COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74677 STATE OF OHIO, : ACCELERATED : Plaintiff-Appellee : JOURNAL ENTRY : AND vs. : OPINION : KEVIN SAMUELS, : PER CURIAM : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 19, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. CR-208246 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Lisa Reitz Williamson Assistant County Prosecutor The Justice Center -- 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Paul Mancino, Jr. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 -2- PER CURIAM: Appellant, Kevin Samuels, appeals the trial court's denial of his motion for postconviction relief. Samuels was convicted of one count of murder with a firearm specification and one count of carrying a concealed weapon. He was then sentenced to a term of fifteen years to life, with three years of actual incarceration for the firearm specification. Shortly thereafter, appellant filed a motion for a new trial which was denied by the trial court on June 13, 1986. On appeal appellant's conviction was confirmed by this court in State v. Samuels(Sept. 24, 1987), Cuyahoga App. No. 52527. His subsequent appeals to both the Supreme Court of Ohio and the United States Supreme Court were denied. Appellant then filed for a delayed reconsideration of his direct appeal, which was also denied by this court on July 22, 1992. On September 23, 1996, appellant filed a motion to vacate or set aside his sentence pursuant to R.C. 2953.21. In this postconviction motion appellant claimed that he was denied due process of law because one of the key witnesses that testified against him at trial, Katherine J. Johnson, had committed perjury, and that another potential witness, Roberta Franklin, was not considered. This motion was subsequently denied by the trial court as well. On January 30, 1998, appellant filed his second petition for postconviction relief asking for an evidentiary hearing or, in the alternative, a new trial. In this petition appellant alleged that -3- various state witnesses committed perjury at his trial and as a result, he was denied due process of law. On April 3, 1998, the trial court denied this petition and issued an order containing the reasons for its findings of fact. I. Appellant's first assignment of error states: DEFENDANT WAS DENIED THE DUE PROCESS OF LAW WHEN HIS MOTION WAS DISMISSED ON THE BASIS OF RES JUDICATA. When a petitioner seeks postconviction relief on an issue that was raised or could have been raised on direct appeal, the petition is properly denied by the application of the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. See, also, State v. Ishmail (1981), 67 Ohio St.2d 16, 18, 423 N.E.2d 1068. In order to overcome the res judicata bar, the petitioner must show, through the use of extrinsic evidence, that he could not have appealed the original constitutional claim based on the information in the original trial record. State v. Combs (1994), 100 Ohio App.3d 90, 97-98, 652 N.E.2d 205. This evidence outside the record is necessary so that petitioner may prove that after conviction he obtained evidence not previously available to him that will prove the claim he is seeking. Id., State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, 448 N.E.2d 452. Further, in State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233, it was determined that [u]nder 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 -4- proceeding, except an appeal from that judgment, any defense or any claim of lack of due process that was raised or could have been raised by the defendant at trial, which resulted in a judgment of conviction, or on an appeal from that judgment. In the instant case, appellant raised the present issue of perjury in his first petition to the trial court in State v. Samuels (November 13, 1996), Common Pleas No. 208246, unreported. As a result, his claims concerning perjury in this petition are barred by the doctrine of res judicata. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: DEFENDANT WAS DENIED THE DUE PROCESS OF LAW WHEN HIS MOTION WAS DISMISSED WITHOUT AT LEAST AN EVIDENTIARY HEARING. Under R.C. 2953.21, a postconviction petition for relief may be dismissed without a hearing if the petitioner fails to introduce with his petition evidentiary material setting forth sufficient operative facts that demonstrate substantive grounds for relief. R.C. 2953.21(C); State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819. It is within the sound discretion of the trial court to deny a hearing even if the petitioner is introducing alleged newly discovered evidence. State, ex rel. Jennings v. Nurre (1995), 72 Ohio St.3d 596, 651 N.E.2d 1006. To merit a hearing a petitioner must show that there are substantive grounds that would warrant a hearing based upon the petition, the supporting affidavits, and the files and records of the case. Jackson, -5- supra. Ultimately, the denial of a motion for a new trial is within the discretion of the trial court and absent an abuse thereof, the decision will stand. State v. Schiebel (1990), 55 Ohio St.3d 71, 76, 564 N.E.2d 54. See, also, State v. Kiraly (1977), 56 Ohio App.2d 37, 52, 381 N.E.2d 649. Moreover, a trial court, in so ruling, need not discuss every issue raised by appellant or engage in an elaborate and lengthy discussion in its findings of fact and conclusions of law. State ex rel. Carrion v. Harris (1988), 40 Ohio St.3d 19, 530 N.E.2d 1330. These findings need only be sufficiently comprehensive and pertinent to the issue to form a basis upon which the evidence supports the conclusion. State v. Clemmons (1989), 58 Ohio App.3d 45, 47, 568 N.E.2d 705. Although petitioner did bring forward new evidence which, if found to be true, would entitle him to relief, the record demonstrates and negates the validity of said evidence. The affidavits presented by appellant are self-serving in nature and contain statements that are unsupported by evidence and grounded in hearsay. State v. Moore (1994), 99 Ohio App.3d 748, 651 N.E.2d 1319. As a result, the trial court properly found, pursuant to R.C. 2953.21(C), that the evidence presented was insufficient to demonstrate substantive grounds for relief and dismissed the petition without a hearing. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: -6- DEFENDANT WAS DENIED THE DUE PROCESS OF LAW WHEN THE COURT DID NOT GRANT AN EVIDENTIARY HEARING AND PROCEEDED TO WEIGH UNCONTESTED AFFIDAVITS. A trial court does not automatically have to accept as true any affidavits submitted in a petition for postconviction relief, but may weigh the credibility of the postconviction relief affidavits. State v. Moore, supra. However, when a court determines whether there are sufficient grounds for postconviction relief that would warrant a hearing, affidavits in support of petition should be accepted as true and need only present sufficient prima facie evidence to sustain a hearing. State v. Swortcheck(1995), 101 Ohio App.3d 770, 656 N.E.2d 732. See, also, R.C. 2953.21(C). Yet, a petition for postconviction relief is subject to dismissal without a hearing when the record indicates that the petitioner is not entitled to relief and that petitioner failed to submit evidentiary documents containing sufficient operative facts. State v. Scott (1989), 63 Ohio App.3d 304, 578 N.E.2d 841. Further, in State v. Moore, supra, the court held that when weighing the credibility of postconviction relief affidavits, the trial court should consider the following factors: (1) whether the judge who is reviewing the postconviction affidavits is the same judge who presided as the trial judge; (2) whether the affiants are the petitioner or relatives of the petitioner; (3) whether the affidavits either are identical or rely on hearsay; and (4) whether the affidavits have the effect of recanting prior statements. Id. at 755, 756, 651 N.E.2d at 1322-1324. -7- In reaching its conclusion, the trial court stated that the affidavits presented by appellant did not contain sufficient operative facts upon which a ruling in his favor could rest. Specifically, the trial court stated that the affidavits demonstrated little credibility due to the fact that all were from family and friends. The court went on to explain that [f]amily and friends of an incarcerated petitioner must demonstrate to the court a certain trustworthiness sufficient to warrant a hearing. The record and the opportunities to present these defenses at trial undermine the credibility of the affiants and petitioner. State v. Moore, supra. See, also, State v. Bradley (1995), 101 Ohio App.3d 752. The trial court did not improperly dismiss the affidavits of the appellant as incredible, because appellant presented no prima facie evidence of his innocence. The affiants' statements find their basis in unsubstantiated allegations or hearsay statements that fly directly in the face of direct testimony given at trial. Further, the trial court properly determined that it could not trust the contents of two of the affidavits as they were submitted by appellant's family members, Jonathan Samuels, appellant's brother, and Louis C. Samuels, who are held to a slightly higher burden of proof. In light of the foregoing, it is clear that the trial court did not err in evaluating the credibility of the affiants upon consideration of appellant's postconviction motion without an evidentiary hearing. The trial court was well within its rights -8- when it determined that the affidavits did not warrant a hearing because the documents did not contain sufficient operative facts and, as a result, petitioner was not entitled to relief. Accordingly, appellant's third assignment of error is overruled. Judgment affirmed. -9- 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, 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 .