State v. Calhoun

[This opinion has been published in Ohio Official Reports at 

86 Ohio St.3d 279

.]




            THE STATE OF OHIO, APPELLANT, v. CALHOUN, APPELLEE.
                     [Cite as State v. Calhoun, 

1999-Ohio-102

.]
Appellate procedure—Review by trial court of petition for postconviction relief
        filed pursuant to R.C. 2953.21—Due deference to be given to affidavits
        sworn to under oath and filed in support of petition—Trial court not
        required to accept the affidavits presented as true statements of fact—Trial
        court properly denies petition for postconviction relief without holding an
        evidentiary hearing, when—Trial court properly denies petition for
        postconviction relief and issues proper findings of fact and conclusions of
        law, when.
1.      In reviewing a petition for postconviction relief filed pursuant to R.C.
        2953.21, a trial court should give due deference to affidavits sworn to under
        oath and filed in support of the petition, but may, in the sound exercise of
        discretion, judge the credibility of the affidavits in determining whether to
        accept the affidavits as true statements of fact.
2.      Pursuant to R.C. 2953.21(C), a trial court properly denies a defendant’s
        petition for postconviction 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.
3.      A trial court properly denies a petition for postconviction relief, made
        pursuant to R.C. 2953.21, and issues proper findings of fact and conclusions
        of law where such findings are comprehensive and pertinent to the issues
        presented, where the findings demonstrate the basis for the decision by the
        trial court, and where the findings are supported by the evidence.
     (No. 98-1627—Submitted April 20, 1999—Decided September 1, 1999.)
                              SUPREME COURT OF OHIO




          APPEAL from the Court of Appeals for Lake County, No. 97-L-063.
                               __________________
          {¶ 1} On August 23, 1989, the Lake County Grand Jury indicted Michael
Calhoun, defendant-appellee, on counts of attempted aggravated murder (R.C.
2923.02), felonious assault (R.C. 2903.11), kidnapping (R.C. 2905.01), rape (R.C.
2907.02), aggravated robbery (R.C. 2911.01), aggravated burglary (R.C. 2911.11),
and theft (R.C. 2913.02).       Defendant’s counsel and the prosecutor’s office
negotiated a plea agreement whereby defendant would plead guilty to attempted
aggravated murder, rape, and aggravated burglary, and the prosecutor would
request dismissal of the remaining charges.
          {¶ 2} On August 2, 1990, the trial court informed defendant of his rights
pursuant to Crim.R. 11(C)(2). Defendant entered an oral plea of guilty to the
charges in the negotiated plea agreement. Further, defendant executed a written
plea of guilty to those charges. On August 7, 1990, the trial court entered a nolle
prosequi on the kidnapping, aggravated robbery, theft, and felonious assault counts.
On September 4, 1990, the trial court sentenced defendant to an indefinite term of
ten to twenty-five years on the attempted aggravated murder charge, ten to twenty-
five years on the rape charge, and five to twenty-five years on the aggravated
burglary charge. The court ordered that all sentences run consecutively.
          {¶ 3} On November 29, 1993, defendant filed a pro se notice for
postconviction relief requesting copies of his trial transcripts, and a motion for
production of certain records and transcripts at the state’s expense. On February
16, 1994, the trial court granted defendant’s request for copies of transcripts and
production of court records. As defendant did not raise any issues for consideration,
the trial court did not make any rulings on the petition for postconviction relief
itself.
          {¶ 4} On September 23, 1996, defendant, represented by counsel, filed a
petition to vacate conviction and set aside sentence (a postconviction relief petition)




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                                      January Term, 1999




pursuant to R.C. 2953.21.             Defendant claimed that he did not knowingly,
intelligently, and voluntarily waive his constitutional rights in entering his guilty
plea. Defendant argued that his trial counsel coerced him into pleading guilty, and
he claimed that counsel was also ineffective in failing to file a motion to withdraw
defendant’s guilty plea, upon his request, before sentencing. In support of his
claims, defendant attached his own affidavit, the change of plea hearing transcript,
and the sentencing hearing transcript.
         {¶ 5} After the state responded to the petition with the affidavit of
defendant’s trial counsel, the defendant filed a motion to supplement his petition
with an affidavit of his mother, Linda Calhoun, and the presentence report and
psychiatric evaluation prepared for defendant’s sentencing hearing. The trial court
granted the request.
         {¶ 6} On March 10, 1997, the trial court overruled defendant’s petition
without a hearing, finding that defendant had not set forth substantive grounds to
warrant a hearing. On appeal, the Court of Appeals for Lake County reversed and
remanded the cause for the trial court to hold an evidentiary hearing on the petition
for postconviction relief and for the trial court to issue more specific findings of
fact and conclusions of law. The court found that the issue of whether trial counsel
had failed to file a motion to withdraw a guilty plea on defendant’s behalf was
unresolved.1
         {¶ 7} The cause is now before this court upon the allowance of a
discretionary appeal.
                                     __________________
         Charles E. Coulson, Lake County Prosecuting Attorney, and Julie
Mitrovich King, Assistant Prosecuting Attorney, for appellant.


1. The court of appeals considered only the issue of whether it was ineffective assistance for counsel
to refuse to withdraw defendant’s guilty plea because defendant did not pursue the coercion theory
on appeal.




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        R. Paul LaPlante, Lake County Public Defender, and Vanessa R.
MacKnight, Assistant County Public Defender, for appellee.
                               __________________
        LUNDBERG STRATTON, J.
        {¶ 8} We are called upon to answer three questions. First, must a trial court,
when considering a postconviction relief petition, accept the affidavits presented as
true?   Second, did the trial court err in dismissing defendant’s petition for
postconviction relief on the allegation of ineffective assistance of counsel without
holding an evidentiary hearing? Third, were the trial court’s findings of fact and
conclusions of law adequate to satisfy the requirements of R.C. 2953.21? For the
reasons below, we answer the first two questions in the negative, the last question
in the affirmative, and reverse the judgment of the court of appeals.
                       Ohio’s Post-Conviction Remedy Act
        {¶ 9} R.C. 2953.21, Ohio’s Post-Conviction Remedy Act, was enacted in
1965 in response to the United States Supreme Court order that states must provide
their prisoners with some “clearly defined method by which they may raise claims
of denial of federal rights.” Young v. Ragen (1949), 

337 U.S. 235, 239

, 

69 S.Ct. 1073, 1074

, 

93 L.Ed. 1333, 1336

.
        {¶ 10} State collateral review itself is not a constitutional right. State v.
Steffen (1994), 

70 Ohio St.3d 399, 410

, 

639 N.E.2d 67, 76

, citing Murray v.
Giarratano (1989), 

492 U.S. 1

, 

109 S.Ct. 2765

, 

106 L.Ed.2d 1

.              Further, a
postconviction proceeding is not an appeal of a criminal conviction but, rather, a
collateral civil attack on the judgment. See Steffen at 410, 

639 N.E.2d at 76

, citing
State v. Crowder (1991), 

60 Ohio St.3d 151

, 

573 N.E.2d 652

. Therefore, a
petitioner receives no more rights than those granted by the statute.
        {¶ 11} “It may be useful to note that cases of postconviction relief pose
difficult problems for courts, petitioners, defense counsel and prosecuting attorneys
alike. Cases long considered to be fully adjudicated are reopened, although




                                          4
                                  January Term, 1999




memories may be dim and proof difficult. The courts justifiably fear frivolous and
interminable appeals from prisoners who have their freedom to gain and
comparatively little to lose.” State v. Milanovich (1975), 

42 Ohio St.2d 46, 51

, 

71 O.O.2d 26, 29

, 

325 N.E.2d 540, 543

.
        {¶ 12} R.C. 2953.21 provides:
        “(A)(1) Any 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.
        “***
        “(C) * * * Before granting a hearing on the 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 record of the
clerk of the court, and the court reporter’s transcript. The court reporter’s transcript,
if ordered and certified by the court, shall be taxed as court costs. If the court
dismisses the petition, it shall make and file findings of fact and conclusions of law
with respect to such dismissal.
        “(D) Within ten days after the docketing of the petition, or within any
further time that the court may affix for good cause shown, the prosecuting attorney
shall respond by answer or motion. Within twenty days from the date the issues
are made up, either party may move for summary judgment. The right to summary




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judgment shall appear on the face of the record.
       “(E) Unless the petition and the files and records of the case show the
petitioner is not entitled to relief, the court shall proceed to a prompt hearing on
the issues even if a direct appeal of the case is pending.” (Emphasis added.)
       {¶ 13} According to the postconviction relief statute, a criminal defendant
seeking to challenge his conviction through a petition for postconviction relief is
not automatically entitled to a hearing. State v. Cole (1982), 

2 Ohio St.3d 112

, 2
OBR 661, 

443 N.E.2d 169

. 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]), i.e., whether there are grounds to believe 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.”
(Emphasis added.) R.C. 2953.21(A)(1).
       {¶ 14} Postconviction relief is a remedy sought by a defendant who has
either been tried and found guilty beyond a reasonable doubt, or who has pled guilty
and has been convicted. In the interest of judicial economy and efficiency, we have
held that it is not unreasonable to require the defendant to show in his petition for
postconviction relief that such errors resulted in prejudice before a hearing is
scheduled. See State v. Jackson (1980), 

64 Ohio St.2d 107, 112

, 

18 O.O.3d 348, 351

, 

413 N.E.2d 819, 823

. Therefore, before a hearing is granted, “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.” (Emphasis added.) 

Id.

 at syllabus.




                                         6
                                January Term, 1999




                        Credibility of Supporting Affidavits
       {¶ 15} In support of his assertions, defendant submitted his own affidavit
with his postconviction relief petition. After the state responded to defendant’s
petition with an affidavit of petitioner’s trial counsel, defendant was granted leave
to supplement his petition with an affidavit of his mother, along with the
presentence report and psychiatric evaluation prepared for defendant’s sentencing
hearing.
       {¶ 16} The trial court, in reviewing defendant’s claim that he did not
knowingly, intelligently, and voluntarily waive his constitutional rights, reiterated
the law regarding guilty pleas. In addition, the trial court reviewed the transcript of
the plea hearing and concluded that defendant did not express to the court any
misunderstandings he had regarding his rights or complain of any misleading
information provided to him regarding his rights. Based on a review of the
submitted documents and record, the trial court found that defendant’s guilty plea
was appropriately obtained and that it would be improper to vacate the plea.
Accordingly, the trial court found the postconviction relief petition to be without
merit and denied the petition without a hearing.
       {¶ 17} The court of appeals reversed and remanded for an evidentiary
hearing on defendant’s petition. In reviewing the judgment of the trial court, the
court of appeals assumed that when determining whether there are substantive
grounds for relief under R.C. 2953.21, the affidavits presented in support of a
petition are to be accepted as true. In addition, the court of appeals concluded that
even if the affidavits of defendant, his mother, and his trial counsel contradicted
each other, conflicts in the evidence should not be resolved without a hearing on
the postconviction relief petition.
       {¶ 18} We disagree with both conclusions and hold that in reviewing a
petition for postconviction relief filed pursuant to R.C. 2953.21, a trial court should
give due deference to affidavits sworn to under oath and filed in support of the




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petition, but may, in the sound exercise of discretion, judge their credibility in
determining whether to accept the affidavits as true statements of fact. To hold
otherwise would require a hearing for every postconviction relief petition. Because
the statute clearly calls for discretion in determining whether to grant a hearing,
accepting all supporting affidavits as true is certainly not what the statute intended.
“[I]f we would allow any open-ended allegation or conclusory statement
concerning competency of counsel without a further showing of prejudice to the
defendant to automatically mandate a hearing, division (D) of R.C. 2953.21 would
be effectively negated and useless.” Jackson, 

64 Ohio St.2d at 112

, 

18 O.O.3d at 351

, 

413 N.E.2d at 823

.
        {¶ 19} Unlike the summary judgment procedure in civil cases, in
postconviction relief proceedings, the trial court has presumably been presented
with evidence sufficient to support the original entry of conviction, or with a
recitation of facts attendant to an entry of a guilty or no-contest plea. The trial court
may, under appropriate circumstances in postconviction relief proceedings, deem
affidavit testimony to lack credibility without first observing or examining the
affiant. That conclusion is supported by common sense, the interests of eliminating
delay and unnecessary expense, and furthering the expeditious administration of
justice. See Civ.R. 1(B) and 1(C); Cole, 

2 Ohio St.3d at 114

, 2 OBR at 663, 

443 N.E.2d at 171

 (“[T]he allegations outside the record upon which appellant relies
appear so contrived, when measured against the overwhelming evidence in the
record of trial counsel’s competence, as to constitute no credible evidence”);
Sumner v. Mata (1981), 

449 U.S. 539, 545-546

, 

101 S.Ct. 764, 768-769

, 

66 L.Ed.2d 722, 730

 (state appellate court factfinding based on a record review may be
adequate to warrant a presumption of correctness in federal habeas corpus
proceedings pursuant to former Section 2254[d], Title 28, U.S.Code).
        {¶ 20} An affidavit, being by definition a statement that the affiant has
sworn to be truthful, and made under penalty of perjury, should not lightly be




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                                January Term, 1999




deemed false. However, not all affidavits accompanying a postconviction relief
petition demonstrate entitlement to an evidentiary hearing, even assuming the
truthfulness of their contents. Thus, where a petitioner relies upon affidavit
testimony as the basis of entitlement to postconviction relief, and the information
in the affidavit, even if true, does not rise to the level of demonstrating a
constitutional violation, then the actual truth or falsity of the affidavit is
inconsequential. See, generally, State v. Perry (1967), 

10 Ohio St.2d 175

, 

39 O.O.2d 189

, 

226 N.E.2d 104

.
       {¶ 21} In determining the credibility of supporting affidavits in
postconviction relief proceedings, we adopt the reasoning of the First Appellate
District in State v. Moore (1994), 

99 Ohio App.3d 748

, 

651 N.E.2d 1319

. The
court, in Moore, cited Sumner, and suggested that a trial court, in assessing the
credibility of affidavit testimony in so-called paper hearings, should consider all
relevant factors. 

Id. at 754

, 

651 N.E.2d at 1323

. Among those factors are (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. Moreover, a trial
court may find sworn testimony in an affidavit to be contradicted by evidence in
the record by the same witness, or to be internally inconsistent, thereby weakening
the credibility of that testimony. 

Id. at 754-756

, 

651 N.E.2d at 1323-1324

.
       {¶ 22} Depending on the entire record, one or more of these 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. A trial court that discounts the credibility of sworn affidavits
should include an explanation of its basis for doing so in its findings of fact and




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conclusions of law, in order that meaningful appellate review may occur.
            {¶ 23} In his supporting affidavit, defendant averred the following:
            “3) A D.N.A. test was done and it was alleged that there was a match of
four genetic markers between my blood and a sample of semen taken from the
crime scene.
            “***
            “7) I was informed by retained counsel that I would be convicted if I went
to trial.
            “8) I was informed by retained counsel that I would be sentenced to life in
prison when convicted.
            “9) I was informed by retained counsel that by pleading guilty to attempted
aggravated murder, rape, and aggravated burglary I would be sentenced to a term
of 5 to 25 years in prison with the sentence being either concurrent or consecutive.
            “10) I was informed by retained counsel that by throwing myself to the
mercy of the court, by my having no prior criminal record, and my being 18 years
of age that I would most likely be sentenced to a concurrent term of 5 to 25 years
in prison.
            “***
            “12) I was informed by retained counsel that with the 5 to 25 year sentence
I would be eligible for parole in 2½ years, as compared to life in prison if I was
convicted at trial.
            “***
            “14) After entering a plea of guilty I was informed by another inmate at the
Lake County Jail that a first degree felony carries a minimum sentence of 5 to 10
years, meaning I could be sentenced to a cumulative prison term of 30 to 75 years.
I was not informed of this by my attorneys.
            “15) After I spoke with my mother about withdrawing my plea of guilty
prior to sentencing, she called my attorneys to inform them that this is what I wanted




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                                  January Term, 1999




to do.
          “16) During their conversation about withdrawing the plea of guilty prior to
sentencing, my attorneys angrily refused, stating to my mother that if I (Michael
Calhoun) wish to withdraw my plea of guilty that I should seek the services of a
public defender because my attorneys would not fight for my case at a trial.”
          {¶ 24} Defendant’s mother averred in her affidavit:
          “3. At some point during the pendency of the case, Gary Zeid, Michael’s
attorney, strongly represented to Michael that he should enter into a plea agreement
with the State of Ohio.
          “4. Mr. Zeid represented that if Michael lost at trial he would spend the rest
of his life in prison.
          “5. Mr. Zeid further represented that since Michael lacked a prior criminal
history he would ‘most likely’ receive a sentence of five (5) to twenty-five (25)
years in prison.
          “6. After Michael entered a change of plea, and long before Michael’s
sentencing, he immediately advised me that he wanted to withdraw his plea of
guilty.
          “7. I communicated Michael’s request to withdraw his plea to Mr. Zeid.
          “8. Mr. Zeid became angry and yelled at me, ‘if Michael is going to fool
around and withdraw his plea he can just get another attorney or public defender!’
”
          {¶ 25} We find that in assessing the credibility based on the above-
mentioned factors, the trial court did not abuse its discretion in dismissing the
credibility of these affidavits. The judge who reviewed defendant’s postconviction
relief petition was the same judge who presided at the change of plea hearing and
the sentencing hearing. Thus, the trial judge was familiar with the underlying
proceedings and was in the best position to observe the defendant and his attorney
and therefore assess the credibility of the affidavits. See Moore, 

99 Ohio App.3d 11

                                   SUPREME COURT OF OHIO




at 754, 

651 N.E.2d at 1323

, citing Buxton v. Lynaugh (C.A.5, 1989), 

879 F.2d 140, 146

. Further, defendant’s supporting affidavits from himself and his mother are
based on out-of-court statements allegedly made by defendant’s trial counsel.
Therefore, they contain and rely on hearsay. In addition, the affiants clearly are
relatives of the petitioner or otherwise interested in the success of petitioner’s
efforts.
           {¶ 26} Finally, in examining whether the affidavits contradict the record,
we turn to defendant’s plea hearing. The plea transcript reveals full compliance
with Crim.R. 11.2 Defendant assured the court that he understood English, was not
under the influence of any drugs or alcohol, had not been pressured into pleading
guilty, had not been made any promises as to what his sentence would be, and
understood the rights he was giving up as well as the possible sentences that could
be imposed. While defendant alleges in his affidavit that he first learned of the
possible maximum sentence in jail, the plea transcript reveals that he was clearly
informed of the potential sentence by the trial judge at the plea hearing before he
pled guilty both orally and in writing.
           {¶ 27} A review of Attorney Zeid’s affidavit sheds light on why Attorney
Zeid recommended that defendant plead guilty:


2. Crim.R. 11(C) provides:
          “(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest,
and shall not accept such plea without first addressing the defendant personally and doing all of the
following:
          “(a) Determining that the defendant is making the plea voluntarily, with understanding of
the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant
is not eligible for probation or for the imposition of community control sanctions at the sentencing
hearing.
          “(b) Informing the defendant of and determining that the defendant understands the effect
of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with
judgment and sentence.
          “(c) Informing the defendant and determining that the defendant understands that by the
plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to
have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state
to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.”




                                                  12
                                January Term, 1999




        “3. As indicated in Defendant’s Memorandum in support of his Petition,
this case was the first time DNA evidence was ever used in Lake County. We had
retained experts in the field literally from New Jersey to California, and were
unsuccessful in challenging the DNA results.
        “4. In light of the DNA test results, as well as other physical evidence which
the prosecution had connecting Defendant to the crime scene, it was Affiant’s
opinion that we would not be successful at the jury trial on the merits of the charges.
        “5. Affiant did recommend to Michael Calhoun that he enter a plea of guilty
to three counts of the indictment and the remaining four counts were dismissed
pursuant to plea bargain discussions.
        “6. Mr. Calhoun was then referred for a pre-sentence report by the Adult
Probation Department, and for a psychiatric evaluation by the Lake County
Psychiatric Clinic. The sentence imposed upon Michael Calhoun was not based
solely upon plea bargaining negotiations, but was also based upon these
presentence reports and evaluations.
        “7. Prior to Michael Calhoun’s change of plea, Affiant did discuss with him
all of the potential penalties for all seven counts of the indictment. At no time did
Affiant ever guarantee what the sentence would be. Affiant advised Mr. Calhoun
that the sentence was in the sole prerogative of the Judge and that both the
prosecution and Affiant would be making recommendations to the court as to what
the sentence should be.
        “8. Affiant did not coerce Michael Calhoun into pleading guilty. Affiant
did, however, advise Michael Calhoun that it would be highly unlikely for us to win
at trial and Affiant did recommend his entering a plead [sic] bargain, thereby having
a better chance for leniency from the court.”
        {¶ 28} Defendant does not claim that Attorney Zeid “promised” him that he
would be sentenced to five to twenty-five years. Even defendant’s mother concedes
that Attorney Zeid informed defendant that he would “most likely” be sentenced to




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a concurrent term of five to twenty-five years. Thus, we cannot find that Attorney
Zeid made any sort of guarantee to defendant.
       {¶ 29} In addition, the sentencing record reveals the following undisputed
statement of Attorney Zeid: “In reviewing the pre-sentence report, I think one of
the more striking aspects of the report was the fact that Michael has denied his
involvement in this activity here. The evidence of course has shown otherwise,
especially with the DNA, which, of course, we learned in this Court was very strong
evidence and of course is the basis of his pleading guilty to the charges and being
in front of you today. * * * What I am requesting of this Court though is that it
give a minimum sentence, five to 25 years on each of the counts and that they run
concurrently and of course credit for time he has served.” Interestingly, the trial
judge then stated: “Thank you, Mr. Zeid. You have done everything you can on
Mr. Calhoun’s behalf. Certainly tested the system on the DNA suppression hearing
which we had which was appropriate, of course.”
       {¶ 30} Defendant’s supporting affidavits clearly have the effect of recanting
prior statements defendant made on the record, both orally and in writing in his
signed plea agreement, at the time he entered his plea in open court. There is
nothing in the record to corroborate defendant’s claims. This court has held that a
record reflecting compliance with Crim.R. 11 has greater probative value than
contradictory affidavits. See State v. Kapper (1983), 

5 Ohio St.3d 36, 38

, 5 OBR
94, 96, 

448 N.E.2d 823, 825-826

.
       {¶ 31} We conclude that the trial court properly gave due deference to the
affidavits filed in support of the petition, and in the sound exercise of discretion,
properly weighed their credibility.      We now examine whether there were
substantive grounds for relief that would warrant an evidentiary hearing.
                          Substantive Grounds for Relief
       {¶ 32} The United States Supreme Court has established a two-step process
for evaluating an allegation of ineffective assistance of counsel:




                                         14
                                 January Term, 1999




        “First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”         Strickland v.
Washington (1984), 

466 U.S. 668, 687

, 

104 S.Ct. 2052, 2064

, 

80 L.Ed.2d 674, 693

.
        {¶ 33} In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether the accused, under
all the circumstances, * * * had a fair trial and substantial justice was done.” State
v. Hester (1976), 

45 Ohio St.2d 71

, 

74 O.O.2d 156

, 

341 N.E.2d 304

, paragraph four
of the syllabus. When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether there has been a
substantial violation of any of defense counsel’s essential duties to his client. Next,
and analytically separate from the question of whether the defendant’s Sixth
Amendment rights were violated, there must be a determination as to whether the
defense was prejudiced by counsel’s ineffectiveness.” State v. Lytle (1976), 

48 Ohio St.2d 391, 396-397

, 

2 O.O.3d 495, 498

, 

358 N.E.2d 623, 627

, vacated on other
grounds (1978), 

438 U.S. 910

, 

98 S.Ct. 3135

, 

57 L.Ed.2d 1154

.
        {¶ 34} On the issue of counsel’s ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is presumably
competent. See Vaughn v. Maxwell (1965), 

2 Ohio St.2d 299

, 

31 O.O.2d 567

, 

209 N.E.2d 164

; State v. Jackson, 

64 Ohio St.2d at 110-111

, 

18 O.O.3d at 351

, 

413 N.E.2d at 822

.
        {¶ 35} We have held that “a petition for post-conviction relief is subject to
dismissal without a hearing when the record, including the dialogue conducted
between the court and the defendant pursuant to Crim.R. 11, indicates that the
petitioner is not entitled to relief and that the petitioner failed to submit evidentiary




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documents containing sufficient operative facts to demonstrate that the guilty plea
was coerced or induced by false promises.” Kapper, 

5 Ohio St.3d at 38

, 5 OBR at
96, 

448 N.E.2d at 826

.
       {¶ 36} In this case, defendant originally claimed both that his plea was
coerced by trial counsel, Attorney Zeid, and that counsel was ineffective in failing
to file a motion to withdraw defendant’s plea of guilty. Defendant did not pursue
the coercion theory on appeal. Instead, he claims only that after he decided he
wished to withdraw his plea and asked his mother to contact Attorney Zeid,
Attorney Zeid essentially refused.
       {¶ 37} The court of appeals compared this case to State v. Strutton (1988),

62 Ohio App.3d 248

, 

575 N.E.2d 466

. However, as Judge Christley observed in
her dissent below, Strutton is clearly distinguishable. Defendant Strutton alleged
that his original trial counsel, upon being asked to file a motion to withdraw his
guilty plea before sentencing “not only refused to do so, but threatened to withdraw
as counsel if Strutton should decide to file his own motion, without informing
Strutton that Strutton would have the right to secure appointed counsel for trial. If
Strutton were to succeed in proving this allegation at a hearing it might well be
supposed that, as Strutton alleges, he decided not to move to withdraw his plea only
because he did not want to be put in the position of having to go to trial without an
attorney to represent him.” (Emphasis added.) 

Id.,

62 Ohio App.3d at 251

, 

575 N.E.2d at 468

.
       {¶ 38} Initially, we note that there may be credible reasons why a criminal
defense attorney may decline to file a motion to withdraw a guilty plea and instead,
suggest new counsel. For example, if the defendant has confessed guilt to his
attorney and insists on taking the witness stand to falsely deny the crime, the
Disciplinary Rules require the attorney to withdraw from the case. See DR 4-
101(C)(3) and 2-110(B)(2).
       {¶ 39} However, this does not jeopardize the defendant’s rights because the




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                                January Term, 1999




attorney may not withdraw until he or she has obtained leave of court and further
taken reasonable steps to avoid foreseeable prejudice to his or her client, including
giving due notice to his or her client, allowing time for employment of other
counsel, delivering to the client all papers and property to which the client is
entitled, and complying with applicable laws and rules. See DR 2-110(A)(1) and
(2).
       {¶ 40} Moreover, we agree with Judge Christley that both defendant’s own
affidavit and the affidavit of his mother concede that when Attorney Zeid allegedly
threatened to withdraw from representing defendant and/or failed to file a motion
to withdraw defendant’s plea before sentencing, Attorney Zeid indicated that
defendant could obtain a public defender to represent him if he wished to go to trial.
Defendant does not allege, and the evidence does not demonstrate, that he thought
that he would be required to proceed to trial without an attorney if his motion were
filed and his original counsel withdrew.
       {¶ 41} Defendant entered his plea of guilty on August 2, 1990 and was
sentenced on September 4, 1990. Defendant had over a month to file his own
motion to withdraw his plea. Defendant did not attempt to file a pro se motion. He
did not seek a public defender. He did not attempt to retain new counsel. He did
not even mention his desire to withdraw his plea at sentencing. Indeed, the
sentencing transcript reveals no hesitation.
       {¶ 42} On these facts, we cannot find that defendant was prejudiced by his
attorney’s alleged failure to file a motion to withdraw his guilty plea. Therefore,
we hold that pursuant to R.C. 2953.21(C), a trial court properly denies a defendant’s
petition for postconviction 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.
                       Findings of Fact/Conclusions of Law




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                             SUPREME COURT OF OHIO




       {¶ 43} “If the court dismisses the petition, it shall make and file findings of
fact and conclusions of law with respect to such dismissal.” R.C. 2953.21(C). The
court of appeals found that the trial court did not make sufficient findings of fact
and conclusions of law because the trial court did not address every argument raised
by petitioner and allegedly supported by documentary evidence.
       {¶ 44} This court echoed the language of the statute in State v. Lester
(1975), 

41 Ohio St.2d 51

, 

70 O.O.2d 150

, 

322 N.E.2d 656

, paragraph two of the
syllabus, where we held that findings of fact and conclusions of law are mandatory
under R.C. 2953.21 if the trial court dismisses the petition. “ ‘The obvious reasons
for requiring findings are “ * * * to apprise petitioner of the grounds for the
judgment of the trial court and to enable the appellate courts to properly determine
appeals in such a cause.” Jones v. State (1966), 

8 Ohio St.2d 21, 22

 [

37 O.O.2d 357, 358

, 

222 N.E.2d 313, 314

]. The exercise of findings and conclusions are
essential in order to prosecute an appeal. Without them, a petitioner knows no more
than [that] he lost and hence is effectively precluded from making a reasoned
appeal. In addition, the failure of a trial judge to make the requisite findings
prevents any meaningful judicial review, for it is the findings and the conclusions
which an appellate court reviews for error.’ ” State ex rel. Carrion v. Harris (1988),

40 Ohio St.3d 19

, 

530 N.E.2d 1330, 1330-1331

, quoting State v. Mapson (1982), 

1 Ohio St.3d 217, 219

, 1 OBR 240, 242, 

438 N.E.2d 910, 912

.
       {¶ 45} A trial court need not discuss every issue raised by appellant or
engage in an elaborate and lengthy discussion in its findings of fact and conclusions
of law. The findings need only be sufficiently comprehensive and pertinent to the
issue to form a basis upon which the evidence supports the conclusion. State v.
Clemmons (1989), 

58 Ohio App.3d 45, 46

, 

568 N.E.2d 705, 706-707

, citing 5A
Moore, Federal Practice (2 Ed.1990) 52-142, Section 52.06[1].
       {¶ 46} Thus, we hold that a trial court properly denies a petition for
postconviction relief, made pursuant to R.C. 2953.21, and issues proper findings of




                                         18
                                  January Term, 1999




fact and conclusions of law where such findings are comprehensive and pertinent
to the issues presented, where the findings demonstrate the basis for the decision
by the trial court, and where the findings are supported by the evidence.
          {¶ 47} In a three-page opinion, the trial court below outlined the procedural
history, set forth the appropriate legal standards, and addressed defendant’s claims.
Having sufficiently reviewed the petition and supporting documents, the trial court
concluded that defendant’s guilty plea was appropriately obtained and it would be
improper to vacate the plea. Thus, the court found that the petition did not set forth
substantive grounds for relief. The trial court’s findings of fact and conclusions of
law were adequate in conveying to the court of appeals the basis for its decision.
Accordingly, we find that the court of appeals erred in reversing the present case
and ordering the trial court to issue more specific findings of fact and conclusions
of law.
                                      Conclusion
          {¶ 48} Postconviction relief serves an invaluable function in the criminal
justice system. With this decision we simply affirm the trial court’s discretion to
judge the credibility of the petitions in order to discard frivolous claims. We
continue to urge the trial courts to remain vigilant in carefully reviewing each
petition for postconviction relief to ensure that meritorious constitutional claims are
effectively addressed.
          {¶ 49} Accordingly, we find that the trial court properly weighed the
credibility of the affidavits, properly found that defendant had not set forth
sufficient operative facts to warrant a hearing, and properly issued sufficient
findings of fact and conclusions of law. Therefore, we reverse the judgment of the
court of appeals.
                                                                  Judgment reversed.
          MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
          PFEIFER and COOK, JJ., concur in judgment.




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