[Cite as State v. Walton, 2018-Ohio-4021.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 106103



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   KAREEM WALTON
                                                       DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-607989-A
                                   Application for Reopening
                                      Motion No. 519983

        RELEASE DATE:               October 1, 2018
[Cite as State v. Walton, 2018-Ohio-4021.]
FOR APPELLANT

Kareem Walton, pro se
Inmate No. A700960
Southern Ohio Correctional Facility
P.O. Box 45699
Lucasville, Ohio 45699


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anthony T. Miranda
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Walton, 2018-Ohio-4021.]
FRANK D. CELEBREZZE, JR., J.:

         {¶1} Applicant, Kareem Walton, pursuant to App.R. 26(B), seeks to reopen his

appeal in State v. Walton, 8th Dist. Cuyahoga No. 106103, 2018-Ohio-1963. He asserts

that appellate counsel was ineffective for failing to raise and argue an assignment of error

regarding the trial court’s decision on Walton’s motion to suppress. After a thorough

review of the arguments and the record, we deny the application.

                                 I. Factual and Procedural History

         {¶2} Walton was driving a vehicle that was occupied by five victims. Walton

crashed the vehicle into a tree, killing three of the passengers.     In the direct appeal,

Walton’s attorney filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Walton filed his own pro se brief pursuant to

Loc.App.R. 16(C).           Walton raised issues surrounding his plea agreement and the

sentence imposed.           This court affirmed his convictions for aggravated vehicular

homicide, aggravated vehicular assault, and driving under the influence of alcohol or

drugs.

         {¶3} Walton timely filed an application for reopening pursuant to App.R. 26(B),

arguing a single proposed assignment of error:

         Appellate counsel was ineffective and his performance felled [sic] below
         professional standards by failing to raise abuse of discretion by the lower
         court when it denied appellant’s motion to suppress.


                                         II. Law and Analysis
                                  A. Application for Reopening

       {¶4} An application for reopening, pursuant to App.R. 26(B), provides a means to

raise an ineffective assistance of appellate counsel claim in a criminal appeal.        The

analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), for ineffective assistance of counsel is the appropriate standard to assess

whether Walton has raised a “genuine issue” as to the ineffectiveness of appellate counsel

in his request to reopen under App.R. 26(B)(5).      See State v. Spivey, 84 Ohio St.3d 24,

25, 701 N.E.2d 696 (1998). To show ineffective assistance, Walton must demonstrate

that his counsel was deficient in failing to raise the issues he now presents and that there

was a reasonable probability of success had the claims been presented on appeal. State

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.

       {¶5} A claim of ineffective assistance of appellate is not available where an

appellant acts pro se in an appeal. State v. Thornton, 8th Dist. Cuyahoga No. 76014,

2000 Ohio App. LEXIS 1037 (Mar. 9, 2000); State v. Westbrook, 4th Dist. Scioto No.

11CA3455, 2012-Ohio-6292. The state argues that because Walton acted pro se in his

direct appeal, his claim of ineffective assistance should be denied because he failed to

raise the issue there.   In Westbrook, the Fourth District held:

       If a petitioner alleges errors that he raised on direct appeal or could have
       raised on direct appeal, then the doctrine of res judicata bars the claim for
       post-conviction relief. State v. Bradley, [4th Dist. Scioto No. 98CA2592,
       1999 Ohio App.LEXIS 1469 (Mar. 30, 1999)]. “[T]he doctrine serves to
       preclude a defendant who has had his day in court from seeking a second on
       that same issue. In so doing, res judicata promotes the principles of
       finality and judicial economy by preventing endless relitigation of an issue
        on which a defendant has already received a full and fair opportunity to be
        heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d
        824, ¶ 18. Because Westbrook had a prior opportunity to litigate the
        claims that he sets forth in his pro se arguments, they are also barred under
        the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d
        104 (1967), paragraph nine of the syllabus.

Id. at  15.

        {¶6} Appellee argues Walton could have raised the current claims in his direct

appeal, and chose not to.      Accordingly, res judicata could bar litigating those claims

here.

        {¶7} However, appellate counsel filed an Anders brief, and Walton was forced to

proceed pro se.     Under these circumstances, it may be inequitable to apply the doctrine

of res judicata.   For instance, the First District addressed claims of ineffective assistance

of appellate counsel in State v. Fain, 188 Ohio App.3d 531, 2010-Ohio-2455, 936 N.E.2d

93 (1st Dist.).    However, in that case, it is not clear whether the appellant filed a pro se

brief, or whether the First District’s procedure allowed for the filing of a pro se brief. In

any event, whether the doctrine of res judicata applies to the present application is not a

necessary determination for this case, as the application fails on the merits.

                              B. Denial of Motion to Suppress

        {¶8} A suppression hearing was held on June 12, 2017. Two expert witnesses

appeared to testify about whether the results of blood tests did or did not show Walton

was impaired at the time of the crash.       Walton argued that the results were incorrect

because severe trauma could release chemicals in the blood that would lead to a false
positive or elevated test results for the presence of alcohol in the bloodstream.   The state

asserted that the attack on the evidence was an attack on the results, and went to their

weight or credibility, not admissibility.

       {¶9} The state’s expert witness, Dr. Christine Schmotzer, opined about the results

of blood tests and whether they accurately captured the amount of alcohol Walton

consumed. Those values ranged from 33 mg/dl to 31 mg/dl in whole blood. The assay

test used by the lab measured a byproduct of an enzymatic reaction.       The test is subject

to a 10 to 15 percent variability.     As a result, she opined that for criminal liability

purposes, the result is reduced by the variance factor and then converted to blood alcohol

content. In this case, that would result in a blood alcohol content of 0.028 mg/dl at the

minimum end. She stated that this is greater than the 0.02 mg/dl legal limited for drivers

between the age of 18 and 21 years old.

       {¶10} Addressing the concerns raised by Walton in his motion to suppress, that

lactic acid and other byproducts of trauma to the body would elevate the results of the test

used by the lab, Dr. Schmotzer testified that the assay she used was less susceptible to this

interaction, but could not quantify the level of interference.   She did indicate that certain

studies demonstrated the generation of chemicals that interfere with the test as a result of

trauma, but others did not. Finally, she opined that, within a reasonable degree of

scientific certainty, the results demonstrate that Walton’s blood alcohol level was above

0.02 mg/dl for whole blood as prohibited by R.C. 4511.19(B).
       {¶11} Walton called his own expert, Dr. Fred Staubus. Dr. Staubus disagreed

with Dr. Schmotzer’s analysis, and opined that Walton’s results were actually under the

legal limit. He further argued that using the testimony of Dr. Schmotzer, the test results

were so close to the legal limit that the results were within the bounds of susceptibility of

interference from trauma.    As a result, he opined the tests could not show beyond a

reasonable doubt that Walton was above the legal limit set forth in R.C. 4511.19(B).

       {¶12} The trial court found that the issues raised in the motion to suppress went to

the weight of the evidence, and denied the motion.       Walton now argues that appellate

counsel should have raised an assignment of error regarding this decision, rather than

filing an Anders brief.

       {¶13} There is no indication that the trial court erred in determining that the

arguments raised were an attack on the credibility of the evidence, not its admissibility.

Both expert witnesses testified that the test used in the hospital laboratory could generally

determine the presence of alcohol in a blood sample, but they disagreed on the meaning

of the results and whether the results indicated, within a reasonable degree of scientific

certainty, what Walton’s blood alcohol content was at the time the sample was analyzed.

This goes to the weight of the evidence. Walton’s expert disagreed with the findings of

the state’s witness and indicated that a further reduction in the result should have been

factored in as a result of chemicals that the body produces during trauma that could

elevate the results.
       {¶14} Again, this goes to the credibility of the evidence and the weight that the

finder of fact should give it. Walton did not demonstrate that the test was sufficiently

unreliable that the results should be excluded.   Therefore, Walton has not demonstrated

a colorable claim of ineffective assistance of appellate counsel.

       {¶15} Application denied.




FRANK D. CELEBREZZE, JR., JUDGE

SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
