State v. Murray

[Cite as State v. Murray, 2016-Ohio-4994.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2015-12-029

: OPINION
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:

LARRY G. MURRAY, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. CRI2015-2021

Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Larry G. Murray, #A715-081, Noble Correctional Institution, 15708 McConnelsville Road,
Caldwell, Ohio 43724, defendant-appellant, pro se

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Larry G. Murray, appeals from a decision of the Brown

County Court of Common Pleas denying his petition for postconviction relief and motion to

withdraw his guilty plea. For the reasons set forth below, we affirm the denial of appellant's

motion and petition.

I. FACTS
 Brown CA2015-12-029

{¶ 2} On January 22, 2015, appellant was indicted on one count of aggravated

burglary in violation of R.C. 2911.11(A)(2), a felony of the first degree (count one), one count

of aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree (count

two), one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first

degree (count three), one count of burglary in violation of R.C. 2911.12(A)(1), a felony of the

second degree (count four), and one count of robbery in violation of R.C. 2911.02(A)(2), a

felony of the second degree (count five). The charges arose out of allegations that appellant,

by force, stealth, or deception, trespassed into a home in Brown County, Ohio on October 10,

2014, in order to commit a theft offense. While in this home, appellant encountered the

homeowner and threatened to inflict physical harm on the homeowner before fleeing from the

scene with some of the homeowner's belongings.

{¶ 3} Appellant initially entered a not guilty plea to the charges. However, on April

22, 2015, as part of a negotiated plea deal, appellant, with defense counsel present, pled

guilty to count two of the indictment. In exchange for appellant's guilty plea, the state

recommended a six-year sentence on the aggravated burglary charge and dismissed the

remaining counts set forth in the indictment. The trial court accepted appellant's guilty plea

and proceeded to sentence appellant to six years in prison. Appellant did not appeal from his

conviction or sentence.

{¶ 4} On September 28, 2015, more than five months after entering his guilty plea,

appellant simultaneously moved to withdraw his guilty plea pursuant to Crim.R. 32.1 and

petitioned the court for postconviction relief by filing a "Petition to Vacate or Set Aside

Judgment of Conviction or Sentence" pursuant to R.C. 2953.21. In his motion to withdraw

and his petition for postconviction relief, appellant argued his plea was not knowingly,

intelligently, and voluntarily entered because he was under duress, confused, and suffering

from mental health issues at the time his plea was entered. He further argued he received

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ineffective representation by his trial counsel as trial counsel had failed to investigate his

case, had failed to take into consideration his mental state before recommending he take the

plea deal, and "had [only] ONE meeting with [appellant] – for 5 to 6 minutes IN COURT at

and on the day of plea and sentencing."

{¶ 5} In support of his motion to withdraw his guilty plea and his petition for

postconviction relief, appellant attached an affidavit in which he avers, in relevant part, as

follows:

2) That due to duress and confusion, * * * the entry of my guilty
plea in this matter, and the waiver of my constitutional rights were
not KNOWING, INTELLIGENT, VOLUNTARY, (sic) made.

3) That although the record shows that I sought a six year prison
term and did receive this six year prison term, the waiver of rights
and the entry of this plea were made under duress, in that I was,
at the time, suffering severe mental health issues, that included
depression and anxiety, and had tried to commit suicide while I
was in the Brown County [J]ail.

4) That this was my first ever charge for a violent crime/offense,
and that it was/is by far the longest term of prison that I had ever
faced.

5) That my [trial] counsel * * * had NO interaction with me from
the time of my arrest and the waiver of rights and entry of this
plea. He had only met with me the one time at pre-trial, which is
when this "deal" and the waiver of these rights, and this plea was
made. This of course added to my inability to make a knowing,
intelligent, or voluntary plea or waiver of rights.

6) That while incarcerated at the Brown County Jail, (several
weeks), that I was under cell lock-down/confinement for 20 hours
per day, afforded just rec every 26 to 28 hours and this
compounded my depression and anxiety.

Other than his own affidavit, appellant did not submit any evidence in support of his motion to

withdraw his guilty plea or petition for postconviction relief.

{¶ 6} The state filed a memorandum in opposition to appellant's motion to withdraw

his guilty plea and petition for postconviction relief, arguing appellant had knowingly,

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intelligently, and voluntarily entered his guilty plea after receiving effective representation by

his trial counsel. The state contended appellant's trial counsel had been present at "every

critical stage" of the proceedings and had successfully negotiated a plea bargain which

significantly benefited appellant. The state also argued appellant failed to offer any

corroborating or contemporaneous medical evidence to support his claim that he suffered

from mental health issues at the time he entered his guilty plea.

{¶ 7} On November 19, 2015, the trial court denied both appellant's motion to

withdraw his guilty plea and his petition for postconviction relief without holding a hearing.

The court reviewed a recording of appellant's plea and sentencing hearing and found that

appellant's allegations were "conclusively and irrefutably contradicted by the record." With

respect to appellant's claim that his plea was not knowingly, intelligently, and voluntarily

entered due to mental health problems, the court stated the following:

[Appellant] certainly did not exhibit any signs of mental illness and
appeared to be just the opposite. He clearly understood the
proceedings, admitted his guilt, and even offered details of what
transpired between him and his victim without prompting from the
Court. He thanked the Court for not embarrassing him before his
family by not reading aloud his criminal record. He apologized to
his victim and the Court and asked for help with his addictions.

{¶ 8} The court also found the record did not support appellant's claim that his trial

counsel provided ineffective assistance. The court noted that after trial counsel had filed a

demand for discovery and received discovery from the state, trial counsel negotiated a

favorable plea deal that eliminated four of the five felony counts appellant was facing. This

plea deal also reflected a mid-range prison sentence of six years, which was significantly less

than the maximum 11 years that could have been imposed on appellant's first-degree felony

conviction. The court found trial counsel's negotiations "noteworthy," stating that "a

defendant with [a] criminal history such as [appellant's] * * * would certainly be under

consideration for a maximum sentence and if convicted of multiple counts would be under

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serious consideration for consecutive sentences." Further, with respect to appellant's claim

that trial counsel had failed to properly investigate the case because he had not met with

appellant at the Butler County Jail, the trial court held that appellant "should be happy that his

[c]ounsel spent his time negotiating a good outcome for him. It was probably much better

than it would have been had the [appellant] gone to [t]rial and * * * been convicted of more

than one offense."

{¶ 9} Appellant timely appealed the denial of his motion to withdraw his guilty plea

and his petition for postconviction relief, raising two assignments of error. For ease of

discussion, we will address appellant's assigned errors together.

II. ANALYSIS

{¶ 10} Assignment of Error No. 1:

{¶ 11} [APPELLANT'S] APRIL 22, 2015 (JOURNALIZED APRIL 23, 2015), GUILTY

PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY IN

VIOLATION OF THE [APPELLANT'S] CONSTITUTIONAL DUE PROCESS [sic] AS

PROVIDED IN THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, AND ART. 1, SEC. 10 OF THE OHIO CONSTITUTION.

{¶ 12} Assignment of Error No. 2:

{¶ 13} [APPELLANT'S] APRIL 22, 2015 (JOURNALIZED APRIL 23, 2015), GUILTY

PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY IN

VIOLATION OF THE [APPELLANT'S] CONSTITUTIONAL RIGHT TO EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL AS PROVIDED IN THE FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. I,

SEC. 10 OF THE OHIO CONSTITUTION.

{¶ 14} In his first and second assignments of error, appellant argues the trial court

erred in denying his motion to withdraw his guilty plea and his petition for postconviction

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relief. Appellant argues his mental health issues as well as his trial counsel's deficient

performance prevented his plea from being knowingly, intelligently, and voluntarily entered.

We begin by addressing appellant's arguments as they relate to his motion to withdraw his

guilty plea.

A. Motion to Withdraw a Guilty Plea

{¶ 15} Pursuant to Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea." A defendant who seeks to withdraw a guilty plea after the

imposition of a sentence has the burden of establishing the existence of a manifest injustice.

State v. Williams, 12th Dist. Clermont No. CA2012-08-060, 2013-Ohio-1387, ¶ 11, citing

State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus. A manifest injustice

is defined as "a fundamental flaw in the proceedings that results in a miscarriage of justice or

is inconsistent with the demands of due process." State v. Hobbs, 12th Dist. Warren No.

CA2012-11-117, 2013-Ohio-3089, ¶ 9. "The requirement of demonstrating a manifest

injustice is designed to discourage a defendant from pleading guilty to test the weight of the

potential reprisal, and later attempting to withdraw the plea if the sentence was unexpectedly

severe." Williams at ¶ 13. This sets forth an extremely high standard that is allowable only in

extraordinary cases. State v. Sturgill, 12th Dist. Clermont No. CA2014-09-066, 2015-Ohio-

1933, ¶ 9.

{¶ 16} A trial court is not required to hold an evidentiary hearing on every post-

sentence motion to withdraw a guilty plea. State v. Degaro, 12th Dist. Butler No. CA2008-09-

227, 2009-Ohio-2966, ¶ 13. "A defendant must establish a reasonable likelihood that a

withdrawal of his plea is necessary to correct a manifest injustice before a court must hold an

evidentiary hearing on his motion." State v. Williams, 12th Dist. Warren No. CA2009-03-032,

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2009-Ohio-6240, ¶ 14.

{¶ 17} "A trial court's decision regarding a post-sentence motion to withdraw a guilty

plea is reviewed on appeal under an abuse of discretion standard." State v. Rose, 12th Dist.

Butler No. CA2010-03-059, 2010-Ohio-5669, ¶ 15. An abuse of discretion connotes more

than an error of law or judgment; it implies that the trial court's attitude was arbitrary,

unreasonable, or unconscionable. State v. Robinson, 12th Dist. Butler No. CA2013-05-085,

2013-Ohio-5672, ¶ 14.

{¶ 18} As an initial matter, we note that appellant did not provide this court with a

transcript of the April 22, 2015 plea and sentencing hearing. Normally, when a party fails to

provide a transcript of proceedings, the appellate court has nothing to pass upon and is left to

presume the regularity of the lower court's proceedings. State v. Gregory, 12th Dist. Clinton

No. CA2006-05-016, 2006-Ohio-7037, ¶ 3. However, in the present case, the trial court

reviewed a recording of appellant's April 22, 2015 plea and sentencing hearing before ruling

on appellant's motion to withdraw his guilty plea and his petition for postconviction relief, and

this recording was made part of the record on appeal. See State v. Murray, 12th Dist. Brown

No. CA2015-12-029 (June 13, 2016) (Entry Ordering Supplementation of the Record on

Appeal).

{¶ 19} Having thoroughly reviewed the record before this court, we find that the trial

court did not err in denying appellant's motion to withdraw his guilty plea. The trial court

complied with the requirements of Crim.R. 11(C) at appellant's plea hearing. The court

engaged in a thorough plea colloquy in which the judge explained the nature of the

aggravated burglary charge and the maximum penalty related to the charge, informed

appellant of the effect of a guilty plea and that upon acceptance of the plea the court could

proceed with judgment and sentence, and advised appellant of the statutory and

constitutional rights he would be relinquishing by pleading guilty. Appellant indicated he

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understood the charge he faced and the significance of his guilty plea. Appellant informed

the court that his trial counsel had answered all his questions prior to him signing a plea of

guilty form and he was "confident" he wanted to enter a guilty plea to the aggravated burglary

charge.

{¶ 20} As the trial court complied with Crim.R. 11(C)(2) in accepting appellant's guilty

plea, there is a presumption that appellant's plea was knowingly, voluntarily, and intelligently

made. See State v. Kennell, 12th Dist. Clermont No. CA2015-01-002, 2015-Ohio-4817, ¶ 29.

The burden is on appellant to rebut this presumption by submitting supporting materials to

indicate he is entitled to relief. Id. A defendant's own self-serving declarations or affidavits

are insufficient to rebut a record that shows a plea was made knowingly, intelligently, and

voluntarily. Id., citing State v. Kapper, 5 Ohio St.3d 36, 38 (1983).

{¶ 21} Here, although appellant does not dispute that the trial court complied with

Crim.R. 11(C) in accepting his guilty plea, he nonetheless contends his plea was not

knowingly, voluntarily, and intelligently made because he was "suffering from emotional

illness" and depression at the time the plea was entered. Appellant states that he attempted

to commit suicide while incarcerated at the Butler County Jail and, as a result, was "incapable

of reaching a decision that was made knowingly and intelligently." Essentially, appellant

argues he was incompetent and unable to fully understand the consequences of his guilty

plea.

{¶ 22} "A criminal defendant is presumed to be mentally competent and bears the

burden of rebutting this presumption." State v. Grant, 10th Dist. Franklin Nos. 12AP-650 and

12AP-651, 2013-Ohio-2981, ¶ 10, citing State v. Davis, 7th Dist. Columbiana No. 00 CO 61,

2002-Ohio-3853, ¶ 14, and State v. Fillaggi, 86 Ohio St.3d 230, 236 (1999). "A reviewing

court must give extreme deference to a trial court's determination that a defendant is

competent to knowingly, intelligently, and voluntarily accept a plea." Grant at ¶ 10, citing

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State v. Doak, 7th Dist. Columbiana Nos. 03 CO 15 and 03 CO 31, 2004-Ohio-1548, ¶ 16.

{¶ 23} The only evidence offered by appellant in support of his claim that he was

mentally or emotionally ill at the time he entered his guilty plea is his own self-serving

affidavit. Although appellant argued the "staff and administrators of the Brown County [J]ail

were aware of appellant's attempt to end his life," appellant did not submit an affidavit from

any of the jail's staff members or administrators. He also did not attach any records or

reports from the jail that discussed his alleged suicide attempt.

{¶ 24} Appellant's self-serving statements that he was too distraught to knowingly and

intelligently enter a guilty plea are contradicted by the record. The recording of appellant's

plea hearing, as well as the written guilty plea form executed by appellant, reflect that

appellant knowingly and intelligently exercised his free will and best judgment in entering the

plea. See, e.g., Grant at ¶ 11-12. Numerous times throughout the course of the plea

hearing, appellant indicated he understood what was happening and what rights he was

relinquishing by entering a guilty plea. When asked by the trial court if he "need[ed] a

minute" and if he was "okay" to proceed, appellant responded affirmatively, stating he was

"confident" he wanted to proceed with his guilty plea. Appellant also indicated that all of his

questions had been answered by his trial counsel. These representations by appellant,

combined with appellant's ability to describe the events that transpired between himself and

the victim on the date of the aggravated burglary, express remorse for his wrongdoing,

request help for his gambling and drug addictions, and express appreciation for the court not

reading aloud his extensive criminal history, demonstrate appellant was competent. We

therefore find appellant's arguments to be without merit and conclude that the trial court did

not abuse its discretion in finding appellant's plea was knowingly, intelligently, and voluntarily

entered.

{¶ 25} We further find no merit to appellant's argument that his trial counsel's alleged

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deficient performance prevented him from entering a knowing, intelligent, and voluntary plea.

This court has previously held that "[i]neffective assistance of counsel is a proper basis for

seeking a post-sentence withdrawal of a guilty plea." State v. Worthington, 12th Dist. Brown

No. CA2014-12-022, 2015-Ohio-3173, ¶ 16, citing Robinson, 2013-Ohio-5672 at ¶ 22 and

Sturgill, 2015-Ohio-1933 at ¶ 12. However, a defendant who has entered a guilty plea

waives his right to claim he was prejudiced by ineffective assistance of counsel, "except to

the extent that such ineffective assistance made the plea less than knowing, intelligent, and

voluntary." State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2010-Ohio-2055, ¶

33. See also Kennell, 2015-Ohio-4817 at ¶ 26. In other words, "[w]hen a criminal defendant

has admitted in open court that he is in fact guilty of the offense with which he is charged, he

may not thereafter raise independent claims relating to the deprivation of constitutional rights

that occurred prior to the entry of the guilty plea." State v. Pardon, 12th Dist. Warren No.

CA2000-10-090, 2001 WL 848242, *1 (July 30, 2001), citing Tollett v. Henderson, 411 U.S.

258, 267, 93 S.Ct. 1602 (1973).

{¶ 26} When an alleged error underlying a motion to withdraw guilty plea is based

upon ineffective assistance of counsel, the defendant must show (1) his counsel's

performance was deficient and (2) that there is a reasonable probability that, but for counsel's

errors, he would not have pled guilty. Sturgill at ¶ 12; Strickland v. Washington, 466 U.S.

668, 687-688, 104 S.Ct. 2052 (1984). Counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

judgment. Robinson at ¶ 22; Sturgill at ¶ 12.

{¶ 27} Appellant argues his trial counsel's performance was deficient as trial counsel

failed to (1) investigate appellant's case, (2) take into consideration appellant's mental state

before recommending he take the plea deal, and (3) meet with appellant for more than five or

six minutes to discover his mental health problems or to discuss the case before

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recommending appellant enter a guilty plea.1

{¶ 28} Although appellant believes his trial counsel should have spent more time

meeting with him or investigating his case, the record reveals that trial counsel was an active

participant in appellant's case. See, e.g., Worthington, 2015-Ohio-3173 at ¶ 25. In March

2015, trial counsel filed a request for a bill of particulars and a request for discovery from the

state. After receiving the state's discovery, trial counsel negotiated a beneficial plea bargain

for appellant. Appellant was facing five felony counts and, if convicted of these offenses, he

faced the possibility of multiple, consecutive prison sentences. However, if appellant

accepted the negotiated plea deal, four of the felony counts would be dismissed and the

state would recommend a mid-range prison sentence for appellant's first-degree aggravated

burglary charge. Trial counsel's negotiation of this beneficial plea deal was not deficient.

Furthermore, trial counsel's advice to appellant to accept the negotiated plea deal rather than

proceeding to trial on the charges and facing the possibility of multiple convictions and a

significantly longer prison sentence was not deficient. Id. at ¶ 24; Sturgill, 2015-Ohio-1933 at

¶ 20. As this court has consistently recognized, "trial counsel's advice to take a plea deal is

not ineffective assistance of counsel." Worthington at ¶ 24; Sturgill at ¶ 20; Robinson, 2013-

Ohio-5672 at ¶ 23.

{¶ 29} We further find that trial counsel provided effective representation even though

trial counsel did not investigate appellant's alleged mental health problems to appellant's

satisfaction or challenge appellant's competency. As discussed above, there is nothing in the

record indicating that appellant was incompetent or unable to understand or appreciate the

1. Appellant also argues in his appellate brief that trial counsel was deficient for failing to request a presentence
investigation report and for failing to "make any mitigation evidence" prior to sentencing. These issues, however,
were not raised below in appellant's motion to withdraw his guilty plea or petition for postconviction relief. As it is
"well-settled that issues not raised in the trial court may not be raised for the first time on appeal," we will not
consider appellant's arguments. State v. Guzman-Martinez, 12th Dist. Warren No. CA2010-06-059, 2011-Ohio-
1310, ¶ 9.

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nature of the proceedings he faced. The record reveals appellant met with his trial counsel

prior to entering his guilty plea, trial counsel answered all of appellant's questions, appellant

was "confident" he wanted to enter a guilty plea, and appellant was "satisfied with [his trial]

attorney's advice, counsel and competence." Trial counsel exercised reasonable judgment in

his representation of appellant, and this court will not second guess trial counsel's strategic

decision to proceed with the plea hearing—especially in light of appellant's representations to

the trial court that he was ready to enter his guilty plea. See State v. Raypole, 12th Dist.

Fayette No. CA2014-05-009, 2015-Ohio-827, ¶ 23 ("It is not the role of the appellate court to

second guess the strategic decisions of trial counsel").

{¶ 30} Accordingly, for the foregoing reasons, we conclude that the trial court did not

abuse its discretion in denying appellant's request to withdraw his guilty plea. Denial of

appellant's motion to withdraw his guilty plea was proper as appellant received effective

representation by his trial counsel and his guilty plea was knowingly, intelligently, and

voluntarily entered.

B. Petition for Postconviction Relief

{¶ 31} Appellant also contends his petition for postconviction relief should have been

granted as there were "constitutional errors" that resulted from his plea not being knowingly,

intelligently, and voluntarily entered. Appellant again contends that his mental health issues

as well as his trial counsel's deficient performance prevented him from entering a valid plea.

{¶ 32} Postconviction relief petitions are governed by R.C. 2953.21, which states, in

pertinent part, the following:

(A)(1)(a) Any person who has been convicted of a criminal
offense or adjudicated a delinquent child 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
Constitution 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 court to vacate or set aside

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the judgment or sentence or to grant other appropriate relief. The
petitioner may file a supporting affidavit and other documentary
evidence in support of the claim for relief.

***

(C) * * * Before granting a hearing on a petition filed under
division (A) of this section, the court shall determine whether
there are substantive grounds for relief. * * * If the court dismisses
the petition, it shall make and file findings of fact and conclusions
of law with respect to such dismissal.

***

(E) Unless the petition and the files and records of the case show
the petitioner is not entitled to relief, the court shall proceed to a
prompt hearing on the issues even if a direct appeal of the case
is pending.

{¶ 33} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, is a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist. Butler

Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, ¶ 8; State v. Calhoun, 86 Ohio

St.3d 279, 281 (1999). Initial petitions for postconviction relief under R.C. 2953.21 may be

resolved in one of three ways. "[T]he trial court may (1) summarily dismiss the petition

without holding an evidentiary hearing pursuant to R.C. 2953.21(C), (2) grant summary

judgment on the petition to either party who moved for summary judgment pursuant to R.C.

2953.21(D), or (3) hold an evidentiary hearing on the issues raised by the petition pursuant to

R.C. 2953.21(E)." State v. McKelton, 12th Dist. Butler No. CA2015-02-028, 2015-Ohio-4228,

¶ 9.

{¶ 34} "An evidentiary hearing is not automatically guaranteed each time a defendant

makes a petition for postconviction relief." State v. Vore, 12th Dist. Warren Nos. CA2012-06-

049 and CA2012-10-106, 2013-Ohio-1490, ¶ 11. A trial court properly denies a

postconviction relief petition without a hearing if the supporting affidavits, the documentary

evidence, the files, and the records of the case do not demonstrate that the petitioner set

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forth sufficient operative facts to establish substantive grounds for relief. State v.

Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 9. See also R.C.

2953.21(C). "Substantive grounds for relief exist where there was a denial or infringement of

the petitioner's constitutional rights so as to render the judgment void or voidable." McKelton

at ¶ 10.

{¶ 35} A trial court's decision to summarily deny a postconviction petition without

holding an evidentiary hearing is left to the sound discretion of the trial court. Id. at ¶ 11;

Dillingham at ¶ 8. Further, an appellate court "will not overrule the trial court's finding on a

petition for postconviction relief where the finding is supported by competent and credible

evidence." McKelton at ¶ 11, citing State v. Mathes, 12th Dist. Clermont No. CA2013-02-

014, 2013-Ohio-4128, ¶ 11.

{¶ 36} In the present case, we find no error in the trial court's decision to deny

appellant's petition for postconviction relief without holding an evidentiary hearing.

Appellant's claim of ineffective assistance of counsel and his claim that his plea was not

knowingly, intelligently, and voluntarily entered are not supported by the record. With respect

to appellant's ineffective assistance of counsel claim, appellant again argues his trial counsel

was ineffective for failing to investigate his case, failing to meet with him on more than one

occasion, and failing to consider appellant's mental health before recommending appellant

accept the plea deal and enter a guilty plea. However, as we discussed in our resolution of

appellant's motion to withdraw his guilty plea, appellant failed to demonstrate that his trial

counsel's performance fell below an objective standard of reasonableness. See Strickland,

466 U.S. 687-688. As appellant failed to set forth sufficient operative facts demonstrating

trial counsel's performance was deficient, he is not entitled to relief under R.C. 2953.21.

See, e.g., Worthington, 2015-Ohio-3173 at ¶ 51.

{¶ 37} Additionally, appellant's claim that he is entitled to postconviction relief as his

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guilty plea was not knowingly, intelligently, and voluntarily entered is without merit.

Appellant's self-serving affidavit attached in support of his petition for postconviction relief

does not set forth sufficient operative facts demonstrating appellant was incompetent at the

time the plea was entered. Rather, as discussed above, the record demonstrates that at his

plea and sentencing hearing, appellant informed the court he understood the rights he was

giving up by entering the guilty plea, stated he was "confident" he wanted to enter the plea,

described the events that transpired between himself and the victim, apologized for his

actions, asked the court for treatment for his gambling and drug addictions, and thanked the

court for not reading aloud his extensive criminal history. Appellant's actions demonstrate

that he was competent and he knowingly, intelligently, and voluntarily entered his guilty plea.

{¶ 38} Accordingly, given the foregoing, we conclude that the trial court did not abuse

its discretion in denying appellant's petition for postconviction relief. The trial court properly

considered and weighed the evidence submitted in support of appellant's petition before

denying said petition on the basis that appellant failed to set forth substantive facts

supporting his claims for relief.

III. CONCLUSION

{¶ 39} For the reasons set forth above, we find that the trial court did not abuse its

discretion in denying appellant's motion to withdraw his guilty plea or his petition for

postconviction relief. Appellant's first and second assignments of error are, therefore,

overruled.

{¶ 40} Judgment affirmed.

PIPER, P.J., and RINGLAND, J., concur.

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