COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69164/69165/69166 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DAN RAY JUSTICE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 28, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case Nos. CR-181,971/ : CR-181,984/CR-181,291 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 Cleveland, Ohio 44113 For defendant-appellant: DAN RAY JUSTICE, pro se A175-308 Allen Correctional Institution Post Office Box 4501 Lima, Ohio 45802 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Dan Ray Justice appeals from the dismiss- al of his petition for post-conviction relief. For the reasons set forth below, we affirm. On July 21, 1983, defendant pleaded guilty to one count of aggravated burglary in Case No. CR-181971 and two counts of aggravated robbery in Case Nos. CR-181291 and CR-181984. He was subsequently sentenced to three consecutive terms of seven to twenty-five years incarceration, with three years of actual time. On March 21, 1984, defendant filed a petition for post- conviction relief, pursuant to R.C. 2953.21, and alleged that the state breached an agreement upon which the plea was premised. He further alleged that his trial counsel was ineffective for "never showing up for court and never seeing Petitioner." The lower court determined that there was no evidentiary support for the petition, and it denied it on October 15, 1984. In April 1989, defendant commenced a delayed appeal from the guilty pleas and maintained that the trial court erred in imposing a three-year term of actual incarceration because the indictment did not contain the specification language set forth in R.C. 2941.141 and because he did not enter a separate guilty plea to a firearm specification. This court noted that pursuant to R.C. - 3 - 2929.71, as it read at the time of the offenses for which defen- dant pleaded guilty, an additional three-year term of incarcera- tion was mandated where a defendant pleaded guilty to aggravated robbery with a deadly weapon. This court further noted that under the former law, the lower court was not required to obtain a separate guilty plea to a firearm specification. Defendant's conviction upon the plea and the enhanced penalty for a firearm were therefore affirmed. See State v. Justice (Aug. 23, 1990), Cuyahoga App. No. 57423, unreported. On May 22, 1991, defendant filed a second petition for post- conviction relief. In this petition, defendant asserted that the victim reported that the weapon used "looked like a baseball bat" and that "the only weapon recovered was a pellet rifle." Defen- dant stated: Neither the pellet rifle or baseball bat en- titled the petitioner to the three years en- hancement. See State v. Gaines, 46 Ohio St.3d 65 (1989), which setforth [sic] the requirement that prosecutor's [sic] must provide some type of evidence or testimony that when a gun is used it must be operable at the time of the offense. To hold less based upon guilty pleas would in effect deny equal protection of the law. In addition, defendant maintained that under the prior ver- sion of R.C. 2929.71, the enhanced penalty was not to be served consecutive to the sentence for the underlying offense. Finally, defendant asserted that he was denied effective assistance of counsel because his trial attorney failed to engage in discovery, failed to conduct an investigation to determine whether the weapon - 4 - was operable and failed to argue against conviction upon the firearm specification. On June 10, 1991, the trial court denied the petition. On June 9, 1993, defendant filed a third motion to vacate his sentence and alleged that there was no factual support for the enhanced penalty since he "had used a Crossman Pellet Gun in the robbery" and not a "firearm" within the meaning of R.C. 2929.71. In support of this motion, defendant included a "Record of Proper- ty," which indicates that a Crossman Pellet Rifle was recovered from Danny Justice and contains an affidavit from John C. Kurtz which states in relevant part as follows: 2. Affiant was retained by the family of Dan R. Justice to obtain information on the type of gun used by said Dan R. Justice in the commission of a felony in 1983, for which said Dan R. Justice was convicted and committed to prison. 3. On May 26, 1993, affiant obtained from the Cleveland Police Department Property Room a copy of one page of the "Record of Property," ***. * * * 5. Based on information provided to affiant, affiant believes the attached page of the "Record of Property" to be a true and accurate copy of the original record. Defendant also maintained that since there was no firearm, he was denied effective representation and his pleas were not knowingly and intelligently entered. Thereafter, on October 25, 1993, de- fendant filed a "motion for voluntary dismissal." - 5 - On July 27, 1994, defendant filed a fourth petition for post- conviction relief which is the subject of the instant appeal. Once again, defendant maintained that he was denied effective assistance of counsel for counsel's alleged failure to "make a reasonably diligent investigation into the basis of the state's case, where the defense counsel would have discovered that the `gun' *** was not in fact a firearm." Defendant further claimed that the state failed to disclose exculpatory evidence that the weapon was not a firearm, but instead a pellet rifle, and that his guilty pleas were not knowingly and intelligently made. In support of this petition, defendant included the "Record of Property" which he had presented previously, the affidavit from John C. Kurtz and his own affidavit, which stated: (2) All exhibits attached hereto are true and unaltered reproductions of original documents which I no longer have in my possession. I invite the Court to make its own investigation into the veracity of the Cleveland Police "Record of Property." On May 17, 1995, the trial court dismissed the petition, concluding: 1. The determination of whether to entertain subsequent post-conviction petitions based upon the same facts is committed to the sound discretion of the trial court, see State v. McGrath (1988), 40 Ohio St.3d 91. 2. This Court finds that the current peti- tion is based on the same facts alleged in the first two petitions. In keeping with Workman this Honorable Court declines to entertain the current Motion. - 6 - 3. Furthermore, the doctrine of res judi- cata bars the Defendant from raising any issue which was raised or could have been raised at trial or on appeal. State v. Perry (1967), 10 Ohio St.2d 175. 4. Since the Defendant could have and did raise these issues previously, they are now barred under the doctrine of res judicata. [5]. The instant petition offers no matter for which a hearing need be held. Defendant now appeals and assigns two errors for our review. I. Defendant's first and second assignments of error are inter- related and state: THE TRIAL COURT ABUSED ITS DISCRETION BY DE- CLINING TO ENTERTAIN THE APPELLANT'S SUCCES- SIVE PETITION FOR POST-CONVICTION RELIEF, WHERE THE ESSENTIAL FACTS OF THE PREVIOUS PETITION ALLEGING SIMILAR GROUNDS FOR RELIEF WERE NEVER RULED UPON BY THE TRIAL COURT, AND WHERE THE EVIDENCE SUBMITTED AS DEHORS THE TRIAL RECORD COULD NOT LAWFULLY HAVE BEEN PRESENTED ON DIRECT APPEAL. THE TRIAL COURT ERRED BY DISMISSING THE APPELLANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT HAVING CONDUCTED AN EVIDEN-TIARY HEARING, WHERE SUFFICIENT OPERATIVE FACTS WERE SET FORTH TO DEMONSTRATE SUBSTANTIVE GROUNDS FOR RELIEF. R.C. 2953.21 provides for post-conviction relief and provides in relevant part as follows: (A) Any person convicted of a criminal offense *** claiming that there was such a denial or infringement of his rights as to render void or voidable under the Ohio Constitution or the Constitution of the United States, may file a - 7 - 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 grant other appropriate relief. The petitioner may file such supporting affidavit or other documentary evidence as will support his claim for relief. * * * (E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues, hold the hearing, and make and file written findings of fact and conclusions of law upon entering judgment. With regard to successive petitions, R.C. 2953.23 provides: (A) Whether a hearing is or is not held, the court may, in its discretion and for good cause shown, entertain a second petition or successive petitions for similar relief on behalf of the petitioner based upon the same facts or newly discovered evidence. *** The effect of the "good cause" requirement of R.C. 2953.23(A) is to place the entertainment of a successive petition for post- conviction relief within the sound discretion of the trial court. State v. Steffen (1994), 70 Ohio St.3d 399, 411. See, also, State, ex rel. Workman v. McGrath (1988), 40 Ohio St.3d 91. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unrea- sonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In State v. Castro (1979), 67 Ohio App.2d. 20, 21-22, this court considered a trial court properly dismissed, without hear- - 8 - ing, a successive petition which raised the same issue as an earlier petition. This court stated: [T]he record before this court reveals the issue of effective assistance of counsel, which apparently was the second issue raised in the second petition for postconviction petition, was already raised and determined by the trial court in its dismissal of appellant's first postconviction petition. Since no appeal was taken from the dismissal of the first petition, the issue of effective assistance of counsel as raised by both petitions is res judicata. ***. Applying the foregoing, we are unable to conclude that the trial court abused its discretion in declining to entertain the instant petition. Subsequent to his guilty pleas, defendant filed four petitions to vacate his sentence. Although he voluntarily dismissed one of the petitions, the petition filed on May 22, 1991, explicitly challenged the factual basis for the firearm specification, and defendant did not appeal the lower court's dismissal of this petition. This issue is therefore barred by res judicata. See State v. Castro, supra. The first assignment of error therefore lacks merit. Moreover, since the files and records of the case clearly show that successive petitions have been filed and that the enhanced penalty for the firearm has been challenged many times, the trial court properly determined the matter without a hearing, pursuant to R.C. 2953.21(E). The second assignment of error lacks merit. Affirmed. - 9 - - 10 - 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. 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. DAVID T. MATIA, P.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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. .