[Cite as State v. Keeley , 2014-Ohio-693.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 13CA34

vs. : DAVID KEELEY, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________ APPEARANCES:

APPELLANT PRO SE: David Keel ey, #647623, Belmont Correctional Inst., P.O. Box 540, St. Clairesville, Ohio 43950

COUNSEL FOR APPELLEE: James E. Sc hneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, 205 Putnam Street, Marietta, Ohio 45750

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 2-21-14 ABELE, P.J. {¶ 1} This is an appeal from a Washington C ounty Common Pleas Court judgment that denied a post-conviction relief pe tition by David Keeley, petitioner below and appella nt herein. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT VIOLATED THE PETITIONERS [sic ] RIGHTS TO DUE PROCESS OF THE LAW WHEN IT FAILED TO CLEAR WAY THE JURIES [sic ] CONFUSION AND PLAIN ERROR FOR FAILING TO CLARIFY THEIR CONFUSION.”SECOND ASSIGNMENT OF ERROR: “THE STATES [sic ] USE OF ‘EXPERT’ TESTIMONY PREJUDICED THE APPELLANT AND ADDED TO THE JURIES [sic ] CONFUSION. THE USE OF THESE TESTIMONIES CAUSED THE JURY TO LOSE ITS WAY. THE TESTIMONIES WERE NOT VALID AGAINST PROVEN SCIENTIFIC AND PSYCHOLOGICAL METHODOLOGY. PROSECUTORIAL MISCONDUCT AND PLAIN ERROR SHOULD APPLY.”

THIRD ASSIGNMENT OF ERROR 1 : “THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTION UNDER THE STANDARDS OF ‘SUFFICIENCY OF EVIDENCE’ AND ‘MANIFEST WEIGHT OF THE EVIDENCE’.”

FOURTH ASSIGNMENT OF ERROR:

“THE PROSECUTOR’S MISCONDUCT DEMONSTRATED UNPROFESSIONALISM AND VINDICTIVENESS [AND] DENIED THE APPELLANT [sic ] RIGHTS TO A FAIR AND IMPARTIAL TRIAL. HIS ACTIONS INSIDE AND OUTSIDE THE COURTROOM DEMONSTRATE THAT THIS HAD BECOME A PERSONAL VENDETTA AGAINST THE APPELLANT AND HIS FAMILY.”

FIFTH ASSIGNMENT OF ERROR:

“TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FOR THE REASONS LISTED BELOW WHICH VIOLATED THE APPELLANTS [sic ] RIGHTS TO A FAIR AND IMPARTIAL TRIAL AGAINST THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.”

SIXTH ASSIGNMENT OF ERROR:

1 The statement of assignments of error in appellant’s brief labels this assignment of error as “Argument 2A”. However, because no provision exists for su bdividing assignments of error in the rules of appellate procedure, we re-label this as “assignment of error number three.” Consequently, we also renumber the remaining assignments of error.[Cite as State v. Keeley , 2014-Ohio-693.] “THE STATES [sic ] USE OF ELECTRONIC SURVEILLANCE VIOLATED THE APPELLANTS [sic ] FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTIONAL RIGHTS [sic ] AND ALSO VIOLATED TITLE iii STATUTE [sic ].” {¶ 2} In 2011, a jury found appellant guilty of (1 ) two counts of rape in violation of R.C. 2902.02(A)(1)(c)&(B), and (2) three counts of gross sexual imposition in violation of R.C. 2907.05(A)(5)&(B). The trial court sentenced appe llant to serve seven years in prison. We

affirmed his conviction. See State v. Keeley , 4 th Dist. Washington No. 11CA5, 2012-Ohio-3564 ( Keeley I ). The Ohio Supreme Court denied further appeal. See State v. Keeley , 134 Ohio St.3d 1508, 2013-Ohio-1123, 984 N.E.2d 1102 ( Keeley IA ). {¶ 3} On December 5, 2011, while his first appeal of right was pending , appellant filed a petition for postconviction relief w ith the trial court. Although the court dismissed the petition on res judicata grounds, we reversed the j udgment and remanded the case for further proceedings. In so doing, a majority of this Court held that res judicata did not bar arguments from being raised on post-convi ction relief if an appeal of right was pending. See State v. Keeley , 2013-Ohio-474, 989 N.E.2d 80 (4 th Dist.) ( Keeley II ). The Ohio Supreme Court denied an appeal from th at decision. See State v. Keeley , 135 Ohio St.3d 1460, 2013-Ohio-2285, 988 N.E.2d 579 ( Keeley IIA ). {¶ 4} On August 8, 2013, after our reversal and remand of Keeley II , the trial court entered judgment and found that a ppellant “failed to show that he is entitled to post conviction relief.” This appeal followed. {¶ 5} At the outset, we note that appellant’s assignments of error have nothing to do with the trial court’s ruling on his postconviction relief petition. Rather, they are generally directed to errors allegedly committed during the trial proceedings. Cons equently, we considerWASHINGTON, 13CA34 4 together all six assignments of error because (1) all may be disposed of under the doctrine of res judicata, and (2) appellant does not actually claim that the trial court erred by ruling on his petition under R.C. 2953.21 et seq. {¶ 6} As we noted in Keeley II , a defendant who seeks postc onviction relief cannot raise any issue that he could have raised, but did not, in a first a ppeal of right. See State v. Szefcyk , 77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996) at the sy llabus. Likewise, an issue raised and adjudicated in a first of app eal of right cannot be raised again on postconviction relief. State v. Thompkins , 10 th Dist. Franklin No. 12AP–1080, 2013-Ohio-3599, at ¶10; State v. Harper , 5 th Dist. Guernsey No. 12CA22, 2013-Ohio-1781, at ¶39. In the case sub judice, appellant’s brief appears to litigate, or re-litigate, a number of issues that already have been raised, or should have been raised, in Keeley I

.

{¶ 7} Appellant’s first argument involves questions the jury raised during deliberation concerning the victim's guardianship and whether the State had “guidelines for sexual consent due to mental level.” Appellant argues that the trial court’s failure to “clear away the juries {sic] confusion” amounts to plain error and violates due process. {¶ 8} First, this issue could have been raised in Keeley I, but was not. Consequently, res judicata now bars the issue from being ra ised. Second, questions from a jury during deliberation are routine and genera lly are not a sign of confusion. Third, the questions the jury did ask are irrelevant. Fourth, when the trial c ourt declined to answer their questions, defense

counsel was asked if he wanted the court to say anything else on the matter. Counsel answered in the negative. There is no merit to this issue.WASHINGTON, 13CA34 5 {¶ 9} Appellant also argues that the trial court erred by allowing several witnesses to give expert testimony. However, we examined this issue in Keeley I , supra at ¶¶21-25, albeit in

the context of whether the victim’s mother coul d give expert testimony about her daughter. Appellant could have al so raised questions concerning wh ether the other two witnesses are qualified, but he faile d to do so. Res judicata bars thes e issues from being raised again. Moreover, we find nothing in appella nt’s brief to persuade us that this issue would have merit. {¶ 10} The next argument is that insufficient evidence supports appellant’s convictions and that they are against the manifest weight of the evidence. We, however, have previously ruled against appellant on the latter issue. See Keeley, I , supra at ¶20. Appellant could also have raised a sufficiency of the evidence argument at the same time, but did not. Appellant is barred from doing so now by the doctrine of res j udicata. Furthermore, even if the issue had been raised, and even though sufficiency and mani fest weight are differe nt questions, we would nevertheless have ruled ag ainst appellant on a sufficiency challe nge in view of our recitation of

all of the evidence we reviewed in Keeley I

. {¶ 11} Appellant also argues that he is th e victim of prosecutorial misconduct and constitutionally ineffectiv e assistance from his trial counsel. We, however, already considered

these issues in Keeley I and ruled against appella nt on both. Id. at ¶¶27-31. {¶ 12} Finally, appellant claims th at the “controlled phone call” to him from the victim’s mother, while police were listening, violated his constitutional rights. To begin, if appellant

believed this constituted a violation of his rights, he should ha ve raised the issue in a pre-trial motion to suppress. Nothing in the record indi cates that he did. Thus, appellant waived the

issue. This is also an issue that could have been raised, but was not, in Keeley I and is thusWASHINGTON, 13CA34 6 barred by res judicata. Furthermore, this phone ca ll is not – as appellant suggests in his brief– a “wiretap.” Appellant’s family and the victim’s family were friends, and this would have been nothing more than a call between those friends, not a “tap” that authorities needed permission from a court to place. Furthermore, as the St ate aptly notes in its brief, R.C. 2933.52(B)(3) permits the interception of a phone call if one party to that call (i n this case, the victim’s mother) has given consent. Thus, this activity did not result from a statutory violation or a Fourth

Amendment violation. See State v. Haynes ,11th Dist. Ashtabula No. 2012–A–0032, 2013-Ohio-2401, at ¶46; State v. Hennis , 2 nd Dist. Clark No. Civ.A. 2003CA21, 2005-Ohio-51, at ¶20. {¶ 13} For all of these reasons, we find no merit to any argument appellant raised in his petition for postconviction relief. T hus, we find no error in the trial court’s decision to deny that petition and we hereby overrule appellant’s assignments of error and affirm the trial court's judgment.

JUDGMENT AFFIRMED.[Cite as State v. Keeley , 2014-Ohio-693.] JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee rec over of appellant costs

herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to ca rry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. McFarland, J. & Hoover, J.: Concur in Judgment & Opinion

For the Court

BY: Peter B. Abele Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.