COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72878 & 72879 STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND JAMES D. SULLIVAN : OPINION : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT : OCTOBER 15, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case Nos. CR-177185 and CR-176531 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Randi Marie Ostry, Esq. Assistant Prosecutor The Justice Center 1200 Ontario Street - 8th floor Cleveland, Ohio 44113 For defendant-appellant: Kenneth R. Spiert, Esq. 1717 Bethel Road Columbus, Ohio 43220 MICHAEL J. CORRIGAN, J.: James D. Sullivan, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal Division, Case Nos. CR-176531 and CR-177185, in which the trial -2- court dismissed defendant-appellant's R.C. 2953.21 petition for post-conviction relief. Defendant-appellant assigns five errors for this court's review. Defendant-appellant's appeal is not well taken. On September 23, 1982, the Cuyahoga County Grand Jury returned a two-count indictment against defendant-appellant, Case No. CR- 176531, in which defendant-appellant was charged with one count of aggravated burglary, in violation of R.C. 2911.11, and one count of gross sexual imposition, in violation of R.C. 2907.05. On November 4, 1982, the Cuyahoga County Grand Jury returned a second indictment against defendant-appellant, Case No. CR-177185, in which defendant-appellant was charged with the following offenses: two counts of aggravated burglary; two counts of gross sexual imposition; attempted gross sexual imposition; rape; in violation of R.C. 2907.02, and possession of criminal tools, in violation of R.C. 2923.24. Case No. CR-177185 involved criminal sexual offenses against two underage females in which defendant-appellant allegedly broke into the homes of the two girls at night and sexually molested each one as she slept. Defendant-appellant initially entered a plea of not guilty to all alleged offenses. On December 2, 1982, after a positive determination had been made regarding defendant-appellant's competency to stand trial, a plea agreement was reached regarding both cases. The trial court continued the plea hearing one day in order to allow defendant- appellant the opportunity to confer with his family regarding the proposed plea agreement. -3- On December 3, 1982, defendant-appellant entered a plea of guilty to the following offenses: gross sexual imposition in Case No. CR-176531; aggravated burglary; two counts of gross sexual imposition; attempted gross sexual imposition; and attempted rape in Case No. CR-177185. All remaining charges were nolled by the state. The trial court then sentenced defendant-appellant to an indefinite term of one to five years in Case No. CR-176531. In Case No. CR-177185 defendant-appellant was sentenced as follows: five to twenty-five years on count one; one and one-half to ten years on count two; one to five years on count five; three to fifteen years on count seven; and one and one-half to ten on count eight. The sentences on counts one and two were concurrent with one another; the sentence in count five was to be served consecutivelyto the sentences in counts one and two; the sentence in count seven was to be served consecutively to count five; and count eight was to be served concurrent with count seven. All sentences in Case No. CR-177185 were ordered to be served consecutively with the sentence in Case No. CR-176531. On October 10, 1989, this court granted defendant-appellant's motion for leave to file a delayed appeal. On May 9, 1991, this court affirmed defendant-appellant's convictions. See State v. Sullivan (May 9, 1991), Cuyahoga App. No. 58427, unreported. On September 20, 1996, defendant-appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21. On October 31, 1996, defendant-appellant filed an amended petition for post- -4- conviction relief and finally, on December 6, 1996, defendant- appellant filed his second amended petition for post-conviction relief. The state responded with motions to dismiss defendant- appellant's petition for post-conviction relief in January and March of 1997. On June 24, 1997, the trial court granted the state's motion to dismiss and issued findings of fact and conclusions of law in support of its decision. On July 18, 1997, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. On appeal, defendant-appellant assigns five errors for this court's review. In the interest of judicial economy, this court will address defendant-appellant's second, third, fourth and fifth assignments of error prior to addressing the first assigned error. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT VIOLATED SULLIVAN'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND TO DUE PROCESS UNDER THE OHIO AND UNITED STATES CONSTITUTIONS BY DISMISSING SULLIVAN'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM WITHOUT A HEARING. Defendant-appellant argues, through his second assignment of error, that the trial court erred in dismissing his claim of ineffective assistance of counsel without first conducting an evidentiary hearing. Specifically, defendant-appellant maintains that he presented sufficient evidence to demonstrate that his trial counsel failed to conduct a reasonable investigation into the underlying charges and obtain discovery from the state prior to recommending that defendant-appellant accept the state's plea offer. Defendant-appellant maintains further that, had trial -5- counsel followed proper investigatory procedure, it would have become apparent that the state could not prove the elements of the offense of gross sexual imposition beyond a reasonable doubt. Defendant-appellant also argues that the trial court improperly applied the elements of the offense of rape in its analysis of the gross sexual imposition charges in the findings of fact and conclusions of law. Former R.C. 2953.21 set forth the procedure for filing petitions for post-conviction relief. The petitioner's entitlement to an evidentiary hearing was determined by subdivisions (C) and (E): (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 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 even if a direct appeal of the case is pending. Since an evidentiary hearing is not automatically required under R.C. 2953.21, the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavits and the files and records to this cause. State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819. Entitlement to a hearing depends on whether the petitioner presented evidence that contained -6- sufficient operative facts supporting the alleged grounds for relief. Id.at 111, 413 N.E.2d 819. Broad conclusory allegations are insufficient to entitle the petitioner to an evidentiary hearing. State v. Pankey (1981), 68 Ohio St.2d 58, 59, 428 N.E.2d 413. The test for prevailing on a claim of ineffective assistance of counsel requires a showing that: (1) counsel's assistance, considering all the circumstances, fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington (1983), 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. Courts should evaluate the conduct from counsel's perspective at the time. Id. at 689. The Strickland Court stated further: Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. (Citations omitted.) In this case, defendant-appellant maintains that he was deprived of his right to effective assistance of counsel since his trial counsel failed to adequately investigate the charges brought by the state as well as the alleged evidence underlying those charges. It is defendant-appellant's position that, had trial counsel done the proper investigation, he would have discovered that the state could not prove the elements of the offense of gross sexual imposition beyond a reasonable doubt. -7- Defendant-appellant bases his assertions upon an affidavit from a private investigator defendant-appellant had hired to investigate the case and the affidavit from one Sharon Mullen, whose vague relationship to the Ohio Adult Parole Authority is unexplained. Clearly, these affidavits, as well as the petition itself, do not contain sufficient operative facts to entitle defendant-appellant to an evidentiary hearing. It is apparent from the content of the affidavits that the trial court could have reasonably found that each lacked credibility due to the fact that the statements contained therein were based solely on hearsay information rather than personal knowledge and were sworn by a paid employee of defendant-appellant and an unknown third party who fails to explain the source of her alleged information. See State v. Moore (1994), 99 Ohio App.3d 748, 754, 651 N.E.2d 1319. In addition, even if one were to assume the truth of the facts as alleged in the affidavits, defendant-appellant has failed to demonstrate that, had trial counsel done the proper pre-trial investigation, there would have been a reasonable probability that the outcome of the proceedings would have been different in any way. See Strickland, 466 U.S. at 694. This is particularly true in light of the fact that defendant-appellant admitted to the truth of the charges during the plea hearing proceedings and was initially apprehended after being discovered in bed with one of the victims by the victim's father who detained defendant-appellant until the police arrived. See Crim.R. 11(B)(1). Under the totality of the circumstances, this court cannot now say that defendant- -8- appellant was deprived effective assistance of counsel prior to and during the plea negotiations and plea hearing itself. State v. Nicholson (July 24, 1997), Cuyahoga App. No. 71398, unreported. Finally, a review of the record demonstrates that the trial court did not, as defendant-appellant maintains, apply the elements of the offense of rape to its analysis of the gross sexual imposition charges. As the trial court correctly concluded, the alleged absence of semen on the underwear of one of the victims does not lead one to conclude that the state could not prove the essential elements of the indicted offense. Defendant-appellant's second assignment of error is not well taken. Defendant-appellant's third assignment of error states: III. THE TRIAL COURT VIOLATED SULLIVAN'S RIGHTS TO DUE PROCESS UNDER BRADY V. MARYLAND, 373 U.S. 83 (1962), AND THE OHIO CONSTITUTION WHEN IT DISMISSED HIS SECOND CLAIM FOR RELIEF UPON CONCLUDING THAT EVIDENCE WHICH DEMONSTRATES THE STATE'S INABILITY TO ESTABLISH ESSENTIAL ELEMENTS OF AT LEAST FOUR OFFENSES TO WHICH SULLIVAN PLEADED GUILTY IS NOT EXCULPATORY EVIDENCE WITHIN THE MEANING OF BRADY AND ITS PROGENY. Defendant-appellant argues, through his third assignment of error, that the trial court erred in dismissing his petition for post-conviction relief without conducting an evidentiary hearing. Specifically, defendant-appellant maintains that exculpatory evidence existed at the time of the plea hearing which was purposely not disclosed to the defense by the state. Defendant- appellant refers to an alleged negative test result on a rape test kit which his private investigator purportedly discovered as well -9- as the unsupported assertion that, when he was discovered in bed with one of the victims, defendant-appellant was merely sleeping with his arm draped over the underage girl's back. It is defendant- appellant's position that, had this information come to light at the time of the plea hearing, it would have altered the outcome of the proceedings since the state would not have been able to prove the essential elements of the indicted offense of gross sexual imposition. R.C. 2907.05, Ohio's gross sexual imposition statute, sets forth the elements of the offense as it relates to this matter as follows: (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: * * * (4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person. * * * R.C. 2907.01(B) defines sexual contact as follows: (B) Sexual contact means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. Clearly, assuming the truth of defendant-appellant's unsupported allegations regarding the rape test kit results and the position in which defendant-appellant was apprehended, it is apparent that the elements of the offense of gross sexual imposition could have been established had the matter proceeded to -10- trial. As the trial court correctly determined, *** the evidence they relate to is not truly exculpatory, in that it fails to establish that the crimes charged did not occur or that someone other than the defendant may have been the offender. A review of the entire record demonstrates that the alleged exculpatory evidence does not preclude a finding of guilt beyond a reasonable doubt as to the indicted offenses of gross sexual imposition. See State v. Schaim (1992), 65 Ohio St.3d 51, 600 N.E.2d 661. Accordingly, the trial court did not err in failing to conduct an evidentiary hearing based upon defendant-appellant's allegation that his due process rights were violated. Defendant-appellant's third assignment of error is not well taken. Defendant-appellant's fourth assignment of error states: IV. WHETHER THE TRIAL COURT VIOLATED SULLIVAN'S PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS BY DISMISSING SULLIVAN'S CLAIM THAT THE COURT BECAME IMPROPERLY INVOLVED IN THE PLEA BARGAINING PROCESS ON THE BASIS THAT THE THREAT OF MAXIMUM CONSECUTIVE SENTENCES IF SULLIVAN ELECTED TO GO TO TRIAL WAS NOT INDICATIVE OF PREJUDICE BUT WAS CONTINGENT UPON A GUILTY VERDICT AND INDICATIVE OF THE COURT'S ATTITUDE TOWARD THE OFFENSES CHARGED. Defendant-appellant maintains that the trial court erred in failing to conduct an evidentiary hearing on the issue of whether the trial court improperly threatened to impose maximum consecutive sentences on the indicted offenses had defendant-appellant chosen to proceed to trial, forced the underage victims to testify in court and the finder of fact returned a verdict of guilty. It is -11- defendant-appellant's position that the trial court's alleged threat amounted to a coerced and therefore invalid plea of guilty in the underlying case. Once again, defendant-appellant`s argument is premised upon his own self-serving affidavit and that of his brother as the only evidence of the trial court's alleged threat regarding the imposition of maximum consecutive sentences at the time of the underlying guilty plea. It is well established that self-serving declarations or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review that the guilty plea was constitutionally valid. State v. Kapper (1983), 5 Ohio St.3d 36, 38, 448 N.E.2d 823; State v. Freeman (July 3, 1997), Shelby App. Nos. 17-96-18, 17-96-19, unreported. Similarly, in the instant case, the hearsay statements presented by defendant-appellant do not constitute sufficient evidence to warrant an evidentiary hearing. As the trial court correctly determined in its findings of fact and conclusions of law, the alleged statement by the sentencing court was premised upon a guilty verdict should defendant-appellant choose a trial by jury and be convicted. Clearly, the statement, if uttered, reflected the sentencing court's attitude toward the indicted offenses rather than a threat designed to induce a guilty plea. Defendant-appellant's fourth assignment of error is not well taken. Defendant-appellant's fifth assignment of error states: V. THE TRIAL COURT VIOLATED SULLIVAN'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND -12- SEIZURES, AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS BY CONCLUDING: 1) THAT THE SEARCH WARRANT WITHSTANDS SCRUTINY BECAUSE THE MISSTATEMENT REGARDING THE McAULEY OFFENSE WAS SURPLUSAGE AND THE REMAINDER OF THE AFFIDAVIT WAS SUFFICIENT TO ESTABLISH PROBABLE CAUSE; 2) THAT THE FOURTH CLAIM IS BARRED BY THE DOCTRINE OF RES JUDICATA. Defendant-appellant argues, through his fifth assignment of error, that the trial court erred in concluding that the underlying search warrant was supported by an affidavit that was sufficient to establish probable cause given the alleged misstatements contained therein. Defendant-appellant maintains further that the trial court erred in determining that defendant-appellant's claim was barred by the doctrine of res judicata since it was based upon evidence dehors the record. Res judicata, also known as claim preclusion, is the doctrine under which a final judgment on the merits bars a party from bringing another lawsuit based upon the same claim. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, paragraph one of the syllabus. Res judicata extends to bar not only claims which were actually litigated, but every question which might properly have been litigated. Stromberg v. Bratenahl Bd. of Edn. (1980), 64 Ohio St.2d 98. Under the doctrine of res judicata, constitutional issues cannot be considered in post-conviction proceedings under R.C. 2953.21 where they have already been or could have been fully litigated by the petitioner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175; State v. -13- McCollough(1992), 78 Ohio App.3d 587, 591. Issues properly before a court on a petition for post-conviction relief are issues which could not have been raised on direct appeal due to the fact that the evidence supporting such issues is dehors the record. State v. Milanovitch (1975), 42 Ohio St.2d 46; State v. Durr (July 28, 1994), Cuyahoga App. No. 65958, unreported. If a court finds that an issue raised in a petition for post-conviction relief has, or should have been raised on direct appeal or in a previous post- conviction relief motion, the court may dismiss the petition on the grounds of preclusion. State v. Spisak (Apr. 13, 1995), Cuyahoga App. No. 67229, unreported. In the case sub judice, a review of the record demonstrates that defendant-appellant's purported challenge to the search warrant and corresponding affidavit could have been raised prior to trial through a motion to suppress or on direct appeal. The fact that defendant-appellant allegedly learned of the contents of the affidavit supporting the search warrant at a later date does not, as defendant-appellant contends, lead one to conclude that the issue is based upon evidence dehors the record. Accordingly, the trial court properly determined that the underlying claim was barred by the doctrine of res judicata. State v. McCollough, supra; State v. Brockwell (Sept. 12, 1996), Cuyahoga App. No. 70552, unreported; State v. Nicholson (July 24, 1997), Cuyahoga App. No. 71398, unreported. For the foregoing reasons, defendant-appellant's fifth assignment of error is not well taken. -14- Defendant-appellant's first and final assignment of error states: I. THE COURT BELOW VIOLATED SULLIVAN'S RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, TO DUE PROCESS, AND TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES, AS WELL AS THE PRIVILEGE AGAINST SELF-INCRIMINATION, AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS, BY DISMISSING SULLIVAN'S PETITION NOTWITHSTANDING THAT HE PRESENTED SUBSTANTIVE GROUNDS FOR RELIEF SUFFICIENT TO WARRANT AN EVIDENTIARY HEARING UNDER R.C. 2953.21(C) AND (E). Defendant-appellant argues, through his first assignment of error, that the trial court improperly dismissed his petition for post-conviction relief without conducting an evidentiary hearing. It is defendant-appellant's position that, at the very least, he submitted sufficient evidence on the issues of effective assistance of counsel, alleged due process violations and the privilege against self-incrimination to warrant such a hearing. Pursuant to this court's determination on defendant- appellant's second, third, fourth and fifth assignments of error, it is clear that the trial court did not err in dismissing defendant-appellant's petition for post-conviction relief without conducting an evidentiary hearing. A review of the record demonstrates that the trial court, after a thorough examination of the record, properly concluded that a hearing was not warranted and set forth its reasoning in support of its conclusion in findings of fact and conclusions of law pursuant to R.C. 2953.21(G). For the foregoing reasons, defendant-appellant's first assignment of error is not well taken. -15- Judgment of the trial court is affirmed. -16- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. TIMOTHY MCMONAGLE, P.J., AND KENNETH A. ROCCO, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 .