State v. Orr , 2014 Ohio 5274 ( 2014 )

[Cite as State v. Orr, 2014-Ohio-5274.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100841
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARLLEL B. ORR
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-12-560637-A
Application for Reopening
Motion No. 479951
RELEASE DATE: November 21, 2014
FOR APPELLANT
Darllel B. Orr, pro se
Inmate No. 0206100
Cuyahoga County Jail
P.O. Box 5600
Cleveland, Ohio 44101
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brent C. Kirvel
Edward R. Fadel
Assistant County Prosecutors
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} On November 4, 2014, the applicant, Darllel Orr, pursuant to App.R. 26(B),
applied to reopen this court’s judgment in State v. Orr, 8th Dist. Cuyahoga No. 100841,
2014-Ohio-4680, in which this court affirmed Orr’s convictions for aggravated murder,
kidnapping, aggravated burglary, aggravated robbery, and having a weapon while under
disability. Orr now argues that his appellate counsel was ineffective for not arguing the
improprieties of a cheek swab taken for DNA identification.1 For the following reasons, this
court denies the application.
{¶2} In the present case, Orr’s appellate counsel argued lack of jurisdiction because of
an improper jury waiver, failure of compulsory process, sufficiency of the evidence, and manifest
weight. This court also considered Orr’s two supplemental pro se briefs in which he argued,
inter alia, lack of jurisdiction because there was no valid complaint, violation of his right to
confrontation, denial of a speedy trial, improperly inducing him to waive his right to a jury trial,
and prosecutorial misconduct.
{¶3} Res judicata now properly bars this application. See generally State v. Perry, 10
Ohio St.2d 175, 226 N.E.2d 104 (1967). Res judicata prevents repeated attacks on a final
judgment and applies to all issues that were or might have been litigated. In State v. Murnahan,
63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), the Supreme Court ruled that res judicata may bar a
claim of ineffective assistance of appellate counsel unless circumstances render the application of
the doctrine unjust.
1 On the early morning of October 10, 2011, two armed men entered a house occupied by
five people. One of those, a 15-year-old girl, testified that two men pointed handguns in her face
and asked if there was any money in the house. Subsequently, the intruders shot and killed a man
who was living in the house. A mask found in the house after the incident contained Orr’s DNA.
{¶4} Because Orr filed his own appellate brief and raised his own assignments of error,
res judicata applies. Nothing prevented Orr from deducing the current argument when he could
formulate arguments relating to jurisdiction, speedy trial, right to a jury, and prosecutorial
misconduct. The courts have repeatedly ruled that res judicata bars an application to reopen
when the appellant has filed a pro se brief. State v. Tyler, 71 Ohio St.3d 398, 1994-Ohio-8, 643
N.E.2d 1150; State v. Boone, 114 Ohio App.3d 275, 683 N.E.2d 67 (7th Dist.1996); and State
v. Hurt, 8th Dist. Cuyahoga No. 96032, 2012-Ohio 4268. In State v. Reddick, 72 Ohio St.3d 88,
90-91, 647 N.E.2d 784 (1995), the Supreme Court of Ohio stated: “Neither Murnahan nor
App.R. 26(B) was intended as an open invitation for persons sentenced to long periods of
incarceration to concoct new theories of ineffective assistance of appellate counsel in order to
have a new round of appeals.”
{¶5} Accordingly, the application for reopening is denied.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
TIM McCORMACK, J., CONCUR