[Cite as State v. McClain, 2011-Ohio-5923.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



THE STATE OF OHIO,                               JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Appellee,                                Hon. Sheila G. Farmer, J.
                                                 Hon. Patricia A. Delaney, J.
v.

DOUGLAS MCCLAIN,                                 Case No. 10CA0048

        Appellant.                               OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Court of Common
                                                 Pleas, Case No. 09CR97



JUDGMENT:                                        Affirmed




DATE OF JUDGMENT:                                November 14, 2011




APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

DANIEL G. PADDEN                                 ANTHONY KOUKOUTAS
139 West Eighth Street                           116 Cleveland Avenue, NW
P.O. Box 640                                     Suite 808
Cambridge, OH 43725                              Canton, OH 44702
Guernsey County, Case No. 10CA0048                                                     2

Farmer, J.

       {¶ 1} On July 8, 2009, the Guernsey County Grand Jury indicted appellant,

Douglas McClain, on one count of murder with a firearm specification in violation of R.C.

2930.02 and 2941.145.          Said charge arose from the shooting death of appellant's

girlfriend, Candace O'Neill.

       {¶ 2} A jury trial commenced on January 26, 2010. The jury found appellant

guilty as charged. By judgment entry filed February 16, 2010, the trial court sentenced

appellant to an aggregate term of eighteen years to life.

       {¶ 3} On September 28, 2010, appellant filed a petition for postconviction relief.

By findings of fact, conclusions of law, and judgment entry filed November 30, 2010, the

trial court denied the petition.

       {¶ 4} On March 30, 2011, this court issued an opinion affirming appellant's

conviction. See, State v. McClain, Guernsey App. No. 10-CA-10, 2011-Ohio-1623.

       {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶ 6} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S

PETITION FOR POST CONVICTION RELIEF."

                                              I

       {¶ 7} Appellant claims the trial court erred in denying his petition for

postconviction relief. We disagree.
Guernsey County, Case No. 10CA0048                                                         3


       {¶ 8} The standard of review on the denial of a postconviction relief petition is

set forth by our brethren from the Eighth District in State v. Hines, Cuyahoga App. No.

89848, 2008-Ohio-1927, ¶8:

       {¶ 9} " 'A postconviction proceeding is not an appeal of a criminal conviction,

but, rather, a collateral civil attack on the judgment.' State v. Steffen (1994), 70 Ohio

St.3d 399, 410, 1994-Ohio-11.        In postconviction cases, a trial court acts as a

gatekeeper, determining whether a defendant will even receive a hearing. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679. In State v. Calhoun, 86 Ohio St.3d 279,

1999-Ohio-102, the Ohio Supreme Court held that the trial court's gatekeeping function

in the postconviction relief process is entitled to deference, including the court's decision

regarding the sufficiency of the facts set forth by the petitioner and the credibility of the

affidavits submitted. Accordingly, we review appellant's postconviction claims brought

pursuant to R.C. 2953.21 under an abuse-of-discretion standard. Id. An abuse of

discretion is more than a mere error in judgment, it implies that a court's ruling is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219."

       {¶ 10} Appellant cites to four issues that entitles him to postconviction relief: his

trial counsel 1) was deficient in not permitting him to testify in his own defense to the

self-defense claim, 2) failed to challenge a juror for cause, 3) erred in presenting a

diagram of his house that was inaccurate, and 4) failed to hire an expert witness on the

trajectory of the bullet.

       {¶ 11} Because appellant's arguments are based upon ineffective assistance of

counsel, we will use the following standard set out in State v. Bradley (1989), 42 Ohio
Guernsey County, Case No. 10CA0048                                                         4


St.3d 136, paragraphs two and three of the syllabus, certiorari denied (1990), 497 U.S.

1011. Appellant must establish the following:

       {¶ 12} "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 [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d

623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674, followed.)

       {¶ 13} "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."

       {¶ 14} Appellant argues his trial counsel was deficient in not calling him as a

witness to substantiate his claim of self-defense. The trial court found three witnesses

testified to appellant claiming he shot Ms. O'Neill in self-defense, and the jurors were

instructed on the affirmative defense. See, Finding of Fact No. 4 filed November 30,

2010. The trial court concluded trial counsel's decision not to call appellant as a witness

did not rise to the level of deficiency, but constituted trial strategy. See, Conclusion of

Law No. 2 filed November 30, 2010. We note in his September 24, 2010 affidavit at ¶5,

appellant confirmed it was trial strategy: "My two attorney's disagreed about whether I

should testify. Eventually Mr. LaRue relented to Mr. Lonardo's wishes and advised me

not to testify."

       {¶ 15} A difference of opinion between attorneys and/or a client and attorney

does not automatically rise to the level of deficiency or demonstrate a manifest injustice.
Guernsey County, Case No. 10CA0048                                                       5


Three witnesses, Paramedic Gerald Schaffer, Sergeant Jason May, and acquaintance

Mark Breece, testified that appellant told them he had been shot by Ms. O'Neill first and

he then shot her in self-defense. T. at 262-263, 512, 580, 939-941. Trial counsel

argued self-defense, and the jury was instructed on such. T. at 1024, 1031, 1039,

1054-1055

       {¶ 16} In addition, Thomas Snyder, Jr. testified that appellant admitted to him that

he staged his own shooting after shooting Ms. O'Neill. T. at 771-772. Detective Sam

Williams confirmed that Mr. Snyder, Jr., together with his father, Thomas Snyder, Sr.,

came in and told him this information. T. at 881. To put appellant on the stand in the

face of these admissions and subject him to cross-examination would have been

problematic at best. We fail to find any deficiency in trial counsel's decision not to have

appellant testify.

       {¶ 17} Appellant argues his trial counsel was deficient in not challenging for

cause Clinton Born as a juror. This issue should have been presented on direct appeal

and therefore is res judicata.    Res judicata is defined as "[a] valid, final judgment

rendered upon the merits bars all subsequent actions based upon any claim arising out

of the transaction or occurrence that was the subject matter of the previous action."

Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus. We further note

Mr. Born was peremptory challenged by defense counsel. T. at 163.

       {¶ 18} Appellant argues the diagram of his home presented by defense counsel

was inaccurate (Defendant's Exhibit. 3). Appellant's mother opined as to its inaccuracy.

See, Nancy McClain's September 27, 2010 Affidavit at ¶7.            The trial court found

appellant's proffered exhibit and defense counsel's diagram were substantially similar.
Guernsey County, Case No. 10CA0048                                                          6


See, Finding of Fact No. 9 filed November 30, 2010. The diagram is specifically marked

"NOT TO SCALE." In addition, photographs of the scene were admitted into evidence.

T. at 919-920. We concur with the trial court's analysis that the exhibits are similar.

Given the direct evidence of the photographs and the testimony of the deputies as to

the scene, no evidence of the diagram's inaccuracy was presented to rise to the level of

manifest injustice.

       {¶ 19} Lastly, appellant argues his trial counsel failed to obtain an expert to testify

to the trajectory of the bullet. The only testimony as to the bullet's trajectory came from

the deputy coroner, Dr. Charles Lee:

       {¶ 20} "Q. The wound to the back was 16 and a quarter inches from the top of

the head, and the wound to the front is 17 inches to the top of t he head?

       {¶ 21} "A. Right.

       {¶ 22} "Q. Okay. What significance does that have, Doctor?

       {¶ 23} "A. Well, it just shows the pathway that the bullet passed through the

body. It's going – as it entered, it entered as a higher portion or position, and it traveled

through the body and went slightly downward as it went through the body.

       {¶ 24} "***

       {¶ 25} "Q. Doctor, based upon your examination of Ms. O'Neill, your training, and

your experience, and based on a reasonable degree of medical certainty, do you have

an opinion as to the wound on the back of Candace O'Neill, whether or not that was an

entry wound or an exit wound by the bullet?

       {¶ 26} "A. Yes. I have no doubt that the back wound is the entry wound of the

bullet, and then the chest wound is the exit wound.
Guernsey County, Case No. 10CA0048                                                          7


          {¶ 27} "***

          {¶ 28} "Q. Say a person had elevated themself up to a point and then fired, would

that be consistent?

          {¶ 29} "A. Well, had the person – the person had to be high enough – if she is

upright, then the person had to have been high enough so that the trajectory is

downward." T. at 357-358, 366-367, and 396, respectively.

          {¶ 30} Appellant's surgeon, Dr. Clark Leslie, opined appellant's wound could

have been self-inflicted. T. at 453-456. Defense counsel discredited the opinion on

cross-examination. T at 461-463.

          {¶ 31} We find no proof that the testimony of an expert would have altered the

opinions of the coroner or Dr. Leslie.

          {¶ 32} Based upon our independent review of the evidence on the claimed

errors, we find the trial court did not err in denying appellant's petition for postconviction

relief.

          {¶ 33} The sole assignment of error is denied.

          {¶ 34} The judgment of the Court of Common Pleas of Guernsey County, Ohio is

hereby affirmed.

                                                                               By Farmer, J.
Gwin, P.J. and Delaney, J. concur.


                                               _s/ Sheila G. Farmer______________

                                               _s/ W. Scott Gwin________________

                                               _s/ Patricia A. Delaney____________

                                                              JUDGES
[Cite as State v. McClain, 2011-Ohio-5923.]


                 IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



THE STATE OF OHIO                             :
                                              :
        Appellee                              :
                                              :
v.                                            :        JUDGMENT ENTRY
                                              :
DOUGLAS MCCLAIN,                              :
                                              :
        Appellant.                            :        CASE NO. 10CA0048




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Guernsey County, Ohio is affirmed. Costs

to appellant.




                                              _s/ Sheila G. Farmer______________



                                              _s/ W. Scott Gwin________________



                                              _s/ Patricia A. Delaney____________

                                                           JUDGES
