COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71234, 71235 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION MILTON COTTON : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 8, 1997 CHARACTER OF PROCEEDING: Civil appeals from Cuyahoga County Common Pleas Court Case Nos. CR-257742, CR-259650 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 RANDI M. OSTRY, ESQ. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This accelerated appeal was brought pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of the accelerated appeal is to allow this court to render a decision in brief and conclusionary fashion. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant appeals from the judgment of the trial court denying his second petition for postconviction relief ("PCR"). Defendant was convicted by a jury in Case No. CR-257742 of theft, failure to comply with an order or signal of a police officer, and possession of criminal tools, with violence specifications. In this case, the state presented evidence that defendant was found with a tool in his hand working on the steering column of a jeep with a broken window. After being discovered, defendant fled from the police. This conviction was affirmed by this court. State v. Cotton (Mar. 18, 1993), Cuyahoga App. No. 62104, unreported. In Case No. CR-259650, a jury convicted defendant of receiving stolen property along with violence specifications. In this case the state presented evidence that defendant was found driving a Buick with no plates and no driver's license. The Buick had been reported as stolen earlier in the week. This conviction was likewise affirmed by this court. State v. Cotton (Mar. 18, 1993), Cuyahoga App. No. 62105, unreported. The Ohio Supreme Court declined to review either case in October of 1993. - 3 - Thereafter, defendant filed identical petitions for both case numbers on September 9, 1994. These petitions alleged that "certain evidence was withheld and suppressed from defendant" and that "false testimony was presented against defendant." The evidence presented in support of these PCR's was a proffer by defense counsel in an unrelated criminal case in which he averred that defendant was set up by the police, who supplied defendant with stolen cars and then arrested him. Both PCRs were dismissed by the trial court. This court affirmed the dismissal and held that the unsworn conclusionary statements by defense counsel did not satisfy defendant's burden in order to receive a hearing, let alone postconviction relief. State v. Cotton (Feb. 1, 1996), Cuyahoga App. Nos. 69394, 69425, unreported at 6. Defendant then filed his second PCR on June 5, 1996. Again defendant alleged the same contention that "certain evidence was withheld and suppressed from the defendant" and "false testimony was presented against defendant." The only difference between the first and second petitions is that the second PCR was supported by defendant's affidavit, in which he averred that he received the stolen vehicles from an undercover police officer. The trial court dismissed this second PCR on grounds of res judicata because the same claim had been made in the prior PCR. Defendant timely appealed and raised the following two assignments of error. I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS POST- CONVICTION PETITION WAS DISMISSED ON THE BASIS OF RES JUDICATA WHEN HE NEVER HAD FULL AND FAIR HEARING ON THE MERITS OF HIS CLAIMS. - 4 - II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN EXCULPATORY EVIDENCE HAS BEEN WITHHELD FROM HIM WHICH IS LATER DISCOVERED. In the prior appeal of the dismissal of the first PCR, this court held that defendant could not obtain postconviction relief because defendant failed to present evidence that the stolen car was given to him by the police and that false testimony was presented against him. The court stated as follows: In the present case, defendant-appellant relies solely on his allegation that the prosecutor, during a colloquy with the court and defense counsel at the motion hearing in trial court case number 281730-31, stipulated to the truth of what defendant's counsel proffered Mr. Cotton would testify to in that case, to-wit, that the police somehow set up Mr. Cotton or otherwise entrapped him by supplying him with a stolen vehicle. Mr. Cotton did not testify to these allegations. Rather, these allegations were the unsworn, self-serving and conclusory statements of defense counsel made to the trial court in arguing the pending motions in that other case. Furthermore, we do not agree with defendant-appellant's assertion that there was, in fact, a stipulation entered into by the prosecutor in the other case motion hearing relative to the truth of defense counsel's assertions. The stipulation the prosecutor stated he would make referred to accepting the fact that Mr. Cotton would testify in accordance with what defense counsel asserted, not that the substance of Mr. Cotton's proffered testimony was, in fact, the truth. These statements of defense counsel do not satisfy the evidentiary burden placed on the petitioner to impose an evidentiary hearing, let alone grant post-conviction relief. State v. Cotton (Feb. 1, 1996), Cuyahoga App. No. 69394, 69425, unreported. Now, in bringing the present petition, defendant reasserts the identical argument, that an undercover police officer provided him with the stolen automobile and this information was suppressed by the law enforcement officials and the prosecutor's office. The difference is that now, defendant states these allegations in the form of an affidavit which is attached to his - 5 - petitions. The issue presently is whether the trial court erred by denying this second petition on res judicata grounds. RES JUDICATA The doctrine of res judicata provides that "[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus. In other words, a final judgment or decree between the parties in litigation is conclusive as to all claims which were or might have been litigated in the first lawsuit. Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69. Therefore, "res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it." National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, at 62. The Supreme Court explained the rationale for this rule. Now what is the effect of their lack of diligence and the resulting dismissal by the Court of Appeals? Paragraph four of the syllabus in the case of Pollock v. Cohen, 32 Ohio St., 514, states: "Where a case is brought a second time on the same record, by petition in error, all questions on such record will be deemed settled by the first adjudication. This rule extends not only to questions actually presented, but to all questions existing on the record that might have been presented for adjudication in the first petition in error. In such case the second petition in error should be dismissed." (Emphasis added.) * * * The reasoning in such cases is that a party should have his day in court, and that day should conclude the matter. A party is bound then to present his entire cause and he is foreclosed from later attempting to - 6 - reopen the cause as to issues which were or could have been presented. Anderson v. Richards (1962), 173 Ohio St. 50, 53. The Ohio Supreme Court has consistently applied the doctrine of res judicata to postconviction review. State v. Perry (1967), 10 Ohio St.2d 175. Reaffirming this limtitation, the Court recently stated, "[p]ostconviction review is a narrow remedy, since res judicata bars any claim that was or could have been raised at trial or on direct appeal. State v. Steffen, supra, at 410. MULTIPLE PETITIONS FOR POSTCONVICTION RELIEF The doctrine of res judicata can also bar successive petitions for postconviction relief. State v. Apanovitch (1995), 107 Ohio App.3d 82. While Ohio law may permit the filing of multiple petitions, a petitioner does not have carte blanche to file successive petitions endlessly. State v. Steffen (1994), 70 Ohio St.3d 399, 410. As this court recently stated, "trial courts are not required to entertain successive petitions which allege the same grounds as earlier petitions. *** Defendant should generally be prepared, after thorough investigation, to present all relevant evidence to support the particular grounds before broaching the subject." State v. Williams (Jan. 18, 1996), Cuyahoga App. No. 68613, unreported at 3. (Citations omitted.) A defendant will not be permitted to present his postconviction litigation piecemeal. In the case at bar, the trial court did not err in dismissing defendant's second petition for postconviction relief, which raised the same claim as the previous petition. Defendant could have filed the affidavit in the first PCR in which he raised this exact - 7 - claim; therefore, res judicata precludes raising the same claim again. Moreover, the type of evidence presented by defendant was discussed by the trial court and this court when the first petition was dismissed. The trial court stated as follows: 1. Dismissal without a hearing is proper when the Petitioner failed to submit evidentiary documents containing sufficient operative facts to demonstrate that Petitioner is entitled to relief. State v. Kaper (1983), 5 Ohio St.3d 36, 38. 2. A defendant's own self-serving declarations or affidavits or broad conclusory statements are insufficient to rebut the record and, as a matter of law, do not meet the requirements for an evidentiary hearing. Id. at 38-39. Defendant's self-serving affidavit does not resolve the problems the trial court properly observed in the first petition. Thus it does not warrant postconviction relief. Therefore, the trial court did not err in dismissing this second petition for postconviction relief. Judgment affirmed. - 8 - 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 Cuyahoga County Common Ples 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. JAMES D. SWEENEY, CHIEF JUSTICE DAVID T. MATIA, JUDGE DIANE KARPINSKI, 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 .