State v. Davenport
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[Cite as State v. Davenport, 2013-Ohio-1144.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,
:
Plaintiff-Appellee,
:
v.
:
Carlos Davenport,
:
Defendant-Appellant.
:
No. 11AP-1159
(C.P.C. No. 10CR-05-2709)
(REGULAR CALENDAR)
D E C I S I O N
Rendered on March 26, 2013
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellee.
The Law Office of Eric J. Allen, LTD, and Eric J. Allen, for
appellant.
ON APPLICATION TO REOPEN
TYACK, J.
{¶ 1} Carlos Davenport has filed an application to reopen his direct appeal,
alleging that his appellate counsel rendered ineffective assistance of counsel. Davenport
and his new counsel rely on App.R. 26(B), which reads:
(1) A defendant in a criminal case may apply for reopening of
the appeal from the judgment of conviction and sentence,
based on a claim of ineffective assistance of appellate counsel.
An application for reopening shall be filed in the court of
appeals where the appeal was decided within ninety days from
journalization of the appellate judgment unless the applicant
shows good cause for filing at a later time.
No. 11AP-1159
(2) An application for reopening shall contain all of the
following:
(a) The appellate case number in which reopening is sought
and the trial court case number or numbers from which the
appeal was taken;
(b) A showing of good cause for untimely filing if the
application is filed more than ninety days after journalization
of the appellate judgment.
(c) One 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;
(d) A sworn statement of the basis for the claim that appellate
counsel's representation was deficient with respect to the
assignments of error or arguments raised pursuant to division
(B)(2)(c) of this rule and the manner in which the deficiency
prejudicially affected the outcome of the appeal, which may
include citations to applicable authorities and references to
the record;
(e) Any parts of the record available to the applicant and all
supplemental affidavits upon which the applicant relies.
(3) The applicant shall furnish an additional copy of the
application to the clerk of the court of appeals who shall serve
it on the attorney for the prosecution. The attorney for the
prosecution, within thirty days from the filing of the
application, may file and serve affidavits, parts of the record,
and a memorandum of law in opposition to the application.
(4) An application for reopening and an opposing
memorandum shall not exceed ten pages, exclusive of
affidavits and parts of the record. Oral argument of an
application for reopening shall not be permitted except at the
request of the court.
(5) An application for reopening shall be granted if there is a
genuine issue as to whether the applicant was deprived of the
effective assistance of counsel on appeal.
2
No. 11AP-1159
3
(6) If the court denies the application, it shall state in the
entry the reasons for denial. If the court grants the
application, it shall do both of the following:
(a) appoint counsel to represent the applicant if the applicant
is indigent and not currently represented;
(b) impose conditions, if any, necessary to preserve the status
quo during pendency of the reopened appeal.
The clerk shall serve notice of journalization of the entry on
the parties and, if the application is granted, on the clerk of
the trial court.
(7) If the application is granted, the case shall proceed as on
an initial appeal in accordance with these rules except that the
court may limit its review to those assignments of error and
arguments not previously considered. The time limits for
preparation and transmission of the record pursuant to
App.R. 9 and 10 shall run from journalization of the entry
granting the application. The parties shall address in their
briefs the claim that representation by prior appellate counsel
was deficient and that the applicant was prejudiced by that
deficiency.
(8) If the court of appeals determines that an evidentiary
hearing is necessary, the evidentiary hearing may be
conducted by the court or referred to a magistrate.
(9) If the court finds that the performance of appellate counsel
was deficient and the applicant was prejudiced by that
deficiency, the court shall vacate its prior judgment and enter
the appropriate judgment. If the court does not so find, the
court shall issue an order confirming its prior judgment.
{¶ 2} Davenport's new appellate counsel lists four issues which he asserts should
have been raised by prior appellate counsel:
I. APPELLANT WAS DENIED HIS RIGHT TO A FAIR AND
IMPARTIAL COURT WHEN HE WAS DENIED ACCESS TO
THE SEARCH WARRANT FOR HIS CELLULAR PHONE, AS
WELL AS HIS CELLULAR PHONE WHICH HELD
EXCULPATORY INFORMATION, AND WHEN HE HAD HIS
BOND REVOKED WITHOUT CAUSE AND WAS JAILED
FOR REQUESTING APPOINTED COUNSEL.
No. 11AP-1159
4
II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL FOR FAILING TO FILE A MOTION TO
SUPPRESS THE UNLAWFUL SEARCH OF THE CELLULAR
PHONE.
III. APPELLANT WAS DENIED DUE PROCESS
GUARANTEED BY THE FIFTH AMENDMENT TO THE
FEDERAL CONSTITUTION AND MADE APPLICABLE TO
THE STATES BY THE FOURTEENTH AMENDMENT
WHEN THE TRIAL COURT REFUSED TO ALLOW
APPELLANT TO INTRODUCE PHONE RECORDS
DETAILING
CALLS
BETWEEN
HE
AND
THE
PROSECUTING WITNESS' MOTHER AND WHEN THE
COURT REFUSED TO ALLOW APPELLANT TO
INTRODUCE A VIDEO OF APPELLANT AND THE
DETECTIVE IN THIS CASE DISCUSSING THE
EXCULPATORY EVIDENCE CONTAINED ON THE CELL
PHONE.
IV. THE TRIAL COURT COMMITTED PLAIN ERROR AND
VIOLATED APPELLANT'S RIGHT TO DUE PROCESS BY
APPOINTING HIS RETAINED ATTORNEY WITHOUT HIS
KNOWLEDGE OR PERMISSION.
{¶ 3} The fourth issue attacks the trial court's appointing of the attorney who
Davenport hired to represent him to continue representing him. Davenport stopped
paying the attorney which caused their relationship to deteriorate. The trial court judge,
rather than get a new attorney involved and delay the trial while the new attorney
investigated the case, appointed the originally retained attorney while expressing doubts
that Davenport was indigent even though a $250,000 bond had been posted. This all
occurred over one year before the trial commenced. In fact, a new defense attorney did
become involved and the new attorney tried the case. The trial court judge's actions in
trying to avoid further delays in the case going to trial did not prejudice Davenport in any
way. Former appellate counsel had no basis for asserting this issue as prejudicial error
and clearly was not rendering ineffective assistance of counsel when he failed to assert it.
{¶ 4} The issue at trial was whether Davenport sexually abused a young child, not
whether Davenport continued to talk to the child's mother on a cell phone after the child
began claiming that Davenport had sexually abused the child. The child testified at the
trial. Davenport testified at the trial and categorically denied sexually abusing the child.
No. 11AP-1159
5
The jury clearly did not believe that Davenport's testimony raised a reasonable doubt
about the accuracy of the child's testimony and claims of sexual abuse.
{¶ 5} Nothing in the record on appeal suggests that the child had any access to the
cell phone or any involvement with the cell phone's contents. Whether the search of the
cell phone was proper was irrelevant to the central issue in the case. The argument about
the cell phone and its contents shows all the signs of being the proverbial red herring.
Appellate counsel did not have to pursue those issues.
{¶ 6} The cell phone issue, despite its irrelevance, was addressed in the trial court.
Further, Davenport and his counsel had the opportunity to develop cell phone records
about calls to Davenport's cell phone. The fact that the child's mother continued to
communicate with Davenport did not mean the child was lying about the sexual abuse.
{¶ 7} Further, the record before us does not show that police unlawfully searched
the cell phone. Davenport claimed to police that he had cleared the phone of most or all
of its contents, so there was apparently nothing to search for or seize. Again, the cell
phone issues could not have created prejudicial error so prior counsel did not fail his
duties to Davenport by failing to assert the issues via assignment of error.
{¶ 8} No ineffective assistance of appellate counsel occurred.
{¶ 9} The application for reopening under App.R. 26(B) is denied.
Application for reopening denied.
SADLER and DORRIAN, JJ., concur.
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