[Cite as State v. Adams, 2017-Ohio-519.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             LAWRENCE COUNTY

STATE OF OHIO,                 :
                               :    Case No. 16CA23
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
JASON M. ADAMS,                :
                               :
    Defendant-Appellant.       :    Released: 02/06/17
_____________________________________________________________
                         APPEARANCES:

Jason Adams, Lima, Ohio, Pro Se Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert
C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Jason Adams appeals the judgment entry of the Lawrence

County Court of Common Pleas, dated July 11, 2016, which dismissed his

petition for post-conviction relief without a hearing. On appeal, Appellant

asserts the trial court erred by: (1) failing to conduct a hearing pursuant to

R.C. 2953.21(C); and (2) failing to provide findings of fact and conclusions

of law. Upon review, we find no merit to Appellant’s arguments.

Accordingly, we overrule Appellant’s sole assignment of error and affirm

the judgment of the trial court.
Lawrence App. No. 16CA23                                                         2

                                                FACTS

           {¶2} A Lawrence County Common Pleas Jury convicted Appellant of

complicity to aggravated robbery, a felony of the first degree. By final

judgment entry of December 23, 2014, he was sentenced to a nine-year

prison term.

           {¶3} Appellant’s conviction arose from an ill-conceived plan to rob

Charles (Sam) Jones, an elderly “bookie” in Ironton, Ohio. On January 14,

2014, church volunteers near Central Christian Church saw a commotion in

front of the church, observed two men running away, and assisted Jones and

Appellant, who appeared to have been robbed. One of the assailants was

chased to a black Dodge Durango pickup truck. Once surveillance video of

the robbery and truck was obtained from a nearby school, the investigation

quickly unfolded. Appellant, his long-time friend Scott Lewis, and a third

man, Ed Hampton, Lewis’s uncle, were subsequently indicted for robbing

Jones.1

           {¶4} Appellant’s co-defendants entered guilty pleas and did not

proceed to trial. Appellant, however, an Iraq war veteran with no prior

criminal record and good standing in the community, proceeded to trial and

testified on his own behalf. Appellant maintained throughout the


1
    Appellant was indicted on March 25, 2014.
Lawrence App. No. 16CA23                                                          3

investigation and during his testimony at trial that he was not involved in

planning or participation and was, in fact, also a victim of the crime.

      {¶5} The State presented testimony from Jones, the

bystanders/witnesses at the church, the investigating officers, Scott Lewis,

and additional witnesses who identified the State’s exhibits. The State’s

exhibits included surveillance film of the robbery and escape; records of

multiple phone contacts between Appellant and Lewis before, during, and

after the incident; Appellant’s initial statement to responding officers;

Appellant’s recorded statement at the police station; surveillance film from a

local store showing Appellant and his co-defendants purchasing toy guns on

the day of the incident; and photographs of the victim’s injuries.

      {¶6} The defense strategy was to attempt to cast doubt as to the

credibility of the investigating officers and Scott Lewis. However, the jury

must have found the circumstantial evidence overwhelming and Appellant

not to be a credible witness. After Appellant was sentenced, a timely appeal

followed.

      {¶7} In his direct appeal, Appellant raised six assignments of error,

including manifest weight of the evidence, an evidentiary issue, sentencing

issues, and an ineffective assistance of counsel claim. On June 14, 2016,

while his direct appeal was still pending, Appellant filed a petition for post-
Lawrence App. No. 16CA23                                                       4

conviction relief, alleging his conviction was void or voidable under the

Sixth and Fourteenth Amendments to the United States Constitution and

Article I, Section 10 of the Ohio Constitution because his trial counsel did

not render effective assistance. On July 11, 2016, the trial court dismissed

Appellant’s petition without conducting an evidentiary hearing and by

judgment entry which did not separately caption findings of fact and

conclusions of law.

      {¶8} On July 25, 2016, Appellant filed a notice of appeal of the

court’s decision on his post-conviction petition. On November 10, 2016,

this court issued its decision in the direct appeal. See State v. Adams, 4th

Dist. Lawrence No. 15CA2, 2016-Ohio-7772. We overruled four

assignments of error which included the ineffective assistance claim,

declined to consider one which the parties had resolved, and found merit to

Appellant’s post-release control notification argument. We now consider

the appeal of the dismissal of Appellant’s post-conviction petition.

                        ASSIGNMENTS OF ERROR

      “I. THE TRIAL COURT ABUSED ITS DISCRETION IN
      DENYING THE APPELLANT’S PETITION FOR
      POSTCONVICTION RELIEF WITHOUT A HEARING
      PURSUANT TO R.C. 2953.21(C), WHEN APPELLANT
      PROVIDED SUFFICIENT EVIDENCE DEHOR THE
      RECORD TO WARRANT A HEARING.”
Lawrence App. No. 16CA23                                                        5

      “II. THE TRIAL COURT ABUSED ITS DISCRETION AND
      COMMITTED REVERSIBLE ERROR WHEN IT DENIED
      APPELLANT’S POSTCONVICTION PETITION WITHOUT
      FURNISHING FINDINGS OF FACTS AND CONCLUSIONS
      OF LAW.”

                         A. STANDARD OF REVIEW

      {¶9} “[A] trial court's decision granting or denying a post-conviction

petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of

discretion; a reviewing court should not overrule the trial court's finding on a

petition for post-conviction relief that is supported by competent and

credible evidence.” State v. Black, 4th Dist. Ross No. 15CA3509, 2016-

Ohio-3104, ¶7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 58. “A trial court abuses its discretion when its

decision is unreasonable, arbitrary, or unconscionable.” State v. Knauff, 4th

Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 19, citing Cullen v. State

Farm Mut. Auto Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d

614, ¶ 19. Because Appellant’s assignments of error are related, we

consider them jointly.

                           B. LEGAL ANALYSIS

      {¶10} A petition for post-conviction relief brought pursuant to R.C.

2953.21 provides convicted individuals with a means to collaterally attack

their convictions. Black, supra, at ¶ 8, citing In re B.C.S., 4th Dist.
Lawrence App. No. 16CA23                                                       6

Washington No. 07CA60, 2008-Ohio-5771, ¶ 10. “It is a civil proceeding

designed to determine whether ‘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.” R.C. 2953.21(A).

Thus, a petitioner must demonstrate errors of a constitutional magnitude and

resulting prejudice before being entitled to relief under the statute.” Id . R.C.

2953.21 specifically provides:

      (A)(1)(a) Any person who has been convicted of a criminal
      offense or adjudicated a delinquent child and 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.

      ***

      (C) * * * Before granting a hearing on a petition filed under
      division (A) of this section, 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, the supporting affidavits, and the documentary
      evidence, 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 record of
      the clerk of the court, and the court reporter's transcript. The
      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.
Lawrence App. No. 16CA23                                                         7

       ***

      (E) Unless the petition and the files and records of the case
      show the petitioner is not entitled to relief, the court shall
      proceed to a prompt hearing on the issues even if a direct appeal
      of the case is pending.

      ***

      {¶11} However, a petitioner seeking post-conviction relief is not

automatically entitled to an evidentiary hearing. Black, supra, at ¶ 9, citing

State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999); State v.

Slagle, 4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 13. Rather,

before granting a hearing on a petition, the trial court must first determine

that substantive grounds for relief exist. R.C. 2953.21(C). “Substantive

grounds for relief exist and a hearing is warranted if the petitioner produces

sufficient credible evidence that demonstrates the petitioner suffered a

violation of the petitioner's constitutional rights.” In re B.C.S. at ¶ 11.

Furthermore, in order to merit a hearing, the petitioner must show that the

claimed “errors resulted in prejudice.” Id., quoting Calhoun at 283.

      {¶12} Res judicata applies to proceedings involving post-conviction

relief. Black, supra, at ¶ 10, citing State v. Szefcyk, 77 Ohio St.3d 93, 95, 671

N.E.2d 233 (1996). “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,
Lawrence App. No. 16CA23                                                        8

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.” State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

“Therefore, ‘any issue that could have been raised on direct appeal and was

not is res judicata and not subject to review in subsequent proceedings.’ ”

State v. Segines, 8th Dist. Cuyahoga No. 99789, 2013-Ohio-5259, ¶ 8,

quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d

824, ¶ 16.

1. Failure to conduct evidentiary hearing.

      {¶13} Appellant argues the trial court abused its discretion in denying

his petition without a hearing as it never gave any consideration to the

evidence that he attached to his petition, never addressed the issues of the

witnesses’ credibility, and never explained why Appellant’s evidence was

lacking in credibility. Appellant asserted in his petition that defense counsel

was provided information from the private investigator that placed severe

scrutiny in the truthfulness and credibility of the lead detective, Joe Ross,

Appellant’s co-defendant Scott Lewis, and the victim Sam Jones. Appellant

concludes an evidentiary hearing would have considered the issue of what
Lawrence App. No. 16CA23                                                        9

was reasonable or strategic, given the information within counsel’s

possession.

      {¶14} A trial court may dismiss a petition for post-conviction relief

without holding an evidentiary hearing when the claims raised in the petition

are barred by the doctrine of res judicata. State v. Canada, 10th Dist.

Franklin No. 16AP-7, 2016-Ohio-5948, at ¶ 23; State v. Ibrahim, 10th Dist.

Franklin No. 14AP355, 2014-Ohio-5307, at ¶ 10; State v. Sullivan, 10th

Dist. Franklin No. 13AP–861, 2014-Ohio-1260, ¶ 10, citing State v.

Melhado, 10th Dist. Franklin No. 13AP–114, 2013-Ohio-3547, ¶ 10.

However, the doctrine of res judicata does not apply where the petitioner

relies on competent, relevant, and material evidence, outside the trial court's

record, and such evidence must not be evidence that existed or was available

for use at the time of trial. Id. at ¶ 11, citing State v. Braden, 10th Dist.

Franklin No. 02AP–954, 2003-Ohio-2949, ¶ 27. “Where new counsel

represents a defendant on direct appeal and the ineffectiveness of trial

counsel could have been determined without resort to evidence outside the

record, a petition for post-conviction relief alleging ineffective assistance of

trial counsel is barred by res judicata.” Id.

      {¶15} Here, Appellant’s supplemental answers to discovery filed in

the trial court proceedings were attached to his post-conviction petition.
Lawrence App. No. 16CA23                                                    10

During the underlying proceedings, Appellant hired a private investigator

who submitted various memoranda and reports to defense counsel who, in

turn, provided them in discovery. The various memoranda and reports

included:

            1) Interview of Shannon Colson;

            2) Telephone interview of Thomas Adams, Appellant’s
            father (March 22, 2014);

            3) Written statement of Jim Carry, Appellant’s father-in-
            law;

            4) Telephone interview of Thomas Adams (June 7,
            2014);

            5) Interviews of Josh Wheeler and Tracy Wheeler
            (March 17, 2014);

            6) Follow-up telephone interviews of Josh Wheeler
            (April 29, 2014 and August 18, 2014);

            7) Telephone interview of Travis Waulk (April 9, 2014);

            8) In-person interview of Curtis Cooke (March 31,
            2014);

            9) In-person interview of Eric Williams (March 25,
            2014);

            10) Telephone interview of Blake Copley, Appellant’s
            co-worker (April 17, 2014);

            11) Telephone interview of Chris Bowman, Acting
            Police Chief of Ironton Police Department (May 16,
            2014);
Lawrence App. No. 16CA23                                                      11

             12) In-person interview of Rich Blankenship, Mayor of
             Ironton (April 23, 2014);

             13) Memorandum by the private investigator to defense
             counsel entitled “Defense Investigator Impressions and
             Judgements” (June 16, 2014);

             14) Memorandum by private investigator to defense
             counsel entitled “Initial Discovery File Review” (March
             26, 2014);

             15) Telephone interview of Lucas Morris (October 4,
             2014);

             16) Memorandum of Investigation entitled “Collection
             of Video from Cell Phone” (Meeting with Appellant after
             phone call between Appellant and co-defendant Edward
             Hampton on October 2, 2014);

             17) Memorandum of Investigation entitled “Collection of
             Video from Cell Phone”) (Meeting with Appellant after
             second phone call between Appellant and co-defendant
             Hampton, October 16, 2014);

             18) Synopsis prepared by Captain Joseph Ross, Ironton
             Police Department (January 14, 2014);

             19) Email between Nicole Adams, Appellant’s wife, and
             the investigator (June 15, 2014);

             20) Continuation of Investigation, Captain Joseph Ross
             (June 10, 2014).

      {¶16} We are unable to determine whether all of the memoranda and

reports submitted with Appellant’s petition were submitted with discovery

and actually made part of the trial court record. However, it is clear that all

the memoranda and reports were submitted to defense counsel and available
Lawrence App. No. 16CA23                                                        12

for use at trial. A petition for post-conviction relief is not the proper vehicle

to raise issues that were or could have been determined on direct appeal.

Black, supra, at ¶ 11, citing State v. Perry, supra, 10 Ohio St.2d at 182, 226

N.E.2d at 109.

      {¶17} We pause to recognize that pursuant to our decision in State v.

Keeley, 989 N.E.2d 80, 2013-Ohio-474, the doctrine of res judicata would

not apply to bar a trial court’s consideration of post-conviction claims that

were not raised in an appeal of right that was pending at the time the post-

conviction petition was filed. There we stated:

      “[W]e have found no precedent to determine whether res
      judicata may be invoked during postconviction proceedings
      when the first appeal of right is pending. We believe, for the
      following reasons, that the answer to that question is in the
      negative. First, as noted above, the Szefcyk syllabus is phrased
      in past tense and, thus, suggests that res judicata may be
      invoked after the first appeal of right has been determined. * * *
      Second, and more important, invoking the doctrine of res
      judicata while a first appeal of right is pending renders R.C.
      2953.21(C) meaningless. The Ohio General Assembly
      instructed trial courts that they could consider the merits of
      such petitions even while an appeal is pending. However, to
      allow the application of res judicata at that stage of an appeal
      means that a trial court could always avoid ruling on the
      petition’s merits as long as no decision had been rendered on
      the appeal.”

      {¶18} While Appellant’s appeal was pending at the time he filed his

post-conviction petition and the trial court ruled on it, we as an appellate

court are not precluded from utilizing the doctrine of res judicata where it is
Lawrence App. No. 16CA23                                                       13

applicable. We find Appellant’s case somewhat akin to the situation in

Black, supra, in that Appellant’s current claims of ineffective assistance of

trial counsel could have, and should have, been raised in the direct appeal of

his conviction. Appellant, like Black, was present during the trial court

proceedings and was well aware of the actions, and inactions of his counsel.

Black claimed that prior to trial he instructed his trial counsel to contact

witnesses on his behalf, but counsel failed to do so. Black also claimed that

he provided his trial counsel with information about the victim, but that

counsel failed to use the information at trial. This court reasoned that Black

was cognizant of these claims and other claims and could have included

them in his direct appeal. We further observed Black obtained new counsel

for his direct appeal, presumably so that he could pursue such a claim.

      {¶19} Importantly, we observed that Black's direct appeal raised the

issue of ineffective assistance without including the arguments that he raised

in his post-conviction petition, and that Black could have included those

arguments in the direct appeal but did not. We found the doctrine of res

judicata applied to bar Black's ineffective assistance of counsel claims, and

that the trial court did not err by dismissing Black's petition.

      {¶20} In Appellant’s post-conviction petition, he argued his counsel

was ineffective for: (1) failing to utilize evidence of inconsistent statements
Lawrence App. No. 16CA23                                                                                 14

made by his co-defendant and the victim; and (2) failing to attack the

credibility of the detective in the case.2 And, Appellant specifically sets

forth in his petition:

         “Defense counsel had these statements and information that was
         given to him from the private investigator, (SEE
         ATTACHMENTS) but never brought this information into the
         trial for the jury to hear. * * * Counsel for the defendant had
         this information but failed to use any of it at trial to attack the
         truthfulness and credibility of the lead detective. In this matter.
         (sic.) Counsel for Defendant failed to call the Private Detective,
         Mr. Pennington as a witness to clarify all of these things
         involving the Lead Detective, Scott Lewis, and the victim.
         Counsel for the Defendant failed to even put on a rudimentary
         defense that was readily available * * *. None of the evidence
         and/or information described herein was hidden from trial
         counsel or not available for trial. * * * The information was
         presented to counsel during the course of his review of
         materials * * *.”

         {¶21} We find, as in Black, that Appellant’s current claims of

ineffective assistance of trial counsel could have and should have been

raised in the direct appeal of his conviction. Appellant had different counsel

in his direct appeal and did not raise an ineffective assistance of counsel

claim. Although the trial court could not have relied on res judicata because

Appellant’s direct appeal was still pending at the time the petition was

dismissed, it is applicable. Like Black, Appellant was well aware of his


2
 In Appellant’s direct appeal, he claimed ineffective assistance occurred when defense counsel failed to
object to numerous instances throughout his trial when the jury was informed of his co-defendants’ guilty
pleas. We found no merit to this argument, observing that counsel’s failure to object fell within the realm
of reasonable trial strategy and also noted the overwhelming circumstantial evidence of Appellant’s guilt.
Lawrence App. No. 16CA23                                                       15

counsel’s actions and/or claimed inactions. Like Black, Appellant generally

claims he provided his counsel with evidence and information which his

counsel failed to use at trial. Appellant, like Black, was aware of these

claims and others and could have included them in his direct appeal. For the

foregoing reason, we find the claims Appellant raised his post-conviction

petition are barred by the doctrine of res judicata. Accordingly, the trial

court did not err by dismissing his petition. We hereby overrule the first

assignment of error.

2. Failure to issue findings of fact and conclusions of law.

      {¶22} Appellant argues the trial court’s entry concluded that defense

counsel’s decisions fall within a wide range of trial strategy, but did not

reference any evidence that Appellant was using competent trial strategy,

and simply stated “This was a well tried two day jury trial before twelve

jurors who found the Defendant guilty.” Further, the entry did not address

the issue of the witnesses’ credibility. Appellant contends the findings of

fact and conclusions of law should be explicit to give the appellate court a

clear understanding of the ground for the court’s decision and concludes the

judgment entry of the trial court lacks recognition of the basis of the

decision.
Lawrence App. No. 16CA23                                                         16

      {¶23} When a trial court dismisses a post-conviction relief petition

without holding an evidentiary hearing, it must enter findings of fact and

conclusions of law. R.C. 2953.21(C). State v. Jackson, 10th Dist. Franklin

No. 03AP–1065, 2004-Ohio-6438, ¶ 11, citing State v. Lester, 41 Ohio

St.2d. 51 (1975), paragraph two of the syllabus (“Pursuant to R.C. 2953.21,

if the trial court finds no grounds for an evidentiary hearing, the court is

required to make and file findings of fact and conclusions of law as to the

reasons for dismissal and to the grounds for relief relied upon in the

petition.”). “ ‘While a trial court need not discuss every issue that the

petitioner raises or engage in an elaborate and lengthy discussion in its

findings of fact and conclusions of law, its findings must be sufficiently

comprehensive and pertinent to the issues to form a basis upon which the

evidence supports the conclusion.’ ” State v. Banks, 10th Dist. Franklin No.

10AP–1065, 2011-Ohio-2749, ¶ 5, quoting State v. McKnight, 4th Dist.

Vinton No. 06CA645, 2006-Ohio-7104, ¶ 5, citing Calhoun at 291-92.

Failure to make the required findings of fact and conclusions of law in

denying a petition for post-conviction relief is prejudicial error. Jackson at

¶ 11, citing State v. Brown, 41 Ohio App.2d 181, 185 (8th Dist.1974).

      {¶24} The trial court’s decision stated, in pertinent part:

      “The essence of the State of Ohio’s argument in response to the
      petition for postconviction relief is that Defense Counsel’s
Lawrence App. No. 16CA23                                                    17

      decision whether to call certain witnesses or Counsel’s decision
      to pursue a particular line of questioning falls within the area of
      trial strategy, State v. Davis, 2013-Ohio-3878, 22 (Ct. App.
      2013). * * * This was a well tried two day jury trial before
      twelve jurors who found the Defendant guilty. This Court finds
      that the Defendant failed to make a prima facie argument or
      argue substantive grounds for relief as required in R.C.
      2953.21(C).”

      {¶25} Here, we find Appellant’s ineffective assistance claims are

barred by the doctrine of res judicata and we decline to consider Appellant’s

argument herein. As such, we do not find the trial court’s dismissal of

Appellant’s post-conviction petition constituted prejudicial error. Therefore,

we also overrule Appellant’s second assignment of error, and affirm the

judgment of the trial court.

                                                JUDGMENT AFFIRMED.
Lawrence App. No. 16CA23                                                       18

Harsha, J., dissenting:

      {¶26} I respectfully dissent. In his first assignment of error Adams

asserts that the trial court erred by failing to conduct a hearing on his

petition. The principal opinion relies on our opinion in State v. Black, 4th

Dist. Ross No. 15CA3509, 2016-Ohio-3104, to hold that res judicata barred

Adams’s claim of ineffective assistance of his trial counsel. But in State v.

Keeley, 2013-Ohio-474, 989 N.E.2d 80, ¶ 7-8 (4th Dist.), we held that the

doctrine of res judicata does not bar consideration of postconviction claims

that were not raised in an appeal of right that was pending at the time the

postconviction petition was filed.

      {¶27} In Black we upheld a trial court’s dismissal of a petition for

postconviction relief without holding an evidentiary hearing based in part on

res judicata although the petition was filed when a direct appeal was

pending. However, Black is distinguishable from both Keeley and this case

because the trial court there dismissed the defendant’s petition for

postconviction relief after we decided the defendant’s appeal. The trial

court could correctly rely on res judicata to resolve the pending
Lawrence App. No. 16CA23                                                                                 19

postconviction petition based on res judicata at that point because his direct

appeal was no longer pending.3

         {¶28} Conversely, the facts in this case are more like the

circumstances in Keeley than the situation in Black, i.e., when the trial court

dismissed Adams’s petition for postconviction relief, his direct appeal was

still pending. Based on Keeley we should sustain Adams’s first assignment

of error and remand the cause to the trial court to consider the petition. On

remand, because his direct appeal is no longer pending, the trial court is free

to consider whether his claims are now barred by res judicata.

         {¶29} In his second assignment of error Adams argues that the trial

court erred by failing to issue findings of fact and conclusions of law. The

principal opinion finds that because res judicata bars his claims, any failure

by the trial court was not prejudicial. But because the trial court erred in

dismissing the petition based on res judicata when his direct appeal was still

pending, the opinion’s rationale on his second assignment of error is also

erroneous. “Ohio law requires a trial court to make findings of fact and

conclusions of law when it dismisses a petition or denies postconviction

relief on the merits.” State v. Brooks, 4th Dist. Scioto No. 09CA3329, 2010–

Ohio–3262, ¶ 4, citing R.C. 2953.21(C) and (G). We should sustain

3
  See, Black (Harsha, J., concurring) in which this judge applied res judicata to some of Black’s claims and
rejected its application to two others.
Lawrence App. No. 16CA23                                                        20

Adams’s second assignment of error and direct the trial court on remand to

issue findings of fact and conclusions of law if it determines that dismissal

of the petition without a hearing is warranted.

      {¶30} Therefore, I dissent. We should sustain Adams’s assignments

of error and reverse and remand the cause to the trial court.
Lawrence App. No. 16CA23                                                       21

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellants.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment Only.
Harsha, J.: Dissents with Dissenting Opinion.

                                 For the Court,

                          BY: __________________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
