COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68799/68800/68801/68802 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JERRY BISHOP : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case Nos. CR-257906, : CR-256212, CR-252889 and : CR-256404 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Assistant Justice Center, Courts Tower 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113 For defendant-appellant: PAUL MANCINO, JR. Attorney at Law 75 Public Square, #1016 - 2 - Cleveland, Ohio 44113-2098 PER CURIAM: Petitioner-appellant Jerry Bishop appeals from the denial of his petition for post-conviction relief and raises two assignments of error: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DISMISSED HIS PETITION FOR POST- CONVICTION RELIEF WITHOUT A HEARING. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS PETITION FOR POST-CONVICTION RELIEF WAS DISMISSED BY THE COURT. I. In CR-252889, Bishop was indicted for attempted aggravated burglary, in violation of R.C. 2911.11 and 2923.02, with an aggravated felony specification, and receiving stolen property, in violation of R.C. 2913.51, with a violence specification. In CR-256212, Bishop was indicted for four counts of felonious assault, in violation of R.C. 2903.11, each with a firearm specification, a violence specification, and an aggravated felony specification. In CR-256404, Bishop was indicted for receiving stolen property, in violation of R.C. 2913.51, with a violence specification, escape, in violation of R.C. 2921.34, with a violence specification, and felonious assault, in violation of R.C. 2903.11, with an aggravated felony specification, two - 3 - violence specifications, and a peace officer specification. In CR-257906, Bishop was indicted for felonious assault, in violation of R.C. 2903.11, with a firearm specification, two violence specifications, and an aggravated felony specification, and receiving stolen property, in violation of R.C. 2913.51, with a violence specification. Bishop pleaded guilty to the following offenses: in CR- 252889, attempted aggravated burglary, with an aggravated felony specification; in CR-256212, four counts of felonious assault, each with an aggravated-felony specification and a firearm specification; in CR-256404, felonious assault, with a peace officer specification and an aggravated-felony specification; and in CR-257906, felonious assault, with a firearm specification, two violence specifications and an aggravated-felony specification. The trial court dismissed the remaining charges. During the guilty plea hearing, Bishop told the trial court that he was satisfied with the representation of his trial counsel. The following exchanges also took place: THE COURT: Facts, please, and take them in the order that you have outlined? MR. SHELDON: In Case Number 256404, Detective Sergeant Kleppel, a peace officer, while on duty on July 22nd, 1990, in an unmarked police vehicle at I- 71 at Fulton attempted to intercept a stolen vehicle. - 4 - He observed this vehicle pass by him. He gave chase, he followed the vehicle to the rear yard of 1145 Rowley, and there arrested a male, Jerry Bishop, driving the vehicle and handcuffed him to the steering wheel. At that point in time the male escaped and swung a metal bar at the detective, attempting to hit him with the metal bar. The defendant, Jerry Bishop, was later, through confidential informants, his identity was later determined, and he was arrested subsequent to this incident. * * * In Case Number 256212, on or about May 14th, 1990, a Tuesday, the victims in this case were all in a vehicle owned by or driven by Robert Bray. They were in a van, they started their car, they were in the process of taking his friends home. They heard the racing of a vehicle coming in front of him in the opposite direction out of Bueherer. "I noticed a male coming from the rear window behind the driver pointing a rifle at us and firing a round into the hood of my car. "They slowed down as they were in the process of passing us and continued to shoot into the side of my vehicle. I heard about 10 shots, maybe more. I counted five shots in my van, and I observed four or - 5 - five shots into the front of Majors Bar where people were seated." This male was identified as Jerry Bishop. THE COURT: Thank you. Mr. Bishop, I you ask [sic], sir, how do you plead to Count Number Three in Case Number 256404, that "On or about July 22nd, 1990, in Cuyahoga County, Ohio, you did knowingly cause or attempt to cause physical harm to Detective Sergeant Keppel [sic] by means of a deadly weapon or dangerous ordnance, to wit, metal bar, as defined in section 2303.11 of the Revised Code," guilty or not guilty? DEFENDANT: Guilty. * * * THE COURT: And is it also true, sir, that during the commission of the offense you made an actual threat of physical harm to Detective Sergeant Keppel [sic]? DEFENDANT: Yes, sir. THE COURT: And, sir, did you recognize that Officer Keppel [sic] was, in fact, a peace officer? DEFENDANT: Yes, sir. * * * THE COURT: *** Sir, how do you plead in Case Number 256212, Count Number One, that "On or about May 14th, 1990, in Cuyahoga County, Ohio, you did unlawfully and knowingly cause or attempt to cause physical - 6 - harm to Robert Bray by means of a deadly weapon or dangerous ordnance, to wit, firearm, as defined in Section 2923.11 of the Revised Code, guilty or not guilty? DEFENDANT: Guilty. THE COURT: And, sir, you did have a firearm on or about your person at the time of this offense; is that correct? DEFENDANT: No. Can I say something, sir? THE COURT: Yes, you can. DEFENDANT: I was in the city jail once on that case. They come in court and say it wasn't me. I got a co-defendant on it, Joe Turos. They come to Court and said it wasn't him, and they said it wasn't me. I ain't got no other choice the way it goes now. THE COURT: So you acknowledge this? DEFENDANT: Yes. (Tr. 26-33.) In State v. Bishop (Nov. 10, 1993), Cuyahoga App. No. 62532, unreported, this court affirmed Bishop's convictions in CR- 252889, CR-256212, and CR-257906 and vacated the sentencing in CR-256404, remanding it for re-sentencing. Bishop then filed a petition for post-conviction relief under R.C. 2953.21, claiming that he received ineffective assistance of counsel because his trial counsel failed to obtain a transcript from a preliminary hearing, interview witnesses, and - 7 - obtain a ruling on his competency after he was referred for a psychiatric evaluation. Bishop attached four affidavits to his petition: his own, Doug Scaggs's, Darlene Sampson's, and Robert Bray's. He also attached the transcript of Bray's preliminary hearing testimony. Bishop averred that he had informed his trial counsel that Robert Bray had been unable to identify him during a preliminary hearing. The transcript from the preliminary hearing shows Bray testifying that Bishop does not look like the person he saw shooting at his van. Bray's affidavit avers that Bishop was not the person who shot at his van. The affidavits of Sampson and Scaggs concern the offense of feloniously assaulting a police officer. Sampson's affidavit provides: To the best of my knowledge Jerry Bishop did not assault the Police Officer which [sic] chased him into the yard in the summer of 1990. I heard the officer fire shots into my yard and he would not identify himself when I asked who he was and what he thought he was doing. Jerry was not arrested that evening. Scagg's affidavit provides, in part: In the summer of 1990, Jerry Bishop, who was living next door to my house at 1145 Rowley, Cleveland, Ohio, pulled in the driveway. A car pulled in right behind him. A man jumped out of the car, not identifying himself of who he was, or why he was here. He got out of his car with a gun pulled, pointing it at Jerry Bishop. He told Jerry to get out of the car. Jerry did get out of the car. - 8 - The man then threw handcuffs at Jerry and told him to cuff himself to the steering wheel. Then, I walked to the back of the driveway, the man heard us walking on the gravel. Jerry pulled himself free from the handcuffs and started running towards the back of my yard jumping over my fence. The man stood in place and fired his gun. Jerry then starting running between my house and the next door house. The man stood in the driveway of 1145 Rowley, and fired several shots at Jerry. I then started yelling and told the man "to stop" as we have many little children playing here. He then, identified himself as a Police Officer. I stood right there and saw what happened. I saw Jerry run. I saw Jerry jump the fence. I saw the Police Officer fire the gun. I never saw Jerry Bishop pick up anything or throw anything at the man. Jerry did get away. Then the Cleveland Police arrived. The state responded by filing a motion to dismiss, which the trial court granted. II. We address Bishop's assignments of error together. In his first assignment of error, Bishop contends the trial court erred when it failed to hold an evidentiary hearing. In his second assignment of error, Bishop contends the trial court erred when it dismissed his petition. R.C. 2953.21 (A) and (C) provide: - 9 - (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 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. * * * (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. *** "A petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner is not entitled to relief and that the petitioner failed to submit evidentiary documents containing sufficient operative facts." State v. Scott (1989), 63 Ohio St.3d 304, 307; State v. Jackson (1980), 64 Ohio St.2d 107, syllabus. State v. Xie (1992), 62 Ohio St.3d 521, 524, noted that: The Strickland test was applied to guilty pleas in Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. "First, the defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at - 10 - 693; Hill, 474 U.S. at 57, 106 S.Ct. at 369, 88 L.Ed.2d at 209. Second, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty ***." Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 59, Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. We find the evidentiary material submitted by Bishop insufficient to warrant a hearing. First, Bishop's trial counsel were not required to obtain the transcript of Bray's preliminary hearing testimony. Bishop and his trial counsel already knew that Bray, who had been subpoenaed by the state, would testify that Bishop was not the person who shot at his van. It was unnecessary, therefore, to obtain the preliminary hearing transcript. In addition, no reasonable probability exists that Bishop would not have pleaded guilty if his trial counsel had obtained the transcript of Bray's preliminary hearing testimony. Second, the affidavits of Scaggs and Sampson fail to demonstrate a reasonable probability that Bishop would not have pleaded guilty if his trial counsel had interviewed them. Finally, Bishop could have raised in his direct appeal the claim that he received ineffective assistance of counsel because his trial counsel failed to obtain a competency ruling. Consequently, the doctrine of res judicata bars him from raising it in a petition for post-conviction relief. See State v. Perry (1967), 10 Ohio St.2d 175. Accordingly, Bishop's assignments of error are not well taken. - 11 - Judgment affirmed. - 12 - This cause is affirmed. 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 Cuyahoga County Court of Common Pleas 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. JAMES D. SWEENEY, PRES. JUDGE JOSEPH J. NAHRA, JUDGE AUGUST PRYATEL, JUDGE* *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. 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, - 13 - .