COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70504 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAMBERT DEHLER : : Defendant-appellant : : DATE OF ANNOUNCEMENT : DECEMBER 5, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CR-288956 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. LAMBERT DEHLER, PRO SE Cuyahoga County Prosecutor #273-819 DIANE SMILANICK, ESQ. Trumbull Correction Institute Assistant County Prosecutor P.O. Box 901 8th Floor, Justice Center Leavittsburg, OH 44430-0901 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. The only issue in this appeal is whether the trial court erred by dismissing petitioner Lambert Dehler's petition for post- conviction relief on grounds that principles of res judicata barred further review. We find petitioner's argument that he unknowingly chose to prosecute his own defense could have been raised either on direct appeal or on application to reopen the appeal. We affirm. The grand jury returned a twenty-five count indictment charging petitioner with twelve counts of felonious sexual penetration and thirteen counts of gross sexual imposition relating to a victim less than thirteen years of age. Although the court appointed counsel, petitioner chose to proceed pro se, with the public defender assisting at trial. In that capacity he pleaded not guilty by reason of insanity and ultimately admitted performing the acts listed in the indictment. A jury found petitioner guilty of five counts of felonious sexual penetration and thirteen counts of sexual imposition. We affirmed the conviction in State v. Dehler (July 14, 1994), Cuyahoga App. No. 65716, unreported. The petition for postconviction relief set forth the single ground that the trial court violated petitioner's constitutional right to counsel because it failed to assure itself that petitioner understood the "dangers and disadvantages of self-representation." The state opposed the petition because it believed the allegations relating to self-representation could have been raised on direct appeal and were therefore barred by principles of res judicata. - 3 - In findings of fact and conclusions of law the trial court found the waiver of counsel issue could have been fully adjudicated by judgment of conviction or on direct appeal; therefore, the court concluded principles of res judicata applied to bar the claim. Res judicata applies in postconviction proceedings to bar any claim that was or could have been raised at trial or on direct appeal. State v. Perry (1965), 10 Ohio St.2d 175, paragraph nine of the syllabus. Petitioner has had previous opportunities to raise this claim. By his own admission, this was a claim that could have been presented on direct appeal but for appellate counsel's refusal to do so. Additionally, he raised the claim in an App. R. 26(B) application for reopening. We found principles of res judicata barred assertion of the claim because it could have been raised on direct appeal to the Ohio Supreme Court. See State v. Dehler (July 14, 1994), Cuyahoga App. No. 65716, unreported, reopening disallowed (Feb. 22, 1995), Motion No. 54503, affirmed (1995), 73 Ohio St.3d 307. Moreover, we concluded a substantive review of the proposed assignments of error convincingly demonstrated they lacked any merit. Id. By any measure, the ground for relief stated in the petition for postconviction relief has been, or could have been, raised in previous proceedings. The trial court did not err by finding the claim barred by res judicata. The assigned error is overruled. Judgment affirmed. - 4 - - 5 - 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 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. DYKE, P.J. NAHRA, J., CONCUR JUDGE JOHN T. PATTON 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 reconsideration 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 by the .