COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68845 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CHRISTIAN McDANIELS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-265485 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Assistant 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 - 2 - O'DONNELL, J.: Defendant Christian McDaniels appeals the court's dismissal of his petition for post-conviction relief and assigns five errors for our review. In August, 1991, McDaniels was tried and convicted of Aggravated Burglary and Aggravated Robbery, each containing a felony and firearm specification. Those convictions have been affirmed by this court and the Ohio Supreme Court did not entertain further appeal. The present matter began with September 20, 1994 filings in which appellant sought pro se to vacate or set aside sentence and conviction and to request that Judge James J. Sweeney recuse himself due to a conflict of interest. Thereafter, on February 23, 1995, Judge Sweeney recused himself and transferred the matter to Judge Thomas Pokorny. On the same date, Judge Pokorny ordered appellant returned from the Lorain Correctional Institution and on March 15, made Findings of Fact that appellant's allegations concerning trial court impartiality were not supported in the record and concluded as a matter of law that defendant's constitu- tional rights had been protected during the review process. Therefore, Judge Pokorny denied the motion for post-conviction relief. - 3 - 1 McDaniels raises five assignments of error alleging, in the first, denial of due process when Judge Sweeney assigned the case without a redrawing. At the outset, we note it was appellant who sought to have Judge Sweeney recuse himself but made no claim with respect to reassignment, and now, on appeal, raises the matter of reassignment for the first time. Since this was not raised at a time when either Judge Sweeney or Judge Pokorny could have reacted to the claim, appellant has waived his right to present the matter for the first time on appeal. Further, no prejudice has been shown as a result of the reassignment. We find no merit to this first assignment of error. Next, appellant urges denial of due process when Judge Pokorny dismissed the petition without a hearing. The state urges the trial judge acted correctly since appellant is not automatically entitled to a hearing. R.C. 2953.21(C) states in part: "Before granting a hearing the court shall determine whether there are substantive grounds for relief. *** In making such a determination, the court shall consider *** all the files and records pertaining to the proceedings against the petitioner, including *** 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 the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal." (Emphasis added.) 1 See Appendix for assigned errors. - 4 - Our review suggests this is exactly what was done in this case. We find no merit to this assignment of error. Thirdly, appellant argues denial of due process because he had shown lack of an impartial tribunal. Appellant implies that because Judge Sweeney chose to recuse himself of the post- conviction matter, appellant was prejudiced since he did not recuse at the original trial. This is a logical non sequitur and cannot form the basis of this court granting relief. Accordingly, this assignment of error is denied. In the fourth assignment of error, appellant urges a denial of fair trial due to misplaced trial exhibits which could not be reviewed on appeal. This is a matter which appellant properly should have presented by way of direct appeal but failed to do so. Likewise, appellant's claim of ineffective assistance of counsel is improperly raised on this appeal. These arguments are without merit and this assignment of error is overruled. Lastly, appellant urges that a transcript of an on-site parole revocation hearing was not used which may have impeached a witness. Since appellant failed to raise these arguments before the proper tribunal at the proper time for review, we cannot now consider these arguments. As the supreme court stated in State v. Perry (1967), 10 Ohio St.2d 175, at paragraphs 4, 7 and 9 of the syllabus: 4. A prisoner is entitled to postconviction relief in Section 2953.21 et seq., Revised Code, only if the court can find that there was such a denial or infringement of the - 5 - rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the United States Constitu- tion. * * * 7. Constitutional issues cannot be considered in postconviction proceedings under Section 2953.21 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 on 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 of conviction or on an appeal from that judgment. (Emphasis in original.) Upon our review of the record in this case and the applicable case law, we are persuaded that post-conviction relief is not available to this appellant. The trial court correctly dismissed the motion. Accordingly, the judgment of the trial court is affirmed. - 6 - 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. JAMES D. SWEENEY, P.J., and PATRICIA BLACKMON, 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, at which time it will become the judgment and order of the court and time period for review will begin to run. - 7 - APPENDIX ASSIGNMENTS OF ERROR I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT RECUSED ITSELF AND THEN THE SAME JUDGE PROCEEDED TO ASSIGN THE CASE WITHOUT A REDRAWING BY LOT. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ORDERED A HEARING IN THIS CASE AND THEN PROCEEDED, WITHOUT NOTICE, TO DISMISS THE PROCEEDINGS. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS DENIED POST-CONVICTION RELIEF AS HE HAD MADE A SHOWING OF A LACK OF AN IMPARTIAL TRIBUNAL. IV. DEFENDANT WAS ENTITLED TO RELIEF BECAUSE HE WAS DENIED A FAIR APPEAL WHEN TRIAL EXHIBITS WERE LOST. .