[Cite as State v. Reddy, 2011-Ohio-2927.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 95814




                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    JOSEPH REDDY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                 Case No. CR-505854

        BEFORE: Keough, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEY FOR APPELLANT

James E. Valentine
323 Lakeside Avenue
Suite 450
Cleveland, OH 44113

Joseph Reddy, pro se
Inmate No. 562-809
Trumbull Correctional Institution
P.O. Box 901, 5701 Burnett Road
Leavittsburg, OH 44430


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By:   Thorin O. Freeman
      Pinkey S. Carr
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Joseph Reddy (“Reddy”), appeals from the

trial court’s judgment rendered from the resentencing hearing ordered by this

court in State v. Reddy, Cuyahoga App. No. 92924, 2010-Ohio-5759 (“Reddy

II”). For the following reasons, we affirm.
      {¶ 2} In 2007, Reddy was convicted of aggravated murder, which he

appealed to this court challenging his conviction. This court found that the

evidence was insufficient to satisfy the element of “prior calculation and

design” for aggravated murder, but concluded that the lesser offense of

murder was established.          State v. Reddy, Cuyahoga App. No. 92924,

2010-Ohio-3996 (“Reddy I”).      Thus, this court modified Reddy’s conviction

from aggravated murder to murder, vacated his sentence, and remanded for

resentencing. Id. at 80. Reddy also raised as error that his counsel was

ineffective; this court found no error.          Reddy immediately sought

reconsideration of Reddy I.

      {¶ 3} On remand from this court, the trial court entered judgment

reflecting the modification of Reddy’s conviction to murder and sentenced him

on the murder conviction to life in prison, with parole eligibility after 15

years.

      {¶ 4} While the motion for reconsideration was pending with this court,

Reddy appealed Reddy I to the Ohio Supreme Court, raising the following

pertinent propositions of law:

      {¶ 5} “Proposition of Law I:    “When a conviction is not sustained by

sufficient evidence[,] on appeal due process requires that the conviction is

reversed and remanded for a new trial rather than modified to a
lesser-included offense if mitigating circumstances were presented at trial

that could further lesse[n] the charge to an inferior degree offense.

      {¶ 6} “Proposition of Law II:      Appellant was denied his right to

effective assistance of counsel as guaranteed by the Sixth Amendment of the

U[.]S[.] Constitution and Section 10 of the Ohio Constitution.”

      {¶ 7} After he filed his notice of appeal with the Ohio Supreme Court,

Reddy filed this appeal of the trial court’s judgment upon remand.

      {¶ 8} In November 2010, this court granted Reddy’s application for

reconsideration and issued a new opinion on the original appeal. Reddy II.

This court made the same finding it made in Reddy I, i.e., that Reddy should

have been convicted of murder, not aggravated murder, and modified his

conviction accordingly. However, this court also elaborated on Reddy’s pro se

assignments of error that challenged his conviction on aggravated murder.

In one assignment of error, Reddy argued that the trial court “abused its

discretion in refusing to consider [a] lesser degree of homicide * * *.” In

finding no merit to the argument, this court stated:

      {¶ 9} “Reddy   argues that the evidence presented at trial was

insufficient to demonstrate that he acted with prior calculation and design

and that lesser included offenses should have been considered by the trial

court. We agree, and having sustained a similar argument in Reddy’s first

assignment of error, we modified the judgment accordingly. Although Reddy
argues specifically that the trial court committed reversible error by failing to

consider convicting him of voluntary manslaughter, we have already found

that the evidence in the record, while insufficient for aggravated murder, was

sufficient to convict Reddy of murder. We presume that in reaching a verdict,

the trial court considered all lesser and included offenses as well as inferior

degree offenses, unless the record shows otherwise. Reddy’s seventh

assignment of error is overruled.” Reddy II at 78.

      {¶ 10} After this court issued its opinion in Reddy II, Reddy filed a

motion to withdraw his appeal regarding Reddy I that was pending in the

Ohio Supreme Court.       Reddy then filed another appeal with the Ohio

Supreme Court, this time appealing this court’s decision in Reddy II. Reddy

raised the following pertinent propositions of law:

      {¶ 11} “Proposition of Law No. I:     When a conviction is not sustained by

sufficient evidence[,] on appeal due process requires that the conviction is

remanded if mitigating circumstances are present that could further lesser

the charge to an inferior degree offense.

      {¶ 12} “Proposition of Law No. III:    The defendant was denied his right

to effective assistance of counsel as guaranteed by the Sixth Amendment of

the U[.]S[.] Constitution and Section 10 Article 1 of the Ohio Constitution [* *

*].
      {¶ 13} “Proposition of Law No. VI:   The trial court abused its discretion

by refusing to consider [a] lesser degree of homicide in violation of the

defendant’s right to due process as guaranteed by the Fifth and Fourteenth

Amendments of the U[.]S[.] Constitution and Ohio Constitution.”

      {¶ 14} In January 2011, the Ohio Supreme Court issued a journal entry

declining to hear Reddy’s first appeal and denied his motion to withdraw his

appeal as moot.

      {¶ 15} In March 2011, the Ohio Supreme Court issued a journal entry

declining to consider his second appeal.

      {¶ 16} Also in March 2011, Reddy sought to reopen his original appeal in

Appeal No. 92924 from which Reddy I and II were decided, claiming that his

appellate counsel was ineffective for failing to argue that “because the

evidence was insufficient for aggravated murder, the case should have been

remanded for a new trial so that the lesser included offense of voluntary

manslaughter may have been considered.” State v. Reddy, Cuyahoga App.

No. 92924, 2011-Ohio-2144, 1. (“Reddy III”). In denying his application,

this court concluded that res judicata barred Reddy’s application for

reopening because he had filed a pro se brief in the original appeal wherein

he raised this argument, the court considered it, and overruled it. Id. at 6.

      {¶ 17} In this appeal, Reddy has once again raised the issues that have

been previously raised and considered. Reddy presents one assignment of
error through counsel and raises three additional assignments of error in his

pro se supplemental brief. Those assigned errors are as follows:

       {¶ 18} “I.     Appellant’s due process rights were violated when a

conviction which was not supported by sufficient evidence was modified to a

lesser-included offense rather than being reversed and remanded for a new

trial where mitigating circumstances were presented at trial that could result

in a conviction of an inferior degree offense.1

       {¶ 19} “II.    The Appellant received ineffective assistance of counsel

when counsel failed to present expert psychiatric testimony regarding the

appellant’s mental state and/or perception of danger based on the diagnosis of

post-traumatic stress disorder stemming from physical childhood abuse in

support     of      affirmative     defenses      of    self-defense      and/or     voluntary

manslaughter.

       {¶ 20} “III.    Trial counsel was ineffective under the standard United

States v. Cronic when counsel was absent during a critical stage of trial for

the four months leading to trial.”

       {¶ 21} The assignments of error raised are barred by res judicata.                    The

doctrine of res judicata bars further litigation in a criminal case of issues that

were raised previously or could have been raised previously in a direct appeal.


       This assignment of error was raised by both Reddy’s appellate counsel and by Reddy, pro se.
       1


 To avoid confusion, we will consider them as one assignment of error.
State v. Leek (June 21, 2000), Cuyahoga App. No. 74338, citing State v. Perry

(1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus.

      {¶ 22} We find that the issues raised in the appellate and supplemental

briefs have previously been considered or could have been considered by this

court in Reddy I, II, and III.      Moreover, the Ohio Supreme Court has

declined to accept both of Reddy’s appeals, wherein he raised as propositions

of law those issues raised as assignments of error in this appeal.

      {¶ 23} Since we have addressed or could have addressed these issues

and the Ohio Supreme Court has refused to review this court’s decisions, our

disposition of them remains the “law of the case,” and Reddy’s assignments of

error and supplemental assignments of error are barred by the doctrine of res

judicata. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d

824, 18. Therefore, the errors assigned are overruled.

      {¶ 24} Finally, Reddy presents no argument that the trial court erred in

resentencing him, and since the record reflects that upon remand, the trial

court complied with this court’s order in Reddy II and duly imposed a

sentence on Reddy’s conviction in his presence, his sentence is affirmed

pursuant to App.R. 12(B).

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR
