[Cite as State v. Hood, 2017-Ohio-8920.]



                             STATE OF OHIO, MONROE COUNTY
                                  IN THE COURT OF APPEALS
                                           SEVENTH DISTRICT

STATE OF OHIO,                                      )
                                                    )
        PLAINTIFF-APPELLEE,                         )
                                                    )           CASE NO. 17 MO 0002
V.                                                  )
                                                    )                  OPINION
JASON G. HOOD,                                      )
                                                    )
        DEFENDANT-APPELLANT.                        )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Monroe County, Ohio
                                                    Case No. 2014-292

JUDGMENT:                                           Affirmed

APPEARANCES:
For Plaintiff-Appellee                              James L. Peters
                                                    Monroe County Prosecutor
                                                    101 N. Main Street, Rm. 15
                                                    Woodsfield, Ohio 43793

For Defendant-Appellant                             Attorney Keith Golden
                                                    923 East Broad Street
                                                    Columbus, Ohio 43205-1101




JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                    Dated: December 4, 2017
[Cite as State v. Hood, 2017-Ohio-8920.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Jason Hood, appeals from a Monroe County
Common Pleas Court judgment granting summary judgment in favor of plaintiff-
appellee, the State of Ohio, on appellant’s postconviction petition.
        {¶2}     On August 15, 2014, a Monroe County Grand Jury indicted appellant
on four counts of rape of a child under 13 years of age, first-degree felonies in
violation of R.C. 2907.02(A)(1)(b), and three counts of gross sexual imposition, third-
degree felonies in violation of R.C. 2907.05(A)(4).
        {¶3}     Appellant initially entered a not guilty plea. But after negotiations, the
state amended two of the rape counts to two counts of sexual battery, second-degree
felonies in violation of R.C. 2907.03(A)(5). It dismissed the remaining five counts
against appellant. Appellant then entered a guilty plea to the amended charges. The
parties also agreed to recommend a sentence of five years on each of the two sexual
battery counts, to be served consecutively for a total sentence of ten years.
        {¶4}     The trial court accepted appellant’s plea.     It entered a judgment of
conviction on November 10, 2015. The court imposed the recommended ten-year
prison sentence. It also classified appellant as a Tier III sex offender. Appellant did
not file a direct appeal.
        {¶5}     Over a year later, on December 8, 2016, appellant filed a postconviction
petition in the trial court alleging ineffective assistance of counsel. He claimed his
counsel was ineffective in failing to request a competency evaluation and in failing to
investigate possible DNA evidence and possible fabricated evidence. Appellant also
asserted that due to his counsel’s ineffectiveness, he was unable to enter a knowing,
voluntary, and intelligent plea.
        {¶6}     The state filed a motion for summary judgment. The state asserted that
appellant had not demonstrated that his counsel’s performance was deficient, or that
he was prejudiced by the alleged deficient performance.              It also argued that
appellant’s claims were barred by the doctrine of res judicata. Finally, the state
asserted appellant had not supported his claims with sufficient operative facts to
establish grounds for relief.
                                                                              -2-


      {¶7}   The trial court denied appellant’s petition without a hearing and granted
the state’s motion for summary judgment.       The court first stated that appellant’s
claims were barred by the doctrine of res judicata.         The trial court also found
appellant failed to support his claims with sufficient operative facts to establish
substantive grounds for relief.    It noted that appellant provided only self-serving
speculative assertions. Finally, the court determined that the record unequivocally
showed that appellant knowingly and voluntarily entered the plea agreement.
      {¶8}   Appellant filed a timely notice of appeal on February 16, 2017. He now
raises a single assignment of error.
      {¶9}   Appellant’s sole assignment of error states:

      THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S MOTION
      FOR SUMMARY JUDGMENT WHICH RESULTED IN THE IMPROPER
      DENIAL OF MR. HOOD’S POST-CONVICTION MOTION.

      {¶10} Appellant argues the trial court abused its discretion in denying his
postconviction petition without holding a hearing. Appellant goes on to argue that his
trial counsel was ineffective because counsel failed to investigate appellant’s claims
that his wife was engaged in an extramarital affair and fabricated evidence against
him. He further claims his counsel failed to investigate evidence that more than one
source of DNA was present.        Next, appellant argues his counsel was ineffective
during plea negotiations. He claims his counsel ignored his demands to take his
case to trial and told him that if he was convicted at trial, he would receive life in
prison. Appellant claims he was pressured into accepting the plea.
      {¶11} A postconviction petitioner is not automatically entitled to a hearing.
State v. Cole, 2 Ohio St.3d 112, 443 N.E .2d 169 (1982).           Before granting an
evidentiary hearing on the petition, the trial court shall determine whether there are
substantive grounds for relief. R.C. 2953.21(C). The trial court's decision of whether
to hold an evidentiary hearing in postconviction matters is reviewed for abuse of
discretion. State v. Haschenburger, 7th Dist. No. 08-MA-223, 2009-Ohio-6527, ¶ 43.
                                                                               -3-


Abuse of discretion connotes more than an error of law; it implies the trial court acted
arbitrarily, unreasonably or unconscionably. Blakemore v. Blakemore, 5 Ohio St .3d
217, 219, 450 N.E.2d 1140 (1983).
       {¶12} We conclude that the trial court did not abuse its discretion in deciding
not to hold a hearing on appellant’s postconviction petition because appellant did not
present substantive grounds for relief in his petition.
       {¶13} Initially, however, we note that res judicata does not bar two of
appellant’s claims here. The doctrine of res judicata provides that any issue that
could have been raised on direct appeal, and was not, is barred in later proceedings
and not subject to review. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824, ¶ 16.
       {¶14} Appellant argued in his petition that his trial counsel was ineffective for
failing to investigate appellant’s claims that his wife was engaged in an extramarital
affair and fabricated evidence against him and for failing to investigate evidence that
more than one source of DNA was present.             These contentions are based on
evidence outside of the record. “[W]hen claims of ineffective assistance are based
on evidence outside the record, the appropriate procedure is to further develop the
record through postconviction proceedings.” State v. Smith, 7th Dist. No. 06-BE-64,
2007-Ohio-5244, ¶ 26.
       {¶15} Res judicata does bar appellant’s claim that he did not enter his plea
knowingly, voluntarily, and intelligently, however. The record contains appellant’s
signed guilty plea stating that his plea is voluntary. Additionally, as part of a direct
appeal, appellant could have requested a transcript of his change of plea hearing.
       {¶16} Nonetheless, the trial court still had valid reason for denying appellant’s
petition without a hearing and granting the state’s motion for summary judgment.
       {¶17} Appellant did not present substantive grounds for relief in his petition.
When a petitioner alleges ineffective assistance of counsel in a postconviction
petition, the petitioner, in order to secure a hearing, must proffer evidence which, if
believed, would establish not only that his trial counsel had substantially violated at
                                                                                 -4-


least one of a defense attorney's essential duties to his client but also that said
violation was prejudicial to the petitioner. State v. Cole, 2 Ohio St.3d 112, 114, 443
N.E.2d 169 (1982).
       {¶18} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the
syllabus. Second, appellant must demonstrate that he was prejudiced by counsel's
performance.    Id.   To show that he has been prejudiced by counsel's deficient
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different.       Bradley, 42 Ohio St.3d at paragraph three of the
syllabus.
       {¶19} Appellant failed to provide any evidence to substantiate his allegations.
Appellant offered only bare allegations in his petition.         He did not attach any
affidavits, not even his own self-serving affidavit, or other evidentiary materials to his
petition in support of his claims.    A petitioner merely offering bare allegations in
support of a postconviction petition does not submit evidence that meets a minimum
level of cogency to support the claim and, therefore, will not compel a hearing. State
v. Short, 7th Dist. No. 96 CO 62, 1998 WL 574758, *4 (Aug. 26, 1998).
       {¶20} Based on the above, the trial court did not abuse its discretion in
denying appellant’s postconviction petition without a hearing.
       {¶21} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
                                                                      -5-


      {¶22} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

DeGenaro, J., concurs.

Robb, P.J., concurs.
