COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67187 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION PHILLIP ADAMSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 23, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM COMMON PLEAS COURT CASE NO. CR-220473 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: L. CHRISTOPHER FREY (#0038964) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: ROBERT M. INGERSOLL (#0023748) Assistant Public Defender The Marion Building, Room 307 1276 West Third Street Cleveland, OH 44113-1569 - 2 - 2 SPELLACY, P.J.: Petitioner-appellant Phillip Adamson appeals from the dis- missal of his petition for postconviction relief filed under R.C. 2953.21. Adamson raises one assignment of error: PHILLIP ADAMSON WAS DENIED DUE PROCESS OF LAW, WHEN THE TRIAL COURT DENIED HIS SECOND PETI- TION FOR POSTCONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING. I. In 1988 Adamson was convicted of one count of kidnapping, in violation of R.C. 2905.01, six counts of rape, in violation of R.C. 2907.02, and one count of robbery, in violation of R.C. 2911.02. Shortly after his conviction, Adamson petitioned pro se for postconviction relief alleging he received ineffective assistance of counsel because his trial counsel had been under indictment and facing trial before the trial judge who presided over his trial. The trial court dismissed this petition and Adamson never appealed. In 1993 Adamson, with counsel, again petitioned for postcon- viction relief alleging the same grounds as his first petition. The trial court dismissed this petition based on the doctrine of res judicata. II. In his assignment of error, Adamson contends the trial court erred when it applied res judicata to his second petition. First, Adamson, citing State v. Coleman (1978), 59 Ohio App.2d 295, argues res judicata is inapplicable because he made his first petition pro se. Id. at 301. Coleman held that due process claims - 3 - 3 are not barred by a previous petition for post conviction relief made pro se. Coleman based this holding on the seventh and ninth paragraphs of the syllabus in State v. Perry (1967), 10 Ohio St.2d 175, which state that: 7. Constitutional issues cannot be considered in postconviction proceedings under Section 2953.021 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment and thus have been adjudicated against him. 9. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment, or on an appeal from that judgment. (Emphasis in original.) We find Coleman unpersuasive and reject its holding. Perry's reference to representation concerns the criminal trial and appeal, not the postconviction proceeding. A petition for postconviction relief is a civil proceeding. State v. Nichols (1984), 11 Ohio St.3d 40, 42; State v. Milanovich (1975), 42 Ohio St.2d 46, 49. No constitutional right to counsel exists in a postconviction proceeding. State v. Crowder (1991), 60 Ohio St.3d 151, 152. We find no reason to preclude the application of res judicata because a petitioner in a civil proceeding without the right to counsel acted pro se. This is especially true where, as here, the claims were actually raised in the earlier petition. - 4 - 4 The Sixth District rejected Coleman on similar grounds in State v. Delamotte (June 3, 1988), Lucas App. No. L-87-311, unreported; see, also, State v. Ballard (April 12, 1993), Warren App. No. CA92-10-091, unreported (Finding res judicata bars successive pro se petitions raising identical claims); State v. Tucker (April 18, 1988), Darke App. No. CA 1181, unreported (Finding res judicata applicable to claims raised in a pro se petition). Second, Adamson argues res judicata is inapplicable because he was unable to appeal from the denial of his first petition. The dismissal of a petition without a hearing is not a final appealable order until the trial court files findings of fact and conclusions of law. State v. Mapson (1982), 1 Ohio St.3d 217, 219. Here, the trial court filed findings of fact and conclusions of law for the dismissal of Adamson's first petition in the form of a journal entry. Several months later, State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, held that a journal entry could constitute findings of fact and conclusions of law. Adamson maintains he was prevented from appealing from the dismissal of his first petition because the trial court's journal entry was not recognized as an acceptable form of findings of fact and conclusions of law until after the time to appeal expired. We disagree. Carrion only clarified and did not alter the law. Accordingly, Adamson's assignment of error is not well taken. Judgment affirmed. - 5 - 5 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. PATRICIA BLACKMON, J. and TERRENCE O'DONNELL, J., CONCUR. LEO M. SPELLACY 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. .