2003 Ohio 5597 | Ohio Ct. App. | 2003
{¶ 3} At the change of plea hearing, the trial court specifically informed Bragenzer that the court could sentence him to up to ten years on each count and that the court could order Bragenzer to serve the sentences either consecutively or concurrently. Additionally, the court specifically informed Bragenzer that the State's recommendation of a four-year sentence was in no way binding upon the court. Bragenzer indicated that he understood the maximum sentences and the fact that the recommendation did not bind the court. The court accepted Bragenzer's plea and ordered a pre-sentence investigation prior to sentencing.
{¶ 4} The court sentenced Bragenzer to serve ten years on each count and ordered him to serve the sentences consecutively. Bragenzer's trial counsel withdrew, and the court appointed new counsel to represent him. On appeal, Bragenzer asserted that the trial court erred in ordering him to serve maximum, consecutive sentences. We affirmed Bragenzer's conviction and sentence in State v. Bragenzer, Pickaway App. No. 01CA15,2002-Ohio-6156.
{¶ 5} Bragenzer timely filed a petition for postconviction relief, asserting that he did not receive effective assistance of counsel and that he was deprived of due process of law in that he did not enter his guilty plea knowingly, intelligently, and voluntarily. To his petition, Bragenzer attached his own affidavit and the affidavit of his trial counsel. His trial attorney stated in his affidavit that he had advised Bragenzer that he did not believe that the trial court would substantially deviate from the recommended sentence. Bragenzer stated in his affidavit that his attorney told him the he would get a four-year sentence if he pled guilty, and that his attorney never told him that he could receive a twenty-year sentence.
{¶ 6} The State moved to dismiss the petition. The trial judge who presided over Bragenzer's plea and sentencing also ruled on Bragenzer's petition and denied the petition without a hearing. Bragenzer appeals, asserting the following assignment of error: "The trial court erred when it denied Mr. Bragenzer's postconviction petition without a hearing. Mr. Bragenzer stated substantive grounds for relief by alleging sufficient operative facts to establish that he was denied effective assistance of counsel, and that his plea was not entered into knowingly, voluntary,(sic) and intelligently."
{¶ 8} Pursuant to R.C.
{¶ 10} Here, Bragenzer supported his petition with his own affidavit and with the affidavit of his trial counsel. Although Bragenzer supported his petition with evidence from outside the record, the State argues that Bragenzer's petition is barred by res judicata. The State supports its argument with its contention that, on direct appeal, a defendant may raise claims of ineffective assistance of counsel based upon matters not contained in the record. The State posits, as the trial court held, that this principle of law emerged from our ruling in Statev. Clark, Pickaway App. No. 02CA12, 2002-Ohio-6684. Specifically, the State argues that the defendant in Clark based a successful direct appeal upon matters that were not contained within the court record; namely, Clark's contention that he did not understand, and his trial counsel did not explain to him, that a "recommended sentence" is not binding on the court.
{¶ 11} In fact, this court strictly confined its analysis to the evidence in the record in Clark. The decision was not based upon evidence outside the record; rather, it was based upon the absence of evidence in the record. As we stated in Clark, "[s]trict compliance with Crim.R. 11(C) is preferred; however, a reviewing court will consider a plea to be knowing, intelligent and voluntary so long as the trial judge substantially complies with that rule. In this context, `substantial compliance' means that `under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.'" Clark at ¶ 11 (citations omitted.) Because the trial court did not strictly comply with Crim.R. 11(C), and because the record did not contain evidence which affirmatively demonstrated that Clark subjectively understood the implications of his plea, this court was prevented from determining that the trial court substantially complied with Crim.R. 11(C). Thus, we were unable to affirm that Clark entered his plea knowingly, intelligently and voluntarily.
{¶ 12} Here, Bragenzer supported his claims of ineffective assistance of counsel and denial of due process with affidavits. The affidavits contain information not contained in the record. Because, contrary to the State's assertion, Bragenzer could not have based his direct appeal upon matters not in the record such as his trial counsel's affidavit, Bragenzer's petition is not barred by res judicata.
{¶ 14} A petitioner is not automatically entitled to a hearing just because he attaches an affidavit from outside the record to his petition. State v. Calhoun (1999),
{¶ 15} In addition, when deciding whether to grant a hearing, the trial court may determine issues of credibility and weight based on the affidavits and other documents in the record. Id. at paragraph one of the syllabus; State v. Moore (1994),
{¶ 16} In this case, Bragenzer asserts that his claim of ineffective assistance of counsel, supported by his trial counsel's and his affidavits, constitutes substantive grounds for relief. Bragenzer asserts that his petition and supporting documentation support that his trial counsel's performance was deficient and that he was prejudiced by his counsel's deficient performance, contrary to the standard for effective assistance of counsel articulated in Strickland v. Washington
(1984),
{¶ 17} In his affidavit, Bragenzer's trial counsel stated that he advised Bragenzer that he "did not believe that the Judge would substantially deviate from the joint recommendation," and that he "did not believe * * * the Judge would impose consecutive sentences." In contrast, Bragenzer averred that his attorney told him he would be sentenced to four years in prison and did not tell him he could receive a twenty-year sentence. The transcript of the change of plea hearing reflects that the trial court complied with Crim.R. 11(C), and that Bragenzer indicated that he understood both that the recommended sentence was not binding upon the court and that he could receive consecutive sentences of up to ten years on each count.
{¶ 18} Affording the transcript of the Crim.R. 11 dialogue greater probative value than Bragenzer's affidavit, and presuming the truthfulness of Bragenzer's trial counsel's affidavit, we find that Bragenzer failed to show that there are grounds to believe that he did not receive effective assistance of counsel. Bragenzer's attorney's affidavit does not indicate that he assured Bragenzer that the trial court would follow the sentencing recommendation or that he offered less than reasonable professional assistance in informing Bragenzer that he did not believe the trial court would substantially deviate from the recommendation. His advice to Bragenzer, as described in the affidavit, was consistent with the law and with reasonable professional assistance. Therefore, his affidavit does not indicate deficient performance.
{¶ 19} While Bragenzer's affidavit indicates that his attorney gave him advice that is contrary to law, we give the transcript greater probative value. Additionally, we note that the same trial court judge presided over both Bragenzer's conviction and his petition, and thus the judge had the benefit of observing Bragenzer's demeanor before evaluating the credibility of his affidavit. At his change of plea hearing, Bragenzer affirmed to the trial court that no one assured him that he would receive a sentence of four years, and that he understood the possibility that the trial court would impose the maximum prison term.
{¶ 20} From the above analysis we conclude that, other than Bragenzer's own self-serving affidavit, nothing in the record indicates that Bragenzer's trial counsel's performance was deficient. Therefore, we find that Bragenzer did not set forth sufficient operative facts with supporting affidavits to establish that he did not receive effective assistance of counsel in the trial court.
{¶ 21} Bragenzer also asserts that he set forth sufficient operative facts to support a finding that he did not knowingly, intelligently, and voluntarily enter his guilty plea. To determine whether a defendant has knowingly, intelligently and voluntarily entered a plea, the trial court should engage in a dialogue with the defendant as described in Crim.R. 11(C). State v. Johnson (1988),
{¶ 22} Here, the record reflects that the trial court orally informed Bragenzer of the maximum sentences, the fact that the court could impose the sentences consecutive to each other, and the fact that the sentencing recommendation was not binding on the court. Bragenzer told the court that he understood these facts. His attorney's affidavit does not contradict the transcript of the hearing. Bragenzer's affidavit contradicts the hearing transcript, but carries lesser probative value than the transcript, and is insufficient to rebut the record to the contrary. See Kapper at 37-38. Moreover, "it is well established that a defendant's mistaken belief or impression regarding the consequences of his plea is not sufficient to establish that such plea was not knowingly and voluntarily made." State v. Sabatino (1995),
{¶ 23} Because we find that the petition, the supporting affidavits, and the record do not demonstrate that Bragenzer set forth sufficient operative facts to establish ineffective assistance of counsel or a deprivation of due process, we find that the trial court properly denied Bragenzer's petition without a hearing. Accordingly, we overrule Bragenzer's assignment of error, and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure.
Exceptions.
Evans, P.J. and Abele, J.: Concur in Judgment and Opinion.