COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60741 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD RICHARD, SR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 14, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CR-214217 (Post-Conviction) 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 LAURENCE R. SNYDER Cleveland, OH 44127 The Justice Center 1200 Ontario Street DONALD L. RICHARD, SR. Cleveland, OH 44113 #A197168 Lorain Correctional Institute 2075 Avon-Belden Road Grafton, OH 44044 - 2 - PATTON, J., Defendant-appellant, Donald Richard, Sr. was convicted of felonious assault in violation of R.C. 2903.11 with firearm and aggravated felony specifications. This court affirmed his convictions in State v. Richard (June 16, 1988), Cuyahoga App. No. 54040, unreported. Thereafter, appellant filed a petition for post-conviction relief on January 9, 1989. On May 3, 1989, appellant filed an amended petition for post-conviction relief. The trial court denied those petitions and we affirmed the denials in State v. Richard (February 15, 1990), Cuyahoga App. No. 57966, unreported. While appellant's petitions for post- conviction relief were pending, appellant filed a motion for new trial. The trial court denied appellant's motion and that denial is currently on appeal in case no. 59247 but is not the subject of the instant appeal. The subject of the instant appeal is the trial court's denial of appellant's September 5, 1990 successive petition for post-conviction relief. Upon consideration of appellant's September 5, 1990 petition for post-conviction relief, together with appellant's previously failed petitions for post-conviction relief, we affirm the trial court's denial of appellant's petition. Appellant's first and second assignments of error will be addressed collectively. They provide: I. APPELLANT WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAW, A VIOLATION OF THE 5TH, 6TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 - 3 - OHIO CONSTITUTION, WHEN THE TRIAL COURT DENIED HIS PETITION FOR POST-CONVICTION RELIEF FILED PURSUANT TO OHIO REVISED CODE 2953.21, WHERE THE PETITION WAS COMPRISE [sic] WITH DOCUMENTS CONTAINED SUFFICIENT OPERATIVE FACTS TO SUPPORT HIS CONTENTION THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. SAID DOCUMENT WAS EVIDENCE THAT IS DEHORS THE TRIAL RECORD, THUS, RES JUDICATA, DOES NOT BAR THE APPELLANT AND SUBSTANTIATES THAT AN EVIDENTIARY HEARING WAS REQUIRED UNDER 2953.21(C) R.C. II. APPELLANT WAS DENIED A FAIR TRIAL GUARANTEED HIM UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION DUE TO MISCONDUCT BY THE PROSECUTOR AND WITNESSES FOR THE STATE. WHERE, EVIDENCE SUBMITTED BY WAY OF POST-CONVICTION RELIEF R.C. 2953.21 WAS EVIDENCE THAT DEHORS THE RECORD, THUS, RES JUDICATA, DOES NOT BAR A DEFENDANT FROM RAISING HIS CONSTITUTIONAL CLAIM. Appellant alleges he was denied effective assistance of counsel as a result of counsel's failure to investigate. He also alleges inadequate preparation for trial. Additionally, appellant alleges prosecutorial misconduct in allowing the presentment of false, perjured testimony by state's witnesses. For the following reasons appellant's allegations lack merit and we conclude the trial court correctly denied his September 5, 1990 petition for post conviction relief. R.C. 2953.23(A) provides: "2953.23 Second or successive petitions; order appeal; (A) Whether a hearing is or is not held, the court may, in its discretion and for good cause shown, entertain a second petition or successive petitions for similar relief on behalf of the petitioner based upon the same facts or on newly discovered evidence." - 4 - Pursuant to R.C. 2953.23(A), it is within the sound discretion of the trial court to entertain a second petition or successive petitions for similar relief based upon the same facts. State, ex rel. Workman v. McGrath (1988), 40 Ohio St. 3d 91. Moreover, the term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 157. Review of appellant's petition for post conviction relief filed January 9, 1989 and his amended petition filed May 3, 1989 reveals those petitions alleged the same grounds for relief as the subsequent petition presently before us. Both this court and the trial court have previously rejected the arguments set forth in appellant's September 5, 1990 petition for post-conviction relief in State v. Richard (February 15, 1990), Cuyahoga App. No. 57960, unreported. Appellant attaches answers to interrogatories to his September 5, 1990 petition in support of his arguments. Said interrogatories indicate Donnie Garner, the victim of the felonious assault was treated in the Emergency Room at St. John Hospital on November 25, 1986, the day of the incident giving rise to appellant's felonious assault conviction. Contrary to appellant's contentions the interrogatories support rather than refute his convictions. - 5 - Accordingly, we conclude the trial court did not abuse its discretion in denying appellant's successive petition for post- conviction relief which sought similar relief based on the same facts as his previous post-conviction relief petitions. Workman, supra. We find that the September 5, 1990 petition was repetitive and frivolous and the trial court did not err in denying it as such. Thus, appellant's first and second assignments of error are overruled. Appellant's third assignment of error provides: III. THE TRIAL COURT ERRED BY ENTERING JUDGMENT FOR THE POST-CONVICTION RELIEF PETITION IN VIOLATION OF C.P. SUP. (4.) 4, 'IMPROPER ASSIGNMENT.' JUDGE WELLS' RULING IS VOID OR VOIDABLE UPON TIMELY OBJECTION BY A PARTY OPPOSING THE ASSIGNMENT OF ANOTHER JUDGE, WHO WAS NOT THE TRIAL JUDGE AND WAS NOT PROPERLY ASSIGNED BY THE ADMINISTRATING JUDGE. SAID ASSIGNMENT OF JUDGE WELLS VIOLATES ARTICLE IV, SECTION 5 OF THE OHIO CONSTITUTION, WHERE SUCH ASSIGNMENT OF JUDGE WELLS IS ABSENT A JOURNALIZED ORDER OF THE ADMINISTRATIVE JUDGE. Appellant alleges improper assignment in violation of C.P. Sup. R. 4. Upon review of appellant's allegation, we find that it lacks merit. 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 the court who thus becomes primarily responsi- ble for the determination of every issue and proceeding in the case until its termination. Berger v. Berger (1981), 3 Ohio - 6 - App. 3d 125. Furthermore, C.P. Sup. R. 4 should not be read to mean that only the original assigned judge has authority to take action under any circumstances. Id., at 128. In the instant case the matter was tried by Judge Lawther in June of 1987. We note that Judge Lawther retired in 1989 and his docket was assumed by newly elected Judge Wells. We find no evidence of impropriety nor can any be implied in the assumption of retiring Judge Lawther's docket by Judge Wells. We thus conclude the matter was properly assigned to Judge Wells. Accordingly, appellant's third assignment of error is overruled. Judgment affirmed. - 7 - 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. JOHN F. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON 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. .