[Cite as State v. McGraw, 2012-Ohio-3692.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97839



                                     STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    JOHN A. McGRAW
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-534815

        BEFORE: Stewart, P.J., Cooney, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                     August 16, 2012
FOR APPELLANT

John A. McGraw, Pro Se
Inmate No. 600-404
Lorain Correctional Institution
2075 S. Avon-Belden Road
Grafton, OH 44044


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Mark J. Mahoney
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} Defendant-appellant John A. McGraw appeals from the trial court’s denial of

his petition for postconviction relief, and complains that he was denied effective

assistance of counsel before pleading guilty, that the trial court failed to issue findings of

fact and conclusions of law, and also abused its discretion when it denied his petition for

postconviction relief. We affirm the decision of the trial court.

       {¶2} In 2010, McGraw was charged with three counts of murder containing death

penalty specifications, kidnapping, aggravated burglary, and failure to comply with order

or signal of police. During jury selection, he entered into a plea agreement in the case,

Cuyahoga C.P. No. CR-534815, and was sentenced to prison for 45 years to life.

       {¶3} In March 2011, McGraw filed a direct appeal and two months later filed a

motion to withdraw his guilty plea. In the appeal, he argued that the imposition of his

sentence was contrary to law because the record did not reflect that the trial court

considered the seriousness and recidivism factors, and that the trial court erred in not

allowing him to withdraw his guilty plea. This court affirmed the judgment with regard

to the trial court’s imposition of sentence, and did not review the denial of his motion to

withdraw because we lacked jurisdiction to hear this assigned error. State v. McGraw,

8th Dist. No. 96606, 2012-Ohio-174.
       {¶4} In October 2011, McGraw filed a pro se petition to vacate or set aside

judgment of conviction or sentence, the subject of this appeal, asserting that he received

ineffective assistance of counsel and that he did not purposely cause the victim’s death.

The petition was denied, and the trial court’s journal entry states, in pertinent part:

“Petitioner fails to set forth sufficient operative facts to establish substantive grounds for

relief and the issues raised have already been ruled on by this court.”

       {¶5} On appeal, McGraw raises three assignments of error. He contends that: (1)

he was denied effective assistance of counsel because counsel failed to properly

investigate the facts of his case before he entered his guilty plea; (2) the trial court denied

his petition for postconviction relief without issuing findings of fact and conclusions of

law; and (3) the trial court abused its discretion by not granting his petition.

       {¶6} A postconviction proceeding is a collateral civil attack on a judgment, and is

not an appeal of a criminal conviction.            State v. Hines, 8th Dist. No. 89848,

2008-Ohio-1927, ¶ 8. “In determining whether substantive grounds for relief exist, the

trial court must consider, among other things, the petition, the supporting affidavits, and

the documentary evidence filed in support of the petition.” State v. Kent, 8th Dist. No.

94562, 2010-Ohio-6368, ¶ 4; R.C. 2953.21(C).

       {¶7} We review a trial court’s denial of a petition for postconviction relief based

upon R.C. 2953.21 for an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 50. An abuse of discretion connotes more than an

error in law or judgment, it means that the trial court’s decision was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

       {¶8} McGraw collectively argues in his first and third assignments of error that

he was denied his right to effective assistance of counsel because his court- appointed

counsel: (1) did not adequately investigate the circumstances of his case; (2) did not

review discovery; and (3) did not question him or any material witness to determine if the

evidence was sufficient to prove the crimes with which he was charged. He complains,

therefore, that the trial court abused its discretion when it denied his postconviction

petition.

       {¶9} In order to demonstrate a claim of ineffective assistance of counsel, McGraw

must establish that counsel’s performance was deficient and that his defense was

prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). In order to establish prejudice, McGraw “must show that he was

denied some substantive or procedural right that made the trial unreliable or the

proceeding fundamentally unfair.”     State v. Combs, 100 Ohio App.3d 90, 101, 652

N.E.2d 205 (1st Dist.1994), citing Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180 (1993).

       {¶10} McGraw argues that he was prejudiced by his trial counsel’s failure to

adequately investigate the circumstances of the case, review discovery, or question him or

material witnesses to determine the validity of the evidence and charges. He asserts that

counsel’s ineffectiveness caused him to plead guilty against his better judgment. Since
McGraw’s claim of ineffective assistance of counsel is an alleged error he did not pursue

on direct appeal, his claim is now barred by res judicata.

       {¶11} The doctrine of res judicata makes clear that a final judgment of conviction

prevents a convicted defendant from raising and litigating in any proceeding, aside from

an appeal from that judgment, any defense or any claim of insufficient due process that

was raised or could have been raised by the defendant at the trial which concluded in that

judgment of conviction or on an appeal from that judgment. State v. Perry, 10 Ohio

St.2d 175, 181, 226 N.E.2d 104 (1967).

       {¶12} While “claim[s] of ineffective assistance of counsel may be sufficient [in

some instances] to avoid the application of the principles of res judicata in a

post-conviction relief proceeding,” the claim may nevertheless be barred “unless

circumstances render the application of the doctrine unjust.” State v. Miller, 76 Ohio

App.3d 311, 313, 601 N.E.2d 609 (6th Dist.1991); State v. McClain, 8th Dist. No. 77740,

2002-Ohio-2349, ¶ 25.

       {¶13} In support of his claim, McGraw offers: (1) a 1982 opinion of the U.S.

Eighth Circuit Court of Appeals related to claims of ineffective assistance of counsel; (2)

a report of the autopsy conducted on the victim, dated March 1, 2010; (3) a run report

written by a municipal emergency medical services provider dated March 1, 2010; (4) an

Ohio Bureau of Criminal Identification & Investigation report dated December 14, 2010,

detailing the results of the analysis of two mobile phones; (5) a photograph of the victim’s

intact apartment door; and (6) an Ohio Bureau of Criminal Identification & Investigation
report dated March 29, 2010, involving the examination of a key for latent prints. All of

this information was available to McGraw at the time of his trial and/or his direct appeal.

        {¶14} A petition for postconviction relief is not the appropriate forum to raise

issues that could have been advanced on direct appeal. McGraw entered his guilty plea

on February 14, 2011, and the documents that he offers in support are not newly

discovered evidence. Therefore, we conclude that McGraw is barred by the doctrine of

res judicata from relitigating these issues.

        {¶15} Furthermore, the application of the doctrine of res judicata is not unjust in

this instance because McGraw’s claims lack merit. The record supports a finding that

counsel did investigate the facts surrounding the crimes and kept McGraw apprised of the

same.    At the plea hearing, counsel stated that he had received “full and complete

discovery” from the state, and had afterwards discussed the information obtained with

McGraw.      These findings contradict McGraw’s assertions that counsel failed to

investigate the facts of the case, and that counsel’s performance was deficient and

prejudiced him.

        {¶16} Counsel engaged in comprehensive discovery prior to McGraw’s entering

his plea, and the documents that he offers in support of his argument were available to

him at the time of his direct appeal. McGraw has failed to set forth sufficient credible

evidence outside of the record to establish grounds for relief.        His first and third

assignments of error are overruled.
       {¶17} In his second assignment of error, McGraw asserts that the trial court did not

issue findings of fact and conclusions of law in denying his petition for postconviction

relief. We overrule this assignment of error as moot. The trial court issued findings of

fact and conclusions of law while this appeal was pending.

       {¶18} A trial court must make findings of fact and conclusions of law to support

its denial of a postconviction petition if it finds no grounds for granting relief. State v.

Gilbert, 8th Dist. No. 94252, 2010-Ohio-6157, ¶ 8; R.C. 2953.21(G). Although the trial

court issued its findings of fact and conclusions of law after McGraw filed this appeal,

       the trial court retains such jurisdiction over the case as is not inconsistent
       with review by the appellate court, [and therefore had] * * * the power to
       take action in aid of the appeal * * * [because] a court’s [issuing] findings
       and conclusions * * * does not disrupt the judgment of the court, but
       explains it.

State v. Greer, 9th Dist. No. 15217, 1992 WL 316350, at *6 (Oct. 28, 1992).

       {¶19} Accordingly, judgment is affirmed.

       It is ordered that appellee recover of 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR
