COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73748 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DARRYL CALDWELL : : PER CURIAM Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 10, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. CR-163,031 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor ERIKA RITT, Assistant Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: GARY H. LEVINE Attorney at Law Skylight Office Tower, #660 1660 West 2nd Street Cleveland, Ohio 44113 PER CURIAM: -2- This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, and the briefs. Darryl Caldwell, defendant-appellant, appeals the trial court's dismissal of his petition for post-conviction relief, assigning the following error for our review: THE TRIAL COURT ERRED WHEN IT DENIED APPEL- LANT, DARRYL CALDWELL, AN EVIDENTIARY HEARING IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMEND- MENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION WHEN THE PETITIONER HAD ATTACHED AFFIDAVITS TO HIS POST CONVICTION PETITION WHICH INCLUDED EVIDENCE DEHORS THE RECORD. For the reasons set forth below, we find no error and affirm the decision of the trial court. On March 9, 1981, Caldwell was indicted for murder following the death of Robert Brooks from a single shot from a .30 caliber rifle. On August 21, 1981, following a trial by jury, Caldwell was found guilty of murder and sentenced to a term of imprisonment of fifteen years to life. Both the conviction and sentence were affirmed by this court in State v. Caldwell (Oct. 7, 1982), Cuyahoga App. No. 44360, unreported. On December 11, 1989, Caldwell filed his initial petition to vacate judgment and sentence in the Cuyahoga County Court of Common Pleas, arguing ineffective assistance of trial counsel. This petition was denied without findings of fact or conclusions of law. Almost seven years later, on September 17, 1996, Caldwell filed the instant motion (petition) for post-conviction relief, requesting a new trial due to newly -3- discovered evidence. In support of his petition, Caldwell sub- mitted his own affidavit in which he averred that his trial attorney was ineffective for failing to present evidence of Caldwell's voluntary intoxication at the time of the offense, as well as affidavits from Caldwell's two sons, David Veal and Darryl Veal, recanting their trial testimony that helped convict Caldwell, and alleging prosecutorial misconduct. The petition was denied without hearing on September 26, 1996, and the trial court issued findings of fact and conclusions of law in support of its decision on November 25, 1997. Caldwell appealed the trial court's denial of his petition to this court on December 24, 1997. R.C. 2953.21(C) provides that in determining whether to grant a hearing on a petition for post-conviction relief, a court shall determine whether there are substantive grounds for relief based on the petition, the supporting affidavits, the documentary evidence and the files and records pertaining to the proceedings. The supreme court has held that R.C. 2953.21 does not expressly mandate a hearing for every post-conviction relief petition and, therefore, a hearing is not automatically required. State v. Jackson(1980), 64 Ohio St.2d 107, 110. See, State, ex rel Jackson v. McMonagle (1993), 67 Ohio St.3d 450. In support of his assignment of error, Caldwell relies on our decision in State v. Swortcheck (1995), 101 Ohio App.3d 770,1 in 1 The holding in Swortcheck is in conflict with the holding of the Twelfth District in State v. Smith (Oct. 13, 1997), Butler App. No. CA97-01-011, unreported. The Smith case has been certified for conflict to the Ohio Supreme Court. The issue certified for review is whether, when reviewing a post-conviction relief petition, the -4- which we held that [w]hen determining whether there are substan- tive grounds for postconviction relief that would warrant a hear- ing, the affidavits in support of the petition should be accepted as true. Id. at 772. However, Swortcheck has no applicability with respect to Caldwell's own affidavit alleging ineffective assistance of counsel because the affidavit fails to demonstrate substantive grounds for relief. This issue was raised in Caldwell's initial petition for post-conviction relief filed on December 11, 1989, and rejected by the trial court. Caldwell did not appeal this decision; thus, Caldwell is barred from raising the issue again in the instant petition due to the doctrine of res judicata. See, State v. Combs (1994), 100 Ohio App.3d 90. Moreover, regarding the affidavits of Caldwell's two sons, Swortcheck was not intended to blindly provide a blanket require- ment that all affidavits should be accepted as true. In Swortcheck, the affidavits that alleged ineffective assistance of counsel, which were submitted by witnesses who had no apparent relationship to the petitioner and no overt reason to misrepresent the facts, contained some indicia of credibility; however, the affidavits of Caldwell's two sons fail to meet a threshold standard of cogency and, on their face, are patently incredible. See, State v. Lawson (1995), 103 Ohio App.3d 307. The affiants, who are rela- tives of the petitioner, presented affidavits that are almost identical and that appear to have been prepared by the same person. trial court must accept affidavits presented in support of the petition as true. State v. Smith (1998), 81 Ohio St.3d 1430. -5- The First District has held that such factors may be considered by a trial court in weighing the credibility of post-conviction relief affidavits without granting a hearing. State v. Moore (1994), 99 Ohio App.3d 748. Beyond those factors, the affidavits allege prosecutorialmisconduct but include no indication of the prosecu- tion's motivation for allegedly suborning perjury and include no explanation whatsoever as to why the affiants believed that their mother would be returning home if they lied at their father's trial. A more credible scenario is that the affiants, who waited fifteen years before coming forward with this information, are now presenting in their affidavits a fabricated version of the facts in order to secure their father's release from prison. We will not require the trial court to participate in this sham. For the above reasons, the appellant's assignment of error is overruled and the judgment of the trial court is affirmed. -6- This cause is affirmed. 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. __________________________________ JOSEPH J. NAHRA, PRESIDING JUDGE __________________________________ DIANE KARPINSKI, JUDGE (CONCURS IN JUDGMENT ONLY) __________________________________ KENNETH A. ROCCO, 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 .