[Cite as State v. Buchman, 2019-Ohio-4276.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                JUDGES:
                                              Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                   Hon. John W. Wise, J.
                                              Hon. Craig R. Baldwin, J.
 -vs-
                                              Case No. 2019CA00109
 DAVID BUCHMAN

        Defendant-Appellant                   O P I N IO N




 CHARACTER OF PROCEEDINGS:                    Appeal from the Stark County Court of
                                              Common Pleas, Case No. 2018-CR-0959


 JUDGMENT:                                    Affirmed

 DATE OF JUDGMENT ENTRY:                      October 15, 2019


 APPEARANCES:


 For Plaintiff-Appellee                       For Defendant-Appellant

 JOHN D. FERRERO                              DAVID BUCHMAN
 STARK COUNTY PROSECUTOR                      Inmate No. 753-726
                                              Richland Correctional Institution
 KATHLEEN O. TATARSKY                         P.O. Box 8107
 Assistant Prosecuting Attorney               Mansfield, Ohio 44901
 Appellate Section
 110 Central Plaza, South – Suite #510
 Canton, Ohio 44702-1413
Stark County, Case No. 2019CA00109                                                                2

Hoffman, P.J.
           {¶1}    Appellant David Buchman appeals the judgment entered by the Stark

County Common Pleas Court dismissing his petition for post-conviction relief. Appellee

is the state of Ohio.

                                           STATEMENT OF THE CASE1

           {¶2}    On June 29, 2018, Appellant was indicted by the Stark County Grand Jury

on one count of possession of cocaine (R.C. 2925.11(A)(C)(4)(e)), and one count of

trafficking in cocaine (R.C. 2925.03(A)(2)(C)(4)(f)). The bill of particulars provided by the

State stated Appellant was found to be in possession of 28.52 grams of cocaine after a

traffic stop in the area of 111 S. Market Street, Minerva, Stark County, Ohio.

           {¶3}    Appellant filed a motion to suppress challenging the constitutionality of the

traffic stop. However, prior to a hearing on the motion, Appellant changed his plea to

guilty. The counts were merged and Appellant was sentenced to four years incarceration

on October 2, 2018.

           {¶4}    On April 15, 2019, Appellant filed a petition for post-conviction relief claiming

his trial counsel was ineffective for failing to challenge the traffic stop and for failing to

challenge venue. He argued while the alleged traffic violation occurred in Stark County,

the stop of his vehicle and attendant discovery of the cocaine occurred in his driveway

which is located in Carroll County. He supported his claim of improper venue with his

own affidavit.




1   A rendition of the facts is unnecessary for the resolution of this appeal.
Stark County, Case No. 2019CA00109                                                       3


      {¶5}   The trial court dismissed Appellant’s petition without an evidentiary hearing.

It is from the June 25, 2019, judgment of the court dismissing his petition Appellant

prosecutes this appeal, assigning as error:



             I.    THE TRIAL COURT ABUSED ITS DISCRETION WHEN

      DENYING THE PETITION FOR POST-CONVICTION RELIEF WITHOUT

      SUBMITTING ITS FINDINGS OF FACTS AND CONCLUSIONS OF LAW.

             II.   THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

      DENIED THE APPELLANT’S PETITION FOR POST-CONVICTION

      RELIEF AS THE MATTERS RAISED IN THE PETITION ARE DE HORS

      THE RECORD AND COULD NOT HAVE BEEN RAISED ON ANY DIRECT

      APPEAL.



                                                I.

      {¶6}   Appellant argues the trial court erred in failing to make findings of fact and

conclusions of law in violation of R.C. 2953.21(H), which provides in pertinent part:



             (H) If the court does not find grounds for granting relief, it shall make

      and file findings of fact and conclusions of law and shall enter judgment

      denying relief on the petition.



      {¶7}   Although the trial court did not make findings of fact and conclusions of law,

the court stated in its judgment entry, “Upon full review, the Court adopts the
Stark County, Case No. 2019CA00109                                                         4


Memorandum, contained in the State of Ohio’s response to Defendant’s petition.”

Judgment Entry, June 25, 2019.

       {¶8}   In a petition for post-conviction relief, “the trial court's adoption of the

findings of fact and conclusions of law submitted by the state does not, by itself, deprive

the petitioner of a meaningful review of his petition for post-conviction relief and does not

constitute error in the absence of demonstrated prejudice.” State v. White, 5th Dist.

Ashland No. 97COA01229, 1998 WL 515944, *11, citing State v. Powell, 90 Ohio App.

3d 260, 629 N.E.2d 13 (1st Dist. Hamilton 1993). Appellant has not demonstrated

prejudice from the trial court’s adoption of the State’s memorandum in this case.

       {¶9}   The first assignment of error is overruled.

                                                 II.

       {¶10} In his second assignment of error, Appellant argues the court erred in

dismissing his petition because he submitted evidence outside the record, specifically his

own affidavit, in support of his claim venue was improper in Stark County because the

stop of his vehicle and discovery of the drugs occurred in his driveway in Carroll County.

       {¶11} Evidence offered de hors the record must be more than evidence which was

in existence and available to the appellant at the time of the trial and which could and

should have been submitted at trial if the appellant wished to make use of it. State v.

Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, ¶ 89. The purpose of post-

conviction proceedings is not to afford one convicted of a crime a second chance to retry

his case. Id. The evidence submitted by Appellant to support his claim his driveway is in

Carroll County was in existence and available to him at the time of trial. We find the
Stark County, Case No. 2019CA00109                                                        5


evidence should have been submitted at trial if Appellant wished to use it, and is not

properly before the court as evidence de hors the record in a post-conviction proceeding.

       {¶12} 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 such judgment, any defense or any claimed lack of

due process which was raised or could have been raised by the defendant at the trial

which resulted in that judgment of conviction, or on direct appeal from the judgment. State

v. Perry, 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the

syllabus (1967). As noted above, evidence of venue was available to Appellant prior to

trial, and could have been raised prior to his plea of guilty. We find his claim of improper

venue is now barred by res judicata.

       {¶13} Finally, Appellant pled guilty to the charges in the instant case. A plea of

guilty waives a claim venue was improper. State v. McCartney, 55 Ohio App.3d 170, 563

N.E.2d 350, 351 (9th Dist. Summit 1988).
Stark County, Case No. 2019CA00109                                             6


      {¶14} The second assignment of error is overruled.

      {¶15} The judgment of the Stark County Common Pleas Court is affirmed.




By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur
