COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72604 ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION KENNETH MCCOWN : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 13, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-304054 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. KENNETH MCCOWN, Pro Se Cuyahoga County Prosecutor #A293-872 SHERRY McCREARY, ESQ. P. O. Box 69 L.O.C.I. Assistant County Prosecutor 6 DORM 8th Floor Justice Center London, Ohio 43140-0069 1200 Ontario Street Cleveland, Ohio 44113 2 PER CURIAM: Kenneth McCown, defendant-appellant, raises the following assignments of error for our review: I. TRIAL COURT ERRED IN DENYING APPELLANT AN EVIDENTIARY HEARING ON HIS POST-CONVICTION PETITION, WHERE APPELLANT'S PETITION RAISED SUBSTANTIAL CONSTITUTIONAL VIOLATION, DEMON- STRATING OPERATIVE FACTS OFF THE RECORD OF TRIAL WARRANTING THE TRIAL COURT TO HOLD A HEARING ON HIS CLAIMS, THUS VIOLATING THE APPELLANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW UNDER BOTH THE OHIO AND UNITED STATES CONSTITUTION. II. TRIAL COURT ERRED IN DENYING AN EVIDENTIARY HEARING WHERE THE APPELLANT ESTABLISHED SUFFICIENT OPERATIVE FACTS TO WARRANT A REVIEW OF COUNSEL'S PERFORMANCE AND WHETHER APPELLANT SUFFERED PREJUDICE BY COUNSEL'S INDUCEMENTS TO ENTER A PLEA OF GUILTY TO THOSE OFFENSES, DENYING APPELLANT EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. Kenneth McCown was convicted upon his guilty plea to rape, gross sexual imposition, and domestic violence. He was sentenced to concurrent sentences of six to twenty five years, eighteen months, and thirty days in prison. McCown appealed his conviction to this court alleging he could not be convicted of gross sexual imposition when the alleged victim was his wife, that the trial court erroneously accepted an Alford plea without conducting an examination as to its factual basis, and that the trial court violated Crim.R. 11 by failing to inform him that rape was a non- probationable offense. McCown's conviction was affirmed in State v. McCown (November 12, 1996), Cuyahoga App. No. 69683, unreported. McCown filed a petition for post-conviction relief on September 20, 1996, claiming he was denied the effective assistance 3 of counsel at trial. He argued trial counsel induced him to plead guilty by promising him that he would receive a flat sentence of five years and would receive shock probation after six months. He argued that, had he known he could not receive flat time, he would have proceeded to trial. He also argued trial counsel improperly failed to file a motion to withdraw McCown's guilty plea. The trial court denied the petition without a hearing concluding as follows: All of the issues raised by petitioner herein either were or could have been raised and disposed of in his delayed appeal to the Eighth District Court of Appeals. They could also have been raised on appeal to the Ohio Supreme Court. Because petitioner failed to raise these claims prior to this petition, they are now barred by the doctrine of res judicata. McCown now appeals and argues the trial court erred by denying him a hearing on his petition for post-conviction relief. He argues that res judicata does not bar his petition for post- conviction relief because trial counsel's inducements were made off the record and could not have been raised on direct appeal since they were not part of the record on appeal. For the reasons below, we affirm the decision of the trial court. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any 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 4 an appeal from that judgment. State v. Szefcyk (1996), 77 Ohio St.3d 93, 95 [quoting State v. Perry (1967), 10 Ohio St.2d 175, at paragraph nine of the syllabus.] However, res judicata does not apply if the defendant's claim for relief is supported by materials outside of the original record. State v. Combs (1994), 100 Ohio App.3d 90, 97. In this case, McCown's petition refers to matters occurring outside the record. However, even if we accept them as true, the affidavits attached to McCown's petition for post-conviction relief are not sufficient to establish a claim of ineffective assistance of counsel. A showing of ineffective assistance of counsel requires evidence that trial counsel's performance was deficient and that the defendant was prejudicially affected by counsel's performance. Strickland v. Washington (1984), 466 U.S. 668, at paragraph 2 of syllabus. McCown argues he would not have pleaded guilty had he known that he could have received an indeterminate sentence. However, in State v. Blatnik (1984), 17 Ohio App.3d 201, the court held that trial counsel's incorrect speculation about a sentence that a defendant could have received does not justify vacation of the defendant's plea. Furthermore, in McCown's direct appeal, this court found that McCown was aware that the amended count of rape was a non-probationable offense and that he was aware of the possible sentences for the crimes he pleaded guilty to. McCown at 16. 5 Moreover, the original indictment against McCown included three counts of raping a child under the age of thirteen, each of which carried a potential term of life imprisonment. Through the plea bargain, McCown avoided the possible life terms. Under the circumstances, we find McCown has failed to show that he was prejudiced by trial counsel's alleged errors. Under Strickland, the failure to prove prejudice is fatal to a claim of ineffective assistance of counsel. Strickland at 697 (A court deciding an ineffective assistance claim need not address both components of ineffective assistance if the defendant makes an insufficient showing on one.) Because McCown failed to establish a claim for ineffective assistance of counsel, the trial court correctly denied his petition for post-conviction relief without a hearing. A trial court may dismiss a petition for post-conviction relief without a hearing when the evidentiary materials provided by the petitioner do not demonstrate deficient performance by trial counsel and resulting prejudice to the defendant. State v. Jackson (1980), 64 Ohio St.2d 107, 111. See also State v. Apanovitch (1995), 107 Ohio App.3d 82, 98. Judgment affirmed. 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. ______________________________ PATRICIA A. BLACKMON, P. JUDGE ______________________________ JOSEPH J. NAHRA, JUDGE ______________________________ JOHN T. PATTON, 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 .