[Cite as State v. Rice,
2021-Ohio-4172.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109712
v. :
DEVAUGHNTE RICE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: November 22, 2021
Cuyahoga County Court of Common Pleas
Case No. CR-19-636068-A
Application for Reopening
Motion No. 548919
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
Mary Catherine Corrigan, for appellant.
EILEEN T. GALLAGHER, J.:
Devaughnte Rice has filed a timely App.R. 26(B) application for
reopening. Rice is attempting to reopen the appellate judgment, rendered in State
v. Rice, 8th Dist. Cuyahoga No. 109712, 2021-Ohio-1882, that affirmed his
conviction and sentence for the offense of having weapons while under disability
(R.C. 2923.13(A)). We decline to reopen Rice’s appeal for the following reasons.
I. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
To establish a claim of ineffective assistance of appellate counsel, Rice
is required to demonstrate that the performance of his appellate counsel was
unreasonable and deficient. Strickland v. Washington, 466 U.S. 688,
104 S.Ct.
2052,
80 L.Ed.2d 674 (1984); State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373
(1989), cert. denied,
497 U.S. 1011,
110 S.Ct. 3258,
111 L.Ed.2d 767 (1990).
Moreover, even if Rice establishes that an error by his appellate
counsel was professionally unreasonable and deficient, Rice must further establish
that he was prejudiced; but for the unreasonable error there exists a reasonable
probability that the results of his appeal would have been different. Reasonable
probability, regarding an application for reopening, is defined as a probability
sufficient to undermine confidence in the outcome of the appeal. State v. May, 8th
Dist. Cuyahoga No. 97354, 2012-Ohio-5504.
II. First Proposed Assignment of Error
Rice’s sole proposed assignment of error is that:
Trial Counsel was ineffective for failing to call co-defendant David
Wagner to the stand, despite his availability, the fact that what he
would testify to was known, and the fact that his testimony would be
directly bearing on whether or not the defendant was complicit in the
crime of having weapons while under disability.
Rice, through his sole proposed assignment of error, argues that
appellate counsel was ineffective by failing to argue on appeal that trial counsel
failed to call a witness to testify at trial. Specifically, Rice argues that trial counsel
was aware of the statement of Rice’s codefendant, made during a pretrial, that “I just
want to tell you he ain’t got nothing to do with any […].”
A. Trial Attorney’s Trial Strategy
In Strickland, supra, the United States Supreme Court held that a
court’s scrutiny of an attorney’s work must be highly deferential. The court further
stated that it is all too tempting for a defendant to second-guess his attorney after
conviction and that it would be too easy for a court to conclude that a specific act or
omission was deficient, especially when examining the matter in hindsight. Thus, a
court must indulge in a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. Strickland.
In addition, the decision about which witnesses to call involve matters
committed to counsel’s professional judgment. State v. Williams, 99 Ohio St.3d
493,
2003-Ohio-4396,
794 N.E.2d 27. See also State v. Jackson, 4th Dist. Lawrence
No. 97CA2,
1997 Ohio App. LEXIS 5433 (Dec. 1, 1997). Generally, decisions to call
witnesses is within the purview of defense counsel’s trial strategy and is not
considered deficient performance absent a showing of prejudice. Stated differently,
counsel’s decision whether to call a witness falls within the rubric of trial strategy
and will not be second-guessed by a reviewing court. State v. Treesh,
90 Ohio St.3d
460,
739 N.E.2d 749 (2001).
Herein, we find that the decision to either call or not call Rice’s co-
defendant as a witness fell squarely within the confines of professional judgment
based upon the mere statement of the codefendant that “I just want to tell you he
ain’t got nothing to do with any […].” Appellate counsel was not ineffective on
appeal by failing to argue that trial counsel was ineffective by failing to call Rice’s co-
defendant as a witness. State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815,
848
N.E.2d 810; State v. Leonard,
104 Ohio St.3d 54,
2004-Ohio-6235,
818 N.E.2d 229;
State v. Henderson, 8th Dist. Cuyahoga No. 106627,
2018-Ohio-3797.
B. Failure to Demonstrate Reasonable Probability of Different Outcome
Also, Rice has failed to demonstrate that the testimony of his co-
defendant would have resulted in a different outcome on appeal. Specifically, that
there exists a reasonable probability that the results of his appeal would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-
5504.
Herein, this court has previously determined that Rice’s conviction
for having a weapon while under disability was supported by sufficient evidence and
was not against the manifest weight of the evidence. Regarding sufficiency, this
court held that:
Viewing this evidence in a light most favorable to the prosecution, we
find a rational trier of fact could have found the essential elements of
the offense proven beyond a reasonable doubt. From the evidence
presented, the court could reasonably conclude that Rice participated
in the crimes at issue and shared criminal intent in light of his actions
before, during, and after the shooting. Because Rice was under a
disability and aided and abetted his codefendants in the commission of
the underlying offenses with a firearm, we find that the state presented
sufficient evidence of constructive possession to support Rice’s
conviction for having a weapon while under disability.
State v. Rice, supra, ¶ 33.
Regarding the issue of manifest weight, this court held that:
Based on the record before this court, we cannot say that in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. As stated, the trial court had the
benefit of reviewing the surveillance footage and was not bound by the
jury’s resolution of Counts 2-9. Having weighed the surveillance
footage and the corroborating testimonial and physical evidence
presented by the state, we find Rice’s conviction for having weapons
while under disability was not against the manifest weight of the
evidence. Collectively, the evidence demonstrated Rice’s disability and
his participation or assistance in the commission of crimes that
involved the use of a firearm.
State v. Rice, supra, ¶ 38.
The statement of Rice’s codefendant, that “I just want to tell you he
ain’t got nothing to do with any […],” does not create a reasonable probability to
undermine confidence in the outcome of the appeal based upon our prior finding
that Rice’s conviction was supported by sufficient evidence and not against the
manifest weight of the evidence.
Accordingly, we find that Rice has failed to establish that appellate
counsel was ineffective on appeal.
Application denied.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR
