COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73267 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : ABDUL HAMIN AWKAL : OPINION : Defendant-Appellant : Date of Announcement of Decision: NOVEMBER 25, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. CR-276801 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GEORGE J. SADD, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ANDREW J. CRITES, ESQ. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Abdul Hamin Awkal appeals from the trial court's failure to grant him relief or a hearing on his post- conviction relief petition (R.C. 2953.21) challenging his convictions for two counts of aggravated murder with firearm and mass murder specifications for which he received the death penalty. Defendant contends the post-conviction relief statute is unconstitutional; the trial court erred in not granting a hearing; that genuine issues of material fact precluded the denial; his petition set forth claims for which relief should be granted; and his claims for ineffective assistance of counsel were not barred by res judicata. We find no error and affirm. On January 7, 1992, defendant shot and killed his estranged wife, Latife Awkal, and his brother-in-law, Mahmoud Abdul-Aziz, at the Family Conciliation Services Department of the Cuyahoga County Domestic Relations Court. Defendant was captured in the courthouse basement not far from where the shooting took place. Defendant's background and the events leading up to and following the murder were fully portrayed in the Ohio Supreme Court's decision on defendant's prior appeal to that Court in which his convictions and the death penalty were affirmed. State v. Awkal (1996), 76 Ohio St.3d 324, 324-29. Those facts will not be repeated here except as necessary in consideration of the assignments of error. -3- On January 13, 1992, defendant was indicted on two counts of aggravated murder, with firearm and mass murder specifications and two counts of felonious assault arising out of the shootings. On May 29, 1992, the trial court found defendant not competent to stand trial and remanded him to the Dayton Forensic Center for treatment and restoration to competency. On August 3, 1992, defendant was determined to be competent to stand trial, and on October 29, 1992, his trial by jury began. Following the State's case-in-chief, the trial court granted defendant's motion to dismiss the felonious assault charge involving the shooting of a deputy sheriff. At the conclusion of the trial, the jury found defendant guilty of both aggravated murder counts, with specifications, but not guilty of felonious assault of his daughter. The penalty phase of the trial began on December 7, 1992, and three days later, the jury returned a verdict recommending imposition of the death penalty. The trial court accepted the jury's recommendation and sentenced defendant to death. At his sentencing, lead trial counsel, John Gill, Esq., advised the court that his client was now indigent and could not afford counsel for appeal. Accordingly, the trial court appointed Gordon S. Friedman, Esq. and John S. Pyle, Esq. as appellate counsel. Appeal was perfected and on April 13, 1995, this Court affirmed the conviction and sentence. State v. Awkal (April 13, 1995), Cuyahoga App. No. 66291, unreported. Appeal was instituted to the Ohio Supreme Court, at which time Henry J. Hilow, Esq. and -4- Kevin M. Spellacy, Esq. represented defendant. On August 14, 1996, the Ohio Supreme Court affirmed both the conviction and imposition of the death penalty. Awkal, 76 Ohio St.3d at 340. On November 26, 1996, defendant filed his first amended petition to vacate or set aside sentence pursuant to R.C. 2953.21. On September 2, 1997, the trial court filed Findings of Fact and Conclusions of Law in which it dismissed defendant's post- conviction petition without a hearing. Defendant's appeal from that ruling forms the grounds for this opinion. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE STATE OF OHIO'S POST-CONVICTION SYSTEM DOES NOT COMPLY WITH THE REQUIREMENTS OF DUE PROCESS AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. R.C. 2953.21 provides the basis for post-conviction relief: (A)(1) Any person who has been convicted of a criminal offense or adjudged a delinquent child and who claims 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 petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set the judgment or sentence or to grant other appropriate relief. *** In Subsection C of this section, it states: 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. Defendant essentially claims that R.C. 2953.21 is unconstitutional in that it violates the due process requirements -5- guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. However, although defendant raised eighteen claims for relief in his petition for post-conviction relief, none of them raised the constitutionality of R.C. 2953.21. We have consistently held that an issue regarding the constitutionality of a statute which is not raised in the trial court shall not be considered by the appellate court. Watford v. Ohio Bur. of Motor Vehicles (1996), 110 Ohio App.3d 499, 503; Sprosty v. Pearlview, Inc. (1995), 106 Ohio App.3d 679, 683. This Court recently held in State v. Haliym (March 12, 1998), Cuyahoga App. No. 72411, unreported, that an appellant who fails to raise his constitutional challenge to R.C. 2953.21 at the trial level, waives it on appeal. In Haliym, this Court stated at 7-8: Generally, an appellate court will not consider an issue regarding the constitutionality of a statute where the issue was not raised in the trial court. State v. Loza (October 13, 1997), Butler County App. No. CA96-10-214, unreported, citing State v. Awan (1986), 22 Ohio St.3d 120, syllabus. Although the waiver doctrine is discretionary, the present case does not present plain error or special circumstances that warrant an exception to the waiver doctrine. Loza, supra. See also In re M.D. (1988), 38 Ohio St.3d 149. A constitutional challenge to R.C. 2953.21 has previously been found to be waived where a post-conviction petitioner failed to raise the issue in the trial court. State v. Benner (April 27, 1997), Summit App. No. 18094, unreported. Further, R.C. 2953.21 has been found to be constitutional. State v. Sklenar (1991), 71 Ohio App.3d 444, 449. In State v. Awan (1986), 22 Ohio St.3d 120, the Supreme Court stated in its syllabus: -6- Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal. Following Awan, the court in State v. Benner (April 27, 1997), Summit App. No. 18094, unreported, found that a post-conviction petitioner waives his constitutional challenge to R.C. 2953.21 when he fails to raise the issue in the trial court. If an appellant did not object or raise the issue at the trial level the issue is deemed waived unless the appellant can show plain error. According to the plain error doctrine, plain errors or defects affecting substantial rights may be noticed on appeal even though they were not brought to the attention of the trial court. Crim.R. 52(B). The Ohio Supreme Court has cautioned that the plain error doctrine should be invoked by an appellate court only in exceptional circumstances to prevent a miscarriage of justice. State v. Waddy (1992), 63 Ohio St.3d 424, 437. Plain error will be recognized only where, but for the error, the result of the trial would clearly have been different, i.e., where defendant would clearly have been acquitted but for the alleged error. Id. Because defendant herein did not raise the issue below, he has waived it on this appeal. Furthermore, since R.C. 2953.21 has already been found to be constitutional, defendant's argument is without merit. Defendant's Assignment of Error I is overruled. -7- II. THE TRIAL COURT ERRED IN DENYING APPELLANT AN EVIDENTIARY HEARING ON HIS PETITION FOR POST- CONVICTION RELIEF BECAUSE THE AFFIDAVITS ATTACHED TO THE PETITION WHEN TAKEN AS TRUE PROVIDED SUBSTANTIVE GROUNDS FOR RELIEF WHICH WOULD WARRANT A HEARING ON THE PETITION. -8- III. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S PETITION WHEN THERE WAS A GENUINE ISSUE AS TO A MATERIAL FACT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 10 AND 16 OF THE OHIO CONSTITUTION. Defendant contends the trial court erred in dismissing his petition for post-conviction relief without an evidentiary hearing because disputed issues of material fact precluded summary disposition. A criminal defendant seeking to challenge his conviction(s)through a petition for post-conviction relief is not automaticallyentitled to a hearing. State v. Cole (1982), 2 Ohio St.3d 112. The trial court properly disposes of a petition for post- conviction relief without a hearing where the petition fails to establish a substantive ground for relief. The post-conviction remedy statute, R.C. 2953.21(C), states in pertinent 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. 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. -9- Pursuant to R.C. 2953.21(C), the trial court dismissed defendant's post-conviction petition and issued findings of fact and conclusions of law on each issue raised in the petition. (Memorandum of Opinion and Order filed Sept. 3, 1997). As the statute makes clear, [C]ourts are not required to hold a hearing on all post-conviction cases. State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450, 451. This Court stated the test to be applied in determining the necessity of a hearing in State v. Pariseau (Dec. 15, 1994), Cuyahoga App. No. 67496, unreported at 4-5: A petition for post-conviction relief may be dismissed without a hearing when the petitioner fails to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107. The test to be applied is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records in the case. State v. Strutton (1988), 62 Ohio App.3d 248, 251. A petitioner satisfies his initial burden by submitting evidence outside the record sufficient to avoid dismissal. See State v. Williams (1991), 74 Ohio App.3d 686, 692. Defendant suggests that the trial court erred by denying the defendant an evidentiary hearing on his petition for post- conviction relief and by granting judgment on the State's brief in opposition. In compliance with R.C. 2953.21(C), the trial court found that there were no substantive grounds for relief in defendant's petition and ruled that a hearing was not necessary. (Memorandum of Opinion and Order at 14). -10- In his petition for post-conviction relief, defendant attached the following documents to demonstrate his principal ground for relief, to wit, that he was mentally incompetent and unable to assist at his trial: (1) the affidavit of John Gill, defendant's trial attorney, describing his experiences in attempting to discuss with the defendant the defense of his case; (2) defendant's own affidavit essentially tracking the assertions of John Gill; (3) the affidavit of defendant's brother, Ali Mohammed Awkal, recounting the extensive troubled and personal psychiatric history of the defendant; and (4) the affidavit of James R. Eisenberg, Ph.D., a board-certified psychologist tracking the mitigation phase of defendant's trial. Defendant asserts that these documents demonstrate that he was mentally incompetent and therefore unable to assist his counsel during trial. The essence of this assertion is that his despair and desire to die put him in a condition that prevented him from assisting in his defense. We find no merit to these contentions. The trial court initially found defendant not competent to stand trial. He was remanded to the Dayton Forensic Center for treatment and restoration to competency. After three months at the Dayton Forensic Center, he was found competent to stand trial. He was returned to the Dayton Forensic Center while awaiting trial out of concern that his condition would deteriorate if held in the County Jail for an extended period of time. Although the trial court denied defense counsel's motion for re-evaluation of defendant's mental state during trial, the court -11- stated that it would watch defendant closely to see that he was paying attention to the trial and assisting with his defense. There was nothing to prevent counsel from securing the services of a psychiatrist to examine the defendant with a view to renewing that motion. Steps were carefully taken to assure defendant's competence to stand trial and assist his counsel. Defendant's Assignments of Error II and III are barred by the doctrine of res judicata. Because post-conviction petitions are quasi-civil, any claim that was or could have been raised at trial or on appeal is barred by the doctrine of res judicata. The Ohio Supreme Court has held: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. 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 Perry, supra; State v. McCullough (1992), 78 Ohio App.3d 587, 591. 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 -12- appeal, the trial court may dismiss the petition without a hearing on the grounds of preclusion. Perry, supra; State v. Nicholson (July 24, 1997), Cuyahoga App. No. 71398, unreported. The affidavits defendant has submitted in support of his post- conviction relief petition merely reiterate issues raised as to defendant's competency to stand trial. These issues were raised and resolved at trial, as noted above. These issues should have been raised on direct appeal by defendant's new appellate counsel. Absent a showing of an abuse of discretion, a reviewing court should not overrule the trial court's findings on a post-conviction petition. State v. Mitchell (1988), 53 Ohio App.3d 117, 119. An abuse of discretion connotes more than an error in law or judgment; it implies conduct that is arbitrary and capricious. State v. Adams(1980), 62 Ohio St.2d 151. Defendant's Assignments of Error II and III do not present substantive grounds for relief entitling him to an evidentiary hearing and those issues are, in any event, barred by res judicata. The trial court did not abuse its discretion in denying defendant's petition for post-conviction relief without a hearing. Defendant's Assignments of Error II and III are overruled. IV. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S PETITION TO VACATE OR SET ASIDE CONVICTION AND SENTENCE FILED PURSUANT TO OHIO REVISED CODE SECTION 2953.21 BECAUSE EACH OF THE CLAIMS FOR RELIEF SET FORTH A CONSTITUTIONAL OR STATUTORY CLAIM UPON WHICH RELIEF SHOULD BE GRANTED. Defendant submits his claims for relief set forth a substantive basis for relief. We disagree. Defendant's first and -13- fifteenth claims contend that Ohio's death penalty statute is unconstitutional. These issues were previously raised on the direct appeal to this Court and decided adversely to defendant. The assignments of error challenging the constitutionality of Ohio's death penalty statute were raised (see Assignments of Error 18, 19, 23, 24, 25, 26) in this Court's prior appeal. State v. Awkal(April 13, 1995), Cuyahoga App. No. 66291, unreported. See, also, the Ohio Supreme Court opinion discussing Proposition of Law 14. These claims are barred by the doctrine of res judicata and therefore may not be raised in defendant's petition for post- conviction relief. Defendant's second claim is that he was prejudiced by the trial court's refusal to instruct the jury that defendant's mental illness should be considered as a mitigating circumstance, regardless of whether the mental illness prevented him from refraining from criminal conduct. This argument was raised and fully litigated before the Ohio Supreme Court (see Proposition of Law 13), Awkal, 76 Ohio St.3d at 334-335, and is therefore barred by the doctrine of res judicata. Defendant's third and fourth claims that he was incompetent to stand trial and assist his counsel merely reiterate his incompetency arguments made before and during the trial which were dealt with appropriately at that time and are now barred by res judicata. Defendant's fifth, sixth and seventh claims all assert that he was denied his right to the assistance of experts in preparing and -14- presenting his defense. This is another ineffective assistance of counsel argument along with his eighth and ninth claims. Defendant asserts that Drs. Eileen McGee and Paul Hewitt, the two psychiatric experts with whom his trial counsel consulted, were incompetent to testify. Defendant contends that because Dr. Hewitt was not licensed to practice psychiatry in Ohio and Dr. McGee was not board certified, nor a forensic psychiatrist, that he was denied effective assistance of counsel. This very argument, however, was made previously in the Ohio Supreme Court, which held that *** the end result of tactical trial decisions need not be positive in order for counsel to be `effective' ***. We do not believe the record establishes that Awkal's attorneys were ineffective at trial. Awkal,76 Ohio St.3d at 337. Since defendant's claims of ineffective assistance of counsel were exhaustively reviewed and decided by the Ohio Supreme Court, they are barred by the doctrine of res judicata. We note defendant had different appellate counsel at both appellate levels, in this Court and in the Supreme Court. Defendant's tenth, eleventh and twelfth claims assert that his trial counsel's failure to consult with cultural and mitigation experts during the mitigation and penalty phases of his trial resulted in unfair prejudice to defendant. Defendant's trial counsel did present evidence during the mitigation phase as to abuse suffered by defendant. In fact, the Ohio Supreme Court held: Awkal's character, history and background are mitigating. 76 Ohio St.3d at 338. The Court further stated: Although we find that appellant did not establish that he lacked the capacity to -15- appreciate the criminality of his actions or to conform his conduct to the requirements of the law, his history of mental problems and his current mental condition are entitled to some weight as mitigation under R.C. 2929.04(B)(7). Id. at 339. Notwithstanding this finding, the Supreme Court concluded that the aggravating circumstances outweighed the mitigating circumstances in this case. Id. While it is true that cultural and mitigation experts may have been beneficial at the penalty phase of trial, defendant has failed to demonstrate that failure to present such resulted in unfair prejudice or deprived him of any constitutional right, including ineffective assistance of counsel. These claims are without merit. Defendant's thirteenth and fourteenth claims assert that he is entitled to post-conviction relief because his mental incompetency and desire to die rendered him unable to fully understand and accept the State's plea offer of an agreed sentence of 63 years to life rather than the death penalty. We cannot simply assume that defendant's rejection of the plea offer is evidence of his incompetence to stand trial or to assist in his defense. The record fails to demonstrate that his rejection of the plea offer was a product of depression or of his inability to understand the possible consequences. More likely, defendant's rejection of the plea offer was the product of a desire to avoid punishment altogether and seek a jury trial. Defendant has failed to present evidentiary material setting forth sufficient operative facts to demonstrate that his refusal to plead guilty was a result of his incompetency. The trial court properly dismissed these claims. -16- Defendant's sixteenth, seventeenth and eighteenth claims assert that the cumulative effects of the errors and omissions as presented in his petition were prejudicial and denied him constitutionally-protected rights. However, defendant has failed to demonstrate any prejudicial errors or omissions in the proceedings before any tribunal. Therefore, the trial court's dismissal of these claims was proper. See State v. Cook (Dec. 29, 1995), Hamilton App. No. C-950090, unreported. Defendant's Assignment of Error IV is overruled. V. THE TRIAL COURT ERRED IN DENYING APPELLANT AN EVIDENTIARY HEARING ON GROUNDS OF RES JUDICATA REGARDING APPELLANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE SUCH CONTENTIONS RELIED UPON EVIDENCE OUTSIDE OF THE RECORD AND THEREFORE WERE NOT AND COULD NOT HAVE BEEN RAISED ON DIRECT APPEAL TO THIS COURT. Defendant contends there is evidence outside the record indicating that his mental state rendered him unable to provide any meaningful assistance to his counsel in the preparation of his defense, thereby depriving him of effective assistance of counsel. As previously noted, issues which have been or could have been raised and fully litigated before the judgment of conviction or on direct appeal without resort to evidence dehors the record are barred from consideration in post-conviction proceedings by the doctrine of res judicata. Cole and Perry, supra. In this case, the issues of defendant's competency and ability to assist in his defense were raised and fully litigated. The trial court took great care in assuring that defendant was fully able to assist in his defense. -17- Although defendant claims that the affidavits submitted with his petition for post-conviction relief provide evidence dehors the record substantiating a claim for post-conviction relief, the issue of defendant's mental competency could have been and was raised and litigated before the trial court without resort to such evidence. The affidavits submitted with defendant's petition merely reiterate defendant's alleged desire to die and his abusive childhood and lifetime experiences. This evidence does not constitute evidence dehors the record to substantiate defendant's claim for post- conviction relief. This cumulative evidence regarding defendant's mental competency was already in the record and properly addressed by the trial court. Additionally, defendant incorrectly labels his claim as ineffective assistance of counsel. A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to the defendant. The second prong is whether defendant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364; S trickland v. Washington (1984), 466 U.S. 668; State v. Bradley(1989), 42 Ohio St.3d 136. In State v. Jackson (1980), 64 Ohio St.2d 107, the Supreme Court held that in post-conviction relief cases, the petitioner bears the burden of showing prejudice. The Court stated: In a petition for post-conviction relief, which asserts ineffective assistance of -18- counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. Id. at syllabus. In this case, defendant is essentially asserting that he was incompetent to stand trial, not ineffective assistance of counsel. Defendant concedes on page 34 of his brief: In the present case, Appellant submits that defense counsel, through no fault of his own, violated an essential duty owed to his client, that being the duty to zealously represent him within the bounds of the law. Gill was unable to zealously represent Appellant because Appellant, due to involuntary mental incompetency, could not give any assistance to Gill. Ineffective assistance of counsel was raised and resolved by this Court and the Supreme Court in defendant's previous appeal. Furthermore, defendant's competency to stand trial was raised and resolved before trial, during trial and on appeal. Accordingly, these issues are barred by the doctrine of res judicata. Defendant's Assignment of Error V is overruled. Judgment affirmed. -19- 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. DYKE, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER 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 .