COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71462 & 71463 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TIMOTHY PIERCE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 26, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CP-CR-240137 and Case No. CP-CR-240855 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES TIMOTHY PIERCE, PRO SE CUYAHOGA COUNTY PROSECUTOR NO. 214-663 BY: RANDI MARIE OSTRY, ESQ. Trumbull Correctional Inst. ASSISTANT COUNTY PROSECUTOR P.O. Box 901 1200 Ontario Street Leavittsburg, Ohio 44430-0901 Cleveland, Ohio 44113 - 2 - DYKE, J.: Petitioner Timothy Pierce appeals from the denial of his petition for postconviction relief. For the reasons set forth below, we affirm. On June 27, 1989, defendant was indicted in Case No. 240137 for five counts of aggravated robbery. Each count also contained a firearm specification. Also on June 27, 1989, defendant was indicted in Case No. 240855 for ten counts of aggravated robbery, with a firearm specification alleged on each count. On August 24, 1989, defendant, represented by counsel, entered guilty pleas to a total of thirteen charges in the combined cases. Pursuant to a plea agreement, defendant pleaded guilty to the indictment in Case No. 240137, and also pleaded guilty to eight of the charges, with their specifications in Case No. 240855. The state then dismissed the remaining charges of Case No. 240855 and also agreed to bring no further charges against petitioner in connection with the one month time period during which the charges arose. The transcript of these proceedings provides in relevant part as follows: [BY THE COURT:] *** of course there is a gun specification involved in each of these cases, which means that you would be required to serve in each of them a three year mandatory sentence that has to be served prior to and consecutive with the indefinite sentences of - 3 - five to 25 in each of those cases, depending on how you (sic) sentenced; do you understand that? MR. PIERCE: Yes. THE COURT: You're satisfied with your lawyer? MR. PIERCE: Yes (Tr. 7-8). At the subsequent sentencing proceeding, petitioner's trial attorney asked the court to consider all of the crimes which occurred on the same day as a single offense for sentencing purposes, and urged the court to sentence petitioner for six firearm specifications rather than thirteen. The trial court agreed with this request. The court subsequently sentenced petitioner to concurrent terms of ten to twenty-five years incarceration on each of the thirteen counts of aggravated robbery to which petitioner had previously pleaded guilty. In addition, the court imposed consecutive three year terms of actual incarceration on six of the firearm specifications, and ordered that these terms be served consecutive to the ten to twenty-five year term imposed on the aggravated robbery counts. In September 1990, petitioner was granted leave to file a delayed direct appeal to this court and new counsel was appointed. Within his direct appeal, petitioner asserted four assignments of error. The first and second assignments of error specifically addressed the issue of the operability of the firearm and provided: THE TRIAL COURT ERRED AND DENIED DEFENDANT-APPELLANT HIS RIGHT TO DUE PROCESS OF LAW IN FAILING TO CONDUCT A HEARING TO DETERMINE - 4 - WHETHER THE FIREARM, WHICH WAS THE BASIS FOR THE FIREARM SPECIFICATION, WAS OPERABLE. THE TRIAL COURT ERRED AND DENIED DEFENDANT-APPELLANT HIS RIGHT TO DUE PROCESS OF LAW IN FAILING TO CONDUCT A HEARING TO DETERMINE WHETHER THE VARIOUS INCIDENTS IN WHICH A FIREARM MAY HAVE BEEN USED, JUSTIFIED THE IMPOSITION OF CONSECUTIVE TERMS OF INCARCERATION. This court rejected all of the assignments of error and affirmed. See State v. Pierce (May 14, 1992), Cuyahoga App. Nos. 60482 and 60483, unreported. On September 9, 1996, petitioner filed a petition to vacate and set aside his conviction pursuant to R.C. 2953.21. Petitioner alleged that his trial counsel was ineffective because: (1) the weapon which was the subject of the firearm specifications was not operable; (2) counsel did not investigate possible defenses to the firearm specification; (3) counsel did not properly advise petitioner and erroneously failed to determine that the state was unable to prove the allegations of its case; (4) counsel failed to adequately represent petitioner thereby precluding petitioner's guilty plea from being voluntarily and intelligently entered. In a separate section, petitioner alleged that his sentence was illegal and unconstitutional, apparently because a new sentencing framework has been adopted for offenses occurring on or after July 1996, and this new enactment "disfavors a class of individuals whom were charged or convicted of a felony offense prior to July 1, 1996." Appended to the petition was the following statement: The petitioner has been unsuccessful in his attempt to obtain various reports, files or exhibits such as: police statements, ballistics report of a 22 cal. handgun, - 5 - witnesses statements, etc., in order to further support claims herein. The trial court denied the petition without a hearing and petitioner now appeals and raises three errors for our review. Petitioner's assignments of error are interrelated and state: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY SUMMARILY DISMISSING APPELLANT'S PETITION FOR POST-CONVICTION RELIEF UNDER OHIO REVISED CODE SECTION 2953.21. THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT- APPELLANT AN EVIDENTIARY HEARING WHEREIN THE ALLEGED FACTS COULD BE PROVEN, THUS THERE WAS A VIOLATION OF THE DEFENDANT'S RIGHTS UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE OF THE OHIO CONSTITUTION. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DISMISSING DEFENDANT-APPELLANT'S POST-CONVICTION RELIEF PETITION WITHOUT AN EVIDENTIARY HEARING TO SUBSTANTIATE HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR HIS FAILURE TO INVESTIGATE AND UTILIZE THE FACTS THAT THE GUN IN THIS CASE WAS NOT OPERABLE AND LED TO DEFENDANT-APPELLANT'S UNJUST CONVICTION. Within these assignments of error, petitioner asserts that the trial court erred in denying his petition for postconviction relief without holding an evidentiary hearing. 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 - 6 - 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. Thus, as an initial matter, the claims of a petition for postconviction relief must raise a constitutional issue. R.C. 2953.21(A). State v. Combs (1994), 100 Ohio App.3d 90, 97. If a claim does not allege some constitutional deprivation, the trial court may not grant relief pursuant to R.C. 2953.21. Id; citing State v. Powell (1993), 90 Ohio App.3d 260, 264. Further, the claims raised within the petition must not raise issues which were raised or could have been raised on appeal. Id. 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. See 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, supra. Generally, the petitioner must provide evidence - 7 - outside the record to demonstrate that after conviction, he obtained evidence to support the claim. Id. Further, a hearing is not mandated on every petition for postconviction 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. 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. See State v. Apanovich (1991), 70 Ohio App.3d 758, 762. 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. Where the petitioner presents no evidence of ineffective assistance, the petitioner is not entitled to a hearing on the petition. State v. Pankey (1981), 68 Ohio St.2d 58, 59. Applying all of the foregoing, we conclude, with respect to petitioner's claim that his sentence is illegal due to the enact- ment of Am. Sub. Senate Bill 2, that this contention does not raise a constitutional issue. The Ex Post Facto Clause of Section 10, - 8 - Article I of the United States Constitution and the retroactive laws provision of Section 28, Article II of the Ohio Constitution prohibit the enactment of any law "`which imposes additional punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham (1981), 450 U.S. 24, 28, citing Cummings v. Missouri (1867), 71 U.S. (4 Wall.) 277, 325-326. Ex post facto laws are retrospective, that is, apply to events occurring before their enactment. State v. Luff (1993), 85 Ohio App.3d 785, 793. Further, under its plenary power to prescribe crimes and penalties, the General Assembly may require by statute that certain courts review past convictions and sentences and reduce the sentences where the prior offenses are comparable to newly defined offenses with lesser penalties, see State v. Morris (1978), 55 Ohio St.2d 101, syllabus, but we are aware of no law which requires the General Assembly to do so. Indeed, R.C. 1.58(A) provides in relevant part as follows: The reenactment, amendment or repeal of a statute does not, *** : (1) Affect the prior operation of the statute or any prior action taken thereunder; (2) Affect any *** obligation or liability previously acquired, accrued, accorded, or incurred thereunder; (3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal[.] Moreover, petitioner does not argue or demonstrate any Equal Protection deprivation resulting from the new enactment. Thus, we - 9 - are not able to recognize a constitutional violation from the enactment of Am. Sub. Senate Bill 2. Accordingly, this claim does not allege a constitutional deprivation which warrants relief under R.C. 2953.21(A). As to petitioner's remaining claims concerning the efficacy of his trial counsel, the record discloses that petitioner had new counsel on appeal and did raise the issue of whether the weapon was in fact operable in his direct appeal. The claims concerning counsel's effectiveness and the operability of the weapon could have been raised on direct appeal and are therefore barred by res judicata. In addition, absolutely no evidence outside the original trial record was presented. We therefore hold that the trial court properly denied the petition without holding an evidentiary hearing. The assignments of error lack merit. Affirmed. - 10 - 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. BLACKMON, P.J., CONCURS. KARPINSKI, J., IN PART, CONCURS IN JUDGMENT ONLY (SEE ATTACHED CONCURRING OPINION) 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71462, 71463 : STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION TIMOTHY PIERCE : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 26, 1997 KARPINSKI, J., IN PART, CONCURRING IN JUDGMENT ONLY: I concur in the opinion of the majority except for its disposition of defendant's claim concerning entitlement to sentencing under Ohio's new criminal sentencing statutes. Contrary to the majority opinion, ante at pp. 7-9, defendant raised constitutional claims concerning sentencing cognizable under a petition for post-conviction relief. (Post-Conviction Petition at pp. 11-13.) Although defendant adequately raised these issues, the argument based on retroactive application of the new sentencing statutes lacks merit. Twice before, this court rejected the same argument: State v. Edwards (May 22, 1997), Cuyahoga App. No. - 2 - 71598, unreported at pp. 2-3; State v. Abelt (Feb. 27, 1997), Cuyahoga App. No. 71361, unreported at pp. 3-5. .