COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72662 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND ROBERT O'NEAL, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CR-163540 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES DAVID H. BODIKER Cuyahoga County Prosecutor State Public Defender CARMEN MARINO THOMAS R. WETTERER, JR. Assistant Prosecuting Attorney Assistant State Public Defender The Justice Center Office of the Ohio Public 1200 Ontario Street Defender Cleveland, Ohio 44113 8 East Long Street, 11th Floor Columbus, Ohio 43215 -2- KARPINSKI, J.: Petitioner, Robert O'Neal, appeals from the judgment of the trial court which dismissed his petition for postconviction relief. For the reasons that follow, we find no merit to petitioner's three assignments and affirm the judgment of the trial court. Defendant's conviction stems from the extortion, kidnaping, and murder of Henry Podborny. The Sixth Circuit summarized the facts as follows: In January 1981 Podborny's estranged wife, Dimple, lured him from his home near Chicago on the pretense that she wished to resolve their marital difficulties. Three months later, authorities discovered Mr. Podborny's corpse in a field in Cleveland. The evidence at trial revealed a detailed conspiracy among at least six individuals, including Dimple Podborny, her daughter-in-law, and acquaintances, to kidnap, rob, and murder Henry Podborny. The conspirators considered a number of plots, but eventually decided to have Dimple induce her husband to fly to Cleveland. Petitioner[O'Neal] would then kidnap and hold him in the basement of an unlicenced saloon petitioner operated, while others would rob Mr. Podborny's residence and business. On January 29, 1981, Mr. Podborny flew to the Cleveland airport, where Dimple's daughter-in-law, Lola Toney, met him and escorted him to petitioner's saloon. Minutes after Mr. Podborny entered, petitioner exited the bar and handed to Toney Podborny's wallet and other possessions. Soon after, another conspirator, Lloyd Allen, emerged from the bar and informed petitioner and Toney that he had struck Podborny with a pipe. From January through March, Dimple, Toney, and others engaged in a variety of schemes to make it appear that Mr. Podborny was traveling on business, while they attempted to obtain his money. By late March, Toney believed Henry Podborny was no longer alive. His corpse was discovered a month later. Coroners determined that he had been struck at least five times in the head and shot once in the forehead. Petitioner, Dimple Podborny, Lola Toney, Lloyd Allen, and two others were subsequently indicted for aggravated murder, aggravated robbery, and kidnaping. After the case against three of the conspirators was resolved by a trial and a guilty plea, -3- petitioner, Lloyd Allen, and Dimple Podborny were tried jointly and convicted on all counts. Petitioner unsuccessfully appealed his conviction to the Ohio Court of Appeals and Ohio Supreme Court. O'Neal v. Morris (C.A.6 1993), 3 F.3d 143. On direct appeal, defendant's conviction was affirmed by this court. State v. O'Neal (July 25, 1985), Cuyahoga App. No. 44551, unreported. The Ohio Supreme Court declined jurisdiction. Thereafter, defendant pursued habeas corpus relief in the federal court system. A recent order by Judge Herman J. Weber of the United States District Court for the Southern District of Ohio accurately describes the tortured history of petitioner's habeas appeals. This habeas corpus action filed pursuant to 28 U.S.C. 2254 has had a long history. In 1986, petitioner filed the petition challenging his state conviction in 1981 for aggravated murder, aggravated robbery and kidnaping. A magistrate judge issued a Report and Recommendation on January 22, 1992 and a Supplemental Report and Recommendation on May 11, 1992 recommending that the petition be granted on the grounds that (1) petitioner's trial had been fundamentally unfair, and (2) petitioner was denied due process on appeal from his conviction. (Doc. 68, 74). On June 26, 1992, this Court issued an order adopting the magistrate judge's recommendation and conditionally granting the petition on that ground that petitioner had been denied a fair trial. (Doc. 80). The issue whether petitioner was denied due process on appeal was not reached in the June 26, 1992 Order in light of this Court's agreement with the Magistrate Judge's primary conclusions about petitioner's trial.(Id., p.2n.1). The Sixth Circuit reversed the District Court's judgment in O'Neal v. Morris 3 F.3d 143 (6th Cir. 1993). The Supreme Court granted certiorari and on February 21, 1995, rendered a decision remanding the case back to the Sixth Circuit for reconsideration. O'Neal v. McAninch, 513 U.S. 432 (1995). On August 16, 1995, the Sixth Circuit issued a decision on reconsideration consistent with its original opinion. O'Neal v. McAninch, 64 F.3d 663 (6thCir. 1995). The Supreme Court denied certiorari from this decision on February 20, 1996. O'Neal v. -4- McAninch, 116 S.Ct 955 (1996). On March 6, 1997, the Sixth Circuit issued an order remanding the case to the District Court with instructions to review the issues raised regarding the as-yet unaddressed claim that there was a denial of due process during [petitioner's] state appeal. (Doc.107). This matter is now before this Court on the remand order solely for a determination on the one remaining unresolved issue as to whether petitioner was denied due process on appeal from his state conviction. O'Neal v. McAninch (Aug. 29, 1997), U.S. District Court, Southern District of Ohio, Western Division C-1-86-976, unreported. In this order, the federal court denied petitioner habeas relief on the issue that this court failed to specifically address one of his assignments of error on direct appeal. While pursuing his habeas corpus writ in the federal court, he filed this petition for postconviction relief in common pleas court. When the trial court granted the state's motion to dismiss, petitioner appealed, raising three assignments of error. The first states as follows: I. THE TRIAL COURT ERRED IN DISMISSING O'NEAL'S POST CONVICTION PETITION WITHOUT A HEARING. The first assignment presents the issue of whether exculpatory evidence concerning the identity of the person who discovered the victim's body was withheld from petitioner at trial. Petitioner argues that the trial court erred when it dismissed his petition, because there is a dispute as to who actually discovered the body. Regarding this question, the trial court issued the following findings of fact and conclusions of law: On Thursday, April 2, 1981, petitioner's girlfriend (Jannie) telephoned Wilbur Higgins, a business associate of petitioner, and told Higgins that petitioner wished to talk to him and that she would pick up Higgins and take -5- him to the Justice Center where petitioner was incarcerated. Upon taking Higgins to see petitioner, petitioner told Higgins that the victim's body was in a field next to Higgins' establishment; that it was wrapped in a plastic bag; and that it was placed there by petitioner and defendant Allen after the two of them had killed the victim. Petitioner wanted Higgins to cover the body so that it would not be discovered. Higgins later relayed the above information to a city of Cleveland health inspector, who, in turn, relayed the information to the F.B.I. The victim's body was subsequently discovered by the F.B.I. and Cleveland police. The identity of the city health inspector was disclosed to the Court and sealed in the Criminal record. The city health inspector played no integral part in the case other than being a conduit between Higgins and the police. His identity was secreted because of his job and the fact that he had to work in the area on which he informed. 4. The victim's body was discovered because petitioner told Wilbur Higgins that he killed the victim and placed the body in the field next to Higgins' establishment. 5. Defense counsel fully cross-examined all relevant witnesses concerning the manner by which the victim's body was discovered. No material evidence or information was withheld from defense counsel. 6. The State accurately portrayed and legally argued the facts concerning the discovery of the victim's body. We find no error regarding the trial court's dismissal of petitioner's causes of action concerning the discovery of the body. First, this issue is barred by the doctrine of res judicata. This doctrine prevents a petitioner from raising claims that were raised or could have been raised by the petitioner at trial or on an appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175, syllabus; State v. Szefcik (1996), 77 Ohio St.3d 93, syllabus. In his brief, petitioner states as follows: During federal habeas proceedings held after trial, it was discovered that the finding of the body was not linked to Wilbur Higgins. *** The person who found the body was not involved in this case; it was not the city -6- inspector. The State had lied to the jury and improperly bolstered Higgins [sic] credibility to the jury. Petitioner's brief at 4. Because habeas proceedings are collateral proceedings which allow evidence outside the record, petitioner thus could have raised at that time the question of who discovered the body. In postconviction proceedings, res judicata will bar the litigation of issues that could have been raised in a court of competent jurisdiction, such as a federal court in habeas corpus proceedings. State v. Martinelli (Dec. 5, 1996), Cuyahoga App. No. 70120, unreported; State v. Apanovich (1995), 107 Ohio App.3d 82; Rogers v. Whitehall (1986), 25 Ohio St.3d 67. Second, the issue was previously raised in the petitioner's criminal trial. Higgins, as well as Detective Timothy Patton, were cross-examined about the discovery of the body. See Tr. 4541-4549. At page 4542, moreover, defense counsel specifically questioned the identity of the informant who told the F.B.I. of the body. Accordingly, because the issue of the discovery of the victim's body was or could have been raised either at trial or during the habeas proceedings, petitioner is precluded from raising the issue in his petition for postconviction relief. II. THE TRIAL COURT ERRED IN DISMISSING O'NEAL'S POST CONVICTION PETITION WITHOUT A HEARING. In Assignment II, petitioner argues that the trial court erred in dismissing his petition, because this court did not address petitioner's seventh assignment of error on direct appeal in State v. O'Neal (July 25, 1985), Cuyahoga App. No. 44551, unreported. -7- Petitioner is correct that this court did not address the seventh assignment regarding separate trial. Judge O'Neill addressed the identical issue in the opinions addressing the other co-defendants, but it was apparently omitted from his opinion regarding petitioner. This omission, however, does not warrant postconviction relief. First, this issue is barred by the doctrine of res judicata. Issues that were raised on direct appeal to this court and to the Ohio Supreme Court cannot later be raised in a postconviction petition. State v. Perry, supra; State v. Roberts (1982), 1 Ohio St.3d 36. Both in a motion for reconsideration filed with this court and in a complaint for writ of mandamus filed in the Ohio Supreme Court, defendant raised the issue of this court's failure to address the assignment of error. After considering this argument, both courts declined to disturb defendant's conviction. Second, petitioner fails to explain how he was prejudiced by the failure of the trial court to provide separate trials. A mere assertion of prejudice does not suffice, especially when this court found no merit to the identical argument raised by co-defendants. In State v. Podborny (July 30, 1985), Cuyahoga App. No. 44574, unreported, at 17-18, this court acknowledged that each of the three defendants had raised the same issue, when this court observed that [t]he appellant has also brought a supplemental assignment of error with the other defendants. (Emphasis added.) This court expressly rejected the argument by O'Neal's two co- defendants that they should have been tried separately: -8- *** [W]e must make note of the fact that there was a shortcoming in procedure. Crim. R. 14, which provides for relief from prejudicial joinder specifically provides that two or more persons jointly indicted for a capital offense shall be tried separately unless the court orders them to be tried jointly upon application by the prosecuting attorney or one or more of the defendants. There had been no application for joint trial by the prosecuting attorney or by one or more of the defendants. We consider this to be only a procedural error and not one of such consequence that the cause should be reversed. Id. at 20. The U.S. District Court cited this same paragraph and added the following: Petitioner did not raise any individual argument specific to his case in support of the claim raised in his seventh assignment of error. The Appeals Court ruling in co-defendant Dimple Podborny's case was, therefore, sufficient to satisify petitioner's due process rights on appeal. To ensure that no questions would arise later, the panel majority should have addressed petitioner's claim as the dissent did by referring to their decision in Podborny on the issue. However, although perhaps violative of state law, such omission did not amount to error of constitutional dimension. O'Neal v. McAninch (Aug. 29, 1997), U.S. District Court, Southern District of Ohio, Western Division C-1-86-976, unreported. Finally, the United States District Court for the Southern District of Ohio declined to grant habeas relief to petitioner on the same issue: this court's failure to address his seventh assignment on direct appeal. O'Neal v. McAninch (Aug. 29, 1997), U.S. District Court, Southern District of Ohio, Western Division C- 1-86-976, unreported. In addressing the same argument raised herein, the federal court held that this court's failure to rule on the seventh assignment of error over thirteen years ago did not amount to a constitutional error which would warrant habeas relief. -9- Accordingly, because (1) the doctrine of res judicata prevents petitioner from raising this issue and (2) petitioner cannot establish prejudice, petitioner's second assignment is overruled. III. THE TRIAL COURT ERRED IN DISMISSING THE FIFTH CAUSE OF ACTION OF O'NEAL'S POST-CONVICTION PETITION ON THE BASIS OF RES JUDICATA. In this assignment, petitioner argues that he should be granted postconviction relief because the jury instructions were defective, the evidence was insufficient, and exculpatory evidence was withheld. These issues were all raised or could have been raised at one time during the history of petitioner's postconviction appeals. Accordingly, res judicata prevents the petitioner from raising these issue in the present postconviction proceeding. State v. Perry (1967) 10 Ohio St.2d 175. Citing to State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, petitioner argues that res judicata cannot be raised in a 12(B) motion. This argument fails. Freeman is not controlling because it was not a postconviction case. Moreover, in State v. Franklin (Jan. 25, 1995), Hamilton App. No. C-930760, unreported, the court held that although postconviction proceedings are civil in nature, they are unique statutory creations to which the limitations placed on 12(B) dismissals do not apply. We agree. Accordingly, the state was entitled to raise the defense of res judicata in its motion to dismiss. Judgment affirmed. -10- 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. TERRENCE O'DONNELL, P.J., and LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI 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 .