COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70552 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MICHAEL BROCKWELL : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 12, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CR-302229. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Sherry F. McCreary, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Michael Brockwell, pro se No. 290-235 P.O. Box 901 T.C.I. Leavittsburg, OH 44430 -3- 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 Court of Common Pleas and the briefs of counsel. Michael Brockwell, defendant-appellant, appeals from the trial court's denial of his petition for post-conviction relief pursuant to R.C. 2953.21. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On September 13, 1993, Michael Brockwell, defendant-appellant, was involved in an incident in which he forcibly entered the automobile of Mrs. Irene Budjas and her five children and attempted to force Mrs. Budjas to drive him out of the neighborhood. Apparently, a large group of people had been pursuing defendant- appellant after witnessing him take approximately $19 from a patron of a local tavern. It was defendant-appellant's intention to escape from this group in Mrs. Budjas' automobile. However, in spite of defendant-appellant's threats, Mrs. Budjas refused to drive defendant-appellant from the neighborhood. The group then apprehended defendant-appellant who apologized, returned the money and fled from the scene on foot. On November 4, 1993, defendant-appellant was indicted by the Cuyahoga County Grand Jury on six counts of kidnapping in violation of R.C. 2905.01 with an aggravated felony specification arising out of a prior robbery conviction in violation of R.C. 2911.02. On -4- November 16, 1993, defendant-appellant was arraigned whereupon a plea of not guilty was entered to the indictment. On February 9, 1994, defendant-appellant executed, in open court and on the record, a written waiver of his right to a jury trial. A bench trial began that day. At the close of the state's case, defendant-appellant's Crim.R. 29 motion for judgment of acquittal was granted by the trial court as to counts two through six of the indictment. Defendant-appellant was subsequently found guilty of count one of the indictment, kidnapping with an aggravated felony specification, and sentenced to an actual term of incarceration of ten to twenty-five years at the Lorain Correctional Institution. Defendant-appellant filed a timely notice of appeal from his conviction in the trial court. On January 26, 1995, this court affirmed the judgment of conviction. See State v. Brockwell (Jan. 26, 1995), Cuyahoga App. No. 67134, unreported. The Ohio Supreme Court denied defendant-appellant's motion for leave to appeal. On February 9, 1996, defendant-appellant filed a petition to set aside conviction pursuant to R.C. 2953.21 in which defendant- appellant maintained that he did not knowingly, intelligently and voluntarily waive his constitutional right to a jury trial. On February 26, 1996, the state filed a motion to dismiss defendant- appellant's petition for post-conviction relief. On March 26, 1996, the trial court granted the state's motion to dismiss and issued findings of fact and conclusions of law. -5- On April 22, 1996, defendant-appellant filed a timely notice of appeal from the trial court's dismissal of his petition for post- conviction relief. II. ASSIGNMENTS OF ERROR Michael Brockwell's, defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO DISMISS APPELLANT'S PETITION FOR POST-CONVICTION RELIEF. Michael Brockwell's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED IN FINDING THAT APPELLANT WAS FULLY INFORMED OF HIS RIGHT TO A JURY TRIAL. Defendant-appellant argues, through his first and second assignments of error, that the trial court erred in dismissing his petition for post-conviction relief without conducting an evidentiary hearing. Specifically, defendant-appellant maintains that he did not knowingly, intelligently and voluntarily waive his constitutional right to a jury trial since the consequences of such waiver were never fully explained to him. Defendant-appellant's first and second assignments of error are not well taken. 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 -6- 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. 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. -7- Gen. Tel. Co. (1969), 20 Ohio St.2d 108, paragraph one of 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. 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 present case, defendant-appellant maintains that his trial counsel failed to fully inform him of the consequences of the jury trial waiver and therefore the waiver was not knowing, intelligent and voluntary. Essentially, defendant-appellant argues that he was denied effective assistance of counsel. A review of defendant-appellant's direct appeal demonstrates that an effective assistance of counsel claim was in fact set forth, although it was based upon alternative grounds. Clearly, defendant-appellant could have raised this challenge to his waiver of his right to a jury trial at the appellate level on direct appeal or through a delayed appeal and failed to do so. Accordingly, defendant-appellant's claim is now barred by the doctrine of res judicata as the trial court properly determined. See State v. McCollough, supra. For the foregoing reasons, this -8- court finds that the trial court properly dismissed defendant- appellant's petition for post-conviction relief. Defendant-appellant's first and second assignments of error are not well taken. Judgment of the trial court is affirmed. -9- 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. DAVID T. MATIA, PRESIDING JUDGE DIANE KARPINSKI, 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 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 clerk per App.R. 22(E). See, also S.Ct. Prac.R. II, Section 2(A)(1). .