COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59450 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD L. RICHARD, SR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 5, 1991 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CR-215283 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES PAUL D. VIDENSEK, ESQ. CUYAHOGA COUNTY PROSECUTOR 3376 East 55th Street GEORGE J. SADD, ASST. Cleveland, Ohio 44127 Justice Center - 8th Fl. 1200 Ontario Street DONALD L. RICHARD, SR., PRO SE Cleveland, Ohio 44113 Serial No. 197-168 Lorain Correctional Facility 2075 South Avon-Belden Road Grafton, Ohio 44044 - 2 - J.F. CORRIGAN, J., Defendant Donald L. Richard, Sr. appeals from the order of the trial court which dismissed his February 5, 1990 petition for post-conviction relief. For the reasons set forth below, we affirm. I. On February 5, 1987, defendant was indicted pursuant to a two count indictment, following the shooting death of Neil S. Baldwin. In count one, defendant was charged with aggravated murder, in violation of R.C. 2903.01, with a firearm and a prior aggravated felony specification. In count two, defendant was charged with having a weapon while under disability, in violation of R.C. 2923.13, with a firearm and a violence specification. Defendant entered pleas of not guilty and the matter proceeded to a jury trial on April 21, 1987. At the commencement of the trial, count one of the indictment was amended to assert a charge of murder, and counsel agreed that count two would be tried to the bench. In addition, the prior aggravated felony specification and the violence specification were deleted from the indictment. The state then presented its case and established that on January 24, 1987, Neil Baldwin and his girlfriend Kimberly Sarkozy were drinking at Wanda's Bar, at 4515 Clark Avenue in Cleveland. Sarkozy subsequently had an argument with defendant, whom she had known previously, and defendant's son, Donald - 3 - Richard, Jr. Thereafter, Baldwin and Donald, Jr. exchanged words outside of the bar, and when Baldwin re-entered the bar, defendant challenged Baldwin to a fight. Sarkozy, Baldwin, defendant, and Donald, Jr. then left the bar, and once on the sidewalk, Baldwin punched defendant, and Donald, Jr. pointed a gun at Baldwin. Donald, Jr. then gave the gun to defendant, and defendant shot Baldwin once in the head. The defense presented no evidence, and defendant was subsequently convicted of murder, having a weapon while under disability, and both firearm specifications. On direct appeal to this court, new counsel was appointed to represent defendant, and new counsel claimed, inter alia, that defendant had been denied effective trial counsel. Defendant likewise raised this same assertion in pro se assignments of error, and argued that the trial court erred in failing to dismiss a juror who was allegedly related to an assistant county prosecutor; in admitting four bullets into evidence; and in admitting the autopsy protocol into evidence. This court found none of the arguments raised to be meritorious, however, and it affirmed the judgment of the trial court. See State v. Richard (October 20, 1988), Cuyahoga App. 54040, unreported. Thereafter, on January 4, 1990, defendant filed a petition for post-conviction relief, claiming that he had been denied - 4 - effective trial and appellate counsel. The trial court rejected both claims and defendant now appeals. II. In his first assignment of error, defendant contends that the trial court erred in denying his petition for post-conviction relief, because he claims, he submitted sufficient documentary evidence to raise the issue of the competency of his trial counsel and this issue could not fairly be determined without resort to evidence dehors the record. More specifically, defendant contends that his trial counsel failed to cross-examine various state witnesses regarding discrepancies between their testimony and their alleged statements to a private investigator, failed to object to the introduction of the autopsy protocol, and failed to demonstrate that he should be acquitted because Donald, Jr. was convicted of felonious assault in connection with his conduct on January 24, 1987. In his second through sixth assignments of error, defendant contends that his trial counsel was ineffective for: failing to suppress Sarkozy's courtroom identification of him and Donald, Jr.; failing to establish the chain of custody and caliber of two bullets admitted into evidence; allowing a juror who was allegedly related to an assistant county prosecutor to remain on the jury and in allowing the jury to take a break without receiving an admonition from the court; and in failing to object to the amendment of the indictment from aggravated murder to - 5 - murder. As each of these assignments of error share a common basis in law and fact, we shall address them together. Petitions for post-conviction relief are governed by R.C. 2953.21 which provides in relevant part as follows: "(A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which 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. ***. "*** "(C) Before granting a hearing, the court shall determine whether there are substantive grounds for relief. ***. "*** "(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." In accordance with the case law which construes these provisions, matters which have been or could have been raised on direct appeal may not be considered in post-conviction proceedings, pursuant to the doctrine of res judicata. State v. Perry (1967), 10 Ohio St. 2d 175, paragraph nine of the syllabus; State v. Ledger (1984), 17 Ohio App. 3d 94, 96; State v. Jenkins (1984), 42 Ohio App. 3d 97, 99. Further, where - 6 - a defendant is represented by new counsel on direct appeal and fails to raise the issue of competent trial counsel, and this issue could fairly be determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for post-conviction relief which asserts ineffective assistance of counsel. Id.; State v. Cole (1982), 2 Ohio St. 3d 112, syllabus. Finally, a hearing is not mandated on every petition for post-conviction relief. State v. Ledger, supra. Rather, "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." State v. Jackson (1980), 64 Ohio St. 2d 107, 110. Moreover, a petitioner who claims ineffective assistance of counsel must, in order to overcome the presumption that his counsel was effective, submit sufficient evidentiary facts which, if proven, would show that the petitioner was prejudiced by ineffective counsel. State v. Smith (1987), 36 Ohio App. 3d 162, 163. By application of the foregoing, we hold that the trial court properly dismissed defendant's petition for post-conviction relief and we overrule defendant's first through sixth assignments of error. With respect to defendant's first assignment of error, we note that the alleged report of the private investigator which would supposedly refute various aspects of the trial testimony, - 7 - was never presented in support of the petition. Accordingly, there was no demonstration of substantive grounds warranting the requested relief. As to the supposed discrepancies in the autopsy protocol, this court noted no such irregularities on defendant's direct appeal. State v. Richard, supra, at 12. Accordingly, this claim cannot constitute a basis for ineffective assistance of counsel. See State v. Henderson (1988), 39 Ohio St. 3d 24, 33. Lastly, defendant fails to demonstrate how Donald, Jr's conviction for his involvement mitigates defendant's own culpability, and thus fails to establish substantive grounds warranting relief. With respect to defendant's second through sixth assignments of error, each is such that it could have been raised in connection with defendant's prior claims of ineffective assistance of counsel which were raised on direct appeal. Thus, each is barred by res judicata. These claims are also barred for the additional reason that each is clearly rooted in the record, and defendant was represented by new counsel on appeal. Finally, each of these claims lacked any evidentiary support which would demonstrate that trial counsel was ineffective or that defendant suffered prejudice therefrom. Defendant's first through sixth assignments of error are overruled. - 8 - III. In his seventh assignment of error, defendant contends that the trial judge who dismissed his petition was without authority to do so. In a multi-judge division of the Common Pleas Court, C.P. Sup. R. 4 requires that each case be assigned by lot to a specific judge of that court who becomes primarily responsible for the determination of every issue and proceeding in the case until its termination. Berger v. Berger (1981), 3 Ohio App. 3d 125, 128. Improper reassignment of the matter to another judge renders the actions of that judge voidable upon timely objection by any party. Id. In this case, the matter was tried to Judge Lawther in April 1987. Thereafter, following Judge Lawther's retirement, Judge Wells considered defendant's petition for post-conviction relief. Defendant has offered no evidence to demonstrate that the matter was "reassigned" in violation of C.P. Sup. 4, or that Judge Wells acted improperly and we therefore overrule this assignment of error. Accord State v. Richard (Feb. 15, 1990), Cuyahoga App. 57960, unreported, at 2. Defendant's seventh assignment of error is overruled. Judgment affirmed. - 9 - 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 Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and PATTON, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .