COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71420 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHNNY GRIFFIN : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 19, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CP-CR-251683 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DIANE SMILANICK, ESQ. JOHNNY GRIFFIN, PRO SE ASST. COUNTY PROSECUTOR A231-649 8th Floor - Justice Center P.O. Box 788 1200 Ontario Street Mansfield, Ohio 44901 Cleveland, Ohio 44113 - 2 - DYKE, J.: Petitioner Johnny Griffin appeals from the trial court's denial of his petition for post-conviction relief. For the reasons set forth below, we affirm. On April 16, 1990, petitioner was indicted for pursuant to a three count indictment. Count one charged him with aggravated murder with prior calculation and design, with felony murder, firearm, and aggravated felony specifications. Count two charged petitioner with aggravated murder in the course of a felony, with felony murder, firearm, and aggravated felony specifications. Count three charged petitioner with kidnapping with firearm and aggravated felony specifications. Petitioner pleaded not guilty to the charges. He then filed approximately twenty-eight motions before filing a motion to dismiss alleging a denial of his right to a speedy trial on December 17, 1990. The trial court held a pretrial on December 17, 1990 and denied the motion to dismiss. It also issued the following journal entry: Trial of case continued to January 7, 1991 (See tran- script of record). The record further reflects that the trial court administered the oath of office to a panel of prospective jurors on December 17, 1990. Thereafter, petitioner moved to dismiss the special venire 1 Petitioner has not provided us with a transcript of these proceedings but they were quoted at length in this court's consideration of his direct appeal. See State v. Griffin (December 2, 1992), Cuyahoga App. No. 61436, unreported, infra. - 3 - which had been sworn on December 17, 1990 and also moved for a con- tinuance of his trial. The trial court granted both motions and the matter proceeded to a jury trial on February 5, 1991. Following the presentation of the state's case, the trial court dismissed count two of the indictment, the felony murder charge, and reduced the charge in count one to felonious assault, pursuant to Crim. R. 29(A). Petitioner was subsequently convicted of the offenses of felonious assault and kidnapping, and both firearm specifications. He was sentenced to three years incarceration on the gun specification to be served prior to and consecutive with eleven to fifteen years (with eight years actual incarceration) for the felonious assault conviction and three years incarceration to be served prior to and consecutive with thirteen to twenty-five years (with ten years actual incarceration) for the kidnapping conviction. Petitioner obtained new counsel and filed a timely direct appeal to this court. Petitioner presented three assignments of error by and through counsel and one additional pro se assignment of error. The first assignment of error asserted by counsel and the pro se assignment of error both averred that petitioner was deprived of his speedy trial rights. This court rejected these assignments of error and stated: [I]t is clear that the time requirement of sub- section (C) of R.C. 2945.71 rather than those of [the triple count provision of] subsection (E) applied to defendant in the case sub judice. The record reflects the trial court, the prosecutor and defense counsel all were in agreement that a valid parole holder was issued; - 4 - therefore, the triple count provision of R.C. 2945.71(E) was inapplicable to defendant. State v. MacDonald, supra; State v. Dunkins (1983), 10 Ohio App.3d 72; State v. Phillips (1990), 69 Ohio App.3d 379. * * * In State v. Bunyan (1988), 51 Ohio App.3d 190, the court noted that a motion by the defendant to dismiss the indictment acts to toll the time within which defendant must be brought to trial pursuant to R.C. 2945.72(E). The record reflects defendant filed such motion in the case sub judice on August 2, 1990. The trial court overruled the motion on August 17, 1990. Thus, fifteen days were tolled, extending the trial deadline to December 31, 1990. State v. Robinson (Mar. 2, 1989), Cuyahoga App. No. 54709, unreported. * * * The record reflects that in April and early May 1990 defendant filed eight motions, on May 23, 1990 defendant filed fifteen motions and in June 1990 defendant filed four more motions. The record further reveals some of defendant's motions were not ruled upon by the trial court until the December 17th hearing. These motions made by the defendant therefore also tolled the statute. Furthermore, where the record indicates defendant's attorney participated in the assignment of a trial date and in the 'waiving' of defendant's statutory right to a speedy trial, the trial court's decision to overrule defendant's motion to dismiss on grounds of failure to provide a speedy trial is correct and will be upheld. See State v. Griffin (December 3, 1992), Cuyahoga App. No. 61436, 2 unreported. The record further reflects that on March 19, 1993, petitioner filed a motion for relief from judgment. He asserted that he was deprived of his right to a speedy trial, since the trial court 2 This court determined, however, that petitioner had been erroneously sentenced for two firearm specifications and it remanded the matter for resentencing. Id. - 5 - determined that there was a parole holder. Petitioner claimed that "the evidence shows that defendant-petitioner was not determined to be a parole violator." The trial court denied this motion on October 27, 1993. In 1994, petitioner sought to reopen his direct appeal to this court, pursuant to App. R. 26(B), in order to raise the claim of ineffective assistance of appellate counsel. Within this action, petitioner alleged that his appellate counsel was ineffective for failing to assert ineffective assistance of trial counsel in connection with the speedy trial issue. This court denied the application for reopening and stated: Applicant contends appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel when trial counsel did not object to the lack of evidence of a parole holder for purposes of the speedy trial count provisions. For the following reasons, we deny the motion for delayed reconsideration on res judicata grounds. * * * The principles of res judicata may be applied to bar the further litigation in a criminal case of issues which were raised previously or could have been raised pre- viously in an appeal. See, generally, State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of syllabus. Claims of ineffective assistance of appel- late counsel in an application for reopening may be barred by res judicata unless circumstances render the application of the doctrine unjust. State v. Murnahan (1992), 63 Ohio St.3d 60, 66, 584 N.E.2d 1204. The issue applicant wishes to raise in a reopened appeal regarding the parole holder for speedy trial purposes was brought to the attention of this court twice and was rejected twice during the direct appeal. The application of res judicata justly prevents any further review of this issue. - 6 - See State v. Griffin (April 28, 1994), Cuyahoga App. No. 61436, unreported. The record further reflects that on September 13, 1995, petitioner filed a motion to vacate his conviction pursuant to R.C. 2953.21, asserting that he was denied effective assistance of trial counsel for, inter alia, failing to obtain the dismissal of the indictment for violation of defendant's right to a speedy trial since "there was no evidence that the adult parole authority deter- mined defendant to be a parole violator *** nor is there any evidence that the adult parole authority ordered his arrest." Appended to this motion were transcript excerpts which indicated that, during the time within which the charges set forth in the indictment were pending, petitioner was not found to be a parole violator, but the parole authority was awaiting resolution of the charges in the indictment in order to determine whether petitioner had violated his parole. The state moved to dismiss this motion to vacate and argued, in relevant part, that petitioner's trial counsel, the court, and the prosecuting attorney were in agreement that there was a valid parole holder. The state therefore asserted that pursuant to State v. Cook (1992), 65 Ohio St.3d 516, 518, and State v. Brown (1992), 64 Ohio St.3d 476, 479, the triple count provision of R.C. 2945.71(E) does not apply when a defendant is held on a parole holder. The trial court denied the motion on November 8, 1995. - 7 - Finally, on August 20, 1996, petitioner filed a petition to vacate and set aside his sentence pursuant to R.C. 2953.21. Petitioner maintained that he was denied his right to a speedy trial since the triple count provisions of R.C. 2945.71 apply unless there is documentary evidence of a parole holder. In addition, petitioner maintained that his trial counsel was ineffective in advocating petitioner's speedy trial rights. The state opposed the petition and on September 25, 1996, the trial court denied the petition. Petitioner challenges that ruling herein. Petitioner's assignments of error are interrelate and state: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-PETITIONER WHEN IN THE ABSENCE OF LAWFUL JURISDICTION, IT ADJUDICATED A CRIMINAL PROCEEDING AGAINST THE DEFENDANT-PETITIONER, WHICH DENIED HIM HIS CONSTITUTIONAL, STATU- TORY, AND LEGISLATIVE RIGHTS TO A SPEEDY TRIAL AS GUARANTEED BY THE FIFTH, SIXTH AND FOUR- TEENTH AMENDMENT TO THE U.S. CONSTITUTION AND R.C. 2945.71-73. Defendant-petitioner, Johnny Griffin, did not receive effec- tive assistance of counsel. (A) THE TRIAL COURT AND DEFENSE COUNSEL ERRED TO THE PREJUDICE OF THE DEFENDANT-PETITIONER WHEN IT FAILED TO MAKE A RULING WHICH WOULD DEMONSTRATE WHEN THE ALLEGED PAROLE HOLDER WAS TO HAVE BEEN PLACED UPON DEFENDANT-PETITIONER IN ORDER THAT THE PETITIONER COULD BE AFFORDED HIS CONSTITUTIONAL, STATUTORY, AND LEGISLATIVE RIGHTS TO A SPEEDY TRIAL. (B) ALSO THE STATE MISINTERPRETATION OF THE OHIO CONSTITUTION AND THE INTENT OF THE GENERAL ASSEMBLY AS WELL AS THE LEGISLATURE, OPERATED TO DENY DEFENDANT- PETITIONER HIS CONSTITUTIONAL GUARANTEE. - 8 - Within these assignments of error, petitioner argues that the triple count provisions of R.C. 2945.71 were applicable to his trial, and he was denied his right to a speedy trial. Specifically, petitioner maintains that there was no evidence in the record to demonstrate that petitioner was subject to a parole holder, apart from the acknowledgment on the record by trial counsel, the prosecuting attorney and the court that holder was in place. Petitioner further claims that his trial counsel was ineffective for making such acknowledgment. Petitions for postconviction relief are governed by R.C. 2953.21 which provides, in relation to crimes which occurred prior to July 1, 1996, 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. *** * * * (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. - 9 - Claims raised pursuant to this statute must not raise issues which were raised or could have been raised on appeal. State v. Perry (1967), 10 Ohio St.2d 175, 180-181, paragraph nine of the syllabus. Where a petitioner seeks postconviction 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. Id. par. 9 of the syllabus; State v. Ishmail (1981), 67 Ohio St.2d 16, 18. 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 that after conviction, he obtained evidence to support the claim. Id. Likewise, a petitioner's challenge to the effectiveness 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. State v. Cole (1982), 2 Ohio St.3d 112, syllabus; State v. Apanovich (1991), 70 Ohio App.3d 758, 762; State v. Jenkins (1987), 42 Ohio App.3d 97, 100. Further, 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 - 10 - petition, the supporting affidavit, and the files and records of this cause. State v. Jackson (1980), 64 Ohio St.2d 107, 110. Finally, 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, 91. Applying the foregoing to this matter, we note that the opinion issued by this court on petitioner's direct appeal con- tained an extensive discussion of the speedy trial issue. The issue of whether petitioner's speedy trial rights were violated was considered and rejected and is therefore barred by res judicata. Accord State v. Israfil (November 15, 1996), Montgomery App. No. 15572, unreported (where appellate court's opinion in direct appeal rejected petitioner's claim that his speedy trial rights were violated, this claim was barred from consideration in a petition for post-conviction relief by the doctrine of res judicata). Further, petitioner was represented by new counsel on the direct appeal and could have raised the issue of trial counsel's effec- tiveness within his direct appeal, but did not do so. This claim is therefore also barred by res judicata. In addition, these claims have been asserted numerous times and were subject to summary dismissal by the trial court. 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. DAVID T. MATIA, P.J., AND NAHRA, J., CONCUR ANN DYKE 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 .