COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69902 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ANTHONY GILBERT : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 25, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CR-297439. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Arthur A. Elkins Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Anthony Gilbert, pro se #281-607 P.O. Box 57 Marion, Ohio 43301-0057 SWEENEY, JAMES D., J.: Defendant-appellant-petitioner Anthony Gilbert ("Gilbert") appeals from the trial court's dismissal of his Petition for Post- Conviction Relief. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Gilbert was convicted by a jury (on July 28, 1993) and sentenced (on September 10, 1993) for the offenses of Aggravated Trafficking in Drugs and Drug Abuse, which was affirmed on appeal to this court. See State v. Gilbert (September 22, 1994), Cuyahoga App. No. 66269, unreported, leave to appeal to the Supreme Court of Ohio dismissed on March 16, 1995. Thereafter, Gilbert filed on August 24, 1995, a pro se, Petition for Post-Conviction Relief pursuant to R.C. 2953.21, alleging that he had new exculpatory evidence that would alter the weight of the evidence to such an extent as to require a verdict in his favor. This Petition also requested an evidentiary hearing. The prosecution filed on August 31, 1995, a motion to dismiss the Petition for Post-Conviction Relief, without an evidentiary hearing, alleging that the Petition was barred on the basis of res judicata, in that the allegedly exculpatory evidence should have been advanced on direct appeal. On September 20, 1995, Gilbert filed a brief in opposition to the prosecution's motion to dismiss. On November 14, 1995, the trial court, in denying the Petition without an oral evidentiary hearing, issued its Findings of Fact and Conclusions of Law, which stated in pertinent part as follows: - 3 - 5. On August 14, 1995, defendant filed the within pro se Petition for Post-Conviction Relief. He alleged that the prosecution had concealed the fact that a defense witness, Rebecca Miner, was being charged with Drug Abuse allegedly possessing the same drugs that the defendant was charged with possessing. A copy of the indictment of Rebecca Miner was attached to the petition and it showed that Miner's indictment was filed with the Court on August 23, 1993. Ms. Miner subsequently pled guilty on September 28, 1993 to Drug Abuse and was sentenced on December 2, 1993 to six months confinement suspended for probation. * * * Law and Argument The contentions of the defendant are not meritorious and the post-conviction petition is dismissed. The jury considered the question of whether the drugs belonged to Ms. Miner as she was in Court to declare her ownership. Counsel for defendant argued that the drugs were Miner's and that Gilbert never trafficked or possessed the drugs. The jury chose to believe that Mr. Gilbert did in fact possess the drugs and trafficked in them. As Ms. Miner was not on trial, this jury made no determination as to her criminality. At the time of the trial, Miner was not indicted and there was no failure on the prosecution's part to disclose it. It appears that as a result of Ms. Miner's testimony, a grand jury indictment was prepared and filed. Miner's admission of possession does not necessarily preclude defendant's trafficking or possession conviction and the jury found the defendant guilty. Additionally, the defendant had ample opportunity to raise the issue of Miner's criminality on appeal and her conviction does not change the situation. Matters which should have been raised on appeal may not be considered in post-conviction relief. State v. - 4 - Perry (1967), 10 Ohio St.2d 175. Defendant had a full appeal and the reviewing court was not persuaded. Likewise, this Court is not persuaded and the prayed for relief is denied. IT IS SO ORDERED. * * * Journal Vol. 1442, pages 771-772. This pro se appeal followed, presenting one lone assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL REVERSIBLE ERROR BY GRANTING THE STATE'S MOTION TO DISMISS APPELLANT'S COMPLAINT FOR POST- CONVICTION RELIEF WHEN THE STATE RELIED UPON THE DEFENSE OF RES JUDICATA IN SAID MOTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE 14TH AMENDMENT TO THE FEDERAL CONSTITUTION. THE TRIAL COURT ADDED TO THE PREJUDICE IN NOT GRANTING AN EVIDENTIARY HEARING. This assignment is without merit. In analyzing Gilbert's claim for relief, we note the following recent enunciation from this court: The doctrine of res judicata bars the post- conviction litigation of issues which were or should have been addressed on direct appeal. State v. Richardson (February 15, 1996), Cuyahoga App. No. 69131, unreported, 1996 Ohio App. LEXIS 493, citing State v. Perry, supra, and State v. Combs (1994), 100 Ohio App.3d 90, 97. The claims advanced by Gilbert, which were nicely summarized by the trial court in its Law and Argument, were either presented for the jury's consideration at Gilbert's trial or were known to Gilbert at the time of his direct appeal. These claims were not - 5 - argued on Gilbert's direct appeal from his conviction. Accordingly, these claims are barred by the doctrine of res judicata. Additionally, Gilbert has failed to demonstrate in his Petition a substantive ground for post-conviction relief. Thus, the trial court did not abuse its discretion in not conducting an evidentiary hearing on the matter. State v. Kapper (1983), 5 Ohio St.3d 36; State v. Jackson (1980), 64 Ohio St.2d 107; State v. DePew (1994), 97 Ohio App.3d 111; State v. Williams (1991), 74 Ohio App.3d 686; State v. Strutton (1988), 62 Ohio App.3d 248; State v. Cotton (February 1, 1996), Cuyahoga App. Nos. 69394 and 69425, unreported. Assignment 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. Exceptions. LEO M. SPELLACY, C.J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY 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 .