[Cite as State v. Keeley, 2014-Ohio-693.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                     WASHINGTON COUNTY


STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :   Case No. 13CA34

        vs.                                           :

DAVID KEELEY,                                         :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                          :

_________________________________________________________________

                                             APPEARANCES:

APPELLANT PRO SE:                           David Keeley, #647623, Belmont Correctional Inst., P.O.
                                            Box 540, St. Clairesville, Ohio 43950

COUNSEL FOR APPELLEE:                       James E. Schneider, Washington County Prosecuting
                                            Attorney, and Alison L. Cauthorn, Washington County
                                            Assistant Prosecuting Attorney, 205 Putnam Street,
                                            Marietta, Ohio 45750

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-21-14
ABELE, P.J.

        {¶ 1} This is an appeal from a Washington County Common Pleas Court judgment that

denied a post-conviction relief petition by David Keeley, petitioner below and appellant herein.

Appellant assigns the following errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT VIOLATED THE PETITIONERS [sic]
                 RIGHTS TO DUE PROCESS OF THE LAW WHEN IT FAILED
                 TO CLEAR WAY THE JURIES [sic] CONFUSION AND PLAIN
                 ERROR FOR FAILING TO CLARIFY THEIR CONFUSION.”
                   SECOND ASSIGNMENT OF ERROR:

                   “THE STATES [sic] USE OF ‘EXPERT’ TESTIMONY
                   PREJUDICED THE APPELLANT AND ADDED TO THE
                   JURIES [sic] CONFUSION. THE USE OF THESE
                   TESTIMONIES CAUSED THE JURY TO LOSE ITS WAY. THE
                   TESTIMONIES WERE NOT VALID AGAINST PROVEN
                   SCIENTIFIC AND PSYCHOLOGICAL METHODOLOGY.
                   PROSECUTORIAL MISCONDUCT AND PLAIN ERROR
                   SHOULD APPLY.”

                   THIRD ASSIGNMENT OF ERROR1:

                   “THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE
                   CONVICTION UNDER THE STANDARDS OF ‘SUFFICIENCY
                   OF EVIDENCE’ AND ‘MANIFEST WEIGHT OF THE
                   EVIDENCE’.”

                   FOURTH ASSIGNMENT OF ERROR:

                   “THE PROSECUTOR’S MISCONDUCT DEMONSTRATED
                   UNPROFESSIONALISM AND VINDICTIVENESS [AND]
                   DENIED THE APPELLANT [sic] RIGHTS TO A FAIR AND
                   IMPARTIAL TRIAL. HIS ACTIONS INSIDE AND OUTSIDE
                   THE COURTROOM DEMONSTRATE THAT THIS HAD
                   BECOME A PERSONAL VENDETTA AGAINST THE
                   APPELLANT AND HIS FAMILY.”

                   FIFTH ASSIGNMENT OF ERROR:

                   “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
                   OF COUNSEL FOR THE REASONS LISTED BELOW WHICH
                   VIOLATED THE APPELLANTS [sic] RIGHTS TO A FAIR
                   AND IMPARTIAL TRIAL AGAINST THE FIFTH, SIXTH AND
                   FOURTEENTH AMENDMENTS OF THE UNITED STATES
                   CONSTITUTION.”

                   SIXTH ASSIGNMENT OF ERROR:



         1
           The statement of assignments of error in appellant’s brief labels this assignment of error as “Argument 2A”.
However, because no provision exists for subdividing assignments of error in the rules of appellate procedure, we re-label this
as “assignment of error number three.” Consequently, we also renumber the remaining assignments of error.
[Cite as State v. Keeley, 2014-Ohio-693.]
                 “THE STATES [sic] USE OF ELECTRONIC SURVEILLANCE
                 VIOLATED THE APPELLANTS [sic] FOURTH AMENDMENT
                 OF THE UNITED STATES CONSTITUTIONAL RIGHTS [sic]
                 AND ALSO VIOLATED TITLE iii STATUTE [sic].”

        {¶ 2} In 2011, a jury found appellant guilty of (1) two counts of rape in violation of

R.C. 2902.02(A)(1)(c)&(B), and (2) three counts of gross sexual imposition in violation of R.C.

2907.05(A)(5)&(B). The trial court sentenced appellant to serve seven years in prison. We

affirmed his conviction. See State v. Keeley, 4th Dist. Washington No. 11CA5, 2012-Ohio-3564

(Keeley I). The Ohio Supreme Court denied further appeal. See State v. Keeley, 134 Ohio St.3d

1508, 2013-Ohio-1123, 984 N.E.2d 1102 (Keeley IA).

        {¶ 3} On December 5, 2011, while his first appeal of right was pending, appellant filed

a petition for postconviction relief with the trial court. Although the court dismissed the petition

on res judicata grounds, we reversed the judgment and remanded the case for further

proceedings. In so doing, a majority of this Court held that res judicata did not bar arguments

from being raised on post-conviction relief if an appeal of right was pending. See State v.

Keeley, 2013-Ohio-474, 989 N.E.2d 80 (4th Dist.) (Keeley II). The Ohio Supreme Court denied

an appeal from that decision. See State v. Keeley, 135 Ohio St.3d 1460, 2013-Ohio-2285, 988

N.E.2d 579 (Keeley IIA).

        {¶ 4} On August 8, 2013, after our reversal and remand of Keeley II, the trial court

entered judgment and found that appellant “failed to show that he is entitled to post conviction

relief.” This appeal followed.

        {¶ 5} At the outset, we note that appellant’s assignments of error have nothing to do

with the trial court’s ruling on his postconviction relief petition. Rather, they are generally

directed to errors allegedly committed during the trial proceedings. Consequently, we consider
WASHINGTON, 13CA34                                                                                       4

together all six assignments of error because (1) all may be disposed of under the doctrine of res

judicata, and (2) appellant does not actually claim that the trial court erred by ruling on his

petition under R.C. 2953.21 et seq.

       {¶ 6} As we noted in Keeley II, a defendant who seeks postconviction relief cannot raise

any issue that he could have raised, but did not, in a first appeal of right. See State v. Szefcyk, 77

Ohio St.3d 93, 96, 671 N.E.2d 233 (1996) at the syllabus. Likewise, an issue raised and

adjudicated in a first of appeal of right cannot be raised again on postconviction relief. State v.

Thompkins, 10th Dist. Franklin No. 12AP–1080, 2013-Ohio-3599, at ¶10; State v. Harper, 5th

Dist. Guernsey No. 12CA22, 2013-Ohio-1781, at ¶39. In the case sub judice, appellant’s brief

appears to litigate, or re-litigate, a number of issues that already have been raised, or should have

been raised, in Keeley I.



       {¶ 7} Appellant’s first argument involves questions the jury raised during deliberation

concerning the victim's guardianship and whether the State had “guidelines for sexual consent

due to mental level.” Appellant argues that the trial court’s failure to “clear away the juries {sic]

confusion” amounts to plain error and violates due process.

       {¶ 8} First, this issue could have been raised in Keeley I, but was not. Consequently,

res judicata now bars the issue from being raised. Second, questions from a jury during

deliberation are routine and generally are not a sign of confusion. Third, the questions the jury

did ask are irrelevant. Fourth, when the trial court declined to answer their questions, defense

counsel was asked if he wanted the court to say anything else on the matter. Counsel answered

in the negative. There is no merit to this issue.
WASHINGTON, 13CA34                                                                                    5

       {¶ 9} Appellant also argues that the trial court erred by allowing several witnesses to

give expert testimony. However, we examined this issue in Keeley I, supra at ¶¶21-25, albeit in

the context of whether the victim’s mother could give expert testimony about her daughter.

Appellant could have also raised questions concerning whether the other two witnesses are

qualified, but he failed to do so. Res judicata bars these issues from being raised again.

Moreover, we find nothing in appellant’s brief to persuade us that this issue would have merit.

       {¶ 10} The next argument is that insufficient evidence supports appellant’s convictions

and that they are against the manifest weight of the evidence. We, however, have previously

ruled against appellant on the latter issue. See Keeley, I, supra at ¶20. Appellant could also

have raised a sufficiency of the evidence argument at the same time, but did not. Appellant is

barred from doing so now by the doctrine of res judicata. Furthermore, even if the issue had

been raised, and even though sufficiency and manifest weight are different questions, we would

nevertheless have ruled against appellant on a sufficiency challenge in view of our recitation of

all of the evidence we reviewed in Keeley I.

       {¶ 11} Appellant also argues that he is the victim of prosecutorial misconduct and

constitutionally ineffective assistance from his trial counsel. We, however, already considered

these issues in Keeley I and ruled against appellant on both. Id. at ¶¶27-31.

       {¶ 12} Finally, appellant claims that the “controlled phone call” to him from the victim’s

mother, while police were listening, violated his constitutional rights. To begin, if appellant

believed this constituted a violation of his rights, he should have raised the issue in a pre-trial

motion to suppress. Nothing in the record indicates that he did. Thus, appellant waived the

issue. This is also an issue that could have been raised, but was not, in Keeley I and is thus
WASHINGTON, 13CA34                                                                                    6

barred by res judicata. Furthermore, this phone call is not – as appellant suggests in his brief– a

“wiretap.” Appellant’s family and the victim’s family were friends, and this would have been

nothing more than a call between those friends, not a “tap” that authorities needed permission

from a court to place. Furthermore, as the State aptly notes in its brief, R.C. 2933.52(B)(3)

permits the interception of a phone call if one party to that call (in this case, the victim’s mother)

has given consent. Thus, this activity did not result from a statutory violation or a Fourth

Amendment violation. See State v. Haynes,11th Dist. Ashtabula No. 2012–A–0032,

2013-Ohio-2401, at ¶46; State v. Hennis, 2nd Dist. Clark No. Civ.A. 2003CA21, 2005-Ohio-51,

at ¶20.

          {¶ 13} For all of these reasons, we find no merit to any argument appellant raised in his

petition for postconviction relief. Thus, we find no error in the trial court’s decision to deny that

petition and we hereby overrule appellant’s assignments of error and affirm the trial court's

judgment.

                                                                       JUDGMENT AFFIRMED.
[Cite as State v. Keeley, 2014-Ohio-693.]
                                            JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and that appellee recover of 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 Washington

County Court of Common Pleas to carry this judgment into execution.

        A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

        McFarland, J. & Hoover, J.: Concur in Judgment & Opinion

                                   For the Court




                                                                  BY:
                                                Peter B. Abele
                                                Presiding Judge




                                            NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
