COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73666 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellee : : JOURNAL ENTRY vs. : : AND STEVEN MUNICI : : OPINION Defendant-Appellant : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-204111 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor DIANE SMILANICK, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DARRELL D. TYBURSKI, ESQ. 410 Leader Building Cleveland, Ohio 44114 STEVEN MUNICI, Pro Se Inmate No. A192-667 Lorain Correctional Inst. 2075 S. Avon-Beldon Road Grafton, Ohio 44044 PER CURIAM: In this accelerated appeal, appellant Steven Munici challenges the trial court's denial of his petition to vacate or set aside his -2- conviction and sentence for murder. Munici assigns the following error for our review: THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO VACATE SENTENCE. In compliance with App.R. 11.1, we conclude the trial court properly denied Munici's petition. For the reasons set forth below, we affirm the decision of the trial court. The apposite facts follow. This is Munici's third post-conviction petition appeal since his August 1986 bench trial conviction for the murder of his infant daughter. His conviction was upheld by this court in State v. Munici (November 19, 1987) Cuyahoga App. No. 52579, unreported. In this petition, he claims his jury trial waiver was invalid because no written waiver was filed, stamped, and made a part of the record as required by R.C. 2945.05. The trial court denied his motion, and this appeal followed. In his sole assignment of error, Munici argues the trial court erred by denying his motion for post-conviction relief. Specifically, he argues that the trial court did not have jurisdiction over his trial because his jury trial waiver was not stamped, filed, and made a part of the record in the case. In support of his argument, he cites State v. Pless (1996), 74 Ohio St.3d 333, 337, rehearing/reconsideration denied (1996), 75 Ohio St.3d 1413. In Pless, the Ohio Supreme Court reluctantly reversed the murder conviction of Carroll Dean Pless after determining that his waiver of the right to a jury trial was never filed with the trial court and made part of the record in the case. -3- R.C. 2945.05 provides that a jury trial waiver shall be in writing, signed by the defendant, filed and made a part of the record of the case. In Pless, the Ohio Supreme Court stated that a failure to comply with the clear, unambiguous requirements of R.C. 2945.05 deprives the trial court of jurisdiction to conduct the defendant's trial without a jury. Id. at 337. See also State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261, 262; State v. Tate(1979), 59 Ohio St.2d 50, 54, certiorari denied (1979), 444 US 967. However, the Pless court went on to say that the failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction. Pless at 339. See also, State v. Haliym (Mar. 12, 1998), Cuyahoga App. No. 72411, unreported. In his petition for post-conviction relief, Munici argues a violation of R.C. 2945.05. Therefore, his remedy was available only through a direct appeal of his conviction. Since the issue of the jury waiver was not raised during his direct appeal, the doctrine of res judicataapplies to bar his claim for post-conviction relief. See State v. Szefcyk (1996), 77 Ohio St.3d 93, 95. ( Res judicata 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 or action, or on an appeal from that judgment. ) Accordingly, we affirm the decision of the trial court. -4- Judgment affirmed. 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. ______________________________ PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE ______________________________ DIANE KARPINSKI, JUDGE ______________________________ LEO M. SPELLACY, 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 .