COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59724 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : LEONARD BROOKS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 31, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 203349 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Leonard Brooks, Pro Se Cuyahoga County Prosecutor Reg. No. 32437-060 By: Karen L. Johnson Post Office Box 4600 Assistant Prosecuting Attorney Rochester, MN 55903-4600 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - ANN McMANAMON, P.J.: In December 1987, Leonard Brooks pled guilty to two counts of trafficking in drugs pursuant to R.C. 2925.03(A)(8). No direct appeal was taken. One and one-half years after the plea, Brooks filed a petition for post- conviction relief under R.C. 2953.21. The trial court denied the petition without a hearing and this appeal ensued. Brooks raises four assignments of error./1\ Since his arguments are not meritorious, we affirm. In his first assignment Brooks asserts the court erred in finding that the failure to file a direct appeal precludes post- conviction relief. Under the doctrine of res judicata, a final judgment of conviction bars a defendant who had counsel from raising and litigating in any proceeding, except in an appeal from that judgment, any defense or claim of lack of due process that was raised or could have been raised by the defendant at trial or on direct appeal. State v. Perry (1967), 10 Ohio St. 2d 175, paragraph nine of the syllabus. In his petition for post-conviction relief, Brooks challenged the legality of his plea on two grounds and asserted a denial of effective assistance of trial counsel in matters dehors the record. The trial court denied the petition as to all claims /1\ See Appendix. - 3 - on the basis that Brooks must file a direct appeal before pursuing post-conviction relief. The court was correct as to the claims which Brooks could have raised at trial or on direct appeal. In State v. Gibson (1980), 69 Ohio App. 2d 91, this court held that post-conviction relief is the appropriate remedy for ineffective assistance of counsel claims based on facts dehors the record. It is unreasonable to require a defendant to initiate a direct appeal on issues dehors the record when an appellate court is barred from addressing those issues on direct appeal. We recognize that in State v. Nichols (1984), 11 Ohio St. 3d 40, the Supreme Court stated, "*** post-conviction relief is not available until such time as conventional appellate relief has been sought." Id. at 42. This language, however, is dicta. Furthermore, the supreme court's opinion does not indicate whether the defendant's post-conviction relief petition was based upon evidence dehors the record. Finally, the Nichols opinion recognizes our opinion in Gibson, supra. Although the trial court should not have denied the petition as to the claims dehors the record on the basis that defendant first had to file a direct appeal, we find the court's decision was correct for other reasons as discussed in our resolution of Brooks's remaining assignments of error. Thus, we overrule this assignment of error. See Taylor v. Yale and Towne Mfg. Co. (1987), 36 Ohio App. 3d 62, 63; Agricultural Ins. Co v. Constantine (1944), 144 Ohio St. 275, 284. - 4 - In his second and third assignments of error Brooks challenges the legality of his plea and raises issues concerning his right to effective assistance of counsel. His fourth assignment of error also claims a denial of effective assistance of counsel. We address these arguments concurrently. Brooks contends the court failed to determine the factual basis of his plea or to address the defendant during the taking of the plea. These arguments could have been raised on direct appeal and, thus, they are barred by the doctrine of res judicata. Perry, supra. We reject Brook's argument that the destruction of the transcript of his plea proceedings renders these issues dehors the record and, therefore, properly raised in his post-conviction petition. Brooks could have provided a record for direct appeal pursuant to App. R. 9(C), (D) or (E). State v. Griffin (December 21, 1989), Cuyahoga App. No. 57673, unreported. Brooks next argues his trial counsel rendered ineffective assistance in two instances. When a defendant asserts a claim of ineffective assistance of counsel in a post-conviction relief petition, the defendant bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his counsel's incompetence and that he was prejudiced by these deficiencies. State v. Jackson (1980), 64 Ohio St. 2d 107, syllabus. - 5 - The defendant, initially, cites his attorney's failure to raise R.C. 2925.50 as a bar to his conviction in the instant case. This statute provides, in pertinent part: "If a violation of this chapter is a violation of federal narcotic laws, as defined in section 3719.01 of the Revised Code, a conviction or acquittal under federal narcotic laws for the same act is a bar to prosecution in this state." Brooks claims he previously pled guilty to federal offenses arising from the same acts which served as the basis for his state conviction. To support his contention, Brooks attached a copy of a federal indictment charging him and six other individuals with violations of federal narcotics laws which allegedly occurred from November 1982 through August 1985. The state convictions were based upon crimes Brooks committed in June and July 1985. The defendant, however, failed to provide any evidentiary materials demonstrating what crimes, if any, to which he pled guilty, and whether the state and federal convictions arise from the same illegal conduct. Further, we note the trial court's sentencing order indicates the state and federal crimes are unrelated. We find Brooks failed to substantiate his claim. Brooks also argues his counsel acted under a conflict of interest while defending him. According to the defendant, he testified before the federal grand jury against his attorney's legal partner and this testimony led to the partner's indictment on criminal charges. Brooks failed to present any evidentiary materials supporting this claim and, thus, he failed to meet his burden under Jackson, supra. - 6 - Accordingly, we overrule the second, third and fourth assignments of error and affirm the judgment of the trial court. Judgment affirmed. Judgment affirmed. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., BLACKMON, J., CONCUR. PRESIDING JUDGE ANN McMANAMON 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. - 8 - APPENDIX Appellant's assignments of error are: I "The trial court erred in its Findings of Fact and Conclusions of Law filed in this cause on March 26, 1990 when it held that post-conviction relief is not available in this case until conventional appeals are pursued. [Findings of Fact and Conclusions of Law, p.2]." II "The trial court erred in its Findings of Fact and Conclusions of Law filed in this cause on March 26, 1990 when it held that defendant's claims raised my motion filed pursuant to R.C. 2953.21 are claims that could have been adjudicated on direct appeal of his conviction. [Finding of Fact and Conclusions of Law, p.2]." III "The trial court erred in holding that the insufficiency of a factual basis claim could be adjudicated on direct appeal because the record made by the court reporter was lost, and cannot be found." IV "The issue of adequacy of counsel cannot be addressed short of a hearing because the matters giving rise to the claim of ineffective assistance of counsel occurred outside of the record." .