{¶ 2} On August 6, 2004 a Defiance County Grand Jury indicted Jones on one count of Possession of Crack Cocaine, a felony of the second degree in violation of R.C.
{¶ 3} At his arraignment on September 2, 2004 Jones entered a plea of not guilty to the charges contained in the indictment. Several continuances were granted by the trial court and Jones changed representation four times. On March 14, 2005 Jones filed a motion to dismiss based on speedy trial grounds, but this motion was denied by the trial court. This matter subsequently proceeded to a jury trial on March 29, 2005. Although Jones represented himself at trial, a fifth attorney was appointed by the court to "assist" Jones in his defense. At the close of all of the evidence, the jury found Jones guilty of Possession of Crack Cocaine and Trafficking in Crack Cocaine as contained in the indictment.2 *3
{¶ 4} This matter proceeded to sentencing on April 28, 2005. In its May 4, 2005 Judgment Entry, the trial court sentenced Jones to nine years in prison for his conviction of Possession of Crack Cocaine, a felony of the second degree in violation of R.C.
{¶ 5} Jones filed a timely notice of appeal of the May 4, 2005 Judgment Entry of Sentencing alleging that the trial court erred in denying his motion to dismiss and erred in admitting taped telephone conversations into evidence during the jury trial. On October 2, 2006 this court overruled Jones's assignments of error and affirmed the May 4, 2005 judgment of the trial court. See State v. Jones, 3rd Dist. No. 4-05-21,
{¶ 6} On February 8, 2006 Jones filed a petition for post conviction relief with the trial court asserting claims of ineffective assistance of counsel. The trial court filed a Judgment Entry on December 19, 2006 denying Jones's petition without a hearing, holding that Jones's petition raised nothing beyond those claims already raised and subsequently rejected by the Third District Court of Appeals and therefore Jones's claims for relief were barred by the doctrine of res judicata.
{¶ 7} Jones now appeals, asserting three assignments of error. *4
THE TRIAL COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING BE HELD IN LIGHT OF NEW EVIDENCE, IN THE FORM OF AN AFFIDAVIT, INTRODUCED BY THE OWNER OF THE TRAILER WHERE DRUGS WERE FOUND STATING THAT THE APPELLANT WAS NOT A RESIDENT AT THE TRAILER, AND THAT HE INFORMED THE POLICE OF THIS FACT; WHICH STATEMENT WAS WITHHELD FROM THE DEFENSE AND FROM THE JURY. ANY SUCH VIOLATION IMPLICATES THE APPELLANT'S RIGHT TO DUE PROCESS OF LAW.
THE TRIAL COURT ERRED WHEN IT APPLIED THE RESTRICTIONS OF MURNAHAN'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS AGAINST THE APPELLANT'S POST CONVICTION RELIEF MOTION, WHEN THE APPELLANT DID NOT RAISE SUCH CLAIMS AGAINST APPELLATE COUNSEL, BUT RATHER TRIAL COUNSEL. ANY SUCH VIOLATION IMPLICATES THE APPELLANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AND RIGHT TO DUE PROCESS OF LAW.
IT DOES NOT APPEAR FROM THE RECORD THAT THE APPELLANT WAS NEVER FORMALLY BOND (SIC) OVER TO THE COMMON PLEAS COURT. THIS IS ALSO A DUE PROCESS OF LAW VIOLATION BECAUSE THE APPELLANT WAS NOT ARRESTED BY VIRTUE OF A WARRANT.
{¶ 8} Prior to addressing Jones's assignments of error, we must first address the nature of this appeal. Generally, there are two avenues through which a defendant may challenge a judgment of conviction or sentence. State v. Caldwell, 3rd Dist. No. 11-05-07,
(A)(1)(a) Any person who has been convicted of a criminal offense * * * who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, * * * may file a petition in the court that 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 a supporting affidavit and other documentary evidence in support of the claim for relief.
* * *
(A)(2) Except as otherwise provided in section
2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication * * *. If no appeal is taken, except as otherwise provided in section2953.23 of the Revised Code, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal.
{¶ 9} In the present case, Jones was sentenced by the trial court on May 4, 2005. The record reflects that Jones filed a direct appeal of his sentence pursuant to App.R. 4(A). See State v. Jones, 3rd
Dist. No. 4-05-21,
{¶ 10} We note that Jones filed his motion for post conviction relief with the trial court on February 8, 2006. This filing was done within the 180 day requirement set forth in R.C.
{¶ 12} A petitioner who seeks to challenge his conviction through a petition for post conviction relief is not automatically entitled to a hearing. State v. Jackson (1980),
{¶ 13} Further, "[w] here a petition for post conviction remedy under R.C.
{¶ 14} However, if the court determines that there are no substantive grounds for relief, it may dismiss the petition without an evidentiary hearing. State v. Smith, 3rd Dist. No. 1-04-50,
{¶ 15} Additionally, in reviewing the documentary evidence in support of the petition, the trial court may judge their credibility in determining whether to accept the affidavits as true statements of fact for the purpose of showing substantive grounds for relief. SeeCalhoun,
{¶ 16} In reviewing whether the trial court erred in denying a petitioner's motion for post conviction relief without a hearing, the appellate court applies an abuse of discretion standard. State v.Campbell, 10th Dist. No. 03AP-147,
{¶ 17} Before addressing the merits of Jones's first assignment of error, we must address the nature of the allegations contained in his petition for post *9 conviction relief. In his petition, Jones alleged that his constitutional rights were violated because he was denied effective assistance of trial counsel. Specifically, Jones alleged that his counsel failed to investigate and present specific defenses, including Jones's alibi.
{¶ 18} In a petition for post conviction relief asserting ineffective counsel "before a hearing is granted, `the petitioner bears the initial burden to submit evidentiary documents containing sufficient operativefacts to demonstrate the lack of competent counsel and that thedefense was prejudiced by counsel's ineffectiveness."`Calhoun,
{¶ 19} We note that the Supreme Court of Ohio has held that the doctrine of res judicata will bar a defendant from raising any defenses or constitutional claims in a post conviction appeal under R.C.
{¶ 20} The Supreme Court of Ohio has recognized exceptions to this general rule and has held that the doctrine of res judicata does not apply to claims of ineffective assistance where the issue was not heard on direct appeal. See State v. Hester (1976),
{¶ 21} However, the Supreme Court of Ohio has limited Hester to situations where defendant's counsel was the same at both trial and on direct appeal, because counsel "cannot realistically be expected to argue his own incompetence." State v. Cole (1982),
{¶ 22} In the present case, the record demonstrates that Jones was represented by different counsel on appeal than he was at trial.4 Therefore, his claims of ineffective assistance of trial counsel are barred under Cole unless they are based on evidence dehors the record.5
{¶ 23} In his present appeal, Jones argues that the trial court erred by not conducting an evidentiary hearing on his petition for post conviction relief in light of the new evidence referenced in his petition. Specifically, Jones referred to an affidavit from Dana Rowe ("Rowe"), the owner of the trailer where the drugs were found, stating that Jones did not live at the trailer and that he [Rowe] had informed the police of this fact."6 Rowe's affidavit is dated April 21, 2006 and provides, in relevant part, as follows:
"They asked me where does Ivan live? I told them in Paulding with Shannon. * * * I never gave police nor parole officers consent to search my house and car. I never gave police nor parole officers consent, they told me they had warrants, and when I came out of the bathroom they was already in my house searching. I never said I was scared of Ivan Jones that's not why *12 I didn't come to court. I was never asked to come. I never said anything against Ivan Jones nor have anything against him . . . I never told the police he did drugs either as far as I know he never did any drugs."
{¶ 24} We find that Rowe's affidavit is a matter of some consequence to the present case because the main issue for the jury to consider at trial was whether or not Jones was living with Rowe at the time he was arrested and therefore whether they might reasonably infer that the drugs found in Jones's alleged bedroom were under his custody or control.
{¶ 25} To support its theory of the case that Jones resided with Rowe, the State presented the testimony of Jones's parole officer who testified that Rowe told him that Jones lived in the trailer, gave consent to search the trailer, and placed the ownership of the drugs found in the bedroom as being Jones's. The State also presented testimony of other police officers who testified that although they did not hear Rowe's statements to Jones's parole officer that Jones lived in the trailer, they were told by the parole officer that such statements were made. Additionally, Jones's parole officer testified that a neighbor told him that she believed Jones was living with Rowe. However, neither the neighbor nor Rowe testified at trial. In fact, the State's case was based entirely on circumstantial evidence and hearsay testimony establishing that Jones was the sole resident of the *13 room in the trailer where the drugs were found and therefore, that he exercised exclusive custody and control of the drugs.7
{¶ 26} Based upon the information presented in Rowe's affidavit, Jones's petition for post conviction relief alleges that his counsel was ineffective for not investigating Rowe as a potential alibi witness who would have validated his claim that he did not live at the trailer where drugs were found, and who would have called into question the truthfulness of the hearsay testimony presented by police officers at trial on this issue.8
{¶ 27} We find that the record of Jones's original criminal proceeding does not fully rebut the allegations contained in Jones's petition for post conviction relief under R.C.
{¶ 28} Therefore, we find that the trial court erred by not conducting an evidentiary hearing in light of the new evidence provided by Jones in his petition for post conviction relief. Jones's first assignment of error is sustained.
{¶ 30} In its December 19, 2006 Judgment Entry, the trial court stated that "[i] t should also be noted that Defendant-Petitioner subsequent claim of ineffective assistance of Appellate counsel are not cognizable in post-conviction proceedings under the statute. State v.Murnahan,
{¶ 31} Our review of the record reveals that Jones's allegations of ineffective assistance of counsel do not relate to the performance of his appellate *15 counsel. Rather, Jones alleges that his trial counsel (i.e., attorneys appointed or privately retained to represent Jones prior to trial) was ineffective by failing to investigate Rowe as a potential alibi witness. Additionally, Jones's petition alleged that trial counsel was ineffective by not investigating his proper address.
{¶ 32} As these claims do not relate to the assistance of Jones's appellate counsel, we find that the trial court erred in relying onState v. Murnahan, supra, in dismissing Jones's petition for post conviction relief. Accordingly, Jones's second assignment of error is sustained.
{¶ 34} Pursuant to 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 trial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Valance 3rd Dist. No. 9-03-02,
{¶ 35} In the present case, Jones was sentenced by the trial court on May 4, 2005 and he filed a direct appeal of this sentence. Thus, any questions concerning the validity of this entry or matters pertaining thereto should have been raised in his direct appeal. See State v.Crutchfield 3rd Dist. Nos. 11-01-09, 11-01-10,
{¶ 36} Based on the foregoing, the December 19, 2006 Judgment Entry of the Defiance County Court of Common Pleas denying Jones's petition for post *17
conviction relief is reversed. This matter is remanded with instructions to the trial court to conduct an evidentiary hearing on Jones's petition for post conviction relief. The trial court is instructed to address Jones's allegations of ineffective assistance of the various counsel appointed to represent Jones prior to his trial, specifically with regard to the duty of any of these counsel to investigate, subpoena, or ascertain the whereabouts and statement of Dana Rowe, in the due course of preparing any defense for Jones. Additionally, the trial court is instructed to engage in an analysis of the two part test for ineffective assistance of counsel as articulated in Strickland v. Washington (1984),
Judgment reversed and cause remanded.
ROGERS, P.J., and WILLAMOWSKI, J., concur.