State v. Kapper, 82-925

• Citation: 5 Ohio St.3d 36,448 N.E.2d 823,5 OBR 94
• Decision Date: 18 May 1983
• Docket Number: No. 82-925,82-925
• Parties: , 5 O.B.R. 94 The STATE of Ohio, Appellee, v. KAPPER, Appellant.
• Court: United States State Supreme Court of Ohio

Page 36

5 Ohio St.3d 36

448 N.E.2d 823, 5 O.B.R. 94

The STATE of Ohio, Appellee, v. KAPPER, Appellant.

No. 82-925.

Supreme Court of Ohio.

May 18, 1983.

In August 1979, the Summit County Grand Jury indicted appellant, Kenneth Kapper, on two counts of rape, two counts of aggravated menacing, one count of kidnapping, and one count of grand theft. Appellant's counsel and the prosecutor's office subsequently negotiated a plea bargain whereby appellant would plead guilty to one rape count and the grand theft count and the prosecutor would request dismissal of the remaining charges. Pursuant to this agreement appellant entered guilty pleas to the two charges and the court dismissed the other counts on September 17, 1979. The court sentenced appellant to the Ohio State Reformatory at Mansfield to terms of four to twenty-five years for rape and six months to five years for grand theft, the sentences to be served consecutively.

On July 6, 1981, appellant filed a petition for post-conviction relief, pursuant to R.C. 2953.21. The petition alleged that appellant's guilty pleas were induced by " * * * coercion--misrepresentation; ineffective assistance of counsel; violation of plea-bargain agreement * * *." ¹ Appellee moved to dismiss, which motion the court sustained without a hearing on September 9, 1981. On appeal, the court of appeals affirmed, holding that appellant was not entitled to an evidentiary hearing because the record "conclusively and affirmatively" proved that appellant was not coerced into pleading guilty and that his counsel had not been ineffective as measured by State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819 , and State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304 .

The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Columbiana County in State v. Carter (Aug. 14, 1981), No. 81-C-11, unreported, certified the record of the case to this court for review and final determination.

Lynn C. Slaby, Pros. Atty., and Philip D. Bogdanoff, Akron, for appellee.

J. Dean Carro, Akron, and Appellate Review Office, School of Law, University of Akron, for appellant.

PER CURIAM.

The question certified to this court by the court of appeals "is whether a trial court must hold an evidentiary hearing in a post-conviction proceeding brought pursuant to R.C. 2953.21 et seq., wherein it is alleged that the plea of guilty was coerced and where the record shows that, prior to the acceptance of the plea of guilty, the trial court was told by the petitioner that no promises had been made to the petitioner to induce the plea of guilty." Appellant also raises issues of whether he was denied the effective assistance of counsel and whether the plea bargain was kept.

Appellant relies primarily on State v. Milanovich (1975), 42 Ohio St.2d 46, 325 N.E.2d 540 , to support his contention that he should have been afforded an evidentiary hearing pursuant to R.C. 2953.21(E). Milanovich was a post-conviction relief case wherein the petitioner alleged that "his guilty plea was induced by counsel's [off-the-record] promise that 'shock parole' would be granted * * *." Id. at 49, 325 N.E.2d 540. This court held in paragraph one of the syllabus that, "[w]here a claim raised by a petition for postconviction relief under R.C. 2953.21 is sufficient on its face to raise an issue that petitioner's conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief."

Appellant contends that the instant case falls under the rule of Milanovich because his petition alleged off-the-record promises and further alleged that counsel had advised him to deny to the court that any promises had been made. If the legal landscape had remained unchanged from the time the petitioner in Milanovich entered his plea and the time appellant entered his pleas, then the instant case would seemingly be controlled by Milanovich. The law has changed significantly, however, as a result of the adoption of the Criminal Rules, and more specifically Crim.R. 11. " * * * Crim.R. 11, effective July 1, 1973, and similar to F.R.Crim.P. 11, remedies the problems inherent in a subjective judgment by the trial court as to whether a defendant has intelligently and voluntarily waived his constitutional rights and ensures an adequate record on review by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is understandably and voluntarily made." State v. Stone (1975), 43 Ohio St.2d 163, 167-168, 331 N.E.2d 411 . In the case at bar it is uncontroverted that the court complied with the requirements of Crim.R. 11, thereby providing the post-conviction court with a far more adequate record than was available in Milanovich. The dialogue between court and defendant envisioned by Crim.R. 11 is substantively meaningful. State v. Ballard (1981), 66 Ohio St.2d 473, 423 N.E.2d 115 . While we acknowledge that compliance with Crim.R. 11 does not absolutely immunize a guilty plea from collateral attack, we are satisfied that a record reflecting compliance with Crim.R. 11 has greater probative value than the record containing a signed statement, which we held not to be conclusive, in Milanovich.

The state argues for a standard in determining whether an evidentiary hearing should be held on a post-conviction petition that is largely borrowed from State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819 . In Jackson, we held that "[i]n a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness." The state offers the following rationale to support the analogous application of Jackson in the guilty plea context:

"As in the case of ineffective assistance of counsel, an allegation of a coerced guilty plea involves actions over which the State has no control. Therefore, the defendant must bear the initial burden of submitting affidavits or other supporting materials to indicate that he is entitled to relief. Defendant's own self-serving declarations or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review which shows that his plea was voluntary. A letter or affidavit from the court, prosecutors or defense counsel alleging a defect in the plea process may be sufficient to rebut the record on review and require an evidentiary hearing."

We find this rationale persuasive. Accordingly, we hold that a petition for post-conviction relief is subject to dismissal without a hearing when the record, including the dialogue conducted between the court and the defendant pursuant to Crim.R. 11, indicates that the petitioner is not entitled to relief and that the petitioner failed to submit evidentiary documents containing sufficient operative facts to demonstrate that the guilty plea was coerced or induced by false promises.

In the instant case the record indicates that appellant was not entitled to relief and that he failed to submit evidentiary documents apart from the bare allegations contained in his complaint. Appellant did not carry his initial burden and, therefore, the courts below did not err in denying him an evidentiary hearing.

Appellant's ineffective assistance of counsel claims are controlled by Jackson and the recent case of State v. Pankey (1981), 68 Ohio St.2d 58, 428 N.E.2d 413 . In Pankey we stated, at 59, 428 N.E.2d 413, that "[a]ppellant cites various occurrences in order to illustrate his counsel's ineffectiveness. These allegations, however, do not meet the burden of proof established by this court in Jackson, supra. Appellant has not submitted, 'evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness.' Rather, he has made broad conclusory statements which, as a matter of law, do not meet the requirements for an evidentiary hearing."

Appellant contends that his petition was sufficient because it was replete with particulars. While Jackson disapproved of "[b]road assertions," 64 Ohio St.2d at 111, 413 N.E.2d 819, and Pankey rejected "broad conclusory statements" 68 Ohio St.2d at 59, 428 N.E.2d 413, neither case turned on whether the allegations were specific. Rather, the absence of "evidentiary documents containing sufficient operative facts" governed the outcome. Appellant concedes that "no documents were submitted in support of * * * [his] claims." Consequently, the courts below properly applied Jackson in refusing to order an evidentiary hearing on the ineffectiveness of counsel claim.

Appellant's final proposition concerning whether the plea bargain was kept is but a variation on the certified question. Appellant claims that the imposition of consecutive sentences and his transfer from the Ohio State Reformatory were contrary to the negotiated agreement. The record indicates appellant acknowledged that the court could impose consecutive sentences and that the state recommended "the minimum consecutive sentence * * *." The record further indicates that appellant was sentenced to the reformatory pursuant to the plea bargain even though upon turning thirty he was transferred to the Ohio Penitentiary. Under these circumstances it cannot be said that the state has failed to keep the plea bargain and appellant's reliance on State v. Bowen (1977), 52 Ohio St.2d 27, 368 N.E.2d 843 , and Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, is misplaced.

For the reasons hereinbefore stated the judgment of the court of appeals is affirmed.

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