COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71905 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RICHARD DIX, JR. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-204600 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ARTHUR A. ELKINS Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: RICHARD DIX, JR. Pro Se #189-913 Lorain Correctional Inst. 2075 South Avon Belden Road Grafton, Ohio 44044 -2- O'DONNELL, J.: Richard Dix, pro se, appeals from a decision of the common pleas court denying his petition for post conviction relief regarding his 1986 aggravated murder conviction. For the reasons set forth below, we find no merit to this appeal and affirm the judgment of the trial court. The record in the case reveals that on March 21, 1986, a jury found Dix guilty of aggravated murder with a firearm specification in connection with the shooting death of Charles Atterbury III. The trial court sentenced Dix to a term of twenty years to life on the aggravated murder conviction consecutive with a three year period of actual incarceration for the firearm specification. Our court affirmed Dix's conviction and the Ohio Supreme Court denied his motion for leave to appeal. Thereafter, Dix filed an application to reopen his case pursuant to App.R. 26(B) and the court's decision in State v. Murnahan (1992), 63 Ohio St.3d 60, asserting that his appellate counsel failed to raise the issues of effective assistance of trial counsel, in that, trial counsel neglected to have Dix's mental condition evaluated, failed to challenge the allegedly defective indictment, and failed to raise the issue of prosecutorial misconduct. On February 8, 1996, our court denied the Murnahan application, concluding that Dix presented no colorable claim of ineffective assistance of counsel on appeal because the alleged errors did not merit reversal of his conviction for aggravated -3- murder. See State v. Dix (Feb. 8, 1996), Cuy. App. No. 51881, unreported, Mtn. No. 67976. Subsequently, on February 28, 1996, Dix filed a petition in common pleas court, pursuant to R.C. 2953.21, seeking post conviction relief in connection with his murder conviction, asserting that his indictment was defective because it did not give him notice of all the elements of the offense charged, and further asserting that he was denied effective assistance of trial counsel because his attorney failed to request a psychiatric evaluation of his competency to stand trial. Several months later, on December 12, 1996, the court, without holding a hearing, denied the petition, stating, in its journal entry, that Dix's claims are barred by the doctrine of res judicata because he previously raised the same two issues in his application for reopening filed with this court which had already been denied. Dix now appeals the trial court's denial of his post conviction relief petition, and assigns two errors for our review, which state: I. THE TRIAL COURT ABUSED IT'S [sic] DISCRETION WHEN DENYING APPELLANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT HOLDING AN EVIDENTIARY HEARING PURSUANT TO R.C. 2953.21(C) AND (F). WHERE THE PETITION SET FOURTH A MERITORIOUS DEFENSE, THE TRIAL COURT LACKED JURISDICTION ON THE GROUNDS THAT THE INDICTMENT IS DUPLICITOUS, IMPROPERLY VAGUE, CONFUSING, AND IN VIOLATION OF THE GRAND JURY CLAUSE OF THE 5TH AMENDMENT WHEN THE TRIAL COURT OMITTED A VITAL ELEMENT DEPRIVING THE APPELLANT THE RIGHT TO A FAIR TRIAL AND DUE-PROCESS OF LAW, AND EQUAL PROTECTION OF CRIMINAL PROCEDURE SECTION 7(B) AND (D). II. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION ARTICLE 1, SECTION 10, IN TRIAL COUNSEL -4- INEFFECTIVE ASSISTANCE TO REQUEST AN [sic] PSYCHIATRIC EXAMINATION AND EVALUATION PURSUANT TO R.C. 2945.371, AND 2945.37.1 [sic]. Dix essentially contends that the trial court abused its discretion in failing to hold an evidentiary hearing on his petition for post conviction relief before denying it, and maintains his entitlement to it because his trial counsel failed to properly challenge the allegedly defective indictment or request a psychiatric examination of his mental condition. The state argues, however, that the trial court did not abuse its discretion and properly denied Dix's petition based upon the doctrine of res judicata. The issue then for our determination is whether the trial court abused its discretion in denying Dix's petition for post conviction relief without holding a hearing, and properly applied the doctrine of res judicata to this case. R.C. 2953.21, which governs petitions for post conviction relief, states, in part: (A) ***The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief. *** (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. Such 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. (Emphasis added.) -5- These provisions do not mandate a hearing for every postconviction relief petition and such a hearing is not automatically required. State v. Ledger (1984), 17 Ohio App.3d 94, 96. The test is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case. State v. Strutton (1988), 62 Ohio App.3d 248, 251. Our court recently determined that the principles of res judicata apply to a petition for post conviction relief where the issues raised in that petition have been previously addressed by this court either through the denial of various motions to correct the record or the application for reopening. See State v. Martinelli (December 5, 1996), Cuy. App. No. 70120, unreported. Here, Dix previously filed an application to reopen this court's decision affirming his conviction, raising the issues of ineffective assistance of trial counsel regarding his mental condition, the allegedly defective indictment, and prosecutorial misconduct, which we considered in our journal entry denying his application. See State v. Dix (Feb. 8, 1996), Cuy. App. No. 51881, unreported, Mtn. No. 67976. Now, on this appeal from a denial of his post conviction relief, Dix again raises the same issues of ineffective assistance of trial counsel regarding his mental condition and the allegedly defective indictment. Since we have previously ruled upon these issues, the doctrine of res judicata precludes us from further considering them. -6- Therefore, we conclude that the trial court did not abuse its discretion in failing to hold a hearing on Dix's petition for post conviction relief because his claims are barred by the doctrine of res judicata. Accordingly, both assignments of errors are overruled and the judgment of the trial court denying Dix's petition for post conviction relief is affirmed. 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. PORTER, P.J., CONCURS; KARPINSKI, J., CONCURS IN JUDGMENT ONLY JUDGE TERRENCE O'DONNELL -7- 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 .