COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59983 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOHN WILSON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-205882 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: L. CHRISTOPHER FREY ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: JOHN WILSON (#190524), pro se MARION CORR. INSTITUTION P. O. BOX 57 MARION, OHIO 43302 -2- SPELLACY, J.: Petitioner-appellant John Wilson ("appellant") appeals from the trial court's denial of his petition for post-conviction relief made under R.C. 2953.21. On April 24, 1986, a jury found appellant guilty of two counts of rape, in violation of R.C. 2907.02, and two counts of gross sexual imposition, in violation of R.C. 2907.05. The trial court then sentenced appellant to consecutive terms of ten to twenty- five years and five to twenty-five years for the counts of rape and to concurrent terms of one and one-half years for the counts of gross sexual imposition. On direct appeal, appellant represented himself, in addition to being assigned the same attorney who represented him at trial. In State v. Wilson (April 23, 1987), Cuyahoga App. No. 52031, unreported, we affirmed the trial court's judgment. On August 14, 1986, prior to our deciding appellant's direct appeal, appellant filed his petition for post-conviction relief. Over three years later, on September 25, 1989, appellant filed a motion to amend his original petition. On January 17, 1990, the trial court dismissed appellant's petition without a hearing. The trial court subsequently issued findings of fact and conclusions of law. Appellant appeals and raises the following assignments of error: I. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED -3- STATES CONSTITUTION AND ARTICLE ONE SECTIONS TEN AND SIXTEEN OF THE OHIO CONSTITUTION. THE TRIAL COURT FURTHER ERRED BY DISMISSING APPELLANT'S POST-CONVICTION CLAIMS THEREOF UNDER THE DOCTRINE OF RES JUDICATE (sic) SINCE SAID CLAIMS CAN ONLY BE DETERMINED HEREIN VIA EVIDENCE THAT DEHORS THE RECORD. II. THE TRIAL COURT ERRED AS A MATTER OF DUE PROCESS IN GRANTING THE STATE'S JOINT MOTION TO DISMISS APPELLANT'S POST-CONVICTION PETITION WITHOUT THE MOST NECESSARY EVIDENTIARY HEARING WHERE THERE EXISTS (sic) GENUINE ISSUES OF MATERIAL FACT SUPPORTED BY VIDEOTAPE, AFFIDAVITS, AND PERTINENT DOCUMENTS TO SUPPORT APPELLANT'S INNOCENCE. III. THE TRIAL COURT ERRED WHEN IT FAILED TO TIMELY ADDRESS APPELLANT'S MOTION TO MAKE CORRECTIONS IN THE TRIAL COURT WHICH PREJUDICED APPELLATE REVIEW THEREOF AND THEREBY VIOLATED APPELLANT'S FUNDAMENTAL RIGHT TO ACCESS TO THE COURTS AND DUE PROCESS AS REQUIRED BY THE FIRST, FIFTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO HOLD A HEARING ON PETITIONER'S MOTION FOR DEFAULT JUDGMENT FILED PURSUANT TO RULE 55 OF THE CIVIL RULES IN VIOLATION OF DUE PROCESS (sic)[.] V. APPELLANT-PETITIONER WAS DENIED A PROPER INVESTIGATION INTO EXISTING VIOLATIONS OF STATUTORIAL RIGHTS PROCURED ON PART OF THE STATE AND STATE'S WITNESSES IN VIOLATION OF APPELLANT'S MOST BASIC DUE PROCESS PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. We address appellant's assignments of error out of order, addressing his second assignment of error last. I. In his first assignment of error, appellant contends the trial court erred when it dismissed his petition because he has -4- demonstrated that he was denied effective assistance of counsel. Appellant's assignment of error lacks merit. Appellant argues that he was denied effective assistance of counsel at the trial level because his attorney mishandled issues concerning the original indictment and failed to investigate whether the victim was capable of having written letters which were admitted at trial. The doctrine of res judicata bars a petitioner from raising matters in a petition for post-conviction relief which were or could have been raised at trial or on direct appeal. State v. Perry (1967), 10 Ohio St. 2d 175, paragraph seven of the syllabus. An exception to this general rule is that a petition is not barred when it is based upon the allegation of ineffective assistance of counsel and the petitioner was represented by the same attorney at both the trial and appellate levels. State v. Lambrect (1989), 58 Ohio App. 3d 86, 87; see also State v. Cole (1982), 2 Ohio St. 3d 112, at fn. 1. The reason for this exception is that an attorney cannot "*** realistically be expected to argue his [or her] own incompetence." Cole, supra, at 113; citing to State v. Carter (1973), 36 Ohio Misc. 170. This case falls in between the general rule and its exception because even though appellant was represented by the same attorney at the trial and appellate levels, the error of ineffective assistance of counsel was assigned by appellant, and addressed by this court, on direct appeal. We find that under the unique facts of this case, the doctrine of res judicata is -5- applicable to those issues which actually were raised, but inapplicable to those issues which were not raised, even if they could have been. Applying this rule, appellant's argument that his attorney was ineffective because he mishandled issues concerning the original indictment is barred because this issue was raised on direct appeal. Appellant's argument that his attorney was ineffective because he failed to investigate the victim's ability to write, on the other hand, is not barred because it was not raised on direct appeal. Appellant supports his argument that his attorney was ineffective because he failed to investigate the victim's ability to write by alleging that he failed to subpoena the parents of the victim as requested by appellant. He also introduces affi- davits from two individuals who aver they have seen a videotape, taken July 28, 1984, which shows that the victim could not write. In State v. Jackson (1980), 64 Ohio St. 3d 107, syllabus, the court held that: In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. We find that petitioner has not met his burden of submitting sufficient evidentiary materials. First, petitioner failed to submit any evidentiary documents concerning his allegation that -6- his attorney failed to subpoena the victim's parents. In addi- tion, appellant did not raise this allegation in his petition. Second, although appellant submitted evidentiary documents which, if true, would demonstrate that the victim could not write, he has not submitted any documents demonstrating that his attorney's failure to discover this information constituted incompetence. Appellant also argues that he was denied effective assistance of counsel at the appellate level. R.C. 2953.21, however, does not provide a remedy to redress a petitioner's claim that he or she received ineffective assistance of appellate counsel. State v. Mitchell (1988), 3 Ohio App. 3d 117, 119. Accordingly, appellant's first assignment of error is not well taken. II. In his third assignment of error, appellant contends the trial court erred because it failed to address his motion to correct the record, filed on April 7, 1987. Appellant's assignment of error lacks merit. This issue is barred by the doctrine of res judicata because it could have been raised on direct appeal. Perry, supra. Accordingly, appellant's third assignment of error is not well taken. In his fourth assignment of error, appellant contends the trial court erred because it did not hold a hearing to consider his motion for a default judgment made under Civ. R. 55. -7- Appellant's assignment of error lacks merit. On August 14, 1986, appellant filed a petition for post- conviction relief. On February 23, 1987, appellant filed a motion for default judgment on his petition. This court, however, did not decide appellant's direct appeal until April 23, 1987. A petition for post-conviction relief is not appropriate until the petitioner's direct appeal has been decided. State v. Nichols (1984), 11 Ohio St. 3d 40, 42. As a result, appellant's petition for post-conviction relief was premature and his motion for default judgment was a nullity. Consequently, the trial court was not required to hold a hearing to consider appellant's motion for default judgment. Accordingly, appellant's fourth assignment of error is not well taken. IV. In his fifth assignment of error, appellant contends he was denied due process. Appellant's assignment of error lacks merit. Appellant supports his contention by arguing that he was denied the right to subpoena witnesses, the prosecutor's actions constituted misconduct, the victim should have been required to undergo a medical examination, and the verdict was against the manifest weight of the evidence. All of these issues, however, either were or could have been raised on direct appeal. Perry, supra. Appellant also argues that he was denied effective assistance of counsel because his attorney allowed the prosecutor -8- to make misstatements to the jury and refused to let appellant testify. Neither argument is successful. The matter concerning the prosecutor's statements to the jury was addressed on direct appeal, Perry, supra, and appellant has not submitted any eviden- tiary materials supporting his argument that his attorney refused to let him testify. Jackson, supra. Accordingly, appellant's fifth assignment of error is not well taken. V. In his second assignment of error, appellant contends that the trial court erred because it did not hold a hearing to consider his petition. Appellant's assignment of error lacks merit. "A trial court may dismiss a petition for post[-]conviction relief without a hearing if the petition and its supporting evidentiary documents do not contain operative facts which, if true, would establish a substantive ground for relief." State v. Armstrong (1988), 56 Ohio App. 3d 105, 108; citing to Perry, supra. After a review of appellant's petition and the record, we find that he has failed to meet his burden and that the trial court could properly dismiss his petition without a hearing. Accordingly, appellant's second assignment of error is not well taken. 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 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. FRANCIS E. SWEENEY, P.J. and PATTON, J., CONCUR. LEO M. SPELLACY 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. .