COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69449 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH A. POWELL, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 15, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 213541 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Joseph A. Powell, Pro Se Cuyahoga County Prosecutor Lorain Correctional By: George J. Sadd, Esq. Institution Assistant Prosecuting Atty. 2500 S. Avon Belden Road The Justice Center Grafton, Ohio 44044 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: Defendant-appellant, Joseph Powell, Jr. ("appellant"), appeals pro se from the trial court's decision to dismiss his petition to vacate judgment pursuant to a motion filed by plaintiff-appellee, the state of Ohio. A careful review of the record compels affirmance. On the night of October 25, 1986, Ms. Patricia Burns was sleeping in her Cleveland Heights home. Her boyfriend, Rodney Bacon, was with her. Ms. Burns' eleven-year-old son, Shondo, and his friend, Dominic, were asleep in a neighboring bedroom. After midnight, appellant, a former boyfriend of Ms. Burns, let himself into Ms. Burns' home. He started yelling when he realized that Rodney Bacon was in the house. Appellant repeatedly banged at Ms. Burns' bedroom door and yelled, "Come out. I've got something for the both of you." Ms. Burns told appellant that she was going to call the police. He responded by informing her that the phone was dead. Appellant then lit a piece of paper and shoved it under the locked door. Ms. Burns opened the door slightly and appellant pushed the door open and knocked her to the floor. Appellant then attacked Rodney Bacon and stabbed him with a sixteen-inch kitchen knife. Rodney Bacon left Ms. Burns' home to escape from appellant and he hid in the foyer of a neighbor's home. Appellant searched through Ms. Burns home but left after he could not find Rodney Bacon. Ms. Burns instructed her son Shondo to call the police. She then left her home to search for Rodney Bacon. -3- As a result of a good samaritan's intervention, the police located Rodney Bacon and transported him to a nearby hospital. Subsequently, Rodney Bacon died as a result of the wounds inflicted by appellant. After the police transported Rodney Bacon to the hospital, Ms. Burns and Shondo were taken to the police station for questioning. Ms. Burns provided a hand-written statement, which was later officially typed, describing the events that led up to appellant's stabbing of Rodney Bacon. Two days after appellant's attack, he turned himself in to the authorities for the murder of Rodney Bacon. Appellant was charged with aggravated murder with specification, aggravated burglary and aggravated arson. A bench trial was held and appellant was found guilty of all charges and was sentenced to fifteen years to life in prison. Appellant appealed his conviction to this court. State v. Powell (June 16, 1988), Cuyahoga App. No. 54079, unreported. This court affirmed appellant's convictions. Appellant then appealed this court's decision to the Ohio Supreme Court, which dismissed appellant's case on November 9, 1988 No. 88-1251. Vol 246, pg. 167. On February 1, 1990, appellant filed a petition in the trial court requesting post-conviction relief. The trial court denied appellant's petition on April 18, 1990, and appellant appealed the trial court's decision to this court. State v. Powell (Jan. 30, 1992), Cuyahoga App. No. 59821, unreported. This court affirmed -4- the trial court's ruling. Appellant appealed to the Ohio Supreme Court, which dismissed appellant's case on January 17, 1992 Case No. 92-539, Vol. 316, Pg. 266. In the case at bar, appellant timely appeals and raises the following assignments of error for this court to review: ASSIGNMENT OF ERROR NO. I.: THE LOWER COURT ERRED IN NOT GRANTING APPELLANT AN EVIDENTIARY HEARING WHERE THERE IS A POSSIBILITY THAT APPELLANT MIGHT BE ENTITLED TO RELIEF. ASSIGNMENT OF ERROR NO II.: APPELLANT'S RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW WAS VIOLATED WHEN THE PROSECUTION FAILED TO DISCLOSE EVIDENCE FAVORABLE TO THE DEFENSE. ASSIGNMENT OF ERROR NO. III.: APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN PRETRIAL INVESTIGATION WHEN COUNSEL FAILED TO OBTAIN A COPY OF STATE WITNESS'S WRITTEN STATEMENT CONTAINING IMPEACHMENT EVIDENCE. Appellant's assignments of error are interrelated, therefore they will be discussed simultaneously. First, appellant charges that his right to due process was violated by the trial court when it dismissed his petition for post-conviction relief without holding an evidentiary hearing. R.C. 2953.21 sets forth the trial court's authority to grant post- conviction relief. In pertinent part, R.C. 2953.21 provides: (A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a 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 to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief. -5- If there exists substantive grounds for relief, the trial court must grant the petitioner a hearing. R.C. 2953.21(C) and 2953.21(E). A hearing is not automatically required upon the filing of a petition; the test is whether there exists substantive grounds for relief that would warrant a hearing based on the petition, the supporting affidavits and the files and records in the case. State v. Struthers (1988), 62 Ohio App.3d 248. The trial court must file findings of fact and conclusions of law when dismissing a petition for post-conviction relief without a hearing or motion by the prosecuting attorney. State v. Clemmons (1989), 58 Ohio App.3d 45. Findings of fact and conclusions of law must be explicit for an appellate court to determine a basis for judgment. Clemmons, supra. Herein, the trial court filed findings of fact and conclusions of law. The trial court determined that the appellant was not entitled to an evidentiary hearing because appellant's petition failed to establish substantive grounds for relief that would warrant a hearing based upon the petition. First, appellant did not demonstrate that he received ineffective assistance of counsel. Second, appellant failed to demonstrate that the trial court violated his right to due process. Accordingly, appellant's contention is not well-taken. Next, appellant charges the state violated his right to due process when it failed to disclose evidence favorable to him. In United States v. Agurs (1976), 427 U.S. 97, 109-110 S.Ct. 2392, 2400, 49 L.Ed.3d 312, the United States Supreme Court noted -6- that a failure to produce exculpatory evidence creates a constitutional denial of due process only where the evidence is sufficiently exculpatory to create a reasonable doubt as to guilt. See, also, State v. Walden (1984), 19 Ohio App.3d 141, 149. In the case at bar, the trial court compared the documents, i.e., the preliminary handwritten statement and the typed official statement, and determined that the documents were identical, and not exculpatory. Agurs, supra; Walden, supra. A review of the record indicates that in light of the evidence presented at trial, the handwritten statement would not have created a reasonable doubt as to appellant's guilt. Therefore, appellant's contention lacks merit. Finally, appellant asserts that he was denied effective assistance of counsel. Appellant charges that his defense counsel failed to obtain and investigate Ms. Burns' handwritten statement prior to the trial. In State v. Bradley (1989), 42 Ohio St.3d 136, the Ohio Supreme Court discussed Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and the holding in State v. Lytle (1976), 48 Ohio St.2d 391. The Bradley court developed a two-step analysis to evaluate a claim of ineffective assistance of counsel. First, there must be a determination as to whether defense counsel substantially violated an essential duty to the client. Second, there must be a determination as to whether the defendant was prejudiced by counsel's ineffectiveness. Id. at 141-142. -7- In order to demonstrate prejudice, a defendant must prove there exists a reasonable probability that the result of the trial would have been different, if not for counsel's errors. Id., paragraph three of the syllabus. If prejudice is not shown, this court need not consider whether there was a failure of an essential duty. Id. at 143. Herein, appellant charges ineffective assistance of counsel on the ground that his defense counsel failed to obtain Ms. Burns' written statement prior to trial. However, appellant has failed to demonstrate that his defense counsel's performance was seemingly flawed or deficient, and that his counsel substantially violated one or more essential duties to him. The record indicates that appellant's counsel filed a discovery motion requesting pre-trial disclosure of prosecuting witnesses' written statements. The trial court granted appellant's discovery motion. Thus, appellant's counsel was afforded the opportunity to review Ms. Burns' final typed version of her handwritten statement. Assuming arguendo that appellant's defense counsel erred by not obtaining a copy of Ms. Burns' handwritten statement, appellant has not demonstrated ineffective assistance of counsel. The document is identical to the typed version. Appellant has not demonstrated prejudice to him, as a result of one statement being used instead of the other. In light of the foregoing, appellant has not demonstrated that his defense counsel substantially violated one or more of his essential duties to appellant and that the violation prejudiced appellant. Bradley, supra; Lytle, supra. -8- Moreover, this court notes that a review of the record demonstrates that appellant's claim of ineffective assistance could have been raised on direct appeal. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising a claim in any proceeding except on appeal from that judgment, and 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 or conviction, or on an appeal for that judgment. State v. Cole (1982), 2 Ohio St.3d 112 citing State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. Therefore, appellant's claim of ineffective assistance of counsel is barred by the doctrine of res judicata. Given the foregoing, appellant's assignments argument is not well taken. Judgment affirmed. -9- 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 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. TERRENCE O'DONNELL, J., AND DIANE KARPINSKI, J., CONCUR. PRESIDING JUDGE SARA J. HARPER 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 .