COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73743 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION JOHN W. PEROTTI : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : DECEMBER 10, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CR-171706 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ARTHUR A. ELKINS, ESQ. Assistant County Prosecutor 8th Floor The Justice Center 1200 Ontario Street Cleveland, OH 44113 JOHN W. PEROTTI, PRO SE #167712 1724 St. Rt. 728 Lucasville, OH 45699 -2- JOHN T. PATTON, J.: Petitioner-John Perotti argues the trial court erred in denying his petition for post-conviction relief ( PCR ). In 1982, Perotti was charged by indictment in three cases. In the first case he was charged with aggravated robbery, carrying a concealed weapon, possessing criminal tools, possession of dangerous ordnance, and receiving stolen property. The charge in the second case was aggravated robbery and in the third case he was charged with having a weapon while under a disability. Perotti entered a plea agreement with the state where he pleaded guilty to aggravated robbery and receiving stolen property in exchange for the rest of the charges being nolled. Subse- quently, Perotti was sentenced to concurrent terms of imprisonment of five (5) to twenty-five (25) years and one (1) to five (5) years. In 1983 and 1984 Perotti filed PCRs in the trial court. The trial court denied his 1983 PCR finding as a matter of law that there are no substantive grounds for relief sought by defendant- petitioner and accordingly the petitioner is not entitled to [sic] relief he seeks. The trial court also denied the 1984 PCR. Next, Perotti filed a motion for delayed appeal with this court, which was later denied. On November, 18, 1996, he filed another PCR with the trial court. In this pro se PCR, Perotti argued he was denied due process of law when the trial court neglected to inform him, pursuant to R.C. 2951.04, that he was entitled to request conditional probation for purposes of drug -3- treatment and rehabilitation. Furthermore, he claimed he was denied equal protection of the law and the right to be free from cruel and unusual punishment by the non-application of the more lenient provisions contained in Senate Bill 2. The trial court denied Perotti's PCR finding his due process claims were barred by the doctrine of res judicata and Senate Bill 2 was not retroac- tively applicable. Defendant filed a timely notice of appeal and presents two assignments of error. In his first assignment of error Perotti argues the trial court erred in determining the merits of his PCR were barred by the doctrine of res judicata. Substantively, he claims he was denied his right to due process because the trial court never informed him he could request conditional probation for drug treatment in lieu of imprisonment nor was he advised to his right to counsel on direct appeal. Under 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 defendant at trial, which resulted in that judgment of conviction, or an appeal from that judgment. State v. Reynolds (1997), 79 Ohio St.3d 158, 161, citing State v. Perry (1967), 10 Ohio St.2d 175. Moreover, it is established that, pursuant to res judicata, a defendant cannot raise an issue in a motion for postconviction -4- relief if he or she could have raised the issue on direct appeal. Reynolds, supra, citing State v. Duling (1970), 21 Ohio St.2d 13. We find the trial court was correct in denying Perotti's PCR by applying res judicata.Defendant was represented by counsel and the two errors he complains of could have been raised on direct appeal. Thus, Perotti's first assignment of error is overruled. In his second assignment of error, Perotti claims the trial court erred in deciding his petition was successive and without cause to entertain because the law contained in his successive (or present) petition was not in effect during his previous petitions. Perotti's brief is unclear in this assignment of error. However, he appears to argue Senate Bill 2 was not in effect during his prior PCRs so the trial court's finding that it does not have to entertain successive petitions which allege the same grounds was incorrect. The trial court addressed Perotti's Senate Bill 2 argument and did not disregard it because it was previously submitted in an earlier petition as he claims. The trial court stated [s]enate Bill 2 specifically applies to offenses committed on or after July 1, 1996. Thus, the act contains no retroactive provision which allows this court to modify petitioner's 1982 sentences. This finding by the trial court is supported by the Ohio Supreme Court's recent decision in State v. Rush (1998), 83 Ohio St.3d 53. Based on this reasoning, we find the trial court did not err in not retroactively applying the provisions of Senate Bill 2 to -5- Perotti's prison sentence. Accordingly, Perotti's second assign- ment of error is overruled. 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. -6- A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, A.J. JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON 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 .