COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67229 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : FRANK G. SPISAK, JR. : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 13, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CR-181411. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor L. Christopher Frey, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Kathleen A. McGarry, Esq. Richard J. Vickers, Esq. Assistant State Public Defenders State of Ohio 8 East Long Street, 12th Floor Columbus, OH 43266-0587 -2- DAVID T. MATIA, J.: Frank Spisak, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas which denied his petition for post-conviction relief pursuant to R.C. 2953.21. Defendant- appellant also challenges the trial court's failure to rule on his motion for relief from judgment pursuant to Civ.R. 60(B)(5). Defendant-appellant assigns four errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS This court adopts the statement of facts as set forth by the Ohio Supreme Court in State v. Spisak (1988), 36 Ohio St.3d 80. On February 1, 1982, the body of the Reverend Horace T. Rickerson was discovered by a fellow student on the floor of a restroom on the Cleveland State University campus. Rickerson had been shot seven times by an assailant from a distance of more than eighteen inches. Four spent bullet casings were recovered from the scene. On the evening of June 4, 1982, John Hardaway was shot seven times while waiting for an RTA train at the West 117th Rapid Station in Cleveland. He observed a man walking up the platform steps and had turned away when the man opened fire on him. Hardaway survived the shooting, and was later able to identify his assailant as the appellant, Frank G. Spisak. Three pellets and seven shell casings were removed from the scene. At approximately 5:00 p.m. on August 9, 1982, Coletta Dartt, an employee of Cleveland State University, left her office to use the restroom. Upon exiting the stall, she encountered the appellant, holding a gun, who ordered her back into the stall. Instead, Dartt shoved appellant out of the way and ran down the hallway. Appellant shot at her, but missed. A pellet was later removed from a -3- wall in the hallway. Dartt identified the appellant as her assailant. On August 27, 1982, the body of Timothy Sheehan, an employee of Cleveland State University, was discovered in a restroom at the university by a security guard. The guard had been searching for Sheehan after his office reported that he had failed to answer his beeper page. Sheehan had been shot four times, and two pellets were retrieved from the scene. On the morning of August 30, 1982, the body of a young student, Brian Warford, was discovered in a bus shelter on the campus of Cleveland State University. Warford died from a single gunshot wound to the head, although five spent .22 caliber casings were recovered from the scene. On September 4, 1982, Cleveland police answered a call that a man was firing shots from a window at 1367 East 53rd Street. The police were directed to appellant's apartment, and appellant, after admitting he had fired one shot, invited the officers inside. A shotgun and a .22 caliber automatic pistol were observed in the room. Appellant made a suspicious move toward the couch but was stopped by one of the officers who discovered a loaded .38 caliber handgun and a two-shot derringer under the couch cushions. Appellant was arrested for possession of unregistered handguns and discharging firearms within city limits, but was later released on bond. The weapons, however, were confiscated. Early the next day, an anonymous caller told police that the confiscated weapons had been used in the Cleveland State University shootings. Ballistics tests confirmed the tip. A warrant was obtained, and the police returned to Spisak's apartment, confiscating several items including newspaper clippings of the homicides and Nazi-White Power paraphernalia. Appellant was later arrested, hiding in the basement of a friend's house. During the brief search of appellant's suitcase at the scene, police discovered the beeper pager belonging to Sheehan. -4- Appellant later admitted to shooting Rickerson for allegedly making a homosexual advance toward him; to killing Sheehan as a possible witness to the Rickerson shooting, to killing Warford while on a "hunting party" looking for a black person to kill; and finally, to shooting at Dartt and to shooting Hardaway. He also told police he had replaced the barrel of a .22 caliber handgun in order to conceal the murder weapon. Id. at 80, 81. On March 29, 1983 defendant-appellant was indicted by the Cuyahoga County Grand Jury for four counts of aggravated murder in violation of R.C. 2903.01; three counts of aggravated robbery in violation of R.C. 2911.01; one count of attempted murder in violation of R.C. 2903.02 and one count of receiving stolen property in violation of R.C. 2913.51. The aggravated murder counts contained nineteen death penalty specifications pursuant to R.C. 2929.04(A). In a separate case defendant-appellant and a co-defendant were indicted for another attempted aggravated murder charge to which defendant-appellant pled no contest after final disposition of the case presently under review. On April 8, 1993 defendant-appellant was arraigned whereupon he entered a plea of not guilty by reason of insanity to all of the counts contained in the indictment. Prior to commencement of trial defendant-appellant was referred to the court psychiatric clinic for evaluation under R.C. 2945.39, Sanity at the Time of the Act. Defendant-appellant was also referred at his request to Dr. Sandra McPherson, Dr. Kurt Bertshlinger, Dr. S. M. Samy and Dr. Markey. -5- On June 22, 1983 jury trial commenced. On July 27, 1983 the jury returned guilty verdicts on all counts and specifications contained in the indictment with the exception of the alleged aggravated robbery of Brian Warford. Following the mitigation phase of the trial the jury recommended that a sentence of death be imposed at to each charge of aggravated murder. Defendant- appellant was also sentenced to terms of seven to twenty-five years on each conviction of attempted murder and aggravated robbery. This court affirmed defendant-appellant's convictions after finding the two aggravated murder convictions of Timothy Sheehan to be allied offenses of similar import. State v. Spisak (July 19, 1984), Cuyahoga App. Nos. 47458 and 47459, unreported. Following numerous motions for remand, the Ohio Supreme Court affirmed defendant-appellant's conviction and death sentence. State v. Spisak (1988), 36 Ohio St. 3d 80. On November 1, 1989 defendant-appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21. The petition was amended four times. In total, defendant-appellant raised 63 causes of action through the petition. On January 12, 1990 plaintiff-appellee filed its motion to dismiss the petition for post-conviction relief. On June 6, 1992, the trial court issued findings of fact and conclusions of law denying defendant- appellant's petition for post-conviction relief and granting plaintiff-appellee's motion to dismiss. -6- On February 1, 1994 defendant-appellant filed a motion for relief from order pursuant to Civ.R. 60(A). On February 3, 1994 defendant-appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B)(5). Plaintiff-appellee did not respond to defendant-appellant's motion for relief from order. On April 5, 1994 the trial court granted defendant-appellant's motion for relief from order and ordered that the findings of fact and conclusions of law, first issued on June 6, 1992, be filed and served upon the parties. The trial court did not rule upon defendant-appellant's motion for relief from judgment. On May 4, 1994 defendant-appellant filed a timely notice of appeal of the judgment of the trial court denying defendant- appellant's petition for post-conviction relief. II. FIRST ASSIGNMENT OF ERROR Defendant-appellant's first assignment of error states: THE TRIAL COURT ERRED BY FAILING TO RULE UPON AND GRANT APPELLANT'S OHIO R.CIV.P. 60(B)(5) MOTION FOR RELIEF FROM JUDGMENT. A. THE ISSUE RAISED: FINAL APPEALABLE ORDER Defendant-appellant argues through his first assignment of error that the trial court violated defendant-appellant's constitutional rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution by failing to rule upon and grant the Civ.R. 60(B)(5) motion for relief from judgment. Before reaching the merits of defendant-appellant's first assignment of error, this -7- court must first determine whether this assignment of error is ripe for review. -8- B. STANDARD OF REVIEW R.C. 2505.02 states: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacates or sets aside a judgment and grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside. Pursuant to R.C. 2505.02, an order vacating a judgment under Civ.R. 60(B) is a final appealable order and an appeal therefrom must be taken within thirty days. Bourque v. Bourque (1986), 34 Ohio App.3d 284. The Ohio Supreme Court has held that once an appeal is filed, the trial court is divested of its jurisdictions to consider Civ.R. 60(B) motions for relief from judgment. State ex rel. East Mfg. Corp. v. Ohio Civ. Rights Comm. (1992), 63 Ohio St.3d 179, 181. Jurisdiction to consider a Civ.R. 60(B) motion may be conferred on the trial court only through an order by the reviewing court remanding the matter for consideration of the Civ.R. 60(B) motion. Howard v. Catholic Social Services of Cuyahoga County, Inc., et al. (1994), 70 Ohio St.3d 141, 147. -9- C. CIV.R. 60(B)(5) MOTION NOT A FINAL APPEALABLE ORDER A review of the record from the trial court demonstrates that at the time the notice of appeal was filed the trial court had not yet ruled upon defendant-appellant's motion for relief from judgment. Therefore, pursuant to the Ohio Supreme Court's ruling in Howard, supra, the trial court did not have jurisdiction to consider the motion. After the notice of appeal was filed this court remanded the case back to the trial court for the limited purpose of ruling on defendant-appellant's Civ.R. 60(B)(5) motion for relief from judgment. This was done at the request of defendant-appellant. This court specified in its order that the case must be returned to the court of appeals by September 30, 1994. This court indicated further that no further extensions would be granted on the remand. As of September 30, 1994 the trial court had not ruled on defendant-appellant's motion for relief from judgment and therefore lost jurisdiction to proceed on the merits of the motion. Accordingly, since the trial court did not rule on the Civ.R. 60(B) motion before defendant-appellant filed the notice of appeal or during the window of opportunity established by this court, it is not a final appealable order pursuant to R.C. 2505.02 and not yet ripe for review. -10- III. SECOND ASSIGNMENT OF ERROR Defendant-appellant's second assignment of error states: IT IS ERROR FOR THE TRIAL COURT TO DENY A PETITION FOR POST-CONVICTION RELIEF WHEN THE PETITIONER PRESENTS EVIDENCE DEHORS THE RECORD TO SUPPORT HIS CLAIM FOR RELIEF. A. THE ISSUE RAISED: INEFFECTIVE ASSISTANCE OF COUNSEL Defendant-appellant contends that his petition for post- conviction relief clearly set forth numerous instances in which his trial counsel's performance was not reasonable under prevailing professional norms. It is defendant-appellant's position that the petition as well as the attached affidavits meet the standard for ineffective assistance of counsel set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW The doctrine of res judicata applies to bar this court's review of any claimed errors which have already been raised and litigated an direct appeal in State v. Spisak (July 19, 1984), Cuyahoga App. Nos. 47458 and 47459, unreported, or in defendant- appellant's appeal to the Ohio Supreme Court in State v. Spisak (1988), 36 Ohio St.3d 80. Issues properly before a court on a petition for post- conviction relief are issues which could not have been raised on direct appeal due to the fact that the evidence supporting such -11- issues is dehors the record. State v. Milanovich (1975), 42 Ohio St.2d 46; State v. Durr (July 28, 1994), Cuyahoga App. No. 65958, unreported. C. RES JUDICATA A review of the record before this court demonstrates clearly that defendant-appellant's claims of ineffective assistance of counsel have been raised and litigated twice before this court and once before the Ohio Supreme Court. Accordingly, this court will not delve into those claims once more as they are barred by the doctrine of res judicata. State v. Perry (1967), 10 Ohio St.2d 175; State v. Phillips (1993), 88 Ohio App.3d 409. IV. THIRD ASSIGNMENT OF ERROR Defendant-appellant's third assignment of error states: THE TRIAL COURT HAS FAILED TO COMPLY WITH THE MANDATES OF R.C. 2953.21. A. THE ISSUE RAISED: R.C. 2953.21 Defendant-appellant argues that the trial court erred in failing to adequately review the files and records of the case and in failing to conduct an evidentiary hearing. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW R.C. 2953.21(A) provides: (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 -12- verified 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 other documentary evidence as will support his claim for relief. R.C. 2953.21(C) provides: (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 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. A trial court is not required to hold a hearing on all post- conviction motions. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450. A petitioner is not entitled to an evidentiary hearing on a petition for post-conviction relief where the petitioner fails to demonstrate counsel's ineffectiveness or prejudice caused by the alleged ineffectiveness and where the trial court files findings of fact and conclusions of law pursuant to R.C. 2953.21(C). State v. Lambrecht (1990), 69 Ohio App.3d 256; State v. Jackson (1980), 64 Ohio St.2d 107 at syllabus. -13- C. THE TRIAL COURT COMPLIED WITH THE MANDATES OF R.C. 2953.21 In this instance, the trial court clearly followed the mandates of R.C. 2953.21. The trial court's findings of fact and conclusions of law correctly indicated that, "The record and filings in this case fail to demonstrate a denial or infringement of constitutional or statutory rights as would render petitioner's judgment of conviction void or voidable." The trial court noted further that 61 of the 63 alleged causes of action raised by defendant-appellant had already been raised and litigated by this court as well as the Ohio Supreme Court and were therefore barred by the doctrine of res judicata. The two causes of action that were not previously raised (causes of action 60 and 63) were without merit. Defendant-appellant's 60th cause of action challenged the Ohio Supreme Court's review of the case. A trial court does not have authority to review state supreme court decisions. Defendant-appellant's 63rd cause of action challenged this court's failure to transfer the entire trial transcript back to the trial court. Defendant-appellant has failed to demonstrate the necessity of the trial transcript for a meaningful trial court review given the fact that all of the remaining causes of action have already been raised and decided. Accordingly, defendant-appellant's third assignment of error is not well taken. -14- V. FOURTH ASSIGNMENT OF ERROR Defendant-appellant's fourth assignment of error states: THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT CAUSE OF ACTION NUMBER 37 WAS NOT COGNIZABLE ON POST-CONVICTION BUT WAS INSTEAD AN APPELLATE ISSUE. A. THE ISSUE RAISED: WHETHER TRIAL COURT ADDRESSED CAUSE OF ACTION NUMBER 37 Defendant-appellant asserts that the trial court failed to address cause of action number 37 finding that it alleged the denial of petitioner's rights at the appellate level and was therefore not cognizable in post-conviction proceedings. Defendant-appellant's fourth assignment of error is not well taken. A review of the findings of fact and conclusions of law issued by the trial court reveals that the trial court did, in fact, address defendant-appellant's 37th cause of action. The trial court stated, "Petitioner's Causes of Action Nos. 1-59 and 61-62 have been raised and litigated in the Supreme Court of Ohio on direct appeal. Accordingly, they are barred from instant consideration by the doctrine of res judicata." The error complained of in the instant appeal is merely clerical in nature and defendant-appellant has failed to demonstrate that any prejudice resulted. Accordingly, defendant-appellant's fourth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -15- 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. 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. BLACKMON, P.J. and NAHRA, J., CONCUR. DAVID T. MATIA 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. .