COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71746 STATE OF OHIO : JOURNAL ENTRY : AND : OPINION : Plaintiff-appellee : : : -vs- : : RICHARD FRAZIER : : Defendant-appellant : DATE OF ANNOUNCEMENT DECEMBER 11, 1997 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 260354 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Thomas J. Escovar, Esq. Cuyahoga County Prosecutor David Paul Bradley, Esq. By: John R. Mitchell, Esq. 55 Public Square, #1828 Assistant County Prosecutor Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- ROCCO, J.: Defendant-appellant Richard Frazier, convicted for aggravated murder and sentenced to death therefor, appeals from the trial court orders which first denied his petition for post-conviction relief and then denied his motion for relief from that judgment. Appellant argues that in considering his motion for post conviction relief, the trial court failed to follow the requirements of R.C 2953.21(C) and inappropriately applied the doctrine of res judicata to one of the claims he raised. Appellant also argues he provided sufficient evidence to demonstrate he was entitled to relief from the order denying his petition. This court has reviewed the App.R. 9(A) record on appeal, finds trial court properly entered judgment against appellant and accordingly affirms. Appellant was indicted in 1990 on three counts for the aggravated murder of his eighteen-year-old stepdaughter, Tiffany Skiba, and the aggravated burglary of her grandparents' home. The first two counts carried three specifications, viz., felony murder, murder of a witness, and murder to escape accounting for another crime, to wit: rape. The record reflects appellant entered a plea of not guilty to the indictment and was assigned as counsel attorneys Tim Gaunter and Jerry Milano. Approximately a week later, attorney Ralph Buss filed a request to be entered also as attorney of record for [appellant.] -3- On February 28, 1991 appellant filed a motion for authority to hire mitigation expert Patricia Snyder to assist in his defense in the event there is a guilty verdict involving capital punishment. By this time, attorney Robert L. Tobik also had joined the defense team. Appellant's motion was granted. On March 8, 1991 appellant filed a motion for release of all records which concern [his] medical, psychological, hospital, institutional, legal, educational and/or employment history. The trial court subsequently issued a journal entry stating appellant had withdrawn this motion as [an] agreement has been reached between [the] parties. On July 10, 1991 pursuant to R.C 2929.0241 appellant filed a motion for additional funds to hire a psychologist as a mitigation expert. The trial court subsequently denied this motion, stating as the main basis for its decision the fact that it had previously granted funds to appellant so that he could obtain the mitigation expert already specifically requested by him. On August 16, 1991 appellant filed a motion in limine, requesting the trial court to enter an order limiting the ability 1R.C 2929.024 states in pertinent part: If the court determines that the defendant is indigent and that investigation services, experts, or other services are reasonably necessary for the proper representation of a defendant charged with aggravated murder at trial or at the sentencing hearing, the court shall authorize the defendant's counsel to obtain the necessary services for the defendant, and shall order that payment of the fees and expenses for the necessary services be made ***. (Emphasis added.) -4- of the prosecutor to present rebuttal evidence to only those Au . Ultimately, the jury found appellant guilty of the charges against him, and following the mitigation phase of the proceedings, recommended a sentence of death. On August 29, 1991 the trial court entered its opinion and order imposing the death penalty for the aggravated murder convictions. The trial court stated that appellant presented only one mitigating factor pursuant to R.C 2929.04(B)(7), viz., through unsworn statement, he attempted to establish residual doubtmitigating facto The trial court found no mitigating value whatsoever in [that] issue ***. On October 8, 1991 the trial court appointed new attorneys to represent appellant with regard to the appeal of his convictions. On direct appeal, this court examined the complete record and on February 17, 1994 affirmed appellant's convictions and sentences in App. No. 62557.2 2In App. No. 62557, appellant assigned as error the following: 1) the trial court's admission of certain evidence during the guilt phase of his trial (Assignments of Error I, II, III, IV, VI and VIII); 2) the trial court's failure to dismiss portions of the indictment against him (Assignment of Error V); 3) the trial court's failure to limit the prosecutor's argument during the sentencing phase of his trial (Assignment of Error VII); 4) the trial court's failure to merge the specifications of the indictment during the sentencing phase (Assignment of Error IX); 5) the trial court's failure during voir dire to excuse certain jurors while permitting other jurors to serve (Assignment of Error X); 6) the trial court's instructions to the jury during the guilt phase -5- Appellant thereupon appea C (1995), 3 hereafter, the United Stled this court's decision to the Ohion, appellant petition for a writ of certiorari; Frazier v. Ohio (1996), 116 S.Ct. 820. On July 31, 1996 pursuant to R.C 2953.21 appellant filed his petition for post conviction relief in the trial court. Therein, appellant alleged his death sentence was void because of errors of titutionalSupreme court. Once agaiccons dimension which occurred a labeled these errors causes of action and set forth six of them. Appellant alleged in his first cause of action that trial counsel were ineffective for their failure to adequately prepare for the mitigation phase of his trial. Appellant alleged in his (Assignments of Error XI and XII); 7) the trial court's failure to grant his motions for acquittal (Assignment of Error XIII); and 8) the constitutionality of his death sentence (Assignment of Error XIV). 3In the Ohio Supreme Court, appellant, in pertinent part, challenged the following: 1) the trial court's actions during voir dire; 2) the trial court's instructions to the jury during the guilt phase of his trial; 3) the trial court's failure to dismiss the indictment; 4) the trial court's failure to exclude certain evidence during the guilt phase and to limit certain comments made by the prosecution during guilt phase closing argument; 5) the trial court's failure to grant his motions for acquittal; and 6) the trial court's failure to merge the specifications of the indictment. -6- second and sixth causes of action that the trial court's failure to allow funds for a second mitigation expert compromised trial counsel's ability to render effective assistance. Appellant's third, fourth and fifth causes of action alleged trial counsel also were ineffective for their failure to obtain a change of venue, their failure to obtain sequestation of the jury, and their failure to obtain a psychological expert for purposes of helping in the selection of jurors. Appellant's petition was supported by one hundred and seventy- two exhibits. These included many copies of newspaper articles, pleading and judgment entries from the original trial proceedings, and the affidavit of Sharon L. Pearson, Psy.D. In her affidavit, Ms. Pearson opined that as a part of the presentation of his mitigation defense, appellant should have been clinically evaluated by a licensed psychologist. She further opined that without the results of psychological tests and clinical examination, it is not possible to know if [appellant] suffered from a mental disease at the time of the crimes charged against him. Moreover, the test results would also indicate *** whether [appellant] would require further referral to a neuropsychologist to determine whether [appellant] suffered from organic brain impairment. Ms. Pearson further stated that her review of appellant's medical record indicated he had fallen and hit his head in July 1987 and continued to have physical complaints resulting from the fall. She concluded the trial court's failure to approve funds for -7- a psychologist foreclosed trial counsel from determining if [appellant] suffered from a mental disease or defect ***. The state responded with a motion to dismiss appellant's petition. The state addressed each of appellant's causes of action and argued appellant's attached evidence was insufficient either to warrant a hearing on his petition or to demonstrate any substantive grounds for relief. On November 26, 1996 the trial court dismissed appellant's petition and issued Findings of Fact and Conclusions of Law. The trial court determined that each of appellant's causes of action was barred by the doctrine of res judicata. On December 6, 1996 appellant filed objections to the trial court's order. On December 9, 1996 pursuant to Civ.R. 60(B), he filed a motion for relief from judgment. Appellant alleged therein the trial court's order dismissing his petition for postconviction relief was in violation of the standard of review required by R.C 2953.21. Appellant based his allegation on his assertion the trial court did not have before it a copy of the transcript of the proceedings. He argued, therefore, he was entitled to relief from the trial court's order on the basis of both Civ.R. 60(B)(1) due to judicial inadvertence, and Civ.R. 60(B)(2) since he had newly discovered evidence not available at the original trial. Appellant supported his motion with the affidavits of his two attorneys and another affidavit from Sharon L. Pearson. In pertinent part, one of appellant's attorneys stated that after some -8- investigation he assume[d] that the Court did not have the opportunity to review the 14 volume transcript before rendering a decision on the [petition]. Similarly, appellant's other attorney stated he believe[d] *** the trial court did not have before it `all of the files and records ***.' Ms. Pearson, moreover, stated she had tested appellant and found psychological evidence to warrant further testing by a neuro-psychologist because appellant had suspected brain damage. On December 16, 1996 appellant filed his notice of appeal from the trial court order which denied his petition for post conviction relief. In an entry journalized on December 23, 1996 the trial court denied appellant's motion for relief from judgment. Appellant presents four assignments of error for this court's review. The first three concern the same issue, thus, they are addressed together as follows: I. THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN INDEPENDENT REVIEW OF THE RECORD BEFORE RENDERING THE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY OHIO REVISED CODE SECTION 2953.21. II. THE TRIAL COURT ERRED WHEN IT FAILED TO RECOGNIZE A DENIAL OF THE APPELLANT'S RIGHTS SO AS TO RENDER THE JUDGEMENT (SIC) AGAINST HIM VOID OR VOIDABLE UNDER THE OHIO CONSTITUTION AND THE CONSTITUTION OF THE UNITED STATES OF AMERICA. III. THE TRIAL COURT ERRED FINDING THAT THE DOCTRINE OF RES JUDICATA APPLIED TO NEWLY DISCOVERED EVIDENCE WHICH WAS NOT AVAILABLE TO THE DEFENDANT AT THE TIME OF TRIAL BECAUSE THE TRIAL COURT DENIED THE DEFENDANT EXPERT ASSISTANCE. -9- In these assignments of error, appellant argues the trial court improperly denied his motion for post conviction relief. Although appellant rests his argument essentially upon two separate contentions, this court remains unpersuaded. Appellant first contends the trial court could not have complied with the requirements of R.C 2953.21 prior to dismissing his petition. He asserts that 1) the trial court's failure to explicitly state it had reviewed the entire record; and 2) its references in its Findings of Fact and Conclusions of Law to only two of his original trial attorneys, together with 3) the affidavits of his attorneys attached to his motion for relief from judgment, prove this contention. Appellant further contends he provided sufficient evidence to demonstrate both that counsel's effectiveness was compromised by the trial court's action in denying him funds for a psychological expert prior to trial, and that he had newly discovered evidence rendering his conviction void or voidable. R.C 2953.21 provides in pertinent part: Petition for postconviction relief. (A)(1) Any person who has been convicted of a criminal offense*** who claims 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 petition in the court that 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 a supporting affidavit and other documentary evidence in support of the claim for relief. * * * -10- (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 the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. * * * (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 ***. * * * (I) The remedy set forth in this section is the exclusive remedy by which a person may bring a collateral challenge to the validity of a conviction or sentence in a criminal case. *** (Emphasis added.) Absent a showing of abuse of discretion, a reviewing court will not overrule the trial court's finding on a petition for postconviction relief which is supported by competent and credible evidence. State v. Mitchell (1988), 53 Ohio App.3d 117; see, also, State v. Williams (1991), 74 Ohio App.3d 686. Initially, appellant essentially contends the trial court's findings cannot be deemed supportable because in its Findings of Fact and Conclusions of Law, the trial court neglected to explicitly state it had reviewed the entire proceedings and, further, neglected to list all of his trial attorneys. However, there is no requirement in R.C 2953.21 which indicates the trial court must detail the documents it has reviewed -11- in considering a petition. See, e.g., State v. Williams, supra; State v. Lawson (1995), 103 Ohio App.3d 307; State v. Scott (1989), 63 Ohio App.3d 304 at 308. Furthermore, the trial court's failure to list all of appellant's trial attorneys does not compel the interpretation arrived at by appellant, since the purpose of the court's Findings of Fact and Conclusions of Law is only to sufficiently apprise appellant of the basis of the trial court's decision. State v. Mapson (1982), 1 Ohio St.3d 217 at 219: State v. Lawson, supra; cf., State v. Wilson (1996), 110 Ohio App.3d 178. Finally, the affidavits of appellant's attorneys are of no evidentiary value, since the conclusions contained in them are not based upon personal knowledge but rather upon hearsay. Evid.R. 801(C), 802; Tasin v. SIFCO (1990), 50 Ohio St.32 102 at 107. This court presumes regularity in the proceedings below. State v. Edwards (1987), 31 Ohio App.3d 114. Since there is nothing in the record to support appellant's claim the trial court failed to comply with the requirements of R.C 2953.21, this court rejects it. With regard to appellant's remaining contention, the following was stated in State v. Cole (1982), 2 Ohio St.3d 112: Appellant argues *** that he should been afforded a hearing on his claim. A criminal defendant seeking to challenge his conviction(s) through a petition for postconviction relief, is not, however, automatically entitled to such a hearing. State v. Jackson (1980), 64 Ohio St.2d 107, 110 [18 O.O. 3d 348]. Indeed, the trial court has a statutorily imposed duty to ensure that the petitioner adduces sufficient evidence to warrant a hearing. As R.C 2943.21(C), in pertinent part, provides Before granting a hearing [on a petition for -12- postconviction relief] the court shall determine whether there are substantive grounds for relief. (Emphasis added.) See, also State v. Kapper (1983), 5 Ohio St.3d 36; State v. Pankey (1981), 68 Ohio St.2d 58. This rule of law was stated again in State v. Shugar (May 21, 1992), Cuyahoga App. No. 62536, unreported, as follows: It is well-settled that a trial court may deny a petition for post conviction (sic) relief *** without conducting an evidentiary hearing when defendant fails to submit sufficient evidentiary materials and the record demonstrates defendant is not entitled to relief. (Emphasis added.) See, also, State v. Ledger (1984), 17 Ohio App.3d 94. Simply because appellant produced a multiplicity of printed pages the trial court was not required to consume limited judicial resources and to hold a hearing on his petition. State v. Spisak (1988), 36 Ohio St.3d 80 at 82. Appellant's materials, although lengthy, failed to support his claims. A review of appellant's causes of action set forth in his petition for postconviction relief clearly reveals most of them were based upon occurrences which formed a portion of the record. This includes the trial court's denial of appellant's trial counsels' motion for a psychological expert in mitigation. Certainly, since in App.No. 62557 and State v. Frazier (1995), 73 Ohio St.3d 323, appellant, represented by new counsel in both instances, raised many challenges to the trial court's actions, there is no reason why the trial court's failure to grant appellant's motion for a psychological expert in mitigation is an issue which could not also have been raised on direct appeal. -13- State v. Allen (1995), 73 Ohio St.3d 626; cf., Glenn v. Tate (6th Cir., 1995), 71 F.3d 1204. Thus, the trial court properly applied the doctrine of res judicata. State v. Szefcyk (1996), 77 Ohio St.3d 93; State v. Perry (1967), 10 Ohio St.2d 175; State v. Ishmail ((1981), 67 Ohio St.2d 16; State v. Cole, supra; State v. Ledger, supra; State v. Jenkins (1987), 42 Ohio App.3d 97; State v. Apanovitch(1991), 70 Ohio App.3d 758; State v. Stallings (July 15, 1993), Cuyahoga App. No. 63147, unreported. In an attempt to overcome the doctrine of res judicata and to support his claim trial counsel was unable to render effective assistance under the circumstances, appellant asserts Ms. Pearson's opinion that he may have suffered from a mental disease or organic brain impairment is evidence which was unavailable at trial. However, the record does not support this assertion. Rather, the record indicates appellant's attorneys were aware of this information, since they filed and thereafter withdrew a motion for release of appellant's medical records. It is well settled that in this state, a properly licensed attorney is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. Moreover, a reviewing court will not second-guess what could be considered to be a matter of trial strategy. State v. Smith (1985), 17 Ohio St.3d 98. From the record, it can reasonably be concluded trial counsel were appraised of the purported brain injury from their review of medical records; however, as a matter of trial strategy counsel deemed this avenue of defense unworthy of further pursuit. See, -14- e.g., State v. Allen (1995), 73 Ohio St.3d 626 at 642. This conclusion is reinforced by three factors: 1) counsel's argument to the trial court that a psychologist would be used merely to interpret the mitigation expert's findings; 2) counsel's filing of the motion requesting a limitation on references to mitigation factors to only those upon which appellant ultimately relied; and 3) the thorough and professional manner in which counsel conducted appellant's defense during both the guilt and the penalty phase of appellant's trial. The facts of this case, therefore, are completely inapposite to those set forth in Glenn v. Tate, supra, upon which appellant relies. State v. Combs (1994), 100 Ohio App.3d 90; cf., State v. Mullins (1995), 104 Ohio App.3d 684. In view of the fact that appellant had the assistance of at least three experienced attorneys during all phases of the trial proceedings, and mindful that a reviewing court will not second- guess what are essentially matters of trial strategy, neither the record nor appellant's evidence provided dehors the record supported his claim. State v. Apanovitch, supra; State v. Mitchell, supra; cf., State v. Swortcheck (1995), 101 Ohio App.3d 770; State v. Scott, supra. For the foregoing reasons, the trial court did not err in failing to either grant a hearing or reverse appellant's convictions and sentences, hence, appellant's first, second and third assignments of error are overruled. Appellant's fourth assignment of error follows: THE TRIAL COURT ERRED IN FAILING TO GRANT THE APPELLANT RELIEF UNDER OHIO RULE OF CIVIL PROCEDURE 60(B). -15- Appellant argues the trial court improperly denied his motion for relief from judgment. In view of the mandate set forth in R.C 2953.21(I), it is doubtful appellant's motion might properly be considered by the trial court. However, assume arguendo appellant's motion was appropriately filed, the subsequent filing of appellant's notice of appeal divested the trial court of jurisdiction to consider it. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141; Post v. Post (1990), 66 Ohio App.3d 765. Since this court made no order remanding the matter for consideration of appellant's Civ.R. 60(B) motion, the trial court's ruling on it was a nullity. Majnaric v. Majnaric (1975), 46 Ohio App.2d 157. Therefore, this court also lacks jurisdiction to consider the matter. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., supra. For the foregoing reasons, appellant's fourth assignment of error is also overruled. The order of the trial court is affirmed. -16- It is ordered that appellee recover of appellant 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 Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., AND TERRNECE O'DONNELL, J., CONCUR. JUDGE KENNETH A. ROCCO 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 .