COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72159 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : TERENCE BREWER : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CR.-309196 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. TERENCE BREWER, PRO SE CUYAHOGA COUNTY PROSECUTOR No. 293-227 BY: LISA REITZ WILLIAMSON, ESQ. P.O. Box 788 ASSISTANT COUNTY PROSECUTOR Mansfield, Ohio 44901 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, P.J.: Petitioner Terence Brewer appeals from the judgment of the trial court which denied his petition for post-conviction relief. For the reasons set forth below, we affirm. On April 20, 1994, petitioner was indicted for one count of carrying a concealed weapon with a violence specification, and one count of having a weapon while under disability with violence and firearm specifications. Petitioner pleaded not guilty to the charges. The matter proceeded to a jury trial on July 18, 1994. Petitioner was convicted of both offenses on July 20, 1994, and was sentenced to consecutive terms of four to ten years imprisonment on count one and one-half years to five years on count two, plus three years on the firearm specification. Petitioner commenced a direct appeal to this court and assigned the following errors for our review: I. TERRANCE (SIC) BREWER WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, BY PROSECUTORIAL MISCONDUCT COMMITTED DURING HIS CROSS-EXAMINATION. II. TERRANCE (SIC) BREWER WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, WHEN A STATE WITNESSES (SIC) TESTIFIED ABOUT TEST RESULTS THAT THE WITNESS DID NOT PERFORM HIMSELF. III. TERRANCE (SIC) BREWER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. This court affirmed petitioner's conviction upon his direct appeal. See State v. Brewer (June 22, 1995), Cuyahoga App. No. 67782, unreported. In an entry journalized on November 14, 1995, the Supreme Court denied petitioner leave for further appeal. On January 8, 1996, petitioner filed a motion to vacate his -3- conviction pursuant to R.C. 2953.21 and asserted that he had newly discovered evidence (presumably concerning the lighting in the area), that he was denied the opportunity to cross-examine the state's witnesses in order to impeach them for bias, that the prosecuting attorney failed to disclose exculpatory evidence concerning the lighting in the area, and that his trial counsel failed to conduct an adequate pretrial investigation. The trial court issued findings of fact and conclusions of law in which it determined that defendant had failed to submit evidentiary material containing operative facts which supported his claims. The trial court further concluded that petitioner's claims of ineffective assistance of counsel and prosecutorial misconduct were raised in his direct appeal and were therefore barred by application of res judicata. Petitioner now appeals and assigns four errors for our review. Petitioners first and second assignments of error are interrelated and state: THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S CLAIM OF PROSECUTORIAL MISCONDUCT, FOR THE PURPOSE OF POST-CONVICTION RELIEF, AND APPLIED RES JUDICATA TO THE CLAIM. THE COURT ERRED AND/OR ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR THE PURPOSE OF POST-CONVICTION RELIEF, AND APPLIED RES JUDICATA TO THE CLAIM. Within this assignment of error, petitioner complains that the trial court erroneously rejected his claims of prosecutorial mis- conduct and ineffective assistance of counsel by application of the -4- doctrine of res judicata. Petitions for post-conviction relief are governed by R.C. 2953.21 which provides in relevant part as follows: (A)(1) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the per- son's 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. * * * (C) *** Before granting a hearing on a petition filed under division (A) of this section, 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, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indict- ment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. The 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. (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 even if a direct appeal of the case is pending. If the court notifies the parties that it has found grounds for granting relief, either party may request an appellate court in which a direct appeal of the judgment is pending to remand the pending case to the court. * * * (G) If the court does not find grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter judgment denying relief on the petition. -5- Thus, a hearing is not mandated on every petition for post- conviction relief. State v. Ledger (1984), 17 Ohio App.3d 94, 96. There must be substantive grounds for relief which warrant a hearing, based on the petition, supporting evidence, and the files and record of the matter. Id.; State v. Jackson (1980), 64 Ohio St.2d 107, 110. R.C. 2953.21(E). Further, where the petition asserts issues which were raised at trial or were reviewed upon direct appeal, the petition is properly denied by application of the doctrine of res judicata. State v. Szefcyk (1996), 77 Ohio St.3d 93, syllabus. Accord State v. Perry (1967), 10 Ohio St.2d 175, paragraphs seven and nine of the syllabus. In this instance, the claim of prosecutorial misconduct is premised upon the prosecuting attorney's remarks in his opening statement at trial that petitioner's actions were clearly visible to the arresting officers because there was a streetlight on the corner. Petitioner asserts that the prosecuting attorney failed to disclose exculpatory evidence concerning the lighting in the area and therefore suppressed evidence. As an initial matter, it is clear that the duty to disclose exculpatory evidence requires the prosecuting attorney to give the defense all obviously exculpatory evidence in the hands of the prosecutor, which `is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce[.]' State v. Walden, supra, citing United States v. Agurs (1976), 427 U.S. 97. In this instance, while the prosecuting attorney stated -6- that streetlights illuminated the area, there is no indication that he had detailed information concerning all of the lighting in the area. Indeed, this is the type of information which is generally pursued independently by the defense. In light of the independent nature of this evidence, we are unable to accept petitioner's claim that this information was suppressed by the state. Moreover, while petitioner has presented an unidentified document of unknown origin concerning wattages and in service dates, many of which are after the date on which petitioner was found to have illegally possessed a weapon, it is unclear to what this document refers. Petitioner wishes to create the inference that this document demonstrates that no lighting was in place at the various locations listed until the various in service dates, but it is unclear whether this document simply indicates the date on which light bulbs were replaced in existing structures. In addition, it is not clear that complete information was presented, including lighting information at the nearby school which was a focus of the trial testimony. In accordance with the foregoing, we concur with the trial court's determination that petitioner failed to present substantive grounds for relief as to this claim. The claim of ineffective assistance of counsel was premised upon petitioner's claim that his trial counsel did not conduct an adequate pretrial investigation. This claim likewise could have been raised in petitioner's direct appeal to this court. Id. Thus, the doctrine of res judicata bars petitioner from reliti- -7- gating it further. Accord State v. Apanovich (1991), 70 Ohio App.3d 758, 762. In any event, no substantive grounds for relief were presented to demonstrate the purported inadequacy of trial counsel's pretrial investigation. The first and second assignments of error are overruled. Petitioner's third assignment of error states: THE COURT ERRED AND/OR ABUSED ITS DISCRETION WHEN IT DENIED THE APPELLANT'S CLAIMS OF IMPEACHMENT, AND INCON- SISTENT TESTIMONY WITHOUT A HEARING WHEN ONE WAS REQUIRED TO ESTABLISH THE CLAIM OR DISPUTE IT. Herein, petitioner asserts that the trial court erred when it denied, without a hearing, his claims concerning his inability to present impeachment testimony. As an initial matter, we note that a petition for post- conviction relief must be predicated upon the denial or infringement of constitutional rights so substantial as to render the judgment void or voidable. State v. Walden (1984), 19 Ohio App.3d 141, 149. Thus, challenges to evidence must be of consti- tutional dimension. In any event, as we noted previously, a hearing is mandated only when there are substantive grounds for relief which warrant a hearing, based on the petition, supporting evidence, and the files and record of the matter. State v. Jackson, supra; R.C. 2953.21(E). Considering petitioner's claim that he was barred from presenting impeachment evidence to demonstrate the bias of the state's witnesses, no evidence was offered to substantiate this -8- claim, and indeed, we do not know the nature of the alleged bias. Accordingly, it is not clear that this claim rises to the level of a constitutional claim, and in any event, due to the complete lack of supporting evidence as to this claim, we are unable to conclude that the trial court erred in failing to hold an evidentiary hearing on this matter. Petitioner's fourth assignment of error states: THE COURT ERRED AND/OR ABUSED ITS DISCRETION WHEN IT DISMISSED THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT ADEQUATE FINDING OF FACT IN ITS CONCLUSION WHICH DENIED APPELLANT DUE PROCESS. Petitioner next asserts that the trial court's findings of fact and conclusions of law were prejudicially inadequate. It is well-settled that findings of fact and conclusions of law are mandatory under R.C. 2953.21 if the trial court dismisses the petition. See State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, 19. Accord State ex rel. Brown v. Court of Common Pleas of Coshocton County (1986), 23 Ohio St.3d 46. The Supreme Court explained this requirement as follows: Important policy considerations also underlie this decision. The obvious reasons for requiring findings are *** to apprise petitioner of the grounds for the judgment of the trial court and to enable the appellate courts to properly determine appeals in such a cause. Jones v. State (1966), 8 Ohio St.2d 21, 22 [37 O.O.2d 357]. The existence of findings and conclusions are essential in order to prosecute an appeal. Without them, a petitioner knows no more than he lost and hence is effectively precluded from making a reasoned appeal. In addition, the failure of a trial judge to make the requisite findings prevents any meaningful judicial review, for it is the findings and the conclusions which an appellate court reviews for error. -9- State v. Mapson (1982), 1 Ohio St.3d 217, 219. Thus, the ultimate question presented in determining such challenge is whether the journal entry at issue satisfies the aforementioned policy considerations. See State ex rel. Carrion, supra, at 20. In this instance, the trial court issued findings of fact and conclusions of law which were four pages in length. The court's entry addressed each of petitioner's claims with reference to the trial and appellate record of this matter and the controlling case law. We find that it satisfies the policy considerations of informing petitioner and this court of the basis of its action in order to ensure effective appellate review. The fourth assignment of error is overruled. Petitioner's fifth assignment of error states: THE COURT ERRORED (SIC) AND/OR ABUSED ITS DISCRETION WHEN IT DISMISSED THE APPELLANT'S PETITION WITHOUT A HEARING OR FOLLOWING THE CRITERIA OF *** R.C. 2953.21 CAUSE SUFFICIENT FACTS IN SUPPORT OF THE CLAIMS WAS ATTACHED TO THE PETITION. Within this assignment of error, petitioner complains that the trial court denied his petition without a hearing when it had previously appointed the public defender to represent petitioner in this matter. Initially, we note that R.C. 120.16(A) and (D) authorize a trial court to appoint the public defender in post-conviction proceedings if the public defender concludes that the issues raised by the petitioner have arguable merit. State v. Crowder (1991), 60 Ohio St.3d 151, paragraph one of the syllabus. Thus the trial -10- court's granting of the motion presents no indication of the ultimate merits of the petition. Moreover, as we noted previously, a hearing is not mandated on every petition for post-conviction relief; there must be substantive grounds for relief which warrant a hearing. State v. Ledger, supra. In this instance substantive grounds warranting relief were not presented and the trial court did not err in denying the petition without a hearing. The fifth assignment of error is overruled. Affirmed. -11- 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. KARPINSKI, J., AND SPELLACY, J., CONCUR. ANN DYKE 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 .