COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74383 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MIGUEL GROSS : : : Defendant-Appellant : DATE OF ANNOUNCEMENT AUGUST 12, 1999 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-327317 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LISA REITZ WILLIAMSON Assistant Prosecuting Attorney 1200 Ontario St. Cleveland, Ohio 44113 For Defendant-Appellant: MIGUEL GROSS, Pro Se Inmate No. 314-728 N.C.C.I., Marion C/D Box 1812 Marion, Ohio 43301 -2- JUDGE TERRENCE O'DONNELL: Miguel Gross, pro se, appeals from a decision of the common pleas court denying his motion for post-conviction relief concerning a 1995 conviction for felonious assault and kidnapping, alleging entitlement to an evidentiary hearing in order to prove ineffective assistance of counsel. Gross complains that the court abused its discretion by failing to conduct such a hearing prior to denying his petition for post-conviction relief. After carefully considering the record before us and the applicable law, we have concluded that this case is governed by State v. Nichols (1984), 11 Ohio St.3d 40, and we, therefore, affirm the judgment of the trial court. The history of the case reveals that on August 22, 1995, a grand jury indicted Gross on charges for felonious assault and kidnapping. After several pretrial conferences, Gross pled guilty to one count of felonious assault on December 14, 1995, and the court dismissed the kidnapping count in the indictment. At his sentencing on January 11, 1996, Gross attempted to orally withdraw his guilty plea, but the court denied this request. He did not file a direct appeal. Thereafter on October 29, 1996, Gross filed this post-conviction petition to vacate and to set aside his sentence. The state opposed this post-conviction petition, and the court later denied it on April 10, 1998. Gross filed a timely appeal from this denial and assigns the following error for our review: THE TRIAL COURT DENIED MIGUEL GROSS DUE PROCESS, EQUAL APPLICATIONS [SIC] OF CORRECT LAW TO CORRECT FACTS - -3- UNDER BOTH CONSTITUTIONS - WHEN THE TRIAL COURT DENIED POST-CONVICTION PETITION WITHOUT: HOLDING AN EVIDENTIARY HEARING; ABUSED DISCRETION TO THE SUBSTANTIAL PREJUDICE; 2) [SIC] BY NOT REVIEWING ALL THE FEDERAL CONSTITUTIONAL CLAIMS FOR RELIEF. Gross contends that the court abused its discretion by failing to hold an evidentiary hearing on his petition for post-conviction relief thereby denying him an opportunity to prove his claims of ineffective assistance of counsel in that he claims now his counsel failed to contact or subpoena witnesses or prepare for trial and refused to speak to the victim and his claim of prosecutorial misconduct for allegedly promising that Gross would receive no more than an eighteen month sentence. The state urges affirmance maintaining that the trial court properly denied Gross' petition because his claims are not well taken and are barred by the doctrine of res judicata. The issue here concerns whether the court correctly denied the petition for post-conviction relief where Gross failed to file a direct appeal from the court's decision. R.C. 2953.21 governs petitions for post-conviction relief and states in part: (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. * * * If the court dismisses the petition, it shall make and file findings of fact and conclusion of law with respect to such dismissal. In State v. Nichols (1984), 11 Ohio St.3d 40, 42, the Supreme -4- Court stated: In the case sub judice, appellant raises constitutional issues de novo on appeal in a postconviction relief proceeding. Insofar as appellant's claims have never been heard on appeal from the original judgment and conviction, the optimum forum for appellant's arguments would be in a delayed appeal from the original judgment and conviction if so granted by the court of appeals. * * * a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment,any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment. (Emphasis added.) By logical extension, postconviction relief is not available until such time as conventional appellate relief has been sought. * * * Since the constitutional concerns of appellant were never raised in an appeal from the original judgment and conviction, there would, however, be no res judicata effect as to subsequent postconviction relief proceedings. Accordingly appellant has the avenue of filing a motion for a delayed appeal from the original judgment and conviction. (Emphasis added.)(Citations omitted.) Accordingly, in this case, Gross chose to raise the issues of ineffective assistance of counsel and prosecutorial misconduct in a petition for post-conviction relief instead of filing a direct or delayed appeal from his conviction. Pursuant to Nichols, this relief is not available to Gross, and we are unable to grant the relief he seeks. However, relief sought pursuant to R.C. 2953.21 allows evidence outside the record to be presented in support of alleged constitutional claims and this evidence can avoid a res judicata bar. See State v. Cole (1982), 2 Ohio St.3d 112. Here, Gross has submitted an affidavit from Tyrone Anderson, an eyewitness to the incidents which give rise to these charges, who stated that Gross' counsel never called or interviewed him. While this may be proper evidence outside the record, appropriate -5- for post-conviction relief, Gross here has failed to set forth sufficient facts to demonstrate substantive grounds for relief. In particular, Gross failed to demonstrate (1) that his lawyer's performance was objectively unreasonable, and (2) that there is a reasonable probability that Gross would not have pleaded guilty but for counsel's errors. See Hill v. Lockhart (1985), 474 U.S. 52; State v. Xie (1992), 62 Ohio St.3d 521, 524-525. Gross likewise failed to sustain his burden to cast doubt on the validity of his guilty plea. We have not been provided with a transcript of the plea proceeding and Gross did not provide any reason to conclude that an accurate record of the plea proceeding would not be reconstructed, so regularity would be presumed. Gross' own self- serving declarations would be insufficient to entitle him to post- conviction relief. See State v. Kapper (1983), 5 Ohio St.3d 36; State v. Ismail (1981), 67 Ohio St. 2d 16. For these reasons, we have concluded the trial court correctly denied the petition for post-conviction relief. Judgment affirmed. -6- 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 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, A.J., CONCUR; DIANE KARPINSKI, J., CONCURS IN JUDGMENT ONLY WITH CONCURRING OPINION. JUDGE TERRENCE O'DONNELL 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. 22. 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74383 STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION MIGUEL GROSS : : : Defendant-Appellant : DATE: AUGUST 12, 1999 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I concur only in the judgment. This case is not governed by State v. Nichols (1984), 11 Ohio St.3d 40. In that case, the court held that a delayed appeal pursuant to App.R. 5(A) was not available to obtain review of an order denying post-conviction relief. That is not the issue in the instant case. The Nichols opinion went on to suggest that a delayed appeal from the original judgment of conviction would be the optimum forum for the defendant to present issues that were or could have been raised during those proceedings and that post- conviction relief would not be available until such conventional appellate relief had been sought. The opinion further suggested that res judicata would not apply to those issues until such time as the defendant exhausted his direct appeals. -2- In the instant case, Gross's petition for post-conviction relief contended that (1) his trial lawyer provided ineffective assistance of counsel by failing to contact or subpoena witnesses and (2) the prosecutor promised Gross he would receive no more than an eighteen-month sentence. A petition for post-conviction relief under R.C. 2953.21 is the mechanism that allows a defendant to introduce extraneous facts that do not appear in the trial record. The fact that Gross chose to assert these issues by a petition for post-conviction relief rather than by direct appeal required him to present facts dehors the record to establish his right to relief. I do not believe Nichols required Gross to seek direct appellate relief beforehe could assert in a post-conviction petition issues that would not be reflected in the original trial record and that would instead depend on facts dehors the record. I would therefore hold that Gross was not procedurally barred from seeking post-conviction relief here but that Gross's petition nevertheless failed to set forth sufficient operative facts demonstrating that there were substantive grounds for post- conviction relief. See State v. Jackson (1980), 64 Ohio St.2d 107. In particular, Gross failed to demonstrate (1) that his lawyer's performance was objectively unreasonable and (2) that there is a reasonable probability that Gross would not have pleaded guilty but for counsel's errors. See Hill v. Lockhart (1985), 474 U.S. 52; State v. Xie (1992), 62 Ohio St.3d 521, 524-525. With regard to the claim that his guilty plea was induced by the prosecutor's unkept promise of an eighteen-month sentence, -3- Gross likewise failed to sustain his burden to cast doubt on the validity of the plea. We have not been provided with a transcript of the plea proceeding and Gross did not provide any reason to conclude that an accurate record of the plea proceeding could not be reconstructed, so regularity may be presumed. See State v. Angelo(Oct. 1, 1992), Cuyahoga App. Nos. 61049, 61141, unreported. Gross's own self-serving declarations would be insufficient to entitle him to post-conviction relief from his guilty plea. See State v. Kapper (1983), 5 Ohio St.3d 36; State v. Ishmail (1981), 67 Ohio St.2d 16. .