State v. Reddy ( 2011 )

[Cite as State v. Reddy, 2011-Ohio-2927.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95814
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSEPH REDDY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-505854
BEFORE: Keough, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEY FOR APPELLANT
James E. Valentine
323 Lakeside Avenue
Suite 450
Cleveland, OH 44113
Joseph Reddy, pro se
Inmate No. 562-809
Trumbull Correctional Institution
P.O. Box 901, 5701 Burnett Road
Leavittsburg, OH 44430
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Thorin O. Freeman
Pinkey S. Carr
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Joseph Reddy (“Reddy”), appeals from the
trial court’s judgment rendered from the resentencing hearing ordered by this
court in State v. Reddy, Cuyahoga App. No. 92924, 2010-Ohio-5759 (“Reddy
II”). For the following reasons, we affirm.
{¶ 2} In 2007, Reddy was convicted of aggravated murder, which he
appealed to this court challenging his conviction. This court found that the
evidence was insufficient to satisfy the element of “prior calculation and
design” for aggravated murder, but concluded that the lesser offense of
murder was established. State v. Reddy, Cuyahoga App. No. 92924,
2010-Ohio-3996 (“Reddy I”). Thus, this court modified Reddy’s conviction
from aggravated murder to murder, vacated his sentence, and remanded for
resentencing. Id. at 80. Reddy also raised as error that his counsel was
ineffective; this court found no error. Reddy immediately sought
reconsideration of Reddy I.
{¶ 3} On remand from this court, the trial court entered judgment
reflecting the modification of Reddy’s conviction to murder and sentenced him
on the murder conviction to life in prison, with parole eligibility after 15
years.
{¶ 4} While the motion for reconsideration was pending with this court,
Reddy appealed Reddy I to the Ohio Supreme Court, raising the following
pertinent propositions of law:
{¶ 5} “Proposition of Law I: “When a conviction is not sustained by
sufficient evidence[,] on appeal due process requires that the conviction is
reversed and remanded for a new trial rather than modified to a
lesser-included offense if mitigating circumstances were presented at trial
that could further lesse[n] the charge to an inferior degree offense.
{¶ 6} “Proposition of Law II: Appellant was denied his right to
effective assistance of counsel as guaranteed by the Sixth Amendment of the
U[.]S[.] Constitution and Section 10 of the Ohio Constitution.”
{¶ 7} After he filed his notice of appeal with the Ohio Supreme Court,
Reddy filed this appeal of the trial court’s judgment upon remand.
{¶ 8} In November 2010, this court granted Reddy’s application for
reconsideration and issued a new opinion on the original appeal. Reddy II.
This court made the same finding it made in Reddy I, i.e., that Reddy should
have been convicted of murder, not aggravated murder, and modified his
conviction accordingly. However, this court also elaborated on Reddy’s pro se
assignments of error that challenged his conviction on aggravated murder.
In one assignment of error, Reddy argued that the trial court “abused its
discretion in refusing to consider [a] lesser degree of homicide * * *.” In
finding no merit to the argument, this court stated:
{¶ 9} “Reddy argues that the evidence presented at trial was
insufficient to demonstrate that he acted with prior calculation and design
and that lesser included offenses should have been considered by the trial
court. We agree, and having sustained a similar argument in Reddy’s first
assignment of error, we modified the judgment accordingly. Although Reddy
argues specifically that the trial court committed reversible error by failing to
consider convicting him of voluntary manslaughter, we have already found
that the evidence in the record, while insufficient for aggravated murder, was
sufficient to convict Reddy of murder. We presume that in reaching a verdict,
the trial court considered all lesser and included offenses as well as inferior
degree offenses, unless the record shows otherwise. Reddy’s seventh
assignment of error is overruled.” Reddy II at 78.
{¶ 10} After this court issued its opinion in Reddy II, Reddy filed a
motion to withdraw his appeal regarding Reddy I that was pending in the
Ohio Supreme Court. Reddy then filed another appeal with the Ohio
Supreme Court, this time appealing this court’s decision in Reddy II. Reddy
raised the following pertinent propositions of law:
{¶ 11} “Proposition of Law No. I: When a conviction is not sustained by
sufficient evidence[,] on appeal due process requires that the conviction is
remanded if mitigating circumstances are present that could further lesser
the charge to an inferior degree offense.
{¶ 12} “Proposition of Law No. III: The defendant was denied his right
to effective assistance of counsel as guaranteed by the Sixth Amendment of
the U[.]S[.] Constitution and Section 10 Article 1 of the Ohio Constitution [* *
*].
{¶ 13} “Proposition of Law No. VI: The trial court abused its discretion
by refusing to consider [a] lesser degree of homicide in violation of the
defendant’s right to due process as guaranteed by the Fifth and Fourteenth
Amendments of the U[.]S[.] Constitution and Ohio Constitution.”
{¶ 14} In January 2011, the Ohio Supreme Court issued a journal entry
declining to hear Reddy’s first appeal and denied his motion to withdraw his
appeal as moot.
{¶ 15} In March 2011, the Ohio Supreme Court issued a journal entry
declining to consider his second appeal.
{¶ 16} Also in March 2011, Reddy sought to reopen his original appeal in
Appeal No. 92924 from which Reddy I and II were decided, claiming that his
appellate counsel was ineffective for failing to argue that “because the
evidence was insufficient for aggravated murder, the case should have been
remanded for a new trial so that the lesser included offense of voluntary
manslaughter may have been considered.” State v. Reddy, Cuyahoga App.
No. 92924, 2011-Ohio-2144, 1. (“Reddy III”). In denying his application,
this court concluded that res judicata barred Reddy’s application for
reopening because he had filed a pro se brief in the original appeal wherein
he raised this argument, the court considered it, and overruled it. Id. at 6.
{¶ 17} In this appeal, Reddy has once again raised the issues that have
been previously raised and considered. Reddy presents one assignment of
error through counsel and raises three additional assignments of error in his
pro se supplemental brief. Those assigned errors are as follows:
{¶ 18} “I. Appellant’s due process rights were violated when a
conviction which was not supported by sufficient evidence was modified to a
lesser-included offense rather than being reversed and remanded for a new
trial where mitigating circumstances were presented at trial that could result
in a conviction of an inferior degree offense.1
{¶ 19} “II. The Appellant received ineffective assistance of counsel
when counsel failed to present expert psychiatric testimony regarding the
appellant’s mental state and/or perception of danger based on the diagnosis of
post-traumatic stress disorder stemming from physical childhood abuse in
support of affirmative defenses of self-defense and/or voluntary
manslaughter.
{¶ 20} “III. Trial counsel was ineffective under the standard United
States v. Cronic when counsel was absent during a critical stage of trial for
the four months leading to trial.”
{¶ 21} The assignments of error raised are barred by res judicata. The
doctrine of res judicata bars further litigation in a criminal case of issues that
were raised previously or could have been raised previously in a direct appeal.
This assignment of error was raised by both Reddy’s appellate counsel and by Reddy, pro se.
1
To avoid confusion, we will consider them as one assignment of error.
State v. Leek (June 21, 2000), Cuyahoga App. No. 74338, citing State v. Perry
(1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus.
{¶ 22} We find that the issues raised in the appellate and supplemental
briefs have previously been considered or could have been considered by this
court in Reddy I, II, and III. Moreover, the Ohio Supreme Court has
declined to accept both of Reddy’s appeals, wherein he raised as propositions
of law those issues raised as assignments of error in this appeal.
{¶ 23} Since we have addressed or could have addressed these issues
and the Ohio Supreme Court has refused to review this court’s decisions, our
disposition of them remains the “law of the case,” and Reddy’s assignments of
error and supplemental assignments of error are barred by the doctrine of res
judicata. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d
824, 18. Therefore, the errors assigned are overruled.
{¶ 24} Finally, Reddy presents no argument that the trial court erred in
resentencing him, and since the record reflects that upon remand, the trial
court complied with this court’s order in Reddy II and duly imposed a
sentence on Reddy’s conviction in his presence, his sentence is affirmed
pursuant to App.R. 12(B).
Judgment affirmed.
It is ordered that appellee recover from 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
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR