[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

On June 5, 1996, appellant filed a petition to vacate his sentence per R.C. 2953.21, claiming that he had been denied effective assistance of counsel through his failure to adequately prepare for trial and that he was compelled to plead guilty because of his mental state at the time of sentencing, as well as failure of his counsel to be prepared.

In his petition, he also claims that he did not knowingly, intelligently, and voluntarily enter his guilty plea because he was under the influence of residual medication administered by the jail at the time of the plea hearing; and that he was receiving psychotropic drugs to deal with a sever psychosis that he had previously been diagnosed as suffering.

Appellant requested appointment of counsel because of his mental illness.

In its judgment denying appellant's motion for post conviction relief, the court states, inter alia:

The burden is upon the Defendant to provide the Court, as part of his petition, evidentiary documents containing sufficient operative facts to demonstrate that some issue exists outside the record upon which he can base his claim for post conviction relief.

In Ohio, there is a presumption that an attorney, properly li censed, to practice law, is able to execute his duties in an ethical and competent manner. The Defendant has failed to set forth sufficient operative facts or evidentiary documents that his attorney failed to meet the requirements of competent counsel or that the Defendant was prejudiced in any manner by the failure of his attorney to perform any of the tasks set forth in the Defen dant's petition.

The Defendant's claim of mental incompetency is not supported by his exhibits, which consists [sic] of partial reports used in other jurisdictions. The fact that the Defendant was also sentence[d] to terms of imprisonment in those cases would be indicative that the Defendant was not prejudiced by any failure to follow the same procedures in this case. Trial Court Judgment.

From this judgment, the appellant appeals, assigning three errors:

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DISMISSING APPELLANT'S CLAIM FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING AS REQUIRED BY R.C. 2953.21(E) (DECISION AND ENTRY OF TRIAL COURT).

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PRESUMING THAT APPELLANT'S ATTORNEY PERFORMED IN AN ETHICAL AND COMPETENT MANNER. (DECISION AND ENTRY OF TRIAL COURT).

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY STATING THAT BECAUSE DEFENDANT WAS ALSO SENTENCE[D] TO TERMS OF IMPRISONMENT IN OTHER JURISDICTIONS IT WOULD BE INDICATIVE THAT THE DE FENDANT WAS NOT PREJUDICED BY ANY FAILURE TO FOLLOW THE SAME PROCEDURE IN THIS CASE, AND THEREBY MAKING IT OKAY TO VIOLATE R.C. 2929.12(C)(4). (DECISION AND ENTRY OF TRIAL COURT).

The trial court concluded that these supplications did not meet the threshold standards of calling for an evidentiary hearing. We agree. The record of the plea change hearing affirmatively demonstrates that the trial court addressed the appellant directly, conversationally, and repeatedly concerning the voluntariness and understanding of the plea and the agreement. His self-serving affidavit is inadequate to trigger a right to a hearing upon the petition. See, State v. Kapper (1983), 5 Ohio St.3d 36,448 N.E.2d 823.

The first Assignment of Error is overruled.

The third Assignment of Error is overruled.

CACIOPPO, J., concurs.

Although I join in the disposition of Johnson's Second and Third Assignments of Error, I would sustain his First Assignment of Error, reverse the denial of his petition for post-conviction relief, and remand for a hearing upon his averment that he was not mentally competent when he tendered his plea and that his attorney was ineffective in allowing him to plead guilty when he was not mentally competent to do so.

The issue of Johnson's mental competence to plead guilty to the charged offense, thereby waiving his constitutional rights, is analytically separate from any defense he might have had to the charge based upon a claim that he was legally insane when the offense was committed. Because the trial judge did not conduct any inquiry into Johnson's mental state at the time Johnson's plea was tendered and accepted, there is nothing in the record to belie Johnson's claim that he was not mentally competent at the time. As I understand State v. Kapper (1983), 5 Ohio St.3d 36, a post-conviction relief petitioner, in order to obtain a hearing upon his petition, is required to produce more than his own self-serving affidavit when his claim is belied by the record. Where, as here, his claim is not belied by the record, the normal rule prevails — the petitioner is entitled to a hearing upon his claim if it has merit in the sense that, if proven, the petitioner would be entitled to relief. Of course, even in that situation, the State can obtain summary judgment, without a hearing, it can submit unrebutted evidence establishing that there is no genuine issue of material fact and that the State is entitled to judgment as a matter of law.

I base my construction of Kapper, supra, upon the following paragraph from that opinion, in which the holding of the court is expressly set forth:

We find this rationale persuasive. Accordingly, we hold 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 documents containing sufficient operative facts to demonstrate that the guilty plea was coerced or induced by false promises.

Id., at 38. (Emphasis added.)

Because the Supreme Court, in Kapper, expressed these two requirements for dismissal in the conjunctive, I conclude that a petitioner is not required to submit more than his own, self-serving affidavit unless his claim is affirmatively belied by the record.

I would sustain Johnson's First Assignment of Error, reverse the dismissal of his petition, and remand this cause for a hearing upon his petition.

Hon. John R. Milligan, Retired from the Court of Appeals, Fifth Appellate District, Sitting by Assignment of the Chief Justice of the Supreme Court of Ohio.

Hon. Mary Cacioppo, Retired from the Court of Appeals, Ninth Appellate District, Sitting by Assignment of the Chief Justice of the Supreme Court of Ohio

Copies mailed to:

William D. Hoffman

Olleck Johnson

Hon. Richard J. O'Neill

William D. Hoffman, Clark County Prosecutor.

Olleck Johnson, No. 287-145

Hon. Richard J. O'Neill