COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68979 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION CLARENCE NICHOLSON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-298939 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CLARENCE NICHOLSON, pro se Cuyahoga County Prosecutor #283-810 Trumbull Correctional KAREN L. JOHNSON, ESQ. Institution Assistant County Prosecutor P.O.Box 901 The Justice Center Leavittsburg, Ohio 44430 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Clarence Nicholson appeals from an order of the trial court denying his petition for post-conviction relief ("PCR Petition"). Defendant was indicted for two counts of aggravated robbery and one count of having a weapon while under the disability of his prior aggravated assault conviction, with accompanying firearm specifications. The matter originally proceeded to a jury trial and on October 25, 1993, ended in a mistrial after the jury was unable to reach a verdict. In an order dated November 22, the trial court ordered a transcript of the first trial, and the matter ultimately proceeded to a second trial on December 7, 1 1993. Defendant was represented by the same defense counsel throughout these proceedings. In the second trial, the jury found defendant guilty of only one count of aggravated robbery, one count of having a weapon while under disability, along with one firearm specification. Represented by new appellate counsel, defendant appealed his convictions to this court of appeals. This court affirmed defendant's convictions, but remanded the case for resentencing on defendant's conviction for having a weapon while under disability. State v. Nicholson (Jan. 26, 1995), Cuyahoga App. No. 66837, unreported. 1 The trial court declared another mistrial between the first and second trials for reasons not relevant to this appeal. - 3 - In October, 1994, during the pendency of defendant's appeal, defendant pro se filed a PCR Petition in the trial court. Defendant's PCR Petition alleged that the trial court improperly deprived him of a transcript of the original first trial proceedings. Defendant argued that the absence of this transcript deprived him the opportunity to prepare an adequate defense, limited his confrontation of a prosecution witness, and enabled the witness to provide false testimony in the second trial. Defendant's PCR Petition was supported by an affidavit of his trial counsel which stated that the trial court refused to provide a copy of the transcript from the first trial and prohibited the defense from using the testimony to impeach the prosecution witness in the second trial. The prosecution filed a motion to dismiss, which he later supplemented, as well as a motion for summary judgment on defendant's PCR Petition. Through the same counsel representing him on direct appeal, defendant fully briefed his opposition to those motions. The trial court conducted a hearing and subsequently denied defendant's PCR Petition in an order journalized April 17, 1995. The trial court issued findings of fact and conclusions of law on April 19, 1995. Defendant pro se timely appeals raising the following sole assignment of error: THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT AS TO DEFENDANT/ APPELLANT'S MOTION FOR POST CONVICTION RELIEF AS JUDGE DID ACKNOWLEDGE APPELLANT WAS WITHOUT MISTRIAL TRANSCRIPT OF BRAD PESTO FOR USE IN SECOND TRIAL OF SAME CASE. - 4 - Defendant's sole assignment of error lacks merit. Defendant argues the trial court improperly denied his PCR Petition. He contends that the failure to provide a transcript of testimony from the first trial prevented him from impeaching the credibility of a prosecution witness at the second trial. However, after reviewing the record, we conclude defendant has failed to show any error. First, the record demonstrates the state satisfied its duty to produce a transcript of defendant's first trial. Contrary to defendant's argument, the trial court on November 22, 1993, in fact ordered the testimony from the first trial transcribed at state expense prior to the second trial. Second, despite trial counsel's statement to the contrary during the hearing on defendant's PCR Petition, the transcript of defendant's second trial contains no indication that the trial court excluded any testimony. Defense counsel, who represented defendant in each trial, fully cross-examined the witness, Brad Pesto, during the second trial and did not attempt to introduce 2 transcripts of the witness' testimony from the first trial. Defendant has cited no authority that he may belatedly raise this claim in a PCR Petition following an adverse verdict after failing to object, raise the matter, or proffer the testimony at 2 The record likewise contains no indication that defendant requested a continuance of the second trial to enable him to obtain the transcript from the first trial if he had in fact not already received the court-ordered transcript by the commencement of the second trial. - 5 - the time when any error could have been corrected by the trial court. Finally, an examination of the testimony from the two trials demonstrates that defendant is not entitled to post-conviction relief. Six witnesses testified for the prosecution in each trial, including Brad Pesto and another employee of the gas station where the crimes occurred. Both employees testified that defendant committed the crimes. As noted by the trial court, the testimony of the one employee challenged by defendant, Brad Pesto, was not materially inconsistent in the two trials. Defense counsel fully cross-examined Brad Pesto concerning inconsistencies in his testimony in both trials, and the jury in the second case had an adequate opportunity to evaluate his credibility. Under the circumstances, introduction of testimony from the first trial to further impeach the credibility Brad Pesto in the second trial would have been cumulative and would not have changed the outcome. Accordingly, defendant's sole assignment of error is overruled. Judgment 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. LEO M. SPELLACY, C.J., and DYKE, J., CONCUR. 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 it will become the judgment and .