[Cite as State v. Walton, 2018-Ohio-4021.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106103
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
KAREEM WALTON DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-16-607989-A Application for Reopening Motion No. 519983
RELEASE DATE: October 1, 2018 [Cite as State v. Walton, 2018-Ohio-4021.] FOR APPELLANT
Kareem Walton, pro se Inmate No. A700960 Southern Ohio Correctional Facility P.O. Box 45699 Lucasville, Ohio 45699
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Anthony T. Miranda Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 [Cite as State v. Walton, 2018-Ohio-4021.] FRANK D. CELEBREZZE, JR., J.:
{¶1} Applicant, Kareem Walton, pursuant to App.R. 26(B), seeks to reopen his
appeal in State v. Walton, 8th Dist. Cuyahoga No. 106103, 2018-Ohio-1963. He asserts
that appellate counsel was ineffective for failing to raise and argue an assignment of error
regarding the trial court’s decision on Walton’s motion to suppress. After a thorough
review of the arguments and the record, we deny the application.
I. Factual and Procedural History
{¶2} Walton was driving a vehicle that was occupied by five victims. Walton
crashed the vehicle into a tree, killing three of the passengers. In the direct appeal,
Walton’s attorney filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Walton filed his own pro se brief pursuant to
Loc.App.R. 16(C). Walton raised issues surrounding his plea agreement and the
sentence imposed. This court affirmed his convictions for aggravated vehicular
homicide, aggravated vehicular assault, and driving under the influence of alcohol or
drugs.
{¶3} Walton timely filed an application for reopening pursuant to App.R. 26(B),
arguing a single proposed assignment of error:
Appellate counsel was ineffective and his performance felled [sic] below professional standards by failing to raise abuse of discretion by the lower court when it denied appellant’s motion to suppress.
II. Law and Analysis A. Application for Reopening
{¶4} An application for reopening, pursuant to App.R. 26(B), provides a means to
raise an ineffective assistance of appellate counsel claim in a criminal appeal. The
analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), for ineffective assistance of counsel is the appropriate standard to assess
whether Walton has raised a “genuine issue” as to the ineffectiveness of appellate counsel
in his request to reopen under App.R. 26(B)(5). See State v. Spivey, 84 Ohio St.3d 24,
25, 701 N.E.2d 696 (1998). To show ineffective assistance, Walton must demonstrate
that his counsel was deficient in failing to raise the issues he now presents and that there
was a reasonable probability of success had the claims been presented on appeal. State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶5} A claim of ineffective assistance of appellate is not available where an
appellant acts pro se in an appeal. State v. Thornton, 8th Dist. Cuyahoga No. 76014,
2000 Ohio App. LEXIS 1037 (Mar. 9, 2000); State v. Westbrook, 4th Dist. Scioto No.
11CA3455, 2012-Ohio-6292. The state argues that because Walton acted pro se in his
direct appeal, his claim of ineffective assistance should be denied because he failed to
raise the issue there. In Westbrook, the Fourth District held:
If a petitioner alleges errors that he raised on direct appeal or could have raised on direct appeal, then the doctrine of res judicata bars the claim for post-conviction relief. State v. Bradley, [4th Dist. Scioto No. 98CA2592, 1999 Ohio App.LEXIS 1469 (Mar. 30, 1999)]. “[T]he doctrine serves to preclude a defendant who has had his day in court from seeking a second on that same issue. In so doing, res judicata promotes the principles of finality and judicial economy by preventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. Because Westbrook had a prior opportunity to litigate the claims that he sets forth in his pro se arguments, they are also barred under the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
Id. at 15.
{¶6} Appellee argues Walton could have raised the current claims in his direct
appeal, and chose not to. Accordingly, res judicata could bar litigating those claims
here.
{¶7} However, appellate counsel filed an Anders brief, and Walton was forced to
proceed pro se. Under these circumstances, it may be inequitable to apply the doctrine
of res judicata. For instance, the First District addressed claims of ineffective assistance
of appellate counsel in State v. Fain, 188 Ohio App.3d 531, 2010-Ohio-2455, 936 N.E.2d
93 (1st Dist.). However, in that case, it is not clear whether the appellant filed a pro se
brief, or whether the First District’s procedure allowed for the filing of a pro se brief. In
any event, whether the doctrine of res judicata applies to the present application is not a
necessary determination for this case, as the application fails on the merits.
B. Denial of Motion to Suppress
{¶8} A suppression hearing was held on June 12, 2017. Two expert witnesses
appeared to testify about whether the results of blood tests did or did not show Walton
was impaired at the time of the crash. Walton argued that the results were incorrect
because severe trauma could release chemicals in the blood that would lead to a false positive or elevated test results for the presence of alcohol in the bloodstream. The state
asserted that the attack on the evidence was an attack on the results, and went to their
weight or credibility, not admissibility.
{¶9} The state’s expert witness, Dr. Christine Schmotzer, opined about the results
of blood tests and whether they accurately captured the amount of alcohol Walton
consumed. Those values ranged from 33 mg/dl to 31 mg/dl in whole blood. The assay
test used by the lab measured a byproduct of an enzymatic reaction. The test is subject
to a 10 to 15 percent variability. As a result, she opined that for criminal liability
purposes, the result is reduced by the variance factor and then converted to blood alcohol
content. In this case, that would result in a blood alcohol content of 0.028 mg/dl at the
minimum end. She stated that this is greater than the 0.02 mg/dl legal limited for drivers
between the age of 18 and 21 years old.
{¶10} Addressing the concerns raised by Walton in his motion to suppress, that
lactic acid and other byproducts of trauma to the body would elevate the results of the test
used by the lab, Dr. Schmotzer testified that the assay she used was less susceptible to this
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[Cite as State v. Walton, 2018-Ohio-4021.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106103
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
KAREEM WALTON DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-16-607989-A Application for Reopening Motion No. 519983
RELEASE DATE: October 1, 2018 [Cite as State v. Walton, 2018-Ohio-4021.] FOR APPELLANT
Kareem Walton, pro se Inmate No. A700960 Southern Ohio Correctional Facility P.O. Box 45699 Lucasville, Ohio 45699
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Anthony T. Miranda Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 [Cite as State v. Walton, 2018-Ohio-4021.] FRANK D. CELEBREZZE, JR., J.:
{¶1} Applicant, Kareem Walton, pursuant to App.R. 26(B), seeks to reopen his
appeal in State v. Walton, 8th Dist. Cuyahoga No. 106103, 2018-Ohio-1963. He asserts
that appellate counsel was ineffective for failing to raise and argue an assignment of error
regarding the trial court’s decision on Walton’s motion to suppress. After a thorough
review of the arguments and the record, we deny the application.
I. Factual and Procedural History
{¶2} Walton was driving a vehicle that was occupied by five victims. Walton
crashed the vehicle into a tree, killing three of the passengers. In the direct appeal,
Walton’s attorney filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Walton filed his own pro se brief pursuant to
Loc.App.R. 16(C). Walton raised issues surrounding his plea agreement and the
sentence imposed. This court affirmed his convictions for aggravated vehicular
homicide, aggravated vehicular assault, and driving under the influence of alcohol or
drugs.
{¶3} Walton timely filed an application for reopening pursuant to App.R. 26(B),
arguing a single proposed assignment of error:
Appellate counsel was ineffective and his performance felled [sic] below professional standards by failing to raise abuse of discretion by the lower court when it denied appellant’s motion to suppress.
II. Law and Analysis A. Application for Reopening
{¶4} An application for reopening, pursuant to App.R. 26(B), provides a means to
raise an ineffective assistance of appellate counsel claim in a criminal appeal. The
analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), for ineffective assistance of counsel is the appropriate standard to assess
whether Walton has raised a “genuine issue” as to the ineffectiveness of appellate counsel
in his request to reopen under App.R. 26(B)(5). See State v. Spivey, 84 Ohio St.3d 24,
25, 701 N.E.2d 696 (1998). To show ineffective assistance, Walton must demonstrate
that his counsel was deficient in failing to raise the issues he now presents and that there
was a reasonable probability of success had the claims been presented on appeal. State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶5} A claim of ineffective assistance of appellate is not available where an
appellant acts pro se in an appeal. State v. Thornton, 8th Dist. Cuyahoga No. 76014,
2000 Ohio App. LEXIS 1037 (Mar. 9, 2000); State v. Westbrook, 4th Dist. Scioto No.
11CA3455, 2012-Ohio-6292. The state argues that because Walton acted pro se in his
direct appeal, his claim of ineffective assistance should be denied because he failed to
raise the issue there. In Westbrook, the Fourth District held:
If a petitioner alleges errors that he raised on direct appeal or could have raised on direct appeal, then the doctrine of res judicata bars the claim for post-conviction relief. State v. Bradley, [4th Dist. Scioto No. 98CA2592, 1999 Ohio App.LEXIS 1469 (Mar. 30, 1999)]. “[T]he doctrine serves to preclude a defendant who has had his day in court from seeking a second on that same issue. In so doing, res judicata promotes the principles of finality and judicial economy by preventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. Because Westbrook had a prior opportunity to litigate the claims that he sets forth in his pro se arguments, they are also barred under the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
Id. at 15.
{¶6} Appellee argues Walton could have raised the current claims in his direct
appeal, and chose not to. Accordingly, res judicata could bar litigating those claims
here.
{¶7} However, appellate counsel filed an Anders brief, and Walton was forced to
proceed pro se. Under these circumstances, it may be inequitable to apply the doctrine
of res judicata. For instance, the First District addressed claims of ineffective assistance
of appellate counsel in State v. Fain, 188 Ohio App.3d 531, 2010-Ohio-2455, 936 N.E.2d
93 (1st Dist.). However, in that case, it is not clear whether the appellant filed a pro se
brief, or whether the First District’s procedure allowed for the filing of a pro se brief. In
any event, whether the doctrine of res judicata applies to the present application is not a
necessary determination for this case, as the application fails on the merits.
B. Denial of Motion to Suppress
{¶8} A suppression hearing was held on June 12, 2017. Two expert witnesses
appeared to testify about whether the results of blood tests did or did not show Walton
was impaired at the time of the crash. Walton argued that the results were incorrect
because severe trauma could release chemicals in the blood that would lead to a false positive or elevated test results for the presence of alcohol in the bloodstream. The state
asserted that the attack on the evidence was an attack on the results, and went to their
weight or credibility, not admissibility.
{¶9} The state’s expert witness, Dr. Christine Schmotzer, opined about the results
of blood tests and whether they accurately captured the amount of alcohol Walton
consumed. Those values ranged from 33 mg/dl to 31 mg/dl in whole blood. The assay
test used by the lab measured a byproduct of an enzymatic reaction. The test is subject
to a 10 to 15 percent variability. As a result, she opined that for criminal liability
purposes, the result is reduced by the variance factor and then converted to blood alcohol
content. In this case, that would result in a blood alcohol content of 0.028 mg/dl at the
minimum end. She stated that this is greater than the 0.02 mg/dl legal limited for drivers
between the age of 18 and 21 years old.
{¶10} Addressing the concerns raised by Walton in his motion to suppress, that
lactic acid and other byproducts of trauma to the body would elevate the results of the test
used by the lab, Dr. Schmotzer testified that the assay she used was less susceptible to this
interaction, but could not quantify the level of interference. She did indicate that certain
studies demonstrated the generation of chemicals that interfere with the test as a result of
trauma, but others did not. Finally, she opined that, within a reasonable degree of
scientific certainty, the results demonstrate that Walton’s blood alcohol level was above
0.02 mg/dl for whole blood as prohibited by R.C. 4511.19(B). {¶11} Walton called his own expert, Dr. Fred Staubus. Dr. Staubus disagreed
with Dr. Schmotzer’s analysis, and opined that Walton’s results were actually under the
legal limit. He further argued that using the testimony of Dr. Schmotzer, the test results
were so close to the legal limit that the results were within the bounds of susceptibility of
interference from trauma. As a result, he opined the tests could not show beyond a
reasonable doubt that Walton was above the legal limit set forth in R.C. 4511.19(B).
{¶12} The trial court found that the issues raised in the motion to suppress went to
the weight of the evidence, and denied the motion. Walton now argues that appellate
counsel should have raised an assignment of error regarding this decision, rather than
filing an Anders brief.
{¶13} There is no indication that the trial court erred in determining that the
arguments raised were an attack on the credibility of the evidence, not its admissibility.
Both expert witnesses testified that the test used in the hospital laboratory could generally
determine the presence of alcohol in a blood sample, but they disagreed on the meaning
of the results and whether the results indicated, within a reasonable degree of scientific
certainty, what Walton’s blood alcohol content was at the time the sample was analyzed.
This goes to the weight of the evidence. Walton’s expert disagreed with the findings of
the state’s witness and indicated that a further reduction in the result should have been
factored in as a result of chemicals that the body produces during trauma that could
elevate the results. {¶14} Again, this goes to the credibility of the evidence and the weight that the
finder of fact should give it. Walton did not demonstrate that the test was sufficiently
unreliable that the results should be excluded. Therefore, Walton has not demonstrated
a colorable claim of ineffective assistance of appellate counsel.
{¶15} Application denied.
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR