[Cite as State v. Rice, 2021-Ohio-4172.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109712 

 v. : 

 

DEVAUGHNTE RICE, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: APPLICATION DENIED

RELEASED AND JOURNALIZED: November 22, 2021 

 

Cuyahoga County Court of Common Pleas 

Case No. CR-19-636068-A 

Application for Reopening 

Motion No. 548919 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Mary M. Frey, Assistant Prosecuting 

Attorney, for appellee. 

Mary Catherine Corrigan, for appellant. 

EILEEN T. GALLAGHER, J.: 

Devaughnte Rice has filed a timely App.R. 26(B) application for 

reopening. Rice is attempting to reopen the appellate judgment, rendered in State 

v. Rice, 8th Dist. Cuyahoga No. 109712, 2021-Ohio-1882, that affirmed his 
conviction and sentence for the offense of having weapons while under disability 

(R.C. 2923.13(A)). We decline to reopen Rice’s appeal for the following reasons. 

I. Standard of Review Applicable to App.R. 26(B) Application for 

Reopening 

To establish a claim of ineffective assistance of appellate counsel, Rice 

is required to demonstrate that the performance of his appellate counsel was 

unreasonable and deficient. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 

(1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990). 

Moreover, even if Rice establishes that an error by his appellate 

counsel was professionally unreasonable and deficient, Rice must further establish 

that he was prejudiced; but for the unreasonable error there exists a reasonable 

probability that the results of his appeal would have been different. Reasonable 

probability, regarding an application for reopening, is defined as a probability 

sufficient to undermine confidence in the outcome of the appeal. State v. May, 8th 

Dist. Cuyahoga No. 97354, 2012-Ohio-5504. 

II. First Proposed Assignment of Error 

Rice’s sole proposed assignment of error is that: 

Trial Counsel was ineffective for failing to call co-defendant David 

Wagner to the stand, despite his availability, the fact that what he 

would testify to was known, and the fact that his testimony would be 

directly bearing on whether or not the defendant was complicit in the 

crime of having weapons while under disability. 

 
Rice, through his sole proposed assignment of error, argues that 

appellate counsel was ineffective by failing to argue on appeal that trial counsel 

failed to call a witness to testify at trial. Specifically, Rice argues that trial counsel 

was aware of the statement of Rice’s codefendant, made during a pretrial, that “I just 

want to tell you he ain’t got nothing to do with any [* * *].” 

A. Trial Attorney’s Trial Strategy 

In Strickland, supra, the United States Supreme Court held that a 

court’s scrutiny of an attorney’s work must be highly deferential. The court further 

stated that it is all too tempting for a defendant to second-guess his attorney after 

conviction and that it would be too easy for a court to conclude that a specific act or 

omission was deficient, especially when examining the matter in hindsight. Thus, a 

court must indulge in a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the challenged action 

might be considered sound trial strategy. Strickland. 

In addition, the decision about which witnesses to call involve matters 

committed to counsel’s professional judgment. State v. Williams, 99 Ohio St.3d 

493, 2003-Ohio-4396, 794 N.E.2d 27. See also State v. Jackson, 4th Dist. Lawrence 

No. 97CA2, 1997 Ohio App. LEXIS 5433 (Dec. 1, 1997). Generally, decisions to call 

witnesses is within the purview of defense counsel’s trial strategy and is not 

considered deficient performance absent a showing of prejudice. Stated differently, 

counsel’s decision whether to call a witness falls within the rubric of trial strategy 
and will not be second-guessed by a reviewing court. State v. Treesh, 90 Ohio St.3d 

460, 739 N.E.2d 749 (2001). 

Herein, we find that the decision to either call or not call Rice’s codefendant as a witness fell squarely within the confines of professional judgment 

based upon the mere statement of the codefendant that “I just want to tell you he 

ain’t got nothing to do with any [* * *].” Appellate counsel was not ineffective on 

appeal by failing to argue that trial counsel was ineffective by failing to call Rice’s codefendant as a witness. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 

N.E.2d 810; State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229; 

State v. Henderson, 8th Dist. Cuyahoga No. 106627, 2018-Ohio-3797. 

B. Failure to Demonstrate Reasonable Probability of Different Outcome 

Also, Rice has failed to demonstrate that the testimony of his codefendant would have resulted in a different outcome on appeal. Specifically, that 

there exists a reasonable probability that the results of his appeal would have been 

different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome. State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio5504. 

Herein, this court has previously determined that Rice’s conviction 

for having a weapon while under disability was supported by sufficient evidence and 

was not against the manifest weight of the evidence. Regarding sufficiency, this 

court held that: 
Viewing this evidence in a light most favorable to the prosecution, we 

find a rational trier of fact could have found the essential elements of 

the offense proven beyond a reasonable doubt. From the evidence 

presented, the court could reasonably conclude that Rice participated 

in the crimes at issue and shared criminal intent in light of his actions 

before, during, and after the shooting. Because Rice was under a 

disability and aided and abetted his codefendants in the commission of 

the underlying offenses with a firearm, we find that the state presented 

sufficient evidence of constructive possession to support Rice’s 

conviction for having a weapon while under disability. 

State v. Rice, supra, ¶ 33. 

Regarding the issue of manifest weight, this court held that: 

Based on the record before this court, we cannot say that in resolving 

conflicts in the evidence, the trier of fact clearly lost its way and created 

such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered. As stated, the trial court had the 

benefit of reviewing the surveillance footage and was not bound by the 

jury’s resolution of Counts 2-9. Having weighed the surveillance 

footage and the corroborating testimonial and physical evidence 

presented by the state, we find Rice’s conviction for having weapons 

while under disability was not against the manifest weight of the 

evidence. Collectively, the evidence demonstrated Rice’s disability and 

his participation or assistance in the commission of crimes that 

involved the use of a firearm. 

State v. Rice, supra, ¶ 38. 

The statement of Rice’s codefendant, that “I just want to tell you he 

ain’t got nothing to do with any [* * *],” does not create a reasonable probability to 

undermine confidence in the outcome of the appeal based upon our prior finding 

that Rice’s conviction was supported by sufficient evidence and not against the 

manifest weight of the evidence. 

Accordingly, we find that Rice has failed to establish that appellate 

counsel was ineffective on appeal. 
Application denied. 

 

EILEEN T. GALLAGHER, JUDGE 

EILEEN A. GALLAGHER, P.J., and 

EMANUELLA D. GROVES, J., CONCUR