COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72740 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CHARLES WILSON : : Defendant-appellant : : : : DATE OF ANNOUNCEMENT : MAY 14, 1998 OF DECISION : : CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. CR-309,730 : (Post-conviction) : JUDGMENT : AFFIRMED. : DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor DANIEL M. MARGOLIS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: CHARLES WILSON, pro se Inmate No. 292-751 Madison Correctional Institute Post Office Box 740 London, Ohio 43140-0740 JOHN T. PATTON, J.: Appellant appeals the trial court's denial of his petition for postconviction relief, which asked the court to vacate or set aside -2- his sentence of fifteen years to life resulting from a guilty plea, on the grounds of ineffective assistance of counsel. Because appellant failed to carry his burden by submitting evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel, and the fact that the defense was not prejudiced by counsel's ineffectiveness, we affirm the trial court's dismissal of appellant's petition for post-conviction relief. In addition, because appellant did not meet his burden to show error by reference to matters in the record, we are unable to find that the trial court did not substantially comply with Crim.R. 11, and we must overrule that aspect of appellant's assignment of error. The judgment of the Cuyahoga County Court of Common Pleas is affirmed. On January 4, 1994, Andross Sheperd was shot and killed by Alonzo Harris as the result of an argument immediately following the armed robbery of Sheperd by Harris, Mike Nichole, Kevin Ballard and appellant Charles Wilson. On May 3, 1994, as a result of this crime, appellant was indicted in a three-count indictment: Counts One and Two were for Aggravated Murder (R.C. S 2903.01) in the death of Andross Sheperd, both counts with firearm specifications. R. 2. Count Three was for Aggravated Robbery (R.C. S 2911.01), also with a firearm specification. R. 2. [Appellant, a seventeen-year-old- juvenile, had been bound over from Juvenile Court on April 8, 1994. R. 1.] Appellant was assigned counsel and entered a plea of not guilty. R. 5. -3- As a result of plea negotiations with the prosecutor, appellant entered a plea of guilty on June 27, 1994, to Count Two of an amended indictment, for Complicity to Commit Murder (R.C. S 2923.03[A][2]), and Murder (R.C. S 2903.02). R. 6. This plea was entered in open court with appellant's counsel present after appellant was advised of his constitutional rights. R. 6. The remaining counts of the indictment were nolled. The plea was accepted by the court, and appellant was sentenced to fifteen years to life. R. 6. Two years later, on September 23, 1996, appellant filed a petition for post-conviction relief, pursuant to R.C. S 2953.21, on the grounds of ineffective assistance of counsel. R. 7. Appellant's petition for post-conviction relief and an evidentiary hearing was denied by the trial court on October 21, 1996. R. 9. The court filed Findings of Fact and Conclusions of Law on June 4, 1997. R. 10. Appellant appealed pro se to this court on June 24, 1997. Appellant's sole assignment of error states: DEFENDANT/APPELLANT WAS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AND DENIED DUE PROCESS IN VIOLATION OF ARTICLE I, SECTIONS 10, 16, AND 19 OF THE OHIO CONSTITUTION, AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY AND THROUGH A CONVICTION WHICH WAS OBTAINED BY A PLEA OF GUILTY THROUGH AN AGREEMENT WHICH WAS UNLAWFULLY INDUCED AND/OR NOT MADE VOLUNTARILY WITH THE UNDERSTANDING OF THE NATURE OF THE AGREEMENT AND THE CHARGE AND THE CONSEQUENCES OF THE PLEA, PURSUANT TO CRIMINAL RULE 11(C)(2). -4- The court will treat the two aspects of appellant's assignment of error separately: 1) his Crim.R. 11(C)(2) claim; and 2) his claim of ineffective assistance of counsel, raised in his petition for postconviction relief. Appellant also claims, in the body of his brief, that he was improperly denied an evidentiary hearing on his motion for postconviction relief. App. Brief at 7-8. CRIMINAL RULE 11(C)(2) We will first address appellant's Crim.R. 11(C)(2) claim. Appellant apparently claims that the trial court failed to inform him, in accepting his plea, that he was waiving his right to have the state prove his guilt beyond a reasonable doubt at a trial at which he could not be compelled to testify against himself. App. Brief at 8. Rule 11 of the Ohio Rules of Criminal Procedure states that: In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for parole. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him of and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have -5- compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. Crim.R. 11(C)(2). This court has stated that Crim.R. 11(C) was adopted in order to safeguard a criminal defendant's constitutional rights under the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution. State v. Holder (1994), 97 Ohio App.3d 486, 489. Where a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily made in order for it to pass appellate review. State v. Engle (1996), 74 Ohio St.3d 525, 527. The dictates of Crim.R. 11 concerning the waiver of constitutional guarantees must be strictly complied with before it can be determined that a plea has been given knowingly. State v. Jones (Sept. 22, 1994), Cuyahoga App. No. 65160, unreported, at 4. But the trial court is not required to use the exact language contained in Crim.R. 11(C) when it explains the defendant's constitutional rights in a manner reasonably intelligible to the defendant. State v. Anderson (1995), 108 Ohio App.3d 5, 11. The taking of a plea ordinarily will be affirmed on appeal so long as the reviewing court determines that the trial court did substantially comply with the requirements of Crim.R. 11. State v. Scott (1996), 113 Ohio App.3d 401, 403. In order to vacate a guilty plea, in other words, we have reasoned that a reviewing court must find that the trial court did not substantially comply with Crim.R. 11. Holder, 97 Ohio App.3d at 490. -6- Adherence to the provisions of Crim.R. 11(C)(2) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea of guilty or no contest. Engle, 74 Ohio St.3d at 527 (quoting State v. Caudill (1976), 48 Ohio St.2d 342 (syllabus)). In the Caudill case, the Supreme Court reversed a conviction for aggravated murder where defendant's lawyers had prepared a written plea statement that recited defendant understood his rights under Crim.R. 11(C)(2). Id. The trial court had simply asked the defendant whether he understood everything in the written statement. Id. This was found to be insufficient under Crim.R. 11(C)(2). Id. Unfortunately, in the cause sub judice, appellant has failed to provide us with a transcript of the trial court's acceptance of his guilty plea. We are thus unable to review the court's dialogue with appellant in order to determine whether the trial court did not substantially comply with Crim.R. 11. Holder, 97 Ohio App.3d at 490. The court's journal entry of June 27, 1994, does record that appellant appeared in open court with counsel and was fully advised of his constitutional rights. R. 6. Appellant retracted his former plea of not guilty, and pleaded guilty to Count Two of the indictment, as amended. Id. The appellant has the duty of providing a transcript for appellate review because the burden is necessarily on the appellant to show error by reference to matters in the record. State v. Roberts (1991), 66 Ohio App.3d 654, 657 (citing Knapp v. Edwards Lab. [1980], 61 Ohio St.2d 197, 199). See, also, App.R. 16(A)(3) -7- and (A)(7). In the absence of all the relevant evidence, the reviewing court must presume the regularity of the proceedings below. State v. Prince (1991), 71 Ohio App.3d 694, 698. See, also, Roberts, 66 Ohio App.3d at 657; Ratchford v. Proprietors' Ins. Co. (1995), 103 Ohio App.3d 192, 198. Lacking a transcript necessary for the resolution of the assigned error, we have nothing to pass upon and we have no choice but to presume the validity of the lower court's proceedings. Knapp, 61 Ohio St.2d at 199. A criminal defendant must suffer the consequences of nonproduction of an appellate record where such nonproduction is his own fault. State v. Jones (1994), 71 Ohio St.3d 293, 297. Thus, we are compelled to overrule this aspect of appellant's assignment of error. INEFFECTIVE ASSISTANCE OF COUNSEL We next move to appellant's claim of ineffective assistance of counsel. Appellant contends that he was coerced into a guilty plea by his defense counsel. App. Brief at 4. He asserts that defense counsel told him that counsel would not consider taking the case to trial. Id. He further asserts that counsel told him that he had no other choice but to take the prosecutor's offered plea agreement, which would result in a sentence of fifteen years to life, or else he would go to prison for thirty years when convicted at trial. Id. The Supreme Court of the United States outlined the standard test for ineffectiveness of counsel in Strickland v. Washington -8- (1984), 466 U.S. 668. A court deciding an ineffectiveness claim must first judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. Strickland, 466 U.S. at 690. The Court stated that counsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. The Court went on to state that any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance. Id. at 692. The second factor under Strickland, then, is that the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. The Strickland test was applied to guilty pleas in Hill v. ockhart (1985), 474 U.S. 52. First, appellant must show that his ounsel's performance was deficient. State v. Xie (1992), 62 Ohio t.3d 521, 524 (quoting Strickland, 466 U.S. at 687). Second, ppellant must show that there is a reasonable probability that, but or counsel's errors, he would not have pleaded guilty. Xie, 62 hio St.3d at 524 (quoting Hill, 474 U.S. at 59). A person who is convicted of a criminal offense and who claims hat there was such a denial or infringement of the person's rights s to render the judgment void or voidable on federal or state onstitutional grounds may file a petition for postconviction relief n the trial court. R.C. S 2953.21. Appellant filed such a etition on the grounds of ineffective assistance of counsel, which -9- etitio n was denied below. R. 9. Appellant alleges that he was mproperly denied an evidentiary hearing on his motion for ostconviction relief because his petition raised material issues hich were founded on evidence outside the record. App. Brief at -8. In a petition for post-conviction relief, which asserts neffective assistance of counsel, the petitioner bears the initial urden of submitting evidentiary documents containing sufficient perative facts to demonstrate the lack of competent counsel and hat the defense was prejudiced by counsel's ineffectiveness. State . Jackson (1980), 64 Ohio St.2d 107 (syllabus). As in Jackson, the ssuebefore us is whether the trial court properly dismissed the appellant's] petition for post-conviction relief on the allegation f ineffective assistance of counsel without conducting an eviden- iary hearing. Jackson, 64 Ohio St.2d at 109. The Jackson court pointed out that R.C. S 2953.21(C) directs he trial court to determine whether there are substantive grounds or relief before granting a hearing. Id. In making such a etermination, the court considers the petition, the supporting ffidavits, and the files and records of the case. Id. at 110. The efendant has the burden of proof in an effective assistance of ounsel case because a properly licensed attorney is presumed to be thical and competent. Id. at 110-111; State v. Smith (1987), 36 hio App.3d 162, 163. In addition, a guilty plea allegedly coerced y defense counsel involves actions over which the state has no -10- ontrol. State v. Kapper (1983), 5 Ohio St.3d 36, 38, cert. denied, 64 U.S. 856; State v. Poland (1984), 16 Ohio App.3d 303, 305. To carry his initial burden, a defendant must submit eviden- iary documents apart from the bare allegations contained in his etition. Kapper, 5 Ohio St.3d at 39. The evidentiary documents ust establish the required elements of the ineffectiveness claim: demonstration of a lack of competent counsel and that the defense as prejudiced by counsel's ineffectiveness. Id. The Supreme Court f Ohio has held that, in the absence of a violation of Crim.R. 11, *** a petition for postconviction relief is subject to dismissal without a hearing when the record *** indicates that the petitioner is not entitled to relief, and that the petitioner failed to submit evidentiary documents contain- ing sufficient operative facts to demonstrate that the guilty plea was coerced or induced by false promises. d. at 38. See, also, Poland, 16 Ohio App.3d at 305. The court ound that a letter or affidavit from the court, prosecutors or efense counsel alleging a defect in the plea process would be ufficient to rebut the record on review and require an evidentiary earing. Id. No violation of Crim.R. 11 has been demonstrated to this court, s discussed previously. The only evidentiary documents submitted y appellant in support of his allegation that his plea was coerced ere three affidavits, signed by his mother, his father, and imself. R. 7. The trial court found that affidavits submitted by lose family members were insufficient, finding such evidence pecious and unreliable. R. 10. The Ohio Supreme Court in Kapper ound that a defendant's own self-serving affidavits alleging a -11- oerced guilty plea were insufficient to rebut a record which showed hat the plea was voluntary. Kapper, 5 Ohio St.3d at 38. See, lso, Poland,16 Ohio App.3d at 305. We agree with the court below nd cannot find that the court erred in finding these affidavits nreliable. Appellant failed to carry his burden by submitting evidentiary ocuments containing sufficient operative facts to demonstrate the ack of competent counsel and that the defense was prejudiced by ounsel's ineffectiveness. Jackson, 64 Ohio St.2d at 107. As noted bove, counsel is strongly presumed to have rendered adequate ssistance. Strickland, 466 U.S. at 690. Appellant has not vercom e that presumption. In addition, to show prejudice, ppellant must show that there is a reasonable probability that, but or counsel's alleged unprofessional conduct, he would not have leaded guilty, but would have gone to trial. Xie, 62 Ohio St.3d t 524; Hill, 474 U.S. at 59. All four defendants in the underlying case apparently entered leas of guilty. Harris entered a plea of guilty to aggravated urder and aggravated robbery and is serving a sentence of thirty ears to life. R. 10. Appellant claims that Ballard and Nichole ntered pleas that resulted in sentences of six to twenty-five years or aggravated robbery. App. Brief at 4. As indicted, appellant as facing a charge of felony murder, a capital offense, with the ossibility of the death penalty or life imprisonment. We do not ind a reasonable probability that appellant would have chosen to -12- o to trial, absent counsel's recommendation that the plea offer be ccepted. We find no merit in appellant's claim of ineffective assistance f counsel. We find that the trial court properly dismissed ppellant's petition for post-conviction relief on the allegation f ineffective assistance of counsel without conducting an eviden- iary hearing. We overrule both aspects of appellant's assignment of error and ffirm the trial court's dismissal of appellant's petition for post- onvictio n relief. The judgment of the Cuyahoga County Court of ommon Pleas is affirmed. -13- 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 direct ing the Court of Common Pleas 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. SPELLACY, J., CONCUR. JUDGE JOHN T. PATTON 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 .