COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70668 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DUANE A. SMITH : : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court No. CR-235550 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES DUANE A. SMITH, Pro Se Cuyahoga County Prosecutor #224-661 ARTHUR A. ELKINS, Assistant P.O. Box 1812 8th Floor-Justice Center Marion, Ohio 43301 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App. R. 11.1 and Local R. 25 which allow for statements of the reasons for our decision to be in brief and conclusionary form. Duane Smith, a.k.a. Jameel Hakeem, a.k.a. Duane Thomas, appeals pro se the judgment of the Common Pleas Court denying his petition for post-conviction relief. The record reflects that on November 1, 1989, the court sentenced appellant to consecutive terms of 5-10 and 3-5 years with a three-year actual incarceration firearm penalty following jury verdicts finding him guilty of carrying a concealed weapon and having a weapon while under a disability. Following his conviction, Smith appealed and the trial court appointed his trial counsel as appellate counsel. However, in May, 1991, because of his appointment as judge of the Cleveland Municipal Court, counsel sought leave to withdraw as appellate counsel, and this court appointed the Public Defender as new appellate counsel. The Public Defender filed a motion to supplement the appellate brief, which this court granted, but limited the supplemental brief to assignments of error already contained in the original brief. This court, then, affirmed the judgment of the trial court. - 3 - In November, 1992, Smith filed a motion for delayed reconsideration of his appeal in which he incorporated an allegation of ineffective assistance of trial counsel. This court denied the motion. Thereafter, in August, 1995, Smith filed a petition for post-conviction relief in the trial court alleging ineffective assistance of trial counsel. The trial court denied the petition, concluding it barred by the doctrine of res judicata, and Smith now appeals from that decision. Smith argues the trial court erred in denying his petition for post-conviction relief alleging his claim is not barred by the doctrine of res judicata because his ineffective assistance of trial-counsel-claim could not have been raised on appeal since the trial court appointed his trial counsel as appellate counsel, and this court would not permit the new appellate counsel to supplement the brief with arguments not assigned in the first brief. The state, on the other hand, argues the trial court properly denied the petition for post-conviction relief because res judicata barred his claim. The issue for our consideration, then, is whether the trial court correctly concluded Smith's petition barred by the doctrine of res judicata. In State v. Perry (1967), 10 Ohio St.2d 175, the Ohio Supreme Court stated in paragraph nine of its syllabus: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant - 4 - * * * from raising * * * any defense * * * that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from the judgment. (Emphasis in original.) In this case, our examination of the record reveals that this court previously addressed Smith's ineffective assistance of trial counsel claim at the time it ruled on his motion for delayed reconsideration in State v. Smith (February, 18, 1993), Cuyahoga App. No. 58918, Motion No. 33641, unreported. Our court specifically stated, "As to the assertion of ineffective assistance of counsel against his first attorney, we do not find that appellant has alleged a colorable claim." Therefore, pursuant to Perry, supra, this claim is barred by the doctrine of res judicata, and the trial court properly denied the petition for post-conviction relief. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant 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. CHIEF JUSTICE LEO M. SPELLACY JUDGE TERRENCE O'DONNELL 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). .