COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73193 STATE OF OHIO : : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND : OPINION MILDON BALL : : Defendant-Appellant : DATE OF ANNOUNCEMENT : JULY 30, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas court Case No. C.P. CR-319117 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Mildon Ball, pro se Inmate No. 310-518 Belmont Correctional Inst. P.O. Box 540 St. Clairsville, Ohio 43950 For defendant-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Lisa Reitz Williamson, Esq. Assistant County Prosecutor The Justice Center 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 MICHAEL J. CORRIGAN, J.: Mildon Ball, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal Division, Case -2- No. CR-319117, in which the trial court denied defendant- appellant's petition for post-conviction relief pursuant to R.C. 2953.21. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. On February 6, 1994, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a single-count indictment on the offense of drug abuse with violence specifications. On May 31, 1995, defendant-appellantwithdrew his formerly entered plea of not guilty and entered a plea of no contest to the indictment. After a finding of guilty by the trial court, defendant-appellant was sentenced to a one and one-half to five-year term of incarceration. Defendant-appellant filed a motion for delayed appeal with this court on July 30, 1996. This court granted defendant- appellant's motion and allowed defendant-appellant's appeal. On direct appeal, defendant-appellant argued that the trial court failed to substantially comply with the mandates of Crim.R. 11 in accepting defendant-appellant's plea of no contest; the no contest plea was not a knowing, intelligent, or voluntary waiver of his constitutional rights; and defendant-appellant was denied his right to effective assistance of counsel as guaranteed by the United States and Ohio Constitutions. This court affirmed defendant-appellant's conviction and sentence in State v. Ball (July 17, 1997), Cuyahoga App. No. 71036, unreported. The Ohio Supreme Court dismissed defendant-appellant's subsequent appeal from the decision of this court on November 12, 1997. See State v. -3- Ball (1997), 80 Ohio St.3d 1446. On September 16, 1996, defendant-appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21 in which defendant-appellant alleged the same grounds for relief as set forth in defendant-appellant's direct appeal to this court, namely, that he was denied effective assistance of counsel. On August 19, 1997, the trial court denied defendant-appellant's petition for post-conviction relief through the issuance of findings of fact and conclusions of law. The trial court held that defendant- appellant's claims were essentially the same as those raised in his direct appeal and were therefore barred by the doctrine of res judicataand could not properly be brought in a petition for post- conviction relief. On September 16, 1997, defendant-appellant filed a timely notice of appeal from the trial court's denial of his petition for post-conviction relief. Defendant-appellant's first pro se assignment of error states: I. WAS APPELLANT DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION MADE APPLCOABLE (SIC) BY THE FOURTEENTH AMENDMENT AND ARTICLE ONE (1) SECTION TEN (10) OF THE OHIO CONSTITUTION, WHERE COUNSEL FOR THE DEFENSE ADVISED APPELLANT TO PLEA NO CONTEST AND WHERE COUNSEL FAILED TO DEMAND THE PROCEDURE REQUIRED BY OHIO REVISED CODE SECTION 2925.51 (A) THRU (E) THEREBY COMPROMISING APPELLANT'S RIGHT TO CONFRONT THE EVIDENCE AGAINST HIM. Defendant-appellant raised this exact issue on direct appeal through his first pro se assignment of error. This court considered this issue and determined that it was without merit. -4- R.C. 2953.21(A), which governs petitions for post-conviction relief, provides in pertinent part: (A) Any person convicted of a criminal offense *** claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds for relief upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief. R.C. 2953.21(C) provides: (C) 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 court, and the court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. The post-conviction relief process permits criminal defendants who allege that their conviction is void or voidable on state or federal constitutional grounds to petition the trial court for an evidentiary hearing pursuant to R.C. 2953.21(A). State v. Isham (Aug. 23, 1995), Montgomery App. No. 92-CR-2729/2, unreported. The petitioner bears the initial burden of submitting evidentiary documents containing sufficient operative facts to demonstrate his claim and merit a hearing. State v. Hamilton (Dec. 29, 1993), Clark App. No. 3015, unreported, citing State v. Kopper (1983), 5 Ohio St.3d 36. A petition for post-conviction relief is subject to -5- dismissal without a hearing when the record indicates that the petitioner failed to submit evidentiary documents containing sufficient operative facts. State v. Scott (1989), 63 Ohio App.3d 304; State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus. Res judicata, also known as claim preclusion is the doctrine under which a final judgment on the merits bars a party from bringing another lawsuit based upon the same claim. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, paragraph one of the syllabus. Res judicata extends to bar not only claims which were actually litigated, but every question which might properly have been litigated. Stromberg v. Bratenahl Bd. of Edn. (1980), 64 Ohio St.2d 98. Under the doctrine of res judicata, constitutional issues cannot be considered in post-conviction proceedings under R.C. 2953.21 where they have already been or could have been fully litigated by the petitioner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175; State v. McCollough (1992), 78 Ohio App.3d 587, 591. Issues properly before a court on a petition for post-conviction relief are issues which could not have been raised on direct appeal due to the fact that the evidence supporting such issues is dehors the record. State v. Milanovitch (1975), 42 Ohio St.2d 46; State v. Durr (July 28, 1994), Cuyahoga App. No. 65958, unreported. If a court finds that an issue raised in a petition for post-conviction relief has, or -6- should have been raised on direct appeal or in a previous post- conviction relief motion, the court may dismiss the petition on the grounds of preclusion. State v. Spisak (April 13, 1995), Cuyahoga App. No. 67229, unreported. In the present case, a review of the record demonstrates that defendant-appellant raised the identical claim regarding the alleged ineffective assistance of counsel on direct appeal. As previously stated, this claim was considered and rejected by this court as being without merit. See State v. Ball (July 17, 1997), Cuyahoga App. No. 71036, unreported at 6. Accordingly, defendant- appellant's claim was, as the trial court properly determined in its findings of fact and conclusions of law, barred by the doctrine of res judicata. State v. McCollough; State v. Brockwell (Sept. 12, 1996), Cuyahoga App. No. 70552, unreported; State v. Nicholson (July 24, 1997), Cuyahoga App. No. 71398, unreported. For the foregoing reasons, defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second and final assignment of error states: II. THE APPELLANT (SIC) ERRED UNDER THE SIXTH (6) AND FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION WHERE IT DENIED INDIGENT PRO SE LITIGANT AND ATTORNEY OF RECORD HIS RIGHT TO A COPY OF THE RECORD AND TRANSCRIPT AT STATE'S EXPENSE. Defendant-appellant argues, through his second and final assignment of error, that this court erred in failing to provide a second copy of the trial court transcript at state's expense. It is well established that an indigent prisoner is entitled to have -7- only one copy of the transcript of proceedings prepared at state's expense. State ex rel. Murr v. Thierry (1987), 34 Ohio St.3d 45; State ex rel Ralston v. Hill (1981), 65 Ohio St.2d 58; State ex rel Mathis v. Janas (Feb. 12, 1997), Lorain App. No. 96CA006388, unreported. A review of the record demonstrates that defendant- appellant previously received a copy of the trial court proceedings at state's expense for purposes of direct appeal. Accordingly, defendant-appellant was not entitled to receive a second copy of the transcript at state's expense. Defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -8- It is ordered that appellee recover of appellant 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 Cuyahoga County 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 JOHN T. PATTON, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .