COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71787 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOSEPH APGER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 11, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-302145 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender RANDI MARIE OSTRY, ESQ. JEAN M. GALLAGHER, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Joseph Apger, defendant-appellant, appeals the trial court's denial of his post-conviction petition, which sought to declare his felonious assault conviction void. In his petition, Apger claimed his trial attorney was ineffective. The trial court barred the petition under the doctrine of res judicata. Apger assigns the following errors for review: I. THE TRIAL COURT ERRED WHEN IT HELD THAT THE CLAIMS WERE BARRED BY RES JUDICATA. II. THE TRIAL COURT ERRED BY FAILING TO HOLD THE EVIDENTIARY HEARING REQUIRED BY R.C. 2953.21 (E) WHEN THE PETITION PROVIDED AFFIDAVITS WHICH ALLEGED SUFFICIENT OPERATIVE FACTS TO DEMONSTRATE A DENIAL OF THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Apger appealed his felonious assault conviction in State v. Apger (Oct. 26, 1995), Cuyahoga App. No. 67928, unreported. In that appeal, Apger, among other errors, claimed his trial lawyer, Thomas Callaghan, was ineffective because he failed to impeach the victim during cross-examination with prior inconsistent statements and to object to leading questions. On appeal, he was represented by new counsel, Jean Gallagher. She raised no other errors under the ineffective assistance of counsel doctrine. On September 18, 1996, he filed a petition for post-conviction relief and requested a hearing. He claimed his trial lawyer was -3- ineffective because he failed to subpoena Rebecca Casto and failed to challenge state's evidence during the pre-trial hearing. Specifically, he attached an affidavit from Casto that averred that she was not subpoenaed and that she would have testified that she told the police that Danny Woods told her that he shot the victim. Moreover, she would have testified if subpoenaed that the police dismissed her information as lacking credibility. Apger also argues his trial counsel was ineffective when he failed to object to the journal entry presented by the state during the hearing on the motion to dismiss for speedy trial. Three of the four journal entries state that continuances were requested by Apger, thereby extending the speedy trial time period. Apger's trial counsel did not object to the entries. Additionally, Apger claimed in his petition that his trial attorney at the motion to dismiss hearing for speedy trial should have known about the four journal entries and should have challenged the validity of them at the hearing. These two items of contention Apger argues could not have been gleaned from the record. Thus, in his first assignment of error, Apger argues the trial court erred in relying on res judicata. We disagree. Res judicata bars the assertion of any issue which was raised or which could have been raised at trial or on appeal. State v. Perry(1967), 10 Ohio St.2d 175 at syllabus para. 9. It 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, 100 (citing State, -4- ex rel. Ohio Water Service Co. V. Mahoning Valley Sanitary Dist. (1959), 169 Ohio St. 31). It is well-settled that matters which have been or should have been raised on direct appeal may not be considered in post-conviction proceedings. Id.; State v. Ishmail (1981), 67 Ohio St.2d 16, 18. Further, where a defendant who is represented by new counsel on direct appeal fails to claim the ineffectiveness of his trial counsel, and where such a claim could have been made without resort to evidence dehors the record, the doctrine of res judicata precludes the consideration of said claim in a petition for post- conviction relief. State v. Cole (1982), 2 Ohio St.3d 112 at syllabus. The record in this case discloses that petitioner was represented by new counsel on direct appeal. On direct appeal the new counsel did raise ineffective assistance of counsel. Thus, res judicata bars Apger from raising that issue again in his post- conviction petition. Apger argues that these issues raise different questions of the lawyers' ineffectiveness and besides, they are supported by evidence dehors the record. As for Apger's argument that his trial lawyer did not sufficiently attack the journal entries during his speedy trial motion to dismiss, we are not persuaded. The transcript of the speedy trial motion to dismiss showed that after the state presented the four journal entries the trial court asked trial counsel if he had requested the continuances. He responded that he had not. (Tr. 9.) The trial court then concluded that the -5- court speaks through its journal entry. (Tr. 9.) Apger's new appellate counsel obviously reviewed this transcript and decided that it did not merit direct appeal review. However, Apger argues that he now has an affidavit from Thomas Callaghan specifically stating that Callaghan never requested the continuances. Nevertheless, this court is at a loss to see the difference between Callaghan's statement in open court as an officer of the court that he did request the continuances and his later affidavit that averred the same fact. The point is that this information was known to appellate counsel at the time of Apger's direct appeal. Consequently, the trial court properly disposed of Apger's post-conviction petition under the doctrine of res judicata. Apger also argues that Casto's assertions in her affidavit are matters outside of the record and not barred by res judicata. The record showed that a subpoena was issued for Casto but she never testified. Appellate counsel was in a position to notify Casto at that time and determine if her testimony was valuable. The appellate counsel would have then been in a position to judge whether trial counsel's failure to call her should have been challenged on direct appeal as ineffective assistance of counsel. Besides, trial counsel's failure to call her as a witness might have been a strategic move on his part. He might well have concluded that her testimony was not credible in light of the overwhelming evidence against Apger. See Strickland v. Washington (1984), 466 U.S. 668, 681. Also, on a post-conviction petition, -6- the trial court has the authority to weigh the credibility of affidavits against the record and conclude that the record is overwhelmingly more credible than the affidavit. State v. Moore (1994), 99 Ohio App.3d 748, 754. Consequently, Apger's first assigned error is overruled. In his second assignment of error, Apger argues the trial court erred by failing to hold an evidentiary hearing. We disagree. A hearing is required only when the petition on its face states a substantive ground for relief. State v. Singerman (1996), 115 Ohio App.3d 273, 275; citing State v. Milanovich (1975), 42 Ohio St.2d 46, 50; State v. Apanovitch (1995), 107 Ohio App.3d 82, 98. Here, no substantive grounds for relief exist to merit a hearing. Accordingly, Apger's second assigned error is overruled. Judgment affirmed. 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 PATTON, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .