counsel and an affidavit of a family member, the information contained in these materials was either irrelevant and immaterial to appellant's defense, or was merely cumulative to and repetitious of testimony elicited from appellant and his attorney at appellant's guilty plea hearing. Moreover, appellant's claim raised matters which were or could have been raised at trial or on appeal from that judgment. It is clear from the trial court's opinion dismissing appellant's petition that a thorough review of the record was completed by the trial court, as the court issued detailed findings of fact and conclusions of law. Accordingly, appellant's assignments of error are overruled. Judgment affirmed. -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. 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 JOHN T. PATTON, JUDGE LEO M. SPELLACY, JUDGE N.B. This 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(B) 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 .