COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69835/73177 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : MELVIN BONNELL : OPINION : Defendant-Appellant : Date of Announcement of Decision AUGUST 27, 1998 Character of Proceeding Civil appeals from Court of Common Pleas Case No. CR-223820 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES LAURENCE E. KOMP Cuyahoga County Prosecutor RANDALL L. PORTER L. CHRISTOPHER FREY Assistant State Public Defenders DANIEL MARGOLIS Ohio Public Defender Commission Asst. Prosecuting Attorneys 8 East Long Street, 11th Floor 1200 Ontario Street Columbus, Ohio 43215-2998 Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Melvin Bonnell appeals from the trial court's denial without a hearing of his petition for post- conviction relief (R.C. 2953.21) from his conviction for aggravated murder, death sentence and related crimes. Defendant contends the trial court erred in denying him access to exculpatory materials; in not finding the State had suppressed exculpatory materials; in not striking the State's untimely pleadings; in not awarding defendant summary judgment or judgment on the pleadings; in granting the State summary judgment; in denying the motion to disqualify the prosecutor's office; in applying res judicata; in denying defendant an evidentiary hearing; and in other asserted procedural or substantive mistakes hereinafter referenced, all allegedly in violation of defendant's constitutional rights. Based on our review of the petition, the supporting papers, and the entire record in this case, we find the trial court committed no reversible error and affirm for the reasons hereinafter stated. Defendant was indicted on December 30, 1987 for two counts of aggravated murder of Eugene Bunner (R.C. 2903.01) with felony murder and firearm specifications; one count of aggravated burglary (R.C. 2911.11) with firearm and aggravated felony specifications; and one count of having a weapon while under disability (R.C. 2923.13) with firearm and violence specifications. Prior to trial, the disability count was severed and eventually dismissed. A jury trial commenced on February 22, 1988. The critical evidence in the case was summarized by this Court as follows in the -3- direct appeal affirming the convictions, State v. Bonnell (Oct. 5, 1989), Cuyahoga App. No. 55927, unreported at 1-3: The State's evidence showed that the decedent, Robert Eugene Bunner, lived with Ed Birmingham and Shirley Hatch in the upper half of an apartment on 5709 Bridge Avenue in Cleveland. On November 27, 1986, the three began drinking in their apartment at noon, and continued to do so until well into the early morning hours of the following day. Birmingham eventually became intoxicated and went to bed at 8:30 p.m.; Hatch and decedent remained awake. At about 3:00 a.m. on November 28, Hatch heard a knock at the back door. She peered through a peephole but could not identify who had knocked. When the person identified himself as Charlie, Hatch asked decedent to help. Decedent opened the door. Hatch saw defendant standing at the door with his hands in his coat pocket. Defendant walked into the kitchen, uttered an expletive and fired two gunshots from close range at decedent, one striking him in the chest, the other in the groin. Hatch stated that defendant turned to her, but that she was able to run to Birmingham's room. Hatch managed to awaken Birmingham. When Birmingham entered the kitchen, he saw defendant sitting on top of decedent, striking him repeatedly in the face. Birmingham pulled defendant away and threw him out the door and down the flight of rear steps. Hatch telephoned the police and an ambulance. Two downstairs neighbors testified that at about the same time they heard a commotion and the sound of someone falling heavily to the floor. One of the neighbors also stated that it sounded like someone had fallen down the rear steps. While they did not see an automobile, they did hear the sound of automobile wheels squealing. One of the neighbors stated that she saw a police cruiser with flashing lights pass by the apartment immediately following the squealing of tires. At about 3:40 a.m. that night, two Cleveland police patrolmen were cruising down -4- Bridge Avenue when they spotted a blue Chevrolet, operated by defendant, traveling backwards on Bridge Avenue with its headlights off. When the patrolmen attempted to stop the automobile, it turned and sped away. A chase ensued and the Chevrolet crashed into the side of a funeral chapel. One of the police officers on the scene at the funeral chapel later responded to the emergency call at Birmingham's apartment on Bridge Avenue. After taking a description of the assailant, the officer realized it matched that of the person who had crashed during the chase. The defendant was taken to the hospital for treatment of injuries he sustained during the crash. At the hospital, Birmingham later identified defendant as the assailant. A search of the curb surrounding the funeral chapel uncovered a .25 automatic pistol. Test firings of that pistol confirmed that it had fired the bullets removed from decedent's body. Defendant did not testify. His witnesses corroborated his earlier statement that he had been out drinking with a friend, Joe Popil. In this statement to police, defendant maintained that Popil owned the gun and was driving the blue Chevrolet. Popil supposedly stopped at the Bridge Avenue address and entered the house alone with the gun. When he returned to the automobile, he placed the gun in the glove compartment. Defendant stated that he passed out from the alcohol and did not remember anything until he awoke in the hospital. Popil confirmed that he had been out with defendant, but maintained that he was driven home at 11:30 p.m., whereupon he became ill from drinking. On March 3, 1988, the jury found defendant guilty of the offenses charged. Following the sentencing phase, the jury returned a verdict on March 25, 1988 recommending the death penalty. On March 29, 1988, -5- the trial court imposed the death sentence. On May 28, 1988, the trial court filed the opinion of the trial judge pursuant to R.C. 2929.03(F). Defendant was also sentenced to ten to twenty-five years for aggravated burglary. Defendant, with newly appointed counsel from the Ohio Public Defender's Office took his direct appeal to this Court. On October 5, 1989, this Court affirmed the aggravated murder conviction and the death sentence, but remanded the case back to the trial court for resentencing on the aggravated burglary conviction. In doing so, this Court reviewed thirty assignments of error. Defendant was resentenced on October 25, 1989. An appeal of right was taken to the Ohio Supreme Court. On July 24, 1991, after reviewing 39 propositions of law assigned, the Supreme Court found the evidence of appellant's guilt to be overwhelming and affirmed defendant's convictions and sentences. State v. Bonnell (1991), 61 Ohio St.3d 179. Defendant's request for rehearing was denied. Defendant's petition to the United States Supreme Court for a writ of certiorari was denied. Bonnell v. Ohio (Feb. 24, 1992), 112 S.Ct. 1205. On November 27, 1992, defendant filed an application for delayed reconsideration in this Court based on ineffective assistance of appellate counsel. State v. Murnahan (1992), 63 Ohio St.3d 60. On May 6, 1994, this Court reviewed defendant's 53 assignments of error and denied defendant's application. State v. Bonnell(May 6, 1994), Cuyahoga App. No. 55927, unreported, and his -6- subsequent appeal to the Ohio Supreme Court was denied in State v. Bonnell (Dec. 20, 1994), 71 Ohio St.3d 223. Defendant filed his petition for post-conviction relief with the trial court on March 16, 1995 asserting 53 claims for relief based on 311 numbered paragraphs with over 500 pages of supporting information. Defendant also filed four discovery or related motions with his petition. The State filed its opposition brief and moved to dismiss and for summary judgment. The trial court, without a hearing, denied the defendant's motions and dismissed the post-conviction petition on October 17, 1995, filing findings of fact and conclusions of law referencing defendant's claims. This timely appeal ensued. We will address defendant's ten assignments of error in the order asserted and together where it is appropriate for discussion. I. THE TRIAL COURT ERRED IN DENYING MR. BONNELL'S POST-CONVICTION CLAIMS CONCERNING THE STATE'S SUPPRESSION OF EXCULPATORY EVIDENCE IN VIOLATION OF MR. BONNELL'S RIGHTS AS GUARANTEED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION. A trial court's authority to grant post-conviction relief is predicated on R.C. 2953.21, which states in pertinent part: Any person convicted of a criminal offense or adjudged delinquent claiming 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 at any time in court which 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. -7- The trial court concluded that [a] review of Petitioner's Appendix indicates that the State of Ohio complied with the mandates of Criminal Rule 16 and Brady v. Maryland (1963), 373 U.S. 83. Therefore, Relator's Claims for Relief Nos. 1, 4, 6, 7, 8, 9, 14, 16, 17, 18, 19, 21, 23, 27, 28, 29, 30, 31, 32, 37, 39, 40, 41, 43, 44, 45, 46, 47, and 48 lack merit. (Conclusions of Law No. 7). The referenced claims referred to defendant's contentions that the prosecution had unconstitutionally withheld exculpatory evidence favorable to defendant. We agree with the trial court that defendant's allegations that the State failed to disclose various documents were without merit. Pursuant to Crim.R. 16(B)(2), there is generally no duty to provide the defendant witness statements, police notes or reports. State ex rel. Edwards v. Curran (June 5, 1997), Cuyahoga App. No. 71197, unreported. However, Crim.R. 16(B)(1)(f) requires the prosecutor to disclose to defense counsel all evidence, favorable to the defendant and material either to guilt or punishment. In Brady v. Maryland (1963), 373 U.S. 83, 87, the Supreme Court stated: The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material *** to guilt. The mere possibility that an item of non-disclosed information might have helped the defense or might have affected the outcome of the trial does not establish materiality in the constitutional sense. This Court in State v. Apanovitch (1995), 107 Ohio App.3d 82, 92, citing to Kyles v. Whitley (1995), 514 U.S. , 115, S.Ct. -8- 1555, set forth a four-prong test to determine if evidence suppressed by the State is material. First, favorable evidence is material, and constitutional error results from its suppression by the government if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id., 514 U.S. at , 115 S.Ct. at 1566. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.; see, also, State v. Johnston (1988), 39 Ohio St.3d 48, paragraph five of the syllabus. Second, a defendant may show a Brady violation by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Id. Third, if the reviewing court should find constitutional error, there is no need for further harmless error review. Id. Fourth, the state's disclosure obligation turns on the cumulative effect of all suppressed evidence favorable to the defense, not only the evidence considered item by item. Id., 514 U.S. at , 115 S.Ct. at 1567. Our review of the record below and the defendant's voluminous listing of alleged material evidence suppressed by the State does not show that the State violated the defendant's constitutional right to such evidence. Defendant had access to all the State's witnesses, including the detectives whose reports he now claims he should have had. Defendant was not prevented from discussing the case with these witnesses. Moreover, the evidence that defendant now claims he should have had was either already known by defense counsel or was of such nature that it was in no way material to guilt or innocence. Defendant has not shown that any of the evidence was material or would have changed the outcome of the case. -9- In an attempt to evaluate defendant's allegations that the State's suppression of exculpatory evidence led to an unfair trial, we confess to difficulty in following the defendant's argument. This is not only true because of the voluminous nature of the materials, but because defendant's brief mingles, incorporates by reference, minutely details, repetitiously states and fails to collect allegations by category in an organized manner. No attempt is made to sort out the material from the immaterial, what was brought out at trial versus what was omitted, and whether minor discrepancies were meaningful or not. To illustrate the problem this presents for a reviewing court, we will use defendant's first assignment of error as an example, but the problems reappear throughout the brief. Under Assignment of Error I, defendant claims that the State withheld exculpatory evidence which cast doubt on the outcome of the trial. This claim was asserted, in one form or another, in 29 separately stated claims for relief in defendant's petition for relief. In his appellate brief, defendant boils this down to fifteen episodes involving 64 line items or more. To illustrate the inconsistences between withheld statements given to police and trial testimony, defendant supplies the following chart which we use for example only: -10- 11/28/87 Statement prepared by Goldstein and McKibben (Exhibit K): - Hatch was in bed - Hatch was on the couch talking; in the living room talking. Tr. 956; - Hatch heard a knock, - Hatch heard a knock, followed by a voice Hatch goes to door, asks calling out the name who it is and voice "Charles"; responds "Charles". Tr. 956-958; - Hatch was standing - Hatch was beside Gene behind Gene when shot; when he was shot. Tr. 960; - Hatch heard a pop; - Hatch saw Gene shot twice. Tr. 960; - Hatch ran to bedroom - Hatch went to bedroom and hid in closet; and shut the bedroom door. Tr. 961; - The assailant tried to - The Assailant pounded enter the closet; on the bedroom door. Tr. 961; - Ed rose from bed on his - Hatch woke Ed after the own initiative; assailant stopped pounding on door. Tr. 961; - Hatch had never - Hatch had previously previously seen suspect seen suspect. Tr. 965- prior to the homicide. 966. Even a cursory review of this kind of "evidence" displays its lack of materiality. Minor inconsistencies which may impeach the accuracy of a witness' recollection of a drunken traumatic episode do not warrant grounds for overturning a murder verdict. We will attempt nonetheless to address the issues presented. -11- Regarding the negative test result of the gun nitrates on the defendant's jacket, there is no reasonable probability that the outcome of the trial would have been different had this test result been admitted. As the forensic scientist in this case testified regarding another matter, a negative test result does not make a positive finding. It simply means that laboratorywise we have no evidence. (Tr. 912). Furthermore, the results of scientific tests are considered to be work product and, therefore, exempt from disclosure pursuant to R.C. 149.43(A)(2)(c). State ex rel. Williams v. Cleveland (Dec. 24, 1992), Cuyahoga App. No. 61762, unreported at 4; State ex. rel. Apanovitch v. Cleveland (Feb. 6, 1991), Cuyahoga App. No. 58867, unreported at 19-20. The pretrial statements made by Birmingham that are contained in the police reports that the defendant claims should have been provided to him are for the most part immaterial. The fact that the officers wrote in their report that Birmingham was too drunk to give a statement is not material when viewed in light of the whole trial. Birmingham was vigorously cross-examined regarding his drunken state and the jury therefore knew how much he had drunk. (Tr. 941). Therefore, the officers' report regarding this was not material. The fact that Birmingham had initially denied knowing the defendant was also brought out on cross-examination and the defendant's oral statement transcribed by the detective in which he denied knowing the defendant was also entered into evidence. (Tr. 947). Therefore, the police report regarding this point was -12- immaterial. Defendant also argued this issue on direct appeal and therefore it is barred by res judicata. The other statements made by Birmingham that the defendant claims are material consist of minor inconsistences surrounding the event, i.e., who was at the apartment; minor differences in his description of the assailant, etc. In light of all the evidence presented implicating the defendant, these minor details would not have had an effect on the outcome of the trial. State v. Apanovitch, supra, at 94 ( We find the evidence is not material because there is no probability that had the evidence been disclosed at trial, the result would have been different. *** The evidence is devoid of exculpatory content. ); State v. Williams (Jan. 18, 1996), Cuyahoga App. No. 68613, unreported at 4 ( These conflicts in details concerning the events surrounding the events are not material inconsistencies, and there is no reasonable probability that the outcome of the trial would have been different if the statements had been disclosed. ). The statements in the police reports respecting Campbell corroborating the conversation that Birmingham's downstairs neighbors heard Birmingham tell Campbell that he had set-up the murder was an issue presented on direct appeal and is therefore res judicata. State v. Bonnell (Oct. 5, 1989), Cuyahoga App. No. 55927, unreported at 12-13. The statements made by Shirley Hatch contained in the police reports are also, for the most part, immaterial. Hatch admitted on cross-examination that she initially told the police that she -13- did not know the defendant. (Tr. 978-980). So, any evidence in the police reports was immaterial given the jury was aware of this. This issue was also raised on direct appeal and is therefore barred by res judicata. The defendant's list of the other minutiae to which Hatch inconsistently testified amounted to immaterial details surrounding the event. State v. Williams, supra. As stated before, even a cursory review of the evidence displays its immateriality. The statements contained in the police reports by the two arresting officers concerning where the chase of defendant began was also immaterial. Given the other evidence against the defendant, this type of inconsistency of detail would not have affected the outcome of the trial. Whether the defendant's Miranda warnings were read to him before he gave his oral statement to the police was also the subject of the defendant's motion to suppress and argued before the trial court. (Tr. 812-816). Since the argument appears on the record, the defendant should have raised this in his direct appeal and res judicata now prevents him from further arguing it. Whether the fact that the jail house snitch, who the detectives had led the defendant to believe had informed them of defendant's confession, had been released prior to the time the defendant was incarcerated, would have had an impact on the outcome on the trial is doubtful. Defendant claims the jail house snitch confession is what prevented him from testifying in his own behalf. However, this is speculative. Furthermore, defense counsel could -14- have discovered this information before trial through their own investigation. The fact that blood was found on the back porch hand railing and on a green pillow on the back porch is not material. Birmingham had testified that he witnessed the defendant punching the victim and that blood was all over the place. He then picked up the defendant and threw him out the back door onto the back porch. (Tr. 785-786, 921, 923, 928, 938). It is conceivable that the blood was transferred to these areas by the defendant. Therefore, since there is no reasonable probability that this evidence would have affected the outcome of the trial, it was not material. The remaining arguments are regarding evidence involving uncharged suspects. This Court in State ex. rel Bonnell v. Cleveland (Aug. 26, 1993), Cuyahoga App. No. 64854, unreported at 2-3, held that the report regarding uncharged suspects was not discoverable pursuant to R.C. 149.43(A)(1) and (A)(2)(a). Therefore, this issue is barred by res judicata. Any evidence concerning the investigation of Butcher and Egnor as possible suspects are not discoverable as they were never charged. See R.C. 149.43(A)(2)(a). State ex. rel Williams v. Cleveland (Dec. 24, 1992), Cuyahoga App. No. 61762, unreported at 8-9; State v. Williams (Jan. 18, 1996), Cuyahoga App. No. 68613, unreported at 9. -15- In conclusion, we find that the cumulative effect of all the non-disclosed evidence that defendant alleges was material would not have impacted the result of the trial. Assignment of Error I is overruled. -16- II. THE TRIAL COURT ERRED IN DISMISSING MR. BONNELL'S POST-CONVICTION PETITION WITHOUT GRANTING MR. BONNELL'S REQUEST FOR ACCESS TO THE EVIDENCE ADMITTED AT HIS TRIAL VIOLATES HIS SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION. Defendant filed a series of discovery motions with his petition for post-conviction relief. One motion dealt with the release of physical evidence for testing. The failure to receive the evidence is assigned as error. As this Court held in State v. Lott (Nov. 3, 1994), Cuyahoga App. Nos. 66388/66389/66390, the trial court has no jurisdiction to permit discovery in a post conviction proceeding: [A]lthough a post-conviction relief proceeding under R.C. 2953.21 is civil in nature, the extent of the trial court's jurisdiction is set forth by the statute, and the power to conduct and compel discovery under the civil rules is not included within the trial court's statutorily-defined authority. *** We agree and conclude that appellant was not entitled to conduct discovery under the rules of civil procedure in a post-conviction relief proceeding. It must be emphasized that a post-conviction proceeding under R.C. 2953.21 does not grant power to the trial court to authorize discovery under the Rules of Civil Procedure. A post-conviction relief proceedings is not a civil re-trial of appellant's conviction. Id. at 12; see, also, State v. Josso (Aug. 22, 1996), Cuyahoga App. Nos. 70350-70352, unreported at 4. We therefore find that the defendant was not entitled to further discovery in support of his petition for post-conviction relief. This also applies to the defendant's motion to examine the -17- physical evidence. State v. Hill (June 16, 1995), Trumbull App. No. 94-T-5116, unreported at 7. Defendant was not prejudiced by the lower court's refusal to allow discovery. Assignment of Error II is overruled. III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTIONS TO STRIKE THE STATE'S UNTIMELY FILINGS IN VIOLATION OF APPELLANT'S EQUAL PROTECTION AND DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 2 AND 16 OF THE OHIO CONSTITUTION, OHIO REV. CODE 2953.21, OHIO R.CIV. 6 AND 7, AND LOC.R. 11. Defendant contends that the trial court should have struck the State's opposition to the post-conviction relief petition because it was 36 days late in filing. State v. Sklenar (1991), 71 Ohio App.3d 444 holds that the time specified in R.C. 2953.21 for a response to a post-conviction petition is directory rather than mandatory. Id. at 444. A defendant's remedy for the failure of the prosecutor to respond to a petition is to move for a ruling without the State's response. State ex rel. Manning v. Montgomery, Pros. (1988), 39 Ohio St.3d 140; Skl enar, supra, at 444; State v. Roberts (1991), 66 Ohio App.3d 654, 656; State v. Williams (Nov. 24, 1993), Cuyahoga App. No. 64151, unreported at 3. Defendant never moved for a ruling in the absence of the State's response nor filed a motion to strike after the response. We will not penalize the State for its tardy filing in a case six years old where there are voluminous and confusing materials to address. Assignment of Error III is overruled. -18- IV. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO APPELLANT'S THIRTEENTH CLAIM FOR RELIEF, THEREBY VIOLATING APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. Defendant claims he was unfairly convicted of a capital specification in that the jury instruction as to the principal offender was not given as required by R.C. 2929.04(A)(7). This issue was raised on direct appeal to the Ohio Supreme Court. (Proposition of Law 15). Defendant was represented on direct appeal by the State Public Defender. The Supreme Court wrote: Appellant contends that the trial court erred by failing to instruct the jury that appellant must be found to be the principal offender of the aggravated murder offense in order for appellant to be found guilty of the R.C. 2929.04(A)(7) death penalty specification. Additionally, appellant argues that because the verdict forms do not indicate that the jury found appellant to be the principal offender, the state failed to prove an essential element of its case. We find no reversible error. The evidence in this case does not reasonably suggest that Bunner's murder was committed by more than one offender. Thus, appellant was either the principal offender, or he committed no offense at all. We conclude that, under these circumstances, any error in failing to instruct the jury on the principal offender issue was not outcome determinative. State v. Bonnell (1991), 61 Ohio St.3d 179, 184. This matter has been fully and finally litigated. The doctrine of res judicata bars post-conviction relief on an issue raised on direct appeal. State v. Perry (1967), 10 Ohio St.2d 175. Assignment of Error IV is overruled. -19- V. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION, AND OHIO R.CIV.P. 56. IX. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT BONNELL AN EVIDENTIARY HEARING IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. The trial court properly disposes of a petition for post- conviction relief without a hearing where the petition fails to establish a substantive ground for relief. 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 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. -20- 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 stated the test 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 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 petitioner satisfies 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 suggests that the trial court erred by denying the defendant an evidentiary hearing on his petition for post- conviction relief and by granting judgment on the State's brief in opposition. In compliance with R.C. 2953.21(C), the trial court found that there were no substantive grounds for relief in defendant's petition and ruled that a hearing was not necessary: The Court finds, upon review of petitioner's allegations and the entire record in this case, that there are no substantial grounds for relief. Furthermore, upon review of this record, there is no need for a hearing on this matter pursuant to O.R.C. Section 2953.21(C). (Oct. 17, 1995, Findings of Fact and Conclusions of Law at 9). -21- We have reviewed the evidentiary materials, the entire record and defendant's allegations. We find no grounds for disturbing the trial court's decision not to hold a hearing on this matter. Assignments of Error V and IX are overruled. -22- VI. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO DISQUALIFY THE CUYAHOGA COUNTY PROSECUTOR'S OFFICE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 10, AND 16 OF THE OHIO CONSTITUTION. Defendant challenges the continued representation of the State by the Cuyahoga County Prosecutor's Office as the trial prosecutor, Richard Bombik, supplied an affidavit in support of a brief in opposition to defendant's post-conviction discovery motion. Bombik's affidavit indicated that he had complied with Crim.R. 16 and had disclosed exculpatory evidence as required under Brady v. Maryland, supra. Defendant suggests that once a member of the prosecutor's office appeared as a witness, all other members of the office were disqualified from handling the case. Defendant relies on DR5- 102(A) in support of this proposition, but cites no relevant cases in Ohio or elsewhere supporting such a draconian measure. In the present matter, the State's trial attorney was not counsel of record on the post-conviction petition. No hearing was had on defendant's discovery motions. The appearance of the trial prosecutor was limited to supplying his affidavit. To require disqualification of the prosecutor's office would work an extraordinary hardship, waste taxpayer's money and encourage the filing of frivolous post-conviction relief petitions. Indeed, to accept defendant's position, the county prosecutor would be disqualified to handle the prosecution of any case where the office investigated or testified before the grand jury. Just -23- as the prosecutor would have to obtain outside or special counsel, so too would the State Public Defender be disqualified whenever an assistant in that office supplied an affidavit in support of a motion. Clearly, such a result would result in a substantial hardship on already limited resources of the government. Assignment of Error VI is overruled. VII. THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA IN VIOLATION OF MR. BONNELL'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION, AND OHIO R.CIV.P. 12(B). VIII. THE TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION TO VACATE OR SET ASIDE SENTENCE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION. Defendant contends that the doctrine of res judicata can not be applied by the trial court to the allegations of his post- conviction petition. Under Ohio law, the doctrine of res judicata stands for the proposition that an existing, final judgment or decree, rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties or their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. State ex rel. Bush (1992), 63 Ohio St.3d 453, 456; Quality Ready Mix, Inc. v. Mamone (1988), 35 Ohio St.3d 224, 227. -24- Although the doctrine of res judicata is frequently raised in the context of civil cases, it is equally applicable to post- conviction relief proceedings. State v. Nichols (1984), 11 Ohio St. 3d 40. Therefore, res judicata prevents the defendant from raising and litigating any defense or claimed lack of due process that was raised or could have been raised by the defendant at trial or on an appeal from that judgment. State v. Perry, supra; State v. Rodriguez (1989), 65 Ohio App.3d 151, 153. In its brief in opposition, the State argued res judicata barred the consideration of issues that had been previously litigated or could have been fairly litigated based on the voluminous record in this case. Defendant claims that the State could not raise the defense of res judicata pursuant to a Civ.R. 12(B)(6) motion to dismiss. We find that raising res judicata in a Civ.R. 12(b)(6) motion to dismiss is permissible in post-conviction relief cases. As this Court recently held in State v. Broom (May 7, 1998), Cuyahoga App. No. 72581, unreported: R.C. 2953.21(C) contemplates that courts will dismiss petitions for postconviction relief since it states, if the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. A dismissal under R.C. 2953.21 is not akin to a Civ.R. 12(B)(6) dismissal. In State v. Lawson (1995), 103 Ohio App.3d 307, 313, the court stated: Although the Rules of Civil Procedure generally apply to postconviction proceedings, dismissals rendered under R.C. 2953.21 are different from those made under Civ.R. 12(B). *** For example, unlike Civ.R. 12(B), R.C. 2953.21 requires the court to look beyond the -25- petition and response and specifically allows the prosecution to respond by motion rather than by answer. Because postconviction proceedings are statutorily created, specific requirements set out by statute take priority where they conflict with the Civil Rules. Likewise, the general prohibition against raising the defense of res judicata in a Civ.R. 12(B)(6) motion to dismiss, see State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, is inapplicable to postconviction proceedings. Ordinarily, the factual allegations of a complaint should be taken as true. *** This would preclude the court from issuing findings of fact and conclusions of law when ruling on a motion to dismiss since the court makes no factual findings beyond its legal conclusion of that the complaint fails to state a claim. *** However, the court is authorized to dismiss a petition for post conviction relief without a hearing if a petitioner fails to submit evidentiary material that sets forth sufficient operative facts to demonstrate substantive grounds for relief. *** To that end, R.C. 2953.21(C) requires the court to consider evidentiary materials beyond the pleadings to determine whether there are substantive grounds for relief that warrant a hearing. Based on the foregoing, we find no error in the trial court's dismissal of the petition on res judicata grounds. Defendant's post-conviction claims set forth in the eighth assignment of error were each capable of being reviewed on direct appeal from the conviction. In fact, the State Public Defender represented defendant before this Court and the Ohio Supreme Court. Defendant also sought delayed reconsideration in this Court, raising 51 proposed assignments of error. On May 6, 1994, this Court declined to reopen the appeal. We hold that the trial court properly applied res judicata to the numerous claims for relief referenced above. -26- Assignments of Error VII and VIII are overruled. X. THE TRIAL COURT ERRED IN FAILING TO ISSUE SUFFICIENT FINDINGS OF FACT AND CONCLUSIONS OF LAW IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. In his final assignment of error, defendant contends the judgment of the court below is erroneous because the trial judge issued inadequate findings of fact and conclusions of law. In State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, the Ohio Supreme Court held a trial court is not required to issue findings of fact and conclusions of law above and beyond that which is necessary to allow the appellate court to review the decision. In other words, there is no required style and/or length to the determinations rendered by the trial judge. Defendant fails to specify any claim in the petition which this Court could not review due to the allegedly deficient findings made by the trial court. We find the record was sufficient to allow our review of the merits or lack thereof of the post- conviction petition and the trial court's rulings on same. Assignment of Error X is overruled. Judgment affirmed. -27- 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. SPELLACY, J., CONCURS. KARPINSKI, J., CONCURS IN JUDGMENT ONLY. 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 .