[Cite as State v. Fox , 2020-Ohio-5375.]

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

STATE OF OHIO Appellee

v. ROBERT FOX Appellant C.A. No. 19CA011591

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 16CR094447

DECISION AND JOURNAL ENTRY Dated: November 23, 2020

TEODOSIO, Judge. {¶1} Defendant-Appellant, Robert Fox, appeals from the judgment of t he Lorain County Court of Common Pleas, denying his petition for p ost-conviction relief. This Court affirms.

I. {¶2} Mr. Fox pleaded guilty to one c ount of aggravated robbery, two counts of robbery, two counts of conspiracy, and tw o counts of having weapons unde r disability. He also pleaded guilty to the firearm and repeat violent specifications linked to each of his aggravated robbery and robbery counts. His plea agreemen t provided for the merger of his firearm specifications and all but two of his convictions. Pursuant to a jointly recommended sentence, he ultimately received a total of six years in priso n and did not pursue a direct appeal

. {¶3} Several months later, Mr. Fox filed a petition for post-convict ion relief, and the court denied his petition without holding a hearing. Mr. Fox t hen mailed a second petition for post-conviction relief directly to the court without filing it. Before the court could respond, Mr.2

Fox appealed the denial of his first petition for post-convicti on relief. This Court dismissed his appeal, however, as it was untimely and stemmed from a non-fina l order. See State v. Fox , 9th Dist. Lorain No. 19CA011525 (Aug. 21, 2019). Because the trial court did not include findings of fact and conclusions of law in its decision, we determined t hat it had yet to issue a final, appealable order. {¶4} Following our dismissal, Mr. Fox moved the trial court to issue findings of fact and conclusions of law with respect to its denial of his first peti tion for post-conviction relief. The court agreed to do so and, on its own initiative, filed Mr. Fox ’s second petition for post-conviction

relief with the clerk. The cour t considered both petitions and determined that neither one warranted a hearing. Upon review, it denied the petitions. {¶5} Mr. Fox now appeals from the trial court’s judgment and raises four assignments of error for our review. To facilitate our analysis, we rearra nge and consolidate several of his assignments of error.

II.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW, WHERE THE COURT FAILED TO OBTAIN A SUFFICIENT AND VALID WAIVER OF ANY CONFLICT OF INTEREST EMANATING FROM THE PROSECUTOR’S REPRESENTATION OF APPELLANT IN 2004. ASSIGNMENT OF ERROR IV THE PLEA, SENTENCE, AND CONVICTION MUST BE REVERSED WHERE THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FAILED TO DISQUALIFY THE PROSECUTING ATTORNEY DUE TO CONFLICT OF INTEREST.3

{¶6} In his third and fourth assignments of error, Mr. Fox argues th at his convictions must be reversed because the trial court failed to disqualify t he prosecutor for a conflict of interest

and failed to ensure that Mr. F ox waived that conflict. Upon r eview, we reject his arguments. {¶7} The trial court rejected Mr. F ox’s claims in support of his pet ition for postconviction relief on se veral grounds, one of which was that the y were barred by res judicata. “When a trial court denies a p etition for post-conviction relie f on the basis of an issue of law, such as the doctrine of res judicata, this Court reviews the matter de novo.” State v. Palmer , 9th Dist. Summit No. 28723, 2018-Ohio-1486, ¶ 19. “A de novo review requ ires an independent review of the trial court’s decision without any deference to [its] deter mination.” State v. Consilio , 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4. {¶8} “[A] defendant cannot raise an issue in a motion for post[-]con viction relief if he or she could have raised the issue on direct appeal.” State v. Reynolds , 79 Ohio St.3d 158, 161 (1997). “To avoid the preclusive effect of res judicata, post-convictio n relief claims must be ‘based on evidence outside of the original record that existed during dir ect appellate proceedings.’” State v. Spaulding , 9th Dist. Summit No. 28526, 2018-Ohio-3663, ¶ 10, quoting State v. Bulls , 9th Dist. Summit No. 27713, 2015-Ohio-5094, ¶ 9. That evidence “must dem onstrate that the claims advanced in the petition could not have been fairly determined on direct appeal based on the original trial court record without resorting to evidence outsi de the record.” State v. Stallings , 9th Dist. Summit No. 19620, 2000 WL 422423, *1 (Apr. 19, 2000). “A petition for post-conviction relief may be properly dismisse d without a hearing on the basis of res judicata.” Spaulding at ¶

10.4

{¶9} Mr. Fox’s first petition for post- conviction relief consisted o f a single page and was not supported by any affidavits, transcripts, or documentary ev idence. Relevant to the discussion herein, he claime d that he was entitled to r elief on the follow ing ground: Prosecutor, [P.G.] was my lawyer in 2004. Having previously re presented me, he should have recused himself. V iolations of ORC 2301.99 and ORC 2701.031. This error alone validates my reque st to modify my sentence. In his second petition for post-c onviction relief, Mr. Fox like wise argued that the prosecutor ought to have recused himself. He cited one case, as well as a Rule of Professional Conduct, and attached an affidavit to his petition. His affidavit contained three pa ragraphs that addressed his claim regarding the prosecutor. Those paragraphs read as follows: 11) Prosecutor [P.G.] was my Attorney on a similar case for Agg ravated Robbery in 2004. 12) At no time did I agree to let my former Attorney Prosecute me on this current case. Records will prove that 100 percent. 13) Ohio Rules of Professional Conduct specifically bars any At torney of record from Prosecuting a former client. Mr. Fox did not append any other evidentiary documentation to h is petition or claim that additional documentation would be necessary to resolve his claim. {¶10} In rejecting Mr. Fox’s argument, the trial court noted that the prosecutor had disclosed on the record that “he had represented [Mr. Fox] in t he past in an unrelated matter” and his “representation had nothing to do with this case.” The cou rt also noted that the prosecutor had offered to recuse himself, but Mr. Fox and his attorney had “bo th consented to the prosecutor’s continued involvement in [the] case.” Because the prosecutor’s conflict and Mr. Fox’s waiver of the same were a matter of record, the trial court reasoned, Mr. Fox could have raised his argument on direct appeal. The court, th erefore, concluded that his cla im was barred under the doctrine of res judicata.5

{¶11} Mr. Fox has not addressed the tr ial court’s conclusion that his claim is barred by res judicata. His assignments of error only address the underl ying merits of his claim, and he has not explained why it would have been impossible for him to rais e those arguments on direct appeal. In fact, in arguing his position, he notes that “he spoke to hi s counsel and the judge about the prosecutor’s past representation and possible conflict during s everal pretrial proceedings, and each time he was ignored and the trial judge never took any action.” Those proceedings were a matter of record and subject to review on direct appeal. As this Cour t previously has recognized, “post[- ]conviction proceedings are not a substitute for direct appeal. ” State v. Herbert , 9th Dist. Summit Nos. 8780, 8781, 1978 WL 215352, *1 (Aug. 30, 1978). {¶12} Mr. Fox has not shown that his post-conviction relief claim wa s “‘based on evidence outside the original record that existed during direct appellate proceedings.’” Spaulding , 2018-Ohio-3663, at ¶ 10, quoting Bulls , 2015-Ohio-5094, at ¶ 9. Because he could have raised the foregoing arguments on direct appeal, the trial court did n ot err when it concluded that they were barred by res judicata. See Reynolds , 79 Ohio St.3d at 161. As such, his third and fourth assignments of error are overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT DENIED APPELLANT DUE PROCESS TO A FAIR AND IMPARTIAL POSTCONVICTION HEARING, WHEN THE TRIAL COURT RELIED UPON ITS OWN PERSONAL KNOWLEDGE, NOT OTHERWISE SUPPORTED BY EVIDENCE IN THE RECORD, REGARDING THE PROCEDDINGS (sic) RELATING TO THE CONFLICT OF INTEREST AND PROSECUTOR RECUSAL. ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED APPELLANT DUE PROCESS RIGHT TO A FAIR POSTCONVICTION REVIEW HEARING WHEN IT FAILED TO REVIEW THE RECORD PRIOR TO DENYING AND DISMISSING POSTCONVICTION PETITION.6

{¶13} In his first and second assignments of error, Mr. Fox argues th e trial court erred when it refused to hold a hearing on his petition for post-conv iction relief. He claims that he was denied the opportunity to prove t he allegations he made in his petition. Further, he claims that the

court failed to conduct a full revi ew of the record and erroneo usly rejected his petition based on

its own recollection of matters d iscussed during the proceeding s. For the following reasons, this Court rejects Mr. Fox’s arguments. {¶14} “[A] criminal defendant seeking to challenge his conviction thr ough a petition for postconviction relief is not autom atically entitled to a hearin g.” State v. Calhoun , 86 Ohio St.3d 279, 282 (1999). Summary dismissa l of a petition for post-conv iction relief may be appropriate in a variety of circumstances. See, e.g., State v. Perry , 10 Ohio St.2d 175 (1967), paragraphs two and three of the syllabus. A p etition may be denied without he aring on the basis of res judicata.

See Spaulding , 2018-Ohio-3663, at ¶ 10. It also may be denied summarily if it “‘does not allege facts which, if proved, would entitle the prisoner to relief[.] ’” In re D.J. , 9th Dist. Summit No. 2020-Ohio-3528, ¶ 8, quoting Perry at paragraph two of the sylla bus. Further, it may be denied summarily if it advances “allegations [that] are negated by the supporting evidence and the record.”

In re D.J. at ¶ 8. “[A] trial court properly denies a defendant’s petiti on for postconviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonst rate that [he] set forth sufficient operative facts to establish substantive grounds for relief.” Calhoun at paragraph two of the syllabus. {¶15} Although Mr. Fox advanced several different claims in his petit ion for postconviction relief, his argument on appeal only concerns one of those grounds. Specifically, it concerns his claim that the prosecutor had a conflict of intere st and that the trial court failed to7

secure his (Mr. Fox’s) waiver concerning the conflict. Because Mr. Fox has limited his argument on appeal to that claim alone, this Court likewise confines its analysis to the trial court’s ruling on

that claim. {¶16} As previously noted, the trial cour t determined that Mr. Fox’s claim was barred by res judicata. While the court ac knowledged that it had not rev iewed the transcripts from each of the hearings that it conducted, it indicated that its “clear re collection” was that the prosecutor had disclosed his prior of represent ation of Mr. Fox on the record and Mr. Fox and his counsel had “acquiesced in the prosecutor handling the matter.” The court noted that Mr. Fox had not pointed to any evidentiary support to the contrary. Because he could h ave raised his argument on direct appeal, the court concluded, it summarily rejected his claim. {¶17} Mr. Fox argues that the court erred when it rejected his claim based on its own personal recollecti on of the proceedings. According to Mr. Fox , the court was obligated to hold a hearing and conduct a review of the entire record. Because the court did not and “conduct[ed] its own investigation of the facts,” Mr. Fox argues, he is entitled to a judgment in his favor. {¶18} The record does not support Mr. Fox’s contention that the trial court improperly conducted its own investigation in this matter. It is well-set tled that a trial court may take judicial notice of its own records in the immediate case before it, “inc luding all prior proceedings in the

case * * *.” State v. Reeves , 9th Dist. Summit No. 8402, 1977 WL 198920, *5 (June 22, 1977) , quoting 29 American Jurispruden ce 2d, Evidence, Section 57, at 89. Because the court presided over Mr. Fox’s pretrial hearings and proceedings, it could rely on its own recollection of those proceedings. Mr. Fox has not show n that the court erred by doi ng so. {¶19} The only item Mr. Fox appended to his petition for post-convict ion relief was his own self-serving affidavit. Tha t affidavit cont ained one blank et statement, indicating that he never8

agreed to let his former attorney prosecute him. Though the af fidavit constituted evidence dehors the record, its inclusion “[did] not automatically prevent appl ication of the doctrine of res judicata

* * *.” In re D.J. , 2020-Ohio-3528, at ¶ 12. It was Mr. Fox’s burden to point to evidence outside the record that showed his claims “‘could not have been fairly determined on direct appeal based on the original trial court record without resorting to evidenc e outside the record.’” State v.

Dovala , 9th Dist. Lorain No. 08CA009455, 2009-Ohio-1420, ¶ 10, quotin g Stallings , 2000 WL 422423, at *1. If Mr. Fox was in fact “ignored” when “he spoke to his counsel and the judge about the prosecutor’s past represent ation and possible conflict duri ng several pretrial proceedings,” that fact would have been evident on the face of the record. Upon r eview, Mr. Fox failed to set forth any argument or evidence tending to show that his claim could n ot have been resolved on direct appeal. See Dovala at ¶ 10, quoting Stallings at *1. Accordingly, we cannot conclude that the

trial court erred when it de nied his petition without holding a hearing. Mr. Fox’s first and second assignments of error are overruled.

III. {¶20} Mr. Fox’s assignments of error ar e overruled. The judgment of the Lorain County

Court of Common Pl eas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27.9

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT

SCHAFER, J. CONCURS. CARR, P. J. CONCURS IN JUDGMENT ONLY.

APPEARANCES: ROBERT FOX, pro se, Appellant. DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assi stant Prosecuting Attorney, for Appellee.