COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 74735 and 74736 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : AND v. : : OPINION JAMES D. SULLIVAN : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 23, 1999 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court, Nos. CR-176531 and CR-177185. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: William D. Mason, Esq. Cuyahoga County Prosecutor Randi Marie Ostry Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Kenneth R. Spiert, Esq. 85 E. Gay Street, Suite 509 Columbus, OH 43215-3160 TIMOTHY E. McMONAGLE, J.: James D. Sullivan, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal -2- Division, Case Nos. CR-176531 and CR-177185, in which the trial court denied his Civ.R. 60(B) motion for relief from judgment without a hearing. For the reasons that follow, we affirm. On September 23, 1982, the Cuyahoga County Grand Jury returned a two-count indictment against appellant in Case No. CR-176531, charging appellant with one count of aggravated burglary and one count of gross sexual imposition. On November 4, 1982, the Cuyahoga County Grand Jury returned a second indictment against appellant in Case No. CR-177185, charging appellant with two counts of aggravated burglary, two counts of gross sexual imposition, attempted gross sexual imposition, rape, attempted rape and possession of criminal tools. Case No. CR-176531 involved criminal sexual activity with a female aged thirteen at the time of the offense (Rhonda Cross); Case No. CR-177185 involved criminal sexual activity with three females under the age of thirteen (Catherine McAuley, Denise Lightner and Laura McFarland). Appellant initially entered a plea of not guilty to all alleged offenses. On December 3, 1982, however, pursuant to a plea agreement, appellant entered a plea of guilty to gross sexual imposition in Case No. CR-176531 and to aggravated burglary (count one), attempted gross sexual imposition (count two), two counts of gross sexual imposition (counts five and eight) and attempted rape (amended count seven) in Case No. CR-177185. All remaining counts in both cases were nolled. The trial court sentenced appellant to an indefinite term of one to five years in Case No. CR-176531. In Case No. CR-177185, -3- the trial court sentenced appellant to five to twenty-five years on count one; one and one-half to ten years on count two; one to five years on count five; three to fifteen years on count seven and one and one-half to ten years on count eight. The sentences on counts one and two were concurrent with one another; the sentence on count five was to be served consecutively to the sentences on counts one and two; the sentence on count seven was to be served consecutively to count five and count eight was to be served concurrent with count seven. All sentences in Case No. CR-177185 were ordered to be served consecutively to the sentence in Case No. CR-176531. Seven years after his guilty pleas were entered, on October 10, 1989, this court granted appellant's motion for leave to file a delayed appeal. On May 9, 1991, this court affirmed appellant's convictions. See State v. Sullivan (May 9, 1991), Cuyahoga App. No. 58427, unreported. On September 20, 1996, appellant filed a petition for post- conviction relief pursuant to R.C. 2953.21. Appellant filed an amended petition for post-conviction relief on October 31, 1996 and a second amended petition for post-conviction relief on December 6, 1996. The state responded with a motion to dismiss appellant's second amended petition for post-conviction relief. On June 24, 1997, the trial court granted the state's motion to dismiss and issued findings of fact and conclusions of law in support of its decision. On July 18, 1997, appellant appealed the decision of the trial court dismissing his petition for post-conviction relief. While -4- the appeal was pending, on March 4, 1998, appellant filed a Civ.R. 60(B) motion for relief from judgment with the trial court and contemporaneously, a motion to remand the matter to the trial court for a determination of appellant's Civ.R. 60(B) motion with this court. On March 24, 1998, this court granted the motion to remand the case to the trial court for consideration of appellant's Civ.R. 60(B) motion. The trial court denied appellant's Civ.R. 60(B) motion on May 26, 1998. On October 15, 1998, this court affirmed the decision of the trial court dismissing appellant's post-conviction petition. See State v. Sullivan (Oct. 15, 1998), Cuyahoga App. Nos. 72878 & 72879, unreported. Subsequently, on November 16, 1998, this court denied appellant's motion for reconsideration, motion to certify conflict and motion for recusal. Appellant timely appealed the decision of the trial court denying his Civ.R. 60(B) motion for relief from judgment, assigning three assignments of error for our review: I. THE COURT BELOW VIOLATED SULLIVAN'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS, BY DENYING SULLIVAN'S MOTION FOR RELIEF FROM JUDGMENT NOTWITHSTANDING THAT HE PRESENTED SUFFICIENT EVIDENCE TO WARRANT RELIEF OR AN EVIDENTIARY HEARING UNDER CIV.R. 60(B). II. THE TRIAL COURT VIOLATED SULLIVAN'S RIGHT TO DUE PROCESS UNDER THE OHIO AND UNITED STATES CONSTITUTIONS WHEN IT DENIED HIS MOTION FOR RELIEF FROM JUDGMENT UPON CONCLUDING THAT THE NEW EVIDENCE WAS NOT SUFFICIENT TO ESTABLISH THAT THE STATE -5- FAILED TO DISCLOSE MATTERS THAT WERE BOTH FAVORABLE AND MATERIAL UNDER BRADY V. MARYLAND, 373 U.S. 83 (1963). III. THE TRIAL COURT VIOLATED SULLIVAN'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES, AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS, BY DENYING HIS MOTION FOR RELIEF FROM JUDGMENT NOTWITHSTANDING THAT HE PRESENTED SUFFICIENT EVIDENCE TO WARRANT RELIEF OR AN EVIDENTIARY HEARING UNDER CIV.R. 60(B). -6- MOTION TO DISMISS As an initial matter, we address appellee's motion to dismiss. Appellee contends that the lower court did not have jurisdiction to decide appellant's Civ.R. 60(B) motion, and, therefore, this court does not have jurisdiction to consider appellant's appeal of the trial court's ruling denying the motion. Appellee relies on State v. Wagner (May 15, 1980), Cuyahoga App. Nos. 40194 & 40195, unreported, to support its jurisdictional argument. In Wagner, the trial court dismissed the defendant's petition for post-conviction relief. Defendant subsequently filed a motion for relief from judgment pursuant to Civ.R. 60(B), contending that he had not received written notice of the trial court's judgment dismissing his appeal. After the trial court denied his Civ.R. 60(B) motion, defendant appealed the dismissal of his petition for post-conviction relief and the denial of his motion for relief from judgment. On appeal, this court dismissed defendant's appeal from the trial court's dismissal of his petition for post-conviction relief on the grounds that it was untimely filed. With respect to defendant's 60(B) motion, this court concluded that Civ.R. 60(B) is clearly inapplicable to post-conviction petitions under the exception set forth in Civ.R. 1(c). The court reasoned that to allow Civ.R. 60(B) relief to modify post-conviction relief pyramids remedies in a way not intended by the legislature. Noting that only a single avenue of relief outside the appellate system was intended for post-conviction petitions, this court held that the -7- trial court did not err in overruling defendant's Civ.R. 60(B) motion for relief from judgment. Appellee contends that Wagner compels a conclusion in this case that the trial court did not have jurisdiction to consider appellant's Civ.R. 60(B) motion. We disagree. First, Wagnerdoes not stand for the proposition that a trial court does not have jurisdiction to consider a Civ.R. 60(B) motion filed in the context of a civil proceeding seeking post-conviction relief. The Wagner court did not dispute the trial court's jurisdiction to decide the Civ.R. 60(B) motion; rather, it found that Civ.R. 60(B) is not applicable to post-conviction proceedings and, therefore, the trial court did not err in overruling the motion. Moreover, although we acknowledge the concern expressed by the Wagner court regarding the possible pyramiding of remedies, we do not agree that Civ.R. 60(B) is clearly inapplicable to post- conviction proceedings. Under R.C. 2953.21, an action for post- conviction relief is a civil proceeding, in which the prosecuting attorney represents the state as a party. State v. Milanovich (1975), 42 Ohio St.2d 46, 49. Thus, the procedural framework governing such proceedings is civil, not criminal, although by necessity post-conviction relief proceedings admittedly have an impact on adjudicated felons. State v. Nichols (1984), 11 Ohio St.3d 40, 42-43. Furthermore, cases from this court decided more recently than Wagner analyze the question of obtaining relief from a judgment -8- denying a petition for post-conviction relief by asking whether the moving party has met the Civ.R. 60(B) requirements. See State v. Frazier(Dec. 11, 1997), Cuyahoga App. No. 71746, unreported; State v. Spisak (Nov. 21, 1996), Cuyahoga App. No. 70254, unreported; State v. Jackson (June 22, 1995), Cuyahoga App. Nos. 67025, 67876 and 68085, unreported; State v. Blount (Aug. 26, 1993), Cuyahoga App. Nos. 65095 and 65096, unreported. These cases all consider whether Civ.R. 60(B) relief was warranted from the denial of a petition for post-conviction relief on the merits. Here, appellant was seeking to vacate the trial court's post- judgment ruling that denied his petition for post-conviction relief which had been filed pursuant to R.C. 2953.21. Accordingly, a Civ.R. 60(B) motion was a proper response to the May 26, 1998 judgment because it emanated from a civil proceeding. Nichols, supra; accord State v. Bush (Feb. 6, 1998), Trumbull App. NO. 97-T- 0035, unreported. Appellee's motion to dismiss is therefore denied. RES JUDICATA Appellee also contends that the issues raised in appellant's Civ.R. 60(B) motion are barred by the doctrine of res judicata. The state argues that appellant did nothing more in his Civ.R. 60(B) motion than supplement the arguments he made in his petition for post-conviction relief to address the legal and factual deficiencies that were noted by the trial court in its opinion denying appellant's motion for post-conviction relief. Indeed, appellee points out that in his Civ.R. 60(B) motion, appellant -9- states, this new evidence, which was not previously available to Sullivan, addresses the concerns raised in the court's June 19, 1997 Findings of Fact and Conclusions of Law. Appellee argues that the doctrine of res judicata bars appellant from addressing the deficiencies in his post-conviction relief petition by attaching affidavits and police reports, cloaking them as new evidence for purposes of Civ.R. 60(B) and getting another bite at the apple. Accordingly, appellee contends that the trial court erred in not dismissing appellant's motion on the basis of res judicata. The doctrine of res judicata provides that [a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action. Grava v. Parkman Twp.(1995), 73 Ohio St.3d 379, syllabus. In other words, a final judgment or decree between the parties in litigation is conclusive as to all claims which were or might have been litigated in the first lawsuit. Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69. Therefore, res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it. National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 50, 62. The doctrine of res judicata can also bar successive petitions for post-conviction relief, see State v. Apanovitch (1995), 107 Ohio App.3d 82, or the successive filings of motions for relief from judgment. McCann v. Lakewood (1994), 95 Ohio App.3d 226, 237. -10- Res judicata does not apply, however, to a subsequent Civ.R. 60(B) motion when the subsequent motion is based on different facts or asserts different grounds for relief, or it is not certain the issue could have been raised in the prior motion. McCaslin v. Ohio Dept. Of Human Serv. (1995), 104 Ohio App.3d 482, 494, citing Dawson v. Udelsen (1987), 37 Ohio App.3d 141. As explained in our discussion regarding appellant's assignments of error, we agree that appellant's argument that the newly discovered evidence is sufficient to support a meritorious claim that the evidence obtained through the search warrant should have been suppressed is barred by the doctrine of res judicata. We find, however, that the other issues raised in appellant's Civ.R. 60(B) motion are not barred by the doctrine of res judicata. First, appellant filed only one Civ.R. 60(B) motion, which we have already determined was a proper response to the trial court's judgment dismissing his post-conviction petition. Moreover, although the issues raised in the motion for relief from judgment are similar to those raised in appellant's petition for post- conviction relief, they are based on different facts, i.e., the alleged newly discovered evidence proffered by appellant. Furthermore, in the interest of justice, we prefer to allow appellant the opportunity to develop the record as fully as possible. Accordingly, we hold that the trial court did not err in not dismissing appellant's motion on the basis of res judicata. ASSIGNMENTS OF ERROR -11- In his three assignments of error, appellant contends that the trial court violated his due process rights, right to effective assistance of counsel and right to be free from unreasonable searches and seizures by denying his Civ.R. 60(B) motion for relief from judgment. We will address appellant's assignments of error together because they all relate to whether the trial court properly denied relief from judgment under Civ.R. 60(B). Civ.R. 60(B) enumerates various grounds upon which relief from final judgments and orders may be granted. It states in part: On motion and upon such terms as are just, the court may relieve a party *** from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud ***; (4) the judgment has been satisfied, release or discharged, ***; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. To prevail on a motion brought under Civ.R. 60(B), the moving party must demonstrate that: (1) the movant has a meritorious defense or claim to present if relief is granted; (2) the movant is entitled to relief under one of the grounds stated in Civ.R. 60(B); and (3) the motion is made within a reasonable time, and, where the grounds for relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment, order, or proceeding was entered or taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. The moving party must -12- satisfy all three prongs of the test in order to prevail. Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391; Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351. Where the movant fails to assert operative facts which would warrant relief under the rule, the motion may be denied without a hearing. Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 19. The grant or denial of a Civ.R. 60(B) motion rests within the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. The trial court's ruling will not be disturbed on appeal absent an abuse of discretion. Id; Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 66. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary and unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. In his motion for relief from judgment, appellant asserted that he has obtained newly discovered evidence that supports three of the four claims made in his second amended petition for post-conviction relief, i.e., 1) appellant was denied his right to effective assistance of counsel because his trial counsel, Russell Baron and James Samuels, failed to conduct a reasonable investigation in order to render professionally reasonable and competent advice regarding whether to enter a guilty plea; 2) the state's failure to provide the defense with information favorable to appellant and material to his guilt or punishment (negative test results on a rape test kit and stained underwear taken from Catherine McAuley) violated appellant's due process rights, -13- pursuant to Brady v. Maryland (1962), 373 U.S. 83;1 and 3) the search warrant, which produced the only evidence as to the rape charge involving Laura McFarland, was based upon an affidavit which included deliberate misrepresentations of material fact and, therefore, the evidence obtained as a result of the search warrant should be suppressed. The alleged newly discovered evidence provided by appellant in support of his motion for relief from judgment consisted of police investigations and supplementary reports of the incidents for which appellant was charged and affidavit testimony from trial counsel, Russell Baron and James Samuels, purportedly showing that during pretrial discovery the state failed to provide the results of exculpatory scientific testing done by the Cleveland Police Department Scientific Investigation Unit. In considering the affidavits from Russell Baron and James Samuels, however, the trial court noted that it was troubled by the equivocal nature of the evidence adduced to support appellant's claim that the state failed to provide full disclosure of the relevant police investigation reports. The trial court noted that in his affidavit, Russell Baron merely suggests that he may not have been given the results of the rape kit and clothing tests. Further, Baron's affidavit indicates that such information may or may not have made a difference in appellant's plea agreement: 1 The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland (1962), 373 U.S. 83, 87. -14- *** if such information did exist at the time of my representation of Mr. Sullivan, and had it been made available to Mr. Samuels and myself at the time, we would have weighed its significance and merit to his defense, and perhaps a different plea arrangement would have been achieved in case number CR177185. (Emphasis added). The trial court noted that the affidavit of James Samuels is similarly equivocal: *** 3. I recollect Mr. Baron filing a motion for discovery in said matters and recall no formal response to said motion, although there was a general discussion of the evidence against Mr. Sullivan with prosecutor. 4. I have no recollection of being provided test results which I now have been advised were performed on a victim's panties or test results from a rape kit. 5. Although it has been a very long time, had I been provided such information, I know it would have entered into my thinking and our discussions and we might not have recommended entering guilty pleas when we met with Mr. Sullivan and his family to discuss his entering a plea. (Emphasis added). Accordingly, the trial court concluded that neither affiant is prepared to state categorically that disclosure was not made. The trial court noted further that even if an evidentiary hearing were ordered with respect to these allegations, no more definitive evidence could be adduced to establish defendant's claims, as no contemporary records exist with respect to the State's response to defendant's discovery requests. The trial court held, therefore, that appellant's evidence was not sufficient to establish that the state failed to disclose matters that were favorable to the accused and, consequently, an evidentiary hearing was not necessary to -15- determine whether, pursuant to Brady v. Maryland (1962), 373 U.S. 83, the alleged newly discovered evidence was both favorable and material to appellant's claims. Appellant argues, however, that the trial court erred in denying his motion for relief from judgment because the Baron and Samuels affidavits, in conjunction with the police reports, demonstrate that he has a meritorious claim that his counsel was ineffective. Appellant contends that the affidavits establish that counsel considered the SIU test results material to the decision regarding whether or not to plead guilty. Therefore, appellant contends, if the state did provide discovery of the SIU results, then counsel's advice to plead guilty was unreasonable. Appellant also contends that the police reports attached to his motion for relief from judgment indicate that his trial counsel failed to conduct a reasonable investigation before recommending a guilty plea because the reports, which counsel would have discovered if they had conducted a reasonable investigation, indicate that the state could not prove the elements of the offense of gross sexual imposition beyond a reasonable doubt in the Cross, McCauley and Lightner incidents. This argument is without merit. First, contrary to appellant's argument, the Baron and Samuels affidavits are equivocal regarding whether counsel considered the SIU test results material to the decision regarding whether or not to plead guilty. Appellant apparently recognizes this deficiency because he argues that the affidavits demonstrate that both counsel would likely have considered the SIU test results material -16- to the decision whether to plead guilty. Moreover, the affidavits are similarly equivocal regarding whether the test results, even if provided, would have made a difference in the plea agreement. In his affidavit, Russell Baron states that perhaps a different plea arrangement could have been achieved; James Samuels states in his affidavit that we might not have recommended entering guilty pleas. Likewise, the police reports do not establish that counsel did not conduct any independent investigation or otherwise attempt to verify information. First, as noted by this court in its opinion affirming the trial court's dismissal of appellant's petition for post-conviction relief, the alleged absence of semen on the nightgown of Catherine McAuley does not lead one to conclude that the state could not prove the essential elements of gross sexual imposition. State v. Sullivan (Oct. 15, 1998) Cuyahoga App. Nos. 72878 & 72879, unreported. Moreover, any perceived defect in the state's case could have played a role both in the prosecutor's decision to offer a plea bargain and in counsel's advice to appellant to accept it. Accordingly, the affidavits and the newly discovered police reports are insufficient to establish that appellant has a meritorious claim that his counsel was ineffective. Appellant also argues that the trial court erred in denying his motion for relief from judgment because his new evidence constituted sufficient operative facts to support a meritorious Brady claim, i.e., that the state failed to disclose favorable evidence that was material to appellant's guilt or punishment. -17- Appellant argues that the trial court erred because it considered only the Baron and Samuels affidavits in determining that appellant had failed to produce sufficient evidence to establish that the state did not provide full disclosure of exculpatory evidence. According to appellant, by failing to consider the police reports, the trial court violated the standards enunciated in Kyles v. Whitley(1995), 514 U.S. 419, which requires that withheld evidence be evaluated in light of the entire record. Appellant contends that when the affidavits are viewed in light of the newly provided police reports and the absence of any notation in the dockets that the state provided the requested discovery or responded to appellant's motion to dismiss, the affidavits are not as equivocal as they may otherwise seem. This argument is similarly without merit. In Kyles, the U.S. Supreme Court emphasized four aspects of materiality for purposes of a Brady claim: 1) a showing of materiality does not require a demonstration that disclosure of the evidence would have resulted in the defendant's acquittal; but rather, whether in the absence of the evidence, the defendant received a fair trial; 2) materiality is not a sufficiency of the evidence test. A defendant is not required to prove that after discounting the inculpatory evidence in light of the exculpatory evidence there would not have been enough evidence left to convict him; but rather, that the favorable evidence puts the whole case in a different light so as to undermine confidence in the outcome; 3) once a reviewing court has found a due process error in a failure -18- by the prosecution to disclose material evidence favorable to an accused, there is no need for further harmless-error analysis; and 4) materiality is defined in terms of suppressed evidence evaluated collectively--not item by item--for its cumulative effect. Kyles, 514 U.S. at 434-437. Appellant's reliance on Kyles, however, is misplaced. The four factors enunciated in Kyles relate to determining whether evidence withheld by the state was material to a defendant's guilt or punishment--not to a determination of whether the state withheld favorable evidence in the first instance. Here, appellant failed to present sufficient evidence to demonstrate that the state did not, in fact, provide the police investigatory reports to Messrs. Baron and Samuels. Accordingly, there was no need for the trial court to evaluate the evidence collectively, pursuant to Kyles, to determine whether the evidence was also material for purposes of appellant's Brady claim. Finally, appellant contends that the trial court erred in denying his Civ.R. 60(B) motion for relief from judgment because the newly discovered evidence is sufficient to support a meritorious claim that the evidence obtained through the search warrant should have been suppressed because it was obtained through a search warrant based upon material misrepresentations of fact. This argument is also without merit. As this court stated in its opinion affirming the trial court's dismissal of appellant's petition for post-conviction relief: -19- Under the doctrine of res judicata, constitutional issues cannot be considered in post-conviction proceedings under R.C. 2953.21 where they have already been or could have been fully litigated by the petitioner while represented buy counsel, either before his judgment of conviction or on direct appeal from that judgment. State v. Perry (1967), 10 Ohio St.2d 175; State v. McCollough (1992), 78 Ohio App.3d 587, 591. Issues properly before a court on a petition for post-conviction relief are issues which could not have been raised on direct appeal due to the fact that the evidence supporting such issues is dehors the record. State v. Milanovich (1975), 42 Ohio St.2d 46; State v. Durr (July 28, 1994), Cuyahoga App. No. 65958, unreported. *** In the case sub judice, a review of the record demonstrates that defendant-appellant's purported challenge to the search warrant and correspondingaffidavit could have been raised prior to trial through a motion to suppress or on direct appeal. The fact that defendant- appellant allegedly learned of the contents of the affidavit supporting the search warrant at a later date does not, as defendant-appellant contends, lead one to conclude that the issue is based upon evidence dehors the record. Accordingly, the trial court properly determined that the underlying claim was barred by the doctrine of res judicata. State v. McCollough, supra; State v. Brockwell (Sept. 12, 1996), Cuayhoga App. No. 70552, unreported; State v. Nicholson (July 24, 1997), Cuyahoga App. No. 71398, unreported. State v. Sullivan (Oct. 15, 1998), Cuyahoga App. Nos. 72878 & 72879, unreported. The fact that appellant's alleged newly discovered evidence can provide substantial additional support for this argument does not change the fact that this claim is barred by the doctrine of res judicata. Accordingly, we hold that the trial court did not abuse its discretion in dismissing appellant's Civ.R. 60(B) motion for relief from judgment because appellant did not allege sufficient operative -20- facts to demonstrate that he has a meritorious claim or defense. Appellant's first, second and third assignments of error are therefore overruled. -21- It is ordered that appellee recover from 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE JUDGE KARPINSKI, P.J. and SPELLACY, J., CONCUR. 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. 22. 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 .