[Cite as State v. Thomas, 2016-Ohio-5507.]


STATE OF OHIO                    )                 IN THE COURT OF APPEALS
                                 )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                      C.A. No.       27698

        Appellee

        v.                                         APPEAL FROM JUDGMENT
                                                   ENTERED IN THE
RANDY A. THOMAS                                    COURT OF COMMON PLEAS
                                                   COUNTY OF SUMMIT, OHIO
        Appellant                                  CASE No.   CR 13 07 2069

                                 DECISION AND JOURNAL ENTRY

Dated: August 24, 2016



        WHITMORE, Judge.

        {¶1}    Defendant-Appellant, Randy Thomas, now appeals from the judgment of the

Summit County Court of Common Pleas, denying his petition for post-conviction relief. This

Court affirms in part and reverses in part.

                                               I

        {¶2}    This case stems from an altercation that occurred between Thomas and Anthony

Smith, the victim in this matter. According to Thomas, he and Smith agreed to a fist fight after

exchanging verbal remarks. It was Thomas’ testimony that, after he threw the first punch, Smith

pulled out a gun. According to Thomas, he wrestled the gun from Smith and shot Smith multiple

times because he started coming toward Thomas again. Smith died as a result of his gunshot

wounds.

        {¶3}    A grand jury indicted Thomas on one count of aggravated murder and one firearm

specification. At trial, Thomas took the stand and argued self-defense. Although the jurors
                                                 2


ultimately rejected his defense, they did not find him guilty of aggravated murder. Instead, the

jury found him guilty of the lesser-included offense of murder and the attendant firearm

specification. The court sentenced Thomas to 18 years to life in prison on those charges, and this

Court affirmed its judgment on direct appeal. See State v. Thomas, 9th Dist. Summit No. 27266,

2015-Ohio-2935.

       {¶4}    While Thomas’ direct appeal was pending, he filed a petition for post-conviction

relief on numerous grounds. The State then filed a motion to dismiss the petition, and Thomas

filed a reply. The trial court reviewed the written filings and determined that the petition did not

warrant a hearing or an opportunity for discovery. Consequently, it denied the petition on all

grounds.

       {¶5}    Thomas now appeals from the trial court’s denial of his petition for post-

conviction relief and raises eight assignments of error for our review. For ease of analysis, we

rearrange and consolidate several of the assignments of error.

                                                 II

                                Assignment of Error Number Five

       THOMAS WAS DENIED HIS RIGHT TO A PUBLIC TRIAL UNDER THE
       SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL
       CONSTITUTION AND ART. I, SECTION 10 OF THE OHIO
       CONSTITUTION.

       {¶6}    In his fifth assignment of error, Thomas argues that he was entitled to post-

conviction relief because he was denied his constitutional rights to a public trial. Specifically, he

argues that his rights to a public trial were violated when the judge who presided over his trial

failed to receive and answer a jury question in open court, in the presence of Thomas and his

counsel.
                                                  3


       {¶7}    “The Sixth Amendment to the U.S. Constitution and Article I, Section 10 of the

Ohio Constitution guarantee the right to a public trial.” State v. Howse, 9th Dist. Lorain No.

12CA010251, 2012-Ohio-6106, ¶ 6.             “Under the doctrine of res judicata, [however,]

constitutional issues cannot be considered in post[-]conviction proceedings * * * where they

have already been or could have already been litigated by the convicted defendant, while

represented by counsel, either before conviction or on direct appeal.” State v. Kiley, 9th Dist.

Lorain No. 12CA010254, 2013-Ohio-634, ¶ 7, quoting State v. Lott, 97 Ohio St.3d 303, 2002-

Ohio-6625, ¶ 19. On direct appeal, Thomas assigned as error that his constitutional rights to a

public trial were violated when the trial court did not answer a jury question in open court, in his

and his counsel’s presence. Although we agreed that it was prudent for courts to conduct such

proceedings on the record, we rejected Thomas’ argument because he failed to support it with

adequate legal authority.     See Thomas, 2015-Ohio-2935, at ¶ 49.            Accordingly, Thomas

previously raised his public trial argument on direct appeal with the benefit of counsel.

       {¶8}    Thomas has not made any attempt to show how the argument in this assignment

of error differs from the one he either made or could have made on direct appeal while he was

represented by counsel. See App.R. 16(A)(7). Because this Court heard Thomas’ argument on

direct appeal, res judicata prevents him from asserting it as a basis for post-conviction relief. See

Kiley at ¶ 7, quoting Lott at ¶ 19. His fifth assignment of error is overruled.

                                Assignment of Error Number Four

       THOMAS’ RIGHT TO BE PRESENT AT ALL STAGES OF HIS TRIAL WAS
       VIOLATED WHEN HE DID NOT WAIVE HIS RIGHT TO BE PRESENT FOR
       JURY QUESTIONS AND ANSWERS AND HIS LAWYERS NEVER
       DISCUSSED THE JURY QUESTIONS WITH HIM ALL IN VIOLATION OF
       CRIM[.] R. 43(A), THE FIFTH, SIXTH AND FOURTEENTH AMENDMENT
       OF THE FEDERAL CONSTITUTION AND ART I SECTION 10 OF THE
       OHIO CONSTITUTION.
                                                  4


       {¶9}    In his fourth assignment of error, Thomas argues that he was entitled to post-

conviction relief because he was denied his constitutional right to be present at all stages of his

trial. Specifically, he argues that he had a right to be present when the trial judge received and

answered a question from the jury during deliberations. Because Thomas cannot demonstrate

prejudice as a result of his absence, we reject his assignment of error.

       {¶10} Initially, we note that Thomas raised this same argument on direct appeal, but this

Court was unable to address its merits. See Thomas, 2015-Ohio-2935, at ¶ 47. We found that

the record was silent as to whether “the trial court consulted with the parties regarding the [jury]

question and on whether the parties were present when the court answered the question.” Id.

Because we determined that Thomas’ argument required proof outside the record, we did not

address its merits.   As such, his fourth assignment of error is not barred by res judicata.

Compare discussion, infra.

       {¶11} “A criminal defendant has a fundamental right to be present at all critical stages of

his trial.” State v. Hach, 9th Dist. Summit No. 27409, 2014-Ohio-5113, ¶ 6. Even so, “[a]

criminal defendant’s absence * * * ‘does not necessarily result in prejudicial or constitutional

error.’” Id., quoting State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 90.

       Before a defendant may prevail upon the argument that he was denied due process
       as a result of his absence, * * * (1) “‘[t]he record must affirmatively indicate the
       absence of [the] defendant or his counsel during a particular stage of the trial,’” *
       * * and (2) the defendant must show that the absence prejudiced his defense.

(Alterations sic.) State v. Davison, 9th Dist. Lorain No. 10CA009803, 2011-Ohio-1528, ¶ 7,

quoting State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 105, quoting State v. Clark, 38

Ohio St.3d 252, 258 (1988). In the absence of a showing of prejudice, any error in not securing

the defendant’s presence is harmless. See Hack at ¶ 6-7.
                                                5


       {¶12} Because the trial court did not permit discovery or hold a hearing on Thomas’

petition, the record contains limited evidence regarding the jury question that the trial court is

said to have received and answered. It does contain, however, a sheet of paper with what

appears to be a list of questions from the jury and another sheet of paper with what appears to be

the court’s responses. The third question on the list that appears to be from the jury reads as

follows:

       Under Self Defense, Part (A) stated “he was not at fault in creating the situation
       that gave rise to the dispute […]”/ We are having trouble analyzing the issue of
       “fault.” If he were say “10%” at fault for having agreed to fist fight, is he
       considered at fault as it pertains to the wording in this section?

(Alteration sic.) The response to the question reads as follows:

       You must re-review and apply your collective understanding of the meaning of
       the terms used in the jury instructions. The court cannot further define the
       meaning of those terms.

Thomas presented an affidavit in support of his post-conviction relief petition and averred that he

was not present for any jury questions, he did not waive his presence, and his attorneys never

discussed any jury questions with him. He argues that he was prejudiced when the court

received and answered the above-quoted jury question outside of his presence because the

court’s answer was vague and his absence deprived him of the ability to object to it.

       {¶13} Even assuming that the trial court did, in fact, receive and answer the jury’s

question without Thomas or his counsel being present, Thomas cannot demonstrate prejudice as

a result of his absence. See Davison at ¶ 7. His claim of prejudice stems strictly from his

inability to challenge the court’s allegedly vague answer through an objection. The propriety of

the court’s answer, however, was a matter that Thomas could have raised on direct appeal. In

fact, Thomas specifically argued on appeal that the trial court improperly answered the jury’s

question about fault. See Thomas, 2015-Ohio-2935, at ¶ 48. Over a dissent, a majority of this
                                                6


Court rejected his argument. See id. Thomas’ absence, therefore, did not deprive him of the

ability to challenge the trial court’s answer. He had the opportunity to litigate that issue on

appeal, and his appeal resulted in this Court rejecting his assertion that the trial court’s answer

was improper. See id. Thomas has not shown that, had he been present when the court received

and answered the jury’s question, the result in this matter would have been any different. See

Hach, 2014-Ohio-5113, at ¶ 6-7. Accordingly, even assuming that the court erred by receiving

and answering a question from the jury outside of Thomas’ presence, that error was harmless.

Thomas’ fourth assignment of error is overruled.

                               Assignment of Error Number Eight

       THE TRIAL COURT IMPROPERLY DENIED DISCOVERY AND AN
       EVIDENTIARY HEARING UNDER OHIO LAW AND WELL ESTABLISHED
       U.S. SUPREME COURT DECISIONS AND THE FEDERAL CONSTITUTION.

       {¶14} In his eighth assignment of error, Thomas argues that the trial court erred by

denying his petition for post-conviction relief without allowing him to conduct discovery or

holding an evidentiary hearing. We agree in part.

       {¶15} “This Court has long held that there is no right to discovery in a post[-]conviction

proceeding.” State v. Craig, 9th Dist. Summit No. 24580, 2010-Ohio-1169, ¶ 6. “That is

because post-conviction relief is a civil, statutory remedy whose procedures are governed by

R.C. 2953.21,” State v. Ross, 9th Dist. Summit No. 27180, 2014-Ohio-2038, ¶ 13, and the statute

“does not provide for discovery.” Craig at ¶ 6. Because Thomas did not have a right to conduct

discovery on his petition for post-conviction relief, the trial court did not err by denying his

request for the same. See Craig at ¶ 6. Accordingly, his eighth assignment of error is overruled

in part. See State v. White, 9th Dist. Summit No. 19040, 1999 WL 394938, *2 (June 16, 1999).
                                                 7


       {¶16} We next consider whether the court erred by not conducting a hearing on

Thomas’ petition.    “A [post-conviction relief] petitioner ‘is not automatically entitled to a

hearing.’” State v. El-Jones, 9th Dist. Summit No. 26616, 2013-Ohio-3349, ¶ 4, quoting State v.

Calhoun, 86 Ohio St.3d 279, 282 (1999). Rather, the trial court must exercise its discretion to

determine whether a hearing is warranted. See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, ¶ 51. “Before granting a hearing on a petition * * *, the court shall determine whether

there are substantive grounds for relief.”     R.C. 2953.21(C).     When a claim of ineffective

assistance of counsel provides the basis for the relief, “the petitioner bears the initial burden to

submit evidentiary documents containing sufficient operative facts to demonstrate the lack of

competent counsel and that the defense was prejudiced by counsel’s ineffectiveness.” State v.

Jackson, 64 Ohio St.2d 107 (1980), syllabus.

       [A] trial court properly denies [the] * * * petition * * * without holding an
       evidentiary hearing where the petition, the supporting affidavits, the documentary
       evidence, the files, and the records do not demonstrate that [the] petitioner set
       forth sufficient operative facts to establish substantive grounds for relief.

Calhoun at paragraph two of the syllabus. If, however, the petitioner sets forth sufficient

operative facts “to demonstrate the lack of competent counsel and that [he or she] was prejudiced

by trial counsel’s ineffectiveness,” then the trial court abuses its discretion by denying the

petition without an evidentiary hearing. State v. Maruna, 9th Dist. Summit No. 21595, 2004-

Ohio-730, ¶ 16.

       {¶17} In support of his petition for post-conviction relief, Thomas presented the court

with his own affidavit and several documents.        The documents included copies of: (1) an

evaluation that the Akron Public School system performed on Thomas when he was eight years

old; (2) a screen pediatric psychosocial influences report that a doctor compiled when Thomas

was seventeen years old; (3) an anger management program certificate from the Greenleaf
                                                8


Family Center, indicating that Thomas completed the program; (4) a diagnostic assessment

conducted by the Greenleaf Family Center shortly before Thomas’ seventeenth birthday; and (4)

paperwork indicating that Thomas would continue to receive supplemental security income

payments, despite his having turned eighteen years of age.        The documents indicated that

Thomas had a “low average” full scale IQ score of 80, as well as an adjustment disorder and

difficulty controlling his anger. They also indicated that he had suffered from childhood trauma.

Thomas pointed to the foregoing items as evidence in support of his self-defense claim, arguing

that they bore upon his subjective state of mind at the time he shot Smith with the gun that Smith

unexpectedly produced.

       {¶18} In his affidavit, Thomas averred that the two attorneys who represented him at

trial never had him sign a release for any of the foregoing information. He stated that he was in

jail from August 2013 to January 2014, one of his attorneys never visited him in jail, and his

other attorney visited him a total of five to six times before trial. Of those five or six visits,

Thomas averred, three of them occurred “the Friday, Saturday and Sunday before [his] Monday

trial in January 2014.” Thomas attached to his petition a copy of an email from a clerical

supervisor at the Summit County Jail. The email confirmed that, between August 2013 and

January 2014, the jail’s sign in logs did not reflect that Thomas received any visits from his

attorneys during normal business hours.

       {¶19} In his petition, Thomas argued that his attorneys failed to thoroughly investigate

his history and to prepare him for trial. Because his attorneys did not meet with him in a timely

manner, Thomas argued, there was no opportunity for them to learn about the foregoing records,

obtain them, and secure the services of an expert who could have explained their significance to

the jury. Thomas argued that the documents regarding his low IQ and psychological issues
                                                 9


would have bolstered his self-defense claim, had his attorneys uncovered them and presented

them at trial in the context of expert testimony. According to Thomas, his attorneys did not

adequately prepare him for his testimony and their lack of investigation and preparation

negatively impacted his ability to succeed on his affirmative defense.

       {¶20} The trial court determined that Thomas was not entitled to relief because he failed

to show that his attorneys made serious errors at his trial and/or that any of their alleged errors

prejudiced his defense. The court found it “unlikely” that the records Thomas supplied in

support of his petition “would have had a positive impact on the jury’s consideration of [his]

self-defense claim.”   Additionally, the court rejected Thomas’ argument that the purported

failure of his attorneys to visit him in jail amounted to ineffective assistance of counsel. The

court noted that, by Thomas’ own admission, one of his attorneys visited him in jail on five or

six occasions. According to the court, that same attorney “appeared to be prepared for trial and

presented a strong self-defense claim on [Thomas’] behalf.” The court concluded that Thomas

failed to meet his burden on his ineffective assistance of counsel claims because he did not show

that his attorneys performed deficiently and that, had they visited him more often, the outcome of

his trial would have been different.

       {¶21} This Court has carefully reviewed the record in this matter. Having done so, we

must conclude that the trial court erred by not conducting a hearing. To warrant a hearing,

Thomas was not required to show that he would ultimately prevail on the merits of his

ineffective assistance of counsel claims. Rather, he had to set forth “sufficient operative facts” in

support of those claims. See Jackson, 64 Ohio St.2d 107 at syllabus. Thomas presented the

court with an affidavit in which he averred that one of his attorneys never met with him and the

other met with him five or six times. He averred that, of those five or six times, three of those
                                                  10


visits occurred the Friday, Saturday, and Sunday before his Monday trial commenced.

Moreover, his affidavit was not the only piece of evidence he presented in support of his claim.

He bolstered his affidavit with a copy of an email from a clerical supervisor at the Summit

County Jail. That email confirmed that, from August 2013 to January 2014, the jail did not log

any visits between Thomas and his attorneys during normal business hours.1 Compare State v.

Clutter, 9th Dist. Summit No. 24096, 2008-Ohio-3954, ¶ 18 (petitioner not entitled to hearing

where the record was devoid of any jail records supporting defendant’s assertion that counsel had

limited visitation with him).

       {¶22} Thomas faced an extremely serious charge at trial. Moreover, his attorneys opted

to defend against that charge by arguing self-defense. Because self-defense is an affirmative

defense, the type and quality of the evidence Thomas introduced in support of his self-defense

claim was critical to its success. See State v. Westfall, 9th Dist. Lorain No. 10CA009825, 2011-

Ohio-5011, ¶ 19, quoting State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914,

¶ 4 (setting forth the elements of self-defense in cases involving deadly force). According to

Thomas, however, he barely received the advice of counsel before trial.

       {¶23} We are troubled by the notion that an attorney would wait until the eve of trial to

prepare his client to defend himself against a charge of aggravated murder; particularly, if that

attorney intended to have the client testify that he acted in self-defense. “An attorney has a ‘duty

to make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.’” State v. Brown, 9th Dist. Summit No. 25710, 2011-Ohio-6733, ¶

12, quoting Strickland v. Washington, 466 U.S. 668, 691 (1984). At the very least, Thomas

presented evidence that raised questions as to whether his attorneys adequately investigated his

1
 The email also clarified that there is no sign in log for attorneys if they visit their clients on the
weekend or after normal business hours.
                                               11


background and adequately prepared him for trial. His affidavit, in conjunction with the other

evidentiary materials he presented, provided sufficient operative facts to warrant an evidentiary

hearing on his ineffective assistance of counsel claims. See Maruna, 2004-Ohio-730, at ¶ 12-16.

See also State v. Jones, 9th Dist. Summit No. 25695, 2011-Ohio-6063, ¶ 54. Accordingly, we

must conclude that the trial court erred by not holding a hearing on his petition. To that end,

Thomas’ eighth assignment of error is sustained.

                               Assignment of Error Number One

       COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AND FOURTEENTH
       AMENDMENTS OF THE FEDERAL CONSTITUTION AND ART. I SEC. 10
       OF THE OHIO CONSTITUTION BY FAILING TO PRESENT AVAILABLE
       EVIDENCE OF THOMAS’ STATE OF MIND.

                               Assignment of Error Number Two

       COUNSEL FAILED TO CONDUCT A THOROUGH INVESTIGATION OF
       LAW AND FACTS AND WAS THUS INEFFECTIVE UNDER STRICKLAND
       AND THE SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL
       CONSTITUTION AND ART. I, SEC. 10 OF THE OHIO CONSTITUTION.

                              Assignment of Error Number Three

       COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AND FOURTEENTH
       AMENDMENTS OF THE FEDERAL CONSTITUTION AND ART. I
       SECTION 10 OF THE OHIO CONSTITUTION WHEN THEY FAILED TO
       PROPERLY PREPARE HIM FOR HIS TESTIMONY.

                               Assignment of Error Number Six

       COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AND FOURTEENTH
       AMENDMENTS OF THE FEDERAL CONSTITUTION AND ART I SECTION
       10 OF THE OHIO CONSTITUTION WHEN THEY FAILED TO SECURE THE
       SERVICES OF MENTAL HEALTH EXPERT TO TESTIFY CONCERNING
       EXHIBITS 1-3 AND 6 AND ITS IMPACT ON THOMAS’ STATE OF MIND
       AND SUBJECTIVE ELEMENTS OF SELF DEFENSE.

       {¶24} In each of the foregoing assignments of error, Thomas argues that the court erred

by denying his petition for post-conviction relief on the grounds of ineffective assistance of

counsel. Because this matter must be remanded for a hearing, however, his first, second, third,
                                                12


and sixth assignments of error are not yet ripe for review, and we decline to address them. See,

e.g., Akron v. Heller, 9th Dist. Summit No. 26969, 2013-Ohio-5228, ¶ 8.

                               Assignment of Error Number Seven

       THOMAS WAS DENIED DUE PROCESS AND THE EFFECTIVE
       ASSISTANCE OF COUNSEL DUE TO THE CUMULATIVE EFFECT OF THE
       ERRORS DESCRIBED ABOVE UNDER THE SIXTH AND FOURTEENTH
       AMENDMENTS OF THE FEDERAL CONSTITUTION AND ART. I
       SECTION 10 OF THE OHIO CONSTITUTION.

       {¶25} In his seventh assignment of error, Thomas argues that the cumulative effect of

the aforementioned errors deprived him of the ineffective assistance of counsel.          “Having

concluded that the case should be remanded, we decline to address this issue.” State v. Fry, 9th

Dist. Summit No. 26121, 2012-Ohio-2602, ¶ 40.

                                                III

       {¶26} Thomas’ eighth assignment of error is sustained in part and overruled in part, and

his fourth and fifth assignments of error are overruled. Based on our determination that this

matter must be remanded for a hearing, his first, second, third, and sixth assignments of error are

not yet ripe for review. Additionally, we decline to address his seventh assignment of error. The

judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and

the cause is remanded for further proceedings consistent with the foregoing opinion.

                                                                       Judgment affirmed in part,
                                                                                reversed in part,
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.
                                                   13


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                        BETH WHITMORE
                                                        FOR THE COURT




SCHAFER, J.
CONCURS.

CARR, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶27} Because I believe that none of Thomas’ claims are barred by res judicata, I

respectfully concur in part and dissent in part.

       {¶28} The majority concludes that Thomas’ fifth assignment of error, that he was denied

the right to a public trial, is barred by res judicata because he previously raised it on direct

appeal. I cannot agree with this conclusion.

       {¶29} In his direct appeal, Thomas presented three assignments of error related to the

question posed by the jury: “In his sixth, eighth, and ninth assignments of error, Mr. Thomas
                                                 14


argues that the trial court erred in answering a jury question and that the court improperly

answered the question without his or his counsel’s presence in open court.” State v. Thomas, 9th

Dist. Summit No. 27266, 2015-Ohio-2935, ¶ 44. This Court concluded it could not fully address

his arguments because the transcript was silent on whether the trial court consulted with the

prosecutor, defense attorneys, or Thomas regarding the question and whether they were present

when the court answered the question. Id. at ¶ 47. Thus, this Court concluded that “Mr.

Thomas’ sixth, eighth, and ninth assignments of error depend, in whole or in part, upon the

premises that Mr. Thomas and his counsel were not consulted prior to the court answering the

jury question, and that they were not present when the court proceeded to answer the question.

However, on direct appeal, our review is limited to the record, and from this record, we cannot

determine the accuracy of these premises.” Id. at ¶ 47.

       {¶30} Although the decision then addressed parts of two of the assignments of error, it

did not do so in a vacuum. This Court had already concluded that it could not fully analyze these

issues because the record was silent on critical points. Thus, the decision’s conclusion that

Thomas failed to analyze the law in support of his sixth assignment of error, and that he did not

provide citations in support of part of his ninth assignment of error, are of limited significance to

Thomas’ post-conviction relief claim.

       {¶31} “[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., 73 Ohio St.3d 379, 382 (1995). Here, there was

no final judgment on the merits from this Court. Rather, this Court concluded that the record on

appeal was insufficient for this Court to evaluate Thomas’ claim. Res judicata bars a convicted

defendant, who was represented by counsel, from raising a claim in a petition for post-conviction
                                                  15


relief that was raised, or could have been raised, by the defendant on an appeal from that

judgment. State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. I do not

agree that res judicata applies to bar Thomas’ post-conviction claim. This Court determined in

his direct appeal that the record did not contain the facts necessary to address his claim. In other

words, Thomas could not raise his claim on appeal. Public policy demands that there be an end

to litigation, and I have long been a proponent of the application of res judicata to prevent

relitigation of claims. Res judicata cannot apply to Thomas’ petition, however, because he did

not have an opportunity to fully raise and litigate his claim in his direct appeal.

       {¶32} I also disagree with the majority’s conclusion that Thomas is not entitled to relief

on his fourth assignment of error. Thomas asserted in his assignment of error that his right to be

present for all critical stages was violated. The majority concludes, however, that because

Thomas argued on direct appeal that the trial court’s answer to the jury’s question was improper,

and this Court rejected his argument, that Thomas cannot show prejudice from his absence

during this process.

       {¶33} The majority’s analysis misses the mark. Thomas’ complaint is that he was not

present during a critical stage of his trial. Whether his presence, and his input on the appropriate

answer, would have made a difference in the trial court’s answer is a different issue than the one

Thomas raised. Thomas asserted that he had a constitutional right to be present at this critical

stage. Because the majority has not addressed Thomas’ argument on appeal, I respectfully

dissent from its resolution of the fourth assignment of error.

       {¶34} I disagree with the majority’s conclusion that Thomas’ claim was barred by res

judicata and that Thomas could not show prejudice. I respectfully dissent from that portion of

the majority’s opinion that concludes otherwise.
                                          16



APPEARANCES:

JOHN P. PARKER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
