[Cite as State v. Miller, 2019-Ohio-4275.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                    :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
CHADWICK MILLER                               :       Case No. 2019CA00046
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 2017CR0975



JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     October 15, 2019




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN D. FERRERO                                       CHADWICK MILLER, PRO SE
Prosecuting Attorney                                  6421 Groton Street, NW
                                                      Apt. G1
By: RONALD MARK CALDWELL                              Canton, OH 44708
110 Central Plaza, South
Suite 510
Canton, OH 44702-1413
Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Chadwick Miller, appeals the February 27, 2019

judgment entry of the Court of Common Pleas of Stark County, Ohio, denying his petition

for postconviction relief. Plaintiff-Appellee is state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶ 2} On July 17, 2017, the Stark County Grand Jury indicted appellant on one

count of carrying a concealed weapon in violation of R.C. 2923.12 and one count of

improperly handling firearms in a motor vehicle in violation of R.C. 2923.16.          On

November 20, 2017, appellant pled guilty to the handling count, and the concealed count

was dismissed. By judgment entry filed November 28, 2017, the trial court accepted

appellant's guilty plea and convicted him of said charge. By judgment entry filed January

5, 2018, the trial court sentenced appellant to three years of community control. Appellant

did not appeal his conviction or sentence.

       {¶ 3} On January 31, 2019, appellant filed a petition for postconviction relief,

claiming ineffective assistance of counsel and his plea was not knowingly, voluntarily, and

intelligently made. By judgment entry filed February 27, 2019, the trial court denied the

petition, finding sufficient operative facts were not presented to support appellant's

arguments and/or establish prejudice.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                               I
       {¶ 5} "THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S POST-

CONVICTION PETITION WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS

TO MERIT RELIEF OR, AT A MINIMUM, AN EVIDENTIARY HEARING."

                                              I

       {¶ 6} In his sole assignment of error, appellant claims the trial court erred in

denying his petition for postconviction relief or, at a minimum, afford him an evidentiary

hearing. We disagree.

       {¶ 7} R.C. 2953.21 governs petition for postconviction relief. Subsection (D)

states the following in pertinent part:



              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. In making such a determination, the court shall consider, in addition

       to the petition, the supporting affidavits, and the documentary evidence, all

       the files and records pertaining to the proceedings against the petitioner,

       including, but not limited to, the indictment, the court's journal entries, the

       journalized records of the clerk of the court, and the court reporter's

       transcript.



       {¶ 8} In State v. Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980), the

Supreme Court of Ohio held the following:
              Before a hearing is granted, the petitioner bears the initial burden in

       a post-conviction proceeding to submit evidentiary documents containing

       sufficient operative facts to demonstrate the lack of competent counsel and

       also that the defense was prejudiced by counsel's ineffectiveness.

              Broad assertions without a further demonstration of prejudice do not

       warrant a hearing for all post-conviction petitions.     General conclusory

       allegations to the effect that a defendant has been denied effective

       assistance of counsel are inadequate as a matter of law to impose an

       evidentiary hearing. See Rivera v. United States (C.A. 9, 1963), 318 F.2d

       606.



       {¶ 9} In its judgment entry filed February 27, 2019, the trial court denied appellant

a hearing, stating the following:



              R.C. 2953.21(C) permits dismissal of a petition for post-conviction

       relief "without holding an evidentiary hearing where the petition, the

       supporting affidavits, the documentary evidence, the files, and the records

       do not demonstrate that petitioner set forth sufficient operative facts to

       establish substantive grounds for relief."     Here, Defendant-Petitioner's

       affidavit has not alleged sufficient operative facts that would entitle

       Defendant-Petitioner to an evidentiary hearing. (Citation omitted.)
       {¶ 10} Based upon our review of appellant's arguments, affidavit, and documents

in support of his petition for postconviction relief, we find the trial court did not err in failing

to hold an evidentiary hearing.

       {¶ 11} In his petition, appellant claimed his rights were violated due to ineffective

assistance of trial counsel causing him to enter a guilty plea which was not knowingly,

voluntarily, and intelligently made. At no time did appellant file a Crim.R. 32.1 motion to

withdraw his guilty plea.

       {¶ 12} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. Appellant must establish the following:



               2. 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. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

               3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of the

       trial would have been different.
       {¶ 13} As explained by our colleagues from the Eighth District in State v. Williams,

8th Dist. Cuyahoga No. 100459, ¶ 11:



              A defendant who pleads guilty waives all appealable issues,

       including the right to assert an ineffective assistance of counsel claim,

       except the defendant may claim ineffective assistance of counsel on the

       basis that the counsel's deficient performance caused the plea to be less

       than knowing, intelligent, and voluntary. In such cases, a defendant can

       prevail only by demonstrating that there is a reasonable probability that, but

       for counsel's deficient performance, he would not have pleaded guilty and

       would have insisted on going to trial. (Citations omitted.)



       {¶ 14} Appellant argued his trial counsel failed to file a motion to suppress,

declined to take the case to trial, refused to subpoena witnesses including the FBI, and

failed to advise him of his appeal rights.

       {¶ 15} In its judgment entry filed February 27, 2019, the trial court denied

appellant's petition, stating the following:



              Petitioner provides this Court with a conclusory assertion that his

       counsel should have filed a motion to suppress. He fails to articulate what

       specific evidence he believes should have been suppressed, or on what

       basis such a motion should have been made. He gives this Court no reason

       whatsoever to suspect that such a motion would have been successful.
      "Failure to file a motion to suppress constitutes ineffective assistance of

      counsel only if, based on the record, the motion would have been granted."

      Petitioner has not presented any evidence that such a motion would have

      been granted, and thus, has failed to demonstrate that he was prejudiced

      by the alleged ineffective assistance.

             The Court concludes that the petition and the files and records of the

      case show that Defendant-Petitioner is not entitled to relief. See R.C.

      2953.21(E).      Specifically,   Defendant-Petitioner 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." (Citations omitted.)



      {¶ 16} The trial court noted appellant signed a Crim.R. 11 plea form on November

20, 2017, wherein he acknowledged he understood he had the "right to appeal a

maximum prison term or if the sentence is contrary to law, and that any appeal must be

filed within 30 days of my sentence." Appellant was not sentenced to a prison term, but

was sentenced to three years of community control. Appellant also acknowledged that

he understood he was waiving his right to a trial and his right to subpoena witnesses in

his favor, and his counsel "has effectively and diligently represented me."

      {¶ 17} A review of appellant's petition indicates he did not assert what he wanted

suppressed, what the grounds would have been for the suppression motion, and what

facts would have supported the motion. Appellant did not specify what witnesses his

counsel refused to subpoena and what their proposed testimony would have been.
Appellant retained his own counsel and at no time prior to plea and sentence did appellant

request new counsel because his counsel declined to take the case to trial. During the

plea hearing, appellant acknowledged that he understood his right to have the case tried

and he understood he was waiving that right. November 20, 2017 T. at 6-7. He agreed

his counsel handled his case "in a conscientious and diligent fashion." Id. at 10. Appellant

did not present substantive grounds for relief.

       {¶ 18} Upon review, we find the trial court did not err in not holding an evidentiary

hearing and in denying appellant's petition for postconviction relief.

       {¶ 19} The sole assignment of error is denied.

       {¶ 20} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Baldwin, J. concur.
