[Cite as State v. McClellan, 2018-Ohio-398.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :     Hon. Patricia A. Delaney, J.
                                               :     Hon. Earle E. Wise, Jr., J.
-vs-                                           :
                                               :
LEVANDER V. MCCLELLAN                          :     Case No. 2017CA00188
                                               :
        Defendant-Appellant                    :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No.2016CR0465




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 31, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      LEVANDER V. McCLENNAN, Pro Se
Prosecuting Attorney                                 Richland Correctional Institution
By: KRISTINE W. BEARD                                Inmate No. A684-089
Assistant Prosecuting Attorney                       1001 S. Olivesburg Road
110 Central Plaza South, Suite 510                   Mansfield, OH 44905
Canton, OH 44702
Stark County, Case No. 2017CA00188                                                           2

Wise, Earle, J.

       {¶1}   Defendant-Appellant, Levander V. McClellan appeals the September 20,

2017 judgment of the Stark County Court of Common Pleas denying his motion for post-

conviction relief. Plaintiff-Appellee is the state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

       {¶2}   The case involved a controlled buy of an ounce of cocaine between

appellant and FBI source Cleveland Thomas. On January 29, 2016, Thomas met with

agents, was searched, provided with $1,450 in U.S currency to purchase cocaine from

appellant, and equipped with audio and video recording devices. Thomas went to

appellant’s house twice that day. The first time, the crack was not yet ready. The second

time, Thomas was again prepared by agents, went to appellant's house and purchased

one ounce of cocaine from appellant. Thomas then left and met agents at a designated

debriefing location.

       {¶3}   After Thomas left appellant's house, he met with the FBI agents; the agents

took the cocaine and searched him again. Thomas stated appellant was the man who

sold him cocaine that day.

       {¶4}   The Stark County Crime Lab examined the cocaine Thomas purchased

from appellant and found it to be 27.96 grams of a cocaine mixture.

       {¶5}   On April 5, 2016, appellant was indicted on one count of trafficking in

cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(f), a felony of the first degree. A jury trial

was held on June 28, 2016, and appellant was found guilty as charged. He was

subsequently sentenced to nine years incarceration.
Stark County, Case No. 2017CA00188                                                      3


       {¶6}   Appellant appealed his conviction, raising one assignment of error; that his

conviction was against the manifest weight and sufficiency of the evidence. We affirmed

appellant’s conviction and sentence, and the Supreme Court of Ohio denied review. State

v. McClellan 5th Dist. Stark No. 2016CA00142, 2017-Ohio-4402, appeal not allowed, 150

Ohio St.3d 1454, 2017-Ohio-8136, 83 N.E.3d 939.

       {¶7}   On August 21, 2017, appellant filed a petition for postconviction relief. On

September 20, 2017, the trial court denied the petition. Appellant filed an appeal and the

matter is now before this court for consideration.

                                                 I

       {¶8}   "AT TRIAL APPELLANTS (SIC) SIX AND FOURTEENTH AMENDMENTS

WERE VIOLATED AND OHIO CONST. 1.10. WERE (SIC) TRIAL COURT DIDN'T

REMOVE JUROR NO. 37 FOR CAUSE AND MY ATTORNEY DIDNT (SIC) USE

PEREMPTORY CHALLENGE TO EXCUSE."

                                                II

         {¶9} "AT TRIAL APPELLANTS (SIC) SIX AND FOURTEENTH AMENDMENT

RIGHTS WAS VIOLATED WHEN APPELLANTS (SIC) TRIAL ATTORNY (SIC) FAILED

TO OBJECT AND ASK FOR A RACE NEUTERAL (SIC) REASON                             FOR THE

PROSECUTOR USING HER FIRST PEREMPTORY CHALLENGE FOR EXCUSING

JUROR NO. 28 A AFRICAN AMERICAN FEMALE."

                                                III

       {¶10} "TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO EXAMING (SIC)

THE PROSECUTORS FILES AND FAILING TO PRESENT VIDEO EVIDENCE TO THE

JURY."
Stark County, Case No. 2017CA00188                                                         4


                                                     IV

         {¶11} "SIX AMENDMENT U.S. CONSTITUTION; SECTION 10, ARTICLE 1 OHIO

CONSTITUTION WAS VIOLATED. TRIAL COUNSEL WAS INEFFECTIVE FOR

FAILING TO INVESTIGATE AND DETERMINE A POSSIBLE DEFENSE AND FAILING

TO INTERVIEW WITNESS SARA BURGHY."

                                             I, II

         {¶12} Preliminarily, we note this case is before this court on the accelerated

calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment

on appeal, provides in pertinent part: “The appeal will be determined as provided by

App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the

reason for the court's decision as to each error to be in brief and conclusionary form.”

         {¶13} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983).

         {¶14} This appeal shall be considered in accordance with the aforementioned

rules.

         {¶15} In his first two assignments of error, appellant states jury selection during

his trial was flawed, and thus presumably that the trial court erred in denying his motion

for postconviction relief. Specifically, appellant raises a Batson challenge, and also

argues Juror 37 should have been excused due to prejudices regarding illicit drugs.
Stark County, Case No. 2017CA00188                                                         5


          {¶16}     First, in reviewing a trial court's denial of appellant's petition for

 postconviction relief, absent a showing of abuse of discretion, we will not overrule the

 trial court's finding if it is supported by competent and credible evidence. State v. Bound,

 5th Dist. Guernsey No. 04CA8, 2004-Ohio-7097 ¶ 19.

          {¶17}     Next, appellant’s jury selection arguments are barred under the

 doctrine of res judicata. This information was available to appellant at the time of his

 direct appeal. The doctrine of res judicata is applicable to petitions for postconviction

 relief. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraphs eight and

 nine of the syllabus. The Perry court explained the doctrine at 180-181:



             Under the doctrine of res judicata, a final judgment of conviction bars

             a convicted defendant who was represented by counsel from raising

             and litigating in any proceeding except an appeal from that judgment,

             any defense or any claimed lack of due process that was raised or

             could have been raised by the defendant at trial, which resulted in

             that judgment of conviction, or on an appeal from that judgment.



          {¶18}     Appellant was represented by counsel and could have raised

 his jury selection arguments in his direct appeal. The trial court therefore properly

 rejected appellant’s jury selection arguments. Accordingly, appellant’s first and

 second assignments of error are overruled.
Stark County, Case No. 2017CA00188                                                      6


                                              III, IV

       {¶19} Appellant next appears to argue his motion for postconviction relief

should have been granted because his trial counsel was ineffective. Specifically,

appellant alleges counsel rendered ineffective assistance by failing to call Sara

Burghy to testify. Appellant further alleges that more video of Thomas’ visits to

appellant’s home exist than was shown at trial and that if counsel had shown all

the videos to the jury, the outcome of his trial would have been different.

       {¶20} The standard for ineffective assistance of counsel is set forth in State

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), certiorari denied 497 U.S.

1011, 110 S.Ct. 3258, 111 L.Ed.2d 768. Appellant must establish two criteria. First

that counsel's performance fell below an objective standard of reasonable

representation and second, that prejudice arises from counsel's performance. Id.

142.

       {¶21} In other words, appellant must establish “... but for counsel's

unprofessional errors, the result of the proceedings would have been different.”

Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).

       {¶22} In reviewing appellant’s petition for postconviction relief, we find

appellant’s petition included no evidence de hors the record to support his

allegations of ineffective assistance. The petitioner bears the burden of supporting

his claim with evidentiary quality materials. State v. Massey, Stark App.

No.2001CA00136, 2001-Ohio-1746, *3, citing State v. Jackson (1980), 64 Ohio

St.2d 107, 413 N.E.2d 819. Appellant did not disclose what Burghy’s testimony
Stark County, Case No. 2017CA00188                                                    7


would have been, and included no affidavit from Burghy. Appellant further failed to

disclose what the alleged videos contained or how they would have changed the

outcome of his trial.

       {¶23} Appellant’s third and fourth assignments of error are therefore

overruled.




By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.
