[Cite as State v. McClellan, 2018-Ohio-398.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

LEVANDER V. MCCLELLAN : Case No. 2017CA00188 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No.2016CR0465 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: January 31, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO LEVANDER V. McCLENNAN, Pro Se 

Prosecuting Attorney Richland Correctional Institution 

By: KRISTINE W. BEARD Inmate No. A684-089 

Assistant Prosecuting Attorney 1001 S. Olivesburg Road 

110 Central Plaza South, Suite 510 Mansfield, OH 44905 

Canton, OH 44702 
Stark County, Case No. 2017CA00188 2 

Wise, Earle, J. 

{¶1} Defendant-Appellant, Levander V. McClellan appeals the September 20, 

2017 judgment of the Stark County Court of Common Pleas denying his motion for postconviction relief. Plaintiff-Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} The case involved a controlled buy of an ounce of cocaine between 

appellant and FBI source Cleveland Thomas. On January 29, 2016, Thomas met with 

agents, was searched, provided with $1,450 in U.S currency to purchase cocaine from 

appellant, and equipped with audio and video recording devices. Thomas went to 

appellant’s house twice that day. The first time, the crack was not yet ready. The second 

time, Thomas was again prepared by agents, went to appellant's house and purchased 

one ounce of cocaine from appellant. Thomas then left and met agents at a designated 

debriefing location. 

{¶3} After Thomas left appellant's house, he met with the FBI agents; the agents 

took the cocaine and searched him again. Thomas stated appellant was the man who 

sold him cocaine that day. 

{¶4} The Stark County Crime Lab examined the cocaine Thomas purchased 

from appellant and found it to be 27.96 grams of a cocaine mixture. 

{¶5} On April 5, 2016, appellant was indicted on one count of trafficking in 

cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(f), a felony of the first degree. A jury trial 

was held on June 28, 2016, and appellant was found guilty as charged. He was 

subsequently sentenced to nine years incarceration. 
Stark County, Case No. 2017CA00188 3 

{¶6} Appellant appealed his conviction, raising one assignment of error; that his 

conviction was against the manifest weight and sufficiency of the evidence. We affirmed 

appellant’s conviction and sentence, and the Supreme Court of Ohio denied review. State 

v. McClellan 5th Dist. Stark No. 2016CA00142, 2017-Ohio-4402, appeal not allowed, 150 

Ohio St.3d 1454, 2017-Ohio-8136, 83 N.E.3d 939. 

{¶7} On August 21, 2017, appellant filed a petition for postconviction relief. On 

September 20, 2017, the trial court denied the petition. Appellant filed an appeal and the 

matter is now before this court for consideration. 

I 

{¶8} "AT TRIAL APPELLANTS (SIC) SIX AND FOURTEENTH AMENDMENTS 

WERE VIOLATED AND OHIO CONST. 1.10. WERE (SIC) TRIAL COURT DIDN'T 

REMOVE JUROR NO. 37 FOR CAUSE AND MY ATTORNEY DIDNT (SIC) USE 

PEREMPTORY CHALLENGE TO EXCUSE." 

II 

{¶9} "AT TRIAL APPELLANTS (SIC) SIX AND FOURTEENTH AMENDMENT 

RIGHTS WAS VIOLATED WHEN APPELLANTS (SIC) TRIAL ATTORNY (SIC) FAILED 

TO OBJECT AND ASK FOR A RACE NEUTERAL (SIC) REASON FOR THE 

PROSECUTOR USING HER FIRST PEREMPTORY CHALLENGE FOR EXCUSING 

JUROR NO. 28 A AFRICAN AMERICAN FEMALE." 

III 

{¶10} "TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO EXAMING (SIC) 

THE PROSECUTORS FILES AND FAILING TO PRESENT VIDEO EVIDENCE TO THE 

JURY." 
Stark County, Case No. 2017CA00188 4 

IV 

{¶11} "SIX AMENDMENT U.S. CONSTITUTION; SECTION 10, ARTICLE 1 OHIO 

CONSTITUTION WAS VIOLATED. TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO INVESTIGATE AND DETERMINE A POSSIBLE DEFENSE AND FAILING 

TO INTERVIEW WITNESS SARA BURGHY." 

I, II 

{¶12} Preliminarily, we note this case is before this court on the accelerated 

calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment 

on appeal, provides in pertinent part: “The appeal will be determined as provided by 

App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the 

reason for the court's decision as to each error to be in brief and conclusionary form.” 

{¶13} One of the important purposes of the accelerated calendar is to enable an 

appellate court to render a brief and conclusory decision more quickly than in a case on 

the regular calendar where the briefs, facts, and legal issues are more complicated. 

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th 

Dist.1983). 

{¶14} This appeal shall be considered in accordance with the aforementioned 

rules. 

{¶15} In his first two assignments of error, appellant states jury selection during 

his trial was flawed, and thus presumably that the trial court erred in denying his motion 

for postconviction relief. Specifically, appellant raises a Batson challenge, and also 

argues Juror 37 should have been excused due to prejudices regarding illicit drugs. 
Stark County, Case No. 2017CA00188 5 

{¶16} First, in reviewing a trial court's denial of appellant's petition for 

postconviction relief, absent a showing of abuse of discretion, we will not overrule the 

trial court's finding if it is supported by competent and credible evidence. State v. Bound, 

5th Dist. Guernsey No. 04CA8, 2004-Ohio-7097 ¶ 19. 

{¶17} Next, appellant’s jury selection arguments are barred under the 

doctrine of res judicata. This information was available to appellant at the time of his 

direct appeal. The doctrine of res judicata is applicable to petitions for postconviction 

relief. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraphs eight and 

nine of the syllabus. The Perry court explained the doctrine at 180-181: 

Under the doctrine of res judicata, a final judgment of conviction bars 

a convicted defendant who was represented by counsel from raising 

and litigating in any proceeding except an appeal from that judgment, 

any defense or any claimed lack of due process that was raised or 

could have been raised by the defendant at trial, which resulted in 

that judgment of conviction, or on an appeal from that judgment. 

{¶18} Appellant was represented by counsel and could have raised 

his jury selection arguments in his direct appeal. The trial court therefore properly 

rejected appellant’s jury selection arguments. Accordingly, appellant’s first and 

second assignments of error are overruled. 
Stark County, Case No. 2017CA00188 6 

III, IV 

{¶19} Appellant next appears to argue his motion for postconviction relief 

should have been granted because his trial counsel was ineffective. Specifically, 

appellant alleges counsel rendered ineffective assistance by failing to call Sara 

Burghy to testify. Appellant further alleges that more video of Thomas’ visits to 

appellant’s home exist than was shown at trial and that if counsel had shown all 

the videos to the jury, the outcome of his trial would have been different. 

{¶20} The standard for ineffective assistance of counsel is set forth in State 

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), certiorari denied 497 U.S. 

1011, 110 S.Ct. 3258, 111 L.Ed.2d 768. Appellant must establish two criteria. First 

that counsel's performance fell below an objective standard of reasonable 

representation and second, that prejudice arises from counsel's performance. Id. 

142. 

{¶21} In other words, appellant must establish “... but for counsel's 

unprofessional errors, the result of the proceedings would have been different.” 

Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). 

{¶22} In reviewing appellant’s petition for postconviction relief, we find 

appellant’s petition included no evidence de hors the record to support his 

allegations of ineffective assistance. The petitioner bears the burden of supporting 

his claim with evidentiary quality materials. State v. Massey, Stark App. 

No.2001CA00136, 2001-Ohio-1746, *3, citing State v. Jackson (1980), 64 Ohio 

St.2d 107, 413 N.E.2d 819. Appellant did not disclose what Burghy’s testimony 
Stark County, Case No. 2017CA00188 7 

would have been, and included no affidavit from Burghy. Appellant further failed to 

disclose what the alleged videos contained or how they would have changed the 

outcome of his trial. 

{¶23} Appellant’s third and fourth assignments of error are therefore 

overruled. 

By Wise, Earle, J. 

Gwin, P.J. and 

Delaney, J. concur.