State v. Jackson ( 1980 )

Locher, J.

The sole issue of law presented herein is whether the trial court properly dismissed the appellee’s petition for post-conviction relief on the allegation of ineffective assistance of counsel without conducting an evidentiary hearing.

The statutory framework for determining whether a hearing is necessary for post-conviction actions is set forth in R. C. 2953.21. In pertinent part, R. C. 2953.21 reads as follows:

“(A)*** The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief.

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“(C) Before granting a hearing 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 and supporting affidavits, 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 court, and the court reporter’s transcript.***If the court dismisses the petition it shall make and file findings of fact and conclusions of law with respect to such dismissal. [Emphasis added.]

“(D) Within ten days after the docketing of the petition, or within such further time as the court may fix for good cause shown, the prosecuting attorney shall respond by demurrer, answer, or motion. Within twenty days from the date the issues are made up either party may move for summary judgment* * *. The right to such judgment must 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, hold the hearing, and make and file written findings of fact and conclusions of law upon entering judgment thereon.”

A perusal of the above-cited provisions clearly indicates this statute does not expressly mandate a hearing for every post-conviction relief petition and, therefore, a hearing is not automatically required.

This court, in State v. Lester (1975), 41 Ohio St. 2d 51, interpreted R. C. 2953.21 and the necessity for a hearing. Paragraph two of the syllabus in that case reads as follows:

“R. C. 2953.21 requires the trial court to consider the allegations of the petition for postconviction relief and the particular facts upon which the petitioner bases his claim; if, upon such consideration, the trial court finds no grounds for 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.”

Thus, the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavit and the files and records of this cause.

To determine the substantive grounds of this petition, the trial court was presented an affidavit from the trial attorney, Loeb. In essence, Loeb’s affidavit claims that he had insufficient time to provide the appellee effective counsel.

The test as to whether an individual has been denied effective counsel was initially set forth by this court in State v. Hester (1976), 45 Ohio St. 2d 71, and thereafter slightly revised in State v. Lytle (1976), 48 Ohio St. 2d 391.

In State v. Hester, supra, at page 79, this court held “the test to be whether the accused, under all the circumstances, * * *had a fair trial and substantial justice was done.”

In State v. Lytle, supra, this court stated, at pages 396-397:

“When considering an allegation of ineffective assistance of counsel, 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.

“On the issue of counsel’s effectiveness, the appellant 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; State v. Williams (1969), 19 Ohio App. 2d 234.

“***The weight of authority places the initial burden upon the appellant since ‘[ujnlike a constitutional violation actually caused by the state, such as an illegal search and seizure or a coerced confession, ineffective assistance of counsel is a result of the volitional acts of one charged with representing the defendant. To impose automatically the initial burden of proof on the state***would penalize the prosecution for acts over which it can have no control.’ McQueen v. Swenson (C.A. 8, 1974), 498 F. 2d 207, 218.”

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.

The Court of Appeals cited State v. Milanovich (1975), 42 Ohio St. 2d 46, for the case authority holding that a hearing would have been appropriate and necessary for this cause and, therefore, it was error to summarily dismiss the petition.

This court, in State v. Mishelek (1975), 42 Ohio St. 2d 140, approved the rationale in State v. Milanovich, supra, but, in footnote 2, at page 141, aptly stated that:

“However, as this court pointed out in Milanovich, at page 50, ‘this does not necessarily require that an evidentiary hearing be held for every petitioner who relies upon matters outside the record, since evidence of such matters may be introduced by motion for summary judgment by either the petitioner or the prosecuting attorney.’ ” (Emphasis added.)

In the instant cause, the petitioner is requesting a hearing on matters dehors the record, of which he has specific knowledge. It is only reasonable to require him to set forth, in his petition and accompanying affidavits and supporting materials, sufficient operative facts to satisfy his initial burden of proof as described in State v. Lytle, supra.

Post-conviction relief is a remedy sought by a defendant who has been tried to a jury and found guilty beyond a reasonable doubt on each element of the offense charged and who has already gone through the crucible of appeal from that judgment.

Therefore, in the interest of judicial economy and efficiency, it is not unreasonable to require the defendant to show prejudicial factors in his petition for post-conviction relief before a hearing is scheduled.

Furthermore, if 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. R. C. 2953.21(D), which states that “the prosecuting attorney shall respond by demurrer***or motion,” would be useless verbiage if, in practice, every petition submitted were granted a hearing regardless of the adequacy of the claim.

In the instant cause, the petition contained a broad, open-ended assertion of ineffective counsel, which is a conclusion of law. In support of his assertions, appellee submitted an affidavit from trial counsel stating that four days between his appointment as main counsel and the trial date is an insufficient time period for the preparation of an effective defense.

Initially, it is noted that the United States Constitution does not specify a particular period of time which must intervene between the appointment of counsel and trial. Avery v. Alabama (1940), 308 U. S. 444, 446. The trial attorney’s claim of ineffective counsel by affidavit is admirable, but, without a further showing of actual prejudicial factors, the ap-pellee has not met his initial burden of proof which would require an additional hearing. A gleaning of the record and facts as described herein do not, on their own, show any actual prej- ■ udicial factors that would mandate a hearing.

In fact, the record discloses that Loeb had 16 days in which to confer with the appellee before he was to present a defense. Additionally, it is noted that the investigator, as well as Garver, the backup counsel, were associated with this cause shortly after the appellee’s indictment and, therefore, were available sources of information and assistance.

Therefore, upon the record, together with all the supporting affidavits and other documentary evidence, this court holds that the appellee has not met his initial burden of proof of demonstrating that there are substantive grounds for relief and, thus, an evidentiary hearing in the cause sub judice was not required.

Accordingly, the judgment of the Court of Appeals is reversed.

Judgment reversed.

Celebrezze, C. J., P. Brown, Sweeney, Holmes and Dowd, JJ., concur.