COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69131 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION LEMUEL RICHARDSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 15, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 246339 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES LEMUEL RICHARDSON, PRO SE Cuyahoga County Prosecutor Serial No. 221-161 L. CHRISTOPHER FREY, Asst. Mansfield Correctional Institute Prosecuting Attorney P.O. Box 788 1200 Ontario Street Mansfield, Ohio 44901 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Lemuel Richardson, pro se, appeals from the trial court's order denying his petition to vacate and set aside his sentence for robbery (R.C. 2911.02) pursuant to R.C. 2953.21. From the course of proceedings below, we find no error and affirm the denial of the petition for post conviction relief. Defendant was arrested October 23, 1989 and indicted for robbery with two aggravated felony specifications. On March 1, 1990, a jury returned a guilty verdict to the principal charge. Defendant stipulated to the two prior aggravated felony specifications. He was sentenced March 7, 1990 to eight years actual incarceration to a maximum of 15 years. Defendant appealed to this Court and was represented by new counsel. This Court affirmed defendant's conviction and sentence on January 16, 1992. State v. Richardson (Jan. 16, 1992), Cuyahoga App. No. 59804, unreported. Defendant's pro se appeal to the Ohio Supreme Court was denied. State v. Richardson (1992), 65 Ohio St.3d 1465. On November 30, 1992, defendant filed a pro se motion to vacate sentence. The State responded on December 4, 1992. On January 11, 1993, the trial court denied the motion to vacate and granted the State's motion to dismiss. On May 20, 1993, defendant filed a "Traverse to Plaintiff's Motion to Dismiss; and Motion to Convert the Pendency of the Motion to Dismiss to Summary Judgment By Reason of Affidavits and - 3 - Evidentiary Documents." Defendant also filed a motion for appointment of counsel. On June 7, 1993, new counsel was appointed. On November 2, 1993, defendant filed an application for delayed reconsideration (treated as application for reopening in this Court). It was denied. State v. Richardson (Sept. 20, 1994), Cuyahoga App. No. 59803, unreported on the grounds that the application was untimely; the claims were barred by res judicata and were otherwise without merit. On February 10, 1995, defendant filed a second application for reopening pursuant to App. R. 26(B). It was denied. Judgment was affirmed by the Supreme Court. State v. Richardson (1996), 74 Ohio St.3d 235. On December 22, 1994, the court granted the State's motion to dismiss defendant's traverse on res judicata grounds. On May 17, 1995, the trial court filed findings of fact and conclusions of law in support of the ruling. Defendant timely filed this notice of appeal from the determination of the trial court and assigns two errors for this Court's review. - 4 - I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, TO THE PREJUDICE OF APPELLANT, IN FINDING THAT APPELLANT WAS BARRED BY THE DOCTRINE OF RES JUDICATA, AFTER APPELLANT HAD EFFECTIVELY DEMONSTRATED THAT HE WAS DENIED THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHICH ESSENTIALLY DEMONSTRATED THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BY APPELLATE'S [SIC] COUNSEL'S FAILURE TO RAISE TO ISSUE IN APPELLANT'S DIRECT APPEAL OF RIGHT. Defendant asserts in his first assigned error that the trial court improperly dismissed his petition for post conviction relief in that defendant received ineffective assistance of counsel at trial and on direct appeal to this Court. Defendant claims that his appellate attorney on the direct merits appeal was ineffective for failing to raise, "*** numerous prejudicial instances of trial counsel's incompetence and ineffectiveness ***." Defendant's claims pertaining to his appellate counsel were not properly in front of the trial court. The Supreme Court has clearly stated that post conviction relief (R.C. 2953.21) does not provide a statutory remedy to redress claims of ineffective assistance of appellate counsel. State v. Cooey (1995), 73 Ohio St.3d 411, 412; State v. Gover (1995), 71 Ohio St.3d 577, 580; State v. Murnahan (1992), 63 Ohio St.3d 60, 65. Claims of ineffective assistance of counsel are pursued by filing a motion for delayed reconsideration in this Court pursuant to App. R. 26(B). Gover, supra; Murnahan, supra. The trial court correctly dismissed defendant's claim of ineffective assistance of appellate counsel. - 5 - Defendant also claims that his trial counsel was ineffective in that he should have called certain witnesses and obtained expert testimony regarding epileptic seizure which would have borne favorably on his defense. We find no merit to this contention. We note that defendant raised this issue for the first time in his post conviction relief motions. Defendant did not raise his claim of ineffective assistance of trial counsel on his direct appeal. In the case below, the defendant was afforded new counsel on direct appeal. The doctrine of res judicata bars the post conviction litigation of issues which were or should have been addressed on direct appeal. State v. Perry (1967), 10 Ohio St.2d 175; State v. Combs (1994), 100 Ohio App.3d 90, 97. In State v. Lentz (1994), 70 Ohio St.3d 527, the Supreme Court held that (when a defendant is represented by new counsel on direct appeal) the doctrine of res judicata bars a claim of ineffective assistance of trial counsel raised for the first time in a petition for post conviction relief when such claim could have been made on direct appeal without evidence dehors the record. See, also, Cole, supra; State v. Sowell (1991), 73 Ohio App.3d 672, 679; State v. Martin (Feb. 16, 1995), Cuyahoga App. No. 66938, unreported. However, even had defendant raised this matter on direct appeal, his claim would not be supported by the evidence presented in the case. The petitioner bears the burden of supporting his claim of ineffective trial counsel with credible evidence. State v. Kapper - 6 - (1983), 5 Ohio St.3d 36; State v. Powell (1993), 90 Ohio App.3d 260, 270; State v. Williams (1991), 74 Ohio App.3d 686, 695. Defendant supplied no medical records with his initial motion to vacate and set aside sentence. In his traverse to the State's motion to dismiss, he supplied hospital records reflecting an epileptic seizure that apparently occurred about six days after his arrest for the robbery in question. Defendant was treated at Euclid Meridia Hospital on October 29, 1989, but he was arrested on October 23, 1989. Those hospital records do not support his argument that he was having an epileptic seizure at the time of the crime and his arrest. Further evidence of alternative theories involving the conviction alone are insufficient to show ineffective assistance of counsel. State v. Post (1987), 32 Ohio St.3d 380, 387-389; State v. Combs (1994), 100 Ohio App.3d 90, 98. It was undisputed at trial that defendant was an epileptic. The Euclid policeman responding to the crime scene testified to defendant's condition at the time of his arrest. The officer had been an ambulance crewman for nine years before becoming a policeman. He testified that from his experience, defendant was not having an epileptic seizure at the time of his arrest. He stated that the defendant was struggling with store personnel when he arrived. The defendant, however, stopped struggling when the officer identified himself. Defendant's trial attorney thoroughly cross-examined the officer. In short, the issue of defendant's - 7 - epilepsy was thoroughly presented and explored at trial. The evidentiary material supplied in defendant's post conviction petition did not refute, impeach or diminish the trial testimony on this issue. The defense theory is a matter of trial strategy and not subject to second-guessing in collateral proceedings. State v. Hester (1976), 45 Ohio St.2d 71. Defendant also contends that trial counsel did not adequately investigate the case. However, the record shows that defense counsel requested discovery, obtained a bill of particulars and the State's list of witnesses. Pretrials were held January 24, 1990 and February 1, 1990. Defendant's own self-serving affidavits are inadequate as a matter of law to overcome the presumption of adequate representation that the record displays. Upon review of the record and the evidentiary materials, we find no error in the trial court's denial of relief. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO GRANT AN EVIDENTIARY HEARING TO APPELLANT DESPITE THE REQUIREMENTS THEREFOR, PURSUANT TO O.R.C. 2953.21. R.C. 2953.21(C) states in part that before granting a hearing, the trial court shall first, "*** determine whether there are substantive grounds for relief." In the matter sub judice, the trial court determined that the petition and traverse did not set forth sufficient evidentiary material to warrant a full hearing. The trial court did, however, appoint counsel for defendant. In State v. Jackson (1980), 64 Ohio St.2d 107, the Supreme Court - 8 - determined that a criminal defendant carries the burden to provide sufficient evidence to warrant a hearing. A hearing is not mandatory on all post conviction relief petitions. State, ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450; Martin, supra. This Court recently stated the tests to be applied in determining the necessity of a hearing in State v. Pariseau (Dec. 15, 1994), Cuyahoga App. No. 67496, unreported at 4-5: A petition for post-conviction relief will be granted only where the denial or infringement of constitutional rights is so substantial as to render the judgment void or voidable. Relief is not available when the issue has been litigated by appeal or upon a motion for a new trial. State v. Walden (1984), 19 Ohio App.3d 141, 156. The doctrine of res judicata bars any defense or claimed lack of due process already raised on direct appeal from the judgment of conviction. State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. The claim must depend on factual allegations which cannot be determined by an examination of the files and records of the case. State v. Milanovich (1975), 42 Ohio St.2d 46, paragraph one of the syllabus. A petition for post-conviction relief may be dismissed without a hearing when the petitioner fails to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. The test to be applied is "whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case." State v. Strutton (1988), 62 Ohio App.3d 248, 251. A petitioner satisfies his initial burden by submitting evidence outside the record sufficient to avoid dismissal. See State v. Williams (1991), 74 Ohio App.3d 686, 692. See, also, State v. DePew (1994), 97 Ohio App.3d 111, 113. - 9 - The trial court determined that "[the] defendant has failed to file any sufficient documents in support of his claim that counsel was ineffective." In the absence of such evidence, the court did not err in denying the petition without a hearing. Assignment of Error II is overruled. Order denying petition for relief affirmed. - 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 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. DYKE, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER PRESIDING 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 .