COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69501 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : LEE JACKSON : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 2, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CR-304570. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Sherry F. McCreary, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Lee Jackson, pro se Inmate No. 290-221 Hocking Correctional Facility P.O. Box 59 Nelsonville, OH 45764 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Common Pleas Court and the briefs of counsel. Lee Jackson, defendant-appellant, appeals from the trial court's dismissal of his third petition for post-conviction relief. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On January 31, 1994, Lee Jackson, defendant-appellant, was indicted by the Cuyahoga County Grand Jury for one count of rape (engaging in sexual conduct with a female under the age of 13 years), in violation of R.C. 2907.02(A)(1)(b). Defendant- appellant was arraigned on February 18, 1994 whereupon a plea of not guilty was entered to the indictment. On March 7, 1994, Lee Jackson, defendant-appellant, withdrew his formerly entered plea of not guilty and entered a plea of guilty to attempted rape as set forth in the amended indictment, an aggravated felony of the second degree. The plea agreement contained an agreed sentence of 4 to 15 years incarceration with no eligibility for shock probation or super shock parole. Defendant- appellant was sentenced that same day. On September 6, 1994, Lee Jackson, defendant-appellant, filed a notice of appeal from his conviction in the trial court. However, on November 7, 1994, defendant-appellant's appeal was dismissed for failure to file a praecipe in accordance with Loc.App.R. 4. -3- On September 26, 1994, Lee Jackson, defendant-appellant, filed his first petition for post-conviction relief in which defendant- appellant sought to vacate his sentence. Defendant-appellant failed to set forth any grounds for such relief. On October 24, 1994 the trial court issued findings of fact and conclusions of law dismissing defendant-appellant's petition without a hearing. On November 30, 1994, Lee Jackson, defendant-appellant, filed his second post-conviction relief motion in which defendant- appellant sought an order vacating his sentence pursuant to R.C. 2953.21 based upon a claim of ineffective assistance of counsel. On February 14, 1995 the trial court issued findings of fact and conclusions of law once again dismissing defendant-appellant's petition based upon the lack of any substantiating evidence. On June 16, 1995, Lee Jackson, defendant-appellant filed his third petition to vacate and set aside sentence pursuant to R.C. 2953.21 once again alleging ineffective assistance of counsel. Specifically, defendant-appellant maintained that trial counsel failed to properly investigate the facts of the alleged rape and coerced him into entering an unknowing and involuntary plea of guilty to the amended indictment. On August 24, 1995, the trial court issued findings of fact and conclusions of law dismissing the motion to vacate and set aside sentence pursuant to R.C. 2953.21 without a hearing based upon the doctrine of res judicata. On September 1, 1995, Lee Jackson, defendant-appellant, filed a timely notice of appeal form the August 24, 1995 judgment of the trial court. -4- II. ASSIGNMENT OF ERROR Lee Jackson's, defendant-appellant's, sole assignment of error states: DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE COUNSEL AT TRIAL THROUGH ACTS AND OMISSIONS OF HIS ATTORNEY, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION. Defendant-appellant maintains, through his only assignment of error, that he failed to receive effective assistance of counsel as guaranteed by the United States and Ohio Constitutions. It is defendant-appellant's position that his attorney failed to adequately investigate the case as well as possible defenses resulting in a coerced, involuntary and unknowing plea of guilty to the amended indictment. Specifically, defendant-appellant contends that the case was originally dismissed by the Cleveland Municipal Court for failure to prosecute due to the victim's reluctance to testify. Defendant-appellant argues that the municipal court's dismissal should have precluded his plea in the subsequent felony proceeding in common pleas court. The post-conviction relief process permits criminal defendants who allege that their conviction is void or voidable on state or federal constitutional grounds to petition the trial court for an evidentiary hearing pursuant to R.C. 2953.21(A). State v. Isham (Aug. 23, 1995), Montgomery County App. No. 92-CR-2729/2. The petitioner bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate -5- his claim and merit a hearing. State v. Hamilton (Dec. 29, 1993), Clark App. No. 3015, unreported, citing State v. Kopper (1983), 5 Ohio St.3d 36. A petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner is not entitled to relief and that the petitioner failed to submit evidentiary documents containing sufficient operative facts. State v. Scott (1989), 63 Ohio App.3d 304; State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus. A trial court is not required to hold a hearing on all post-conviction motions. State ex rel Jackson v. McMonagle (1993), 67 Ohio St.3d 450, 619 N.E.2d 1017. If the trial court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. State v. Isham, supra. The doctrine of res judicata applies to these actions. If a court finds that an issue raised in a petition for post- conviction relief has, or should have, been raised in a direct appeal or in a previous post-conviction relief motion, the trial court may dismiss the petition on the grounds of preclusion. State v. Perry (1967), 10 Ohio St.2d 175, paragraph seven of the syllabus; State v. Spisak (April 13, 1995), Cuyahoga App. No. 67229, unreported. In order to substantiate a claim of ineffective assistance of counsel, defendant-appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of defendant-appellant's trial or legal proceeding would have been -6- different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim for ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. A review of the underlying record from the trial court demonstrates that defendant-appellant's claim for ineffective assistance of counsel could have been raised on direct appeal and was raised in defendant-appellant's second motion for post- conviction relief and dealt with by the trial court. Accordingly, the trial court properly dismissed defendant- appellant's third petition for post-conviction relief as defendant-appellant's claims are barred by the doctrine of res judicata. State v. Cole (1982), 2 Ohio St.3d 112; State v. Perry, supra; State v. Rausch (Feb. 10, 1994), Cuyahoga App. No. 64675, unreported. Even if defendant-appellant's ineffective assistance of counsel claim was not barred by the doctrine of res judicata, defendant-appellant failed to demonstrate that the performance of his attorney was seriously flawed or deficient. Defendant- appellant mistakenly argues that the municipal court dismissal of the original case somehow precluded further prosecution. -7- However, the dismissal by the municipal court was clearly a dismissal without prejudice. R.C. 2937.05 provides that: *** discharge of an accused upon the sustaining of a motion to dismiss shall not be considered a bar to further prosecution either of felony or misdemeanor. See, also, Columbus v. Nappi (1966), 5 Ohio St.2d 99; State v. Stephens (1977), 52 Ohio App.2d 361. Once the case was dismissed by the municipal court, there was nothing to prohibit the state from seeking an indictment by the Cuyahoga County Grand Jury. In fact, such procedure is customary where serious criminal conduct is alleged to have occurred. In addition, a review of defendant-appellant's plea of guilty to the amended indictment clearly reveals that the plea was voluntarily, intelligently and knowingly entered and in accordance with Crim.R. 11. State v. Xie (1992), 62 Ohio St.3d 521, 527. Under such circumstances, defendant-appellant is not entitled to successfully petition the trial court for post- conviction relief where he failed to demonstrate counsel's ineffectiveness and where the trial court files findings of fact and conclusions of law pursuant to R.C. 2953.21(C). State v. Lambrecht (1990), 69 Ohio App.3d 256. Accordingly, defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is hereby affirmed. -8- 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. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE ANN DYKE, 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 .