COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69959 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ESTIL GENE DUNCAN : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 23, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CR-212177. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Karen L. Johnson, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Estil Gene Duncan, pro se A193-691 G.C.I. A2 2500 South Avon-Belden Road Grafton, OH 44044 -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. Estil Duncan, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. 212177, in which the trial court dismissed defendant-appellant's motion for a nunc pro tunc order setting aside illegal sentence and vacating a plea. Defendant-appellant assigns two errors for this court's review. Estil Duncan's, defendant-appellant's, appeal is not well taken. On July 17, 1986, Estil Duncan, defendant-appellant, and a co- defendant were indicted by the Cuyahoga County Grand Jury for one count of aggravated burglary in violation of R.C. 2911.11, one count of aggravated robbery in violation of R.C. 2911.01, one count of felonious assault in violation of R.C. 2903.11 and one count of attempted murder in violation of R.C. 2903.02 and 2923.02. Each count contained two violence specifications. On October 10, 1986, Estil Duncan, defendant-appellant, entered a plea of not guilty to the indictment. On October 31, 1986, Estil Duncan, defendant-appellant, withdrew his formerly entered plea of not guilty and entered a plea of guilty to the indictment. Defendant-appellant was sentenced to three concurrent seven to twenty-five year terms of incarceration on counts one, two and four of the indictment. On count three of the indictment, defendant-appellant was sentenced to a three to -3- fifteen year term of incarceration to be served consecutively to the sentences in counts one, two and four. Defendant-appellant did not appeal from the plea or sentence. On August 29, 1995, Estil Duncan, defendant-appellant, filed a motion for a nunc pro tunc order setting aside illegal sentence and vacating a plea in which defendant-appellant cited Crim.R. 52(B), Crim.R. 32(1) and R.C. 2953.21. Defendant-appellant claimed in his motion that counts three and four of the indictment are allied offenses of similar import and that the trial court should have conducted a hearing and merged counts three and four pursuant to R.C. 2941.25. On September 18, 1995, the state filed a motion to dismiss defendant-appellant's pleading. On November 16, 1995, the trial court issued findings of fact and conclusions of law in which the trial court determined that Estil Duncan's, defendant-appellant's, pleading should be treated as a petition for post-conviction relief pursuant to R.C. 2953.21. The trial court then dismissed defendant-appellant's petition. On December 12, 1995, Estil Duncan, defendant-appellant, filed a timely notice of appeal from the judgment of the trial court. Estil Duncan, defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, WHEN THE COURT FOUND THAT THE APPELLANT DID NOT RAISE MANIFEST INJUSTICE TO VACATE HIS GUILTY PLEA, THAT CRIMINAL RULE 52 WAS NOT APPLICABLE, AND THAT THE MATTERS RAISED WERE RES JUDICATA FOR THE PURPOSE OF O.R.C. 2953.21 ET SEQ., VIOLATING APPELLANT'S -4- RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Estil Duncan's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, WHEN THE COURT FOUND THAT THE PLEA SHOULD NOT BE VACATED, OR AN ALLIED OFFENSE HEARING HELD, AND WHEN THE COURT FAILED TO FIND MANIFEST INJUSTICE, UNDER CRIMINAL RULE 32.1, AND CRIMINAL RULE 52(B), IN THAT THE TRIAL COURT FAILED TO HOLD PREVIOUSLY AN OFFENSE HEARING TO FIND WHETHER THOSE OFFENSE[S] WERE ALLIED, DENYING APPELLANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT. Having a common basis in both law and fact, this court shall consider defendant-appellant's first and second assignments of error simultaneously. Defendant-appellant argues, through his first and second assignments of error, that the trial court erred in dismissing his petition for post-conviction relief since the offenses of attempted murder and felonious assault were allied offenses of similar import and a hearing should have been held to determine whether those offenses should have been merged pursuant to R.C. 2941.25. Defendant-appellant argues further that his guilty plea should be vacated in order "to correct manifest injustice" pursuant to Crim.R. 32.1. The trial court correctly treated defendant-appellant's motion as a petition for post-conviction relief pursuant to R.C. 2953.21(A) which states in pertinent part: -5- (A) Any person convicted of a criminal offense *** 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 verified 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. R.C. 2953.21(C) provides: (C) Before granting a hearing the court shall determine whether there are substantive grounds for relief. *** In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. Such court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. A trial court is not required to hold a hearing on all post- conviction relief motions. State ex rel Jackson v. McMonagle (1993), 67 Ohio St.3d 450. A petitioner is not entitled to an evidentiary hearing on a petition for post-conviction relief where the petitioner fails to demonstrate that there are substantive grounds for relief based upon the petition, the supporting affidavits and the files and records in the case. State v. Strutton (1988), 62 Ohio App.3d 248. -6- Under the doctrine of res judicata, constitutional issues cannot be considered in post-conviction proceedings under R.C. 2953.21 where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175; State v. McCollough (1992), 78 Ohio App.3d 587, 591. In the case sub judice, defendant-appellant maintains that the offenses of attempted murder and felonious assault are allied offenses of similar import and therefore defendant-appellant could not be sentenced by the trial court for both offenses. Since defendant-appellant could have raised this claim at the trial court level during the plea proceeding or at the appellate level on direct appeal or through a delayed appeal and failed to do so, it is now barred by the doctrine of res judicata as the trial court correctly determined. State v. McCollough, supra. In addition, a post-conviction petitioner's failure to pursue an alleged error in sentencing by way of a direct appeal acts as a waiver of the alleged error. State v. Combs (1991), 73 Ohio App.3d 823, 824; State v. Perry, supra. Defendant-appellant's first and second assignments of error are not well taken. Judgment of the trial court is affirmed. -7- 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. JAMES D. SWEENEY, PRESIDING JUDGE DAVID T. MATIA, JUDGE DIANE KARPINSKI, 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 it will become the judgment and order of the court and time period for review will begin to run. .