COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 74706 & 74811 STATE OF OHIO, : ACCELERATED : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : WAYNE SNITZKY, : PER CURIAM : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 25, 1998 CHARACTER OF PROCEEDING: : Civil appeals from : Common Pleas Court : Case No. CR-323807 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: L. Christopher Frey Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Paul Mancino, Jr. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 -2- PER CURIAM: In these two cases which we have consolidated for purposes of appellate review, Wayne Snitzky, separately appeals from the trial court's denial of his motions to withdraw his plea and for postconviction relief claiming that his plea was not voluntarily, knowingly, or intelligently made, and therefore the trial court denied him due process of law by summarily dismissing these motions without a hearing. Snitzky further argues that he was denied the effective assistance of counsel. After considering the arguments made by Snitzky, we find that they are not well taken and therefore affirm the judgment of the trial court. The facts in this case before us reveal that on December 18, 1994, the Euclid police were notified by Christine Norman that her teenage daughter, Meghan, was missing. During police investigation of this matter, on January 19, 1995, William Gast confessed that Snitzky, Meghan's boyfriend and his best friend, had murdered Meghan, and had enlisted Gast's help in disposing the body. Gast then led police to his mother's property in Ashtabula where he and Snitzky had buried Meghan. After exhuming the body, the police proceeded to Snitzky's home where they discovered the van which the pair had used to transport Meghan's body, as well as many of the tools used to bury her. On May 24, 1995, the Grand Jury indicted Snitzky for the aggravated murder of Meghan and possession of criminal tools. As a result, Snitzky entered into plea negotiations, and on September 22, 1995, pled guilty to the charge of murder. -3- Prior to sentencing, the members of Meghan's family addressed the court. Meghan's grandmother, Gloria Ackerman, asked the court to sentence Snitzky to solitary confinement every December 17th, the anniversary of her granddaughter's murder, as a means to insure that he would never forget the pain and sorrow he caused Meghan and her family. The court then sentenced him to a term of fifteen years to life imprisonment, and further ordered that appellant spend every December 17th in solitary confinement for the duration of his sentence. On May 8, 1998, Snitzky filed his motion to withdraw his plea and his petition for postconviction relief. It is from the denial of this motion that Snitzky appeals and assigns three errors for our review. I. Snitzky's assignment of error in Case No. 74811 and his first assignment of error in Case No. 74706 are interrelated in both law and fact and will be treated together. These assignments of error state: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS NOT FULLY INFORMED AS TO THE PENALTY BY THE COURT AND WHERE AN ADDITIONAL PENALTY WAS ADDED AFTER DEFENDANT WAS SENTENCED. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT SUMMARILY OVERRULED HIS MOTION TO WITHDRAW A PLEA AND/OR FOR POST-CONVICTION (SIC) RELIEF. Snitzky alleges that in conformity with the provisions of Crim.R. 11(C)(2), and Crim.R. 32.1 which provides, in pertinent part, that to correct a manifest injustice the court after sentence may set aside the judgment of conviction and permit the -4- defendant to withdraw his plea, his conviction should be vacated. Snitzky maintains that due to the added sentence of solitary confinement on the anniversary of the murder for each year of incarceration, an aspect of his sentence of which he was not informed prior to his plea, that plea, as entered, was not intelligently, knowingly and voluntarily made. The state contends that although the imposition of the solitary confinement was contrary to law and an abuse of discretion, this abuse does not rise to the level of manifest injustice and, as a result, the court summarily denied Snitzky's motion. The issue before us, then, is whether the court erred in overruling Snitzky's motion to withdraw his plea and for postconviction relief. In this case, the trial court abused its discretion in sentencing Snitzky to solitary confinement because, at sentencing, a trial court may only impose a sentence as provided for by law. See State v. Eberling (April 9, 1992), Cuyahoga App. No. 58559-60, unreported. The punishment allowed by law in the case of a conviction for murder does not provide for any period of solitary confinement, therefore, the solitary confinement sentence was contrary to law. Consequently, the threshold issue left to resolve is whether this error rises to the level of manifest injustice sufficient to void Snitzky's plea. In paragraph three of the syllabus in State v. Peterseim (1980), 68 Ohio App.2d 211, this court set forth the standards to -5- consider in determining whether a court abused its discretion in overruling a motion to withdraw a guilty plea and stated: A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request. Crim.R. 32.1, provides that a postconviction motion to withdraw a guilty plea is only granted in order to correct a manifest injustice. State v. Xie (1992), 62 Ohio St.3d 521, 526. Further, the defendant has the burden of establishing a manifest injustice. State v. Legree (1988), 61 Ohio App.3d 568, 572. When accepting a plea a trial court must substantially comply with Crim.R. 11(C)(2)(a) and (b). State v. Colbert (1991), 71 Ohio App.3d 734, 737. Substantial compliance means that under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108. Furthermore, [a] defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. State v. Scott (1996), 113 Ohio App.3d 401, 402. Therefore, upon review a finding of compliance with the rule can be based upon a consideration of the totality of the circumstancessurrounding the entry of the plea. State v. Carter (1979), 60 Ohio St.2d 34. See, also, Nero, supra, Colbert, supra. Moreover, a defendant's mistaken belief or impression -6- regarding the consequences of his plea is not sufficient to establish that such a plea was not knowingly and voluntarily made. State v. Sabatino (1995), 102 Ohio App.3d 483, 486. It is a difficult task for a court to determine whether a defendant subjectively understands the implication of his plea and the waiver rights, however, if the defendant receives the proper information, then we can ordinarily assume he understands the information. Carter, supra. In the case before us, Snitzky had competent counsel who entered into pretrial negotiations with the prosecution which led to a resolution, acceptable to all parties involved. The plea bargain agreement, which provided that Snitzky would plead guilty to the murder charge, and the state would nolle the remaining charge of possession of criminal tools, was then presented to the trial judge. The trial judge scrupulously adhered to Crim.R. 11, informed Snitzky of his constitutional rights and the consequences of his plea, and determined that the appellant entered into this plea agreement in a knowing, intelligent, and voluntary manner. As a result, the trial court, provided the proper information, complied with the terms of Crim.R. 11, and under the totality of the circumstances determined that Snitzky understood the implications of his plea. The solitary confinement sentence imposed by the court did not rise to the level of manifest injustice nor interfere with Snitzky's ability to understand the consequences of his plea. -7- The trial court erred in sentencing Snitzky to solitary confinement and that sentence is hereby corrected to delete that portion of the sentence. See State v. Eberling (April 9, 1992), Cuyahoga App. No. 58559-60, unreported. Accordingly, these assignments of error are overruled. Snitzky's second assignment of error states: II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS NOT AT LEAST GRANTED AN EVIDENTIARY HEARING. Snitzky contends that the court violated his due process rights when it summarily dismissed his petition for postconviction relief without a hearing. The state maintains that Snitzky's affidavit did not present substantive grounds for relief and, as a result, the court had no duty to conduct a hearing. Pursuant to R.C. 2953.21, a petition for postconviction relief may be dismissed without a hearing if the petitioner fails to introduce with his petition evidentiary material setting forth sufficient operative facts that demonstrate substantive grounds for relief. R.C. 2953.21(C); State v. Jackson (1980), 64 Ohio St.2d 107. The trial court has sound discretion to deny a hearing even if the petitioner is introducing alleged newly discovered evidence. State ex rel. Jennings v. Nurre (1995), 72 Ohio St.3d 596. To merit a hearing a petitioner must show that there are substantive grounds that would warrant a hearing based upon the petition, the supporting affidavits, and the files and records of the case. Jackson, supra. -8- Although Snitzky presented his own self-serving affidavit in support of his claims, the allegations in it are contradicted by the record in this case and hence Snitzky has not presented substantive grounds for the relief he seeks. See State v. Moore (1994), 99 Ohio App.3d 748. We have therefore concluded that the trial court properly found, pursuant to R.C. 2953.21(C), that the evidence presented was insufficient to demonstrate substantive grounds for relief and dismissed the petition without a hearing. Accordingly, this assignment of error is overruled. 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE TERRENCE O'DONNELL, 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 .