[Cite as State v. McGee , 2019-Ohio-4569.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsKRISTOPHER L. MCGEE Defendant-Appellant JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. : : : Case No. CT2019-0063 : : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0521

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 5, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX KRISTOPHER L. MCGEE A747-405 Prosecuting Attorney Ohio State Penitentiary By: TAYLOR P. BENNINGTON 878 Coitsville-Hubbard Rd. Assistant Prosecuting Attorney Youngstown, OH 44505 27 North Fifth St., P.O. Box 189 Zanesville, OH 43702-0189[Cite as State v. McGee , 2019-Ohio-4569.]

Gwin, P.J. {¶1} Appellant Kristopher McGee appeals the July 16, 2019 judgment e ntry of the Muskingum County Court of Common Pleas denying his motion f or post-conviction relief. Appellee is the State of Ohio. Facts & Procedural History {¶2} On August 22, 2018, appellant was charged with one count of esc ape, in violation of R.C. 2921.34(A)(1). On September 12, 2018, appell ant pled guilty to the charge. {¶3} Appellant signed a plea of guilty form on September 12, 2018, s tating he understood the maximum penalty for the offense, understood the nature of the charge and possible defenses, was satisfied with his attorney’s advice and competence, entered into the plea voluntarily, and no promises had been made as par t of the plea agreement, except that the parties agreed to a joint sentence recommendati on of two (2) years in prison, conditioned upon appellant’s compliance with all bond c onditions and with all laws pending sentencing. {¶4} The trial court issued a sentencing entry on September 13, 2018 . In the sentencing entry, the trial court found appellant made a knowin g, intelligent, and voluntary waiver of his rights and found the plea to be voluntary. The t rial court sentenced appellant to a prison term of two years, to be served consecutively to th e sentence imposed in Case No. CR2018-0520, for an aggregate sentence of twelve years in p rison. {¶5} On July 11, 2019, appellant filed a petition to vacate or set a side sentence with a request for an evidentiary hearing. Appellant stated hi s guilty plea was secured without effective assistance of counsel and only after being su bject to physical coercionMuskingum County, Case No. CT2019-0063 3

of the Muskingum County Prosecutor’s Office and Muskingum Count y Jail. Appellant alleged ineffective assistance of counsel because his attorney knew he was suffering from serious mental and emotional abuse by the employees at the jail and took advantage of his condition by counseling him to accept the plea. Appellant also alleged his right to due process was violated because the employees at the jail subjecte d him to torture designed to force him into compliance with the will of the prosecutor’s office and secure his guilty plea. {¶6} Appellant attached his own sworn affidavit to his petition. Ap pellant avers: he suffered personal physical abuse by the jail administrator a nd other employees; he was refused a psychological evaluation despite his extensive me ntal illness history; they coerced him into pleading guilty by intimidation, emotional abu se, threats, and physical abuse; his trial attorney refused to defend him in court; his a lleged victims were directly involved with the corruption of his case; and it will require a n evidentiary hearing to adduce

further evidence. {¶7} Appellee filed a memorandum in response to the petition on July 16, 2019. On July 16, 2019, the trial court issued a judgment entry denyi ng appellant’s petition, finding appellant failed to provide any evidence to support his claims and the issues could have been raised on direct appeal and therefore appellant is ba rred by the doctrine of res judicata from raising them in a post-conviction relief petition . The trial court also denied appellant’s request for an evidentiary hearing. {¶8} Appellant appeals the July 16, 2019 judgment entry of the Muski ngum County Court of Common Pleas and assigns the following as error :Muskingum County, Case No. CT2019-0063 4

{¶9} “I. ON JULY 16TH COURT FOUND THAT DEFENDANT FAILED TO

PROVIDE SUPPORTING EVIDENCE OF HIS CLAIMS WHEN IN FACT DEFENDAN T

PROVIDED A SWORN AFFID AVIT IN EVIDENCE. [SIC] {¶10} “II. ON JULY 16TH COURT FOUND THAT DEFENDANT SHOULD HAVE AND COULD HAVE RAISED SAID ISSUES ON DIRECT APPEAL, WHEN IN FAC T

DIRECT APPEAL IS ONLY USEFUL FOR ISSUES ON THE RECORD. THE

DEFENDANT USED THE PETITION FOR POST-CONVICTION RELIEF CORRECTL Y. AS IN THESE MATTERS OCCURRED OFF THE RECORD. [SIC]” Failure to File Transcript {¶11} In this case, appellant did not meet his burden, under Appellat e Rule 9(B), and supply this Court with a transcript of the proceedings from his plea and sentencing hearings. {¶12} “The duty to provide a transcript for appellate review falls up on the appellant. This is necessarily so because an appellant bears t he burden of showing error by reference to matters in the record.” Knapp v. Edwards Lab. , 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). This requirement is set forth in Appellate Rule 9(B), which provides, in pertinent part, as follows: “* * * the appellant shall in w riting order from the reporter a complete transcript or a transcript of such parts of the procee dings not already on file as he deems necessary for inclusion in the record * * *.” Additio nally, “[w]hen portions of the transcript necessary fo r resolution of assigned errors are omit ted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court’s proceedings, and affirm.” Knapp v. Edwards Lab. , 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).Muskingum County, Case No. CT2019-0063 5

I. & II. {¶13} In his assignments of error, appellant argues the trial court e rred in denying his petition for post-conviction relief and in denying his requ est for an evidentiary hearing. We disagree. {¶14} The appropriate standard for reviewing a trial court’s decision to dismiss a petition for post-conviction relief, without an evidentiary hea ring, involves a mixed question of law and fact. State v. Durr , 5th Dist. Richland No. 18CA78, 2019-Ohio-807. This Court must apply a manifest weight standard in reviewing a trial court’s findings on factual issues underlying the substantive grounds for relief, b ut we must review the trial court’s legal conclusions de novo. Id. {¶15} Appellant first contends the trial court committed error in fin ding that he did not submit supporting evidence for his petition because he subm itted his own affidavit and requested an evidentiary hearing. {¶16} A defendant may only seek post-conviction relief for violations of his State and Federal Constitutional rights. Both the United States Cons titution and the Ohio Constitution provide for the right to effective assistance of c ounsel. Counsel’s performance will not be deemed ineffective unless and until cou nsel’s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel’s performance. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show a def endant has been prejudiced by counsel’s deficient performance, the defendant mu st demonstrate, but for counsel’s errors, the result of the trial court would have been different. State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).Muskingum County, Case No. CT2019-0063 6

{¶17} In order for a petitioner to be entitled to an evidentiary hear ing in a postconviction relief proceeding on a claim that he was denied effe ctive assistance of counsel, the two-part Strickland test is to be applied. Lockhart v. Fretwell , 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The petitioner must therefore pro ve that: (1) counsel’s performance fell below an objective standard of reasonable repr esentation; and (2) there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different. Id. {¶18} Furthermore, before a hearing is granted in proceedings for pos t-conviction relief upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial burden to submit evidentiary material containing sufficient ope rative facts that demonstrate a substantial violation of any defense counsel’s es sential duties to his client and prejudice arising from counsel’s ineffectiveness. State v. Calhoun , 86 Ohio St.3d 279, 714 N.E.2d 905 (1999); State v. Jackson , 64 Ohio St.2d 107, 413 N.E.2d 819 (1980). {¶19} Appellant asserts his legal counsel refused to get him a psycho logical examination despite his mental illness history and coerced appe llant to take the plea agreement. However, appellant has failed to provide any credib le evidence outside of the record to support these contentions. Additionally, appella nt alleges his plea was not knowing and voluntary because his counsel, the employees at the jail, and the prosecutor coerced him into taking the plea. Appellant contends he submit ted supporting evidence to support these assertions in the form of his affidavit and re quest for evidentiary hearing. {¶20} The Ohio Supreme Court has recognized “[i]n post-conviction cas es, a trial court has a gatekeeping role as to whether a defendant will eve n receive a hearing.” State

v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. Under R. C. 2953.21,Muskingum County, Case No. CT2019-0063 7

a petitioner seeking post-conviction relief is not automaticall y entitled to an evidentiary hearing. State v. Calhoun , 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The Ohio Supreme Court has held that the proper basis for dismissing a p etition for post-conviction relief without holding an evidentiary hearing include: (1) the failure of the petitioner to set forth specific operative facts to establish substantive grounds for relief, and (2) the operation of res judicata to bar the constitutional claims rais ed in the petition. Id; State v.

Lentz , 70 Ohio St.3d 527, 639 N.E.2d 784 (1994).

{¶21} As discussed below, appellant’s arguments are barred by res jud icata and thus the trial court did not commit error in overruling appella nt’s petition without an evidentiary hearing. {¶22} Additionally, appellant presents no evidence outside the record other than his own affidavit to support his claim that his plea was not kn owingly and voluntarily entered. As self-serving testimony, the trial court could give little or no weight to his

affidavit. State v. Calhoun , 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The judge who reviewed appellant’s post-conviction relief petition was the sa me judge who presided at the plea and sentencing hearing of appellant. Thus, the trial judge was familiar with the underlying proceedings and was in the best position to assess t he credibility of appellant.

Id. {¶23} The evidence in the available record does not support the conte ntions in appellant’s affidavit. Appellant executed a plea form on Septe mber 12, 2018 stating he was satisfied with his attorney’s advice and competence, entere d the plea voluntarily, and no promises had been made as part of the plea agreement, except that the parties agreed to a joint sentence recommendation of two years in prison. Wit hout a transcript of theMuskingum County, Case No. CT2019-0063 8

proceedings, appellant cannot demonstrate any error or irregula rity in connection with the trial court’s decision to accept his guilty plea. Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). A presumption of regularity applies to the trial court’s acceptance of appellant’s guilty plea and appellant has shown u s nothing to overcome the presumption {¶24} Further, evidence outside the record alone will not guarantee t he right to an evidentiary hearing. State v. Curtis , 5th Dist. Muskingum No. CT2018-0014, 2018-Ohio2822. A defendant advancing a post-conviction petition is requ ired to present evidence which meets a minimum level of cogency to support his or her cl aims. State v. Scott , 5th Dist. Licking No. 15 CA 81, 15 CA 82, 2016-Ohio-3488. A petiti oner’s self-serving affidavit generally does not meet his or her minimum level of cogency. Id. , citing State v. Kapper , 5 Ohio St.3d 36 (1983); State v. Moncrief, 10th Dist. Franklin No. 08AP-153, 2008-Ohio4594 (holding a defendant’s self-serving affidavit is insuffici ent to support a claim of ineffective assistance of counsel). {¶25} Appellant also contends the trial court committed error by deny ing his petition on the basis of res judicata. {¶26} Under the doctrine of res judicata, a final judgment of convict ion bars the defendant who was represented by counsel from raising and litig ating in any proceeding except an appeal from that judgment any defense or claimed lack of due process that the

defendant raised or could have raised at the trial which result ed in that judgment of conviction or on appeal from that judgment. State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). A defendant who was represented by counsel is barr ed from raising an issueMuskingum County, Case No. CT2019-0063 9

in a petition for post-conviction relief if the defendant raise d or could have raised the issue at trial or on direct appeal. State v. Szefcyk , 77 Ohio St.3d 93, 671 N.E.2d 233 (1996). {¶27} The allegations appellant makes in his petition concerning coer cion on the part of the employees at the jail, prosecutor, and his attorney to accept the guilty plea are issues that could have been raised on direct appeal, as is his allegation that he was refused a psychological examination. Further, appellant could have raised an ineffective assistance of counsel claim with regard to the informed and vol untary nature of his plea on a direct appeal, but did not do so. Therefore, the trial co urt properly denied appellant’s petition on the basis of res judicata. {¶28} The affidavits, documentary evidence, files, and the records do not demonstrate appellant set forth sufficient operative facts to e stablish substantive grounds for relief. Accordingly, the trial court properly denied appel lant’s petition for postconviction relief without holding an evidentiary hearing. {¶29} Based on the foregoing, appellant’s assignments of error are ov erruled.Muskingum County, Case No. CT2019-0063 10

{¶30} The July 16, 2019 judgment entry of the Muskingum County Cour t of

Common Pleas is affirmed.

By Gwin, P.J., and Wise, John, J., concur Hoffman, J., concurs separately

WSG:clw 1016Muskingum County, Case No. CT2019-0063 11

Hoffman, J., concurring

{¶31} I concur in the majority’s analysis and disposition of Appellan t’s first assignment of error. {¶32} Based on the two-issue rule, I would have found Appellant’s sec ond assignment of error moot. However, unlike the majority, I find Appellant’s claims relating to the voluntariness of his plea falls outside the record and, accordingly, not barred by res judicata.