COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70350, 70351 & 70352 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : TIMOTHY J. JOSSO : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 22, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case Nos. CR-219232, CR-220412, and CR-221107. JUDGMENT: REVERSED AND REMANDED FOR HEARING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Diane Smilanick Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Timothy J. Josso, Pro se #A203-146 Lorain Correctional Institution 2075 South Avon Belden Road Grafton, Ohio 44044 PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant Timothy Josso appeals, pro se, from the trial court's denial of his motion for post-conviction relief from his conviction for aggravated murder in violation of R.C. 2903.01. The appellant was sentenced to a term of incarceration of thirty years to life plus a three-year term of incarceration for the gun specification. The appellant has filed this appeal from three different lower court cases, only one of which is subject to review. The appellant was indicted under Common Pleas case number 220412 for aggravated murder with a gun specifications and an aggravated felony specification. A nolle prosequi was entered on this case on February 4, 1988. The appellant was subsequently indicted under Common Pleas case number 219232 for aggravated robbery and aggravated burglary. He was also indicted under Common Pleas case number 221107 for aggravated murder with the following three specifications: murder of a witness; gun; and aggravated felony. Common Pleas Case Numbers 219232 and 221107 were tried together before a jury. The court entered an acquittal pursuant to Crim.R. 29 on the charge of aggravated robbery. The jury returned - 3 - guilty verdicts for aggravated burglary and aggravated murder. Thereafter the trial court granted a new trial for the aggravated burglary conviction, but a nolle prosequi was eventually entered by the court. Therefore, the only case properly before this court upon which there is a conviction is Common Pleas case number 221107, the conviction for aggravated murder. This conviction was affirmed by this court in the appellant's direct appeal. See State v. Josso (June 1, 1989), Cuyahoga App. No. 55436, unreported; jurisdictional motion overruled 45 Ohio St.3d 712. In the appellant's motion for post-conviction relief, the appellant sets forth two claims for relief. The first claim, which sets forth numerous and specific facts, alleged that he was rendered ineffective assistance of counsel. The second claim alleged that the trial court made inappropriate and prejudicial gestures indicating the appellant's guilt while the jury was present in the courtroom. Attached to the motion were four affidavits, one of which was the appellant's, and an article from the Cleveland Plain Dealer relating to his trial. The appellee filed its motion to dismiss submitting no evidence. The appellant filed a reply without further evidence. Since the trial judge is no longer on the bench of the Cuyahoga County Court of Common Pleas, General Division, the findings of fact and conclusions of law were necessarily issued by a successor judge. The appellant asserts four assignments of error. - 4 - The first assignment of error: I THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION WHEN, DISMISSING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT SETTING FORTH ITS FINDINGS ON EACH ISSUE AND CLAIM PRESENTED IN THE PETITION. The appellant argues that the trial court erred when it rendered inadequate findings of fact and conclusions of law by completely failing to address the appellant's second claim for relief. The appellant contends that in the second claim for relief evidence dehors the record was provided of the trial court's prejudicial comportment at his trial and that this evidence entitled him to a hearing on the motion for post-conviction relief. This court is forced to agree. Pursuant to R.C. 2953.21(A), (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. When a trial court dismisses a petition for post-conviction relief, it must make findings of fact and conclusions of law. R.C. 2953.21(E); State ex rel. Ferrell v. Clark (1984), 13 Ohio St.3d 3; State v. Mapson (1982), 1 Ohio St.3d 217. These findings of fact - 5 - and conclusions of law should be clear, specific and complete. State v. Clemmons (1989), 58 Ohio App.3d 45. The purpose for the findings of fact and conclusions of law is to apprise the petitioner of the grounds for the judgment and to enable the appellate court to properly determine the appeal. State v. Lott, (Nov. 3, 1994), Cuyahoga App. Nos. 66388, 66389, 66390, unreported, citing to State, ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19. The test for adequacy is "whether [the findings of fact and conclusions of law] are sufficiently comprehensive and pertinent to the issue[s] to form a basis for the decision and whether they are supported by the evidence." Lott, supra, citing to Clemmons, supra. In Lott, supra, the court also held that the findings of fact and conclusions of law must at least contain some articulable factual basis and a conclusion soundly based in law. There should be findings as to the substantive basis of each claim for relief contained in the petition. Id. In the case sub judice, the appellant submitted eyewitness affidavits that the trial court made inappropriate gestures indicative of his guilt while the jury was present. The trial court neglected to mention this claim for relief in its findings of fact and conclusions of law. The appellant's first assignment of error is well taken. The second assignment of error: - 6 - II THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION WHEN, DISMISSING THE PETITION FOR POST CONVICTION RELIEF ON THE ERRONEOUS BASIS OF RES JUDICATA AS RES JUDICATA DOES NOT APPLY TO THE WITHIN CASE DUE TO THE FACT THAT APPELLANT WAS REPRESENTED BY THE SAME COUNSEL ON APPEAL AND AT TRIAL. In his motion for post-conviction relief the appellant set forth numerous specific instances to support the allegation that he was rendered ineffective assistance of counsel. The court stated that the appellant's claims were barred by the doctrine of res judicata and then indicated that even if res judicata did not apply, the appellant had failed to submit evidence supporting his allegations of ineffective assistance of counsel. The Supreme Court, in State v. Lentz (1994), 70 Ohio St.3d 527, recognized that res judicata does not apply when the trial and appellate counsel are the same, due to the lawyer's inherent conflict of interest. Since the appellant was represented at trial and on direct appeal by the same counsel, the trial court improperly used res judicata as a basis for its denial of the appellant's motion for post-conviction relief. In addition, the trial court incorrectly stated that the appellant failed to submit evidence dehors the record. The appellant submitted uncontroverted affidavits sufficient to support his allegations concerning the trial judge's conduct. The appellant's second assignment of error is well taken. The third assignment of error: - 7 - III THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION WHEN, DISMISSING THE PETITION FOR POST CONVICTION RELIEF WITHOUT HOLDING AN EVIDENTIARY HEARING AS THE PETITION SET FORTH SUFFICIENT OPERATIVE FACTS IN SUPPORT OF CLAIM I, EIGHT (8) ISSUES ALLEGING INEFFECTIVE ASSISTANCE OF COUNSEL AND; CLAIM II A CLAIM ALLEGING JUDICIAL MISCONDUCT WHICH WAS SUPPORTED BY THREE (3) AFFIDAVITS DEMONSTRATING THAT THE TRIAL JUDGE WAS MAKING PREJUDICIAL GESTURES AT TRIAL IN THE PRESENCE OF THE JURY. In this assignment of error, the appellant argues that the trial court erred in failing to hold an evidentiary hearing on the motion. In his motion for relief, the appellant made an allegation, supported by uncontroverted affidavits, that the trial court, before the jury, made inappropriate gestures indicating his guilt. The appellant contends that this evidence was sufficient to require the court to hold a hearing on the motion. R.C. 2953.21(C) addresses evidentiary hearings: (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. - 8 - In determining whether there are substantive grounds for post- conviction relief that would warrant a hearing, the affidavits offered in support of the petition should be accepted as true. State v. Swortcheck (1995), 101 Ohio App.3d 770. For example, the affidavits in support need only present sufficient prima facie evidence of ineffective assistance of counsel to warrant a hearing. State v. Strutton (1988), 62 Ohio App.3d 248, 252, 253. In Swortcheck, supra, this court held that the credibility of the witnesses offering the affidavits is for the trier of fact to resolve at a hearing. Furthermore, the transcript of the trial is not included in the record on appeal, and there is no indication that it was available to the trial court at the time that court ruled upon the motion. The appellant has not alleged mere open-ended allegations or conclusory statements concerning the trial court's behavior, but rather has set forth specific instances of alleged inappropriate behavior. It may well be that if the State had supplied the transcript of the trial or other evidence by affidavit, a motion for summary judgment may have been in order. However, this court is unable upon the record on appeal to find that the requirements of R.C. 2953.21(E), that there be a hearing, can be dispensed with, since the file and records of the case do not demonstrate that the appellant is not entitled to relief, but instead, indicate that there is a possibility that he could be. See State v. Gibson (1992), 78 Ohio App.3d 501. - 9 - The appellant's third assignment of error is well taken. The fourth assignment of error: IV THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION WHEN, DISMISSING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WHILE APPELLANT WAS CONDUCTING DISCOVERY PROCEEDINGS, AND ADMISSIONS WERE ADMITTED. The appellant asserts in this assignment of error that the trial court abused its discretion when it dismissed the motion for post-conviction relief prior to the completion of discovery. Although a post-conviction relief proceeding is civil in nature, the extent of the trial court's jurisdiction is set forth by statute, and the power to conduct and compel discovery under the civil rules is not included within the trial court's statutorily defined authority. Lott, supra. The appellant's fourth assignment of error is overruled. Case reversed and remanded for a hearing on the appellant's motion for post-conviction relief. - 10 - This cause is reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said 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, CHIEF JUSTICE JAMES D. SWEENEY, 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 journalization, at which time .