DECISION
This case is before us on appeal from a judgment of the Lucas
County Court of Common Pleas, wherein the court dismissed the
petition for post-conviction relief of petitioner-appellant
Gregory Esparza. Esparza has assigned the following as error:
"ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S
POST-CONVICTION RELIEF PETITION WITHOUT ACCORDING HIM AN
EVIDENTIARY HEARING.
"ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT APPELLANT
HAD BEEN DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
"ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED BY DISMISSING CAUSES OF ACTION 3, 4
10, 11, 37, AND 38 BECAUSE THE ADMISSION OF NUMEROUS
PREJUDICIAL UNWARNED STATEMENTS OF APPELLANT ESPARZA VIOLATED
HIS RIGHTS TO COUNSEL, AND AGAINST SELF INCRIMINATION AND
CRUEL AND UNUSUAL PUNISHMENT UNDER THE FIFTH, SIXTH, EIGHTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
"ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED BY DISMISSING CAUSES OF ACTION 1, 3, 4,
7, 9, 16, 17, 37 AND 38 BECAUSE APPELLANT ESPARZA WAS DENIED
INDEPENDENT AND COMPETENT EXPERT ASSISTANCE AT THE PENALTY
PHASE OF HIS CAPITAL TRIAL, IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS.
"ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED BY DISMISSING CAUSES OF ACTION 2, 3, 4,
5, 6, 8, 9, 10, 11, 12, 13, 14, 17, 36, 37, 38, 39, 40, 44
WITHOUT HEARING BECAUSE THE ADMISSION OF AN OVERWHELMING
AMOUNT OF NON- STATUTORY AGGRAVATING CIRCUMSTANCE EVIDENCE IN
APPELLANT'S CAPITAL SENTENCING HEARING VIOLATED HIS
RIGHTS OF DUE PROCESS AND AGAINST CRUEL AND UNUSUAL
PUNISHMENT AS GUARANTEED BY THE FIFTH, EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
"ASSIGNMENT OF ERROR NO. VI
THE TRIAL COURT ERRED BY DISMISSING CAUSES OF ACTION 1, 3, 8,
14, 15, 16, 43 AND 50 WITHOUT HEARING BECAUSE THE JURY WAS
PRECLUDED FROM CONSIDERING RELEVANT MITIGATION EVIDENCE IN
VIOLATION OF APPELLANT'S RIGHTS UNDER THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND
SECTION 9, ARTICLE I, OF THE OHIO CONSTITUTION.
"ASSIGNMENT OF ERROR NO. VII
THE TRIAL COURT ERRED BY DISMISSING CAUSES OF ACTION 35, 36,
39 AND 40 WITHOUT A HEARING BECAUSE THE STATE'S
MISCONDUCT AT BOTH PHASES OF TRIAL DEPRIVED APPELLANT ESPARZA
OF HIS RIGHT TO A FAIR TRIAL~D RELIABLE DETERMINATION OF
PENALTY AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENT [sic] TO THE UNITED STATES CONSTITUTION
AND SECTIONS 2, 9, 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.
"ASSIGNMENT OF ERROR NO. VIII
THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLANT WAS
DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS DETAILED IN THE
THIRTY SEVENTH, FORTY THIRD AND FIFTEENTH [sic] CAUSES OF
ACTION IN APPELLANT'S PETITION FOR POST-CONVICTION.
"ASSIGNMENT OF ERROR NO. IX
APPELLANT ESPARZA WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AT HIS CAPITAL TRIAL AND HE WAS PREJUDICED THEREBY IN
VIOLATION OF HIS RIGHTS UNDER THE UNITED STATES AND OHIO
CONSTITUTION.
"ASSIGNMENT OFF [sic] ERROR NO. X
APPELLANT'S CONVICTION AND DEATH SENTENCE WAS [sic] NOT
SUSTAINED BY SUFFICIENT EVIDENCE.
"ASSIGNMENT OF ERROR NO. XI
THE TRIAL COURT ERRED IN DISMISSING THE EIGHTEENTH,
NINETEENTH AND TWENTIETH CAUSES OF ACTION OF APPELLANT'S
POST-CONVICTION RELIEF PETITION, WHICH CONCERNED IMPROPER AND
PREJUDICIAL JURY INSTRUCTIONS DURING BOTH THE GUILT AND
PENALTY PHASE OF APPELLANT' [sic] TRIAL.
"ASSIGNMENT OF ERROR NO. XII
THE TRIAL COURT ERRED BY DISMISSING CAUSES OF ACTION 3, 4, 6,
9, 10, 37 AND 38 WITHOUT HEARING BECAUSE EVIDENT [sic]
COMMENTING ON HIS SILENCE WAS ADMITTED AGAINST HIM DURING THE
PENALTY PHASE OF HIS CAPITAL TRIAL.
"ASSIGNMENT OF ERROR NO. XIII
THE TRIAL COURT ERRED BY DISMISSING CAUSES OF ACTION 1, 12,
36, 37 AND 39 WITHOUT HEARING BECAUSE VICTIM IMPACT EVIDENCE
ADMITTED DURING THE PENALTY PHASE VIOLATED APPELLANT
ESPARZA'S RIGHTS UNDER THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
"ASSIGNMENT OF ERROR NO. XIV
THE TRIAL COURT ERRED BY DISMISSING APPELLANT'S
POST-CONVICTION RELIEF PETITION IN WHICH HE DETAILED ERRORS
IN THE VOIR DIRE OF HIS JURY WHICH DEPRIVED APPELLANT OF HIS
CONSTITUTIONAL RIGHTS.
"ASSIGNMENT OF ERROR NO. XV
THE TRIAL COURT ERRED BY DISMISSING CAUSES OF ACTION -19, 34,
35, 45, 46, 47, 48 AND 49 BECAUSE OHIO'S DEATH PENALTY
STATUTES ARE UNCONSTITUTIONAL, ESPECIALLY AS APPLIED TO MR.
ESPARZA."
On
October 13, 1983, the Lucas County Grand Jury returned a two
count indictment against Gregory Esparza. The first count
charged Esparza with the aggravated murder of Melanie
Gerschultz, while committing aggravated robbery, in violation
of R.C. 2903.01(B). To the first count were attached a
firearm specification and a specification that the offense
was committed while Esparza was committing aggravated
robbery. The second count of the indictment charged Esparza
with aggravated robbery, to which a firearm specification was
attached.
After
a jury trial, Esparza was convicted of both counts and all
specifications. After further deliberations the jury
recommended that Esparza receive the death sentence. The
trial judge then inde-pendently weighed the aggravating
factor and the mitigating circumstances and adopted the
jury's recommendation, imposing sentence on May 22, 1984.
Subsequently, Esparza exhausted his direct appeals and on
November 29, 1989 filed a petition for post-conviction relief
pursuant to R.C. 2953.21. The petition listed fifty causes of
action wherein Esparza asserted that he had been denied his
rights under the Ohio and United States Constitutions, and
requested an evidentiary hearing pursuant to R.C. 2953.21. In
response, the state filed a motion to dismiss, alleging that
Esparza's claims were barred by the doctrine of res
judicata and that Esparza failed to set forth
evidentiary documents containing sufficient operative facts
to demonstrate ineffective distance of counsel. The trial
court did not order a hearing on the matter, and in its
findings of fact, conclusions of law and judgment entry of
June 18, 1990, granted the state's motion to dismiss. The
court concluded that under the doctrine of res
judicata Esparza was precluded from raising all claims
relating to ineffective assistance of counsel to the extent
that they do not resort to evidence dehors the
record. The court further found that because Esparza failed
to set forth sufficient evidentiary documents outside the
record to support his ineffective assistance of counsel
claims, those claims were barred. Finally, the court
concluded that res judicata barred all other claims
raised by Esparza.
It is
from that judgment that Esparza filed a timely notice of
appeal.
Before
addressing the assignments of error, a clear understanding of
post-conviction relief and the applicability of res
judicata to that remedy is essential. R.C. 2953.21
provides for petitions to vacate or set aside sentence, also
known as petitions for post-conviction relief, and states in
pertinent part:
"(A) Any person convicted of a criminal offense or
adjudged delinquent claiming that there was such a denial or
infringement of his rights as to render the judgment void or
voidable under the Ohio Constitution or the Constitution of
the United States, may file a petition at any time in the
court which imposed sentence, stating the grounds for relief
relied upon, and asking the court to vacate or set aside the
judgment or sentence or to grant other appropriate relief.
The petitioner may file such supporting affidavit and other
documentary evidence as will support his claim for relief.
"***
"(C) 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. Such 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 conclusions of law with respect to such
dismissal."
It is well-established that res judicata is a proper
ground upon which to dismiss, without hearing, a R.C. 2953.21
petition. State v. Perry (1967), 10 Ohio
St. 2d 175. See, also, State v. Cole
(1982), 2 Ohio St. 3d 112. specifically, the court in
State v. Perry, supra, held at paragraph
nine of the syllabus:
"Under 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
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 of conviction, or on an
appeal from that judgment." (Emphasis in the
original.)
In
addition, the doctrine of res judicata is applicable
to constitutional issues raised in a petition for
post-conviction relief.
"Constitutional issues cannot be considered in
postconviction proceedings under Section 2953.21 et
seq., Revised Code, where they have already been or
could have been fully litigated by the prisoner while
represented by counsel, either before
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