COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71906 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) DOYLE WALTERS ) ) Defendant-Appellant ) Date of Announcement of Decision NOVEMBER 20, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Case No. CR-279282 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES DOYLE WALTERS, PRO SE Cuyahoga County Prosecutor Inmate No. A312-790 GEORGE J. SADD, Assistant Mansfield Correctional Inst. Prosecuting Attorney P.O. Box 788 1200 Ontario Street Mansfield, Ohio 44901 Cleveland, Ohio 44113 2 JAMES M. PORTER, P.J.: Defendant-appellant Doyle Walters, pro se, appeals from the trial court's denial of his petition for post-conviction relief without a hearing. Defendant is serving 5 to 25 years for felonious assault (R.C. 2903.11) of a police officer with an automobile. Defendant contends his constitutional rights were violated because he was denied effective assistance of counsel at the time of his plea, he was apprehended by the police by application of excessive force resulting in injuries requiring medication and that his punishment is cruel and unusual because he is not receiving adequate medication at the Mansfield Correctional Institution. We find no merit to the appeal and affirm the dismissal of his petition for post-conviction relief on res judicata grounds. On April 8, 1992, defendant pled guilty to felonious assault on a police officer and was sentenced for 5 to 25 years. No direct or delayed appeal was taken from this conviction. On January 27, 1993, he received super shock probation and was released on certain conditions respecting drug treatment and community service. He violated his probation and was remanded to custody to serve his full sentence at Mansfield Correctional Institution. On September 17, 1996, defendant, pro se, filed a petition to vacate and set aside his sentence pursuant to R.C. 2953.21, seeking post-conviction relief. On the State's opposition, the trial court dismissed the post-conviction petition finding that the claims of excessive force by the police and ineffective assistance of counsel 3 could have been raised at trial or on appeal and are res judicata. The trial court also found that defendant has failed to submit any evidentiary quality documents in support of his cruel and unusual punishment claims. We find no basis to disagree with the trial court's ruling on these matters and affirm. Defendant's two assignments of error state as follows: I. APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, FAIR TRIAL, EFFECTIVE ASSISTANCE OF COUNSEL AND EQUAL PROTECTION OF THE LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WERE VIOLATED. II. APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE USE OF EXCESSIVE FORCE BY A CLEVELAND, OHIO POLICE OFFICER IN THE ARREST OF THE APPELLANT, RESULTING IN BROKEN FACIAL BONES IN THE APPELLANT'S FACE, RE-CONSTRUCTIVE SURGERY TO MY FACE, SEVERE PAIN IN MY HEAD DAILY, NON- SUFFICIENT MEDICAL NEEDS WHILE PRESENTLY INCARCERATED FOR AN OFFENSE THAT I DID NOT COMMIT, RESULTING IN CRUEL AND UNUSUAL PUNISHMENT. The post-conviction remedy statute, R.C. 2953.21(C), states in pertinent part: (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 4 fact and conclusions of law with respect to such dismissal. Pursuant to R.C. 2953.21(C), the trial court dismissed defendant's post-conviction petition and issued findings of fact and conclusions of law on each issue raised in the petition. As the statute makes clear, [C]ourts are not required to hold a hearing on all post-conviction cases. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450, 451. This Court recently stated the tests to be applied in determining the necessity of a hearing in State v. Pariseau (Dec. 15, 1994), Cuyahoga App. No. 67496, unreported at 4-5: A petition for post-conviction relief will be granted only where the denial or infringement of constitutional rights is so substantial as to render the judgment void or voidable. Relief is not available when the issue has been litigated by appeal or upon a motion for a new trial. State v. Walden (1984), 19 Ohio App.3d 141, 156. The doctrine of res judicata bars any defense or claimed lack of due process already raised on direct appeal from the judgment of conviction. State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. The claim must depend on factual allegations which cannot be determined by an examination of the files and records of the case. State v. Milanovich (1975), 42 Ohio St.2d 46, paragraph one of the syllabus. A petition for post-conviction relief may be dismissed without a hearing when the petitioner fails to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. The test to be applied 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. A 5 petitioner satisfied his initial burden by submitting evidence outside the record sufficient to avoid dismissal. See State v. Williams (1991), 74 Ohio App.3d 686, 692. Defendant's belated claims of ineffective assistance of trial counsel could have been addressed at trial or on direct appeal. Accordingly, they are now barred by the doctrine of res judicata as found by the trial court. State v. Brooks (Oct. 31, 1991), Cuyahoga App. No. 59724, unreported at 3. It is well established that post-conviction relief petitions are not appropriate substitutes for direct appeal. State v. Nichols (1984), 11 Ohio St.3d 40, 42. Defendant's claim he was denied effective assistance of counsel by the trial court's failure to appoint counsel to aid him in collecting the evidence he needed to support his petition for post-conviction relief is also without merit. Appointed counsel is not required for the initial burden of preparing and presenting petitions for post-conviction relief. State v. Barnes (1982), 7 Ohio App.3d 83, 86. As previously noted in the authorities, supra, the defendant had the burden of establishing by affidavit or other evidentiary quality documents the basis for his claim of excessive force. His petition contained no such materials and the trial court did not abuse its discretion in dismissing the petition. Furthermore, he could have raised this issue at trial, but instead chose to plead guilty. The trial court also properly denied his claim that he is not receiving adequate pain pills in prison which he claims constitutes 6 cruel and unusual punishment. Post-conviction relief is not the proper device for raising a challenge to his incarceration without adequate medical attention. Defendant's appropriate remedy would be to bring an action under 42 U.S.C.A. q1983. State ex rel. Peeples v. Anderson (1995), 73 Ohio St.3d 559, 560-61; Rash v. Brigano, Warden (Nov. 5, 1990), Warren App. No. 90-06-043, unreported. We have reviewed the defendant's petition and attached papers carefully and find no grounds for disagreeing with the trial court's disposition in this matter. Assignments of Error I and II are overruled. Judgment affirmed. 7 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 Court of Common Pleas 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. O'DONNELL, J., and KARPINSKI, J., CONCUR. JAMES M. PORTER 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 journalization of this court's announcement of decision by the .