COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70406 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION MICHAEL LEE : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 10, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. CR-311,952 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DIANE SMILANICK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MICHAEL J. LEE, pro se #A294-186 Lima Correctional Institution P. O. Box 4571 2235 North West Street Lima, Ohio 45802 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, and the briefs of counsel. Defendant-appellant, Michael J. Lee ("appellant"), appeals the decision of the Cuyahoga County Common Pleas Court denying, without an evidentiary hearing, his petition for postconviction relief. The record reflects that appellant was indicted for one count of felonious assault, with two violence specifications, in violation of R.C. 2903.11. Upon recommendation of the prosecuting attorney, the indictment was amended charging appellant with attempted felonious assault, in violation of R.C. 2923.02 and R.C. 2903.11, to which the court accepted appellant's plea of guilty. In an entry journalized on September 13, 1994, appellant was sentenced to a term of four to ten years at Lorain Correctional Institute. No appeal as of right was taken from this conviction. On May 1, 1995, appellant filed a petition for postconviction relief urging the trial court to vacate and set aside his sentence and judgment of conviction. Appellant's petition alleged that his sentence was void or voidable because he did not receive effective assistance of counsel and that the - 3 - trial court erred in imposing an indefinite sentence in violation of R.C. 2929.11(D) and R.C. 2929.11(G). The state moved to dismiss appellant's petition on the basis that appellant's claims were barred by the doctrine of res judicata. Appellant, on May 17, 1995, filed a motion for judgment on the pleadings, which was opposed by the state but never ruled on by the court. On June 29, 1995, appellant petitioned this court for a writ of mandamus seeking to compel the trial court to rule on his postconviction petition. Finding that an inordinate amount of time had not yet elapsed to warrant mandamus relief, the writ was denied sua sponte. On March 7, 1996, appellant's petition for postconviction relief was denied. In its findings of fact and conclusions of law, the court reasoned that appellant's claims for ineffective assistance of counsel could have been raised on direct appeal. Appellant's failure to do so precluded him from seeking postcon- viction relief based on the doctrine of res judicata. Further- more, appellant presented no evidence outside the record with which to avoid dismissal. The court further reasoned that even if res judicata were inapplicable, appellant had failed to present evidence demonstrating that his counsel was ineffective and that this ineffectiveness was prejudicial. Lastly, the court determined that appellant's indefinite sentence was proper as he was convicted of a third degree aggravated felony and, as such, - 4 - an indefinite sentence was appropriate pursuant to R.C. 1 2929.11(A). Appellant timely appeals this judgment and asserts the following assignments of error for our review: I. THE TRIAL COURT PRECLUDED THE APPELLANT FROM A FAIR AND IMPARTIAL ADJUDICATION WHEN THE COURT IT SELF LIMITED THE SCOPE OF EVIDENCE WITH WHICH THE APPELLANT PRESENTED CONCERNING MOTIONS FILED UNDER OHIO REVISED CODE, SECTION 2953.21 RELE- VANT TRIAL COUNSEL OF RECORD RICHARD E. HACKERD, ESQUIRE. [SIC] II. THE TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S PETITION FOR POST-CONVICTION RELIEF WHEN THE FOUNDATION REQUIRED TO JUSTIFY THE NECESSITY OF THE STATUTE R.C. 2953.21(E) AND (G) ON MATTER OF TRIAL COUNSEL OF RECORD RICHARD E. HACKERD, ESQ., SPECIFICALLY LADE TO OVER COME SUMMARY DISMISSAL. [SIC] III. THE TRIAL COURT PRECLUDED THE APPELLANT FROM A FAIR AND IMPARTIAL DETERMINATION WHEN THE COURT ITSELF DECIDED WITHOUT ANY EVIDENCE OF REBUTTIAL ON PART OF STATE COUNSEL OF RECORD DIANE SMILANICK, OHIO REG. NO. #0019987, ASSISTANT PROSE- CUTING ATTORNEY, ACCORDING LACK OF JU- RISDICTION UNDER THE DOCTRINE OF RES JUDICATA. [SIC] Appellant's assignments of errors are interrelated and chal- lenge the trial court's disposition of his petition for postcon- viction relief. Consequently, this court will consider these assignments of error jointly. Succinctly, appellant's petition, made pursuant to R.C. 2953.21, requested an evidentiary hearing to review his claims that his trial counsel was ineffective and 1 More specifically, R.C. 2929.11(A)(3)(a). - 5 - that the trial court erroneously imposed an indefinite sentence in violation of R.C. 2929.11(D) and R.C. 2929.11(G). These errors, he claims, make the judgment against him voidable. The standard of review for postconviction relief is set forth in State v. Perry (1967), 10 Ohio St.2d 175. Under the doctrine of res judicata, a final judgment of conviction bars a defendant who had counsel from raising and litigating in any pro- ceeding, except in an appeal from that judgment, any defense or claim of lack of due process that was raised or could have been raised by the defendant at trial or on direct appeal. Id. at paragraph nine of the syllabus. Furthermore, in State v. Nichols (1984), 1 Ohio St.3d 40, the Supreme Court of Ohio opined, " *** post-conviction relief is not available until such time as con- ventional appellate relief has been sought." Id. at 42. See, also, State v. Blount (Aug. 26, 1993), Cuyahoga App. Nos. 65095, 65096, unreported ("It is well established that [postconviction relief] petitions are not appropriate substitutes for direct appeals."); State v. Dawson (Jan. 21, 1993), Cuyahoga App. No. 61828, unreported (trial court properly dismissed petition as moot because an appeal had not been attempted); State v. Moore (Mar. 12, 1992), Cuyahoga App. No. 62411, unreported (trial court properly held that defendant must first exhaust conventional appellate relief); State v. Wilson (Mar. 5, 1992), Cuyahoga App. No. 59983, unreported ("A petition for post-conviction relief is not appropriate until the petitioner's direct appeal has been decided."). - 6 - This court, however, in State v. Gibson (1980), 69 Ohio App.2d 91, held that a petition for postconviction relief is the appropriate remedy for ineffective assistance of counsel claims based on facts dehors the record. The Gibson court reasoned that it would be unreasonable to require a defendant to initiate a direct appeal on issues dehors the record when an appellate court is barred from addressing those issues on direct appeal. Id. at paragraph three of the syllabus. Accord State v. Brooks (Oct. 31, 1991), Cuyahoga App. No. 59724, unreported. It is necessary, therefore, to examine appellant's petition to see if appellant presented evidence dehors the record suffi- cient to avoid summary dismissal of his petition without a hear- ing. In his petition, appellant challenged his trial counsel's effectiveness on the basis of counsel's failure to file motions to dismiss the indictment and to dismiss the violence specifica- tions. When a defendant asserts a claim of ineffective assis- tance of counsel in a petition for postconviction relief, the defendant bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his counsel's ineffectiveness and the fact that he was prejudiced thereby. State v. Jackson (1980), 64 Ohio St.2d 107, syllabus. However, the only evidence attached to and referenced in appel- - 7 - 2 lant's petition were copies of documents from the record. This evidence included the indictment, appellant's motion for a bill of particulars, the bill of particulars, the docket sheet and the court's journal entry imposing appellant's sentence. Appellant has failed to present any evidence dehors the record from which this court can make a determination that he is entitled to a hearing on his claims for ineffectiveness of coun- sel. Moreover, appellant's allegation that the trial court erred in imposing an indefinite sentence is a matter that could have been raised on appeal as it also is based on facts from within 3 the record. Insofar as appellant's claims have never been heard on appeal from the original judgment and conviction, the optimum forum for appellant's arguments would be in a delayed appeal from the original judgment and conviction if so granted by the court of appeals. See Nichols, supra, at 42. Accordingly, the trial court did not err in dismissing appellant's petition without an evidentiary hearing. Appellant 2 While the record reflects that appellant requested copies of the transcripts of the proceedings in the case below, these transcripts were not part of the record on appeal. Since the presence or absence of the transcripts is not dispositive of our decision today, we decline to address the significance of their absence. 3 In its findings of fact and conclusions of law, the trial court addressed this issue and determined that, as an aggravated felony of the third degree, an indefinite sentence was properly imposed pursuant to R.C. 2929.11(A) (more specifically, R.C. 2929.11[(A][3][a]). Consequently, the court concluded that sec- tions (D) and (G) of R.C. 2929.11 were inapplicable to appellant's case. - 8 - has failed to support his petition with evidence sufficient to show that he is entitled to postconviction relief. - 9 - This cause is affirmed. 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 Cuyahoga County Court of Common Pleas 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 PATRICIA BLACKMON, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsidera- tion with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision .