COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72929 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION JOHN D. ANDERSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CR-295748. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor L. Christopher Frey, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: John D. Anderson, pro se No. A282-502 Mansfield Correctional Institution P.O. Box 788 Mansfield, Oh 44901-0788 TIMOTHY E. McMONAGLE, J.: Petitioner-appellant, John D. Anderson ( appellant ), appeals the decision of the Cuyahoga County Court of Common Pleas, which denied his petition for post-conviction relief without a hearing. -2- For the reaso denied and affirm. October 1993, appellant was convicted of two counts ons that follow, rape, in violation of R.C. 2907.02, and was subsequently sentenced to concurrent life sentences on each count. Represented by different counsel on direct appeal to this court, appellant's convictions were affirmed. See State v. Anderson (Nov. 23, 1994), Cuyahoga App. No. 66544, unreported. Appellant filed a petition for post-conviction relief on September 20, 1996, amending the petition once in October and again in December of that same year.1 Appellant's petition, and amendments thereto, claimed that he was denied a fair trial because of prosecutorial misconduct and partiality on the part of the trial court judge. Moreover, he claimed his trial counsel was ineffective for failing to file various motions and for failing to conduct a reasonable investigation and present evidence favorable to his defense. With no response to his petition by the State of Ohio ( state ), appellant filed a motion for summary judgment in January 1997 requesting the trial court to rule in his favor because the state failed to respond to his petition. This motion was denied. The state eventually moved to dismiss appellant's petition on the basis that the claims raised therein were barred by res judicata. In its findings of fact and conclusions of law journalized on July 1The original petition was prepared by counsel then representing appellant. The amendments to the petition, as well as this appeal, were filed by appellant pro se. -3- 10, 1997, the trial court denied appellant's petition. Succinctly, the trial court found appellant's petition to be unsupported by evidentiary material sufficient to entitle him to relief or that the requested relief was barred by the doctrine of res judicata. Appellant timely appeals and assigns the following errors for our review: I. THE TRIAL COURT ERRED IN DISSMISSING (SIC) THE PETITION FOR POSTCONVICTION RELIEF ON PARTIAL ADDRESS TO MERITS, THAT IS FACT AND LAW REQUIRED GRANTING OF RELIEF IN THIS PARTICULAR CASE. II. THE DENIAL OF DEFENDANT-APPELLANT'S PETITION FOR POSTCONVICTION RELIEF WITHOUT A HEARING WAS CONTRARY TO LAW. Appellant's assignments of errors are related and challenge the propriety of the trial court's refusal to vacate his convictions and sentences, especially without the opportunity for an evidentiary hearing.2 The state, on the other hand, maintains that the petition was properly denied either on the basis of res judicata or that appellant merely asserted broad conclusory 2Although not separately denoted, appellant likewise challenges the denial of his motion for summary judgment. In that motion, appellant sought to have judgment granted in his favor when the state failed to respond to his petition. While appellant denies that he was attempting to obtain the equivalent of a default judgment, appellant's argument contained in the motion refutes this statement. There is no default equivalent in post-conviction proceedings. See State v. Roberts (1991), 66 Ohio App.3d 654, 656. Nonetheless, summary judgment in post-conviction proceedings is only appropriate when it is apparent from the fact of the record that the movant is entitled to the requested relief. Id.; see, also, State v. Walden (1984), 19 Ohio App.3d 141, 147. For the reasons that are discussed infra with regard to appellant's claims of ineffective counsel, such relief is not apparent from the record and there was no error on the part of the trial court in denying appellant's motion for summary judgment. -4- statements regarding his entitlement to relief without any supporting documentation. The statutory framework governing post-conviction relief is set forth in R.C. 2953.21. This statute provides a mechanism for criminal defendants to petition the court for an evidentiary hearing and request relief on the basis that their convictions are void or voidable on state or federal constitutional grounds. Pertinent to this appeal is subsection (C), which provides in part: 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. *** If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. It is the petitioner who bears the burden of submitting evidentiary documents containing sufficient operative facts demonstrating that his claim merits a hearing. State v. Jackson (1980), 64 Ohio St.2d 107, 111. Broad assertions without a further demonstration of prejudice do not warrant a hearing on a petition for post-conviction relief. State v. Jackson (1980), 64 Ohio St.2d 107, 111. General conclusory allegations are also inadequate as a matter of law to require an evidentiary hearing. Id. As such, a petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner failed to submit evidentiary material containing sufficient operative facts. -5- Id. at the syllabus; State v. Scott (1989), 63 Ohio App.3d 304, 307. Likewise, a petition filed under this statute may be dismissed without an evidentiary hearing when the claims asserted therein are barred by the doctrine of res judicata. Under this doctrine, a final judgment of conviction bars a defendant who had counsel from raising and litigating in any proceeding, except in an appeal from the judgment, any defense or claim of lack of due process that was raised or could have been raised by the defendant at trial or on direct appeal. See State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus; State v. McCullough (1992), 78 Ohio App.3d 587, 591. Consequently, a petition that states a substantive ground for relief and that relies upon evidence dehors the record should be afforded an evidentiary hearing unless opposing evidence fails to raise a genuine issue of material fact. State v. Milanovich (1975), 42 Ohio St.2d 46, 51; State v. Moore (1994), 99 Ohio App.3d 748, 753. If a court finds that an issue raised in a petition for post-conviction relief has, or should have been raised at trial or on direct appeal, the trial court may dismiss the petition without a hearing on the grounds of res judicata. State v. Perry, supra; State v. Nicholson (July 24, 1997), Cuyahoga App. No. 71398, unreported. In this case, appellant contends that he has presented sufficient documentary evidence supporting his entitlement to a hearing on his petition. Specifically, appellant maintains that the affidavits appended to his petition support his argument that -6- his trial counsel was ineffective for failing to conduct a reasonable investigation and to otherwise present evidence favorable to his defense. No comparable argument is made, however, regarding the sufficiency of the documentary evidence regarding appellant's claims for prosecutorial misconduct or trial court partiality. In general, a properly licensed attorney is presumed to be competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299; see, also, State v. Lott (1990), 51 Ohio St.3d 160, 174. In order to overcome this presumption, the petitioner must present evidence which, if believed, would establish not only that his trial counsel had substantially violated at least one of a defense attorney's essential duties to his client but also that the violation was prejudicial to the petitioner. State v. Jackson, 64 Ohio St.2d at 111; State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, vacated in part on other grounds, Lytle v. Ohio (1978), 438 U.S. 910, 57 L.Ed.2d 1154, 98 S.Ct. 3135; see, also, Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To establish prejudice, a petitioner must demonstrate a reasonable probability that but for counsel's unprofessional errors, the outcome of the trial would have been different. Id. at 694; State v. Bradley (1989), 42 Ohio St.3d 136, 142. Nonetheless, claims of ineffective assistance of counsel are barred by res judicata where a criminal defendant is represented by different counsel at trial and on direct appeal and such a claim could have been made on direct -7- appeal without resort to evidence beyond the record. See State v. Lentz (1990), 70 Ohio St.3d 527, syllabus. We find that appellant is not entitled to remedy by way of post-conviction relief. Appellant was represented by different counsel at trial and on appeal. He has presented no evidence dehorsthe record that could not have been raised on direct appeal. Indeed, appellant's claims of prosecutorial misconduct and trial court partiality were both raised and considered during his direct appeal. While appellant raises new arguments as they relate to these issues, appellant merely makes broad conclusory statements regarding these issues and points to nothing outside of the record demonstrating his entitlement to relief. Appellant likewise raised ineffective assistance of counsel on direct appeal as it pertained to counsel's failure to object to testimony given by the trial court judge. Now, he presents for the first time in his petition for post-conviction relief other areas in which he argues that his counsel was ineffective. He has failed to draw to the court's attention anything outside the record sufficient to support these areas of ineffectiveness. Without being unsympathetic to appellant's plight, these are issues that could have been raised on direct appeal. While appellant may have a remedy by way of filing a Murnahan application under App.R. 26(B), the remedy appellant seeks by way of post-conviction relief is barred by the doctrine of res judicata. Consequently, appellant's assignments of error are without merit and are overruled. -8- Judgment affirmed. -9- 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. JOSEPH J. NAHRA, P.J. and JAMES D. SWEENEY, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .