[Cite as State v. McGee, 2019-Ohio-4569.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. CT2019-0063
KRISTOPHER L. MCGEE                           :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Muskingum
                                                  County Court of Common Pleas, Case No.
                                                  CR2018-0521



JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           November 5, 2019



APPEARANCES:



For Plaintiff-Appellee                            For Defendant-Appellant

D. MICHAEL HADDOX                                 KRISTOPHER L. MCGEE A747-405
Prosecuting Attorney                              Ohio State Penitentiary
By: TAYLOR P. BENNINGTON                          878 Coitsville-Hubbard Rd.
Assistant Prosecuting Attorney                    Youngstown, OH 44505
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702-0189
[Cite as State v. McGee, 2019-Ohio-4569.]


Gwin, P.J.

        {¶1}    Appellant Kristopher McGee appeals the July 16, 2019 judgment entry of

the Muskingum County Court of Common Pleas denying his motion for post-conviction

relief. Appellee is the State of Ohio.

                                            Facts & Procedural History

        {¶2}    On August 22, 2018, appellant was charged with one count of escape, in

violation of R.C. 2921.34(A)(1). On September 12, 2018, appellant pled guilty to the

charge.

        {¶3}    Appellant signed a plea of guilty form on September 12, 2018, stating he

understood the maximum penalty for the offense, understood the nature of the charge

and possible defenses, was satisfied with his attorney’s advice and competence, entered

into the plea voluntarily, and no promises had been made as part of the plea agreement,

except that the parties agreed to a joint sentence recommendation of two (2) years in

prison, conditioned upon appellant’s compliance with all bond conditions and with all laws

pending sentencing.

        {¶4}    The trial court issued a sentencing entry on September 13, 2018. In the

sentencing entry, the trial court found appellant made a knowing, intelligent, and voluntary

waiver of his rights and found the plea to be voluntary. The trial court sentenced appellant

to a prison term of two years, to be served consecutively to the sentence imposed in Case

No. CR2018-0520, for an aggregate sentence of twelve years in prison.

        {¶5}    On July 11, 2019, appellant filed a petition to vacate or set aside sentence

with a request for an evidentiary hearing. Appellant stated his guilty plea was secured

without effective assistance of counsel and only after being subject to physical coercion
Muskingum County, Case No. CT2019-0063                                                      3


of the Muskingum County Prosecutor’s Office and Muskingum County Jail. Appellant

alleged ineffective assistance of counsel because his attorney knew he was suffering from

serious mental and emotional abuse by the employees at the jail and took advantage of

his condition by counseling him to accept the plea. Appellant also alleged his right to due

process was violated because the employees at the jail subjected him to torture designed

to force him into compliance with the will of the prosecutor’s office and secure his guilty

plea.

        {¶6}   Appellant attached his own sworn affidavit to his petition. Appellant avers:

he suffered personal physical abuse by the jail administrator and other employees; he

was refused a psychological evaluation despite his extensive mental illness history; they

coerced him into pleading guilty by intimidation, emotional abuse, threats, and physical

abuse; his trial attorney refused to defend him in court; his alleged victims were directly

involved with the corruption of his case; and it will require an evidentiary hearing to adduce

further evidence.

        {¶7}   Appellee filed a memorandum in response to the petition on July 16, 2019.

On July 16, 2019, the trial court issued a judgment entry denying appellant’s petition,

finding appellant failed to provide any evidence to support his claims and the issues could

have been raised on direct appeal and therefore appellant is barred by the doctrine of res

judicata from raising them in a post-conviction relief petition. The trial court also denied

appellant’s request for an evidentiary hearing.

        {¶8}   Appellant appeals the July 16, 2019 judgment entry of the Muskingum

County Court of Common Pleas and assigns the following as error:
Muskingum County, Case No. CT2019-0063                                                      4


       {¶9}   “I. ON JULY 16TH COURT FOUND THAT DEFENDANT FAILED TO

PROVIDE SUPPORTING EVIDENCE OF HIS CLAIMS WHEN IN FACT DEFENDANT

PROVIDED A SWORN AFFIDAVIT IN EVIDENCE. [SIC]

       {¶10} “II. ON JULY 16TH COURT FOUND THAT DEFENDANT SHOULD HAVE

AND COULD HAVE RAISED SAID ISSUES ON DIRECT APPEAL, WHEN IN FACT

DIRECT APPEAL IS ONLY USEFUL FOR ISSUES ON THE RECORD.                                   THE

DEFENDANT USED THE PETITION FOR POST-CONVICTION RELIEF CORRECTLY.

AS IN THESE MATTERS OCCURRED OFF THE RECORD. [SIC]”

                                     Failure to File Transcript

       {¶11} In this case, appellant did not meet his burden, under Appellate Rule 9(B),

and supply this Court with a transcript of the proceedings from his plea and sentencing

hearings.

       {¶12} “The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing error

by reference to matters in the record.” Knapp v. Edwards Lab., 61 Ohio St.2d 197, 400

N.E.2d 384 (1980). This requirement is set forth in Appellate Rule 9(B), which provides,

in pertinent part, as follows: “* * * the appellant shall in writing order from the reporter a

complete transcript or a transcript of such parts of the proceedings not already on file as

he deems necessary for inclusion in the record * * *.” Additionally, “[w]hen portions of the

transcript necessary for resolution of assigned errors are omitted from the record, the

reviewing court has nothing to pass upon and thus, as to those assigned errors, the court

has no choice but to presume the validity of the lower court’s proceedings, and affirm.”

Knapp v. Edwards Lab., 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).
Muskingum County, Case No. CT2019-0063                                                      5


                                               I. & II.

       {¶13} In his assignments of error, appellant argues the trial court erred in denying

his petition for post-conviction relief and in denying his request for an evidentiary hearing.

We disagree.

       {¶14} The appropriate standard for reviewing a trial court’s decision to dismiss a

petition for post-conviction relief, without an evidentiary hearing, involves a mixed

question of law and fact. State v. Durr, 5th Dist. Richland No. 18CA78, 2019-Ohio-807.

This Court must apply a manifest weight standard in reviewing a trial court’s findings on

factual issues underlying the substantive grounds for relief, but we must review the trial

court’s legal conclusions de novo. Id.

       {¶15} Appellant first contends the trial court committed error in finding that he did

not submit supporting evidence for his petition because he submitted his own affidavit

and requested an evidentiary hearing.

       {¶16} A defendant may only seek post-conviction relief for violations of his State

and Federal Constitutional rights. Both the United States Constitution and the Ohio

Constitution provide for the right to effective assistance of counsel.             Counsel’s

performance will not be deemed ineffective unless and until counsel’s performance is

proved to have fallen below an objective standard of reasonable representation and, in

addition, prejudice arises from counsel’s performance. Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show a defendant has been

prejudiced by counsel’s deficient performance, the defendant must demonstrate, but for

counsel’s errors, the result of the trial court would have been different. State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
Muskingum County, Case No. CT2019-0063                                                        6


       {¶17} In order for a petitioner to be entitled to an evidentiary hearing in a post-

conviction relief proceeding on a claim that he was denied effective assistance of counsel,

the two-part Strickland test is to be applied. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct.

838, 122 L.Ed.2d 180 (1993). The petitioner must therefore prove that: (1) counsel’s

performance fell below an objective standard of reasonable representation; and (2) there

exists a reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different. Id.

       {¶18} Furthermore, before a hearing is granted in proceedings for post-conviction

relief upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial

burden to submit evidentiary material containing sufficient operative facts that

demonstrate a substantial violation of any defense counsel’s essential duties to his client

and prejudice arising from counsel’s ineffectiveness. State v. Calhoun, 86 Ohio St.3d

279, 714 N.E.2d 905 (1999); State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980).

       {¶19} Appellant asserts his legal counsel refused to get him a psychological

examination despite his mental illness history and coerced appellant to take the plea

agreement. However, appellant has failed to provide any credible evidence outside of

the record to support these contentions. Additionally, appellant alleges his plea was not

knowing and voluntary because his counsel, the employees at the jail, and the prosecutor

coerced him into taking the plea. Appellant contends he submitted supporting evidence

to support these assertions in the form of his affidavit and request for evidentiary hearing.

       {¶20} The Ohio Supreme Court has recognized “[i]n post-conviction cases, a trial

court has a gatekeeping role as to whether a defendant will even receive a hearing.” State

v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. Under R.C. 2953.21,
Muskingum County, Case No. CT2019-0063                                                       7


a petitioner seeking post-conviction relief is not automatically entitled to an evidentiary

hearing. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The Ohio

Supreme Court has held that the proper basis for dismissing a petition for post-conviction

relief without holding an evidentiary hearing include: (1) the failure of the petitioner to set

forth specific operative facts to establish substantive grounds for relief, and (2) the

operation of res judicata to bar the constitutional claims raised in the petition. Id; State v.

Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784 (1994).

       {¶21} As discussed below, appellant’s arguments are barred by res judicata and

thus the trial court did not commit error in overruling appellant’s petition without an

evidentiary hearing.

       {¶22} Additionally, appellant presents no evidence outside the record other than

his own affidavit to support his claim that his plea was not knowingly and voluntarily

entered. As self-serving testimony, the trial court could give little or no weight to his

affidavit. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999). The judge who

reviewed appellant’s post-conviction relief petition was the same judge who presided at

the plea and sentencing hearing of appellant. Thus, the trial judge was familiar with the

underlying proceedings and was in the best position to assess the credibility of appellant.

Id.

       {¶23} The evidence in the available record does not support the contentions in

appellant’s affidavit. Appellant executed a plea form on September 12, 2018 stating he

was satisfied with his attorney’s advice and competence, entered the plea voluntarily, and

no promises had been made as part of the plea agreement, except that the parties agreed

to a joint sentence recommendation of two years in prison. Without a transcript of the
Muskingum County, Case No. CT2019-0063                                                   8


proceedings, appellant cannot demonstrate any error or irregularity in connection with the

trial court’s decision to accept his guilty plea. Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 400 N.E.2d 384 (1980). A presumption of regularity applies to the trial court’s

acceptance of appellant’s guilty plea and appellant has shown us nothing to overcome

the presumption

       {¶24} Further, evidence outside the record alone will not guarantee the right to an

evidentiary hearing. State v. Curtis, 5th Dist. Muskingum No. CT2018-0014, 2018-Ohio-

2822. A defendant advancing a post-conviction petition is required to present evidence

which meets a minimum level of cogency to support his or her claims. State v. Scott, 5th

Dist. Licking No. 15 CA 81, 15 CA 82, 2016-Ohio-3488. A petitioner’s self-serving affidavit

generally does not meet his or her minimum level of cogency. Id., citing State v. Kapper,

5 Ohio St.3d 36 (1983); State v. Moncrief, 10th Dist. Franklin No. 08AP-153, 2008-Ohio-

4594 (holding a defendant’s self-serving affidavit is insufficient to support a claim of

ineffective assistance of counsel).

       {¶25} Appellant also contends the trial court committed error by denying his

petition on the basis of res judicata.

       {¶26} Under the doctrine of res judicata, a final judgment of conviction bars the

defendant who was represented by counsel from raising and litigating in any proceeding

except an appeal from that judgment any defense or claimed lack of due process that the

defendant raised or could have raised at the trial which resulted in that judgment of

conviction or on appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d

104 (1967). A defendant who was represented by counsel is barred from raising an issue
Muskingum County, Case No. CT2019-0063                                                       9


in a petition for post-conviction relief if the defendant raised or could have raised the issue

at trial or on direct appeal. State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996).

       {¶27} The allegations appellant makes in his petition concerning coercion on the

part of the employees at the jail, prosecutor, and his attorney to accept the guilty plea are

issues that could have been raised on direct appeal, as is his allegation that he was

refused a psychological examination. Further, appellant could have raised an ineffective

assistance of counsel claim with regard to the informed and voluntary nature of his plea

on a direct appeal, but did not do so. Therefore, the trial court properly denied appellant’s

petition on the basis of res judicata.

       {¶28} The affidavits, documentary evidence, files, and the records do not

demonstrate appellant set forth sufficient operative facts to establish substantive grounds

for relief.   Accordingly, the trial court properly denied appellant’s petition for post-

conviction relief without holding an evidentiary hearing.

       {¶29} Based on the foregoing, appellant’s assignments of error are overruled.
Muskingum County, Case No. CT2019-0063                                      10


      {¶30}   The July 16, 2019 judgment entry of the Muskingum County Court of

Common Pleas is affirmed.



By Gwin, P.J., and

Wise, John, J., concur

Hoffman, J., concurs separately




WSG:clw 1016
Muskingum County, Case No. CT2019-0063                                                    11


Hoffman, J., concurring


       {¶31} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error.

       {¶32} Based on the two-issue rule, I would have found Appellant’s second

assignment of error moot. However, unlike the majority, I find Appellant’s claims relating

to the voluntariness of his plea falls outside the record and, accordingly, not barred by res

judicata.
