COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68306, 68307, 68308 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION CIDNEY RAY JOHNSON : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 11, 1996 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Case Nos. CR-223288, CR-223294, CR-225710 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. GARY H. LEVINE, ESQ. Cuyahoga County Prosecutor Chattman, Sutula, Friedlander The Justice Center & Paul 1200 Ontario Street 6200 Rockside Road Cleveland, Ohio 44113 Cleveland, Ohio 44131 - 2 - PER CURIAM: Defendant-appellant Cidney Ray Johnson appeals in these consolidated accelerated appeals from the denial of his petitions for post-conviction relief ("PCR Petitions") in three criminal cases. Defendant was indicted in 1988 on nineteen charges in the following three criminal cases: (1) Case No. CR-223288, two counts of forgery, two counts of uttering, four counts of theft and one count of receiving stolen property; (2) Case No. CR-223294, three counts of aggravated burglary and three counts of theft; (3) Case No. CR-225710, one count of forgery, one count of uttering, one count of theft and one count of receiving stolen property. On July 13, 1988, Defendant, represented by the public defender, pleaded guilty to eleven charges in the three cases pursuant to a plea bargain as follows: (1) Case No. CR-223288, two counts of forgery, two counts of uttering and one count of theft; (2) Case No. CR-223294, one count of burglary and two counts of theft; (3) Case No. CR-225710, one count of forgery, one count of uttering, and one count of theft. The remaining eight charges were dismissed. Defendant failed to appear for sentencing in the three cases scheduled for August 2, 1988. He was subsequently arrested and sentenced approximately three years thereafter on May 17, 1991. The transcript of proceedings demonstrates that the trial court denied defendant's motion to withdraw his guilty pleas prior to his - 3 - belated sentencing. The trial court ultimately sentenced defendant to a total of eight and one-half to twelve years imprisonment on his eleven guilty plea convictions in the three cases. Defendant filed delayed direct appeals from the trial court's denial of his motions to withdraw his guilty pleas in the three cases. Represented by newly appointed appellate counsel, defendant argued that his guilty pleas were invalid because he made them while under the influence of heroin. He did not file transcripts from the sentencing hearing, or the prior guilty plea hearing which was allegedly destroyed in the 1988 Justice Center fire. However, the record on direct appeal in the three cases contained a court approved App.R. 9(C) statement of the guilty plea proceedings and an affidavit by defendant supporting his allegation that he pleaded guilty while "under the influence of heroin." This court of appeals affirmed defendant's convictions in the three cases on direct appeal in State v. Johnson (Sept. 13, 1993), Cuyahoga App. Nos. 63499, 63500 and 63501, unreported. Approximately one year thereafter on November 4, 1994, defendant, represented by his third counsel, filed identical PCR Petitions in the three cases. This time, defendant's PCR Petitions were supported by the sentencing transcript, an affidavit from defendant's wife, and a second affidavit from defendant alleging that he was under the influence of heroin and cocaine when he made his guilty pleas. The prosecution filed identical motions to dismiss the PCR Petitions in the three cases. The trial court - 4 - denied defendant's PCR Petitions in the three cases in orders journalized on November 21, 1994. Defendant, represented by his third counsel, timely appeals in Court of Appeals Case Nos. 68306, 68307 and 68308 from the denial of his PCR Petitions in common pleas court Case Nos. 223288, 223294 and 225701, respectively. This court of appeals consolidated the three accelerated appeals for hearing and disposition. Defendant's sole assignment of error in the three consolidated appeals follows: THE COURT ERRED IN SUMMARILY GRANTING THE STATE'S MOTION TO DISMISS APPELLANT'S PETITION TO VACATE JUDGMENT OF CONVICTION FILED PURSUANT TO R.C. 2953.22 [SIC] WITHOUT CONDUCTING AN EVIDENTIARY HEARING. The sole assignment of error in the three consolidated accelerated appeals lacks merit. Defendant's brief on appeal argues the trial court improperly dismissed his PCR Petitions on the grounds of res judicata in the three cases. Defendant contends that these three identical PCR Petitions were supported by evidence dehors the record. Defendant refined his position at oral argument by maintaining that his prior appeal should not be given preclusive effect because the decision was based upon insufficiency of the record rather than on the merits of his claims. Based on our review of the record, defendant has failed to show any error. It is well established that res judicata precludes a petitioner from raising claims for post-conviction relief which were actually raised or could have been raised in a prior direct appeal based on matters of record as in this case. State v. Cole - 5 - (1982), 2 Ohio St.3d 112. The record demonstrates that defendant previously raised the following sole assignment of error on direct appeal in these three cases: APPELLANT ENTERED HIS GUILTY PLEAS WHILE HE WAS UNDER THE DIRECT INFLUENCE OF HEROIN AND IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO DENY APPELLANT'S MOTION TO WITHDRAW HIS PLEAS PRIOR TO SENTENCING WITHOUT FIRST CONDUCTING A FULL, FAIR AND IMPARTIAL HEARING TO DETERMINE WHETHER APPELLANT ENTERED HIS PLEAS KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY. State v. Johnson, supra at p. 4. The record in each case contains a notarized, typewritten, two-page affidavit by defendant, dated July 13, 1992, stating that he was under the influence of heroin at the time he entered his guilty pleas. Defendant's affidavit, filed in support of his proposed App.R. 9(C) on direct appeal, provides in part as follows: 5. Affiant was indicted by the Cuyahoga County Grand Jury in January of 1988, on the following indictments, (CR-223288, CR-223294, CR-225710). Affiant was arrested. 6. Affiant was a habitual and chronic heroin addict from 1986 until approximately January, 1989. 7. Affiant had a pretrial hearing at which Affiant entered a plea to indictments and was released on bond. 8. Affiant has no recollection of said pretrial, or to any of the charges for which Affiant entered a plea. Affiant was under the influence of heroin when plea was entered, Affiant then disappeared for over three years. 9. Affiant asserts that he is innocent of the charges, and has no recollection of entering a plea to the various charges in the indictments. 10. Further, the Affiant sayeth naught. (Emphasis added.) - 6 - Notwithstanding defendant's failure to submit the sentencing transcript in his prior appeals, this affidavit was made part of the record in those three direct appeals. Any claim arising from his alleged actions under the influence of illegal drugs at the time of his guilty pleas either was or should have been raised in his prior direct appeal. State v. Cole, supra; State v. Robinson (Oct. 5, 1994), Hamilton App. No. C-930949, unreported at p. 2. The transcript from defendant's sentencing hearing, omitted from defendant's prior direct appeals and filed for the first time with his PCR Petitions, reveals merely the identical claim that defendant was under the influence of heroin when he made his guilty pleas. The 1994 typewritten affidavits of defendant and his wife attached to defendant's PCR Petitions repeat this same basic contention. Because these claims are identical to those in the prior direct appeals and are based on known facts contained in the record at that time, the doctrine of res judicata precludes their relitigation. The pertinent part of defendant's 1994 affidavit follows: 6. Affiant states on the morning of his scheduled court appearance he injected a mixture of heroin and cocaine before leaving home. 7. That he took another such injection in the men's room at the Justice Center before appearing in Court. 8. Affiant merely recalls being in Court, however he has little or no recollection of what occurred during the July 13, 1988 court appearance. 9. Affiant states at the time he appeared in Court as previously described, he was under the influence of - 7 - the two (2) heroin/cocaine injections taken earlier on that date. The difference between the 1992 and subsequent 1994 affidavits, for example, the mixture of "heroin and cocaine" and details of time and place, are incidental details. These details, moreover, could and should have been presented in the prior direct appeal, because they are based on facts known to defendant at that time. The transcript of defendant's sentencing hearing likewise provides nothing new to warrant post-conviction relief. The sentencing hearing occurred in 1991, three years after the 1988 guilty plea. Thus details regarding defendant's state of mind at the earlier guilty plea hearing are understandably scarce. The Assistant Public Defender, for example, who represented defendant at the plea hearing, could not describe defendant's state of mind during the guilty plea with certainty. Defendant merely asserted that because of drugs he did not know what he was doing when he entered his guilty pleas three years earlier. However, the trial judge indicated that his standard practice during guilty pleas was to ask defendants whether they were under the influence of drugs that would affect their thought process. That the trial judge regularly employed this methodical practice was specifically acknowledged by the Assistant Public Defender. These facts are strikingly similar to the facts in State v. Summers (1981), 3 Ohio App.3d 234, which were insufficient to invalidate a guilty plea. The court reporter's stenographic notes of the guilty plea hearing in Summers were lost and the defendant denied making a knowing, intelligent, and voluntary guilty plea. - 8 - It was the practice of the trial court scrupulously to comply with Crim. Rule 11 and none of the participants had any contrary recollection. Id. at n.1 pp. 234-235. Based on these facts, the Hamilton County Court of Appeals held that defendant failed to prove the guilty plea violated Crim. Rule 11. Under the circumstances, contrary to defendant's arguments, this record does not warrant an evidentiary hearing or post-conviction relief in these cases. See State v. Kapper (1983), 5 Ohio St.3d 36. Accordingly, defendant's sole assignment of error in the three consolidated accelerated appeals is overruled. - 9 - Judgments 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 Common Pleas Court 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, 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 .