COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71166 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANTHONY LAWHORN : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 10, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CR-256635 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ANTHONY LAWHORN, PRO SE CUYAHOGA COUNTY PROSECUTOR NO. A-224-547 BY: LISA REITZ WILLIAMSON, ESQ. Mansfield Correctional Inst. ASSISTANT COUNTY PROSECUTOR P.O. Box 788 The Justice Center Mansfield, Ohio 44901-0788 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Anthony Lawhorn appeals from the trial court's denial of his petition for post-conviction relief. For the reasons set forth below, we affirm. On August 28, 1990, petitioner was indicted pursuant to a three count indictment for two counts of rape, and one count of kidnapping. Each count also contained a prior aggravated felony specification which alleged that petitioner had previously been convicted of rape in November, 1982. Petitioner pleaded not guilty to the charges. Thereafter, on October 16, 1990, petitioner, through counsel, entered into a negotiated plea agreement whereby the prosecuting attorney nolled one of the rape charges and the kidnapping charge in exchange for petitioner's guilty plea to the remaining rape charge. The trial court accepted the guilty plea to the charge and sentenced petitioner to twelve to twenty-five years incarceration, with twelve years of actual prison time. Thereafter, on October 24, 1990, petitioner filed a motion to vacate the plea, and alleged that he did not understand his rights, and entered into the plea due to stress, confusion, fear, and other personal problems. Moreover, petitioner alleged that he was unaware of newly discovered evidence which may exonerate him. The trial court held an evidentiary hearing on the motion on November 20, 1990. At this hearing, petitioner testified that he did not commit the offenses set forth in the indictment. Rather, - 3 - according to petitioner, he "picked up a prostitute and had sex with her but did not force her." (Tr. 12) In addition, he stated, "All I did was I took the money back after she had sex with me." (Tr. 19) Petitioner also stated that he is a "slow learner," did not understand what he was doing, and did not have an opportunity to discuss the matter with his parents before entering the plea. In addition, defense counsel urged the court to vacate the plea because there was "new evidence that could exonerate him," and the plea was not entered of petitioner's free will. (Tr. 20) The trial court subsequently denied petitioner's motion to vacate his guilty plea. Petitioner did not file a direct appeal from that decision. On February 26, 1996, petitioner sought to vacate his conviction pursuant to R.C. 2953.21 and alleged in relevant part as follows: *** 3. At the coercion of [defense] counsel, Petitioner entered a plea of guilty to count one (1) of the indictment, Rape *** 4. In Petitioner's first interview with Mr. Kelly, at Fifth District Police Station, and witnessed by Larry Lawhorn, the Petitioner specifically stated to [his defense counsel] that he did not know anyone by the name of Mary Lawrence, and that he was not guilty of raping her, or anyone else, and that he would be willing to submit to any type of test to prove his innocence. Further, Petitioner openly stated to Mr. Kelly, that on occasion, he had solicited prostitutes for sexual favors; however, he had never raped them, and only on one occasion, had he ever had any problems with a prostitute, which was late in June, when a prostitute, going under the name of Betty Jackson, had lifted his wallet while performing oral sex on him, and he had busted her in the - 4 - act and demanded that she given him his wallet back, and that he had put her out of his car, and had threatened to call the police on her. Petitioner further stated, to Mr. Kelly, that he honestly did not know this woman in whom he had been wrongfully accused or raping, and; that his encounters with prostitutes, only involved oral sex, in which, he had willingly paid for, and of which had never involved force, and was never against the will of the prostitute, that he paid for sexual favors. (See Affidavit's of Larry Lawhorn and Anthony Lawhorn, Exhibit's B and C). * * * 14. Mr. Kelly, advised the Petitioner, that he had filed Motion's for 'Discovery' and 'Bill of Particulars' on October 9, 1990, that he was waiting for a response; but, after an extensive investigation on his part, he could find absolutely no proof that the alleged victim, was a prostitute or someone of bad character, and; that in fact, from all he had been able to uncover, the alleged victim, was an upstanding member of the community, and that he character and credibility was above reproach, and that he testimony would be far more credible than Petitioner's, as petitioner had a past record and just could not afford to testify in his own behalf. Counsel, further advised the Petitioner to carefully think about the information he, counsel, had provided to petitioner. At this point, Petitioner, requested of counsel, if he would inform Petitioner's family, of counsel's findings. (See Affidavit of Anthony Lawhorn, Exhibit C; See also October 10, 1990, Journal Entry, Exhibit H; See also Motion's for 'Discovery' and "Bill of Particulars', Exhibit's I and J). * * * That it was his best recommendation to the Petitioner and he would so advise him to enter into a plea agreement, because he was sure to be found guilty if he went to trial, and would receive a sentence of thirty (30) years or more on the minimum side, and a maximum of seventy- five (75) years. That he, counsel, would so advise Petitioner, to enter into a plea agreement he had arranged, for which, Petitioner would plead guilty, and get off with the offense of sexual battery, for which, the maximum sentence, was only a slap on the wrist, two (2) years flat time. - 5 - That he, counsel, would request that the court impose flat time. ***. [Following the entry of petitioner's guilty plea] Angela and Larry Lawhorn, advised counsel, that his so called information about Mary Lawrence, was completely incorrect, and further advised counsel, that they had just spoke to a prostitute, who stated to them that she knew Mary Lawrence, that no one could rape Mary Lawrence, that she is a prostitute, that she is a petty thief and con-artist ****." Lawhorn supported the petition with, inter alia, Lawrence's arrest record, which indicated arrests for solicitation, and felony conviction records. The state opposed the petition and filed proposed findings of fact and conclusions of law. On April 15, 1996, petitioner filed a "Motion contra" to the state's brief. The record further reveals that on July 1, 1996, petitioner wrote to the Clerk of Courts of the Court of Common Pleas for Cuyahoga County to inquire whether a final judgment had been rendered in the matter. In correspondence dated the following day, the clerk of courts notified petitioner that the petition had been denied on March 15, 1996, and findings of fact and conclusions of law were filed on April 1, 1996. There is no indication in the record that petitioner was provided with notice of these rulings as required pursuant to Civ. R. 58. The pre-printed notice section on the trial court's judgment entry was not completed by the court to direct that the parties receive notice. In addition, the docket entry for this judgment simply lists dates, and contains no indication that notice of the rulings was sent to the parties. Thereafter, on August 26, 1996, petitioner filed a notice of - 6 - appeal to this court. He assigns four errors for our review. Petitioner's first assignment of error states: CLERK OF COURTS FAILED TO GIVE APPELLANT TIMELY NOTICE OF DENIAL OF PETITION FOR POST-CONVICTION RELIEF IN VIOLATION OF RULES OF CIVIL PROCEDURE, RULE 58(B) AND RULE 5(B). Within this assignment of error, petitioner maintains that the instant appeal is timely because he was not given notice of the trial court's rulings as required by the Ohio Rules of Civil Procedure. We agree. Civ. R. 58(B) provides in relevant part as follows: (B) Notice of filing. When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ. R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure to the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App. R. 4(A). In Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, the Ohio Supreme Court held that the right to file an appeal is a property interest of which a litigant may not be deprived without due process of law. The court further concluded that the following rules would suffice to provide reasonable notice of a final appealable order: a. Within three days of the entry of any final appealable judgment or order, the clerk of - 7 - courts shall serve a notice of the entry in any manner provided in Civ.R. 5, upon every party who is not in default for failure to appear. b. The clerk shall make a notation in the case docket indicating that the required service has been made. c. Once the clerk has served notice of the entry and entered the appropriate notation in the docket, the notice shall be deemed to have been served. The failure of any party to receive such notice shall not affect the validity of the judgment or the running of the time for appeal. Further, a party's actual notice of the judgment entry is insufficient to begin the time running for appeal, where there has not been service from the clerk of court in the manner set forth in Atkinson, supra. See Welsh v. Tarantelli (1992), 76 Ohio App.3d 831, 834. In this instance, the trial court's judgment entry does not contain an endorsement by the court directing the clerk to serve the parties, pursuant to Civ.R. 58(B). In addition, the appearance docket simply lists dates for this entry and does not contain a notation indicating that the required notice was sent. We are therefore unable to conclude that service of notice of the trial court's judgment entries was ever effected. In light of petitioner's property interest in the right to appeal from an adverse judgment, he was entitled to reasonable notice of the trial court's appealable orders. Since we are unable to conclude that petitioner received proper notice of the judgment entered against him, the time limits for filing a notice of appeal were not - 8 - exhausted and this court therefore maintains jurisdiction over the action. Accord Britford v. Duncan (November 12, 1993), Franklin App. No. 93AP-385, unreported. The first assignment of error is well-taken, and the substantive merits of this appeal will be addressed herein. Petitioner's second assignment of error states: APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE TRIAL COURT DENIED PETITION FOR POST-CONVICTION RELIEF WITHOUT GIVING APPELLANT AN OPPORTUNITY TO RESPOND TO THE APPELLEE'S POSITION. Petitioner next complains that the trial court erred in denying his petition for post-conviction relief prior to the filing of petitioner's reply to the state's brief in opposition. R.C. 2953.21(D) describes the pleadings and motions which may be filed in support of a petition for post-conviction relief and provides in relevant part as follows: Within ten days after the docketing of the petition, or within any further time that the court may fix for good cause shown, the prosecuting attorney shall respond by answer or motion. Within twenty days from the date the issues are made up, either party may move for summary judgment. The right to summary judgment shall appear on the face of the record. Further, R.C. 2953.21(E) provides in relevant part as follows: Unless the petition and the files and records of the case show the petitioner is not entitled to relief. the court shall proceed to a prompt hearing on the issues ***. From the foregoing, we are unable to conclude that a trial court must wait until a petitioner files a reply to the prosecuting - 9 - attorney's response before it may rule upon the petition for relief from judgment. Rather, the court is to consider the petition, the prosecuting attorney's response, and timely filed motions for summary judgment. The second assignment of error is overruled. Petitioner's third assignment of error states: TRIAL COURT ERRED IN DISMISSING THE APPELLANT'S PETITION WITHOUT HEARING WHERE APPELLANT'S PETITION WITH CRIMINAL RECORDS OF ALLEGED VICTIM, FORENSIC LABORATORY REPORT, SUPPORTING AFFIDAVITS CONTAINING SUFFICIENT OPERATIVE FACTS AND EVIDENCE DEHORS THE RECORD, AND EVIDENCE IN THE RECORD, ENOUGH TO DEMONSTRATE LACK OF COMPETENT COUNSEL, AND THAT APPELLANT WAS PREJUDICED BY COUNSEL'S INEFFECTIVENESS TO THE EXTENT TO REQUIRE THE REQUESTED EVIDENTIARY HEARING. Petitioner next asserts that the trial court erred in denying his petition for post-conviction relief without holding an evidentiary hearing. Petitions for post-conviction relief are governed by R.C. 2953.21 which provides in relevant part as follows: (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. * * * (C) Before granting a hearing the court shall determine whether there are substantive grounds for relief. *** - 10 - * * * (E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues, hold the hearing, and make and file written findings of fact and conclusions of law upon entering judgment. Thus, a hearing is not mandated on every petition for post- conviction relief. State v. Ledger (1984), 17 Ohio App.3d 94, 96. Rather, the pivotal concern is whether there are substantive grounds for relief which would warrant a hearing based upon the petition, the supporting affidavit, and the files and records of this cause. State v. Jackson (1980), 64 Ohio St.2d 107, 110. Moreover, where a petitioner seeks post-conviction relief on the basis of issues which were raised or could have been raised on appeal, the petition is properly denied by application of the doctrine of res judicata. See State v. Ishmail (1981), 67 Ohio St.2d 16, 18. Likewise, a petitioner's challenge to the effective- ness of his trial counsel on the grounds of the purported inadequacy of his investigation and preparation of a defense is precluded where the petitioner could have raised the issue on direct appeal. See State v. Apanovich (1991), 70 Ohio App.3d 758, 762. To overcome the res judicata bar, the evidence must show that the petitioner could not have appealed the original constitutional claim based on the information in the original trial record. State v. Combs (1994), 100 Ohio App.3d 90, 97-98. Generally, the petitioner must provide evidence outside the record to demonstrate - 11 - that after conviction, he obtained evidence to support the claim. Id. Nonetheless, where the evidence outside the record does not meet a minimum level of cogency, a hearing is not required. Id., at 98. Finally, a petitioner who claims ineffective assistance of counsel must, in order to overcome the presumption that his counsel was effective, submit sufficient evidentiary facts which, if proven, would show that the petitioner was prejudiced by ineffective counsel. State v. Smith (1987), 36 Ohio App.3d 162, 163. We further note that where a criminal defendant charged with rape attempts to introduce that he in fact had sex with a consenting prostitute, R.C. 2907.02, the rape shield law, renders inadmissible evidence concerning the victim's sexual activity with one other than the accused in order to establish the victim's consent. See State v. Ferguson (1983), 5 Ohio St.3d 160, paragraph two of the syllabus. Further, in State v. Larson (November 22, 1993), Cuyahoga App. No 63001, unreported at 17, this court stated: We also reject Larson's argument that trial counsel erred in failing to produce evidence that Laureano had a pending arrest warrant for solicitation. The date of the warrant was nearly five months after the date Laureano was raped. It was irrelevant as to whether she was a prostitute on the date of the rape. In addition, the existence of the warrant would not have been admissible for impeachment purposes since Evid. R. 609 provides that only convictions may be used for impeachment purposes. It also could not have been admitted as evidence that Laureano had a reputation as a prostitute. R.C. 2709.02(D) specifically precludes that use of reputation evidence of the victim's sexual activity unless it pertains to the origin of semen, pregnancy, or disease or - 12 - the victim's past sexual relationship with the offender. *** Since the arrest warrant could not have been properly used for any purpose at trial, trial counsel did not err in failing to produce information about it. Applying all of the foregoing, we note that petitioner did not file a direct appeal from his guilty plea, or from the trial court's denial of his motion to vacate that plea. Petitioner has, however, supported his petition for post-conviction relief with considerable evidence outside the original record. Nonetheless, we do not find the evidence to meet the minimal level of cogency which compels a hearing since the evidence could not be introduced to support his claim that "no one could rape Mary Lawrence, that she is a prostitute." Evidence concerning the past sexual experiences of Mary Lawrence would have been inadmissible to support petitioner's claim that he merely had consensual sex with a prostitute. Accord Larson, supra. We are therefore unable to conclude that counsel performed deficiently and prejudiced the defense. Petitioner's third assignment of error is overruled. Petitioner's fourth assignment of error states: TRIAL COURT ERRED IN FAILING TO PERSONALLY ADVISE THE APPELLANT OF RIGHT TO CONFRONT WITNESSES AGAINST HIM PRIOR TO ACCEPTING PLEA OF GUILTY TO COUNT ONE OF THE INDICTMENT PURSUANT TO AND IN VIOLATION OF CRIMINAL RULE 11(C)(2)(c), AND UNITED STATES CONSTITUTION, SIXTH AMENDMENT, AND AGAINST THE CONSTITUTION OF THE STATE OF OHIO, ARTICLE ONE, SECTION TEN. Within his final assignment of error, petitioner asserts that the trial court erred in accepting his guilty plea by failing to - 13 - personally advise the petitioner of his right to confront the witnesses against him. An appellate court cannot hear and determine on appeal a cause of action which was not tried in a court of original jurisdiction. Fisco v. East Cleveland (1950), 59 O.L.A. 385, 388. Thus, issues not raised in the pleadings in the lower court and not passed upon in that court cannot be raised on appeal, even though the question is worthy of the gravest consideration. Republic Steel Corp. Board of Revision of Cuyahoga County (1963), 175 Ohio St. 179, 184-185. This rule is also applicable where a constitutional claim is first raised on appeal. See Lucas v. Gee (1995), 104 Ohio App.3d 423, 427. In this instance, there has been no direct appeal from the trial court's denial of his motion to vacate petitioner's guilty plea. We further note that petitioner's petition for post- conviction relief, from which this appeal derives, did not assert that petitioner was not apprised of his right to confrontation in the plea proceedings. Rather, the petition was directed to the issue of the effectiveness of petitioner's trial counsel. We are therefore unable to consider it herein. Accord Rose Hill Chapel- Ciriello Funeral Home v. Ohio Board of Embalmers & Funeral Directors (1995), 105 Ohio App.3d 213, 220. The fourth assignment of error is overruled. Affirmed. - 14 - - 15 - 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. SPELLACY, J., AND ROCCO, J., CONCUR ANN DYKE 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 of decision by the .