COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69702 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ISAIAH ANDREWS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 13, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CR-17902. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Diane Smilanick, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Isaiah Andrews, pro se A141-345 P.O. Box 788 Mansfield, OH 44901 -2- DAVID T. MATIA, J.: Isaiah Andrews, defendant-appellant, appeals from the decision of the Cuyahoga County Court of Common Pleas granting the State of Ohio's, plaintiff-appellee's, motion to dismiss. Defendant- appellant raises two assignments of error for review. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS Isaiah Andrews, defendant-appellant, was found guilty at the conclusion of a jury trial of one count of Aggravated Murder, R.C. 2903.01, on March 12, 1975. Defendant-appellant was sentenced to a term of life imprisonment. This court affirmed defendant- appellant's conviction in State v. Andrews (March, 18, 1976), Cuyahoga App. No. 34620, unreported. A number of post-conviction motions were subsequently filed by defendant-appellant including a petition for post-conviction relief. In this petition, which was filed on April 8, 1992, defendant-appellant alleged a violation of his right to a speedy trial and ineffective assistance of counsel. On January 3, 1994, defendant-appellant filed a petition for writ of mandamus with this court to compel the trial court to rule on his petition for post- conviction relief. On January 26, 1994, the trial court denied defendant- appellant's petition for post-conviction relief without a hearing. The state filed a motion to dismiss defendant-appellant's petition for writ of mandamus attached to which was a copy of the findings of fact and conclusions of law issued by the trial court denying -3- defendant-appellant's petition for post-conviction relief. This court dismissed the writ on February 25, 1994. On June 28, 1995, defendant-appellant filed a petition to vacate or set aside sentence based upon the theory of Due Process/Equal Protection. The trial court dismissed defendant-appellant's petition on September 28, 1995. Defendant-appellant appeals this dismissal. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Since Isaiah Andrews', defendant-appellant's, first and second assignments of error contain similar issues of law and fact, we will consider them concurrently. I. WHERE THE FINDINGS OF THE COURT, THAT "THE PETITION AND THE FILES AND RECORDS OF THE CASE SATISFACTORILY SHOW THAT THE PRISONER IS ENTITLED TO NO RELIEF," IS CONTRARY TO LAW, IT CONSTITUTES AND ABUSE OF DISCRETION, AND CONSTITUTES ERROR PREJUDICIAL TO THE PRISONER. II. APPELLANT IS PRESENTLY UNCONSTITUTION-ALLY IMPRISONED OR RESTRAINED OF HIS LIBERTY; APPELLANT IS IN THE CUSTODY OF CARL ANDERSON, THE WARDEN OF (MANCI); AND THAT THE DETENTION IS ILLEGAL BECAUSE THE SENTENCING COURT WAS WITHOUT JURISDICTION TO RETRY AND SENTENCE APPELLANT TO A LIFE SENTENCE, PRONOUNCED BY JUDGE FRANCIS F. SWEENEY, COMMON PLEAS COURT, CUYAHOGA COUNTY, OHIO ON MARCH 12, 1975, FOR THE CONVICTION OF AGGRAVATED MURDER, A VIOLATION OF R.C. 2903.01. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-APPELLANT'S MOTION TO DISMISS. -4- Defendant-appellant argues the trial court committed prejudicial error in dismissing his petition to vacate or set aside sentence. Specifically, defendant-appellant argues the trial court is mandated by R.C. 2953.23(A) to consider the merits of his Due Process/Equal Protection claim. The trial court therefore abused its discretion when it merely adopted the state's suggested journal entry with said review. Defendant-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW: RES JUDICATA AND R.C. 2953.23. Res judicata, also known as "claim preclusion" is the doctrine under which a final judgment on the merits bars a party from bringing another lawsuit based upon the same claim. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, paragraph one of syllabus. Res judicata extends to bar not only claims which actually were litigated, but "every question which might properly have been litigated." Stromberg v. Bratenahl Bd. of Edn. (1980), 64 Ohio St.2d 98. "Res judicata prohibits an appellant from raising, by way of a motion for post-conviction relief, any issue which could have been raised at trial or through direct appeal when the appellate counsel is different from trial counsel." State v. Rios (April 15, 1993), Cuyahoga App. No. 63509, unreported at 5. Moreover, "a trial court is not required to file findings of fact and conclusions of law when declining to entertain a second or successive petition for post-conviction relief which alleges -5- the same grounds as earlier petitions." State, ex rel. Workman v. McGrath (1988), 40 Ohio St.3d 91. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DISMISSING DEFENDANT-APPELLANT'S PETITION TO VACATE OR SET ASIDE SENTENCE. In the case sub judice, defendant-appellant's claimed Due Process/Equal Protection violations are based upon or stem from his previously argued right to speedy trial and are therefore barred by the doctrine of res judicata. Stromberg, supra. Moreover, even if defendant-appellant's "unlawful restraint" argument is separate and distinct from his prior post-conviction arguments, it was an issue that could have been raised through direct appeal. See Rios, supra. Finally, since the trial court properly determined that defendant-appellant's claims had previously been raised in his first petition for post-conviction relief, the trial court was not required to file findings of fact and conclusions of law as proof to defendant-appellant that it did in fact consider the merits of his claim. State ex rel Workman, supra. 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. SPELLACY, C.J. and NAHRA, J., CONCUR. DAVID T. MATIA 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 .