COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73770, 73771 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : vs. : AND : : OPINION MICHAEL SWISHER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 10, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-293743 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DIANE SMILANICK, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendants-Appellant: MICHAEL SWISHER, Pro se #283-247 T.C.I. P.O. Box 901 Leavittsburg, Ohio 44430-0901 JUDGE TERRENCE O'DONNELL: This is the second time this matter has been appealed to our court. Michael Swisher, pro se, now has filed two separate appeals -2- from decisions of the common pleas court denying a motion to vacate his sentence arising from his jury trial convictions for 58 counts of rape, and also denying a motion for a new trial. We consolidated these separate appeals for purposes of review. Finding no error, we affirm the decisions of the trial court in both matters. Following his jury trial and original conviction of 58 counts of rape and imposition of his sentence, Swisher filed a direct appeal to our court, and we affirmed his convictions. See State v. Swisher (Dec. 8, 1994), Cuyahoga App. No. 66656, unreported. Almost three years later, however, Swisher filed motions in the trial court seeking leave to file a delayed motion for new trial and also seeking to vacate his sentence and to discharge him. On December 8, 1997, the common pleas court overruled these motions, issued findings of fact and conclusions of law, and specifically found that because Swisher never raised any sentencing issues on his direct appeal, the doctrine of res judicata barred him from litigating the issue. Swisher now appeals from those December 1997 rulings and raises the following assignments of error for our consideration in these separate appeals, all of which we shall consider jointly: Case No. 73770: I. IT IS A VIOLATION OF CONSTITUTIONAL DUE PROCESS FOR A TRIAL COURT TO DENY WITHOUT HEARING A POST-SENTENCE MOTION TO VACATE SENTENCE, WHERE THAT SENTENCE IS BOTH IN DIRECT VIOLATION OF SENTENCING CAP REQUIREMENTS AND IS ULTIMATELY LEFT TO THE EXECUTIVE BRANCH OF STATE GOVERNMENT TO BE DETERMINED, MODIFIED, AND ULTIMATELY -3- THEN CORRECT. II. IT IS VIOLATIVE OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FEDERAL CONSTITUTION'S FIFTH AND FOURTEENTH AMENDMENTS AND THAT OF DOUBLE JEOPARDY FOR THE GOVERNMENT TO CIRCUMSCRIBE OR TO INTENTIONALLY CIRCUMVENT THE SEPARATION OF POWERS DOCTRINE THEREBY UNCONSTI- TUTIONALLY PERMITTING OR DELEGATING AUTHORITY TO THE EXECUTIVE BRANCH OF STATE GOVERNMENT TO CARRY OUT WELL ESTABLISHED JUDICIAL BRANCH FUNCTION AND DUTY WITHOUT CONSTITUTIONAL AUTHORITY TO DO SO. III. OHIO REVISED CODE SECTION 2929.41(E)(2)(3) IS UNCONSTITUTIONAL IN ITS FORM AND EFFECT WHEREIN IT REQUIRES AND MANDATES SUBSTANTIVE ACTIVITY OR ACTION ON THE PART OF STATE EXECUTIVE BRANCH OFFICIALS TO LOCATE, DETERMINE, AND MODIFY SENTENCING ERRORS AND THEREAFTER TO CORRECT ANY SUCH SENTENCING ERRORS WITHOUT REGARD TO THE DUE PROCESS AND EQUAL PROTECTION RIGHTS OF DEFENDANT, AND, WITHOUT ACCORDING DEFENDANT COUNSEL, OR AN OPPORTUNITY TO BE PRESENT OR TO BE HEARD AT THOSE EX PARTE EXECUTIVE BRANCH PROCEEDINGS. Case No. 73771: I. IT IS A VIOLATION OF CONSTITUTIONAL DUE PROCESS FOR A TRIAL COURT TO DENY A MOTION FOR LEAVE TO FILE DELAYED MOTION FOR NEW TRIAL AND WITHOUT A HEARING ON WHICH THE MOVANT CAN PROVE THAT HE WAS UNAVOIDABLY PREVENTED FROM EARLIER DISCOVERY OF THE NEW EVIDENCE ON WHICH HE DOES RELY. II. IT IS CONSTITUTIONAL ERROR TO DENY OR TO OTHERWISE DEPRIVE AN INDIGENT DEFENDANT APPOINTED COUNSEL ON AN APPEAL AS OF RIGHT FLOWING FROM A CRIMINAL RULE 33 APPLICATION. In reviewing this case, we recognize Swisher complains of an alleged sentencing error in his appeal in case number 73770 emanating from the provisions of R.C. 2929.41(E)(2), which he cites in his brief as follows: -4- Consecutive terms of imprisonment shall not exceed: (2)[A]n aggregate minimum term of *fifteen years, *** [w]hen the consecutive terms imposed are for felon[ies] other *than [ aggravated murder ] or murder[.] (emphasis added). Apparently, Swisher complains of his sentence of 27 years to life being in violation of this cited provision. This argument is first of all, not properly before us because a review of the record confirms that Swisher never raised the issue of sentencing on his direct appeal, and therefore, the trial court correctly determined that the doctrine of res judicata bars him from raising it in a post-conviction proceeding brought under R.C. 2953.21. See State v. Cole (1982), 2 Ohio St.3d 112. Beyond that, however, a cursory review of the sentence imposed in this case indicates the court sentenced Swisher to terms of life imprisonment on each of counts 10 through 30 and on count 63. Hence, any alleged violation of R.C. 2929.41 is irrelevant as Swisher has been sentenced to terms of life imprisonment in accordance with law. In case number 73771, Swisher complains the court denied his motions without a hearing and failed to appoint counsel for him. R.C. 2953.21(C) provides in 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 -5- conclusions of law with respect to such dismissal. Further, in State v. Armstrong (1988), 56 Ohio App.3d 105, the court stated at 108: 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. Here, Swisher never provided any substantive evidence to support his motion for a new trial. His claim of alleged newly discovered DNA evidence is not well taken. Hence, the trial court did not err in denying these motions. Accordingly, Swisher's assignments of error are not well taken, and the judgment of the trial court is affirmed. Judgment affirmed. -6- 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. JAMES D. SWEENEY, J., and MICHAEL J. CORRIGAN, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 .