[Cite as State v. DeVaughns, 2020-Ohio-2850.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellant                         :   Appellate Case No. 28370
                                                     :
 v.                                                  :   Trial Court Case No. 2006-CR-843
                                                     :
 CHRISTOPHER A. DEVAUGHNS                            :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellee                          :
                                                     :

                                                ...........

                                                OPINION

                             Rendered on the 8th day of May, 2020.

                                                ...........

MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

CHRISTOPHER A. DEVAUGHNS, #A525-249, London Correctional Institution, P.O. Box
69, London, Ohio 43140
      Defendant-Appellant, Pro Se

                                            .............

DONOVAN, J.
                                                                                        -2-


       {¶ 1} Defendant-appellant Christopher A. DeVaughns appeals pro se from an

order of the Montgomery County Court of Common Pleas, which overruled his motion for

leave to file a motion for new trial pursuant to Crim.R. 33(A)(6). DeVaughns filed a timely

notice of appeal on April 30, 2019.

       {¶ 2} We set forth the history of this case in State v. DeVaughns, 110 N.E.3d 922,

2018-Ohio-1421 (2d Dist.) (“DeVaughns VI”), and repeat it herein in pertinent part:

              In 2006, DeVaughns was tried before a jury and found guilty of

       felonious assault in violation of R.C. 2903.11(A)(1) and kidnapping in

       violation of R.C. 2905.01(A)(3). The charges stemmed from allegations

       that DeVaughns had beaten the mother of his child, * * * causing her life-

       threatening injuries, and confined [her] against her will.    After the jury

       rendered its verdict, the trial court sentenced DeVaughns to eight years in

       prison for the felonious assault and ten years in prison for the kidnapping.

       The trial court ordered the sentences to be served consecutively to each

       other and consecutively to a sentence imposed in another case.

              DeVaughns subsequently appealed from his conviction and

       sentence. On appeal, we rejected the manifest weight and allied offense

       claims raised by DeVaughns in his appeal, but held that the trial court erred

       in failing to afford DeVaughns an opportunity to speak on his own behalf at

       sentencing. Accordingly, we reversed the trial court’s sentencing decision

       and remanded the matter for resentencing. State v. DeVaughns, 2d Dist.

       Montgomery No. 21654, 2007-Ohio-3455 (“DeVaughns I”).

              On remand, the trial court gave DeVaughns the opportunity to
                                                                                -3-


address the court personally at his resentencing hearing.          Following

DeVaughns’ remarks, the trial court imposed the same sentence that it had

imposed at the original sentencing hearing.          DeVaughns thereafter

appealed from the sentence imposed by the trial court on remand, which

we affirmed. State v. DeVaughns, 2d Dist. Montgomery No. 22349, 2008-

Ohio-4010 (“DeVaughns II”).

      In August 2009, DeVaughns filed a pro se motion for new trial based

on newly discovered evidence. The alleged new evidence consisted of

attendance sheets from a daycare center and a letter from a daycare

employee, both of which purportedly demonstrated that DeVaughns had

picked up his daughter during the time it was alleged that he kidnapped [the

victim]. The trial court denied DeVaughns’ motions without a hearing. On

appeal, we held that the record “clearly reveals that this evidence was not

new in relation to the issues of fact that were tried. The substance of [the

employee’s] letter was admitted into evidence at Defendant’s trial as a

stipulation.” Accordingly, we affirmed the denial of DeVaughns’ motion for

a new trial. State v. DeVaughns, 2d Dist. Montgomery No. 23720, 2011-

Ohio-125 (“DeVaughns III”).

      In 2011, DeVaughns filed several other pro se motions, including, but

not limited to, a “Motion for Correction [of] Trial Transcript” and a “Motion

for Unavoidably Prevented Crim.R. 33(B),” which the trial court construed

as a Crim.R. 33 motion for new trial. The trial court overruled both motions

and DeVaughns separately appealed those decisions.           We dismissed
                                                                                -4-


DeVaughns’ appeal from the trial court’s decision overruling the motion to

correct the trial transcript on grounds that the issue of an incomplete trial

transcript could have been raised in the pending appeal from his Crim.R. 33

motion for new trial. Decision and Final Judgment Entry (Sept. 12, 2011),

2d Dist. Montgomery App. Case No. 24700.

       In the appeal from the trial court’s decision overruling DeVaughns’

Crim.R. 33 motion for new trial, we found that all but one of DeVaughns’

assignments of error were either barred by res judicata or were not properly

before this court. The single assignment of error we reviewed claimed that

DeVaughns’ trial counsel was ineffective in failing to present exculpatory

evidence related to his purported alibi. We, however, affirmed the trial

court’s decision overruling DeVaughns’ motion for new trial on grounds that

the motion was untimely and that DeVaughns was not unavoidably

prevented from discovering the evidence on which his ineffective assistance

claim was based. State v. DeVaughns, 2d Dist. Montgomery No. 24631,

2012-Ohio-5791 (“DeVaughns IV”).

       In April 2015, DeVaughns filed a petition for post-conviction relief

pursuant to R.C. 2953.21 and R.C. 2953.23, along with several other

motions to supplement his petition.     The petition and motions included

claims of ineffective assistance of counsel and prosecutorial misconduct.

Specifically, DeVaughns argued that his trial counsel failed to properly

object to the admissibility of certain blood evidence and that the prosecutor

offered into evidence and discussed during closing argument inadmissible
                                                                                     -5-


blood evidence. The trial court denied DeVaughns’ petition on grounds

that it was untimely and that his allegations “do not address complaints

outside the record that could not be attacked on direct appeal.” On June

30, 2015, DeVaughns appealed that ruling, but then voluntarily dismissed

the appeal. Decision and Final Judgment Entry (Feb. 19, 2016), 2d Dist.

Montgomery App. Case No. 26745.

       On February 18, 2016, DeVaughns filed another petition for post-

conviction relief, wherein he asked the trial court to set aside his conviction.

Specifically, DeVaughns argued that there was evidence of blood on

various items in his apartment, but the record did not identify the identity of

the person whose blood was found, as no DNA testing had been requested

on the blood samples. DeVaughns further indicated that certain testimony

about the blood was “indiscernible” in the trial transcript and that the “identity

and/or identities of the State’s (DNA) evidence used to convict [him]” was

outside the trial court’s record and unavailable. DeVaughns also claimed

that the failure to identify the source of the blood deprived him of his right to

confront witnesses, that his trial counsel was ineffective in failing to

challenge the blood evidence, and that these circumstances warranted a

new trial.

       Approximately three weeks later, on March 7, 2016, DeVaughns filed

a “motion” under R.C. 2953.21 and R.C. 2953.23, arguing that the State

had failed to respond to his petition for post-conviction relief, and therefore,

had conceded the facts in his petition. In response, the State filed an
                                                                                  -6-


opposing memorandum arguing that the claims in DeVaughns’ petition were

untimely and barred by the doctrine of res judicata. The trial court agreed

with the State. Therefore, on March 30, 2016, the trial court issued a

decision overruling DeVaughns’ petition for post-conviction relief on the

basis of res judicata.      Not satisfied with the trial court’s decision,

DeVaughns once again appealed to this court.

       On appeal, we found that DeVaughns’ petition was successive and

untimely, and that he failed to establish that he was unavoidably prevented

from discovering the facts upon which his claim was based. Specifically,

we found that DeVaughns knew, from being present at his trial, that the

blood evidence was offered at trial and that it was not DNA tested. We also

found that DeVaughns was aware of his trial counsel’s statements to the

trial court concerning the admissibility of the blood evidence, and therefore,

he could have raised his counsel’s alleged ineffectiveness in his direct

appeal. Accordingly, we affirmed the judgment of the trial court overruling

DeVaughns’ petition for post-conviction relief. State v. DeVaughns, 2017-

Ohio-475, 84 N.E.3d 332 (2d Dist.) (“DeVaughns V”).

       Two days before our decision was released in DeVaughns V, on

February 8, 2017, DeVaughns filed yet another pro se Crim.R. 33 motion

for new trial. The motion raised the same argument that was raised in his

prior petition for post-conviction relief; namely, that the State’s purported

failure to identify the source of the blood evidence used at trial deprived him

of his right to confront his accusers.        The State filed an opposing
                                                                                       -7-


      memorandum in response arguing that DeVaughns’ claim was barred by

      res judicata.     DeVaughns thereafter filed a reply to the State’s

      memorandum, followed by two additional pro se motions filed on June 21,

      2017, and July 5, 2017, which requested the trial court to allow him to

      depose the source of the blood evidence and to “exculpate testimony”

      regarding the blood evidence.

             On August 15, 2017, the trial court issued a decision overruling all

      three of DeVaughns’ pending motions. In doing so, the trial court analyzed

      the motions under Crim.R. 33 and found that they were untimely and not

      filed on the basis of newly discovered evidence.        The trial court also

      determined that the motions were barred by the doctrine of res judicata.

DeVaughns VI at ¶ 2-13.

      {¶ 3} DeVaughns appealed, and we affirmed the trial court’s order in an opinion

issued on April 13, 2018. DeVaughns VI. Specifically, we held that the trial court did not

abuse its discretion in overruling DeVaughns’ Crim.R. 33 motion for new trial, as the

motion was untimely, he failed to provide clear and convincing proof that he was

unavoidably prevented from timely filing the motion, and the blood evidence issue was

barred by res judicata. Additionally, we found that DeVaughns’ challenge to our decision

in one of his prior appeals was not properly before us. Rather, we held that DeVaughns’

recourse had been to seek reconsideration pursuant to App.R. 26(A), or to seek relief in

the Ohio Supreme Court.

      {¶ 4} Thereafter, on November 5, 2018, DeVaughns filed a motion in the trial court

for leave to file a motion for new trial pursuant to Crim.R. 33(A)(6), in which he alleged
                                                                                        -8-


that the identity of the individual whose blood was used as evidence at trial had been

discovered. In support of his motion, DeVaughns attached portions of documents from

mandamus actions1 that he had filed against the trial court and the prosecutor’s office.

We note that in his motion, DeVaughns failed to provide any facts regarding how he was

unavoidably prevented from discovering the individual’s identity, assuming his allegation

had merit. On November 16, 2018, DeVaughns filed a memorandum captioned “In

Pursuant to Criminal Rule 33(A)(6) Affidavit of the (Post-Trial Discovered Witness),”

wherein he asserted that the blood evidence used at trial existed before the conduct that

served as the basis for his convictions.

       {¶ 5} On January 7, 2019, the trial court denied DeVaughns’ motion for leave to

file a motion for new trial. Specifically, the trial court held that more than 120 days had

passed since DeVaughns had allegedly discovered his “new evidence.” Entry Denying

Motion for Leave, p. 2. The trial court further found that DeVaughns’ statements were

mere allegations and that the documents he attached to his motion did not provide any

support for his argument. Finally, the trial court held that DeVaughns did not present any

new evidence that reasonable diligence would not have produced at trial.

       {¶ 6} It is from this decision that DeVaughns now appeals.

       {¶ 7} Because they are interrelated, we will discuss DeVaughns’ first four

assignments of error together:

              UNAVOIDABLY PREVENTED FROM DISCOVERY OF HIS NEW


1
  DeVaughns filed petitions for writs of mandamus against the trial court and against the
prosecutor in his case, both of which we dismissed on September 26, 2018. See State
ex rel. DeVaughns v. Singer, 2d Dist. Montgomery No. 27925, and State ex rel.
DeVaughns v. Dodd, 2d Dist. Montgomery No. 27934. DeVaughns’ motions for
reconsideration of these dismissals were denied on October 29, 2018.
                                                                                     -9-


      EVIDENCE WITHIN 120 DAYS AFTER THE VERDICT WAS RENDERED

      IN HIS TRIAL REPRESENTS A QUESTION OF FACT.                     THE TRIAL

      COURT “CANNOT” MAKE A FINDING OF FACT ON THE ISSUE

      WITHOUT HOLDING A HEARING.

             THE COURT MAY “NOT” CONSIDER THE MERITS OF A MOTION

      FOR NEW TRIAL UNLESS IT MAKES A FINDING OF “UNAVOIDABLY

      PREVENTED.”

             [A] DEFENDANT IS ENTITLED TO A HEARING ON HIS MOTION

      FOR LEAVE OF COURT IF [HE] SUBMITS DOCUMENTS THAT ON

      THEIR FACE SUPPORT HIS CLAIM THAT HE WAS “UNAVOIDABLY

      PREVENTED.”

             A DEFENDANT ON MOTION FOR LEAVE OF COURT TO FILE A

      NEW TRIAL MOTION IS “ONLY” REQUESTED TO ESTABLISH BY

      CLEAR     AND      CONVINCING        EVIDENCE       HE    OR    SHE   WAS

      “UNAVOIDABLY PREVENTED” FROM DISCOVERY OF THE EVIDENCE

      HE OR SHE RELIES UPON WITHIN THE 120 DAY PERIOD AFTER

      RETURN OF THE TRIAL VERDICT.

      {¶ 8} In the foregoing assignments, DeVaughns contends that the trial court erred

when it denied his motion for leave to file a motion for new trial pursuant to Crim.R.

33(A)(6).

      {¶ 9} Crim.R. 33 provides in relevant part as follows:

      (A) A new trial may be granted on motion of the defendant for any of the

      following causes affecting materially his substantial rights:
                                                                                    -10-


***

(6) When new evidence material to the defense is discovered which the

defendant could not with reasonable diligence have discovered and

produced at the trial. When a motion for a new trial is made upon the ground

of newly discovered evidence, the defendant must produce at the hearing

on the motion, in support thereof, the affidavits of the witnesses by whom

such evidence is expected to be given, and if time is required by the

defendant to procure such affidavits, the court may postpone the hearing of

the motion for such length of time as is reasonable under all the

circumstances of the case. The prosecuting attorney may produce affidavits

or other evidence to impeach the affidavits of such witnesses.

***

(B) Motions for new trial on account of newly discovered evidence shall be

filed within one hundred twenty days after the day upon which the verdict

was rendered, or the decision of the court where trial by jury has been

waived. If it is made to appear by clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence

upon which he must rely, such motion shall be filed within seven days from

an order of the court finding that he was unavoidably prevented from

discovering the evidence within the one hundred twenty day period.

{¶ 10} As this Court has previously noted:

       * * * To seek a new trial based on new evidence more than 120

days after the verdict, a petitioner “must first file a motion for leave, showing
                                                                                          -11-


       by ‘clear and convincing proof that he has been unavoidably prevented from

       filing a motion in a timely fashion.” ‘ * * *     “ ‘[A] party is unavoidably

       prevented from filing a motion for new trial if the party had no knowledge of

       the existence of the ground supporting the motion for new trial and could

       not have learned of the existence of that ground within the time prescribed

       for filing the motion for new trial in the exercise of reasonable diligence.’ ”

       [State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183,

       ¶ 16], quoting State v. Walden (1984), 19 Ohio App.3d 141, 145-146, 483

       N.E.2d 859.

State v. Wilson, 2d Dist. Montgomery No. 23247, 2009-Ohio-7035, ¶ 8.

       {¶ 11} Regarding a hearing on a motion for leave to file a motion for a new trial,

this Court has further noted:

              * * * We have held that a defendant is entitled to such a hearing if he

       submits “documents that on their face support his claim that he was

       unavoidably prevented from timely discovering the evidence” at issue. State

       v. York [2d Dist. Greene No. 99-CA-54, 2000 WL 192433 (Feb. 18, 2000)],

       citing State v. Wright (1990), 67 Ohio App.3d 827, 828 * * * (finding affidavits

       sufficient to warrant a hearing on whether the defendant was unavoidably

       prevented from discovering the facts upon which his request for a new trial

       relied). Notably, the documents at issue in York and Wright were affidavits

       from prosecution witnesses recanting their trial testimony against the

       defendant.

State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d
                                                                                             -12-


Dist.).

          {¶ 12} In order to file a motion for new trial after the expiration of the time periods

specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a

delayed motion. State v. Lanier, 2d Dist. Clark No. 2009 CA 84, 2010-Ohio-2921, ¶ 15,

citing State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002 WL 1585663, *2 (July 19,

2002); State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d

Dist.). “To obtain leave, defendant must demonstrate by clear and convincing evidence

that he or she was unavoidably prevented from timely filing the motion for a new trial or

discovering the new evidence within the time period provided by Crim.R. 33(B).” (Citations

omitted.) Warwick at *2. “A defendant is entitled to a hearing on a motion for leave to

seek a new trial if he submits documents that on their face support his claim of being

unavoidably prevented from meeting Crim.R. 33’s time requirement.” State v. Hiler, 2d

Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing Lanier at ¶ 16.

          {¶ 13} “ ‘[A] party is unavoidably prevented from filing a motion for new trial if the

party had no knowledge of the existence of the ground supporting the motion for new trial

and could not have learned of the existence of that ground within the time prescribed for

filing the motion for new trial in the exercise of reasonable diligence.’ ” Parker at ¶ 16,

quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).

“[A] defendant fails to demonstrate that he or she was unavoidably prevented from

discovering new evidence when he would have discovered that information earlier had

he or she exercised due diligence and some effort.” State v. Lenoir, 2d Dist. Montgomery

No. 26846, 2016-Ohio-4981, ¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101,

2015-Ohio-3507, ¶ 11.
                                                                                         -13-


       {¶ 14} Normally, “[w]e review a trial court’s ruling on a Crim.R. 33 motion for an

abuse of discretion.” State v. Thompson, 2d Dist. Montgomery No. 25016, 2012-Ohio-

4862, ¶ 7. “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990).

       {¶ 15} As previously noted, DeVaughns sought leave to file a motion for new trial

based on newly discovered evidence, i.e., allegedly new blood evidence that would

somehow exonerate him. However, any issue regarding the blood evidence has already

been decided by this Court, and is therefore barred by the law of the case doctrine. See

DeVaughns VI at ¶ 20-21. The law of the case doctrine “provides that the decision of a

reviewing court in a case remains the law of that case on the legal questions involved for

all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.

Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). “The doctrine is considered to be a

rule of practice rather than a binding rule of substantive law and will not be applied so as

to achieve unjust results. * * * However, the rule is necessary to ensure consistency of

results in a case, to avoid endless litigation by settling the issues, and to preserve the

structure of superior and inferior courts as designed by the Ohio Constitution.” (Citations

omitted.) Id.

       {¶ 16} In the instant case, we have already decided that DeVaughns is not entitled

to a new trial based upon the fact that no DNA testing was performed on the blood

evidence at trial. DeVaughns VI at ¶ 20-21. Thus, any issue with respect to the blood

evidence has already been raised or could have been raised by DeVaughns at an earlier
                                                                                        -14-


stage in the proceedings.    DeVaughns has not established that we overlooked any

issues in his case or that the circumstances have changed, thus requiring that we not

apply the law of the case doctrine in this instance. Simply put, the law of the case

mandates that the blood evidence issues raised by DeVaughns do not entitle him to a

new trial.

       {¶ 17} In his motion for leave to file a motion for a new trial, DeVaughns claims

that he has new evidence in the form of DNA results from the blood evidence used at trial.

Essentially, DeVaughns argues that the DNA results would either implicate someone else

for the offenses of which he was convicted, or the results would establish that the blood

belonged to someone not involved in the case at all. DeVaughns’ bases his belief in the

existence of the DNA test results on a misreading of statements made by the trial court

and the assistant prosecutor in their respective motions to dismiss his mandamus actions

against them. Specifically, DeVaughns asserts that the trial court and the assistant

prosecutor acknowledged the existence of the DNA results when their motions to dismiss

stated, “Identifications of the State’s ‘Blood on it’ Witness (‘HAS ALREADY BEEN

PERFORMED’).” Motion for Leave (Nov. 5, 2018), p. 3.            As noted by the State,

DeVaughns attached portions of the mandamus respondents’ motions to dismiss, but

failed to attach those portions of the motions that contained the language he quoted.

       {¶ 18} Furthermore, the language he quoted was not an admission by the

respondents. Rather, the language used by the respondents in their motions to dismiss

was a quote from an Ohio Supreme Court case: “neither procedendo nor mandamus will

compel the performance of a duty that has already been performed.” State ex rel.

DeVaughns v. Singer, 2d Dist. Montgomery No. 27925 (Motion to Dismiss, April 20,
                                                                                         -15-


2018); State ex rel. DeVaughns v. Dodd, 2d Dist. Montgomery No. 27934 (Motion to

Dismiss, April 20, 2018); both quoting State ex rel. Grove v. Nadel, 84 Ohio St.3d 252,

253, 703 N.E.2d 304 (1998). In the instant case, the respondents have never claimed

to have any DNA test results, and there is no language in the respondents’ motions to

dismiss which establishes that anyone has performed DNA testing on the blood evidence

submitted at trial.

       {¶ 19} We also conclude that the blood evidence issue raised in DeVaughns’

motion for leave to file a motion for new trial was barred by the doctrine of res judicata,

as he could have raised that issue in his direct appeal and raised similar issues other

post-convictions motions. See State v. Videen, 2d Dist. Montgomery No. 27479, 2017-

Ohio-8608, ¶ 20, citing State v. Russell, 10th Dist. Franklin No. 04AP-1149, 2005-Ohio-

4063, ¶ 6-7 (finding res judicata barred appellant from raising issues in his motion for new

trial that could have been raised in his direct appeal). Accordingly, the trial court did not

err when it denied DeVaughns’ motion for leave to file a motion for new trial.

       {¶ 20} DeVaughns’ first four assignments of error are overruled.

       {¶ 21} DeVaughns’ fifth and final assignment of error is as follows:

       THE SIXTH AMENDMENT GIVES A DEFENDANT A RIGHT TO

       EFFECTIVE ASSISTANCE OF COUNSEL ON HIS FIRST DIRECT

       APPEAL. A FIRST APPEAL AS OF RIGHT IS NOT ADJUDICATED IN

       ACCORD WITH DUE PROCESS IF THE APPELLANT DOES NOT HAVE

       EFFECTIVE ASSISTANCE OF AN ATTORNEY.

       {¶ 22} DeVaughns argues that he received ineffective assistance of trial counsel

and ineffective assistance of appellate counsel on direct appeal.
                                                                                           -16-


       {¶ 23} In order to establish ineffective assistance of counsel, DeVaughns must

establish that his trial counsel’s performance was both deficient and prejudicial. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). With respect to deficiency,

DeVaughns must show that his counsel’s performance “fell below an objective standard

of reasonableness.” Strickland at 688. With respect to prejudice, DeVaughns must show

that there is a reasonable probability that but for his counsel’s unprofessional errors, the

outcome of the proceeding would have been different. Id. at 694.

       {¶ 24} Initially, we note that DeVaughns could have raised arguments regarding

his trial counsel’s alleged ineffectiveness in his direct appeal.        Accordingly, in this

respect, DeVaughns’ argument is barred by res judicata. “Any ineffective assistance

claim relating to matters contained within the record should be brought through a direct

appeal.” State v. Lane, 2d Dist. Greene No. 2014-CA-54, 2015-Ohio-2712, ¶ 13, citing

State v. Wilson, 2d Dist. Montgomery No. 23129, 2013-Ohio-180, ¶ 47-48.                “ ‘If an

alleged constitutional error [such as ineffective assistance of counsel] could have been

raised and fully litigated on direct appeal, the issue is res judicata and may not be litigated

in a post[-]conviction proceeding.’ ” Id., quoting State v. Franklin, 2d Dist. Montgomery

No. 19041, 2002-Ohio-2370, ¶ 9, citing State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d

104 (1967).

       {¶ 25} With respect to DeVaughns’ argument that his prior appellate counsel was

ineffective on direct appeal, the proper remedy would be to seek to reopen his direct

appeal. A claim of ineffective assistance of appellate counsel is not cognizable in a post-

conviction proceeding. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992),
                                                                                      -17-


paragraph one of the syllabus. Thus, DeVaughns’ claim of ineffective assistance of

appellate counsel is likewise barred by res judicata. App.R. 26(B) permits a court of

appeals to consider ineffective assistance of appellate counsel claims by motion filed 90

days after journalization of the judgment of the appellate court.

       {¶ 26} We further conclude that to the extent DeVaughns contends that his

appellate counsel was ineffective in his performance on remand, DeVaughns’ argument

is without merit. With the exception of matters outside the scope of his direct appeal,

DeVaughns claims that his appellate counsel “refused to appear” and “refused to assist

appellant.” DeVaughns fails to argue any specific deficient performance on the part of

appellate counsel. Additionally, as previously stated, appellate counsel won a limited

remand for DeVaughns for resentencing on direct appeal.             Therefore, DeVaughns’

claims regarding ineffective assistance are without merit.

       {¶ 27} DeVaughns’ fifth assignment of error is overruled.

       {¶ 28} All of DeVaughn’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

                                      .............



FROELICH, J. and WELBAUM, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Jamie J. Rizzo
Christopher A. DeVaughns
Hon. Gregory Singer
