COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72196 STATE OF OHIO Plaintiff-appellee JOURNAL ENTRY vs. AND RONNIE D. BUTCHER OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court, Case No. CR-310192 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. RONNIE BUTCHER, pro se Cuyahoga County Prosecutor No. 294-178 Trumbull Correctional THOMAS A. REIN, ESQ. Institution Assistant Prosecuting Attorney P.O. Box 901 The Justice Center Leavittsburg, Ohio 44430-0901 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant Ronnie Butcher appeals pro se from the denial of his petition for postconviction relief ( PCR Petition ). Pursuant to a plea bargain, defendant pleaded guilty in this case to felonious assault with a firearm specification.1 In return, the prosecution dismissed accompanying violence specifications and charges for having a weapon while under disability and unlawful possession of dangerous ordnance, with firearm and violence specifications. Defendant's direct appeal from this conviction was dismissed on two occasions as untimely filed. Statev. Butcher (Aug. 29, 1995), Cuyahoga App. No. 69286, unreported; State v. Butcher (Nov. 21, 1995), Cuyahoga App. No. 69743; unreported. Defendant thereafter filed the PCR Petition at bar, contending that he received ineffective assistance of defense counsel so that his guilty plea was not knowingly, voluntarily, and intelligently made. Specifically, defendant alleged that his appointed counsel did not discuss the case with him, ignored that the victim recanted her testimony, told defendant he would receive the maximum sentence if found guilty, and failed to seek a psychological examination of defendant. Defendant verified his petition, but offered no other 1 Also filed against defendant was another criminal case, CR-311200, which is not subject to this appeal. The exact nature of the charges in CR-311200 is not clear because the record from that case is not before this court. -3- affidavits to support his allegations.2 Defendant's PCR petition also supported by a two and one-half page excerpt of the transcript of his guilty plea hearing. The trial court denied defendant's PCR Petition and issued suppor lwas ting find court specifically noted that the victim did not recant her testimony in this case (CR-310192), but did so in the other criminal case (CR-311200) against defendant which was dismissed. The trial court also noted that defendant failed to provide evidentiary material to support his claim that his counsel was ineffective. Defendant appealspro se raising the following two assignments of error: I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AFFORD PETITIONER AN EVIDENTIARY HEARING ON WHICH TO FULLY DEVELOP AND PROVE THE TRUTH OF [ HIS ] (SIC) FACTUAL ALLEGATIONS TO THEREBY ESTABLISH THE RIGHT TO RELIEF. II. WHETHER (AS ALLEGED BY PETITIONER), [SIC] HE WAS DEPRIVED OF THE SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF CONFLICT-FREE REPRESENTATION IN THE TRIAL COURT PHASE OF THE CRIMINAL PROCEEDINGS. These assignments lack merit. Defendant contends that the trial court erroneously denied him an evidentiary hearing and improperly found that he did not receive ineffective assistance of counsel. 2 Defendant has appended photocopies of affidavits from defendant, his mother, and the victim, for the first time to his brief on appeal. These materials cannot be considered because they were not filed in, or considered by, the trial court. State v. Ishmail (1978), 54 Ohio St.2d 402. -4- It is well established, however, that an evidentiary hearing is not required on every PCR Petition. Trial courts are required to grant evidentiary hearings only when the petitioner supports his petition with evidentiary materials setting forth sufficient operative facts to demonstrate grounds for relief. State v. Jackson (1980), 64 Ohio St.3d 107, 113. Defendant's self-serving statements in this case were not sufficient to show that defense counsel was ineffective, that his performance was deficient, or that defendant suffered any prejudice. It is well established that licensed counsel is presumed competent and that defendant must produce evidence to establish a claim to the contrary. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. We note initially that defendant's verified PCR Petition did not contain his newly minted claims that counsel failed to discuss the case with him or that counsel stated defendant would receive the maximum sentence if found guilty. Because defendant did not properly raise these claims in the trial court, he cannot raise them for the first time on appeal. The bulk of defendant's PCR Petition related to the victim's alleged recantation of testimony. As noted above, however, the trial court concluded that she recanted her testimony in the other pending criminal case (CR-311200), but not the case at bar (CR- 310192). (Findings of Fact and Conclusions of Law at p. 3). This conclusion is supported by the transcript of the guilty plea hearing, specifically in excerpts defendant filed in support of his -5- PCR Petition (Recorded at Vol. 1526, Pages 656 and 658). Defendant has not filed a complete transcript of his guilty plea hearing or any other basis to challenge the trial court's finding. Moreover, defendant's contention that he did not know of the victim's recantation prior to pleading guilty is belied by the record. The record unambiguously shows that, in the presence of defendant prior to the plea and in open court, counsel discussed the victim's recantation. Even if defense counsel did not discuss this matter with defendant prior to the hearing as he contends, defendant was fully informed before he pled guilty. Defendant's remaining argument is that defense counsel improperly failed to seek a psychological examination of defendant. The record, however, contains no basis to support this claim. The only support for this argument is defendant's statement that while in jail awaiting trial he was taking medications. Without medical testimony concerning defendant's condition, there is no basis to conclude that defense counsel should have sought a competency evaluation or that his failure to do so resulted in any prejudice. Accordingly, defendant's two assignments of error are overruled. Judgment affirmed. -6- 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. DYKE, P.J., and LEO M. SPELLACY, J., CONCUR. 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 -7- 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 .