COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71398 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CLARENCE NICHOLSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 24, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, CR-298989. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Diane Smilanick, Esq. Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113-1664 For Defendant-Appellant: John P. Parker, Esq. The Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103 -2- DAVID T. MATIA, P.J.: Clarence Nicholson, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CR- 298939, in which the trial court dismissed defendant-appellant's second petition for post-conviction relief, filed pursuant to R.C. 2953.21, without a hearing. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On July 29, 1993, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a three-count indictment. Counts one and two charged defendant-appellant with aggravated robbery in violation of R.C. 2911.01. The third count of the indictment charged defendant-appellant with having a weapon while under disability in violation of R.C. 2923.13. All three counts contained a firearm specification. A jury trial began on October 25, 1993, but ended in a mistrial after the jury was unable to reach a unanimous verdict. A second trial also resulted in a mistrial. A third trial was conducted after which the jury found defendant-appellant guilty on one count of aggravated robbery and one count of having a weapon while under disability, with one firearm specification. The trial court sentenced defendant-appellant to a term of three years mandatory on the firearm specification, eight to twenty-five years on the aggravated robbery charge and eighteen months actual time on the charge of having a weapon while under disability, to be served -3- consecutively to the sentence for aggravated robbery. Defendant- appellant was represented by the same attorney throughout the lower court proceedings. On direct appeal, this court affirmed defendant-appellant's convictions but remanded the case back to the trial court for resentencing on defendant-appellant's convictions for having a weapon while under disability due to the imposition of actual time on a fourth degree felony. State v. Nicholson (Jan. 26, 1995), Cuyahoga App. No. 66837, unreported. The Supreme Court declined to exercise jurisdiction in this case pursuant to an order dated May 31, 1995. Defendant-appellant was represented by different counsel on appeal. In October, 1994, during the pendency of defendant-appellant's direct appeal, defendant-appellant filed a pro se petition for post-conviction relief in the trial court. Defendant-appellant argued, among other things, that the trial court improperly deprived him of a transcript of the original trial court proceedings thereby depriving defendant-appellant of the opportunity to prepare an adequate defense for the subsequent trial. After conducting a full evidentiary hearing, the trial court dismissed defendant-appellant's petition for post-conviction relief issuing Findings of Fact and Conclusions of Law on April 19, 1995. In its findings, the trial court noted that a transcript of the earlier trial had been made available to defendant-appellant's counsel as well as defendant-appellant's appellate counsel. -4- On March 7, 1996, this court affirmed the trial court's dismissal of defendant-appellant's petition for post-conviction relief. State v. Nicholson (Mar. 7, 1996), Cuyahoga App. No. 68979, unreported. Once again, the Supreme Court declined further review in an order dated July 17, 1996. On August 27, 1996, defendant-appellant filed a second pro se petition for post-conviction relief. In the petition, defendant- appellant maintained that he was denied the right to effective assistance of counsel since his trial counsel failed to proffer evidence into the record relating to alleged inconsistent testimony of a number of material witnesses. It was defendant-appellant's position that the disputed testimony elicited during his third trial was dramatically different from the testimony from the earlier mistrial and this fact would have been evident had defendant-appellant's trial counsel proffered the record containing the earlier testimony. On September 18, 1996, the trial court denied defendant- appellant's second petition for post-conviction relief stating in pertinent part: Defendant's petition to vacate or set aside sentence, filed on August 27, 1996, is denied for the same reasons as set forth in the Findings of Fact and Conclusions of Law signed and filed on April 18, 1995. On October 9, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Clarence Nicholson's, defendant-appellant's, sole assignment of error states: -5- TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MAKE A PROFFER INTO THE RECORD AND THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO HOLD AN EVIDENTIARY HEARING IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION. A. THE ISSUE RAISED: DENIAL OF PETITION FOR POST-CONVICTION RELIEF. Defendant-appellant argues that the trial court improperly denied his second petition for post-conviction relief without conducting an evidentiary hearing. Specifically, defendant- appellant maintains that his trial counsel failed to proffer into the record testimony from defendant-appellant's first mistrial that would have allegedly demonstrated material inconsistencies in certain key eyewitness testimony elicited during defendant- appellant's third trial. It is defendant-appellant's position that the trial court abused its discretion by failing to conduct such an evidentiary hearing. The state maintains that the claims raised in defendant- appellant's second petition for post-conviction relief are almost identical to those claims raised in the first petition and are therefore barred by the doctrine of res judicata. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR POST-CONVICTION RELIEF. 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 the -6- 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, 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. The post-conviction relief process permits criminal defendants who allege that their conviction is void or voidable on state or federal constitutional grounds to petition the trial court for an evidentiary hearing pursuant to R.C. 2953.21(A). State v. Isham (Aug. 23, 1995), Montgomery County App. No. 92-CR-2729/2. The petitioner bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his claim and merit a hearing. State v. Hamilton (Dec. 29, 1993), Clark App. No. 3015, unreported, citing State v. Kopper (1983), 5 Ohio St.3d 36. A petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner failed to submit evidentiary documents containing sufficient operative facts. State v. Scott (1989), 63 Ohio App.3d -7- 304; State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus. In addition, a trial court is not required to file findings of fact and conclusions of law when declining to entertain a second or successive petition for post-conviction relief which alleges the same grounds as earlier petitions. State, ex rel. Workman v. McGrath(1988), 40 Ohio St.3d 91; State v. Andrews (June 13, 1996), Cuyahoga App. No. 69702, unreported. C. STANDARD OF REVIEW FOR RES JUDICATA. 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. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, paragraph one of the 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. Issues properly before a court on a petition for post-conviction relief are issues which could not have been raised on direct appeal due to the fact that -8- the evidence supporting such issues is dehors the record. State v. Milanovich(1975), 42 Ohio St.2d 46; State v. Durr (July 28, 1994), Cuyahoga App. No. 65958, unreported. If a court finds that an issue raised in a petition for post-conviction relief has, or should have been raised on direct appeal or in a previous post- conviction relief motion, the trial court may dismiss the petition on the grounds of preclusion. State v. Spisak (April 13, 1995), Cuyahoga App. No. 67229, unreported. D. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S PETITION FOR POST-CONVICTION RELIEF. In the present case, defendant-appellant maintains that he is entitled to post-conviction relief since his trial counsel failed to proffer evidence relating to alleged inconsistent testimony into the record during defendant-appellant's third trial. Essentially, defendant-appellant argues that he was denied effective assistance of counsel. A review of defendant-appellant's first petition for post-conviction relief demonstrates that the argument contained therein is substantially similar to the underlying argument contained within the instant appeal; the failure of trial counsel to attempt to impeach a witnesses' direct testimony with alleged inconsistent statements made at a prior hearing. Significantly, the trial court noted during the evidentiary hearing on plaintiff- appellant's first petition for post-conviction relief that there was a court order providing that a full transcript of the first mistrial be made available to defendant-appellant's trial counsel. In addition, defendant-appellant's appellate counsel on direct appeal was also aware of this fact. Therefore, under the facts of -9- this case, it is apparent that defendant-appellant could have raised the effective assistance of counsel claim at the appellate level or in the first petition for post-conviction relief 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. State v. McCollough, supra; State v. Brockwell (Sept. 12, 1996), Cuyahoga App. No. 70552, unreported. In addition, even if defendant-appellant's claim was not barred by the doctrine of res judicata, a further review of the record fails to support defendant-appellant's position that he was deprived of the right to effective assistance of counsel at the trial court level. As the trial court noted in its findings of fact and conclusions of law: *** the alleged error in not permitting the defense to cross-examine one of the State's witnesses with his own earlier testimony was harmless error since the alleged inconsistencies were not material. 4. Mr. Pesto testified to the presence of a gun in both trials. Therefore, his testimony was not materially inconsistent. See page 174 of the first trial transcript and page 165 of the third trial transcript. Accordingly, the record fails to disclose that the performance of defendant-appellant's counsel was seriously flawed and deficient resulting in prejudice to defendant-appellant. Strickland v. Washington (1984), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St.3d 136; State v. Williams (May 23, 1996), Cuyahoga App. Nos. 69403, 69404, 69405 and 69406, unreported. For the foregoing reasons, defendant-appellant's sole assignment of error is not well taken. -10- Judgment of the trial court is affirmed. -11- 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. DYKE, J. and ROCCO, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .