COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73158 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : ROBERT E. LEE, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 13, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. CR-323821 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor L. Christopher Frey Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Robert E. Lee, Pro Se Inmate No. 314-386 Trumbell Correctional Institute P.O. Box 901 Leavittsburg, Ohio 44430 -2- NAHRA, P.J.: Robert E. Lee, appellant, was tried, convicted, and sentenced for the kidnapping and rape of an eleven-year-old child. This court affirmed appellant's conviction in State v. Lee (Jan. 16, 1997), Cuyahoga App. No. 70122, unreported. In Lee, supra, appellant's second assignment of error stated: DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. In overruling this assignment of error, this court stated: Appellant asserts four specific instances of ineffective assistance under this assignment of error. Appellant claims that his defense attorney failed to call two witnesses who could have impacted the credibility of the victim's father's testimony. Appellant further argues ineffective assistance because trial counsel called no character witnesses: his attorney failed to present a theory to explain the presence of blood on the victim's vaginal swab; and, his attorney failed to prove the absence of injury to appellant's head to contradict Reba's testimony that he bumped his head when she pushed him off of her. None of these alleged failures constitute a dereliction of the defense counsel's duty of representation to appellant's prejudice. Lee, supra. Appellant appeals the trial court's denial of his petition for postconviction relief, raising the following assignments of error: I. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AND COMPULSORY DUE PROCESS BY TRIAL COUNSELS (sic) ACTS AND OMISSIONS BEFORE AND DURING THE TRIAL OF THIS CASE IN VIOLATION OF APPELLANTS (sic) RIGHTS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SUMMARILY DISMISSING THE POST CONVICTION (SIC) PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING AS REQUIRED BY OHIO REVISED CODE SECTION 2953.21(C),(E). -3- III. THE TRIAL COURT ERRED IN FAILING TO MAKE AND FILE ADEQUATE FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO THE DISMISSAL OF THE POST CONVICTION (SIC) PETITION AS REQUIRED BY OHIO REVISED CODE SECTION 2953.21(C). R.C. 2953.21 states in part: *** (A)(4) A petitioner shall state in the original or amended petition filed under division (A) of this section all grounds for relief claimed by the petitioner. *** (C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. *** (E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending. *** (G) If the court does not find grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter judgment denying relief on the petition. In State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, the syllabus states: 7. Constitutional issues cannot be considered in postconviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him. In his first assignment of error, appellant argues that he is entitled to postconviction relief because he received ineffective -4- assistance of counsel. Under Perry, supra, he cannot maintain this argument as this issue has been fully litigated on direct appeal. See, Lee, supra. Appellant's first assignment of error is overruled. In his second assignment of error, appellant argues that the trial court should not have dismissed his petition without holding a hearing pursuant to R.C. 2953.21(C). As appellant is barred from raising the issue of ineffective assistance of counsel, the trial court properly denied his petition without a hearing. Appellant's second assignment of error is overruled. In his third assignment of error, appellant argues that the trial court did not adequately state its reasoning for dismissing the petition. The trial court's findings of fact and conclusions of law are more than sufficient to provide this court with the basis upon which it denied the petition. See, State v. Clemons (1989), 58 Ohio App.3d 45, 46, 568 N.E.2d 705, 707. (Findings of fact by trial court must allow appellate court to determine basis of judgment.) Appellant's third assignment of error is overruled. Judgment affirmed. -5- 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 PRESIDING JUDGE PATTON, J., and MICHAEL J. CORRIGAN, J., CONCUR. 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 .