State v. Jones

[Cite as State v. Jones, 2014-Ohio-3064.]

COURT OF APPEALS

ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

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

Plaintiff-Appellee : Hon. Sheila G. Farmer, J.

: Hon. Craig R. Baldwin, J.

-vs- :

:

ELMER JONES, III : Case No. 14-COA-002

:

Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common

Pleas, Case No. 12-CRI-045

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 11, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PAUL T. LANGE MELISSA M. PRENDERGAST

110 Cottage Street 250 East Broad Street

Third Floor Suite 1400

Ashland, OH 44805 Columbus, OH 43215

Ashland County, Case No. 14-COA-002 2

Farmer, J.

{¶1} On April 27, 2012, the Ashland County Grand Jury indicted appellant,

Elmer Jones, III, on three counts of rape in violation of R.C. 2907.02 and one count of

gross sexual imposition in violation of R.C. 2907.05. Said charges arose from incidents

involving a twelve year old child.

{¶2} On May 23, 2012, defense counsel filed a motion for a psychological

evaluation to determine appellant's mental capacity. A hearing was held on June 26,

2012. During the course of the hearing, defense counsel modified the motion and

requested a competency evaluation. By judgment entry filed June 27, 2012, the trial

court ordered a competency evaluation to determine appellant's competency to stand

trial.

{¶3} On June 17, 2012, a pretrial was held wherein the trial court reviewed

appellant's competency evaluation. By judgment entry filed same date, the trial court

found appellant competent to stand trial and assist in his defense.

{¶4} On July 20, 2012, appellant filed a motion to suppress, claiming an

unlawful arrest, his right to counsel was violated, and any confessions were not

voluntarily made. A hearing was held on August 9, 2012. By judgment entry filed

September 9, 2012, the trial court denied the motion, finding the first two interviews of

appellant (March 28, and April 24, 2012) did not constitute custodial interrogation

requiring Miranda warnings, appellant was properly advised of his rights prior to the

third interview on April 24, 2012 at the police department, appellant's statements to

police were voluntary, and probable cause existed for the arrest.

Ashland County, Case No. 14-COA-002 3

{¶5} A jury trial commenced on October 23, 2012. The jury found appellant

guilty as charged. By judgment entry filed January 16, 2013, the trial court sentenced

appellant to an aggregate term of thirty years to life in prison. Appellant's conviction and

sentence were affirmed on appeal. State v. Jones, 5th Dist. Ashland No. 13 COA 012,

2014-Ohio-1716.

{¶6} On November 27, 2013, appellant filed a petition for postconviction relief,

claiming ineffective assistance of trial counsel for counsel's failure to pursue the issue of

his intellectual disabilities. By judgment entry filed December 18, 2013, the trial court

denied the petition without hearing, finding no ineffective assistance of trial counsel or

prejudice to appellant.

{¶7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶8} "JOE JONES WAS DENIED HIS FEDERAL AND STATE

CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

DURING HIS TRIAL COURT PROCEEDINGS, AND THE TRIAL COURT ABUSED ITS

DISCRETION WHEN IT DENIED HIS PETITION FOR POSTCONVICTION RELIEF.

SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

II

{¶9} "JOE JONES'S TRIAL COUNSEL FAILED TO INVESTIGATE JOE'S

INTELLECTUAL DISABILITY TO SUPPORT THE MOTION TO SUPPRESS COUNSEL

FILED. BECAUSE AMPLE EVIDENCE EXISTS TO SUPPORT THE ARGUMENT

Ashland County, Case No. 14-COA-002 4

THAT JOE IS UNABLE TO COMPREHEND THE IMPORT OF HIS WAIVER OF THE

RIGHT AGAINST SELF-INCRIMINATION, TRIAL COUNSEL WAS INEFFECTIVE IN

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION."

I, II

{¶10} Appellant claims the trial court erred in denying his petition for

postconviction relief based on ineffective assistance of trial counsel, as the evidence

presented dehors the record was sufficient to establish that his trial counsel was

ineffective for failing to investigate and present evidence of his mental

capacity/intellectual disabilities. We disagree.

{¶11} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)

states the following in pertinent part:

The court shall consider a petition that is timely filed under division

(A)(2) of this section even if a direct appeal of the judgment is pending.

Before granting a hearing on a petition filed under division (A) of this

section, the court shall determine whether there are substantive grounds

for relief. In making such a determination, the court shall consider, in

addition to the petition, the supporting affidavits, and the documentary

evidence, all the files and records pertaining to the proceedings against

the petitioner, including, but not limited to, the indictment, the court's

Ashland County, Case No. 14-COA-002 5

journal entries, the journalized records of the clerk of the court, and the

court reporter's transcript.

{¶12} The standard of review on a denial of a postconviction relief petition is

explained by our brethren from the Eighth District in State v. Hines, 8th Dist. Cuyahoga

No. 89848, 2008-Ohio-1927, ¶ 8:

"A postconviction proceeding is not an appeal of a criminal

conviction, but, rather, a collateral civil attack on the judgment." State v.

Steffen (1994), 70 Ohio St.3d 399, 410, 1994-Ohio-11. In postconviction

cases, a trial court acts as a gatekeeper, determining whether a defendant

will even receive a hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-

Ohio-6679. In State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, the

Ohio Supreme Court held that the trial court's gatekeeping function in the

postconviction relief process is entitled to deference, including the court's

decision regarding the sufficiency of the facts set forth by the petitioner

and the credibility of the affidavits submitted. Accordingly, we review

appellant's postconviction claims brought pursuant to R.C. 2953.21 under

an abuse-of-discretion standard. Id. An abuse of discretion is more than

a mere error in judgment, it implies that a court's ruling is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219.

Ashland County, Case No. 14-COA-002 6

{¶13} The standard of ineffective assistance of trial counsel is set forth in State

v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus.

Appellant must establish the following:

2. Counsel's performance will not be deemed ineffective unless and

until counsel's performance is proved to have fallen below an objective

standard of reasonable representation and, in addition, prejudice arises

from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

3. To show that a defendant has been prejudiced by counsel's

deficient performance, the defendant must prove that there exists a

reasonable probability that, were it not for counsel's errors, the result of

the trial would have been different.

{¶14} Appellant summarized his reasons for postconviction relief in his

November 27, 2013 petition as follows in part:

2) Mr. Jones' convictions and sentences are void and/or voidable

because he was denied the effective assistance of counsel at his trial to

which he was entitled under the Sixth and Fourteenth Amendments to the

United States Constitution. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mr. Jones' trial counsel failed to

Ashland County, Case No. 14-COA-002 7

employ a competent expert to refute the findings of the Forensic

Diagnostic Center that his full-scale I.Q. of 61 was questionable. (See

July 17, 2012 Judgment Entry; July 19, 2012 Judgment Entry; and Aug.

16, 2012 State's Closing Argument on Defendant's Motion to Suppress, at

p. 3). Mr. Jones' trial counsel also failed to investigate his client's

intellectual disability by seeking out appropriate documentary proof of that

disability, including but not limited to medical records, educational records,

and records of county, state, and federal agencies and boards who

manage and administer government-provided disability benefits.

7) Competent defense counsel would have realized the critical

importance of the FDC's finding and suggestion of Mr. Jones' malingering.

To rebut that finding and support Mr. Jones' meritorious motion to

suppress, defense counsel would have had to investigate Mr. Jones'

medical, educational, employment, and psychological history. Counsel

would have had to obtain releases from Mr. Jones and request records

from the Social Security Administration, local and state developmental

disability boards, physicians, and schools, among others. Counsel did no

investigation to support Mr. Jones' claims. In fact, counsel even withdrew

his motion for expert funds, which may have provided the critical evidence

needed to rebut the FDC's adverse findings.

{¶15} Attached to the petition are the certified records from the Cuyahoga

County Board of Developmental Disabilities, indicating the presence of a

Ashland County, Case No. 14-COA-002 8

"developmental handicap" (September 29, 1983), physical and mental impairments with

substantial functional limitations in "receptive and expressive language," "self direction,"

and "economic self sufficiency," (January 11, 1995), and "mildly MR" (May 13, 1994).

Appellant was born on February 14, 1969.

{¶16} In its December 18, 2013 judgment entry denying the petition for

postconviction relief, the trial court addressed in detail the issues raised by appellant in

its Findings of Fact:

3. Prior to trial, the Court referred the Defendant to the Forensic

Diagnostic Center, Mansfield, Ohio for an assessment as to his

competency to stand trial. Dr. Covey, who performed the assessment,

rendered an opinion "with reasonable psychological certainty" that the

Defendant "has the capacity to understand the nature and objectives of

the proceedings against him and does currently have the capacity to

assist in his defense."

4. Dr. Covey, during his assessment, administered a Weschler

Adult Intelligence Scale IV, and although Dr. Covey determined that the

Defendant had not made a good effort on the test, the results were

considered in his assessment.

5. Dr. Covey, in his assessment, specifically found that the

Defendant did not qualify for a diagnosis of mental retardation (cognitive

disability). The only deficit of the Defendant was in adaptive functioning,

an academic deficit.

Ashland County, Case No. 14-COA-002 9

6. While Defendant submits records that suggest he was

intellectually disabled as a child, those records and findings do not, due to

their age and the age of the Defendant at the time they were compiled,

refute the findings of Dr. Covey in his assessment of the Defendant as an

adult.

7. Defendant fails to establish how prior counsel's failure to make

additional inquiries, in light of Dr. Covey's assessment, would have

necessitated a second forensic assessment.

{¶17} Following its Conclusions of Law, the trial court decided the following:

In the present case, the Court finds that Defendant fails in his

burden to demonstrate a lack of competent counsel, and fails to

demonstrate that the defense was prejudiced by any asserted

ineffectiveness. There is no indication, based on any of the information or

documentation presented by Defendant, that Defendant's motion to

suppress would have had any additional potential for success. The issue

at the suppression hearing was whether Defendant's statements of

admission were voluntary. There is no evidence in the record to suggest

they were not. The Court cannot see how the retention of an additional

expert by prior defense counsel would have changed the facts and

circumstances leading to the admissions the Court determined were

admissible.

Ashland County, Case No. 14-COA-002 10

Based on the foregoing, the Court finds no grounds for granting the

Defendant's petition for relief. The Court therefore DENIES Defendant's

Post-Conviction Petition.

{¶18} Some twenty-eight days after appellant's arraignment, on May 23, 2012,

defense counsel filed a motion for psychological evaluation for the following reasons:

The Defendant and his family have brought to counsel's attention

that Defendant suffers from mental incapacity and receives Social Security

Disability benefits as a result. A suppression motion is contemplated in

this case challenging the voluntariness of certain statements made by the

Defendant prior to charges being filed. Mental incapacity is a significant

factor in determining whether or not a suspect's statements were

voluntary, State of Ohio vs. Shawn Clemens, 2001 Ohio 3212; Ohio App.

LEXIS 1405. A psychological evaluation is necessary to determine this

Defendant's ability to voluntarily waive his Miranda rights and to make a

voluntary statement.

{¶19} A hearing on the motion was held on June 26, 2012 during which the

following discussion was had:

MR. SULLIVAN: Your Honor, it's my understanding that by consent,

by agreement with the State, that Mr. Jones can be evaluated for the

Ashland County, Case No. 14-COA-002 11

purpose of a competency evaluation by the Forensic Center, and in the

event that leads the professional to diagnose mental retardation, that

would be addressed as well in accordance with however they do it

professionally, and we would be in agreement with that.

THE COURT: Mr. Lange?

MR. LANGE: Your Honor, just for the Record, again, the State is

opposed to a general psychological evaluation, however, Mr. Sullivan has

indicated with the Court and the State that the Defendant has been of

limited value in assisting in the preparation of this case, and the State is

therefore not opposed to a general competency evaluation. Just so

everyone is aware, it's my understanding based on the statute 2945.371

that the Forensic Diagnostic Center will do the competency evaluation and

they may give an opinion about whether or not the Defendant appears to

be mentally retarded, if they find that he appears to be mentally retarded,

it will come back to this Court and this Court will have to determine

whether or not to send it to the Board of Developmental Disabled People

for them to make a more thorough diagnosis of mental retardation.

{¶20} In its June 27, 2012 judgment entry following the hearing, the trial court

memorialized the following:

Prior to the hearing the Court met briefly with the attorneys to

discuss the matter before the Court. During the course of the hearing, the

Ashland County, Case No. 14-COA-002 12

Defendant modified his request and requested instead that the Court order

a competency evaluation for the Defendant. The State of Ohio had no

objection to the Court ordering a competency evaluation of the Defendant.

By separate judgment entry, the Court does hereby ORDER that the

Defendant be evaluated to determine his competency to stand trial.

{¶21} In the July 20, 2012 motion to suppress, defense counsel argued

appellant's confession was involuntary because of his mental incapacity, coupled with

the "constant and lengthy suggestive interrogation." In an August 27, 2012 filing entitled

"Defendant's Closing Arguments on Motion to Suppress," defense counsel argued the

following:

The claim in this case is not that the Defendant suffers from some

"mental defect" as argued by the State. Rather, the Forensic Diagnostic

Report, which was ordered by this Court, shows throughout that the

Defendant is low functioning. This is true even if Dr. Covey's IQ test is not

considered. Dr. Covey also reported a previous IQ score of 83

established when the Defendant was 6 years seven months old based

upon the Stanford Binet Intelligence Test. This score "is known to fall at

the thirteenth percentile." See Collateral Information, page 5. Dr. Covey

was certainly entitled to consider the Defendant's history just as a

physician/patient examination would require. Further, it was established

by Dr. Covey that the Defendant is unable to read or write. The Court can

Ashland County, Case No. 14-COA-002 13

give Dr. Covey's report whatever weight it merits but it is evident that this

Defendant did not have the ability to resist Officer Mager's constant

insistence that the Defendant did something wrong. The State's assertion

that the Defendant inquired about the Flinders case because the

Defendant had committed similar offenses is simply not supported by the

evidence. It was Officer Mager who initiated the conversation about

Flinders and who inquired about what the Defendant knew or did not know

about the case.

The Court has heard the entire recording of the three interviews. It

is submitted that, under the totality of circumstances, Defendant's

statements were not voluntary and should be suppressed.

{¶22} After a full hearing on the motion to suppress, the trial court determined it

would consider Dr. Covey's competency report. August 9, 2012 T. at 77-78. In its

September 5, 2012 judgment entry denying the motion to suppress, the trial court

referenced its consideration of the report:

Defendant argues that his low IQ made him so susceptible to

manipulation and improper influence, that his statements were rendered

involuntary. The Court does not find that to be correct in this case. The

Defendant freely discussed similar inappropriate sexual conduct by

another adult, and clearly showed an understanding that such conduct

was inappropriate and illegal. At no time during the interviews did

Ashland County, Case No. 14-COA-002 14

Defendant's mental faculties impair his ability to engage in rational

conversation and thought. The report from the Forensic Diagnostic Center

indicates that Defendant's only area of deficiency with regard to adaptive

functioning, is academic. The Defendant does not qualify for a diagnosis

of mental retardation. The Defendant's conversation showed a clear

understanding of legal processes, both civil and criminal.

{¶23} The record establishes that defense counsel consistently argued and was

aware of appellant's limitations. The fact that the trial court denied extra funds cannot

support any deficiency on the part of defense counsel. The trial court's

acknowledgment of the report, as well as the report's own references to previous

testing, establishes that defense counsel was not deficient.1

{¶24} Despite this finding, we also concur with the trial court's analysis of the

second prong of an ineffective assistance of trial counsel claim, no showing of prejudice

to appellant. During the suppression hearing, Ashland Police Officer Kim Mager

testified to the three aforementioned interviews of appellant. During the first interview

on March 28, 2012, appellant was clearly in charge of the scope of the interview. He

was in his place of residence, he terminated the interview, and he invited the officer to

interview him at the Kroc Center. August 9, 2012 T. at 10-11, 18-19. During the second

interview on April 24, 2014 at the Kroc Center, appellant agreed to talk in Officer

Mager's unmarked and unlocked car. Id. at 21-24. Appellant acknowledged to the

1

The record does not contain Dr. Covey's report. We therefore presume the validity of

the proceedings and rely on the trial court's analysis of the report. Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197 (1980).

Ashland County, Case No. 14-COA-002 15

officer that he believed he was not going to be arrested, otherwise he reasoned, he

would have been arrested inside the Kroc Center. Id. at 26. Again, appellant

terminated the interview by stating he had to get back to work and exiting the car. Id. at

24, 31-32. Appellant was arrested at the Kroc Center later that day. Id. at 37.

Appellant was taken to the police department and was given his Miranda warnings, and

spoke to Officer Mager for forty minutes. Id. at 38, 47. Appellant was not new to the

system, as had served some previous time in jail on a drug arrest. Id. at 40-41. During

the interviews, appellant appeared coherent and stated he was comfortable. Id. at 41.

Appellant told the officer his source of income was odd jobs and SSI. Id. at 68.

{¶25} The presentation of the previous testing would have added nothing to the

trial court's decision on the voluntariness of appellant's statements. Two of the

interviews were recorded; therefore, the trial court had the ability to judge appellant's

demeanor and ability to respond to the questions. Id. at 34, 38, 52-53, 71.

{¶26} Given the testimony presented during the suppression hearing, we concur

that any deficiency would not have impacted the trial court's decision on voluntariness.

{¶27} Assignments of Error I and II are denied.

Ashland County, Case No. 14-COA-002 16

{¶28} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.

SGF/sg 6/18