COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59310 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JAMES B. MAYES : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-209099 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Building CHRISTA D. BRUNST, ESQ. Suite 1016 Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: Petitioner-appellant, James B. Mayes, appeals from the dismissal by the court of common pleas of his petition for post- conviction relief. Mayes was indicted in a two-count indictment, viz: one count of Voluntary Manslaughter with a gun specification and aggravated felony specifications and one count of Having a Weapon While Under Disability with a gun specification and violence specifications. A jury returned guilty verdicts as to both counts of the indictment. The trial court thereafter sentenced the appellant. Mayes' convictions were affirmed in State v. Mayes (Nov. 19, 1987), Cuyahoga App. No. 52991, unreported. On September 18, 1989, Mayes filed a "Petition for Post- Conviction Relief and Motion to Correct Illegal Sentence" with the trial court pursuant to R.C. 2953.21. The state responded with a motion to dismiss in which it was contended that the issues raised in the petition were barred by res judicata. The trial court dismissed the petition. Findings of fact and conclusions of law were filed by the trial court as required by R.C. 2953.21(E). Mayes brought an appeal from that dismissal citing four assignments of error which are set forth in an appendix to this opinion. These assignments of error are addressed jointly as their resolutions are based on similar law and facts. - 2 - In the direct appeal from his jury trial conviction, Mayes' appellate counsel complained that 1) Mayes was denied assistance of counsel, and 2) the evidence did not support the verdict. This court rejected these assertions and affirmed the convictions. Mayes' unsuccessful appeal from his convictions precludes further review of any claimed error which was presented in his appeal, or which could have been presented from the record at that time. State v. Perry (1967), 10 Ohio St. 2d. 175, paragraphs six, seven, and eight of the syllabus. Specifically, Mayes is precluded from raising the issue of trial counsel's ineffectiveness in his post-conviction petition when his appellate counsel differed from his trial counsel, if the ineffectiveness claim rests on matters disclosed by the trial court. State v. Cole (1982), 2 Ohio St. 3d 112, paragraph one of the syllabus. Thus, this court must likewise reject any complaint about the trial court's actions or Mayes' trial counsel's ineffectiveness as a matter of res judicata since the alleged errors are not dehors the record. However, Mayes attempts to avoid having his appeal dismissed based on res judicata by submitting the argument that his appellate counsel denied him effective assistance by failing to challenge certain errors in his direct appeal. This court concluded in State v. Mitchell (1988), 53 Ohio App. 3d 117, that a trial court lacks authority to consider alleged ineffective assistance by appellate counsel as grounds - 3 - for post-conviction relief. See, also, State v. Gross (Aug. 18, 1988), Cuyahoga App. No. 54235, unreported. Therefore, the trial court properly denied Mayes' petition for post-conviction relief. Mayes' assignments of error are accordingly overruled, and the dismissal of his petition is affirmed. - 4 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., CONCURS; KRUPANSKY, C.J., CONCURS IN JUDGMENT ONLY. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 5 - APPENDIX ASSIGNMENTS OF ERROR "I. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO PROCURE A TRANSCRIPT OF THE SENTENCING PROCEEDINGS SO THAT MATTERS CONCERNING THE SENTENCING COULD BE BROUGHT TO THE ATTENTION OF THE COURT IN THIS FIRST APPEAL. "II. THE COURT COMMITTED PREJUDICIAL ERROR AND DENIED THE DEFENDANT DUE PROCESS OF LAW WHEN IT RULED THAT IT HAD NO AUTHORITY TO CORRECT AN ILLEGAL SENTENCE. "III. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FACT THAT COUNSEL DID NOT PROCURE A TRANSCRIPT OF THE SENTENCING HEARING SO AS TO ENABLE COUNSEL TO PRESENT ERRORS WITH RESPECT TO THE SENTENCING. "IV. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AND THESE ISSUES SHOULD HAVE BEEN RAISED. "A) THE DEFENDANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL. "B) DEFENDANT'S RIGHTS WERE VIOLATED WHEN THERE WAS A STIPULATION WITHOUT HIS CONSENT CONCERNING PRIOR CONVICTIONS. "C) THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN THE COURT, IN EFFECT, DIRECTED A VERDICT ON A MATERIAL ISSUE IN THIS CASE. "D) THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT INSTRUCT UPON ALL OF THE ELEMENTS OF THE OFFENSE. "E) THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT FAILED TO INSTRUCT THE JURY AS TO WHO BORE THE BURDEN OF PRODUCING EVIDENCE AS TO THE EXISTENCE OF MITIGATING CIRCUMSTANCES. "F) THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT, IN INSTRUCTING ON SELF-DEFENSE, GAVE THE JURY THE IMPRESSION THAT IF THE DEFENDANT - 6 - DID NOT PROVE SELF-DEFENSE THEN, IN THAT EVENT, HE SHOULD BE FOUND GUILTY. "G) THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WITH RESPECT TO THE LIMITATION OF SELF-DEFENSE AS TO THE FIRST COUNT OF THE INDICTMENT. "(H) THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WITH RESPECT TO SELF-DEFENSE IN A VOLUNTARY MANSLAUGHTER PROSECUTION. "I) THE DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF THE PROSECUTING ATTORNEY." .