COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72411 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION `ABDUL HALIYM, f.k.a. : Wayne Frazier : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-216710 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Prosecuting Attorney ERIKA RITT (#0067009) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 (CONTINUED ON NEXT PAGE) For Defendant-Appellant: KEN MURRAY (#0002519) 8 East Long Street Suite 424 Columbus, Ohio 43215 CAROL WRIGHT (#0029782) -ii- Post Office Box 37 37 Connections Street St. John U.S. Virgin Islands 00831 SPELLACY, J.: Defendant-appellant, `Abdul Haliym, f.k.a. Wayne Frazier ( appellant ), appeals from the trial court's order denying his petition to vacate or set aside conviction and/or sentence. Appellant assigns the following errors for our review: 1. OHIO'S POST-CONVICTION SYSTEM DOES NOT COMPLY WITH THE REQUIREMENTS OF DUE PROCESS AS GUARANTEED BY THE FIFTH, -2- SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 2. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF `ABDUL HALIYM IN SUMMARILY DISMISSING HIS POST-CONVICTION PETITION WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING OR ALLOWING DISCOVERY. 3. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF `ABDUL HALIYM WHEN IT FOUND THAT TEN SEPARATE CLAIMS WERE BARRED BY RES JUDICATA. 4. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF `ABDUL HALIYM IN DISMISSING HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE MITIGATION PHASE OF THE TRIAL. 5. THE TRIAL COURT ERRED IN DISMISSING THE CLAIM FOR RELIEF ALLEGING VIOLATIONS OF DISCOVERY UNDER BRADY V. MARYLAND. 6. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF `ABDUL HALIYM BY FAILING TO REVIEW HIS SECOND CLAIM FOR RELIEF REGARDING THE IMPROPER JURY WAIVER. 7. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF `ABDUL HALIYM WHEN IT DISMISSED HIS PETITION WHERE THE COMPLETE RECORD OF THE CASE WAS NOT BEFORE THE COURT. 8. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF `ABDUL HALIYM IN DENYING RELIEF OF THE CLAIMS RELATING TO THE NEED FOR EXPERT ASSISTANCE. 9. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF `ABDUL HALIYM IN DENYING HIS EIGHTH CLAIM FOR RELIEF, THAT HE IS FACTUALLY AND ACTUALLY INNOCENT OF THE OFFENSE OF AGGRAVATED MURDER. 10. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF `ABDUL HALIYM IN DENYING HIS SEVENTEENTH CLAIM FOR RELIEF, THAT APPELLANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS BECAUSE -3- THREE JUDGE PANELS ARE BIASED IN FAVOR OF THE STATE. Finding appellant's appeal lacks merit, the judgment of the trial court is affirmed. I. On April 6, 1987, a six-count indictment was issued against appellant. Count I of the indictment charged appellant with the aggravated murder of Joann Richards in violation of R.C. 2903.01, and contained aggravated felony, gun, mass murder and felony murder specifications. Count II of the indictment charged appellant with the aggravated murder of Marcellus Williams in violation of R.C. 2903.01, and contained aggravated felony, gun, mass murder and felony murder specifications. Count III charged appellant with aggravated burglary in violation of R.C. 2911.11, and contained aggravated felony and gun specifications. Count IV charged appellant with the attempted murder of Derek Speights in violation of R.C. 2903.02 and R.C. 2923.02, and contained aggravated felony and gun specifications. Count V charged appellant with the aggravated robbery of Williams in violation of R.C. 2911.01, and contained aggravated felony and gun specifications. Count VI charged appellant with the aggravated robbery of Richards in violation of R.C. 2911.01, and contained aggravated felony and gun specifications. Appellant waived his right to a jury trial, and on August 31, 1987, appellant proceeded to trial before a three-judge panel. At trial, appellant was represented by Ralph T. DeFranco and Timothy Koral. On September 4, 1987, the three-judge panel returned guilty -4- verdicts on all counts and specifications charged in the indictment. Following a mitigation hearing, the panel sentenced appellant to death for counts one and two; fifteen years actual incarcerationto twenty-five years maximum for counts three, four, five and six to run concurrent; and a three year term of actual incarceration for the firearm specification. Appellant appealed to this court, which on January 11, 1990, affirmed the convictions except for the gun specifications; and after independently weighing the aggravating circumstances against any mitigating factors and independently determining the proportionality of the death penalty, affirmed the death sentences. See State v. Frazier (January 11, 1990), Cuyahoga App. No. 54771, unreported. On appeal, appellant was represented by David L. Doughten and Patricia M. Walsh. On May 23, 1990, appellant, represented by David L. Doughten, filed an appeal with the Ohio Supreme Court. On July 31, 1991, the Ohio Supreme Court affirmed the decision of this court. State v. Frazier (1991), 61 Ohio St.3d 247. On March 23, 1992, the United States Supreme Court denied certiorari. Frazier v. Ohio (1992), 503 U.S. 941. On April 4, 1996, the Ohio Supreme Court granted a six-month stay of execution of sentence pending the exhaustion of state post- conviction remedies. Subsequently, appellant filed a petition to vacate or set aside conviction and/or sentence pursuant to R.C. 2953.21. Appellant was represented by the State Public Defender's Office on this petition. -5- On January 16, 1997, the trial court denied appellant's petition to vacate or set aside conviction and/or sentence. Appellant files this timely appeal. II. On the evening of March 25, 1987, appellant, his brother Michael Frazier, and Derrick Evans arrived at the apartment of Marcellus Williams. At the time the men entered the apartment, Joann Richards, her seven year old son, Albert Richards, and her infant baby were present. Williams' son, Derek Speights was also in the apartment. Some time after their arrival at Williams' apartment, Derrick Evans jumped up and held a gun to Williams' head and asked Williams for money. Subsequently, Evans began to attack Williams. Speights jumped up and was knocked down by Michael Frazier. Speights, however, was able to observe appellant run over to Richards and hit her as the other attacks commenced. The three men then began repeatedly stabbing their respective victims. As the stabbings were taking place, Albert Richards, who was awoken by the noise, stood in the bedroom doorway and observed appellant stabbing his mother with a knife. After the stabbings had ended, appellant, his brother and Evans proceeded to steal property from the apartment. Shortly after the incident, the police arrived on the scene. The officers learned from Albert Richards that appellant had stabbed his mother. On March 26, 1987, appellant made a statement to the police at which time he admitted that he was in the victim's apartment on the night of March 25, 1987. The police learned of -6- several locations where property from the crime scene was located. In addition to items belonging to the victims, the police recovered a knife which appellant said looked like his except for the rust spots. Another knife was also recovered. Albert Richards later identified the knife as the one used to kill his mother. III. In his first assignment of error, appellant maintains that Ohio's post-conviction procedures under R.C. 2953.21 fail to provide any meaningful opportunity for an individual to redress his or her wrongful convictions. Essentially, appellant argues that R.C. 2953.21 is unconstitutional in that it violates the due process requirements guaranteed by the fifth, sixth, eighth and fourteenth amendments to the United States Constitution. In the present case, appellant challenges the constitutionality of R.C. 2953.21, which sets forth Ohio's procedure for seeking post-conviction relief. Although appellant raised twenty-one claims for relief in his petition for post- conviction relief, none of them challenged the constitutionality of R.C. 2953.21. Generally, an appellate court will not consider an issue regarding the constitutionality of a statute where the issue was not raised in the trial court. State v. Loza (October 13, 1997), Butler County App. No. CA96-10-214, unreported, citing State v. Awan (1986), 22 Ohio St.3d 120, syllabus. Although the waiver doctrine is discretionary, the present case does not present plain error or special circumstances that warrant an exception to the -7- waiver doctrine. Loza, supra. See also In re M.D. (1988), 38 Ohio St.3d 149. A constitutional challenge to R.C. 2953.21 has previously been found to be waived where a post-conviction petitioner failed to raise the issue in the trial court. State v. Benner (April 27, 1997), Summit App. No. 18094, unreported. Further, R.C. 2953.21 has been found to be constitutional. State v. Sklenar (1991), 71 Ohio App.3d 444, 449. Because appellant did not raise this issue below, he waived it on appeal. Accordingly, appellant's first assignment of error is overruled. IV. In his second assignment of error, appellant contends that the trial court erred in dismissing his petition for post-conviction relief without affording appellant an evidentiary hearing. Appellant's second assignment of error is not well taken. A criminal defendant seeking to challenge his conviction(s) through a petition for post-conviction relief is not automatically entitled to a hearing. State v. Cole (1982), 2 Ohio St.3d 112. The trial court, however, has a statutorily imposed duty to ensure that the petitioner adduces sufficient evidence to warrant a hearing. Id. As R.C. 2953.21(C), in pertinent part, provides: Before granting a hearing [on a petition for postconviction relief] the court shall determine whether there are substantive grounds for relief. We have reviewed appellant's claims for relief and found that the trial court properly dismissed several of his claims without a -8- hearing because he failed to submit evidentiary materials that demonstrated substantive grounds for relief. Loza, supra. In addition, we have found the trial court properly dismissed appellant's remaining claims without a hearing based upon the doctrine of res judicata.See State v. Perry (1967), 10 Ohio St.2d 175, at paragraph nine of the syllabus. Accordingly, the trial court properly dismissed appellant's petition without a hearing. Appellant's second assignment of error is overruled. V. For purposes of this appeal, appellant's third and fourth assignments of error will be addressed together. In his third assignment of error, appellant maintains that the trial court erred in finding that Claims Nos. 1, 4, 5, 6, 7, 9, 11, 12, 13, and 15 in his petition for post-conviction relief were barred by res judicata. In his fourth assignment of error, appellant again maintains the trial court erred in dismissing Claim No. 1 in his petition for post-conviction relief setting forth a claim for ineffective assistance of trial counsel during the mitigation phase of trial. We find appellant's third and fourth assignments of error are without merit. In State v. Perry (1967), 10 Ohio St.2d 175, the Ohio Supreme Court stated in paragraph nine of its syllabus: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant * * * from raising * * * any defense * * * that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or an -9- appeal from the judgment. (Emphasis in original). Our review of the record in this case reveals that Claims Nos. 11, 12, 13 and 15 in appellant's petition for post-conviction relief referred to under this assignment of error actually were raised and addressed by the this court and/or the Ohio Supreme Court in prior proceedings. Therefore, these claims are barred under the doctrine of res judicata. The trial court further disposed of Claims Nos. 1, 4, 5, 6, 7 and 9 under the doctrine of res judicata in determining that the claims should have been raised at trial or on appeal. After reviewing the record, we conclude that all of these issues could have been raised on direct appeal and, appellant has provided no new evidence to compel the litigation of those issues which could have been raised on direct appeal. Accordingly, the trial court properly concluded these claims for relief are barred under the doctrine of res judicata, and appellant's third and fourth assignments of error are overruled. VI. In his fifth assignment of error, appellant contends the trial court erred in dismissing his claim for relief alleging violations of discovery under Brady v. Maryland (1963), 373 U.S. 83 as the state withheld exculpatory and/or mitigating evidence from the defense making his conviction or sentence void or voidable. The United States Supreme Court analyzed the disclosure requirements regarding exculpatory evidence in Brady, supra. The holding in Brady was cited by the Ohio Supreme Court at syllabus 4 -10- of State v. Johnston (1988), 39 Ohio St.3d 48, where the court held: 4. The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. (Brady, supra). The Ohio Supreme Court also held, at syllabus 5 of Johnston, supra: 5. In determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This standard of materiality applies regardless of whether the evidence is specifically, generally, or not at all requested buy [sic] the defense. (Bagley, supra.) In the case sub judice, this court must disagree with appellant's contention that the evidence allegedly suppressed by the prosecution was material. Appellant contends the following six items were improperly suppressed by the prosecution: 1. Medical records indicating that the surviving victim, Derek Speights, tested positive for cocaine on March 26, 1987, at St. Vincent Charity Hospital; 2. Statements by Albert Richards, made to police shortly after the incident in which he could not identify the alleged offenders and in which he stated that only two men, not three, were present; 3. Police reports indicating that Michael Frazier had been interviewed by police and that he had told them that Derrick Evans, not Wayne Frazier, had done all of the stabbing, that Wayne Frazier got -11- stabbed in the hand by Derrick Evans, and that there had been no plan to rob anyone at the apartment; 4. Police reports indicating that Derek Speights made statements that Derrick Evans put a towel over his head and that he was unable to see what occurred after that, that he was shown individual photographs of the defendants to identify, and that an individual named Twin had a gun and shot people. 5. Police reports indicating that a nippled baby bottle was found on the couch and that marijuana was found in the apartment; and, 6. Police reports indicating that the foreman at Lemco, William Phillips, had stated that Michael Frazier and Derrick Evans were drunk when they left Lemco at approximately 10:00 p.m. on the night of the incident. (Appellant's Petition for Post-Conviction Relief, p. 27.) The trial court found, and this court agrees, that items 1, 5, and 6 of the claimed exculpatory evidence are not exculpatory in nature or even favorable to appellant's cause. Even if received, items 1, 5, and 6 could not have improved appellant's cause. With respect to item 2, the statements made by Albert Richards to the police clearly identify appellant as the individual who stabbed Joann Richards and kicked Marcellus Williams in the head. The statements do not indicate that Albert Richards could not identify the appellant as one of the alleged offenders. As to item 3, the record does not contain any evidence in support of appellant's contention that his brother, Michael Frazier told the police that Derrick Evans, not appellant, had done the stabbing. Finally, with regard to item 4, this court was not provided with any evidence -12- that statements made by Derek Speights to the police were not provided to appellant and therefore cannot determine the truth or falsity of appellant's claim. Based on the foregoing, appellant's claims and supporting evidence do not convince this court that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The portions of the record provided to this court set forth overwhelming evidence against appellant. Accordingly, appellant's fifth assignment of error is overruled. VII. In his sixth assignment of error, appellant alleges the trial court erred when it determined that the issue of improper jury waiver could not be raised in a post-conviction proceeding. In State v. Pless (1996), 74 Ohio St.3d 333, the Ohio Supreme court held: 1. In a criminal case where the defendant elects to waive the right to trial by jury, R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, filed in the criminal action and made part of the record thereof. Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury. (State v. Tate (1979), 59 Ohio St.2d 50; State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261, construed and applied.) 2. The failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction. (State v. Tate (1979), 59 Ohio St.2d 50; State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261; and State ex rel. Larkins v. -13- Baker (1995), 73 Ohio St.3d 658, harmonized.) Pless, syllabus at one and two. On August 6, 1987, appellant appeared in open court and voluntarily waived his right to trial by jury. Thereafter, the trial court issued a journal entry stating that appellant had waived his right to a jury trial and had elected to be tried before a three-judge panel. However, appellant's signed, written waiver is not contained in the record. There is no evidence that the written waiver was ever filed of record and/or included in the trial court's case file. Appellant now contends that the three- judge panel had no jurisdiction to conduct the trial because appellant's written waiver of the right to trial by jury was never filed with the trial court and made part of the record in the case. This argument, however, was never raised on direct appeal to this court. As stated previously, the Ohio Supreme Court in Pless, supra directs that failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction. Pless, supra. Accordingly, appellant's sixth assignment of error is without merit and is overruled. VIII. Appellant, in his seventh assignment of error, maintains that the trial court erred in dismissing his petition because the complete record was not before the court. In the present case, appellant fails to provide this court with evidence that the trial court did not consider the full record -14- when it decided to deny appellant's petition for post-conviction relief. The trial court, however, in its findings of fact and conclusions of law, stated [a] careful examination of the entire proceedings, including the trial transcript, the motions, and all other documents pertaining to the proceedings, demonstrate that there has been no denial or infringement of constitutional or statutory rights rendering his conviction void. (Findings of Fact and Conclusions of Law, March 25, 1997). Further, appellant has failed to offer any evidence contradicting the findings of the trial court. Absent a transcript or record evidencing the contrary, we must presume regularity. Casalicchio, et al. v. Contippelli (April 4, 1996), Cuyahoga App. No. 68953, unreported; App.R. 9(B); Orbas v. Whiteside (September 26, 1996), Cuyahoga App. No. 69758, unreported. Accordingly, appellant's seventh assignment of error is without merit. IX. In his eighth assignment of error, appellant alleges that the trial court erred in denying his petition for post-conviction relief regarding his claims relating to the need for expert assistance. Initially, we note that Claims Nos. 5 and 6 were dismissed by the trial court pursuant to the doctrine of res judicata and as this court has stated supra, said claims were properly barred by the doctrine of res judicata. Thus, we will only address -15- appellant's eighth assignment of error as it relates to Claim No. 18 in his petition for post-conviction relief. In his eighteenth claim for relief, appellant argued that the assistance which he received from the Ohio Public Defender's Commission was delinquent in providing funds for his defense. Thus, in denying appellant the right to expert assistance, he was also denied to the effective assistance of counsel while pursuing his post-conviction proceedings under R.C. 2953.21. In State v. Mapson (1987), 41 Ohio App.3d 390, this court held that a petitioner in post-conviction proceedings, which are civil in nature, has no right to counsel. Id. citing State v. Castro (1979), 67 Ohio App.2d 20, 21. Thus, [a]ny errors committed on appeal by counsel cannot constitute a denial of effective assistance cognizable under R.C. 2953.21. Mapson, supra at 391. Based upon our holding in Mapson, we conclude the trial court in the present case properly dismissed appellant's eighteenth claim set forth in his petition for post-conviction relief. Accordingly, appellant's eighth assignment of error is overruled. X. Appellant, in his ninth assignment of error, maintains that he is factually and actually innocent of the offense of aggravated murder and the trial court erred in denying his eighth claim for relief set forth in his petition. -16- In determining whether substantive grounds for relief exist, the trial court must consider the petition, supporting affidavits and documents, and all files and records pertaining to the proceedings against the petitioner. R.C. 2953.21(C). Appellate courts review the trial court's determination of whether substantive grounds for relief exist as a matter of law. State v. Pasturzak (February 19, 1997), Scioto App. No. 96 CA 2449, unreported. A trial court may dismiss a petition for post-conviction relief when the record indicates that the petitioner is not entitled to relief and when the petitioner fails to produce evidentiary documents supporting his claim. State v. Kapper (1983), 5 Ohio St.3d 36, 38. Furthermore, when affidavits are offered in support of a post-conviction relief claim, the court has authority to weigh the credibility of those affidavits and deny the petition based on its assessment of them. State v. Moore (1992), 99 Ohio App.3d 748, 752. In the present case, appellant attached his own affidavit and the testimony of his brother Michael Frazier to support his claim that he was factually and actually innocent. After reviewing the entire record, the trial court determined appellant's claimed innocence, even in light of the affidavit and testimony of Michael Frazier, was without merit. We agree. Appellant's present claim of innocence was reviewed by this court, as well as the Ohio Supreme Court. See State v. Frazier (January 11, 1990), Cuyahoga App. No. 54771, unreported, and State -17- v. Frazier (1991), 61 Ohio St.3d 247. The Ohio Supreme Court, in particular, found overwhelming evidence of appellant's guilt going to every element of the crimes. Frazier, 61 Ohio St.3d. In light of the prior decisions of this court and the Ohio Supreme Court, as well as the evidence presented in the record, we find that appellant's affidavit lacks credibility and the testimony of Michael Frazier does not constitute an evidentiary document sufficient to support appellant's allegation that he is factually and actually innocent. Accordingly, appellant's ninth assignment of error is overruled. XI. In his tenth assignment of error, appellant maintains that his state and federal constitutional rights were violated because three judge panels are biased in favor of the state. In the present case, appellant fails to support his allegation that three judge panels are systematically biased in favor of the State of Ohio. Appellant claims that an oral argument made by an assistant Cuyahoga County prosecutor to the Ohio Supreme Court regarding biases of three judge panels is sufficient evidence to support his claim. We find, however, appellant's documentary evidence to be insufficient to support his allegation. We further find appellant's allegation to be barred by the doctrine of res judicata. Accordingly, appellant's tenth assignment of error is overruled. Judgment affirmed. -18- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. 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. PATRICIA BLACKMON, Adm. J. and MICHAEL J. CORRIGAN, J. CONCUR __________________________ LEO M. SPELLACY Judge -19- N.B. This 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(B) 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 .