Summary
holding appellant's broad conclusory statements, as a matter of law, do not meet the requirements for an evidentiary hearing under Jackson
Summary of this case from State v. JordanOpinion
No. 80-1316
Decided November 18, 1981.
Criminal Law — Post-conviction relief — Alleged ineffective counsel — Evidentiary hearing properly denied, when.
APPEAL from the Court of Appeals for Mahoning County.
On March 15, 1973, appellant, Benjamin Richard Pankey, and his counsel appeared in the Court of Common Pleas of Mahoning County to answer several charges, which included armed robbery and rape. The court advised appellant of his constitutional rights and the effect of any voluntary waiver. Appellant waived, in writing, his right to an indictment and entered a plea of guilty to armed robbery and rape. A third charge was dropped.
The court sentenced appellant for each offense but ordered that the sentences be served consecutively.
Pursuant to R.C. 2953.31, appellant, on July 13, 1979, filed a motion to vacate or, in the alternative, to set aside sentence, which petition the court dismissed on October 30, 1979. On November 28, 1979, appellant filed a similar petition which the court dismissed on December 20, 1979.
Upon appeal, the Court of Appeals affirmed.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Vincent E. Gilmartin, prosecuting attorney, and Mr. John A. Kicz, for appellee.
Mr. J. Tullis Rogers, Mr. Randall M. Dana and Mr. Harry R. Reinhart, for appellant.
The sole issue in this case is whether the trial court should have held an evidentiary hearing before ruling on appellant's petition for post-conviction relief. We hold that no hearing was required under the facts in this case.
Appellant claims that his counsel's unfamiliarity with his cause prior to his appearance before the court caused an unintelligent waiver of his rights.
This court recently set forth the test for obtaining a hearing when a petition for post-conviction relief is filed. The syllabus, in State v. Jackson (1980), 64 Ohio St.2d 107, is as follows:
"In 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."
Appellant 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.
Furthermore, the record contradicts many of appellant's assertions. For example, appellant argues that his voluntary, written waiver of his rights was made unintelligently. Yet, the record shows that the court apprised appellant of his constitutional rights. The trial court meticulously and thoroughly examined appellant to insure a voluntary and intelligent waiver. The record also demonstrates that counsel had previously explained the circumstances to appellant.
Based upon our discussion in Jackson, supra, and upon the facts herein, we find that the trial court properly dismissed appellant's petition to vacate.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.