COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60916 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION LAMONT McALLISTER, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 20, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-217,813 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Laurence R. Snyder Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Lamont McAllister, Pro Se No. 197-552 P. O. Box 57 Marion, Ohio 43302 -2- NAHRA, P.J.: The petitioner-appellant, Lamont McAllister, appeals the trial court's dismissal of his petition for post-conviction relief. McAllister was indicted for murder pursuant to R.C. 2903.02 with a gun specification. A jury found him guilty of voluntary manslaughter pursuant to R.C. 2903.03 with a gun specification. Thereafter, the trial court sentenced McAllister to three years actual incarceration for the firearm offense and to a consecutive term of six to twenty-five years. The conviction was affirmed by this court on appeal. State v. McAllister (Aug. 18, 1988), Cuyahoga App. No. 54160. The Ohio Supreme Court did not accept jurisdiction. On March 6, 1990, McAllister filed a pro se petition for post-conviction relief in the Cuyahoga County Court of Common Pleas. On November 7, 1990, the trial court filed its findings of fact and conclusions of law denying McAllister's petition for post-conviction relief. No evidentiary hearing was held. This appeal follows. I. Appellant's first and fifth assignments of error are interrelated and shall be examined together. They state: FIRST ASSIGNMENT OF ERROR THAT DEFENDANT WAS SUBJECTED TO SELECTIVE AND DISCRIMINATORY PROSECUTION, WHERE CO-DEFENDANT(S) AND/OR AIDERS AND ABETTERS WERE NOT PROSECUTED FOR THEIR INVOLVMENT (SIC) IN THE ALLEGED CRIME, WHICH IN EFFECT DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL -3- IN ACCORD WITH THE 6TH AND 14TH AMENDMENTS OF THE CONSTITUTION. FIFTH ASSIGNMENT OF ERROR PETITIONER WAS DENIED HIS RIGHT TO THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ART. 1 SEC. 10 OF THE CONSTITUTION OF OHIO, DUE PROCESS AND EQUAL PROTECTION OF LAW, IN THAT HE WAS SUBJECTED TO VINDICTIVE, MALIOUS (SIC) PROSECUTION AND MISCONDUCT THEREOF AS WELL AS ABUSE OF COURT AND INEFFECTIVE ASSISTENCE (SIC) OF COUNSEL. McAllister asserts that he was the victim of malicious and selective prosecution because the alleged co-defendants were not prosecuted as aiders and abettors. As a result, he maintains that he was denied due process. The doctrine of res judicata bars consideration of issues in a petition for post-conviction relief if such issues or errors were or could have been raised on direct appeal. State v. Perry (1967), 10 Ohio St. 2d 175, 226 N.E.2d 104. The issue of selective prosecution is one which could have been raised on direct appeal. A review of the direct appeal indicates that the issue was not so raised. The trial court properly dismissed McAllister's claim of selective prosecution under the doctrine of res judicata. Accordingly, McAllister's first and fifth assignments of error are overruled. II. Appellant's second through fourth and sixth through twelfth assignments of error shall be examined together since they all -4- concern the claim of ineffective assistance of counsel. They state: SECOND ASSIGNMENT OF ERROR THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL THROUGH COUNSEL'S FAILURE TO OBTAIN CONTENUANCE (SIC) FOR PURPOSE OF PRODUCING A MATERIAL WITNESS WHICH DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. THIRD ASSIGNMENT OF ERROR THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL DID NOT BRING TO LIGHT PROPER LAW AND RULINGS IN ORDER TO HAVE THE STATEMENT OF A (SIC) UNAVAILABLE MATERIAL WITNESS READ IN THE PRESENCE OF THE JURY, WHICH INDEED DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. FOURTH ASSIGNMENT OF ERROR THAT DEFENSE COUNSEL'S ERROR WAS OF CONSTITUTIONAL MAGNITUDE WHEN HE FAILED TO SPECIFICALLY REQUEST SPECIAL INSTRUCTIONS ON THE LESSER OFFENSE OF NEGLIGENT HOMICIDE, BASED ON THE EVIDENCE OF INTENT AND PROVOCATION WHICH WAS PRESENT AT TRIAL, PRUAUSANT (SIC) TO R.C. 2945,74 (SIC) AND CRIM. R. 31(C). THEREFORE DENING (SIC) THE PETITIONER HIS RIGHT OF THE 6TH AND 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION, ART. 1 SEC. 10 OF THE CONSTITUTION OF OHIO, DUE PROCESS AND EQUAL PROTECTION OF THE LAW. SIXTH ASSIGNMENT OF ERROR . . . IS A VIOLATION BY THE PROSECUTION, THE COURT, AND A (SIC) ACT OF ABNORMAL INEFFECTIVENESS OF DEFENSE COUNSEL. IS THE ISSUE OF THE SUBSTITUTE JUDGE WHO PRECIDED (SIC) OVER THE TRIAL AT THE DELIBARATION (SIC) STAGE OF THE TRIAL; WHO THE COURT WAS IN VIOLATION FOR SUBSTITUTION UNDER RULE 25 OF THE OHIO RULES OF COURT, WHO THE PROSECUTION WAS IN VIOLATION FOR ALLOWING, AND DEFENSE COUNSEL WAS VERY INEFFECTIVE IN NOT OBJECTING TO. SEVENTH ASSIGNMENT OF ERROR THAT HIS COUNSEL WAS INEFFECTIVE IN NOT OBJECTING TO INADMISSIBLE EVIDENCE GIVEN BY (SIC) STATE'S EXPERT WHICH WAS USED AS MATERIAL EVIDENCE IN HIS CONVICTION -5- AND IF NOT ADMITTED WOULD HAVE BEEN PARAMONT (SIC) IN CHANGING THE OUTCOME OF THE JURY'S VERDICT. EIGHTH ASSIGNMENT OF ERROR THAT DEFENSE COUNSEL WAS ABNORMALLY INEFFECTIVE WHEN WHEN (SIC) HE MOVED THE COURT FOR INSTRUCTION TO THE JURY ON (SIC) LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER WHEN HE WAS NOT PROPERLY PREPARED TO DEFEND HIS CLIENT ON THAT CHARGE, NOR DID HE PRESENT AVAILABLE EVIDENCE TO DEFEND AGAINST THAT CHARGE. WHERE HAD HE PROPERLY PRESENTED FACTS OF MITIGATING CIRCUMSTANCES AND DEFENDANTS MENTAL STATE AT THE TIME OF THE CRIME, BY EXOERT (SIC) TESTIMONY, THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT BEYOND A DOUBT. NINTH ASSIGNMENT OF ERROR THAT DEFENDANT'S COUNSEL WAS INEFFECTIVE IN NOT OBJECTING TO MISSTATEMENTS OF FACTS, UNJUST OPINIONS AND INFERENCES AND GENERAL MISCONDUCT OF THE PROSECUTOR WHICH WERE IN ABUNDENCE (SIC) AND TO (SIC) NUMEROUS TO OVERLOOK IN THE STATE'S CLOSING ARGUMENT. THAT BY THE LACK OF HIS OBJECTIONS AND THE MISCONDUCT OF THE PROSECUTOR, DEFENDANT WAS DENIED HIS RIGHTS AS GUARANTEED HIM IN THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES, ART. 1 SEC. 10 OF THE CONSTITUTION OF OHIO, AND OF WHICH THE PROSECUTOR HAD HE NOT COMMITTED SUCH PREJUDICIAL MISCONDUCT AND HAD COUNSEL FOR THE DEFENSE PROPERLY OBJECTED TO SUCH MISCONDUCT AND BROUGHT THEM TO THE ATTENTION OF THE COURT AND THE JURY THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT. TENTH ASSIGNMENT OF ERROR DEFENSE COUNSEL WAS INEFFECTIVE IN MOVING THE COURT TO INSTRUCT THE JURY ON THE CHARGE OF VOLUNTARY MANSLAUGHTER WHERE HIS ASKING THE COURT FOR SAID INSTRUCTIONS IMPLIED TO THE JURY THAT THE DEFENDANT WAS GUILTY OF THAT CRIME. ELEVENTH ASSIGNMENT OF ERROR THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCES (SIC) OF COUNSEL THROUGH COUNSEL'S FAILURE TO PRODUCE TO THE JURY CRITICAL EVIDENCE THAT WAS AVAILABLE TO HIM, FAVORABLE TO HIM AND, TO WHICH, WITH KNOWLEDGE OF, FAILED TO PROPERLY INVESTIGATE. THEREFORE DENING (SIC) THE PETITIONER HIS RIGHT OF THE 6TH AND 14TH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, ART. 1 SEC. -6- 10 OF THE CONSTITUTION OF OHIO, DUE PROCESS AND EQUAL PROTECTION OF THE LAW. TWELVFTH (SIC) ASSIGNMENT OF ERROR THAT THE DEFENSE COUNSEL WAS ABNORMALLY INEFFECTIVE IN HIS ARGUMENT TO THE COURT TO DIMISS (SIC) THE FIREARM SPECIFICATION IN THIS CASE BY NOT OBJECTING IN A SKILLFULL (SIC) AND PROFESSIONAL MANNER AS REQUIRED BY HIS DUTY AND OBLIGATION TO HIS CLIENT'S DEFENSE; AND THAT (SIC) COURT ERRORED (SIC) IN INSTRUCTING THE JURY ON THE GUN SPEC. WHICH WAS AGAINST THE INTENT OF THE GENERAL ASSEMBLY, ART. 1 OF THE BILL OF RIGHTS AND THE CONSTITUTION OF THE UNITED STATES. McAllister contends that he was denied the effective assistance of trial counsel and that the trial court erred by dismissing his petition for post-conviction relief without 1 conducting an evidentiary hearing. R.C. 2953.21 states in part: (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. The petitioner may file such supporting affidavit and the other documentary evidence as will support his claim for relief. * * * (C) Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and 1 These assignments are not barred by the doctrine of res judicata since appellant was represented by the same counsel upon direct appeal as he was at trial and such counsel cannot be expected to raise the issue of ineffective assistance. State v. Carter (1973), 36 Ohio Misc. 170. -7- supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. Such court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. In State v. Jackson (1980), 64 Ohio St. 2d 107, 111, 413 N.E.2d 819, the Supreme Court of Ohio stated: Before a hearing is granted, the petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and also that the defense was prejudiced by counsel's ineffectiveness. Broad assertions without a further demonstration of prejudice do not warrant a hearing for all post- conviction petitions. General conclusory allegations to the effect that a defendant has been denied effective assistance of counsel are inadequate as a matter of law to impose an evidentiary hearing. Here, McAllister has not submitted evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. McAllister merely appended to his petition selected portions of his trial transcript along with his own self-serving affidavit. His petition consists of broad conclusory statements which do not meet the requirements for an evidentiary hearing. State v. Pankey (1981), 68 Ohio St. 2d 58, 428 N.E.2d 413; State v. Kapper (1983), 5 Ohio St. 3d 36, 448 N.E.2d 823, certiorari denied (1983), 464 U.S. 856; see State v. Poland (1984), 16 Ohio App. 3d 303, 475 N.E.2d 794. -8- To prevail on a claim of ineffective assistance of counsel, a defendant must show that there was a substantial violation of any of defense counsel's essential duties to his client, and, second, that he was materially prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St. 2d 391, 396- 397, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910; Strickland v. Washington (1984), 466 U.S. 668. In addition to failing to fulfil his initial burden of providing the necessary evidentiary materials in his petition for post-conviction relief, McAllister has also failed to exemplify the record with a trial transcript. App. R. 9(B). Even assuming that McAllister's petition had provided the requisite evidentiary materials to support his claim of ineffective assistance of counsel, we would not be able to determine if he was prejudiced by defense counsel's performance at trial in the absence of a transcript. As a result of the foregoing, we believe the trial court's finding was proper that McAllister's petition did not provide substantive grounds for relief and that he was not entitled to an evidentiary hearing. Appellant's assignments of error are overruled. III. Appellant's thirteenth and fourteenth assignments of error are interrelated and shall be examined together. They state: THIRTEENTH ASSIGNMENT OF ERROR -9- THAT DEFENSE COUNSEL WAS INEFFECTIVE IN NOT APPELING (SIC) AN ISSUE IN HIS BRIEF WHICH HE STATED TO THE PUBLIC WAS AN ERROR MADE BY THE JUDGE, AN ERROR WHICH WOULD HAVE MOST LIKELY BEEN A MAJOR TURNING POINT IN THE APPEAL, HAD IT BEEN SUBMITTED. THUS DENING (SIC) THE PETITIONER HIS DUE PROCESS RIGHTS TO APPEAL AS WELL AS HIS RIGHT TO EFFECTIVE COUNSEL. FOURTEENTH ASSIGNMENT OF ERROR THAT DEFENSE COUNSEL, IN HIS REPRESENTATION AS APPEAL COUNSEL, WAS MOST INEFFECTIVE IN NOT ORALLY ARGUING PETITIONER'S CASE ON APPEAL, ONLY SUBMITTING PETITIONER"S (SIC) APPEAL ON THE MERIT OF THE PAPERWORK ALONE. HENCE DENING (SIC) PETITIONER HIS RIGHT TO DUE PROCESS AND HIS RIGHT TO AN ORAL ARGUMENT OF HIS CASE IN APPEALS COURT, IN ACCORD WITH RULE 21 OF THE RULE OF APPELLATE PROCEEDINGS. McAllister asserts that his post-conviction relief petition was dismissed improperly because he was denied effective assistance of appellate counsel. However, claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21. State v. Murnahan (1992), 63 Ohio St. 3d 60, 584 N.E.2d 1204, paragraph one of the syllabus; see also State v. Mitchell (1988), 53 Ohio App. 3d 117, 559 N.E.2d 1370. Accordingly, appellant's assignments of error are overruled. The judgment of the trial court is affirmed. -10- 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. SPELLACY, J., and JAMES D. SWEENEY, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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. .