COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72581 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION ROMELL BROOM : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : May 7, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CR-196643 : (Post-Conviction) : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: L. CHRISTOPHER FREY, ESQ. DAVID H. BODIKER, ESQ. Assistant County Prosecutor LORI ANN MCGINNIS, ESQ. 8th Floor, Justice Center RICHARD J. VICKERS, ESQ. 1200 Ontario Street Assistant State Public Cleveland, OH 44113 Defender Ohio Public Defenders Comm. 8 East Long Street, 11th Fl. Columbus, OH 43266-0587 PATTON, J. In 1985, a jury found petitioner Romell Broom guilty of one count of aggravated murder, with felony murder specifications, one -2- count of rape, five counts of kidnapping and one count of felonious assault. The jury recommended petitioner receive the death penalty. The court concurred and sentenced petitioner to death and to maximum consecutive sentences on the remaining counts. The convictions were affirmed by this court in State v. Broom (July 23, 1987), Cuyahoga App. No. 51237, unreported and the Supreme Court of Ohio in State v. Broom (1988), 40 Ohio St.3d 277. In February 1990, petitioner filed a petition to vacate or set aside his sentence pursuant to R.C. 2953.21. The petition contained twenty-four claims for relief, which petitioner amended three times in order to attach exhibits. In April 1990, the state filed a motion to dismiss all the claims for relief. The state principally argued that (1) certain arguments raised in the petition had been settled by subsequent decisions of the United States Supreme Court and (2) principles of res judicata barred the assertion of claims that were either raised on direct appeal or could have been raised on direct appeal. Petitioner opposed the motion to dismiss and at the same time asked the court to stay resolution of the petition pending rulings made in his requests for documents relating to law enforcement investigations into his criminal case. The record shows no ruling on this motion to stay, yet the court did not rule on the merits of the petition until October 31, 1996. It issued findings of fact and conclusions of law rejecting all twenty-four claims for relief. Petitioner did not immediately appeal from those findings of fact and conclusions of law. After four months, he asked the court -3- for relief from its findings of fact and conclusions of law under C did not receive notice that the court had findings of fact and conclusions of law.iv.R. 60(A), claiming heruled o followed. I The first assignment of error complains the court erred by granting the state's motion to dismiss the petition for postconviction relief on grounds of res judicata. Petitioner argues res judicata is not a valid ground to justify dismissal under Civ.R. 12(B)(6) and, in any event, he asserted sufficient facts to show a prima facie case of ineffective assistance of counsel to warrant a hearing. R.C. 2953.21(C) contemplates that courts will dismiss petitions for postconviction relief since it states, [i]f 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 gener- ally apply to postconviction proceedings, 1 In addition to the six-year period of inaction, the court failed to make a notation on its docket that it served notice that it issued findings of fact and conclusions of law. Had the court issued notice as required by App.R. 4(A), we would lack jurisdiction to hear this appeal despite the court's attempt to use Civ.R. 60(A) to correct a clerical error in service. See State v. Jackson (June 22, 1995), Cuyahoga App. Nos. 67025, 67876, and 68085, unreported. -4- 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 petition and response and specifically allows the prosecution to respond by motion rather than answer. Because postconviction proceed- ings are statutorily created, specific re- quirements set out by statute take priority where they conflict with the Civil Rules. (citations omitted). 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 inapplica- ble to postconviction proceedings. Ordinarily, the factual allegations of a complaint should be taken as true. See Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279. 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 that the complaint fails to state a claim upon which relief can be granted. State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40, 41. However, the court is authorized to dismiss a petition for postconviction relief without a hearing if a petitioner fails to submit evidentiary material that sets forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. 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. -5- We find the court did not commit procedural error by dismiss- ing petitioner's petition for postconviction relief. As to whether petitioner set forth sufficient grounds to warrant a hearing, that issue is best addressed in the context of the individual substantive assignments of error. The first assignment of error is overruled. II The second assignment of error complains the court erred by dismissing petitioner's claims concerning the appointment of expert testimony on eyewitness identification. The court found this claim barred by principles of res judicata since the issue had been addressed at trial and on direct appeal. Petitioner does not dispute this point, but instead argues the claim had been raised for the first time in postconviction proceedings in the context of an ineffective assistance of counsel claim, a claim he did not raise on direct appeal. He therefore argues res judicata would not apply to the court's dismissal. Petitioner's argument is merely an attempt to recast the previously litigated subject of the court's refusal to appoint experts on eyewitness identification into an ineffective assistance of counsel claim. The petition alleged the trial court's action, by undermining counsel's effectiveness, prejudiced Petitioner Broom. In State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus, provides: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defen- -6- dant who was represented by counsel from raising and litigating in any proceeding except an appeal from judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defen- dant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment. (emphasis added). See, also, State v. Szefcyk (1996), 77 Ohio St.3d 93, syllabus. The substance of the claim the court's refusal to appoint experts for the defense had been raised on direct appeal, so the court did not err by finding it barred by res judicata. Petitioner claims res judicata should not apply because he now has evidence, in the form of affidavits from his trial attorneys and experts in the field of eyewitness identification, which claim the court's refusal to appoint experts prejudiced defense counsels' ability to present an effective defense. These affidavits are not evidence of trial counsel's ineffectiveness. A viable claim of ineffective assistance of counsel must show that counsel's performance fell below an objective standard of reasonable representation. See State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. Petitioner's counsel did ask the court to appoint experts, and nothing in the petition complains that counsel should have done something more to secure the experts. The affidavits themselves simply discuss trial counsel's belief that they could have presented a better defense with experts, but they do not criticize counsel's performance. Consequently, petitioner cannot show counsel's performance fell below an objective standard of reasonable performance. The second assignment of error is overruled. -7- III The third assignment of error contains a mishmash of com- plaints. Although the assignment literally complains the trial court erred in dismissing Mr. Broom's claims of ineffective assistance of counsel during both phases of his capital trial, the text of the argument has little to do with ineffective assistance of counsel claims. Petitioner variously complains about the court's refusal to appoint expert witnesses in eyewitness identifi- cations; the court's refusal to grant him a continuance before trial and between the guilt penalty phases of the trial; and defense counsel's decision to ask petitioner's father about petitioner's prior criminal record, thus minimizing the effect of petitioner's mitigation evidence. The court did not err by finding all these claims barred by res judicata since they were either raised on direct appeal or could have been raised on direct appeal. Perry, supra. In our discussion to the preceding assignment of error, we discussed how petitioner could not transform previously adjudicated claims into claims of ineffective assistance of counsel solely for the purpose of labeling them new claims under R.C. 2953.21. The claims relating to the court's refusal to appoint expert witnesses in eyewitness identifications are summarily overruled. The court's refusal to grant a pretrial continuance has been fully litigated. In our decision in Broom, we found the court did not abuse its discretion by refusing to grant a pretrial continu- ance since petitioner's stated grounds for the continuance could -8- have been reasonably accommodated by the court. Id, unreported at 31-33. The supreme court likewise found no abuse of discretion in the court's refusal to grant a continuance between the guilt and penalty phases of trial, noting *** the record is silent on whether [defense counsel] were in fact unable to obtain any records for the mitigation hearing. Broom, 40 Ohio St.3d at 288. Finally, the subject of defense counsel's decision to open the door to character testimony about petitioner is one that could have been raised on direct appeal. At trial, defense counsel called petitioner's father as a character witness and asked him whether he had any problems with petitioner. The father replied, No. Maybe he might skip school or something like that. On cross-examina- tion, the state asked petitioner's father whether he thought petitioner's prior convictions for robbery, aggravated robbery and rape would be considered trouble to you? The supreme court held that petitioner opened the door to such testimony and, in any event, petitioner admitted in his voluntary statement to the jury that he had `been convicted before, and I did nine years for being involved with a young girl.' 40 Ohio St.3d at 290. Petitioner now argues counsel's error in presenting his father's testimony forced him to concede to his prior convictions during the mitigation phase, and that concession ruined the substance of his mitigation evidence. While this claim has not been presented before, we find it could have been presented at the time of appeal. In State v. Cole (1982), 2 Ohio St.3d 112, the syllabus states: -9- Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined with- out resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for postconviction re- lief. Two attorneys represented petitioner on direct appeal: one attorney was present as trial counsel; the other was appointed by the court for the appeal. Although res judicata is normally inapplicable to ineffective assistance of claims raised by the same counsel who defended at trial, Cole, supra, that rule does not control the disposition of this assignment of error. In State v. Zuern (Dec. 4, 1991), Hamilton App. Nos. C-900481 and C-910229, unreported, the court addressed an identical situation where new counsel and a defense trial attorney worked together on an appeal and stated: Unless we presume, as Zuern would have us, that new co-counsel entering upon a criminal case at the appellate level would deliberately not exercise his professional judgment or duty to assert the ineffectiveness of his co-coun- sel at trial if the record demonstrated a basis for such a claim, a presumption we adamantly reject, we perceive no reason why the reference in Cole to new counsel would not embrace new co-counsel as well as new independent counsel. Thus, we conclude that Coleis applicable to the case sub judice, and that the doctrine of res judicata may be invoked to bar assertion of his claims of ineffective assistance of counsel which do not rely on evidence dehors the record. Id., unreported at 12. The claim that defense counsel's decision to open the door to impeachment of petitioner's character witness constituted ineffec- tive assistance of trial counsel could have been raised by new -10- counsel on appeal. For this reason, the court did not err by finding it barred by res judicata. The third assignment of error is overruled. IV In his fourth assignment of error, petitioner claims the court erred by failing to consider the entire record of the proceedings before ruling on the petition for postconviction relief. He maintains the record relating to his conviction had been destroyed or not available to the court at the time it ruled on the petition. Without this transcript and other documents in the record, petitioner claims the court violated R.C. 2953.21(C). R.C. 2953.21(C) states, in relevant part: *** Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determi- nation, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the pro- ceedings against 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 re- porter's transcript. Despite the seemingly mandatory language of the statute, the courts have not interpreted this section as placing a mandatory duty on the courts to consider a transcript of the proceedings. In State v. Ishmail (1978), 54 Ohio St.2d 402, Ishmail filed a petition for postconviction relief under R.C. 2953.21, challenging guilty pleas he entered on counts of burglary and grand theft. The trial court reviewed the dockets, records and journal entries of the case, but did not review a transcript of the plea hearing. It -11- denied the petition for relief. On appeal, the court of appeals permitted Ishmail to supplement the record with the transcript of the plea hearing and set aside the guilty pleas. The supreme court reversed the court of appeals, stating at paragraph two of syllabus: Where a trial court, in denying a petition for post-conviction relief pursuant to R.C. 2953.21, does not consider a transcript of proceedings of the hearing at which the guilty pleas were entered, a Court of Appeals cannot add that transcript to the record before it and then decide the appeal on the basis of matter disclosed by the transcript. We have found it implicit in the supreme court's holding in Ishmail that a trial court considering a petition for postconviction relief need not consider the trial transcript before ruling on a petition for postconviction relief. See State v. Williams (1991), 74 Ohio App.3d 686, 694; State v. Montana (Mar. 24, 1994), Cuyahoga App. No. 65024, unreported. Even without this authority, we would find the court's failure to consider certain portions of the record did not adversely affect the outcome of the postconviction proceeding. In a motion seeking an enlargement of time in which to file the record on appeal, petitioner's counsel submitted an affidavit to this court in which she averred that certain documents were missing from the record transmitted by the court of common pleas. Among the missing documents were the three amendments to the initial petition for postconviction relief, the state's motion to dismiss the petition, the transcript, and the merit briefs filed in this court on direct -12- appeal and in the supreme court.2 Those documents were contained on microfilm in the office of the clerk of the court, and later supplemented in the record to this court. The state entered into a stipulation with petitioner that those documents were not in the lower court record. Assuming those documents were not before the court when it ruled on the petition, we nonetheless find their presence in the record would not have affected the court's decision. The primary purpose of lower court record in a postconviction proceeding is to serve as a measuring stick against which the court can reliably determine whether the petition contains matter not presented at trial. The petitions in this case, as amended, contain nothing that was not presented at trial. To be sure, some of the exhibits contain affidavits from experts who give their opinions that eyewitness testimony would have been helpful to petitioner, and these exhibits were not presented to the court at trial. But this is simply new material for an old matter. The affidavits beg the initial question whether petitioner raised the subject of expert assistance in eyewitness identification, a matter we found fully litigated at trial and on appeal. All the other claims presented in the petition were likewise barred by res judicata. 2 Petitioner also discovered three boxes sealed by court order that contained records relating to his murder case that he obtained in a mandamus action filed pursuant to the Ohio Public Records Act, R.C. 149.43. See State ex rel. Broom v. Cleveland (Aug. 27, 1992), Cuyahoga App. No. 59571, unreported. These records were obviously not part of the trial court record, although they have been transmitted to this court as records on appeal. -13- Principles of res judicata apply in criminal cases to prevent endless litigation of issues and ensure the finality of convic- tions. See State v. Steffen (1994), 70 Ohio St.3d 399, 411-412. A remand for the sole purpose of having the court review matters that are facially barred by res judicata would do nothing more than perpetuate this case beyond the six years it languished in the lower court. The fourth assignment of error is overruled. -14- V In his fifth assignment of error, petitioner complains the court erred by dismissing his claim that his conviction and sentence are void or voidable because the court erred in its jury instructions during the penalty phase of the trial. We summarily overrule this assignment as barred by res judicata. Petitioner claims he supported this claim with credible evidence dehors the record. Petitioner's Merit Brief at 35. The evidence dehors the record does nothing more than state opinions on why issues that were previously litigated or could have been litigated on direct appeal should now be reversed in petitioner's favor. Judgment affirmed. -15- 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. PORTER, P.J. SPELLACY, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .