COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70532 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : RAMON THOMPSON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. CR-315262. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Diane Smilanick, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Ramon Thompson, pro se Inmate No. 301218 P.O. Box 1812 Marion, OH 43301 -2- DAVID T. MATIA, P.J.: Ramon Thompson, defendant-appellant, appeals from the judgment of the trial court, case no. CR-315262, which denied his petition for post-conviction relief. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On November 9, 1994, Ramon Thompson, defendant-appellant, was indicted by the Cuyahoga County Grand Jury in a three count indictment. Count one alleged that defendant-appellant did, on September 8, 1994, commit aggravated robbery in violation of R.C. 2911.01. Count one contained a firearm specification and an aggravated felony specification arising out of defendant- appellant's prior convictions of the offenses of kidnapping and rape in Jackson, Mississippi on or about September 13, 1978. Count two alleged that defendant-appellant was guilty of carrying a concealed weapon in violation of R.C. 2923.12. Count two contained a violence specification also arising out of the prior convictions of kidnapping and rape in Jackson, Mississippi. The third count of the indictment charged defendant-appellant with having a weapon while under disability in violation of R.C. 2923.13. Count three contained a firearm specification as well as the identical violence specification contained in count two. On November 16, 1994, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all three counts contained in the indictment. -3- On December 9, 1994, defendant-appellant withdrew his formerly entered plea of not guilty and entered a plea of guilty to the amended indictment. Count one of the indictment was amended from aggravated robbery to receiving stolen property, motor vehicle, in violation of R.C. 2913.51. All specifications were deleted from count one. Counts two and three of the indictment remained the same, however the violence specification was deleted from count two and the firearm specification was deleted from count three. On December 16, 1994, the trial court sentenced defendant- appellant to serve a one and one-half year term of incarceration on counts one and two as well as a one and one-half to five year term of incarceration on count three. All time was ordered to be served concurrently. On March 25, 1996, defendant-appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21. The central argument set forth in defendant-appellant's petition was that the criminal conduct of which defendant-appellant was convicted did not take place in Ohio, but rather, occurred in Jackson, Mississippi. On April 11, 1996, the state filed a motion to dismiss defendant- appellant's petition for post-conviction relief. On April 16, 1996, the trial court denied defendant-appellant's petition for post-conviction relief. (See Judgment Entry, Vol. 1483, Pg. 207- 213.) On April 18, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. -4- II. FIRST ASSIGNMENT OF ERROR Ramon Thompson's, defendant-appellant's, first assignment of error states: THE TRIAL COURT DENIED THE APPELLANT HIS DUE PROCESS, EQUAL PROTECTION, AND OTHER FUNDAMENTAL CONSTITUTIONAL RIGHTS CONCERNED WITH ADEQUATE AND FULL ACCESS TO COURT, WHEN IT ABUSED DISCRETION BY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF, AFTER THE LOWER COURT'S "PLAIN ERROR SWEEP" OF SAME FAILED TO FIND THE CLEAR CONSTITUTIONAL RIGHTS VIOLATIONS IN THE FILES AND RECORDS BEFORE THE LOWER COURT, ON WHICH THE SAID SWEEP WAS CONDUCTED. A. THE ISSUE RAISED: DENIAL OF PETITION FOR POST-CONVICTION RELIEF. Defendant-appellant argues, through his first assignment of error, that the trial court erred in denying his petition for post-conviction relief. Specifically, defendant-appellant maintains that the trial court lacked subject matter jurisdiction in the underlying action. Defendant-appellant argues that the criminal conduct of which he was ultimately convicted occurred in Jackson, Mississippi, not Cuyahoga County, Ohio. Defendant- appellant argues further that his plea of guilty to the amended offenses did not constitute a knowing and voluntary plea pursuant to Crim.R. 11 in that the firearm specification contained in count one of the indictment somehow is inconsistent with and precluded convictions of carrying a concealed weapon and having a weapon while under disability as set forth in counts two and three of the indictment. Defendant-appellant also maintains that the first count of the indictment was improperly amended from aggravated robbery, an aggravated felony of the first degree, to receiving stolen -5- property, motor vehicle, a second degree felony. Lastly, defendant-appellant contends that he was deprived of his constitutional right to effective assistance of counsel. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR PETITION FOR POST-CONVICTION RELIEF. R.C. 2953.21(A), which governs petitions for post-conviction relief, provides in pertinent part: (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. -6- The post-conviction relief process permits criminal defendants who allege that their conviction is void or voidable on state or federal constitutional grounds to petition the trial court for an evidentiary hearing pursuant to R.C. 2953.21(A). State v. Isham (Aug. 23, 1995), Montgomery County App. No. 92-CR-2729/2. The petitioner bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his claim and merit a hearing. State v. Hamilton (Dec. 29, 1993), Clark App. No. 3015, unreported, citing State v. Kopper (1983), 5 Ohio St.3d 36. A petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner failed to submit evidentiary documents containing sufficient operative facts. State v. Scott (1989), 63 Ohio App.3d 304; State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus. C. STANDARD OF REVIEW FOR RES JUDICATA. Res judicata, also known as "claim preclusion" is the doctrine under which a final judgment on the merits bars a party from bringing another lawsuit based upon the same claim. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, paragraph one of the syllabus. Res judicata extends to bar not only claims which actually were litigated, but "every question which might properly have been litigated." Stromberg v. Bratenahl Bd. of Edn. (1980), 64 Ohio St.2d 98. Under the doctrine of res judicata, constitutional issues cannot be considered in post-conviction proceedings under R.C. -7- 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. Issues properly before a court on a petition for post-conviction relief are issues which could not have been raised on direct appeal due to the fact that the evidence supporting such issues is dehors the record. State v. Milanovich (1975), 42 Ohio St.2d 46; State v. Durr (July 28, 1994), Cuyahoga App. No. 65958, unreported. If a court finds that an issue raised in a petition for post- conviction relief has, or should have been raised on direct appeal or in a previous post-conviction relief motion, the trial court may dismiss the petition on the grounds of preclusion. State v. Spisak (April 13, 1995), Cuyahoga App. No. 67229, unreported. D. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S PETITION FOR POST-CONVICTION RELIEF. In the case sub judice, a review of the indictment demonstrates that the trial court did have subject matter jurisdiction in this action. Contrary to defendant-appellant's argument, he was not indicted in Cuyahoga County, Ohio for crimes which occurred in the State of Mississippi. All three counts of the indictment specifically aver that each underlying offense took place in Cuyahoga County, Ohio. R.C. 2901.11, which sets -8- forth jurisdiction in criminal matters, provides in pertinent part: (A) A person is subject to criminal prosecution and punishment in this state if any of the following occur: (1) He commits an offense under the laws of this state, any element of which takes place in this state; (2) While in this state, he conspires or attempts to commit, or is guilty of complicity in the commission of an offense in another jurisdiction, which offense is an offense under both the laws of this state and such other jurisdiction; * * * Clearly, Cuyahoga County, Ohio had jurisdiction to prosecute defendant-appellant in this case. Apparently, defendant-appellant has confused the aggravated felony specification contained in count one and the violence specification contained in counts two and three which refer to defendant-appellant's prior conviction in Jackson, Mississippi of the offenses of kidnapping and rape. R.C. 2941.142, which provides for actual incarceration upon a second conviction for certain felonies; specification of prior offense, states in pertinent part: Imposition of a term of actual incarceration upon an offender pursuant to division (B)(1)(b), (2)(b), or (3)(b) of section 2929.11 of the Revised Code because the offender has previously been convicted for or pleaded guilty to an aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is -9- substantially equivalent to any aggravated felony of the first, second, or third degree or to an aggravated murder or murder is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender has previously been convicted or pleaded guilty to such an offense. * * * R.C. 2941.142 clearly provides that a conviction in another state of an offense which is similar or substantially the same as an aggravated felony in Ohio or of an offense which is similar or substantially the same as a crime of violence in Ohio can form the basis of an aggravated felony specification or violence specification. Defendant-appellant's prior convictions in Jackson, Mississippi were merely applied to the underlying charges as specifications pursuant to R.C. 2941.142. Defendant- appellant was not, as he maintains, charged for offenses which occurred in the State of Mississippi. Defendant-appellant's remaining arguments set forth in the first assignment of error, i.e., whether the plea was knowing and voluntary, whether the indictment was improperly amended and the effective assistance of counsel claim, could have been raised at the appellate level on direct appeal or through a delayed appeal, neither of which defendant-appellant attempted. Accordingly, defendant-appellant's remaining claims are now barred by the doctrine of res judicata as the trial court properly determined. State v. McCollough, supra; State v. Phillips (1993), 88 Ohio App.3d 409. -10- Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Ramon Thompson's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT WHILE ABUSING ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR EVIDENTIARY HEARING, A PROCESS CLEARLY DUE. A. THE ISSUE RAISED: EVIDENTIARY HEARING. Defendant-appellant argues, through his second assignment of error, that the trial court erred in not conducting an evidentiary hearing on the petition for post-conviction relief. Specifically, defendant-appellant maintains that he was clearly entitled to such a hearing pursuant to R.C. 2953.21. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR EVIDENTIARY HEARING. A trial court is not required to hold an evidentiary 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 itself, the supporting affidavits and the files and records in the case. State v. Strutton (1988), 62 Ohio App.3d 248. If the -11- trial court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. State v. Isham, supra. C. THE TRIAL COURT DID NOT ERR BY DISMISSING THE PETITION WITHOUT AN EVIDENTIARY HEARING. For the reasons previously set forth in this court's discussion of defendant-appellant's first assignment of error, it is apparent that defendant-appellant failed to present evidence of a weight and quality to demonstrate substantive grounds for relief to warrant an evidentiary hearing pursuant to the statutory requirements set forth in R.C. 2953.21(C). It is well established that where the evidence presented is specious, an evidentiary hearing is not required. State v. Cole (1982), 2 Ohio St.3d 112; State v. Apanovitch (Aug. 8, 1996), Cuyahoga App. No. 70009, unreported. Accordingly, the trial court did not err in dismissing defendant- appellant's petition for post-conviction relief without conducting an evidentiary hearing. Defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -12- 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. DYKE, J. and O'DONNELL, J., CONCUR. DAVID T. MATIA PRESIDING 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 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 .