COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70695 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN A. HINES : PER CURIAM : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 19, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-240106 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. JOHN A. HINES, Pro Se Cuyahoga County Prosecutor #216772 GEORGE J. SADD, ESQ. 2500 S. Avon-Belden Road Assistant County Prosecutor Grafton, Ohio 44044 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: Defendant-appellant, John A. Hines, appeals from the denial of his petition for post-conviction relief and assigns the following error for our review: THE APPELLANT'S PLEA OF GUILTY IS NOT KNOWING, VOLUNTARY, NOR INTELLIGENT, WHEN THE TRIAL COURT FAILS TO SENTENCE THE APPELLANT AS IS REQUIRED BY LAW, AND FAILS TO EXPLAIN WHAT "ACTUAL INCARCERATION" MEANS, THUS PRECLUDING THE APPELLANT FROM UNDERSTANDING THE CONSEQUENCES OF THE PLEA, VIOLATING THE APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ALSO VIOLATING THE OHIO CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16, AS WELL AS CRIMINAL RULE 11. Having reviewed the record of the proceedings and the legal arguments presented by the party, we affirm the decision of the trial court. Hines was indicted for voluntary manslaughter with an aggravated felony specification. Hines entered a plea to the indictment and was sentenced to a term of 10 to 25 years. Hines filed a motion for post-conviction relief, and argued his plea was not voluntary because the trial court failed to inform him that, with an aggravated felony specification, R.C. 2929.11(B)(1)(b) and 2941.142 required a sentence with a term of actual incarceration. The trial court denied the petition without a hearing and found the claim was capable of being raised on direct appeal. This appeal followed. In his sole assignment of error, Hines argues his sentence was a nullity, and he relies upon this court's opinion in State v. - 3 - Nickerson (Jan. 18, 1990), Cuyahoga App.No. 56424, unreported (held sentence a nullity and vacated plea). The facts in Nickerson are similar to the facts in this case; in both cases, the trial court failed to inform the defendant the conviction required a term of actual incarceration and failed to impose the statutorily mandated sentence. Nonetheless, these cases are procedurally different; Nickerson involved a direct appeal but this case involves an appeal from a petition for post-conviction relief. The doctrine of res judicata precludes the petitioner in a post-conviction relief proceeding from raising any issue which could have been raised in a direct appeal from the original conviction, even if no direct appeal was taken. E.g. State v. Ishmail (1981), 67 Ohio St.2d 16, 18. (where petitioner alleged sentencing court did not comply with Crim.R. 11). The doctrine of res judicata applies equally to matters involving statutorily mandated sentencing when challenged in a petition for post- conviction relief under R.C. 2953.21. See State v. Harmon (1995), 103 Ohio App.3d 595, 597 (held post-conviction challenge to application of R.C. 2941.143 barred by res judicata). In this case, Hines filed a petition for post conviction relief rather than a direct appeal. He argued the trial court failed to properly apply R.C. 2929.11(B)(1)(b) and 2941.142 and failed to comply with Crim.R. 11. Hines clearly raises issues that could have been reviewed on direct appeal using the record and the transcript. See Nickerson, supra. Consequently, the issues raised in his petition were barred by the doctrine of res judicata and the - 4 - trial court properly denied the petition. Judgment affirmed. - 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, PRESIDING J. PATRICIA ANN BLACKMON, JUDGE JAMES M. PORTER, 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 .