COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72288 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION LAZARO DELGADO : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CR-330443. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor George J. Sadd Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Lazaro Delgado, pro se #304-397 Madison Correctional Institution P.O. Box 740 London, Ohio 43140-0740 -2- SWEENEY, JAMES D., J.: Defendant-appellant Lazaro Delgado ( Delgado ), pro se, appeals from the denial of his petition for postconviction relief (PCR) pursuant to R.C. 2953.21 without benefit of an evidentiary hearing. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Delgado pled guilty on March 18, 1996, to an amended count of aggravated drug trafficking (R.C. 2925.03) in an amount greater than 3 times bulk amount, but less than 100 times bulk amount, and was sentenced to a term of 4 to 15 years imprisonment, with 3 years actual1. It was explained by the court at the plea hearing that the imposed sentence would be served concurrent to the 5 to 15 year sentence in another unrelated case Delgado was already serving at the time of the hearing. Delgado took no direct appeal from this plea and conviction. On October 28, 1996, Delgado filed his petition seeking postconviction relief with the trial court. Attached to this petition were unauthenticated copies of various exhibits and affidavits, all of which were not executed (by the affiants and a notary public) except for the petitioner's. Delgado, acting pro se, filed a number of motions with the petition, which basically formed the grounds for his petition, namely: (1) to withdraw his 1Delgado was originally indicted for aggravated trafficking in an amount exceeding one hundred times bulk amount. Delgado's co-defendant, Mr. Jesus Abreu, was subsequently convicted at trial of Drug Law violations and received a sentence of 33 years actual to life. Mr. Abreu's convictions were affirmed in State v. Delgado (April 24, 1997), Cuyahoga App. No. 70450, unreported. -3- guilty plea because it allegedly did not comply with Crim.R. 11 and to correct an allegedly manifest injustice pursuant to Crim.R. 32.1; (2) to vacate his sentence pursuant to R.C. 2953.21 due to ineffective assistance of trial counsel, prosecutorial misconduct and gross abuse of discretion by the trial court; (3) to appoint counsel to help petitioner pursue postconviction relief; (4) to appoint expert assistance in the form of a translator [Delgado is of Cuban descent and allegedly has a poor command of the English language which deprived him of understanding his plea and aiding his counsel in his defense]; and, (5) to provide the transcripts and court records of his case without cost to the petitioner so that he could pursue his petition. On February 10, 1997, the prosecutor filed his brief in opposition to the petition. On March 4, 1997, Delgado filed a motion for leave to amend his previously filed petition, which leave motion was in actuality a reply brief to the prosecutor's brief in opposition. The trial court issued its Findings of Fact and Conclusions of Law, denying the petition without an evidentiary hearing, on March 6, 1997. R.C. 2953.21 provides in pertinent part: Petition for postconviction relief. (A)(1) Any person who has been convicted of a criminal offense *** who claims 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 in the court that imposed 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 a supporting affidavit -4- and other documentary evidence in support of the claim for relief. * * * (C) *** 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. *** If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. * * * (E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues ***. * * * (I) The remedy set forth in this section is the exclusive remedy by which a person may bring a collateral challenge to the validity of a conviction or sentence in a criminal case. *** The standard of review for postconviction relief is set forth in State v. Perry (1967), 10 Ohio St.2d 175. Under the doctrine of res judicata, a final judgment of conviction bars a defendant who had counsel from raising and litigating in any proceeding, except in an appeal from that judgment, any defense or claim of lack of due process that was raised or could have been raised by the defendant at trial or on direct appeal. Id. at paragraph nine of the syllabus. Furthermore, in State v. Nichols (1984), 1 Ohio St.3d 40, the Supreme Court of Ohio opined, " *** post-conviction -5- relief is not available until such time as conventional appellate relief has been sought." Id. at 42. See, also, State v. Blount (Aug. 26, 1993), Cuyahoga App. Nos. 65095, 65096, unreported ("It is well established that [postconviction relief] petitions are not appropriate substitutes for direct appeals."); State v. Dawson (Jan. 21, 1993), Cuyahoga App. No. 61828, unreported (trial court properly dismissed petition as moot because an appeal had not been attempted); State v. Moore (Mar. 12, 1992), Cuyahoga App. No. 62411, unreported (trial court properly held that defendant must first exhaust conventional appellate relief); State v. Wilson (Mar. 5, 1992), Cuyahoga App. No. 59983, unreported ("A petition for post-conviction relief is not appropriate until the petitioner's direct appeal has been decided."). This court, however, in State v. Gibson (1980), 69 Ohio App.2d 91, held that a petition for postconviction relief is the appropriate remedy for ineffective assistance of counsel claims based on facts dehors the record. The Gibson court reasoned that it would be unreasonable to require a defendant to initiate a direct appeal on issues dehors the record when an appellate court is barred from addressing those issues on direct appeal. Id. at paragraph three of the syllabus. Accord State v. Brooks (Oct. 31, 1991), Cuyahoga App. No. 59724, unreported. Absent a showing of abuse of discretion, a reviewing court will not overrule the trial court's finding on a petition for postconviction relief which is supported by competent and credible evidence. State v. Mitchell (1988), 53 Ohio App.3d 117, 559 N.E.2d -6- 1370; see, also, State v. Williams (1991), 74 Ohio App.3d 686, 600 N.E.2d 298. This court presumes regularity in the proceedings below. State v. Edwards (1987), 31 Ohio App.3d 114, 508 N.E.2d 1046. With regard to whether an evidentiary hearing should have been afforded the petitioner, the following was stated in State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169: Appellant argues *** that he should have been afforded a hearing on his claim. A criminal defendant seeking to challenge his conviction(s) through a petition for postconviction relief, is not, however, automatically entitled to such a hearing. State v. Jackson (1980), 64 Ohio St.2d 107, 110 [18 O.O.3d 348]. Indeed, the trial court has a statutorily imposed duty to ensure that the petitioner adduces sufficient evidence to warrant a hearing. As R.C. 2943.21(C), in pertinent part, provides "Before granting a hearing [on a petition for postconviction relief] the court shall determine whether there are substantive grounds for relief." See, also, State v. Kapper (1983), 5 Ohio St.3d 36, 448 N.E.2d 823; State v. Pankey (1981), 68 Ohio St.2d 58, 428 N.E.2d 413. This rule of law was stated again in State v. Shugar (May 21, 1992), Cuyahoga App. No. 62536, unreported, as follows: It is well-settled that a trial court may deny a petition for post conviction (sic) relief *** without conducting an evidentiary hearing when defendant fails to submit sufficient evidentiary materials and the record demonstrates defendant is not entitled to relief. See, also, State v. Ledger (1984), 17 Ohio App.3d 94, 477 N.E.2d 643. The five assignments of error provide: -7- I COURT ON POST-CONVICTION DISMISSED PETITIONER'S PETITION WHICH WAS AN ERROR, WHEN PETITIONER RIGHTS WERE VIOLATED, HE FILED A MOTION TO WITHDRAW PURSUANT TO CRIM.R. 11, INCLUDING AFFIDAVITS SUPPORTING HIS CLAIM, BUT WAS NOT GRANTED A HEARING BEFORE DECISION WAS RENDERED DENYING HIS PETITION PURSUANT TO S2953.21(C). ALTHOUGH FILES AND RECORDS OF THE CASE DID NOT SHOW THAT PETITIONER WAS NOT ENTITLED TO RELIEF AND PURSUANT TO S2953.21(E), COURT SHOULD HAVE HELD AN EVIDENTIARY HEARING PROMPTLY ON THE ISSUES. II COURT WAS IN ERROR WHEN IT DIDN'T ALLOW PETITIONER TO WITHDRAW HIS GUILTY PLEA PURSUANT TO CRIM.R. 32.1 WHEN HIS CLAIM DID APPLY TO THE OHIO REV. CODE S2953.21(G) IN ORDER TO CORRECT MANIFEST INJUSTICE. III COURT WAS IN ERROR WHEN PETITIONER OFFER (sic) EVIDENCE OF TRIAL COUNSEL BEING INEFFECTIVE, DEFENDANT-PETITIONER-APPELLANT NOTIFIED COURT OF COUNSEL'S INEFFECTIVENESS IN ADVANCE OF HEARING THAT HE WAS A CUBAN IMMIGRANT WITHOUT COMMAND OF ENGLISH WHO NEEDED A TRANSLATOR, THAT HE HAD REQUESTED TRANSLATOR OF COUNSEL DUE TO LACK OF HIS UNDERSTANDING PROCEEDINGS, AND COUNSEL WAS NOT ADVISING AND COMMUNICATING WITH DEFENDANT-PETITIONER-APPELLANT, AND THAT COUNSEL HAD FAILED IN AN ESSENCTIAL (sic) DUTY WHICH PREJUDICED HIS CLIENT PRIOR TO AND DURING PLEA HEARING. IV TRIAL COUNSEL (ANTHONY J. VEGH, REG NO. 0039603) WAS INAPROPRIATELY (sic) INEFFECTIVE AS COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I SS10 & 16 OF THE CONSTITUTION OF THE STATE OF OHIO WHEN HE TOLD PETITIONER THAT IF HE DID NOT PLEA (sic) GUILTY HE WOULD BE SENTENCED TO 20 YEARS TO LIFE, AND THAT IF PLEA OF GUILTY WAS ACCEPTED SENTENCE WOULD RUN CONCURRENT AND DEFENDANT-PETITIONER-APPELLANT WOULD STILL BE ALLOWED TO HAVE HIS FIRST PAROLE BOARD DATE ON -8- MAY 1, 2000. BUT INSTEAD PETITIONERS (sic) PAROLE BOARD DATE WAS RESCEDULED (sic) FOR OCTOBER 1st., 2003. V PETITIONER SHOULD HAVE BEEN BUT WAS NOT GIVEN OPPORTUNITY TO SHOW AT AN EVIDENTIARY HEARING ON POST-CONVICTION, THAT HE WAS DECEIVED INTO PLEADING GUILTY TO CHARGES FOR WHICH STEM FROM AN INDICTMENT FROM A SEARCH WARRANT AN (sic) A CONFESSION WHERE NO EVIDENCE THAT COULD HAVE BEEN OFFERED AT TRIAL IN WHICH A REASONABLE MINDED TRIER OF FACTS (sic) COULD HAVE FOUND THE DEFENDANT GUILTY BEYOND ALL REASONABLE DOUBT. The threads of the assignments presented weave themselves in a somewhat overlapping cloth, with parts of one assignment interminglingwith other assignments. To paraphrase the arguments presented, appellant argues the following: 1. That based on his supporting documents attached to the petition, the court should have conducted an evidentiary hearing on whether to permit the withdrawal of his guilty plea because he did not understand the effect of his plea due to his allegedly poor command of the English language at the time of the plea hearing, rendering the plea to be not knowingly and intelligently made. (See First Assignment of Error.) 2. The plea hearing produced a manifest injustice under Crim.R. 32.1 through the alleged inability of the defendant to understand the English language and the alleged ineffective assistance of trial counsel in the plea process to communicate with the client and/or obtain a translator for the plea hearing. (See Second Assignment of Error.) 3. Trial counsel was ineffective in not having a translator at the plea hearing which prevented the defendant from understanding the plea. (See Third Assignment of Error.) -9- 4. That defense attorney Albert Juliani, while representing defendant in a criminal case in Lorain County, made misrepresentations concerning parole dates to prompt a guilty plea in the Lorain County case. A similar misrepresentation concerning parole dates was also allegedly made by trial counsel in the case sub judice, which deception was used as a consideration by defendant in deciding to plead guilty in violation of Crim.R. 11. (See Fourth Assignment of Error.) 5. That evidence seized under color of a faulty search warrant would have been suppressed at a trial because he did not allegedly live at the address which was the subject of the warrant. That two very limited excerpts from the statements of prosecution witnesses, which place the defendant at the scene of the offenses on a couple of dates, could not have been produced at a trial to convict him because the excerpts relied upon by petitioner contain inconsistencies which are at odds with his version of the evidence (appellant claims he was in county jail on these two particular dates and could not have been at the scene of the offenses) and which would allegedly preclude a guilty verdict by a jury had it gone to trial. (See Fifth Assignment of Error.) In reviewing the claims of petitioner against the record, which includes the transcript of the plea hearing, it is evident that Crim.R. 11 was fully complied with and that defendant demonstrated no proof that the plea hearing was suspect or his understanding of the proceeding compromised because of an alleged lack of sophistication with the English language. The filings of the defendant and the plea transcript demonstrate otherwise. Also, his understanding of the plea due to a language failure could have been, and should have been, raised on direct appeal. State v. Perry, supra. Appellant's failure to do so invokes the doctrine of res judicata, precluding postconviction relief. Id. -10- As to the alleged ineffective assistance of trial counsel, it is commonly understood that when a defendant asserts a claim of ineffective assistance of counsel in a petition for postconviction relief, the defendant bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his counsel's ineffectiveness and the fact that he was prejudiced thereby. State v. Jackson (1980), 64 Ohio St.2d 107, syllabus. However, the only evidence attached to and referenced in appellant's petition relative to trial counsel's alleged ineffectiveness was an unexecuted, un-notarized copy of trial counsel's purported affidavit. This evidence does not satisfy petitioner's burden under Jackson and Kapper. Accordingly, appellant has not demonstrated that he is entitled to an evidentiary hearing on the petition. Finally, putting the very limited excerpts of alleged prosecution evidence aside, the petition contains no documentary evidence outside the record upon which to base his conclusion that he would not have been convicted of the original indictment had it gone to trial. Mere reliance on the limited excerpts do not, without more, provide sufficient evidence to overcome the petitioner's burden to show that the result of the verdict would have been otherwise. At best, the very limited excerpts merely demonstrate an alleged inconsistency in the parties' evidence, which may, or may not, have been used at trial. Even had it been used at trial, the fact that appellant did not live at the stash house which was the subject of the search warrant does not -11- automaticallypreclude a jury from finding that he was involved in a drug trafficking enterprise emanating from the stash house. Also, there was no Kapper evidence attached to the petition conclusively proving that appellant was in county jail on two dates in contravention of a purported prosecution witness's statement. Similarly, the discrepancy in the appellant's location on two dates does not preclude a finding that appellant was involved in the drug trafficking enterprise. Accordingly, the court did not err in declining to conduct an evidentiary hearing on the petition. Assignments overruled. 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. Exceptions. ANN DYKE, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .