[Cite as State v. Burton , 2021-Ohio-1008.]

IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2020-L-098 - vs - : XAVIER L. BURTON, : Defendant-Appellant. :
Civil Appeal from the Lake Count y Court of Common Pleas, Case No. 2018 CR 001249. Jud g ment: Affirmed.

Charles E. Coulson , Lake County Prosecutor, and Teri R. Daniel , Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, Ohio 44077 ( For Plaintiff-Appellee )

. Xavier L. Burton , pro se, A763-613, Lake Erie Correctional Institution, 501 Tho mpson Road, P.O. Box 8000, Conneaut, Ohio 44030 ( Defendant-Appellant )

.

THOMAS R. WRIGHT, J. {¶1} Appellant, Xavier L. Burton, appeals the trial court’s judgment dismissing his petition for postconviction relief. We affirm. {¶2} In 2018, Burton was indicted on four counts of aggravated traff icking in drugs, with attendant forfeiture specifications, and one count of possessing criminal tools. Ultimately, Burton entered a guilty plea to one count of aggrav ated trafficking in drugs, in violation of R.C. 2925.03(A)(1), a felony of the second degree, and agreed to forfeit all2 items referenced in the indictment. The court entered a nolle p rosequi on the remaining counts and sentenced Burton to five years in prison. Burton ap pealed his sentence, and this court affirmed. State v. Burton , 11th Dist. Lake No. 2019-L-087, 2020-Ohio-440. {¶3} In 2020, Burton filed a motion for postconviction relief, argui ng ineffective assistance of counsel based upon: (1) defense counsel mistakenl y informing Burton that he was pleading to a felony of the third degree carrying a pote ntial sentence of no more than three years in prison, and (2) defense counsel failing to adequately investigate the case or prepare for trial. {¶4} The trial court concluded that Burton failed to produce suffici ent credible evidence warranting relief and dismissed the petition. Burton appeals, assigning two

errors: {¶5} “[1.] The trial court abused its discretion in its application of the doctrine of res judicata to Burton’s timely filed petition for post-convict ion relief pursuant to [R.C. 2953.21] thus violating Burton’s rights under the fourth, fifth , sixth, and fourteenth amendments to the United States Constitution and Article I, Sec tions 1 and 14 of the Ohio Constitution.” {¶6} “[2.] The trial court erred in denying Burton’s post-conviction relief petition where he presented sufficient evidence dehors the record to mer it an evidentiary hearing.” {¶7} With respect to Burton’s first assigned error, under the doctri ne of res judicata, “‘a defendant who was represented by counsel is barre d from raising an issue in a petition for postconviction relief if the defendant raised or could have raised the issue at trial or on direct appeal.’” State v. Jackson , 11th Dist. Lake No. 2019-L-042, 2019- Ohio-4735, ¶ 15, quoting State v. Adams , 11th Dist. Trumbull No. 2003-T-0064, 2005-3 Ohio-348, ¶ 38, citing State v. Szefcyk , 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus. {¶8} Burton’s argument in support of his first assigned error is mis placed, as the trial court did not apply res judicata but, instead, dismissed the petition because Burton did not produce sufficient credible evidence warranting relief. Accordingly, Burton’s first assigned error lacks merit. {¶9} With respect to his second assigned error, Burton argues that t he trial court erred in failing to hold a hearing on his petition. {¶10} We apply an abuse of discretion standard to our review of a tri al court’s decision to dismiss a petition for postconviction relief withou t a hearing. Jackson , 2019- Ohio-4735, at ¶ 11. “‘[T]he term “abuse of discretion” is one of art, connoting judgment exercised by a court, which does not comport with reason or the record.’” Ivancic v. Enos , 11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70, quoting State v. Underwood , 11th Dist. No. 2008-L-113, 2009-Ohio-2089, ¶ 30. {¶11} The postconviction relief statute, R.C. 2953.21, provides, “Any person who has been convicted of a criminal offense * * * who claims that there was such a denial or infringement of the person’s rights as to render the judgment v oid or voidable under the Ohio Constitution or the Constitution of the United States,” ma y file a postconviction petition “asking the court to vacate or set aside the judgment or sentence * * *.” R.C. 2953.21(A)(1)(a). {¶12} Before the trial court grants a hearing on a postconviction pet ition claiming ineffective assistance of counsel, “‘the petitioner bears the i nitial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of4 competent counsel and that the defense was prejudiced by counsel’s ineffectiveness.’” (Emphasis sic.) State v. Calhoun , 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999), quoting State v. Jackson , 64 Ohio St.2d 107, 413 N.E.2d 819, 820 (1980), syllabus. {¶13} In Calhoun , the Ohio Supreme Court held: 1. In reviewing a petition for postconviction relief filed purs uant to R.C. 2953.21, a trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the soun d exercise of discretion, judge the credibility of the affidavits in determin ing whether to accept the affidavits as true statements of fact. 2. Pursuant to R.C. 2953.21(C), a trial court properly denies a defendant’s petition for postconviction relief without holding an evidentia ry hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set f orth sufficient operative facts to establish substantive grounds for relief. Id. at syllabus. {¶14} In determining whether an affiant ’s testimony lacks credibility , the trial court should consider “all relevant factors[,]” including: (1) whether the judge reviewing the postconviction relief petit ion also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whet her the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner’s efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by evidence in the record by the same witness, or to be internally inconsistent, thereby weakeni ng the credibility of that testimony . (Citation omitted.) Id. at 285. {¶15} Here, Burton attached to his petition affidavits from himself, his mother, and the mother of his child. Burton maintains that defense counsel met with Burton and some of his family members prior to a hearing. According to Burton, the attorney advised him that, if he would plead guilty to one felony of the third degre e, then he would likely be5 sentenced to 18 months to two years of imprisonment. The three affiants all maintain that defense counsel assured them that the prison sentence would not exceed three years. Burton argues that, if not for defense counsel’s promise that h e would not receive more than three years of prison, he would not have agreed to plead g uilty. {¶16} In ruling on the motion for postconviction relief, the trial co urt judge noted that he had presided over Burton’s change of plea and sentencin g hearings. The court determined that the affiants’ statements contradicted the recor d, because, at the plea hearing, Burton indicated that he understood that he was pleadi ng guilty to a felony of the second degree carrying with it a prison term of between two and eight years, and Burton confirmed that no promises were made to him by the court, the p rosecutor, or his attorney as to what sentence the court would impose. The court further found that the affiants were persons likely to be interested in the success of Burton’s petition. Accordingly, the trial court determined that the affiants’ statements lacked cre dibility. Further, even if the affidavits were accepted as true, the plea colloquy should have dispelled any reliance on the attorney’s promise that Burton would receive no more than t hree years in prison. In addition, the court noted that the affidavits failed to address Burton’s claim that defense counsel failed to properly investigate his case. Consequently, the court determined that Burton did not produce sufficient credible evidence that substa ntive grounds for relief exist. {¶17} We cannot say that the trial court’s judgment does not comport with reason or the record or that it amounts to an abuse of discretion. Ac cordingly, Burton’s second6 assigned error lacks merit. The judgment is affirmed.

MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J.,

concur.