[Cite as State v. Keahey, 2014-Ohio-4971.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-13-055
Appellee Trial Court No. 2011-CR-275
v.
Demetreus A. Keahey DECISION AND JUDGMENT
Appellant Decided: November 7, 2014
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Mary Ann Barylski, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorneys, for appellee.
Demetreus A. Keahey, pro se.
*****
OSOWIK, J.
{¶ 1} This is an accelerated appeal from a judgment of the Erie County Court of
Common Pleas in which the trial court denied a petition for post-conviction relief filed by
appellant, Demetrius Keahey. The relevant facts leading to this appeal are as follows.
{¶ 2} Appellant and Kindra McGill are the parents of a daughter, K.K. Kindra is
also the former girlfriend of Prince Hampton, who is the father of her two boys, P.H. and
D.H. An incident arose at the home of Kindra and appellant on May 7, 2011, during
which Prince pulled a knife and stabbed appellant in the back. Neither Kindra nor
appellant named Prince as the person who stabbed appellant, and no one was charged
with a crime in that instance.
{¶ 3} On the morning of June 20, 2011, appellant drove to 2015 Aspen Run Road
in Sandusky, Ohio, the home of Kindra’s mother, Joyce McGill, with the stated intent of
picking up K.K. and Kindra so he could take them to the doctor’s office for K.K.’s
scheduled appointment. Appellant arrived early, parked his vehicle on the street in front
of the house, and walked inside. After a brief conversation with Joyce appellant went
back outside, where he saw a vehicle, driven by Prince, pulling into the driveway. The
car also contained three minor children, P.H, D.H. and A.C.
{¶ 4} When Prince exited the vehicle, appellant drew a gun and fired several shots
at Prince. One bullet hit Prince in the arm, and another went through his pants pocket,
hitting Prince in the leg and shredding a roll of paper money that was in his pocket. After
appellant began firing at him, Prince ran down the street, and appellant got into his car
and drove away. Prince collapsed several blocks from McGill’s house. Neighbors called
911, medical assistance was dispatched to the scene, and Prince was taken to the hospital.
{¶ 5} Police arrived on the scene, where they discovered that one bullet had gone
through the door of Prince’s vehicle, and another one had gone through the outside wall
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and into the living room of McGill’s neighbor, Brunell Hendrickson. Still another bullet
was found under Prince’s vehicle, and several more were later found on the ground in the
surrounding area. In addition, a pair of flip-flop sandals and a closed pocket knife were
found on the driveway near Prince’s vehicle. On July 25, 2011, an Erie County Grand
Jury indicted appellant on one count of drug possession (in an unrelated case), one count
of felonious assault and one count of attempted murder on Prince Hampton, three
separate counts of felonious assault on P.H, D.H. and A.C., one count of having a weapon
while under disability, and one count of improperly discharging a firearm at or into a
habitation or school safety zone.
{¶ 6} A jury trial was held on September 4-7 and 10, 2012. Trial testimony was
presented on behalf of the state by Joyce and Kindra McGill, Brunell Hendrickson,
Jeremy Pruitt, Robert and Evelyn Brown, Eric Jensen, and various members of the
Sandusky Police Department. Prince was unavailable to testify at trial.
{¶ 7} Joyce testified that she did not see Prince with a knife or a gun on June 20,
2011, but she did see appellant take out a gun and start shooting. Later, Joyce told police
that appellant walked down the driveway to the sidewalk after Prince ran away.
{¶ 8} Kindra testified that she heard it was Prince who stabbed appellant in May
2011, and she stated that Prince and appellant were angry at each other because Prince’s
then-girlfriend was stirring up trouble. Kindra also testified that appellant was supposed
to meet her and her children at the doctor’s office on June 20, 2011, however, he came to
her mother’s home instead. Kindra further stated that she did not witness the shooting
3.
however, after hearing shots fired, she went outside and removed the children from the
car. She did not recall seeing a knife or a hole in the car door. Kindra stated that she
never saw appellant on June 20. She recalled seeing Prince with a knife and a gun on
past occasions, but she denied knowing whether he habitually carries a weapon. On
redirect, Kindra testified that she knew appellant was not allowed to have a gun.
{¶ 9} Brunell Hendrickson testified that she was in her kitchen at approximately
8:55 a.m., when she heard six gunshots coming from nearby Aspen Run Road. She
immediately called 911 to report the shooting. Brunell stated she then heard screaming, a
car accelerating, and two more gunshots, the last of which came through the wall of her
house and landed in her living room. Brunell said that she saw “a black man running
down across the lots of the houses directly in front of [her]” before she heard the last
shots.
{¶ 10} Jeremy Pruitt, Joyce’s next door neighbor, testified that he heard three
“pops” between 8:30 and 9:30 a.m. on June 20, 2011. As he picked up the phone to call
911, he saw appellant walking down the street “to get into a vehicle.” He also stated that
another man was running down the street, and that he saw pieces of money on the ground
at the end of his own driveway. On cross-examination, Pruitt testified that he did not see
a knife. He said he could not see whether the man who was running had a weapon.
{¶ 11} Robert Brown, a resident of South Oldgate Road, testified that on June 20,
2011, a man ran up to his house, bleeding, stating that he had been shot and asking for
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assistance. While Brown and a neighbor, William Myers, tried to get the man to lie
down, he heard someone yell “nigger, you’re dead.” Brown said there was a “big bullet
hole” in the man’s arm, but he did not see a wound in the man’s leg. He could not
identify appellant as the driver of the car. Evelyn Brown, Robert’s wife, testified that she
heard shots on June 20, 2011, and saw a man running down the street. She then heard
more shots, followed by someone driving past her home at a high rate of speed.
{¶ 12} Eric Jensen, Joyce’s neighbor, testified that he saw a “black guy in a white
T-shirt” being chased by “another black guy with * * * a hoodie on” who appeared to
raise his arm and shoot at the man in the white shirt. Jensen said that, shortly after
hearing the shot, he saw a car “take off.” On cross-examination, Jensen testified that he
did not see Prince holding a knife.
{¶ 13} Members of the Sandusky Police Department who testified at trial were
Lieutenants Richard Braun and Danny Lewis, Detectives Ken Nixon and Gary Wichman,
Officer Christopher Denny, and Assistant Chief John Orzech. Also testifying were Todd
Wharton and Scott Desloover.
{¶ 14} Braun testified that he was dispatched to Aspen Run Road on June 20,
2011. However, before he got to that address, he saw a gunshot victim on the ground on
Laurel Lane near South Oldgate, with a wound on his left arm and leg. Braun identified
the victim as Prince. Braun said that he found shell casings on the ground around Joyce’s
home, and saw a bullet hole in the door of a car parked in the driveway. He also
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observed sandals and a knife on the ground near the car, a place in the yard where “the
dirt was kicked up,” and a blood trail leading away from the driveway toward the injured
man on Laurel Lane.
{¶ 15} On cross-examination, Braun testified that he spoke to a witness, William
Myers, who said he heard Prince and appellant yelling at each other. When the state
objected to Braun’s statement as hearsay, the defense indicated that Myers, although
present, would not be asked to testify because he is a “loose-canon.” The trial court
limited Braun’s testimony to saying that he spoke to Myers, who reported hearing “a
number” of shots. On redirect, Braun testified that the knife appeared to be closed in
pictures taken at the scene.
{¶ 16} Following Braun’s testimony, a conversation occurred between defense
counsel, the prosecution and the trial court concerning appellant’s claim of self-defense.
The trial court warned defense counsel to research the issue thoroughly because, in order
to assert self-defense, appellant had to admit shooting Prince and, in addition, appellant
must present sufficient evidence to support self-defense to get the instruction. Testimony
then resumed.
{¶ 17} Nixon testified that Prince had bullet wounds in his left arm and left thigh.
He stated that Prince had $1,265 in his pocket, and that some of the bills were “shredded”
by a bullet.
6.
{¶ 18} Denny testified that he interviewed Jensen and Prewitt, who each said they
heard three shots and then saw a black male in a hoodie chasing another black male who
was wearing a white T-shirt.
{¶ 19} Wichman testified that there was “bad blood” between appellant and
Prince, who stabbed appellant in May 2011. Wichman also testified that he interviewed
Brunell Hendrickson and then went to Joyce McGill’s house, where he saw blood on the
back of a nearby car, “confetti” on the driveway, and a closed pocket knife on the
driveway. Wichman testified that, in his opinion, appellant had a “retreat zone” that
would have allowed him to get into his car without following Prince down the street.
Wichman also testified no guns were ever found.
{¶ 20} Lewis briefly testified that he arrested appellant on an unrelated drug
offense on October 7, 2001, which resulted in a felony conviction. Wharton, a forensic
scientist in the Firearms and Toolmark Section of the Ohio Bureau of Criminal
Identification and Investigation (“BCI”), testified that the weapon which fired at least
five rounds at Prince was a semi-automatic, 9mm handgun. He further testified that it is
possible all the bullets fired at Prince were from the same gun, however, the four
remaining casings were too damaged to be certain. On cross-examination, Wharton
testified that it was impossible to identify the shooter from looking at the bullets.
{¶ 21} Orzech testified that he was a Sandusky Police detective on June 20, 2011,
when he responded to a call at the home of Brunell Hendricks. He stated that the bullet
taken from Brunell’s home and a fragment found in Joyce’s driveway were both 9mm
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Luger caliber, and both were fired from a barrel that had five lands and five grooves and
a right-hand twist. Orzech stated that he found a pair of gloves, a pair of sandals and a
closed knife in Joyce’s driveway. He also stated that a groove in the lawn could have
been caused by a cartridge that skipped through the grass. He identified confetti-like
pieces of money in the grass as coming from the roll of bills that was in Prince’s pocket.
{¶ 22} On cross-examination, Orzech testified that the bullet hole in Prince’s
vehicle was angled such that the shot would have come from the rear of the vehicle.
Orzech disputed the defense’s argument that more than one gun could have been used,
based on the fact that all the casings could have come from the same firearm. He also
testified that police searched the entire neighborhood but did not find a gun. Orzech
stated that police could not establish that the knife on Joyce’s driveway was involved in
the incident.
{¶ 23} At the close of Orzech’s testimony, the state rested. Defense counsel made
a motion for acquittal pursuant to Crim.R. 29, which was denied. Thereafter, the trial
court and appellant engaged in an exchange in which the trial court again warned
appellant that he would be required to admit to shooting Prince in order to establish a
claim of self-defense. The trial court also told appellant that he had the burden of
presenting sufficient evidence to warrant a self-defense instruction.
{¶ 24} Appellant testified on his own behalf at trial. He said that Prince stabbed
him in May 2011 after the two men argued about how appellant treated Prince’s children.
Appellant said that he moved out of the apartment he shared with Kindra after the
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stabbing, because he “feared for his life.” As to the events of June 20, 2011, appellant
testified that he initially said he would meet Kindra and K.K. at the doctor’s office.
However, he changed his mind and went to Joyce’s house because he did not want
Kindra driving a car so soon after she had surgery, and because he wanted them to go “as
a family.” Appellant said that he arrived before 9 a.m. and went inside, however, he left
the house when Joyce started to “pick on him” for not taking off his shoes. As he was
walking toward his car, Prince drove the vehicle into the driveway “real fast,” causing
appellant to back up against the house. When Prince hopped out of the car “with a
knife,” appellant “pulled out the gun” and fired at Prince. Appellant said that when he
headed toward his car, he heard a shot. When he turned around, he saw Prince holding a
gun. Appellant responded by firing several rounds at Prince as Prince ran away.
Appellant said that he got into his car and drove off after Prince ran away.
{¶ 25} Appellant said that, as he drove off, he heard Prince say: “nigga, you dead.”
Appellant testified that he fled to Erie, Pennsylvania after the shooting, and did not return
until three months later when he turned himself into Sandusky Police.
{¶ 26} On cross-examination, appellant testified that he is prohibited from
possessing a firearm due to a prior drug conviction. Appellant also stated that he did not
name Prince as the person who stabbed him in May 2011 because he was afraid he would
be killed in retaliation. Appellant said he did not get into his car and leave when he first
saw Prince at Joyce’s house because Prince was driving fast, and he was scared. He said
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he “got rid of” the gun on his way back to Sandusky from Pennsylvania, because the
police in Sandusky considered him “armed and dangerous” and he did not want to be
“shot on sight.”
{¶ 27} Appellant further testified that he could not run to his car before Prince ran
away because he would have been shot in the back. He said he did not stop shooting,
even though there were children in the car, because he was trying to protect himself. He
admitted bringing a firearm to Joyce’s house, even though he is not permitted to carry a
weapon. Appellant stated that Prince initiated the altercation by jumping out of the car
and coming toward him with a knife. Appellant also stated that it was Prince, not
appellant, who said “you’re dead nigga.” Appellant agreed with the prosecutor’s
statement that “Prince pulls a knife, you pulled the gun, and you shot.”
{¶ 28} At the close of appellant’s testimony, the defense rested. The state
presented no rebuttal evidence. The trial court and the parties then discussed proposed
jury instructions, during which defense counsel renewed his request for an instruction on
self-defense. In addition, defense counsel asked for an instruction as to necessity in
regard to the charge of having a weapon while under disability. After hearing arguments
from the defense and the prosecution, the trial court denied the requests for self-defense
and necessity instructions, to which the defense objected. Thereafter, closing arguments
were presented by the state and the defense, after which jury instructions were given and
the jury retired to deliberate. On September 10, 2012, the jury found appellant guilty of
one count of felonious assault and one count of attempted murder of Prince, one count of
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having a weapon while under disability, and one count of improperly discharging a
firearm at or into a habitation or school safety zone. Not-guilty verdicts were returned as
to felonious assault on P.H., D.J. and A.C. The remaining charge of drug possession was
later dismissed. On October 4, 2012, the trial court sentenced appellant to serve a total of
23 years in prison.
{¶ 29} Appellant filed a direct appeal in this court on October 29, 2012. However,
on December 4, 2012, we dismissed the appeal, after finding that the trial court’s
judgment did not constitute a final, appealable order. The trial court issued a nunc pro
tunc judgment on December 17, 2012. On March 5, 2013, appellant filed a motion for
delayed appeal, which this court granted on March 27, 2013. On October 24, 2014, we
affirmed the trial court’s judgment. State v. Keahey, 6th Dist. Erie No. E-13-009, 2014-
Ohio-4729.
{¶ 30} In the meantime, on July 5, 2013, appellant filed a petition for post-
conviction relief (“PCR”). In his petition, appellant asserted a claim of ineffective
assistance of trial counsel due to counsel’s alleged failure to (1) properly research the
case, interview and subpoena key trial witnesses, (2) raise the issue of a conflict of
interest that allegedly existed between appellant and the trial judge, and (3) enlist
appellant’s aid in preparing a strategy that included appellant’s presence at the jury view
of the crime scene. Appellant supported his claims with copies of ballistics reports
prepared by the Bureau of Criminal Identification and Investigation and several police
reports. The state filed a response in opposition and appellant filed a reply. The trial
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court denied appellant’s PCR petition on September 11, 2013, without holding a hearing.
Appellant filed a notice of appeal in this case on September 30, 2013, in which he raises
the following assignment of error:
The trial court committed error when they [sic] abused there [sic]
discretion by denying defendant-appellant’s post-conviction petition, in
violation of the defendant-appellant’s due process rights under the 6th and
14th Amend. [sic] to the United States Const. [sic] and Art. 1, Sec. 10, of
the Ohio Const. [sic]
{¶ 31} In support of his sole assignment of error, appellant makes two general
arguments. First, appellant argues that he was deprived of a fair trial because his
appointed counsel failed to adequately prepare for trial. As a result, counsel failed to: (1)
effectively cross-examine those witnesses who testified, (2) issue a subpoena to ensure
that Prince would appear and testify against him, (3) call William Myers as a witness,
even though Myers was present in court on the first day of the trial, (4) test evidence for
DNA and secure an expert to testify on his behalf, and (5) attend the jury view to “point
out critical facts to the jurors that supported his affirmative defense of self-defense.
Second, appellant argues that a conflict of interest exists between himself and the trial
judge, which resulted in appellant receiving a prison sentence that exceeded the
recommendation of the prosecutor.
12.
Standards of Review
{¶ 32} It is well-settled in Ohio that a post-conviction relief petition “will be
granted only where the denial or infringement of constitutional rights is so substantial as
to render the judgment void or voidable.” State v. Shuster, 5th Dist. Morgan No. 14 AP
0003, 2014-Ohio-4144, ¶ 14, citing State v. Jackson, 5th Dist. Delaware Nos. 04CA-A-
11-078, 04CA-A-079, 2005-Ohio-5173, ¶ 13. Accordingly, a petition for post-conviction
relief may be granted only if the defendant can demonstrate “a violation of constitutional
dimension that occurred at the time that the defendant was tried and convicted.” Id.,
citing State v. Powell, 90 Ohio App.3d 260, 264, 629 N.E.2d 13 (1st Dist.1993).
{¶ 33} The trial court’s decision to grant or deny a petition for post-conviction
relief will not be overturned on appeal absent a finding of abuse of discretion. State v.
Ward, 6th Dist. Ottawa No. OT-13-001, 2014-Ohio-426, ¶ 17. An abuse of discretion
connotes more than a mere error of law or judgment, instead requiring a finding 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). Further, “[i]n the interest of
providing finality to judgments of conviction, courts construe the post-conviction relief
allowed under [the statute] narrowly.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 47, citing State v. Steffen, 70 Ohio St.3d 399, 639 N.E.2d 67
(1994). In addition, in reviewing the trial court’s ruling on a post-conviction petition, we
will give deference to the trial court’s findings of fact. Id. With these standards in mind,
we will address each of appellant’s arguments.
13.
Ineffectiveness of Trial Counsel
{¶ 34} The general standard of review for evaluating claims of ineffective
assistance of counsel was set forth by the Supreme Court of Ohio in State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus, as
follows:
2. Counsel’s performance will not be deemed ineffective unless and
until counsel’s performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises from
counsel’s performance. ( State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623
(1976); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80L.Ed.2d
674 (1984), followed.)
3. To show that a defendant has been prejudiced by counsel’s
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the
trial would have been different.
Further, this court has recognized that:
there is ‘a strong presumption that counsel’s conduct falls within the
wide range of professional assistance * * *.’ Bradley, supra, at 142, 538
N.E.2d 373, quoting Strickland, supra, at 689. In this regard, ‘the
defendant must overcome the presumption that, under the circumstances,
the challenged action “might be considered sound trial strategy.”‘
14.
Strickland, supra, at 689, quoting Michael v. Louisiana, 350 U.S. 91, 101,
76 S.Ct. 158, 100 L.Ed. 83 (1955). Ohio presumes a licensed attorney is
competent. Vaughn v. Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965).
State v. Jackson, 6th Dist. Erie No. E-01-024, 2002-Ohio-2359, ¶ 35.
{¶ 35} Appellant argues that his defense counsel was ineffective for failing to
properly investigate the issue of which witnesses to call at trial. Specifically, appellant
claims that counsel should have called Prince and William Myers as defense witnesses.
{¶ 36} “[C]omplaints of uncalled witnesses are not favored, because the
presentation of testimonial evidence is a matter of trial strategy and because allegations
of what a witness would have testified are largely speculative.” State v. Philips, 5th Dist.
Stark No. 2010 CA 00338, 2011-Ohio-6569, ¶ 26, quoting Buckelew v. United States,
575 F.2d 515, 521 (5th Cir.1978). Generally, trial counsel is entitled to a strong
presumption that decisions regarding investigation and the calling of trial witnesses “fall
within the wide range of reasonable professional assistance.” Shuster, 5th Dist. Morgan
No. 14 AP 0003, 2014-Ohio-4144, at ¶ 20, citing State v. Sallie, 81 Ohio St.3d 573, 675,
693 N.E.2d 267 (1998). The decision of whether or not to call a particular defense
witness “falls within the rubric of trial strategy and will not be second-guessed by a
reviewing court.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 980 N.E.2d 263,
¶ 222, quoting State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001).
{¶ 37} The record shows that defense counsel conducted an in-depth cross-
examination of each of the witnesses named by appellant with the exception of Prince
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and Myers, who did not testify at trial. As to those two individuals, appellant’s assertion
that Prince would have admitted owning the knife on Joyce’s driveway and carrying a
gun on June 20, 2011, is self-serving and speculative at best. Defense counsel’s decision
not to call Myers to testify for the defense was addressed during the trial, when defense
counsel told the court he would not be calling Myers to the stand because he is a “loose
cannon.”
{¶ 38} Upon consideration of the foregoing, we agree with the trial court that
defense counsel adequately demonstrated “his knowledge/investigation of the facts of the
case” during the course of the trial. Appellant’s arguments to the contrary are without
merit.
{¶ 39} Appellant further claims that counsel was ineffective because he did not
insist on testing the knife for Prince’s DNA. Appellant argues that the presence of
Prince’s DNA on the knife would have bolstered his claim that Prince threatened him
with a weapon.
{¶ 40} Testimony was presented at trial that Prince attacked appellant with a knife
in May 2011. Although no witness saw Prince holding a knife on June 20, 2011,
testimony was presented that Prince owns and has been known to carry a knife.
However, even if Prince’s DNA were detected on knife through testing, such evidence
would do nothing to show that Prince actually threatened appellant with that particular
weapon. Accordingly, appellant was not unduly prejudiced by defense counsel’s
decision not to insist that DNA tests be performed on the knife.
16.
{¶ 41} Appellant also claims that defense counsel was ineffective for not
presenting expert testimony to show that four of the nine bullets recovered from the crime
scene could have been fired by a gun other than his own. Appellant argues that his
expert’s testimony, along with Myers’ testimony, would have supported his claim that
Prince fired a gun and he responded by firing at Prince in self-defense.
{¶ 42} Appellant’s claim of failure to secure expert ballistics testimony was not
raised in appellant’s petition for post-conviction relief, and the right to assert it in this
appeal, has been waived. See State v. Barb, 8th Dist. Cuyahoga No. 94054, 2010-Ohio-
5239, ¶ 25 (Citations omitted.) Nevertheless, since the ultimate question is whether
appellant was prejudiced by counsel’s alleged ineffectiveness, we will analyze the issue
further.
{¶ 43} It is well-settled that “‘[t]he failure to call an expert and instead rely on
cross-examination does not constitute ineffective assistance of counsel.’” State v. Jones,
9th Dist. Summit No. 26226, 2012–Ohio–2744, ¶ 18, quoting State v. Nicholas, 66 Ohio
St.3d 431, 436, 613 N.E.2d 225 (1993). In this case, the record shows that defense
counsel cross-examined the state’s witnesses on the issue of whether four of the nine
recovered bullets could have been fired from a second gun. Appellant’s claim that an
expert would have been able to definitively state that bullets were recovered from two
different guns is purely speculative. Accordingly, upon consideration, we cannot say that
appellant was unduly prejudiced by defense counsel’s failure to obtain expert ballistics
testimony in this case.
17.
{¶ 44} As to appellant’s claim that counsel was ineffective for failing to attend the
jury view to “point out critical facts to the jury” to support appellant’s contention that he
did not have a means of safely retreating, which is a critical element of the affirmative
defense of self-defense. We disagree, for the following reasons.
{¶ 45} R.C. 2945.16 states:
When it is proper for the jurors to have a view of the place at which
a material fact occurred, the trial court may order them to be conducted in a
body, under the charge of the sheriff or other officer, to such place, which
shall be shown to them by a person designated by the court. While the
jurors are absent on such view no person other than such officer and such
person so appointed, shall speak to them on any subject connected with the
trial. The accused has the right to attend such view by the jury, but may
waive this right.
{¶ 46} The record shows that, after reviewing the prosecution’s plans for the jury
view, defense counsel submitted written “points of interest” of his own for the jury to
consider, including the location of Prince’s vehicle on Joyce’s driveway, and placement
of the knife and sandals in relation to the vehicle. Counsel said he did not plan on
attending because he submitted issues for the jury’s consideration and he had viewed the
“area numerous times” in the past. Defense counsel further stated that, after discussing
the issue with appellant, appellant did not “really feel the need” to attend the jury view.
18.
{¶ 47} “[I]t is well-settled law in Ohio that a petitioner may not raise issues in a
petition for post-conviction relief which could have been raised on direct appeal.” State
.v Harrison, 8th Dist. No. 79434, 2002 WL 450130, *2 (Mar. 14, 2002). Issues that can
be raised on appeal include claims that a defendant received ineffective assistance of
counsel due to his absence during the jury view. See State v. Stivender, 2d Dist.
Montgomery No. 19094, 2002-Ohio-6864. Accordingly, this issue is barred by the
doctrine of res judicata. Harrison, supra.
{¶ 48} However, even if appellant’s claim is not barred, post-conviction relief is
available only for errors that are based on evidence that is outside the trial court’s record.
State v. Turner, 8th Dist. Cuyahoga No. 91695, 2008-Ohio-6648, ¶ 8. Appellant has
failed to present any evidence to to show that he has suffered prejudice by his and
counsel’s absence from the jury view, other than to opine that defense counsel could have
educated the jury as to his “retreat theory” if he attended the jury view. Stivender, supra,
at ¶ 11. Accordingly appellant has not demonstrated that his trial counsel was ineffective
for not attending, or insisting that appellant attend the jury view.
Conflict of Interest
{¶ 49} In his second argument, appellant claims that his defense counsel was
ineffective for not attempting to disqualify the trial court judge. Specifically, appellant
alleges that he received a 23-year sentence in this case, which was in excess of the state’s
recommendation, because the trial judge is biased against him. In support, appellant
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argues that the trial judge, who was formerly an assistant prosecutor assigned to the Erie
Count Drug Task Force, helped to secure appellant’s prior drug conviction.
{¶ 50} It is well-settled that the issue of bias on the part of a judge should be
raised at the earliest opportunity or the issue is waived. State v. Scharsch, 2d Dist.
Champaign No. 2013-CA-38, 2014-ohio-1756, ¶ 9, citing In re Disqualification of
Pepple, 47 Ohio St.3d 606, 607, 546 N.E.2d 1298 (1989). The record in this case does
not show that appellant filed a motion to disqualify the trial judge prior to or during the
trial. In addition, appellant did not raise this issue in his direct appeal. Also, in the
judgment entry on appeal in this case, the trial judge states that, while he was a
prosecutor for the Erie County Drug Task Force at the time of appellant’s drug
conviction, he does not remember appellant from that case, and he has both prosecuted
and adjudicated thousands of cases since that time.
{¶ 51} A review of the record does not show bias on the part of the trial judge, and
appellant does not offer any evidence from outside the record to demonstrate such bias.
As to the length of appellant’s sentence, the trial court is free to impose any lawful
sentence, even if it is longer than that recommended by the prosecutor. State v. Toney,
7th Dist. Mahoning No. 10 MA 20, 2011-Ohio-2464, ¶ 9. Accordingly, appellant has not
established that his appointed trial counsel was ineffective for not filing a request to
disqualify the trial judge.
{¶ 52} On consideration of the foregoing, we find that appellant has failed to
establish that he received ineffective assistance of appointed counsel, or that his
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constitutional rights were otherwise substantially impaired so as to render his conviction
void or voidable. Accordingly, we find that the trial court did not abuse its discretion by
denying appellant’s petition for post-conviction relief, and appellant’s sole assignment of
error is not well-taken.
{¶ 53} The judgment of the Erie County Court of Common Pleas is hereby
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
21.
State v. Keahey
Combined Opinion