Smith v. State

LUMPKIN, Judge,

concurring in results.

I concur in the Court’s decision to affirm the denial of post-conviction relief. However, it is not necessary to address on the merits the claim of ineffective assistance of trial counsel. This issue was raised and addressed by this Court on direct appeal. Consideration of the issue on post-conviction is therefore barred by res judicata. Further, *932no new or additional evidence concerning a possible conflict of interest by trial counsel has been presented warranting a collateral attack. See Berget v. State, 907 P.2d 1078 (OH.Cr.1995); Strong v. State, 902 P.2d 1101 (OM.Cr.1995) (claims of ineffective trial counsel are to be raised on direct appeal, not through a collateral attack, or such claims are waived. Only if the claim is supported by evidence outside of, and therefore not contained within, the record, can the claim be properly raised collaterally. If the claim can be substantiated by a review of the appellate record, it must be raised on direct appeal or it is waived).