[Cite as State v. Littlejohn, 2012-Ohio-5897.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98495


                                        STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  MARIO LITTLEJOHN
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-523358

        BEFORE:           Celebrezze, J., Blackmon, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      December 13, 2012
ATTORNEY FOR APPELLANT

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Mario Littlejohn, appeals the decision of the common

pleas court, which dismissed Littlejohn’s petition for postconviction relief without an

evidentiary hearing. For the following reasons, we affirm.

       {¶2} On June 11, 2010, a jury found appellant guilty of two counts of assault of a

peace officer (the lesser included offense in Counts 1 and 2), drug possession (Count 3),

and drug trafficking with a juvenile specification (Count 4), and sentenced him to an

aggregate of eight years in prison.       Appellant directly appealed his convictions and

sentence in State v. Littlejohn, 8th Dist. No. 95380, 2011-Ohio-2035 (“Littlejohn I”).1 In

Littlejohn I, appellant argued that the trial court erred when it imposed consecutive

sentences without making findings required by R.C. 2929.14(E) and Oregon v. Ice, 555

U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). Additionally, appellant challenged the

sufficiency and weight of the evidence supporting his convictions. On April 28, 2011,

this court affirmed appellant’s sentence and convictions.

       {¶3} While appellant’s appeal was pending before this court, appellant filed a pro

se petition for postconviction relief on January 31, 2011. The state filed its response on

February 14, 2011. On August 22, 2011, the trial court denied appellant’s petition

without a hearing based on the doctrine of res judicata and issued findings of fact and

conclusions of law.



          See Littlejohn I, ¶ 3-7, for an accurate statement of the facts surrounding appellant’s
       1


convictions.
      {¶4} Appellant now appeals, raising two assignments of error for review.

      I. The trial court abused its discretion by dismissing appellant’s post
      conviction relief petition without a hearing.

      II. The trial court’s journal entry fails to make specific findings of fact on
      all material issues raised.

                                    Law and Analysis

                                I. Postconviction Relief

      {¶5} Petitions for postconviction relief are governed by the standards set forth in

R.C. 2953.21, which provides, in pertinent part:

      (A)(1)(a) Any person who has been convicted of a criminal offense * * *
      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) The court shall consider a petition that is timely filed under division
      (A)(2) of this section even if a direct appeal of the judgment is pending.
      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 records of the clerk of the court, and the court reporter’s
      transcript.

      {¶6} A trial court’s decision granting or denying a postconviction petition filed

pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion is
“more than an error of law or of judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980). A reviewing court should not overrule the trial court’s finding on a

petition for postconviction relief that is supported by competent and credible evidence.

Gondor at ¶ 58.

       {¶7} A trial court’s decision to deny a postconviction petition without a hearing is

also reviewed under the abuse of discretion standard. State v. Broom, 8th Dist. No.

96747, 2012-Ohio-587, ¶ 13, citing State v. Abdussatar, 8th Dist. No. 92439,

2009-Ohio-5232, ¶ 15.

       {¶8} The Ohio Supreme Court has held that, pursuant to R.C. 2953.21(C), a trial

court may dismiss a petition for postconviction relief “without holding an evidentiary

hearing where the petition, the supporting affidavits, the documentary evidence, the files,

and the records do not demonstrate that petitioner set forth sufficient operative facts to

establish substantive grounds for relief.”       State v. Calhoun, 86 Ohio St.3d 279,

1999-Ohio-102, 714 N.E.2d 905, at paragraph two of the syllabus. According to the

Ohio Supreme Court, it is “not unreasonable to require the defendant to show in his

petition for postconviction relief that such errors resulted in prejudice before a hearing is

scheduled.” Id. at 283.

       {¶9} R.C. 2953.21(A) requires a petitioner for postconviction relief to allege a

“denial or infringement” of his rights under the Ohio or United States Constitutions. In

the case sub judice, appellant asserted two separate denials or infringements: first, that he

was denied effective assistance of counsel as required by the Sixth Amendment to the
United States Constitution; and second, that he was denied his due process rights to a fair

trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution

due to “prosecutorial misconduct.”

        {¶10} In his petition for postconviction relief, appellant argued that he received

ineffective assistance of counsel based on trial counsel’s failure to: (1) file and litigate a

motion to suppress; (2) interview and present the testimony of his cousin, Carlos

Littlejohn; and (3) secure and present surveillance video evidence at trial from the area

where appellant was arrested. Appellant contends that the testimony of Carlos and the

surveillance video evidence would have rebutted the prosecution’s evidence supporting

his assault convictions by establishing that the police officers were the aggressors in this

matter. Appellant’s prosecutorial misconduct claim stems from his assertion that the

prosecution failed to timely disclose a summary of the oral statements he allegedly made

to police officers at the time of his arrest. In support of the arguments raised in his

petition for postconviction relief, appellant attached affidavits produced by himself, his

cousin Carlos Littlejohn, and his fiancée Mysha Cunningham.2

        {¶11} At the outset, we are compelled to address one of the common doctrinal

hurdles that postconviction relief petitioners must clear: the doctrine of res judicata.

        Under the doctrine of res judicata, a final judgment of conviction bars the
        convicted defendant from raising and litigating in any proceeding, except an

          The attached affidavits at issue contain statements from Carlos Littlejohn that, prior to
        2


appellant’s trial, Carlos Litttlejohn was arrested in an unrelated matter and told by the arresting officer
that he had arrested appellant and “broke [his] hand on [appellant’s] face.” Further, Mysha
Cunningham’s affidavit contends that appellant’s counsel failed to timely investigate appellant’s and
Mysha’s repeated requests that counsel obtain surveillance footage from businesses surrounding the
area where appellant was arrested.
       appeal from that judgment, any defense or 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.
       (Internal quotation marks and citation omitted.)

Abdussatar, 8th Dist. No. 92439, 2009-Ohio-5232, ¶ 13.

       {¶12} A petition for postconviction relief may be denied or dismissed on res

judicata grounds if the trial court “finds that the petitioner could have raised the issues in

the petition at trial or on direct appeal without resorting to evidence beyond the scope of

the record.” (Emphasis added.) Id. at ¶ 16; accord State v. Williams, 8th Dist. No.

85893, 2005-Ohio-6020, ¶ 7.

       {¶13} With these principles in mind, we find that appellant’s prosecutorial

misconduct claim is barred by res judicata. It is apparent that appellant’s prosecutorial

misconduct claim is rooted in actions that occurred during the discovery process.

Records of that process, and the parties’ motions and responses therein, would certainly

be within the scope of the record on direct appeal. Appellant was, therefore, required to

present his prosecutorial misconduct argument on direct appeal and, having failed to do

so, the argument is barred by res judicata.

       {¶14} Similarly, appellant’s ineffective assistance of counsel claim relating to trial

counsel’s alleged failure to litigate a motion to suppress should have been raised on direct

appeal. The facts and circumstances surrounding the purported grounds for a motion to

suppress were in existence at the time Littlejohn I was filed. Accordingly, we dismiss

appellant’s prosecutorial misconduct claim and a portion of his ineffective assistance of

counsel claim pursuant to the doctrine of res judicata.
       {¶15} In contrast, appellant’s remaining claims of ineffective assistance are firmly

based on evidence that was outside the scope of the trial record at the time Littlejohn I

was filed, namely the affidavits of Carlos Littlejohn and Mysha Cunningham. “It is

well-established in Ohio law that where an ineffective assistance of counsel claim cannot

be supported solely on the trial court record, it should not be brought on direct appeal.”

Williams v. Anderson, 460 F.3d 789, 800 (6th Cir.2006), citing, inter alia, State v.

Cooperrider, 4 Ohio St.3d 226, 228-229, 448 N.E.2d 452 (1983); State v. Coleman, 85

Ohio St.3d 129, 134, 1999-Ohio-258, 707 N.E.2d 476.                   Because the information

contained in the affidavits were not part of the record prior to appellant’s petition for

postconviction relief, they were not proper subjects of direct appeal.                  Therefore,

appellant’s remaining claims of ineffective assistance of counsel based on trial counsel’s

failure to interview Carlos Littlejohn and counsel’s failure to secure surveillance video

evidence are not barred by res judicata.3

       {¶16} Nevertheless, we are prevented from examining appellant’s remaining

ineffective assistance of counsel allegations due to his failure to furnish the court with the

transcripts and exhibits from his trial. In Ohio, the appellant has the duty to file the

transcript or such parts of the transcript that are necessary for evaluating the lower court’s


          To establish ineffective assistance of counsel, a defendant must show (1) deficient
       3


performance by counsel, i.e., performance falling below an objective standard of reasonable
representation; and (2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the
proceeding’s result would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus. Pursuant to Strickland, courts need not undertake an
analysis of both prongs: “[i]n particular, a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Strickland at 697; accord Bradley at 143.
decision. App.R. 9(B); State v. Peterson, 8th Dist. No. 96958, 2012-Ohio-87, ¶ 7.

Failure to file the transcript prevents an appellate court from reviewing an appellant’s

assignments of error. State v. Turner, 8th Dist. No. 91695, 2008-Ohio-6648, ¶ 13. In

order to evaluate appellant’s arguments that the testimony of Carlos Littlejohn and

surveillance video evidence would have altered the outcome of the case by discrediting

prosecution witnesses, review of the trial transcripts is a necessity. Lacking the requisite

materials in the record to evaluate the trial court’s analysis pursuant to R.C. 2953.21(C),

we must presume regularity in the proceedings below. State v. Lababidi, 8th Dist. No.

96755, 2012-Ohio-267; State v. Rice, 8th Dist. No. 95100, 2011-Ohio-1929. Because

appellant did not file a transcript of the proceedings below and the accompanying exhibits

that are necessary for our determination of the issue at bar, his argument that the trial

court abused its discretion in denying his petition for postconviction relief without

holding an evidentiary hearing is without merit. See State v. Onunwor, 8th Dist. No.

97895, 2012-Ohio-4818.

       {¶17} We do note, however, that our examination of appellant’s attached

affidavits, without reference to the transcript and exhibits from trial, does not reveal

sufficient operative facts entitling appellant to a postconviction relief hearing.      The

challenges appellant raises in his petition for relief from judgment, and his supporting

affidavits, generally relate to the tactical strategies of trial counsel. As the Ohio Supreme

Court has stated on numerous occasions, “trial strategy and even debatable trial tactics do

not establish ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 101.
       {¶18} Appellant’s first assignment of error is overruled.

              II. Failure to State Findings of Fact and Conclusions of Law

       {¶19} Lastly, as stated by the Supreme Court of Ohio in State v. Calhoun, 86 Ohio

St.3d 279, 1999-Ohio-102, 714 N.E.2d 905:

       A trial court need not discuss every issue raised by appellant or engage in an
       elaborate and lengthy discussion in its findings of fact and conclusions of
       law. The findings need only be sufficiently comprehensive and pertinent to
       the issue to form a basis upon which the evidence supports the conclusion.

Id. at 291-292. After reviewing the record before us, we find the trial court’s findings of

fact and conclusions of law in the instant case to be more than sufficient in meeting this

standard.

       {¶20} Appellant’s second assignment of error is overruled.

       {¶21} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court 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.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA A. BLACKMON, A.J., and
SEAN C. GALLAGHER, J., CONCUR
