dissenting. I respectfully dissent. In my opinion, appellant was entitled to a hearing on either one of two bases.
First, this court’s holding in State v. Milanovich (1975), 42 Ohio St. 2d 46 [71 O.O.2d 26], mandates that appellant be afforded a hearing. The majority, while candidly admitting that these two cases are factually indistinguishable, contends that the adoption of Crim. R. 11, subsequent to the Milanovich decision, mandates a different legal conclusion. I disagree.
In construing the analogous federal rule, the United States Supreme Court stated in Fontaine v. United States (1973), 411 U.S. 213, 215, as follows:
“The objective of Fed. Rule Crim. Proc. 11, of course, is to flush out and resolve all such issues [whether a guilty plea is voluntary], but like any procedural mechanism, its exercise is neither always perfect nor uniformly invulnerable to subsequent challenge calling for an opportunity to prove the allegations.”
I find this analysis compelling. Compliance with Crim. R. 11 should be evidentiary, not conclusive. (Accord Reed v. United States [C.A. 9, 1971], 441 F. 2d 569, 572.) This result is especially warranted in light of the willingness of this court to accept as sufficient less than scrupulous adherence to the dictates of Crim. R. 11. (See, e.g., State v. Stewart [1977], 51 Ohio St. 2d 86, 94 [5 O.O.3d 52] [dissenting opinion]; State v. Billups [1979], 57 Ohio St. 2d 31, 40-41 [11 O.O.3d 150] [dissenting opinion]; State v. Ballard [1981], 66 Ohio St. 2d 473, 482 [20 O.O.3d 397] [dissenting opinion]; and cf. State v. Sturm [1981], 66 Ohio St. 2d 483 [20 O.O.3d 403].)
Indeed, scrupulous adherence to the requirements of Crim. R. 11 would have obviated the need for this appeal, for subdivision (F) of Crim. R. 11 mandates that “* * * in felony cases, [where] a negotiated plea of guilty * * * is offered, the underlying agreement upon which the plea is based shall be stated on the record in open court.”
Secondly, appellant is entitled to a hearing pursuant to the clear language of R.C. 2953.21, Ohio’s post-conviction relief remedy. As was expressed in my dissenting opinion in State v. Jackson (1980), 64 Ohio St. 2d 107, 114-115 [18 O.O.3d 348], when a facially sufficient constitutional claim is dependent upon factual allegations that could not be determined on the basis of the files and records included in a challenge because the claim is dependent upon evidence outside the record, a hearing pursuant to R.C. 2953.21(E), or a summary judgment proceeding pursuant to R.C. 2953.21(D), is necessary to dispose of the petition.
In the instant case, appellant set forth eleven reasons supporting his claim that his guilty plea was coerced and hence the petition presented a facially sufficient constitutional claim. Further, the facts which would support his claim that a “voluntary” plea was in actuality involuntary because counsel gave false promises and misinformation are peculiarly within the knowledge of the appellant and his counsel. Such facts, as evidenced by the *41record herein, are not ordinarily supported by evidentiary documentation.2 The majority suggests that the appellant could have documented his claim by submitting, for example, a letter or affidavit from the court, prosecutors or defense counsel alleging a defect in the plea process. This is clearly unrealistic. The trial court will often be unaware of any such defect, a result which could be avoided if this court would require scrupulous adherence to Crim. R. 11. No prosecutor is likely to admit to a plea process defect once a conviction is obtained and no defense attorney is likely to admit to the same for fear of a malpractice action.
With the decision of this court today, any meaningful post-conviction relief in Ohio is merely an illusion.
Neither this dissent nor my dissent in Jackson should be read as a per se prohibition of all sua sponte dismissals of post-conviction relief petitions. Such dismissals, in my opinion, are proper in instances where a petitioner fails to present a facially sufficient constitutional claim or where a petitioner fails to produce evidentiary documents containing sufficient operative facts when such documents are indeed available. See, e.g., State v. Pankey (1981), 68 Ohio St. 2d 58, 59 [22 O.O.3d 262].