[Cite as State v. Overman , 2013-Ohio-37.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2012 CA 39

v. : T.C. NO. 09CR218 JASON OVERMAN : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 11th day of January , 2013.

. . . . . . . . . . LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee DAVID M. MORRISON, Atty. Reg. No. 0087487, 31 West Franklin Street, Dayton, Ohio 45459 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Jason M. Overman appeals from a judgment of the Clark County2 Court of Common Pleas, which denied his pe tition for post-conviction relief and motion to vacate his guilty plea. For the following reas ons, the judgment of th e trial court will be

affirmed. {¶ 2} On March 9, 2009, Overman was indicted on one count of felonious assault and two counts of child endanger ing after an infant in his car e suffered serious burns to her hand; each count of child endangering include d a specification that the child had suffered serious physical harm. On January 8, 2010, pur suant to a plea agreement, Overman pled guilty to one count of child e ndangering, with a specification that the child suffered serious physical harm, a felony of the second degree. The other charges were dismissed. The plea did not include any recommendation as to th e sentence. On February 8, 2010, after a presentence investigation, Over man was sentenced to eight years of imprisonment, the

maximum allowable sentence. {¶ 3} Overman appealed from his conviction, arguing that the trial court erred in imposing the maximum sentence. We affirmed the trial court’s judgment. State v.

Overman , 2d Dist. Clark No. 10-CA-21, 2010-Ohio-6486. {¶ 4} In September 2010, Overman filed a petition for post-convi ction relief and a motion to vacate his guilty plea, and he request ed a hearing. The trial court denied the petition and motion without a hearing. Overma n appeals from the tria l court’s judgment, raising one assignment of error. {¶ 5} Overman’s assignment of error states: The trial court abused its discretion in finding that Appellant’s guilty plea was knowing, voluntary and intelligen t without holding an evidentiary3 hearing. {¶ 6} Overman claims that a manifest injustice occurred in his case which warranted the setting aside of his conviction. {¶ 7} In his affidavit in support of his petition and motion, Over man asserted that 1) he “understood [he] would lik ely get probation if [he] entered a plea,” 2) he told his attorney that the victim’s injury had been an accident and that he w ould not enter a plea to having intentionally hurt the ch ild, and 3) there was evidence to support his claim that the victim’s injuries were accident al “which was never presen ted at the sentencing.” Overman’s father also submitted an affidavit stating that, at the plea hearing, he believed Overman was “enter[ing] a plea to probation.” Additionally, Over man and his father asserted in their affidavits that they be lieved a “background check” was being completed on Overman prior to sentencing, but that such a background check was not, in fact, performed. For these reasons, Overman claims that hi s plea was not knowingly, intelligently, and voluntarily entered. {¶ 8} “Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio C onstitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the c ourt to vacate or set aside the judgment or sentence or to grant other appropriate relie f. The petitioner may file a supporting affidavit and other documentary evidence in support of the cla im for relief.” R.C. 2953.21(A)(1)(a). Before granting a hearing on a petition for post-conviction relief, “the court sh all determine whether4 there are substantive grounds for relief. In ma king such a determin ation, the court shall consider, in addition to the petition, the supportin g affidavits, and the documentary evidence, all the files and records pertaining to the pr oceedings 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 repor ter’s transcript.” R.C. 2953.21(C). {¶ 9} The trial court is not required to conduct a hearing whenever a petition for post-conviction re lief is filed. State v. Cole , 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982); State v. Perkins, 2d Dist. Montgomery No. 24397, 2011-Ohio-5070, ¶ 15, citing State v.

Calhoun , 86 Ohio St.3d 279, 282-283, 714 N.E.2d 905 (1999); State v. Metcalf , 2d Dist. Montgomery No. 22367, 2008-Ohio-4535, ¶ 9-10. In stead, before granting an evidentiary hearing, the trial court must determine whether there are substantive grounds for relief.

Calhoun at 282-283. “The pivotal concern is wh ether there are substantive grounds for relief which would warrant a hearing base d upon the petition, the supporting affidavit and

the files and records of this cause.” State v. Jackson , 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). {¶ 10} Affidavits which are conclusory or self-serving, without more, will not satisfy the petitioner’s evidentiary burden. State v. Pierce , 127 Ohio App.3d 578, 586, 713 N.E.2d 498 (11th Dist.1998). “Broad conclusory a llegations are insufficient, as a matter of law, to require a hearing. A petitioner is not entitled to a hearing if his claim for relief is belied by the record and is unsupported by an y operative facts other than Defendant’s own self-serving affidavit or statem ents in his petition, which are legally insufficient to rebut the record on review.” (Internal citations omitted). State v. Snyder , 2d Dist. Clark No.5 03CA0067, 2004-Ohio-4265, ¶ 10 See also State v. Kapper , 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983 ) ; State v. Pankey , 68 Ohio St.2d 58, 59, 428 N.E.2d 413 (1981). {¶ 11} On appeal from a trial court’s determination on a petition for post-conviction relief, an appellate court reviews fo r an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. An abuse of discretion means “that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams , 62 Ohio St .2d 151, 157, 404 N.E.2d 144 (1980). {¶ 12} As with a petition for post-convic tion relief, a Crim.R. 32.1 motion to withdraw a guilty plea after sentencing should be granted only to correct a manifest injustice.

State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977). A hearing on such a motion is required only if the facts alleged by the defenda nt, if accepted as true, would require the plea

to be withdrawn. State v. McComb , 2d Dist. Montgomery Nos. 22570, 22571, 2009-Ohio-295, ¶ 19. The motion is directed to the sound discretion of the trial court, which assesses the good faith, cred ibility and weight of the mova nt’s assertion in support of

the motion. State v. Xie , 62 Ohio St.3d 521, 584 N.E.2d 715 (1992). The standard is designed to prevent a defendant from pleading guilty in order to test the potential punishment, and then withdrawing the plea if the punishment is not what he had hoped. Id ., citing Kadwell v. United States , 315 F.2d 667, 670 (9th Cir.1963). A trial court’s ruling on a motion to withdraw a guilty plea is also reviewed for an abuse of discretion. State v.

Barnett , 73 Ohio St.3d 244, 596 N.E.2d 1101 (1991). {¶ 13} Overman was charged with endanger ing a child under 18 years of age by means of abusing the child and creating a substantial risk to the child’s health or safety, in6 violation of R.C. 2919.22(B)(1). Although a me ntal state is not sp ecified in the child endangering statute, the Ohio Supreme Court has stated that the appropriate mental state under R.C. 2919.22(B) is recklessness. Adams, 62 Ohio St.2d at 153. {¶ 14} The record of the plea and sentencing hearings contradicts the suggestion in

Overman’s and his father’s affidavits that he was led to believe he would be placed on probation and that the completion of a backgr ound check was part of the agreement. Neither condition was mentioned at the hearings , and Overman expressly stated that he had not been promised anything in addition to what was read into the record. Moreover, although the affidavits refer to the background ch eck, neither affidavit states if or how an investigation would have benefitted Overman or how it would have differed from a presentence investigation, whic h was conducted. The affidavits also allude to evidence “that this was an accident,” but such evidence was not presented at sentencing and the

affidavits offer no indication of what this evidence might be. {¶ 15} The trial court’s judgment reflects a careful and detailed review of the prior proceedings. In denying Overman’s petition fo r post-conviction relief and motion to vacate his plea, the trial court noted that, at the plea hearing, Overman had been informed of the possible maximum sentence of eight years, wh ich Overman indicated that he understood. The court also asked Overman if any promises had been made to him which had not been placed on the record, and Overman answered in the negative. At the plea hearing, the court read the elements of the offense to Overman, including the element of recklessness. According to the trial court, “[t]here was no mention as to the sentence, except as to the maximum possible sentence during the plea. The defendant indicated that no such7 assurance had been given to him when he conf irmed that not [sic] other promises had been made to him except what was on the plea form and placed on the record that day.” The plea agreement provided that the other charges w ould be dismissed and that a presentence investigation would be c onducted, but it made no refere nce to any other “background

check”. {¶ 16} In its decision, the trial court co rrectly observed that Overman was told that a plea to child endangering was an admi ssion of recklessness. Even defense counsel referred to Overman’s “reckless * * * activity” on the day of the offense. Despite the

admission of recklessness and Ov erman’s numerous previous inc onsistent explanations of the events surrounding the child’s injury, Overma n repeated at sentenci ng his claim that the submersion of the child’s arm in boiling water ha d been an accident. The trial court stated

that it found Overman and his account of the even ts lacking in credibility, since he had given

different “accident” s cenarios in his initial statements to the police. The court also noted that the medical evidence contained in the presentence investigation was inconsistent with an accident. We note that, even now, Overman’s affidavit fails to specify any evidence outside the record supporting the “accident” scenario. {¶ 17} The trial court also noted that the record refuted Overman’s claim that he had been promised a background check, because he stated on the record that the dismissal of the other charges and the preparation of a pres entence investigation were all that had been promised to him in exchange for his plea. {¶ 18} Like the trial court, we have carefully reviewed the transcript of the plea and sentencing hearings, the affidavits offe red in support of Over man’s petition and motion,8 and other items contained in the record. Th e trial court did not a buse its discretion in concluding that the record refutes Overman’s cl aims that he did not understand the nature of his plea, i.e., that he was admitting to more than an accident, and that he had been assured of probation or a background investigation other than the presentence investigation. As such,

the trial court did not abuse its discretion in denying Over man’s petition for post-conviction relief and motion to vacate his guilty plea without a hearing. {¶ 19} The assignment of error is overruled. {¶ 20} The judgment of the trial court will be affirmed.. . . . . . . . . . DONOVAN, J. and HALL, J., concur. Copies mailed to:

Lisa M. Fannin David M. Morrison Hon. Richard J. O’Neill