[Cite as State v. Harris, 2020-Ohio-4101.]

                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :         CASE NO. CA2019-07-121

                                                   :              OPINION
     - vs -                                                        8/17/2020
                                                   :

 WAYNE HARRIS, JR.,                                :

        Appellant.                                 :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2017-05-0794


Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Wayne Harris, Jr., #A742927, Ross Correctional Institution, P.O. Box 7010, Chillicothe,
Ohio 45601, pro se



        HENDRICKSON, P.J.

        {¶1}     Appellant, Wayne Harris Jr., appeals from a decision of the Butler County

Court of Common Pleas denying his petition for postconviction relief without holding a

hearing. For the reasons set forth below, we affirm the trial court's decision.

        {¶2}     The underlying facts relevant to appellant's appeal were previously set forth

by this court in State v. Harris, 12th Dist. Butler No. CA2018-04-076, 2019-Ohio-1700, and
                                                                      Butler CA2019-07-121

are as follows:

              On June 14, 2017, appellant was indicted on one count of
              having weapons while under disability in violation of R.C.
              2923.13(A)(2), a felony of the third degree, one count of
              tampering with evidence in violation of R.C. 2921.12(A)(1), a
              felony of the third degree, and one count of receiving stolen
              property in violation of R.C. 2913.51(A), a felony of the fourth
              degree. According to the bill of particulars, the charges
              stemmed from allegations that, on April 30, 2017, while at a
              motel in Fairfield, Ohio, appellant threw a black bag containing
              a stolen firearm out of his room while the police were knocking
              on his door. Because appellant had been previously convicted
              of a felony offense of violence, he was prohibited from knowingly
              acquiring, having, carrying, or using a firearm.

              Appellant initially pled not guilty to the charges. On January 16,
              2018, following plea negotiations, appellant entered a guilty plea
              to having weapons while under disability in exchange for the
              remaining charges being dismissed. Appellant, who was
              represented by counsel, was provided with a Crim.R. 11
              colloquy by the trial court before entering his guilty plea. After
              accepting appellant's plea and finding him guilty, the trial court
              set the matter for sentencing.

              On February 26, 2018, the day before his sentencing hearing
              was scheduled to occur, appellant moved to withdraw his guilty
              plea. The state filed a memorandum in opposition, and a
              hearing on appellant's motion was held on March 12, 2018. At
              that time, appellant's counsel argued for withdrawal of the plea
              by citing to relevant case law and noting that appellant wished
              to have his day in court. Defense counsel contended that the
              state would not be prejudiced if withdrawal of the plea was
              allowed. The trial court ultimately denied appellant's request to
              withdraw his plea, finding that appellant had experienced a
              "mere change of heart" and that withdrawal of the plea would be
              prejudicial to the state. The court further noted that appellant
              had been represented by competent and effective legal counsel,
              afforded a complete and extensive Crim.R. 11 plea colloquy,
              and understood the nature of the charges and the possible
              consequences of pleading guilty. Following the denial of
              appellant's motion to withdraw his guilty plea, the trial court
              sentenced appellant to a 36-month prison term.

Harris at ¶ 2-4.

       {¶3}   Appellant appealed, arguing the trial court erred when it denied his motion to

withdraw his guilty plea and that he received ineffective representation by his trial counsel

                                            -2-
                                                                        Butler CA2019-07-121

relating to his motion to withdraw his guilty plea. Harris at ¶ 8 and 19. We found appellant's

arguments to be without merit, noting that with respect to appellant's ineffective assistance

of counsel claim, he was relying on facts and evidence that were not in the record. Id. at ¶

22.

       {¶4}   While appellant's direct appeal in Harris was pending, appellant filed a motion

for judicial release. This motion was denied by the trial court. On April 8, 2019, after the

denial of his direct appeal, appellant filed a Petition to Vacate or Set Aside Judgment of

Conviction or Sentence and a request for a hearing on his petition. Appellant claimed that

his conviction should be set aside due to a violation of his Sixth Amendment right to effective

assistance by counsel.      Specifically, appellant contended his trial counsel provided

ineffective representation relating to the plea proceedings as counsel (1) misinformed him

of his eligibility for judicial release, (2) misinformed him of "erroneous evidence" the

prosecution had against him; (3) withheld documents that contained "exculpatory

information of ambiguity in the record and inconsistencies during plea negotiations," (4)

"fail[ed] to investigate petitioners [sic] defense," and (5) misinformed him of an "erroneous

maximum sentence of 11.5 years if convicted by trial." Attached to appellant's petition was

his own affidavit, the affidavit of his wife, Adriana Harris, copies of text messages allegedly

sent between Adriana and appellant's trial counsel, correspondence between appellant and

trial counsel following appellant's sentencing, police reports from the April 30, 2017 incident,

and the state's September 12, 2017 response to appellant's request for discovery.

       {¶5}   In her affidavit, Adriana attested that prior to appellant pleading guilty,

appellant's counsel informed appellant, in Adriana's presence, that the state had a gun and

a sworn witness statement as evidence against appellant, that if appellant were found guilty

of all charged offenses he faced a prison sentence of 11.5 years, and that appellant would

get out on judicial release 30 days after pleading guilty and being sentenced. Adriana

                                             -3-
                                                                           Butler CA2019-07-121

further claimed that after appellant pled guilty and was sentenced, appellant's trial counsel

sent her a text regarding his intent to file a motion for judicial release "30 days after

[appellant] was sentenced" and sent correspondence indicating counsel had found

"misplaced documents" relating to appellant's case.

       {¶6}    In his own affidavit, appellant swore to many of the same facts that were

attested to by Adriana. Appellant claimed trial counsel advised him to plead guilty as he

faced an 11.5 year prison sentence if convicted of all charged offenses at trial, trial counsel

had not provided him with his entire case file until after his guilty plea was entered and he

was sentenced, thereby withholding evidence that would have caused him to proceed to

trial rather than enter a plea, trial counsel had misinformed him about his eligibility for judicial

release, and trial counsel misinformed him about the evidence the state had against him,

including a firearm and a sworn witness statement. Appellant's affidavit further stated that

appellant was "innocent of the charge of having weapons while under disability" and that

he informed trial counsel of his innocence as well as of his "belief that [the] officer[s]

fabricated th[e] charge against [him]." Appellant relied on a dispatch log detailing when

Fairfield Police Officers John Cresap and Reed Collier arrived on scene to support his claim

that the officers fabricated the charges brought against him. Appellant contended that

because the dispatch log did not set forth an arrival time for Officer Collier, Officer Collier

was never on the scene and the officers falsified their reports in order to bring false charges

against him.

       {¶7}    The state filed a memorandum in opposition to appellant's petition for

postconviction relief, arguing appellant's petition should be denied as the affidavits and

documents attached to appellant's petition failed to set forth sufficient operative facts

establishing that defense counsel's performance was deficient or that appellant was

prejudiced by the alleged deficiencies. The state challenged the credibility of appellant's

                                               -4-
                                                                        Butler CA2019-07-121

and his wife's affidavits and noted that the dispatch log and police reports that were

allegedly not turned over to appellant by counsel until after the time of appellant's plea do

not support appellant's claims that the charges were fabricated or that there was

exculpatory evidence indicating his innocence. Rather, the reports contained incriminating

evidence that a witness at the motel observed appellant trying to conceal a black bag

containing a stolen firearm and that the firearm recovered by the police was "placed into

property at the Fairfield Police Department to be sent to [the] Miami Valley Regional Crime

Laboratory for DNA, Fingerprints, and Operability."

       {¶8}   On June 26, 2019, the trial court denied appellant's petition for postconviction

relief without holding a hearing after determining substantive grounds for relief had not been

demonstrated. Regarding appellant's claims that he had been misinformed by trial counsel

of judicial release and of the potential penalty he faced if he proceeded to trial and was

convicted of all offenses, the trial court found the supporting affidavits to be self-serving and

not credible. As for appellant's remaining claims, the trial court found that the record and

documents attached to appellant's petition did not support appellant's claims of ineffective

assistance of counsel. In so holding, the trial court noted that the time discrepancy found

in the dispatch log did not logically support appellant's rampant speculation that the charges

against him were fabricated.

       {¶9}   Appellant appealed, pro se, raising three assignments of error. For ease of

discussion, we will address appellant's assignments of error out of order.

       {¶10} Assignment of Error No. 2:

       {¶11} [THE] TRIAL COURT'S ANALYSIS OF APPELLANT'S PETITION [FOR

POSTCONVICTION RELIEF] WAS UNREASONABLE.

       {¶12} In his second assignment of error, appellant contends the trial court erred by

denying his petition for postconviction relief as he has demonstrated "the deficient

                                              -5-
                                                                       Butler CA2019-07-121

performance and the prejudice required to succeed on a claim of [i]neffective [a]ssistance"

of counsel.

       {¶13} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, is a collateral civil attack on a criminal judgment. State v. Dillingham, 12th Dist.

Butler Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841, ¶ 8; State v. Calhoun,

86 Ohio St.3d 279, 281 (1999).       Postconviction relief petitions are governed by R.C.

2953.21, which states, in pertinent part, that

              [a]ny person who has been convicted of a criminal offense or
              adjudicated a delinquent child and who claims that there was
              such a denial or infringement of the person's rights as to render
              the judgment void or voidable under the Ohio Constitution or the
              Constitution of the United States * * * may file a petition in the
              court that imposed sentence, stating the grounds for relief relied
              upon, and asking the court to vacate or set aside the judgment
              or sentence or to grant other appropriate relief. The petitioner
              may file a supporting affidavit and other documentary evidence
              in support of the claim for relief.

R.C. 2953.21(A)(1)(a).

       {¶14} Initial petitions for postconviction relief under R.C. 2953.21 may be resolved

in one of three ways. The trial court may (1) summarily dismiss the petition without holding

an evidentiary hearing pursuant to R.C. 2953.21(D), (2) grant summary judgment on the

petition to either party who moved for summary judgment pursuant to R.C. 2953.21(E), or

(3) hold an evidentiary hearing on the issues raised by the petition pursuant to R.C.

2953.21(F). State v. Statzer, 12th Dist. Butler CA2017-02-022, 2018-Ohio-363, ¶ 12; State

v. McKelton, 12th Dist. Butler No. CA2015-02-028, 2015-Ohio-4228, ¶ 9.

       {¶15} "An evidentiary hearing is not automatically guaranteed each time a

defendant files a petition for postconviction relief." State v. Harding, 12th Dist. Madison No.

CA2019-05-012, 2020-Ohio-1067, ¶ 5. A trial court properly denies a postconviction relief

petition without a hearing if the supporting affidavits, the documentary evidence, the files,


                                             -6-
                                                                       Butler CA2019-07-121

and the records of the case do not demonstrate that the petitioner set forth sufficient

operative facts to establish substantive grounds for relief. State v. Blankenburg, 12th Dist.

Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 9. See also R.C. 2953.21(D).

       {¶16} Where the basis of a petition for postconviction relief is a claim of ineffective

assistance of counsel, the defendant must show that his counsel's actions were outside the

wide range of professionally competent assistance, and that prejudice resulted by reason

of counsel's actions. State v. Martin, 12th Dist. Warren Nos. CA2003-06-065 and CA2003-

06-066, 2004-Ohio-702, ¶ 12, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052 (1984). "[P]rejudice will not be found unless a defendant demonstrates there is a

reasonable probability that, if not for counsel's errors, he would not have pled guilty and

would have insisted on going to trial." State v. Peters, 12th Dist. Clermont No. CA2015-07-

066, 2016-Ohio-5288, ¶ 14.

       {¶17} "A trial court's decision to grant or deny a postconviction petitioner pursuant

to R.C. 2953.21 is upheld absent an abuse of discretion." State v. Watson, 12th Dist. Butler

No. CA2016-08-159, 2017-Ohio-1403, ¶ 14, citing State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, ¶ 58; Peters at ¶ 11. "The term 'abuse of discretion' connotes more than

an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable." Id.

        Withholding of Documents and Advisement of "Erroneous Evidence"

       {¶18} Appellant's claim that he is entitled to postconviction relief as he demonstrated

that trial counsel withheld documents that contained "exculpatory information of ambiguity

in the record" and misinformed him of "erroneous evidence" the state had against him is

without merit. The documents that trial counsel allegedly withheld from appellant were a

dispatch log and police reports authored by Officers Collier and Cresap. Even if we assume,

arguendo, that counsel failed to provide these documents to appellant prior to his guilty plea

                                             -7-
                                                                      Butler CA2019-07-121

being entered, the documents do not provide exculpatory evidence and do not support

appellant's claim that he would not have pled guilty if he had been provided with the reports.

       {¶19} The dispatch log detailed when Officers Collier and Cresap were dispatched

to the scene of the Fairfield motel, as well as when they cleared the scene. According to

the log, Officer Cresap was dispatched at 18:48:31, arrived on scene at 18:48:32, and

cleared the scene at 19:34:18. Officer Collier was not dispatched to the scene until 19:08:58

and did not clear the scene until 19:34:18. The dispatch log did not set forth an arrival time

for Officer Collier. The dispatch log did provide that "40 CALIBER SW REVOLVER" was

recovered at the scene.

       {¶20} Officer Collier's report and Officer Cresap's reports detailed their findings

upon arriving at the scene. Both officers' reports indicated they knocked on the door of

motel room number 206, the room where appellant was staying, after smelling the odor of

burnt marijuana. After the officers knocked on the door, they heard rustling sounds inside

the room.    Officer Collier walked outside and around the building to ensure that no

contraband would be thrown from the motel room's window.

       {¶21} Officer Cresap's report indicates that a female inside room 206 refused to

open the door, stating that there was no marijuana in the room. Eventually appellant

answered the door and denied having marijuana in the room. Appellant provided his name

and date of birth, and Officer Cresap ran the information through dispatch. While this

occurred, Officer Collier informed Officer Cresap that a gym bag with a tag containing the

name "Harris" had been found on the ground outside the motel room near a silver car and

the bag contained a gun and bullets. Officer Cresap detained appellant, read him his rights,

and took him downstairs. Officer Cresap then went to talk to Tonya Meyers, a motel clerk.

According to Officer Cresap's report, Meyers advised that as she was walking outside the

motel near the silver car, she observed a black gym bag sitting on the hood of the car.

                                            -8-
                                                                         Butler CA2019-07-121

Meyers asked appellant, who was leaning out the window of his motel room, whether the

bag was his, and he told her yes. Appellant asked Meyers to put the bag in his car and she

refused. Appellant then stated he would pay Meyers to conceal the bag and he asked her

to place the bag underneath the silver car. Meyers stated she put the bag underneath the

bumper of the car and went to tell Officer Collier about the incident.

       {¶22} Officer Collier's report indicates that when he went outside the motel and

around the back to make sure no contraband was disposed of outside the motel room

window, he encountered Meyers. Meyers advised Officer Collier of a suspicious black bag

in the parking lot near a silver car parked under the room appellant was in. Officer Collier

located the bag sitting underneath the car's front bumper. The officer opened the bag and

found a .40 caliber revolver with .40 caliber rounds within the same enclosure – three rounds

were still in the speed loader and three were loose. The bag had two nametags on it. One

tag, a purple tag commonly found in air travel, had the name "Getaway Harris," an address

in Hamilton, Ohio, and had a phone number listed on it. The second nametag had the name

"Harris" on it with the same phone number as the other tag, as well as an email address.

Officer Collier contacted Officer Cresap to see if anyone in the motel room went by the

name "Harris," and upon being advised of appellant's presence, asked Officer Cresap to

detain appellant. Officer Collier then ran the firearm's serial number through dispatch and

was advised that it had been stolen from a vehicle in February.

       {¶23} Officer Collier's report indicates he rejoined Officer Cresap and a detained

Harris. At this time, Officer Collier was advised of Officer Cresap's conversation with

Meyers regarding appellant asking Meyers to hide the black bag he threw out the window.

Officer Collier's report indicates the black bag had not been in the parking lot when he and

Officer Cresap first arrived on the scene, as they had stood in the parking lot near where

the bag was later located and the bag had not been observed at that time.

                                             -9-
                                                                        Butler CA2019-07-121

       {¶24} Both Officer Cresap's and Officer Collier's reports indicate that the gun that

was found in the black bag was placed into evidence. Officer Collier's report indicated the

"firearm was placed into property at the Fairfield Police Department to be sent to Miami

Valley Regional Crime Laboratory for DNA, Fingerprints, and Operability."

       {¶25} In his memorandum in support of his petition for postconviction relief,

appellant noted the discrepancy in the dispatch log between Officer Cresap's dispatch time

and Officer Collier's dispatch time and argued that the discrepancy "demonstrates that both

Ofc. Cresap and Ofc. Coll[i]er falsified reports." Appellant contended that the two officers

had fabricated the charges against him and argued that if the reports had been turned over

to him by his trial counsel, he would not have entered his guilty plea.

       {¶26} We agree with the trial court that there is no merit to appellant's claim. As the

trial court noted, "[t]he time discrepancy found in the [dispatch log] does not logically support

[appellant's] rampant speculation that the charges against him were fabricated."

Regardless of the exact time Officer Collier arrived on the scene, the police reports

demonstrated Officer Collier and Officer Cresap were both present on the scene on April

30, 2017 and both officers were involved in the arrest and recovery of the firearm concealed

in the black bag. Additionally, as the trial court noted, the notion that appellant would have

insisted on going to trial if he had been provided with the dispatch log and police reports

was "highly unlikely" as the reports were of a highly incriminating nature and, by pleading

guilty, appellant was able to avoid two other felony charges that carried a combined possible

4.5 year prison term. Appellant, therefore, cannot establish he was prejudiced by counsel's

failure to turn over the dispatch log and police reports.

       {¶27} Appellant further cannot prevail on his claim that trial counsel "misinformed"

him of the evidence the state had against him. Appellant stated in his petition that he was

erroneously informed by counsel that the state had a "tangible firearm" and a "sworn witness

                                             - 10 -
                                                                                 Butler CA2019-07-121

statement" from Meyers. Appellant argued the state did not really possess such evidence.

To support this argument, appellant relies on the state's September 12, 2017 discovery

response, which does not mention the sworn statement or the firearm recovered by Officers

Cresap and Collier.

        {¶28} Although the state's discovery response did not list the firearm seized by the

officers at the motel on April 30, 2017 as "tangible evidence," the state's discovery response

identified the Fairfield Police Departments' reports regarding the incident and listed Meyers

as a witness to be called at trial. As detailed above, the police reports describe the events

that occurred on April 30, 2017 at the Fairfield motel. These reports provide that a .40

caliber revolver was recovered on scene and placed into property at the Fairfield Police

Department. The reports also provide an account by Meyers of appellant's actions in

attempting to conceal the black bag containing the stolen firearm. Appellant's claim that he

was "misinformed" by counsel of the evidence the state had against him is disingenuous.

Trial counsel correctly informed appellant of the incriminating evidence the state had

against appellant. Appellant's claim that counsel was deficient is therefore not supported

by the documents attached in support of his petition for postconviction relief.

         Failure to Investigate Defense of Innocence & Fabrication of Charges

        {¶29} Appellant's argument that he is entitled to postconviction relief due to trial

counsel's failure to investigate the defense that he was innocent and the charges against

him had been fabricated is also without merit.1 In his petition, appellant asserted that "[t]he

plausible defense of contesting the ambiguity in the record pertaining to Ofc. Reed Collier's

time of arrival at the scene of crime could have been raised at trial that would have proved




1. As we will discuss in our resolution of appellant's third assignment of error, the only defense appellant
identified with any particularity was an innocence defense, wherein he alleged the charges against him were
fabricated by law enforcement.

                                                  - 11 -
                                                                       Butler CA2019-07-121

petitioner's innocence." As discussed above, the timing of Officer Collier's arrival on the

scene does not logically support appellant's claims of falsification of the charges. Meyer's

statement to the on-scene officers that appellant asked her to help conceal the black bag

containing the firearm, as well as the fact that the firearm was recovered in a bag containing

two nametags with the name "Harris" on it, contradict appellant's claim of innocence and

fabrication of evidence. Counsel was not deficient for not investigating a defense that was

not supported by the record. See, e.g., State v. West, 12th Dist. Butler No. CA2018-09-

183, 2019-Ohio-4826, ¶ 23 (finding appellant's claim of ineffective assistance of counsel for

counsel's alleged failure to investigate the case was without merit where the defense

asserted in a postconviction petition was contradicted by the underlying record). Appellant's

claim that counsel failed to investigate his defense to the charge is, therefore, without merit

and cannot serve as a basis for relief from judgment.

                       Misinformation Regarding Judicial Release

       {¶30} Appellant contends that trial counsel was ineffective for misinforming him of

his eligibility for judicial release. Pursuant to R.C. 2929.20(C)(2), appellant could not seek

judicial release until after he had served 180 days in prison. Appellant claims, however,

that his trial counsel incorrectly advised him that he would be eligible to apply for judicial

release 30 days after pleading guilty to having weapons under disability. In support of his

claim, appellant relied on his own affidavit, the affidavit of his wife, and a text message

purportedly sent by trial counsel to appellant's wife on March 15, 2018, in which the sender

states, "I told you that we would file to get him out 30 days after he was sentenced. That

has never changed."

       {¶31} Where a petitioner attaches affidavits in support of his petition for

postconviction relief, the trial court "should give due deference to [the] affidavits sworn to

under oath * * * but may, in the sound exercise of discretion, judge their credibility in

                                            - 12 -
                                                                         Butler CA2019-07-121

determining whether to accept the affidavits as true statements of fact." Calhoun, 86 Ohio

St.3d at 284. In determining the credibility, or lack thereof, of affidavits submitted in support

of a petition for postconviction relief, a court should consider

              (1) whether the judge reviewing the postconviction relief petition
              also presided at the trial, (2) whether multiple affidavits contain
              nearly identical language, or otherwise appear to have been
              drafted by the same person, (3) whether the affidavits contain
              or rely on hearsay, (4) whether the affiants are relatives of the
              petitioner, or otherwise interested in the success of the
              petitioner's efforts, and (5) whether the affidavits contradict
              evidence proffered by the defense at trial.

Id. at 285. "Depending on the entire record, one or more of these factors or other factors

may be sufficient to justify the conclusion that an affidavit asserting information outside the

record lacks credibility. Such a decision should be within the discretion of the trial court."

Id.

       {¶32} In the present case, the judge who reviewed appellant's petition for

postconviction relief was the same judge who has presided over the case since the time of

appellant's guilty plea and subsequent sentencing. The judge was therefore familiar with

the record and the efforts taken by defense counsel in his representation of appellant. The

trial court judge had before it affidavits from appellant and appellant's wife – two individuals

who were greatly interested in the success of appellant's petition. The two affidavits were

very similar and, at times, contained identical language and assertions. Appellant's affidavit

also relied on hearsay information as it referred to the March 15, 2018 text message that

was allegedly sent by trial counsel to appellant's wife.           As this court has previously

recognized, "Ohio courts have consistently held that affidavits from interested parties such

as defendants, co-defendants, and family members are self-serving and may be

discounted." State v. Robinson, 12th Dist. Butler No. CA2013-05-085, 2013-Ohio-5672, ¶

17; Watson, 2017-Ohio-1403 at ¶ 36. The trial court specifically found that appellant's


                                             - 13 -
                                                                      Butler CA2019-07-121

assertions and those of his wife were not credible.

       {¶33} The trial court also examined the text message purportedly sent by trial

counsel to appellant's wife on March 15, 2018. As the court noted, this message was sent

well after appellant entered his guilty plea on January 16, 2018. As the message was sent

nearly two months after appellant had entered his guilty plea, appellant could not have relied

on the text message to induce him into entering his guilty plea.

       {¶34} Following our review of the record, we agree with the trial court that appellant

and his wife's affidavits lacked credibility and were self-serving. These affidavits, and the

text message referred to in the affidavits, do not set forth sufficient operative facts

demonstrating that defense counsel's performance was deficient or that appellant was

prejudiced by the alleged deficiency.

                     Misinformation Regarding Maximum Sentence

       {¶35} Appellant also contends that trial counsel was ineffective for misinforming him

of the maximum sentence he faced if convicted as charged with having weapons under

disability, tampering with the evidence, and receiving stolen property. Appellant claims

counsel incorrectly advised him that he faced an 11.5-year prison sentence.

       {¶36} The only evidence offered to support appellant's assertion were appellant's

and his wife's self-serving affidavits, which the trial court discounted after considering the

Calhoun factors. As discussed above, we agree with the trial court that the affidavits lacked

credibility and do not establish counsel's performance was deficient.

       {¶37} Additionally, even if counsel was deficient, appellant cannot satisfy the

prejudice prong of his ineffective assistance of counsel claim. Appellant cannot show that

but for counsel's alleged deficient performance in misstating the potential maximum

sentence, he would not have entered a guilty plea. The record reflects that appellant

benefited from a favorable plea deal negotiated by trial counsel. In exchange for pleading

                                            - 14 -
                                                                           Butler CA2019-07-121

guilty to one felony offense, having weapons while under disability, the state agreed to

dismiss two felony charges which carried a potential prison sentence of an additional 4.5

years. Rather than serving a possible 7.5-year sentence, appellant benefited from the plea

agreement and was sentenced to only 36 months in prison. Appellant's claim that he would

have proceeded to trial if he had been informed that he faced a 7.5-year sentence instead

of an 11.5-year sentence is incredulous given the evidence collected by the state, which

included a stolen firearm in a bag with appellant's name on the nametag and a witness who

was asked by appellant to conceal the bag containing the firearm. Appellant's claim that

trial counsel was ineffective for misinforming him of the potential prison sentence he faced

is therefore without merit and cannot serve as a basis for relief from judgment.

       {¶38} Accordingly, having reviewed appellant's arguments, the record, and the

affidavits and documents attached to appellant's petition for postconviction relief, we find

that the trial court did not abuse its discretion in denying appellant's petition for

postconviction relief. Appellant failed to set forth sufficient operative facts to establish his

claim of ineffective assistance of counsel. Appellant's second assignment of error is,

therefore, overruled.

       {¶39} Assignment of Error No. 3:

       {¶40} THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO

RESOLVE ALL CLAIMS IN [APPELLANT'S] R.C. 2953.21 PETITION.

       {¶41} In his third assignment of error, appellant contends the trial court erred by

failing to address all of the claims for relief set forth in his petition for postconviction relief.

Specifically, appellant maintains that the trial court erred by failing to address his fourth

claim for relief, in which he asserted that trial counsel was ineffective for "failing to

investigate petitioners [sic] defense."

       {¶42} R.C. 2953.21(D) explicitly provides that if a court dismisses a petition for

                                               - 15 -
                                                                        Butler CA2019-07-121

postconviction relief, the court "shall make and file findings of fact and conclusions of law

with respect to such dismissal." See also State v. Lester, 41 Ohio St.2d 51, 55 (1975)

(noting that where a trial court denies a petition for postconviction relief without holding a

hearing, "the court is required to make and file findings of fact and conclusions of law as to

the reasons for dismissal and as to the grounds for relief relied upon in the petition"). "The

purpose of requiring findings of fact and conclusions of law is to apprise the petitioner of the

basis for the trial court's disposition and to enable a meaningful appellate review." State v.

Ketterer, 12th Dist. Butler CA2016-08-166, 2017-Ohio-4117, ¶ 33, citing State v. Mapson,

1 Ohio St.3d 217, 219 (1985).

       {¶43} Contrary to appellant's assertions, the trial court did address appellant's claim

that trial counsel failed to "investigate petitioners [sic] defense." The only defense identified

in appellant's petition for postconviction relief was an innocence defense premised upon

appellant's contention that law enforcement fabricated the charges against him. The trial

court expressly considered and rejected this argument and defense in ruling on appellant's

petition.

       {¶44} To the extent that appellant maintains there were other defenses his trial

counsel should have investigated, his petition for postconviction relief failed to set forth the

other defenses with any specificity. The trial court, therefore, was not required to make any

findings of fact or conclusions of law regarding these unknown and unspecified defenses.

Appellant's third assignment of error is without merit and is overruled.

       {¶45} Assignment of Error No. 1:

       {¶46} [THE] TRIAL COURT ERRED IN DENYING APPELLANT'S R.C. 2953.21

PETITION, WITHOUT CONDUCTING AN EVIDENTIARY HEARING TO AFFORD

[APPELLANT] THE OPPORTUNITY TO ESTABLISH HIS CLAIM OF INEFFECTIVE

ASSISTANCE.

                                             - 16 -
                                                                        Butler CA2019-07-121

          {¶47} In his first assignment of error, appellant contends the trial court erred by

denying his petition for postconviction relief without first holding an evidentiary hearing.

          {¶48} As set forth above, "[a]n evidentiary hearing is not automatically guaranteed

each time a defendant files a petition for postconviction relief." Harding, 2020-Ohio-1067

at ¶ 5. See also State v. Clark, 12th Dist. Warren No. CA2008-09-113, 2009-Ohio-2101, ¶

8, citing Calhoun, 86 Ohio St.3d at 282. In order to obtain such a hearing, the petitioner

must show that there are substantive grounds for relief that would warrant a hearing based

upon the petition.      Id.   See also State v. Jackson, 64 Ohio St.2d 107, 110 (1980).

Substantive grounds for relief exist where there was such a denial or infringement of the

petitioner's constitutional rights so as to render the judgment void or voidable.          R.C.

2953.21(A); Calhoun at 282-283. "The burden is on the petitioner to show that the claimed

errors resulted in prejudice before a hearing on a postconviction relief petition is warranted."

State v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 164, citing

Calhoun at 283. "A trial court's decision to summarily deny a postconviction petition without

holding an evidentiary hearing will not be reversed absent an abuse of discretion." Harding

at ¶ 6.

          {¶49} We find that the trial court did not abuse its discretion in denying appellant's

petition for postconviction relief without holding an evidentiary hearing as the petition,

supporting affidavits, the documentary evidence, the files, and the record did not set forth

sufficient operative facts to establish substantive grounds for relief.       See Calhoun at

paragraph two of the syllabus. As discussed in our resolution of appellant's second and

third assignments of error, appellant failed to set forth evidence demonstrating his claims

of ineffective assistance of counsel.       As appellant failed to set forth operative facts

demonstrating trial counsel's performance was deficient or that any of the alleged

deficiencies caused him prejudice, the trial court did not err in denying the petition for

                                              - 17 -
                                                                     Butler CA2019-07-121

postconviction relief without holding an evidentiary hearing. Appellant's first assignment of

error is overruled.

       {¶50} Judgment affirmed.


       S. POWELL and RINGLAND, JJ., concur.




                                           - 18 -
