Opinion
No. 108857 No. 108858 No. 109321
10-20-2020
STATE OF OHIO, Plaintiff-Appellee, v. DAVID BARNES, JR., Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney, for appellee. David Barnes, Jr., pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case Nos. CR-18-635113-A, CR-19-637121-A, and CR-19-637984-A
Application for Reopening
Motion No. 540610
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney, for appellee. David Barnes, Jr., pro se. KATHLEEN ANN KEOUH, J.:
{¶ 1} Applicant, David Barnes, Jr., timely seeks to reopen his consolidated appeals in State v. Barnes, 8th Dist. Cuyahoga Nos. 108857, 108858, and 109321, 2020-Ohio-3184. He claims that appellate counsel was ineffective for not arguing the following three proposed assignments of error:
I. The trial court was in error and the appellant was prejudiced. [sic] when the court allowed victim's statement knowingly.
II. The trial court erred in admitting recorded calls from telephone in the Cuyahoga County Jail.
III. The trial court erred in allowing the admission of the victim's hearsay statements.
{¶ 2} For the following reasons, we deny the application to reopen.
I. Procedural History
{¶ 3} Barnes was indicted in three cases - all involving acts committed against K.B. Charges included felonious assault, attempted rape, and multiple counts of domestic violence. Prior to trial, the state moved to admit at trial previous statements made by the victim because Barnes had forfeited his right to cross-examination through wrongdoing pursuant to Evid.R. 804(B)(6). The state played recordings of jailhouse phone conversations between Barnes and the victim despite a no-contact order, and Barnes and his mother. The calls tended to show that Barnes was attempting to prevent the victim from coming to court to testify and secreting her away from the state's efforts to locate her. At Barnes's request, Barnes's mother rented an apartment for the victim at an undisclosed location. The state put forth its efforts to locate the victim when discussing the forfeiture motion. The state had left subpoenas at each address it had for the victim, and was able to speak to her over the phone to inform her of the court date, but she did not appear. The court asked if the state intended to seek a bench warrant, but the state declined unless the court denied the forfeiture motion because it believed it had met the requirements for a successful motion. Defense counsel did not seek a bench warrant for the victim, either.
{¶ 4} The state then argued:
It's clear that the defendant's conduct in this case was designed to make sure that [K.B.] was not in an area where the State of Ohio could locate her in order for her to come to trial or that she would be unavailable for us to present her testimony at trial; and that based on the calls that you heard where he is saying "get her away from where she's at," that it's kind of weird he's helping her out by giving her a place to stay, but it helps him too. It helps him and his case if she is not in an area where we can locate her and she can get notified of court dates so that she does not come to this trial.(Tr. 21-22.)
The State would highlight that there of course is a no-contact order, either directly or indirectly, between the defendant and the victim, and he has made a number of calls to the victim directly, but then also orchestrated situations where his mother would give information to the victim specifically in regards to this case. And we do believe that we have met our burden in regards to this motion and we ask that you grant the motion for forfeiture.
{¶ 5} The trial court ultimately granted the state's motion and allowed hearsay statements of the victim to be offered as evidence at trial, including oral statements to police officers and statements made by the victim recorded through the use of police body cameras.
{¶ 6} Barnes was subsequently convicted of one count of felonious assault and three counts of domestic violence. He was sentenced to an aggregate prison term of 11 years.
{¶ 7} Barnes appealed from his three criminal cases. In a consolidated appeal, Barnes raised three assignments of error:
I. The trial court erred in allowing the admission of the victim's out of court statements in violation of the Confrontation Clause of the Sixth Amendment and Section 10, Article I of the Ohio Constitution.This court affirmed Barnes's convictions on June 4, 2020.
II. The trial court erred in admitting recorded calls from telephones in the Cuyahoga County Jail.
III. The trial court erred in allowing the admission of the victim's hearsay statements.
{¶ 8} On August 17, 2020, Barnes timely filed an application to reopen his appeals, asserting basically the same three assignments of error that were raised in the appeal. On September 14, 2020, the state timely filed its opposition to the application.
II. Law and Analysis
A. Standards for Reopening
{¶ 9} An application for reopening provides a criminal defendant with a limited means of addressing claims of ineffective assistance of appellate counsel. App.R. 26(B)(1). In order to establish a claim of ineffective assistance of appellate counsel, Barnes must show that appellate counsel's performance was deficient and that but for the deficient performance, the result of his appeal would have been different. State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellate courts should grant reopening when the applicant establishes that there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal. App.R. 26(B)(5). See also State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).
B. Relitigation of Issues and Res Judicata
{¶ 10} A successful application for reopening must assert "[o]ne or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation * * *." App.R. 26(B)(2)(c). Barnes's three proposed assignments of error are substantially similar to the three assignments of error raised by counsel in the appeal.
{¶ 11} In his first and third proposed assignments of error, Barnes claims that the victim's statements should not have been allowed at trial. Barnes raised this claim in his direct appeal. This court previously addressed whether the hearsay statements of the victim were properly admitted at trial as a result of Barnes's actions. In deciding Barnes's first assignment of error in his direct appeal, this court determined that Barnes had, in fact, forfeited his right of confrontation:
After listening to the jailhouse phone calls between Barnes and his mother, the trial court determined that Barnes and his mother had actively engaged in wrongdoing with the purpose of making K.B. unavailable for trial. As a result, Barnes forfeited his constitutional right of confrontation.
Likewise, Barnes's wrongdoing forfeited any claim that the police officers' testimony regarding what K.B. told them and the body camera footage of their interactions with her was inadmissible hearsay. Under Evid.R. 804(B)(6), a statement offered against a party is not hearsay if the unavailability of the witness is due to the party's wrongdoing. The trial court found that K.B.'s unavailability for trial was the result of Barnes's wrongdoing. Accordingly, the statements against Barnes offered by the police officers and contained in the body camera footage were properly admitted under Evid.R. 804(B)(6) as an exception to the hearsay rule. The first and third assignments of error are overruled.Barnes, 8th Dist. Cuyahoga Nos. 108857, 108858, and 109321, 2020-Ohio-3184, at ¶ 20-21.
{¶ 12} In his second proposed assignment of error, Barnes claims that the trial court erred in admitting recorded jailhouse calls. This issue was also raised in the direct appeal. This court found that because trial counsel failed to object to admission of the jailhouse calls, the alleged error must be reviewed under the plain error standard. Id. at ¶ 23. Even so, we went through the necessary steps for authentication of such calls, the steps the state took to authenticate the records, and found that the testimony of Barnes's mother sufficiently authenticated the calls when she identified phone numbers that were involved, and the voices of the victim and Barnes captured in the recordings. Id. at ¶ 28. We held that this was "sufficient to constitute a 'reasonable showing' of authenticity" required for admission under Evid.R. 901(B)(5). Id.
{¶ 13} Therefore, this court considered the claims Barnes now raises on the merits and rejected them. Principles of res judicata prevent the relitigation of issues in an application to reopen that were previously considered in the direct appeal. State v. Franklin, 72 Ohio St.3d 372, 650 N.E.2d 447 (1995); State v. Lindsey, 8th Dist. Cuyahoga No. 106111, 2019-Ohio-3358, ¶ 9. Res judicata bars the relitigation of an issue that was previously addressed, even if cast in a slightly different form. "Where an argument is raised by appellate counsel in a direct appeal, the same issue may not constitute grounds for reopening * * *." State v. Lindsey, 8th Dist. Cuyahoga No. 106111, 2019-Ohio-3358, ¶ 9, citing State v. Ahmed, 8th Dist. Cuyahoga No. 84220, 2008-Ohio-217, ¶ 6. Such a claim may not form the basis of a successful application for reopening. State v. McGee, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-6637, ¶ 13, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
{¶ 14} This court previously addressed the proposed assignments of error and affirmed the trial court's decisions. Res judicata bars relitigation of these issues in an application for reopening.
C. Spousal Privilege and Corroboration
{¶ 15} Barnes raises additional arguments under his second proposed assignment of error dealing with spousal privilege and an asserted requirement that a person may not be found guilty on the testimony of a single witness. Barnes cites three cases for support: State v. Smith, 2016-Ohio-7632, 65 N.E.3d 787 (6th Dist.); State v. McReynolds, 117 Wash. App. 309, 71 P.3d 663 (2003); and State v. Anthony, 2015-Ohio-2267, 37 N.E.3d 751 (8th Dist.).
{¶ 16} Smith is a case that deals with whether multiple charges for possessing counterfeit currency should merge for purposes of sentencing. Anthony also deals with the merger of allied offenses. The issues raised in McReynolds were summarized by that court:
The primary issues here are (1) whether the fifth of five search warrants was valid despite the invalidity of the first four; (2) whether a new trial is required because evidence obtained from the invalid warrants was admitted in the original trial; and (3) whether the multiple convictions for possession of stolen property violate the prohibition against double jeopardy.McReynolds at 316.
{¶ 17} None of these cases even addresses the propositions Barnes asserts in his argument in support of the second proposed assignment of error.
{¶ 18} The spousal privilege, codified in R.C. 2945.42, provides in part,
Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife to the other * * *.
{¶ 19} The privilege does not apply to testimony about instances of personal injury inflicted by one's spouse. It is further not implicated when the spouse is a victim of a charged offense. Evid.R. 601(C). Finally, the spousal privilege "is wholly inapplicable to the testimony of a third party." State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 120. Therefore, it does not apply to statements made by the victim to police officers, which we already determined in the direct appeal were properly allowed at trial.
{¶ 20} Barnes likewise does not support his claim that a conviction cannot be based on the testimony of a single witness. This proposition is directly contradicted by prior holdings of this court. We recently reiterated that "[a] conviction may rest solely on the testimony of a single witness, if believed, and there is no requirement that a witness's testimony be corroborated to be believed." State v. Jones, 8th Dist. Cuyahoga No. 108371, 2020-Ohio-3367, ¶ 71, citing, e.g., State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 38; State v. Black, 8th Dist. Cuyahoga No. 108001, 2019-Ohio-4977, ¶ 43; State v. Schroeder, 4th Dist. Adams No. 18CA1077, 2019-Ohio-4136, ¶ 84; State v. Dudley, 9th Dist. Summit No. 28364, 2017-Ohio-7044, ¶ 10.
{¶ 21} Barnes has failed to establish a genuine issue of appellate counsel's ineffectiveness regarding these issues.
D. Recantation
{¶ 22} In the argument in support of the third proposed assignment of error, Barnes claims that his convictions should be vacated because the victim recanted. As further explained below when discussing alleged ineffective assistance of trial counsel, this fact was known at trial, and Barnes was convicted in spite of the evidence of recantation contained in exhibit Nos. 32 and 33 that were jointly stipulated to at trial and submitted to the jury. Further, Barnes's various attempts to add affidavits purportedly signed by the victim to the record in this case are unavailing. An applicant may not add evidence to the record and then base a claim of ineffective assistance of appellate counsel on the newly added information. State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶ 11, quoting State v. Moore, 93 Ohio St.3d 649, 650, 758 N.E.2d 1130 (2001). Barnes has failed to sufficiently allege a colorable claim of ineffective assistance of appellate counsel in this regard.
E. Ineffective Assistance of Trial Counsel
{¶ 23} Barnes appended an argument alleging ineffective assistance of trial counsel after the end of his application. We will address this argument because the total length of the application including this section does not exceed the ten-page limit specified in App.R. 26(B). Barnes asserts the following instances of ineffective assistance of trial counsel, presented as written:
1. Counsel failed to object or to inquire about a so called person that came to the door it was all a lie counsel did not prove.
2. Counsel failed to object to Officers just repeating, her statements, of picture to build up a case of guilt.
3. Counsel failed to argue at hearing for victim to be bench warrant, and proof of supoenas.
4. Counsel failed to argue of what was said on phone calls, that it was not what prosecutor portrayed it, would not allow me to tell what was truly said, that she was in shelter and was not living right, and needed to come home was not hiding her.
5. Counsel failed to object that there was no intimidation, or force in the phone conversation.
7. Counsel failed to argue of yes I wanted her to recant, no force was used. So the truth be told no intimidation. So I may be released the state offer another way of release, told not to show up for court.
8. Counsel failed to mention victim recanted, twice, so of course he would want her in trial, to tell truth, and failed to argue of how state turn it around that I did not want her to show. They did not want here to show.
9. Counsel failed to agrue that it was not enough evidence, on phone call to prove David did not want her to show.
10. Counsel failed to argue of [K.B.] coming to court, did not mention that they could have called her.
11. Counsel could have asked for more time to get prepared, between hearing and trial knowing state plan to rush case in case she showed, Counsel was unprepared.
12. Why not call her to tell her there would be a trial, Counsel failed to argue.
13. Counsel failed to mention mother 78 yrs old and have memory issue, so David had to repeat same in for her to understand that the wife needed to move.
14. Counsel failed to raise issue of what was said on phone called played in court, or argue, of what wife told David what prosecutor told her. They move fast past that issue, of her not showing they would drop, of course David would remind her what prosecutor told her, so David may be release.
15. Counsel failed to raise the issue of subpeona and if it was sent to the address they had, for know one receive no supeona.
16. Counsel argue with David about this hair issue, 6 days before hearing, trial. David ask where this come from, it was not in the discovery.
17. Counsel failed to mention to court that the Attorney and prosecutor met a day of trial about the phone call to sister to have wife to come to Court this meeting was not in the court, but failed to mention to court.
18. Counsel failed to mention about the phone call to sister to come to court. This meeting was not mention in court.
19. Counsel failed to raise a issue about prosecutor closing argument of her recanting the damage was done, and the only reason it was mention because David and wife conversation with her over the phone, and they did not want to get in trouble.
20. Counsel failed to say wife recanted, for it would have cleared David[.]
21. Counsel did not object to tell Appellant side of phone call.
22. Counsel did not raise issue of victim did not know of trial, or to call her for trial, by bench warrant if necessary.
23. Counsel failed to mention Appellant's character and how Appellant takes care of family even when mistakes happen.
24. Counsel failed to mention of hearsay guilt on all cases.
25. Counsel failed to mention to have all cases separated for trial, instead of all together causing actual prejudice to Appellant in this case.
26. Counsel failed to have Appellant to testify in his own behalf to personally present his side of the case.
27. Counsel failed to provide mental health judge was necessary due to the Appellant's depression etc., as well as Ms. Barnes' Bypoler etc., mental medical records will demonstrate and establish these facts and a matter mitigating factors before the court.
28. Counsel failed to raise issue of first 2 warrant, why was Appellant not picked up, and also they continue to live together.
29. Counsel failed to analize D.N.A.
30. Did not argue phone conservation of Appellant and Victime, of prosecutor telling her not to show, so she followed prosecuter's order, this should have been argued.
31. Appeals Attorney did not put any of these issues, nor thing Appellant wanted him to do. Appellant mailed him his information. Appellant never met this Attorney, and he stop answering Appellant's family phone calls. So what the Attorney put in was all what the attorney wanted to put in. Appellant did not ask him for the authention. Because, Appellant wanted to explain the phone calls.
32. Trial Lawyer did not reveal prosecutor motive of victim not showing up for trial, after the prosecutor her that if she didn't show up that the
state would drop the charges constitute "Fraud Upon The Court," to interfer with the victim in not coming to trial.
33. Counsel failed to mention if victim showed it would be no case of her knowing she recanted.
34. Counsel did not defend case of all witness made something Out of nothing by mention first statements by wife while she was angry.
35. Counsel did not agrue to check anything so called hair D.N.A. proof of phone conversation.
36. Counsel failed to mention that there were no conversation about the Appellant telling her not to show up for trial.
37. Counsel did not argue sentencing guidelines, got max on everything, with no weapons, just statements repeated.
The list in Barnes's application did not contain a number 6. --------
{¶ 24} In a separate section, Barnes asserts additional claims of ineffective assistance of appellate counsel, renumbered for clarity and presented as written:
38. Counsel failed to Object, to the so called DNA a few days before the Trial. Denying Counsel an opportunity to Investigate, Research, and to Prepare a Defense for Favorable Review before the Court.
39. Counsel failed to Request to be Removed from Petitioner's Case, Due to a Conflict of Interest. When Counsel Attitude Display'd that Petitioner was guilty in Counsel's Eyes.
40. Counsel failed to bring to the Court's Attention, that Petitioner Case should be before a Mental Health Judge, Due to Petitioner being Manic Depression. And, his Wife being treated for Bipolar Mental Disorder. And, if Petitioner had Two prior Warrants. Why Petitioner was not arrested?
41. Counsel failed to Object, to the State wanting to go to Trial without the Victim being Presence. After the Victim Recanted. And, explain to the Court her reasons for doing so.
42. Counsel failed to Object, to the State Conceding to Advising the Victim That if the Victim did not show up for Court, that the Case would be thrown Out.
43. Counsel failed to let Petitioner take the Stand. After, his Pass History was already brought to the Court's Attention. Denying Petitioner an Opportunity to Defend Petitioner's Position. In light of all the Misleading and Inaccurate Information being Presented before the Court.
44. Counsel failed to Object, and Motion for a Rule 29 for like of Sufficient Evicence, and the Victim not being Subpoena Or a Bench Warrant Issued for the Victim Presence in Court.
45. Counsel failed to Object, to the State Using the Officer's Body Cam Footage, and to Elicit Knowingly Inaccurate Information. Denying Counsel an Opportunity to Cross Examine such Action.
46. Counsel failed to Object, to the State Using a June Case, that was Dismissed. Causing Prejudicial Harm to Petitioner.
47. Counsel failed to Object, to the State Playing the Whole County Jail Phone Recording Tape, without First having it Authenticated as Accurate / Trustworthy, Due to other Prisoner's Using other Prisoner's I.D. No. for Calling out from the County Jail. Which demonstrate that the State had Told the Victim, if the Victim did not show up for Court, that the Cases would be Dismissed. Causing the Petitioner Prejudicial Harm in the instant Case.
48. Counsel failed to Raise, and Pursue a Claim of "Vindictive Prosecution." When the State wanted to try Petitioner without the Victim being Presence in Court as a Witness. After the State had Personally Called the Victim at the Victim Home Phone.
49. Counsel failed at the Sentencing Phase. When Counsel was Unprepared by not Presenting Material by a Preponderance of the Evidence for a State Sentence Less than 11 Years. Demonstrating a Reasonable Probablitity, if Counsel had a Correct Understanding concerning Petitioner's Maximun Sentence, Petitioner would have Decided not to go to Trial.
{¶ 25} Further, in some portions of his application, he makes claims of ineffective assistance of trial counsel unrelated to the proposed assignment of error to which the argument is supposed to apply. These alleged instances of ineffectiveness will be broken down into categories and addressed collectively.
{¶ 26} Ineffective assistance of trial counsel is analyzed using the Strickland standard set forth above. In order to establish that a genuine issue of material fact exists regarding trial counsel's ineffective assistance, Barnes must show that counsel's performance fell below an objective standard of reasonableness, and that this deficient performance resulted in prejudice. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), at paragraph two of the syllabus. Counsel enjoys a strong presumption that his or her performance constituted reasonable assistance. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 128. "To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶ 27} Almost all of these instances of claimed ineffective assistance lack any argument as to how Barnes was prejudiced or explaining how the results of trial would have differed. This is especially true for allegations 1, 23, 28, and 46, where no argument is presented to explain the alleged instance of deficient performance.
{¶ 28} For instance, in the first allegation, Barnes claims that defense counsel should have objected to or inquired about a person that came to the door. This argument is presented without explanation or exposition. Similarly, the 46th allegation claims that counsel should have objected to the state's use of an unspecified June case. One of Barnes's cases, Cuyahoga C.P. CR-18-637121, involved a June 2018 incident, but this case was not dismissed. He was found guilty of one count of domestic violence related to this incident. It is unclear to what Barnes is referencing in these allegations.
{¶ 29} "This court will not second-guess a licensed attorney's strategies at trial based upon bald accusations of a defendant." State v. Sistrunk, 8th Dist. Cuyahoga No. 91470, 2009-Ohio-1689, ¶ 41. Barnes's bare assertion of numerous claimed instances of ineffective assistance of counsel, without more, is insufficient to meet his burden of establishing a colorable claim of ineffective assistance of appellate counsel.
{¶ 30} Where the allegations are comprehensible, this court will address them. In numbers 7, 8, 19, 20, 33, and 41, Barnes takes issue with how statements of the victim recanting prior statements were used or not used at trial. The statements the victim gave to the prosecutor recanting prior statements were received by the prosecutor in phone conversations with the victim. The prosecutor typed those statements and provided them to the defense prior to trial. Those statements were stipulated to by both sides and were sent to the jury as exhibit Nos. 32 and 33. Therefore, the jury was well aware of those statements. Defense counsel commented on them and used them during trial. The jury likely found those statements lacked credibility because of Barnes's recorded attempts to thwart justice, which were also before the jury. Therefore, Barnes has failed to establish a genuine issue of ineffectiveness of trial counsel regarding these instances of claimed ineffective assistance of trial counsel.
{¶ 31} In allegation numbers 16, 29, 35, and 38, Barnes claims trial counsel was ineffective in several ways related to some hairs found on Barnes after a March 8, 2019 domestic violence incident. These hairs were discussed at trial. The state surmised that they belonged to the victim, and constituted corroborative evidence of a struggle between the victim and Barnes. Barnes asserts these hairs should have been examined for DNA evidence to establish that they belonged to the victim and either his counsel or the state was required to do that.
{¶ 32} It would have been contrary to defense counsel's trial strategy to test these hairs for DNA. At trial, defense counsel used the lack of DNA testing of these hairs to attack the state's case and argued that the hairs could have belonged to a cat. (Tr. 409.) Further, DNA testing ordered by defense counsel could have further inculpated Barnes should those tests establish that the hairs belonged to the victim. The decisions of counsel amount to sound trial strategy, not ineffective assistance of counsel.
{¶ 33} Barnes does not assert how DNA testing of these hairs would change the outcome of trial. Other evidence presented to the jury established that Barnes attacked the victim and threw her from a moving car during the March 8, 2019, incident. Barnes admitted to the basic facts of the altercation in a recorded jailhouse call between his mother and him, which was played for the jury. (Tr. 256-257.) Barnes does not assert that there is a reasonable probability that the results of trial would have been different had DNA testing been conducted. This court does not find any probability, reasonable or not, in light of the evidence adduced at trial.
{¶ 34} Several of the allegations of ineffectiveness are contradicted by the record, including numbers 10, 12, 20, 22, 25, 26, 30, and 43. For instance, in numbers 26 and 43, Barnes claims counsel was ineffective for not calling him as a witness in his own defense. However, it was Barnes who decided, on the record in open court, not to testify. (Tr. 348.)
{¶ 35} Similarly, in number 25, Barnes argued that counsel did not seek to have the discrete instances of criminal conduct tried separately. The record discloses that the state filed a pretrial motion for joinder. Defense counsel filed a brief in opposition, and the trial court held a hearing on the motion where defense counsel argued against joinder. (Tr. 26-27.) Ultimately, the court granted the state's motion. Therefore, counsel did argue that the three incidents should be tried separately.
{¶ 36} Additionally, Barnes asserts several variations of the argument that the victim was not alerted to the trial date. During the hearing on the state's motion for forfeiture by wrongdoing, the state acknowledged that it was able to call the victim and inform her of the trial date, but she did not appear. (Tr. 9-10.) Barnes's claim that the victim was never informed of the trial date is contradicted by these statements in the record.
{¶ 37} On the other hand, some of Barnes's claims of ineffective assistance of trial counsel, by their very nature, do not appear in the record. Appellate counsel cannot be ineffective for not advancing a claim of ineffective assistance of trial counsel that is not contained within the record. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, at ¶ 10. Instances of ineffectiveness set forth in numbers 11, 17, 18, 27, 31, 39, 40, and 49 are, on their face, arguments that rely on information not contained in the record. Calls made by Barnes's sister that were not discussed in court, the necessity of a mental health judge to preside over the case, and counsel's failure to request to be removed from the case because of some alleged bias find no support in the record and Barnes has not pointed to any.
{¶ 38} Further, an applicant may not add new information to the application by way of affidavit and then base a claim of ineffective assistance of appellate counsel on this new information. Id. at ¶ 11, quoting Moore, 93 Ohio St.3d at 650, 758 N.E.2d 1130 (2001). The new affidavits that Barnes has included with his application to reopen may not form the basis of an ineffective assistance of appellate counsel claim.
{¶ 39} Some of Barnes's alleged instances of ineffectiveness were issues that were addressed in his direct appeal, including numbers 2, 3, 4, 5, 9, 13, 14, 15, 21, 24, 32, 34, 36, 42, 44, 45, 47, and 48. These claimed instances take issue with the pretrial hearing on the state's motion for admission of evidence through forfeiture by wrongdoing and the evidence that was admitted at trial as a result. This court affirmed the trial court's decision on this point in the first and third assignments of error raised in the direct appeal. This court also previously addressed the admissibility of the jailhouse calls that were played at trial in the second assignment of error. These recordings played for the jury speak for themselves, so the failure of defense counsel to argue what they do or do not contain would not alter the outcome of trial. As previously explained above, res judicata bars relitigation of these claims.
{¶ 40} In allegation numbers 32 and 42, Barnes asserts an argument that the state told the victim that the case would be dismissed if she did not appear for trial and trial counsel was ineffective for not objecting or pointing out a "fraud on the court." However, it was Barnes's own actions in attempting to thwart justice that allowed the state to introduce the victim's statements at trial. This court has already determined that those statements were properly admitted. It was Barnes's actions that provided the state with another means to introduce evidence to prosecute Barnes without the need for the victim to appear in court. Therefore, these claims do not present a colorable claim of ineffective assistance of counsel.
{¶ 41} In numbers 37 and 49, Barnes claims counsel's performance during sentencing was deficient. At sentencing, counsel argued for mercy and leniency, pointing out mitigating factors and Barnes's contrition. However, these arguments in Barnes's favor could not withstand the torrent of factors that the trial court found merited a more severe sanction. The trial court went through Barnes's lengthy criminal history, noting that this was Barnes's fifth and sixth domestic violence convictions involving the victim, and the particularly egregious manner in which Barnes attempted to interfere with the judicial process. (Tr. 435-436.) In the face of such conduct, it is difficult to see how defense counsel could have performed any better or that there is any reasonable probability that the outcome would have been different. Barnes has failed to establish a genuine issue of ineffectiveness of trial counsel in these instances.
{¶ 42} Therefore, Barnes has not shown that there exists a genuine issue of ineffective assistance of appellate counsel for appellate counsel's failure to assign as error a claim of ineffective assistance of trial counsel based on the forgoing allegations.
{¶ 43} Application denied. /s/_________
KATHLEEN ANN KEOUGH, JUDGE EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR