COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73736 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DONALD LEWIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 3, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CR-243297. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: Stephanie Tubbs Jones David H. Bodiker Cuyahoga County Prosecutor State Public Defender Arthur A. Elkins Stephen A. Ferrell Ronald D. James Laurence E. Komp Assistant County Prosecutors Assistant State Public Defenders 8th Floor Justice Center Ohio Public Defenders Commission 1200 Ontario Street 8 East Long Street, 11th Floor Cleveland, Ohio 44113 Columbus, Ohio 43215-2998 -2- SWEENEY, JAMES D., J.: Defendant-appellant Donald Lewis appeals from the denial of his petition for post-conviction relief pursuant to R.C. 2953.21 without benefit of an evidentiary hearing. For the reasons adduced below, we affirm. A review of the record reveals that, on September 14, 1989, Lewis was indicted for aggravated murder with a felony murder specification and aggravated robbery in connection with the beating death of Clarence Roach. Lewis' conviction was affirmed on appeal to this court and to the Ohio Supreme Court. State v. Lewis (September 26, 1991), Cuyahoga App. No. 59535, unreported; State v. Lewis(1993), 67 Ohio St.3d 200, certiorari denied (1994), 510 U.S. 1185. On September 26, 1996, Lewis filed a petition to vacate and set aside the trial court's judgment under R.C. 2953.21 asserting thirteen claims for relief including improper jury instructions, ineffective assistance of trial counsel, and unconstitutionality of the death penalty. He also sought to be determined as indigent so as to receive funds for the appointment of experts, to be granted the opportunity to conduct discovery as to the claims raised in the petition, to be granted an evidentiary hearing, that his conviction be determined void or voidable, that his death sentence be determined void or voidable, and that he receive a life sentence. Attached to the petition were several affidavits from execution witnesses as to the realities of electrocution, statistical information about the proportion of minorities on death row, -3- opinions by psychologists as to Lewis' mental state, affidavits from Lewis' family members and friends and a report by a linguistics professor describing the trial court's jury instructions as badly drawn and confusing. On September 8, 1997, the trial court issued findings of fact and conclusions of law. Without granting a hearing, the trial court denied Lewis' petition, finding that many of his claims were barred by res judicata because they were or could have been litigated either before his conviction or on direct appeal from his conviction. The court also held that Lewis failed to present sufficient operative facts to demonstrate the prosecutorial misconduct or the lack of competent trial counsel. The court also found that it lacked the authority to modify Lewis' death sentence. Lewis' petitions for post-conviction relief, appointment of expert witnesses, discovery, and an evidentiary hearing were denied. Lewis presents ten assignments of error for our review. I. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT LEWIS' TENTH CLAIM FOR RELIEF BECAUSE THE STATE WITHHELD MATERIAL EXCULPATORY EVIDENCE AT APPELLANT LEWIS' CAPITAL TRIAL. U.S. CONST.AMEND.XIV. In his first assignment of error, Lewis alleges the trial court erred in dismissing his claim that the State withheld material exculpatory evidence at his trial. The Brady rule requires the State to disclose evidence favorable to the accused upon request where the evidence is material either to guilt or to punishment. Brady v. Maryland (1963), 373 U.S. 83, 87. Such -4- evidence is material only if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed to the defense. State v. Johnston (1988), 39 Ohio St.3d 48. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.; State v. Soke(1995), 105 Ohio App.3d 226, 248, appeal dismissed (1995), 74 Ohio St.3d 1475. Lewis argues the State withheld exculpatory evidence contained in Detective Jack Bornfeld's report of his interview with one of the prosecution witnesses, Richard Parker. Specifically, he argues that statements made by Parker indicated that there was an argument between Lewis and the victim and that evidence of such an argument would undermine the State's case for aggravated murder. In his report, Bornfeld wrote that Parker told him Roach and Lewis seemed to get a little hot when Roach refused Lewis' offer to buy his car for $400.00 by paying $200.00 immediately and $200.00 later. According to the report, Parker also told Bornfeld that Lewis seemed to get mad when Roach refused to buy him a drink. Our review of the report leads us to conclude that the evidence contained therein would not undermine confidence in the State's case for aggravated murder. A fair reading of the report reveals at most, a disagreement between Lewis and Roach. There is no evidence of the sort of heated exchange that could be construed as provocation by the victim. -5- We also reject Lewis' argument that evidence of an argument between the two men was consistent with a charge of involuntary manslaughter. The jury could not have considered involuntary manslaughter unless they could reasonably find that Lewis did not intend to kill Roach. See State v. Campbell (1994), 69 Ohio St.3d 38, 47-48, certiorari denied (1994), 513 U.S. 913. Such a finding was precluded by evidence that Lewis repeatedly kicked the sixty- eight-year-old Roach in the head for a minute and a half. The coroner testified that Roach was killed by anywhere between three and eight blows to the head and neck, any one of which was potentially lethal. Roach suffered eight fractures including fractures of his nose, the bones under his eyes, both sides of his upper jaw, the base of his skull, and his neck. The State presented overwhelming evidence that Lewis intended to kill Roach. Under the circumstances, we conclude that the evidence of an alleged argument between the parties would not have supported a finding of involuntary manslaughter. The trial court properly denied Lewis' tenth claim for relief. Lewis' first assignment of error is overruled. II. THE INEFFECTIVENESS ASSISTANCE OF COUNSEL PROVIDED TO APPELLANT LEWIS VIOLATED HIS RIGHTS TO A FAIR AND IMPARTIAL TRIAL AND SENTENCE, AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION. In his second assignment of error, Lewis alleges he was denied the effective assistance of counsel at trial. This claim is barred -6- by res judicata. A claim of ineffective assistance of counsel presented in a postconviction petition may be dismissed under the doctrine of res judicata when the petitioner, represented by new counsel on direct appeal, has failed to raise on appeal the issue of trial counsel's competence and the issue could fairly have been determined without evidence dehors the record. State v. Sowell (1991), 73 Ohio App.3d 672, 679 (citing State v. Cole (1982), 2 Ohio St.3d 112.) In this case, Lewis had different counsel on appeal than he did at trial. Also, his ineffective assistance of counsel claims could fairly have been determined without evidence dehors the record. Therefore, res judicata applies to bar this claim. Lewis' second assignment of error is overruled. III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S SEVENTH AND EIGHTH CLAIMS FOR RELIEF WITHOUT FIRST GRANTING DISCOVERY IN VIOLATION OF THE SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. V. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUESTS FOR DISCOVERY IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. In his third and fifth assignments of error, Lewis alleges the trial court erred in dismissing his claims for relief without first granting discovery. However, the trial court is not required to grant discovery during the initial stages of post-conviction -7- proceedings. State v. Carter (Oct. 4, 1995), Hamilton App. Nos. C- 940375, C-940835, unreported; State v. Waddy (June 10, 1997), Franklin App. No. 96-APA07-863, unreported, appeal dismissed (1997), 80 Ohio St.3d 1423. If a trial court does not find substantive grounds for relief within the petition, it need not grant discovery. State v. Hill (Nov. 21, 1997), Hamilton App. No. C-961052, unreported, appeal dismissed (1998), 81 Ohio St.3d 1468. In this case, the trial court found no grounds for relief within Lewis' petition. Accordingly, the court properly denied his requests for discovery. Furthermore, the Ohio Supreme Court has specifically rejected the argument that Ohio's statutory scheme for imposing the death penalty is unconstitutional because the death penalty is more often imposed on those who kill white victims. State v. Steffen (1987), 31 Ohio St.3d 111, 124-125, certiorari denied (1988), 485 U.S. 916. Ohio courts have also rejected arguments of racial bias where the petitioner fails to show that racial bias affected the sentencing process in his particular case. State v. Sowell (1988), 39 Ohio St.3d 322, 336, certiorari denied (1989), 490 U.S. 1028; State v. Zuern(1987), 32 Ohio St.3d 56, certiorari denied (1988), 484 U.S. 1047. Lewis' third and fifth assignments of error are overruled. IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S FIRST CLAIM FOR RELIEF IN VIOLATION OF THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. -8- In his fourth assignment of error, Lewis alleges the death penalty constitutes cruel and unusual punishment. This argument has been specifically rejected by the Ohio Supreme Court. See State v. Reynolds (1998),80 Ohio St.3d 670, 685, certiorari denied (1998), 118 S.Ct. 2328; State v. Frazier (1991), 61 Ohio St.3d 247, 257, certiorari denied (1992), 503 U.S. 941; State v. Coleman (1989), 45 Ohio St.3d 298, 308, certiorari denied (1990), 493 U.S. 1051; State v. Poindexter (1988), 36 Ohio St.3d 1, certiorari denied (1988), 488 U.S. 916, rehearing denied (1989), 489 U.S. 1047, State v. Steffen (1987), 31 Ohio St.3d 111 at paragraph one of the syllabus. Lewis' fourth assignment of error is overruled. VI. OHIO DOES NOT PROVIDE AN ADEQUATE CORRECTIVE PROCESS IN VIOLATION OF THE DUE PROCESS, THE EQUAL PROTECTION AND THE SUPREMACY CLAUSES OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 2, 10 AND 16 OF THE OHIO CONSTITUTION. In his sixth assignment of error, Lewis alleges Ohio does not provide an adequate corrective process for obtaining post- conviction relief. In support of his argument, he cites Keener v. Ridenour (6th Cir. 1979), 594 F.2d 581; State v. Perry (1967), 10 Ohio St.2d 175; Coley v. Alvis (6th Cir. 1967), 381 F.2d 870, 872; and Alle n v. Perini (6th Cir. 1970), 424 F.2d 134, certiorari denied (1970), 400 U.S. 906. In Perry, the Ohio Supreme Court held that res judicata applied to bar a convicted defendant from raising any claim that was or could have been raised at trial or on direct appeal from his conviction. Perry at 182. In Coley, the 6th Circuit Court of Appeals opined that Perry rendered the post- -9- conviction relief process ineffective to protect the rights of convicted defendants. Coley at 872. See also Allen at 139-140; Keener at 590. The Sixth Circuit Court of Appeals' dissatisfaction with Ohio's post-conviction relief process and the Perry decision does not require us to hold the post-conviction relief process invalid. Perryremains good law in this State. See State v. Szefcyk (1996), 77 Ohio St.3d 93, 96. Furthermore, the post-conviction relief process has been held to be constitutionally sound. See State v. Sklenar (1991), 71 Ohio App.3d 444, jurisdictional motions overruled (1992), 63 Ohio St.3d 1448. We have reviewed R.C. 2953.21 and do not believe it to be unconstitutional. The implementation of the doctrine of res judicata does not act to deprive litigants of constitutional rights, but rather conserves judicial resources while still permitting a defendant to have his day in court. Sklenar at 449. See also State v. Haliym (March 12, 1998), Cuyahoga App. No. 72411, unreported, appeal dismissed (1998), 82 Ohio St.3d 1441. Lewis' sixth assignment of error is overruled. VII. THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO DISMISS IN VIOLATION OF THE SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION. In his seventh assignment of error, Lewis alleges the trial court erred in granting the State's motion to dismiss his petition for post-conviction relief. The State captioned its response to Lewis' petition for post-conviction relief as a Motion to Dismiss -10- Defendant's Petition for Post-Conviction Relief. However, in its conclusion to the motion, the State requested that Lewis' petition be denied. Also, in its journal entry, the trial court clearly denied Lewis' petition. Accordingly, we reject Lewis' argument that our review of the trial court's action should be governed by 12(B)(6) standards. Instead we apply the standard set forth in R.C. 2953.21(C) whether the petition sets forth substantive grounds for relief. In light of our finding that Lewis' petition and its supporting documents did not contain operative facts establishing a substantive ground for relief, the trial court properly denied the motion. Lewis' seventh assignment of error is overruled. VIII. THE TRIAL COURT ERRED IN FINDING THAT THE DOCTRINE OF RES JUDICATA APPLIED TO APPELLANT'S FIRST, SECOND, THIRD, FOURTH, SEVENTH, EIGHTH, NINTH, ELEVENTH AND TWELFTH CLAIMS FOR RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. In his eighth assignment of error, Lewis argues the trial court erred in finding that his first, second, third, fourth, seventh, eighth, ninth, eleventh and twelfth claims for relief were barred by res judicata. In keeping with our resolution of Lewis' seventh assignment of error, we conclude the issue of res judicata was properly raised by the State in response to Lewis' petition for post-conviction relief. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was -11- 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. Szefcyk at 95. However, res judicata does not apply to bar a petitioner's claim for relief when the petitioner presents competent, relevant, and material evidence dehors the record that did not exist at the time of the direct appeal and was unavailable to the petitioner. State v. Lawson (1995), 103 Ohio App.3d 307, 315. In addition, the evidence must be genuinely relevant, and it must materially advance a petitioner's claim that there has been a denial or infringement of his or her constitutional rights. State v. Coleman (Mar. 17, 1993), Hamilton App. No. C-900811, unreported. While Lewis did attach evidence dehors the record in support of his claims for relief, he made no claim that the evidence was unavailable to him at the time of his direct appeal. Lewis has not established that his constitutional claims could not have been determined based upon the information in the original trial record. Accordingly, his eighth assignment of error is overruled. IX. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLES I, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION. -12- In his ninth assignment of error, Lewis argues the trial court erred in denying him an evidentiary hearing on his petition for post-conviction relief. Lewis argues a hearing should have been granted because his petition alleged facts that could not have been determined from the record. However, submitting evidence dehors the record in support of a petition for post-conviction relief does not preclude the application of res judicata if the claim could fairly have been determined on direct appeal based upon the information contained in the trial record. State v. Combs (1994), 100 Ohio App.3d 90, 98, reconsideration denied (1995), 71 Ohio St.3d 1472; State v. Cole (1982), 2 Ohio St.3d 112 at syllabus. Lewis' petition included facts dehors the record, but he has not established that his claims could not have been determined without those facts. Accordingly, we overrule Lewis' ninth assignment of error. X. THE CUMULATIVE ERROR OF APPELLANT'S SUBSTANTIVE CLAIMS MERIT REVERSAL OR A REMAND FOR A PROPER POST-CONVICTION PROCESS. In his tenth assignment of error, Lewis argues the cumulative effect of the errors in his case merited reversal of his conviction. Because we found no merit to any of Lewis' claims for relief, we overrule his tenth assignment of error. The trial court's judgment is 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. Exceptions. O'DONNELL, P. J., and ROCCO, J., CONCUR. JAMES D. SWEENEY 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 .