COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72483 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ROBERT S. AUSTIN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CR-297825. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Daniel M. Margolis, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert A. Dixon, Esq. 1280 W. 3rd Street Suite 100 Cleveland, OH 44113 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Robert S. Austin, appeals from the decision of the Cuyahoga County Court of Common Pleas which denied his petition for post-conviction relief and dismissed the petition -2- without an evidentiary hearing. For the reasons stated below, we affirm. The facts pertinent to this appeal are as follows. On June 4, 1993, in Parma Heights, Ohio, Frances Beauchesne claimed that an assailant, using a gun, attempted to rob her as she exited her car at a supermarket. Appellant was apprehended by the police and charged in Cuyahoga County Common Pleas Court with Aggravated Robbery, R.C. 2911.01; Robbery, R.C. 2911.02; and Possession of Criminal Tools, R.C. 2923.24. Counts one and two of the indictment contained aggravated felony specifications and count three contained a violence specification. At appellant's request, the matter was bifurcated for trial. The jury found appellant guilty on all three counts and appellant stipulated to his guilt as to the aggravated felony specifications on counts one and two and to the violence specification on count three. Appellant was sentenced to a term of incarceration of fifteen to twenty-five years merged on counts one and two and to a term of one and one-half years to five years on count three. Appellant, represented by his original trial counsel, appealed his conviction and sentence which were affirmed by this court in State v. Austin (November 13, 1995), Cuyahoga App. No. 68478, unreported.1 On September 20, 1996, appellant filed a Petition to Vacate or Set Aside Sentence pursuant to R.C. 2953.21. On November 20, 1996, 1On direct appeal, appellant advanced one assignment of error as follows: The trial court abused its discretion by sentencing defendant to a maximum term without considering the factors present in R.C. 2929.12. -3- the trial court denied appellant's petition without hearing. On March 19, 1997, appellant moved the court to issue findings of fact and conclusions of law pursuant to R.C. 2953.21(C). The trial court entered its judgment incorporating its findings of fact and conclusions of law on April 14, 1997. Appellant timely appeals and advances his sole assignment of error for our review. THE LOWER COURT ERRED IN DISMISSING THE APPELLANT'S "PETITION TO VACATE OR SET ASIDE JUDGMENT" WITHOUT HEARING THEREON. Appellant argues that the trial court committed reversible error in overruling his petition without a hearing. Specifically, appellant contends that his affidavit as submitted with his petition is required to be accepted as true and that he was denied the opportunity to testify at his trial by virtue of the comments of his trial counsel. Appellant asserts that his affidavit remained unrefuted and, consequently, this unrefuted claim of the deprivation of such a basic and substantial right entitles him to a hearing on the issue. The state, on the other hand, argues that the trial court properly complied with the mandates of the statute; found that there were no substantive grounds for relief; found that a hearing was not warranted, and properly issued Findings of Facts and Conclusions of Law. Further, the state contends that the issue of ineffective assistance of counsel is barred by the doctrine of res judicata. R.C. 2953.21 provides in pertinent part: (A)(1) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's -4- 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 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. 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. * * * (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 even if a direct appeal of the case is pending. If the court notifies the parties that it has found grounds for granting relief, either party may request an appellate court in which a direct appeal of the judgment is pending to remand the pending case to the court. Initially, we note that our review of petitioner's claim of ineffective assistance of counsel is not barred by the doctrine of res judicata. Appellant was represented by the same counsel at trial and on direct appeal. Appellant did not raise the claim of -5- ineffective assistance of counsel in his direct appeal. See State v. Austin (November 13, 1995), Cuyahoga App. No. 68478, unreported. Res judicata cannot act as a bar to the claim of ineffective assistance because counsel cannot be expected to raise his own incompetence. State v. Lentz (1994), 70 Ohio St.3d 527; State v. Pocius (1995), 104 Ohio App.3d 18; State v. Josso (August 22, 1996) Cuyahoga App. Nos. 70350, 70351, 70352, unreported. Where the claim of incompetent counsel was not raised and adjudicated on a direct appeal, res judicata does not bar the adjudication of that issue in post-conviction proceedings. State v. Cooperrider (1983), 4 Ohio St.3d 226; State v. Hamed (1989), 63 Ohio App.3d 5. It is well settled that a hearing is not automatically required to be held whenever a petition for post-conviction relief is filed. State, ex rel Jackson v. McMonagle (1993), 67 Ohio St.3d 450; State v. Apanovitch (1996), 113 Ohio App.3d 591. The pivotal concern, in determining whether to grant hearing on motion for post-conviction relief, is whether there are substantive grounds for relief which would warrant hearing based upon petition, supporting affidavit, and files and records of the case. State v. Swortcheck (1995), 101 Ohio App.3d 770; State v. Strutton (1988), 62 Ohio App.3d 248. A petition is subject to dismissal without a hearing when the record indicates that the petitioner is not entitled to relief and the petitioner failed to submit evidentiary documents containing sufficient operative facts entitling him to relief. State v. Kapper (1983), 5 Ohio St.3d 36. When determining whether there are substantive grounds for post-conviction relief -6- that would warrant hearing, affidavits offered in support of petition should be accepted as true and need only present sufficient prima facie evidence to sustain hearing. State v. Strutton, id. Where a petition for post-conviction relief fails to allege facts which, if proved, would entitle the petitioner to relief, the trial court may so find and summarily dismiss the petition. State v. Perry (1967), 10 Ohio St.2d 175, paragraph two of the syllabus. State v. Lott (Nov. 3, 1994), Cuyahoga App. Nos. 66388, 665389, 66390, unreported. Moreover, in a petition for post-conviction relief, where petitioner asserts ineffective assistance of counsel, he bears the initial burden to submit evidence to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness; and, until he has done so, no evidentiary hearing is required. State v. Pankey (1981), 68 Ohio St.2d 58; State v. Jackson (1980), 64 Ohio St.2d 107. In Ohio, an attorney properly licensed to practice law is presumed to execute his duties in an ethical and competent manner. In order to overcome this presumption of effective assistance, a petitioner in a post-conviction relief proceeding must submit sufficient operative facts or evidentiary material which, if proven, would show petitioner was prejudiced by said ineffective assistance of counsel. State v. Smith (1987), 36 Ohio App.3d 162. Appellant, in his petition, advanced two claims for relief. First, appellant alleged that he was denied his right to testify at trial on his own behalf, thereby denying his Fifth, Sixth and -7- Fourteenth Amendment rights; and second, that he was denied effective assistance of counsel for his counsel's failure to effect his desire to testify. Appellant supported the claims in his petition with his affidavit wherein he states that had he been permitted to testify at trial, he *** would have refuted the prosecution'switness to the effect that I told her to `move over' as she sat in her car. However, the trial court found that even if the one fact about the assailant's order to move over was refuted, it would leave unrefuted the victim's testimony to the effect the defendant brandished a firearm to gain entry to her auto. The trial court further found that the evidence at trial established each and every element of the three offenses charged in the indictment including defendant's brandishing of a gun when he approached the parked auto of the victim. We, therefore, find that the trial court did not abuse its discretion when it concluded that appellant's post-conviction evidence (his affidavit) was insufficient to establish his conviction as void or voidable. We further review appellant's claim that trial counsel's failure to effect his desire to testify deprived him of effective assistance of counsel. When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. *** First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed that defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that -8- counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. *** Strickland v. Washington (1984), 466 U.S. 668, 687. From the record before us, we conclude that where the trial court found that the unrefuted evidence presented at trial was sufficient to establish each and every element of the three offenses charged in the indictment, trial counsel's failure to effect appellant's desire to testify at his trial to refute the witness' statement that he told her to move over, did not prejudice his defense. Consequently, even if counsel violated an essential duty to appellant, no prejudice has been shown and an evidentiary hearing is not required. Accordingly, we find that the trial court did not abuse its discretion when it denied appellant's petition for post-conviction relief without a hearing where, even accepting as true the affidavit offered in support of the petition, appellant failed to present sufficient operative facts showing substantive grounds for relief. Judgment affirmed. -9- 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. ANN DYKE, P.J. and MICHAEL J. CORRIGAN, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .