COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68547 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION THOMAS G. MANOS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 28, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-246209 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN W. MONROE, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: THOMAS G. MANOS, Pro Se #265033 Hocking Correctional Facility P.O. Box 59 Nelsonville, Ohio 45764 - 3 - O'DONNELL, J.: Pro se appellant Thomas G. Manos appeals from two separate determinations of the trial court on separate post-conviction relief motions, one on September 14, 1994, denying his motion to vacate or set aside sentence for ineffective assistance of trial counsel, and the other on February 2, 1995, dismissing his claim of ineffective assistance of appellate counsel. For the following reasons, we affirm. On September 9, 1992, Manos pled guilty to four counts of preparing false tax returns and three counts of theft. The court imposed a sentence of twelve years and a fine of $25,000. In case No. 64616, our court affirmed those convictions, but vacated the $25,000 fine due to the indigent status of the appellant. The present appeal arises from denial of the respective post- conviction motions. Appellant has assigned two errors for our review. I. THE TRIAL COURT ERRED BY NOT GRANTING RELIEF FOR THE SIXTH AND FOURTEENTH AMENDMENT VIOLATION OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHO KNOWINGLY FAILED TO ASSERT A SPEEDY TRIAL VIOLATION. In this his third petition for post-conviction relief appellant argues ineffective assistance of counsel claiming his - 4 - trial counsel failed to move for dismissal based on a twenty-two month delay between the date of indictment and the date of his arrest. The State urges the trial court did not err in denying appellant's third post-conviction relief petition based on in- effective assistance of counsel and further contends appellant's speedy trial argument is not well taken. Thus, the issue presented for our review is whether or not the trial court properly denied relief in this instance where appellant claims his trial counsel failed to assert a speedy trial defense on behalf of appellant. In our consideration of this assignment of error, we are aware that the claims now being presented here by way of post- conviction relief could have been presented and considered on direct appeal of this case. The law is that an appellant cannot raise in a post-conviction relief proceeding, those matters which ought to have been raised on direct appeal from the judgment of the trial court. See State v. Cole (1982), 2 Ohio St.3d 112, where the syllabus states: Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for post-conviction relief. (State v. Hester, 45 Ohio St.2d 71 modified.) Further, we note that in State v. Perry (1967), 10 Ohio St.2d 175, the Supreme Court addressed the applicability of the - 5 - doctrine of res judicata to constitutional issues being presented by an appellant in a post-conviction proceeding. The court held, 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 conviction, or on an appeal from that judgment. In this case, then, we conclude appellant cannot raise in this proceeding the denial of a speedy trial because these claims are barred under the doctrine of res judicata and the applicable case law enunciated in State v. Cole and State v. Perry, supra. Accordingly, this assignment of error is not well taken and is overruled. II. THE TRIAL COURT ERRED BY NOT GRANTING RELIEF FOR THE SIXTH AND FOURTEENTH AMENDMENT VIOLATION OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR KNOWINGLY, UPON REQUEST, DID NOT PRESENT THE SPEEDY TRIAL VIOLATION IN THE DIRECT APPEAL. Appellant predictably argues that since his appellate counsel failed to raise his speedy trial claim on appeal, he has been denied his right to effective assistance of appellate counsel and now seeks to raise the issue again by way of this appeal from denial of this his fourth post-conviction petition. While we understand the position appellant argues, nonetheless, - 6 - the decision in State v. Murnahan (1992), 63 Ohio St.3d 60, is controlling in this instance: The issue certified to this court is whether a claim of ineffective assistance of appellate counsel is cognizable in post-conviction proceedings brought pursuant to R.C. 2953.21. For the reasons that follow, we answer such query in the negative. Accordingly, on the basis of State v. Murnahan, supra, we find appellant's second assignment of error to be without merit and it also is denied. Judgment of the trial court is 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 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. PORTER, P.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL 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 journalization, .