Appendix — Bradshaw v. Stumpf
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Sup oie Court, U.S.
(7) FILED
Q% 637 NOV 8- 2M
NO.
IN THE SUPREME COURT OF THE UNITED STATES
BETTY MITCHELL, Warden, Petitioner,
V.
JOHN DAVID STUMPFE, Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPENDIX
JIM PETRO
Attorney General of Ohio
DOUGLAS R. COLE*
State Solicitor
*Counsel of Record
DIANE RICHARDS BREY
Deputy Solicitor
CHARLES L. WILLE
Assistant Attorney General
30 East Broad Street, | 7th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax
Counsel for Petitioner
NO.
IN THE SUPREME COURT OF THE UNITED STATES
BETTY MITCHELL, Warden, Petitioner,
V.
JOHN DAVID STUMPFE, Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPENDIX
JIM PETRO
Attorney General of Ohio
DOUGLAS R. COLE*
State Solicitor
*Counsel of Record
DIANE RICHARDS BREY
Deputy Solicitor
CHARLES L. WILLE
Assistant Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax
a ed Me ee -
Counsel for Petitioner
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
Appendix F:
TABLE OF CONTENTS
Opinion of the United States Court
of Appeals for the Sixth Circuit,
367 F.3d 594 (6th Cir. 2004),
Agel 2B, BOOS .....:cssssisesneemealeeee la
Sixth Circuit’s Decision Denying
Warden’s petition for rehearing
and rehearing en banc, August 9,
ZUG .........c00ceceveseerceseneiaanuneiinniannnnnnnn 59a
Opinion of the United States
District Court for the Southern
District of Ohio (excerpts relating
to claims at issue), denying
Stumpf's petition for a writ of
habeas corpus, February 7, 2001 ............. 6la
Opinion of the United States
District Court for the Southern
District of Ohio, denying Stumpf’s
motion to alter or amend
judgment, May 1, 2001 wo... ccc cceeeeeeeee 92a
Opinion and Order of the United
States District Court for the
Southern District of Ohio,
granting Certificate of
Appealability, July 12, 2001 wo... 104a
Opinion of the United States
District Court for the Southern
District of Ohio, dismissing some
of Stumpf’s claims for procedural
default, November 9, 1999.00... I2\a
- a RO EE ee
Appendix G:
Appendix H:
Appendix I:
Appendix J:
Appendix K:
Appendix L:
Appendix M:
Appendix N:
Page
Ohio Supreme Court's published
decision on direct appeal, 32 Ohio
St.3d 95 (1987), August 19, 1987 ......... 149a
Entry of United States Supreme
Court denying Stumpf's petition
for a writ of — certiorari,
February 22, 1988 .........cccccccccceeseeereeeees 178a
Entry of United States Supreme
Court denying Stumpf's petition
for rehearing, April 18, 1988................ 179a
Opinion of the Ohio Fifth District
Court of Appeals on direct appeal,
TS 180a
Judgment Entry finding Stumpf Guilty,
September 1984 .........ccccccccceceeeeeeeneeneneees 215Sa
Separate Opinion (on Sentence of
Death) by Guernsey County Court
of Common Pleas, September 24,
Judgment of Guilt, by Guernsey
County Court of Common Pleas,
September 20, 1984 .........cccceceeseeeeeees 222a
Opinion of the Ohio Fifth District
Court of Appeals affirming denial
of Stumpf's petition for post-
conviction relief, July 23, 1990............. 227a
Appendix O:
Appendix P:
Appendix Q:
Appendix R:
Appendix S:
Appendix T:
Appendix U:
Appendix V:
Page
Order of the Ohio Supreme Court
denying Stumpf’s appeal of denial
of post-conviction relief, Decem-
Entry of United States Supreme
Court denying Stumpf's petition
for a writ of certiorari on denial of
post-conviction relief, Novem-
i Gills i ecanistssieaiesisainieitenineettat ec 236a
Opinion of Guernsey County
Common Pleas Court denying
Stumpf's_ petition for post-
conviction relief, November 27,
TU erinesinscieatanneiintnasiepantendnasmiesiseeins beni 237a
September 17, 1984 Transcript of
hearing on Stumpf’s guilty plea ............ 242a
Indictment against Stumpf .................... 26la
Stumpf S$ motion to withdraw his
guilty plea, June 7, 1985.00.00. 266a
Excerpt from October |, 1985
transcript of hearing on Stumpf’s
motion to withdraw his guilty plea........ 269a
Order of the Guernsey County
Court of Common Pleas denying
Stumpf's motion to withdraw
guilty plea, October 2, 1985 .0000000000....... 280a
a te
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 01-3613
John David Stumpf,
Petitioner-Appellant,
v.
Betty Mitchell, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Ohio at Columbus
No. 96-00668
George C. Smith, District Judge
Argued December | 1, 2002
Decided and Filed April 28, 2004
Before: BOGGS, Chief Judge; and DAUGHTREY and
MOORE, Circuit Judges. DAUGHTREY, J., delivered the
opinion of the court, in which MOORE, J., joined. BOGGS,
C.J. (pp. 44-52), delivered a separate dissenting opinion
COUNSEL
ARGUED: Alan M. Freedman, MIDWEST CENTER FOR
JUSTICE, Chicago, Illinois, for Appellant. Carol Ann
Ellensohn, OFFICE OF THE ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Alan M.
Freedman, Carol Heis, MIDWEST CENTER FOR JUSTICE,
2a
Chicago, Illinois, for Appellant. Stephen E. Maher, OFFICE
OF THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
OPINION BY: MARTHA CRAIG DAUGHTREY
OPINION
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
petitioner, John David Stumpf, is a state prisoner incarcerated
on Ohio’s death row. He appeals the district court’s dismissal
of his habeas corpus petition, filed pursuant to 28 U.S.C.
§ 2254, in which he challenged his 1984 guilty plea and death
sentence for one count of aggravated murder, with the capital
specification that the murder was- committed to escape
detection, apprehension, trial, and punishment for other
offenses, including aggravated robbery and attempted
aggravated murder. Specifically, Stumpf alleges (1) that his
guilty plea was involuntary and unknowing; (2) that his due
process rights were violated by the state’s use of inconsistent
theories to secure convictions against both Stumpf and his
accomplice, Clyde Wesley; (3) that he was deprived of
effective assistance of counsel at sentencing; and (4) that the
Ohio death penalty statute is unconstitutional on its face and
as applied to him.
Prior to entering a guilty plea, Stumpf had waived his right to
a trial by jury and elected to have his case heard by a three-
judge panel. Under Ohio law, when a defendant pleads guilty
to aggravated murder, the court must hold an evidentiary
hearing to establish a factual basis for the plea. The three-
judge panel held such a hearing in this case and found that
there was a factual basis for Stumpf's plea, that he was guilty
of aggravated murder with the capital specification
3a
and, ultimately, that there was insufficient mitigating evidence
to spare Stumpf from imposition of the death penalty.
Under Ohio law at the time of Stumpf’s conviction, the
aggravated murder statute required that “specific intent” be
proved to convict someone of that crime. At the evidentiary
hearing to establish a factual basis for Stumpf’s plea, Stumpf
and his attorneys argued that he did not shoot the victim and,
indeed, that he was not present when the victim was shot. The
state argued in response that Stumpf was the shooter, and the
three-judge panel that heard the case adopted the state's
theory, finding that Stumpf was the actual shooter. At a later
trial of Stumpf's accomplice Wesley, however, the state
presented the testimony of a jailhouse informant to establish
that Wesley was the shooter. When Stumpf sought to
withdraw his guilty plea on the basis of Wesley's conviction,
the state opposed his motion, arguing that the informant's
testimony was unreliable.
We conclude that the district court should have granted relief
to Stumpf on either or both of two alternative grounds: first,
that his guilty plea was unknowing and involuntary because
he was manifestly not aware that specific intent was an
element of the crime to which he pleaded guilty and, second,
that Stumpf's due process rights were violated by the state’s
deliberate action in securing convictions of both Stumpf and
Wesley for the same crime, using inconsistent theories.
Because we are granting relief on these two grounds, we do
not reach Stumpf's challenge to the effectiveness of counsel's
representation at sentencing or to the constitutionality of the
Ohio death penalty statute.
4a
| PROCEDURAL AND FACTUAL BACKGROUND
A. The District Court’s Factual Findings
Most of the underlying facts are undisputed in this case
and do not affect the legal determinations necessary to the
resolution of the appeal. For that reason, and because we
review the district court’s determination of the facts only for
clear error, we adopt the district court’s characterization of the
facts, as determined by the state courts, as follows:
On May 14, 1984, Stumpf, Clyde Daniel Wesley,
and Norman Leroy Edmonds, after visiting a bar in
Washington, Pennsylvania, got on Interstate 70
and headed west toward Ohio. By sundown, they
had reached Guernsey County. They stopped their
car along I-70 and, leaving Edmonds in the car,
Stumpf and Wesley walked to a nearby house
under the pretense of needing to make a phone
call. The house they chose was owned and
occupied by Norman and Mary Jane Stout. Stout
admitted Stumpf and Wesley into his home and
allowed them to use the phone. When they had
completed the call, both Stumpf and Wesley
produced pistols and announced a robbery. nl
Stumpf held the Stouts at gunpoint in a back
bedroom while Wesley searched the house for
items to steal.
At some point, Stout moved toward Stumpf, and
Stumpf shot him between the eyes with his pistol.
The shot was not fatal, and Stout subsequently
pushed Stumpf into the next room. During this
altercation, Stout was struck on the head with a
pistol and shot in the head a second time. These
actions were enough to render him semi-conscious
but not to kill him. While lying on the floor in the
Sa
other room, Stout heard four gunshots. There is no
dispute that Mary Jane Stout was shot and killed
during the course of this robbery, although there is
a dispute as to whether Stumpf or Wesley fired the
fatal shots. After Mrs. Stout was killed, Stumpf
and Wesley stole the Stout's car and fled. Stumpf
was arrested several days later, and after initially
denying any knowledge about these crimes and
then being told that Stout had survived, he
confessed to being involved.
At the time the trial court proceedings occurred,
Wesley had not yet been extradited from Texas.
However, subsequent to Stumpf’s having pleaded
guilty and having been sentenced to death, Wesley
was convicted of aggravated murder by a jury and
received a sentence of life imprisonment without
the possibility of parole for 20 years. The State
introduced evidence at Wesley's trial that Wesley
and not Stumpf fired the shots that killed Mrs.
Stout. Edmonds was not charged in the Stout
murder and robbery, but was charged for other
offenses committed during this crime spree, and he
agreed to and did testify against both Stumpf and
Wesley concerning the murder of Mary Jane Stout.
Stumpf v. Anderson, No. C-\-96-668 (S.D. Ohio Nov. 9
1999).
nl Wesley and Stumpf had carried Edmonds’s chrome
Raven and Wesley’s black .25 caliber pistol with them
into the house.
B. Additional Facts Regarding Ballistics Evidence
Of the two bullets that struck Stout, only pieces of each
were recovered. Part of the bullet that struck him between the
eyes was recovered during surgery, while a second fragment
6a
was found in the second bedroom. A portion of the bullet that
struck Stout in the top of the head was recovered during
surgery, but part of it had to be left in place. Another bullet
was recovered from the mattress of the second bedroom.
Stout’s wife was shot four times in the first bedroom.
She died from three gunshots to the left side of her head. The
fourth bullet went through her left wrist and struck her chest
- without penetrating the skin of her chest. A fifth bullet was
recovered from the wall of that bedroom, above the headboard
of the bed.
The chrome Raven was never recovered by the police,
and Stumpf admitted that he had thrown it out of the car
window after he and Wesley had left the Stout residence. The
black .25 caliber pistol was recovered by the police after the
men sold it, along with one of Stout's guns, to an individual in
Washington, Pennsylvania. Ronald Dye, a ballistics expert
from the Ohio Bureau of Criminal Identification and
Investigation, a division of the Ohio Attorney General's
office, testified at Stumpf's factual basis hearing as to the
forensic findings regarding bullets and cartridge cases
recovered from the murder scene. Dye testified that there
were eight spent cartridges found at the scene, that seven of
them had been fired by one gun, and one was fired by a
different gun. Dye also said that the black pistol, which had
been recovered by the police, fired one bullet, while the other
seven bullets were all fired by the same gun. That gun could
have been the chrome Raven, or one of several other types of
guns.
At Stumpf’s plea proceeding, the prosecutor argued that
the ballistics evidence supported the conclusion that Stumpf
had shot Mrs. Stout, since she was apparently shot with the
same weapon used against her husband, saying, “There's
ample evidence to conclude that this defendant fired all shots
that hit anybody, because the same gun fired all of those
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shots.” However, during Wesley’s trial, the same prosecutor
put Eastman, Wesley’s cellmate, on the witness stand, to
repeat Wesley's confession to him. According to Eastman,
Wesley told him that after Stumpf had shot Stout in the face,
he dropped the chrome Raven and ran, at which point Wesley
picked up the pistol and shot Mrs. Stout. This version of the
crime was also supported by the ballistics evidence that the
black pistol had a tendency to jam after firing just one round,
which may have led Wesley to discard it after shooting it only
once.
C. The Guilty Plea
Stumpf and Wesley could not be tried together because
Wesley contested his extradition from Texas, where he had
been apprehended. As a result, while Wesley was still
detained in Texas, Stumpf pleaded guilty to the aggravated
murder of Mary Jane Stout, in violation of Ohio Rev. Code
§ 2903.01(B), and to the capital specification under Ohio Rev.
Code § 2929.04(A)(3) that the murder was committed for the
purpose of escaping detection, apprehension, trial or
punishment for the offenses of the aggravated robbery of the
Stouts. He also pleaded guilty to the attempted aggravated
murder of Norman Stout and to a firearms specification for
each count. Subsequent to the entry-of his plea, the prosecutor
notified the trial judge that a plea agreement had been
reached. Stumpf was questioned about the agreement at some
length, as detailed below.
D. The Evidentiary Hearing
Under Ohio law, the -trial court must conduct an
evidentiary hearing in all aggravated murder cases involving
guilty pleas, to determine whether there is a factual basis for
Sa
the plea. Following Stumpf's entry of a waiver to have a jury
hear the evidence, the hearing commenced before a three-
judge panel.
During the factual basis hearing, the prosecution argued
that Stumpf had shot Mrs. Stout, while the defense argued that
Mrs. Stout was shot by Wesley, not by Stumpf. The three-
judge panel found Stumpf “guilty beyond a reasonable doubt”
of count one of the indictment (aggravated murder of Mary
Jane Stout), along with specification one (that she was killed
to escape detection for the crimes of aggravated robbery and
attempted aggravated murder) and _ specification four
(firearm), and guilty of count two of the indictment
(attempted aggravated murder of Norman Stout), with its
firearm specification.
E. The Mitigation Hearing
The mitigation hearing was held one day after the
conclusion of the evidentiary hearing, lasted less than two
days, and consisted of the presentation of 15 witnesses for the
defense—primarily some of Stumpf’s friends and family
members and a few former employers and teachers—and of
an unsworn statement by Stumpf himself. Defense counsel
presented no expert witnesses, beyond a parole officer and a
court clerk who testified as to Stumpf’s lack of a significant
criminal history. The general defense strategy was to show
that Stumpf had a generally good nature, lacked a violent
temper, had a fairly steady work history but a limited
education, had a difficult home environment, and was
respectful towards women. Stumpf's unsworn statement
recounted his version of the crime and emphasized that
Wesley, and not Stumpf, had shot Mary Jane Stout.
Following the hearing, the three-judge panel sentenced
Stumpf to death, finding that he had established only two
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mitigating factors: his age (23) and his lack of a significant
criminal background.
F. Appellate Procedural History
After Stumpf’s conviction, and while his direct appeal
was pending, Clyde Wesley was also convicted, by a jury, of
Mary Jane Stout’s murder. As a result, Stumpf filed a motion
for leave to withdraw his guilty plea or, in the alternative, to
have the trial court set aside his death sentence and grant him
a new sentencing hearing. The motion was summarily denied
by two of the three judges who had heard his case at the trial
level (the third judge had died in the interim), and the Ohio
Supreme Court affirmed the order at the same time it affirmed
Stumpf's conviction on direct appeal.
Stumpf then filed a petition for post-conviction relief in
state court, raising challenges to the validity of his jury trial
waiver and the effectiveness of trial counsel’s representation,
particularly with regard to counsel’s advice to Stumpf that he
would not receive the death penalty if he pleaded guilty. In
the petition, Stumpf requested an evidentiary hearing and
submitted multiple affidavits in support of his claims. The
trial court dismissed the petition without an evidentiary
hearing, and this decision was affirmed by the Ohio Court of
Appeals. The Ohio Supreme Court dismissed the appeal, see
State v. Stumpf, 56 Ohio St. 3d 712, 565 N.E.2d 835
(Table(Ohio 1990), and the United States Supreme Court
subsequently denied certiorari. See Stumpf v. Ohio, 502 U.S.
956, 116 L. Ed. 2d 435, 112 S. Ct. 415 (1991).
Stumpf next filed a petition for a writ of habeas corpus
in federal court, alleging as grounds for relief that the Ohio
Death Penalty statute is unconstitutional, both as written and
as applied to Stumpf; that his guilty plea was not knowing and
intelligent; that his waiver of the right to a jury trial was
invalid; that he received ineffective assistance of counsel at
10a
the penalty phase; that he was not permitted to be present at
his motion for a new trial; that the trial court improperly
considered_ non-statutory aggravating circumstances and
ignored substantial mitigating evidence when deciding his
sentence; that the trial court erred in denying his motion to
vacate fis sentence or withdraw his guilty plea based on
newly discovered evidence; that consideration of post-
sentence proceedings by less than the entire three-judge panel
violated his due process rights; and that the trial court erred by
failing to follow an Ohio statutory requirement that the court
produce a meaningful written analysis of the mitigation
evidence as a basis for imposing a death sentence.
The district court issued two opinion and orders. The
first found that several of petitioner's claims had been
procedurally defaulted, see Stumpf v. Anderson, No. C-1-96-
668 (S.D. Ohio Nov. 9, 1999); the second denied relief on the
remaining claims, see Stumpf v. Anderson, No. C-1-96-668
(S.D. Ohio Feb. 7, 2001). However, the district court did grant
a certificate of appealability on the following five issues: (1)
whether the statutory provisions governing Ohio's capital
punishment scheme violate the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution,
either on their face or as applied to Stumpf; (2) whether
Stumpf's guilty plea was knowing, intelligent and voluntary;
(3) whether Stumpf received the ineffective assistance of
counsel at the penalty phase of his trial; (4) whether Stumpf’s
due process rights were violated when the trial court failed to
vacate his sentence or allow him to withdraw his plea based
on newly discovered evidence; and (5) whether Stumpf
received the ineffective assistance of appellate counsel.
Before us, Stumpf has pressed the first four claims but has
abandoned the claim that appellate counsel was ineffective.
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Il. STANDARD OF REVIEW
Because Stumpf's federal habeas petition was filed in
November 1995, the amendments to 28 U.S.C. § 2254
contained in the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) do not apply to this case. See Lindh v.
Murphy, 521 U.S. 320, 336, 138 L. Ed. 2d 481, 117 S. Ct.
2059)(1997) (finding that AEDPA changes do not apply to
cases pending at the time of AEDPA’s enactment on April 24,
1996). Stumpf’s claims, therefore, must be evaluated under
§ 2254(d) as it existed prior to the enactment of AEDPA.
Accordingly, we review the district court’s disposition
of a petition for writ of habeas corpus de novo, although the
district court’s factual findings are reviewed only for clear
error. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th C ir.
1996). We also defer to the state court’s factual findings,
which may be rebutted only by “clear and convincing
evidence.” /d. However, this deference only applies to “basic,
primary facts” and not to mixed question of law and fact,
which are subject to de novo review. Id.
Ill. ANALYSIS
A. The Validity of the Petitioner’s Guilty Plea
The Supreme Court has held, in Boykin v. Alabama, 395
U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), that when a
defendant enters a guilty plea, the state bears the burden of
showing that the plea was voluntary, intelligent and knowing.
Determining whether a plea is voluntary, intelligent and
knowing requires an analysis of the totality of the
circumstances. Garcia v. Johnson, 991 F.2d 324, 326 (6th
Cir. 1993). When a defendant brings a federal habeas petition
challenging his plea, the state generally satisfies this burden
by producing a transcript of the plea proceeding. Garcia, 991
F.2d 324, 326. A state court finding that the plea was proper
l2a
is accorded a presumption of correctness, unless the transcript
of the plea proceeding is inadequate to demonstrate that the
plea was voluntary, intelligent and knowing. Garcia at 326-
27; Dunn v. Simmons, 877 F.2d 1275, 1277 (6th Cir. 1989),
overruled on other grounds by Parke v. Raley, 506 U.S. 20
121 L. Ed. 2d 391, 113 S.Ct. $17(1992), |
The proper standard of review in this case, then, turns
on whether the record of state court proceedings surrounding
Stumpf Ss guilty plea “leaves doubt as to whether the plea was
in fact intelligent and voluntary.” Dunn, 877 F.2d at 1277
(citing Roddy v. Black, 516 F.2d 1380, 1384 (6th Cir. 1975)).
If the record does leave doubt as to whether the plea was
voluntary, intelligent and knowing, and the defendant argues
that it was not, the State bears the burden of proving the
contrary. /d. (citing Bovkin, 395 U.S. at 243).
: Although Stumpf does not contend explicitly that his
guilty plea was invalid because he was not aware that specific
intent was an element of the crime to which he pleaded guilty,
this argument is inherent in the fact that he continually
professed his innocence of committing the actual shooting
both during and after the guilty plea. The record reflects, for
example, his expectation that he would be given an
opportunity to present evidence to the three-judge panel
relevant to his conduct. Moreover, the record indicates that
the explicit statutory requirement of intent was never
explained to Stumpf during the plea colloquy. Furthermore,
although his attorneys represented to the court that they had
explained to Stumpf the elements of the crime, their own
arguments to the court during the plea colloquy and the
evidentiary hearing to establish a factual basis for the plea
refute the typical presumption that defense counsel have fully
and adequately explained all elements of a crime to a client
before he pleads guilty. Indeed, defense counsel's
representations to the court either betray their own ignorance
of the intent element of aggravated murder, or represent a
l3a
woefully inadequate understanding of the meaning of a guilty
plea. Finally, the plea colloquy itself, along with Stumpf's
statements to the court through all stages of the proceedings,
demonstrates Stumpf's unwillingness to admit to intent.
At the time of Stumpfs crime and subsequent
conviction, Ohio's aggravated murder statute specified that
specific intent was a necessary element of aggravated murder.
The statute read as follows:
§ 2903.01 Aggravated murder.
(A) No person shall purposely, and with prior
calculation and design, cause the death of another.
(B) No person shall purposely cause the
death of another while fleeing immediately after
committing or attempting to commit kidnapping
[sic], rape, aggravated arson or arson, aggravated
robbery or robbery, aggravated burglary or
burglary, or escape.
(C) Whoever violates this section is guilty of
aggravated murder, and shall be punished as
provided in section 2929.02 of the Revised C ode.
Ohio Rev. Code § 2903.01 (1984) (amended
1996). n2
n2 Ohio Rev. Code § 2903.01 was amended on
July 1, 1996. Section (D) was removed and replaced
with additional descriptions of aggravated murder. See
Ohio Rev. Code § 2903.01 (2002).
Stumpf was convicted under § 2903.01(B), which,
although it specifies that the murder must be caused
“purposely,” does not specifically require intent. However,
l4a
subsection (D) of the same statute clarifies that intent is
indeed a necessary element of aggravated murder:
(D) No person shall be convicted of aggravated
murder unless he is specifically found to have
intended to cause the death of another... .
Ohio Rev. Code § 2903.01 (1984) (amended 1996).
Furthermore, the statute limits fact-finders from inferring
specific intent solely from an accused's participation in a
felony murder:
In no case shall a jury in an aggravated murder
case be instructed in such a manner that it may
believe that a person who commits or attempts to
commit any offense listed in division (B) of this
section is to be conclusively inferred, because he
engaged in a common design with others to
commit the offense by force and violence or
because the offense and the manner of its
commission would be likely to produce death, to
have intended to cause the death of any person
who is killed during the commission of or attempt
to commit, or flight from the commission of or
attempt to commit, the offense. If a jury in an
aggravated murder case is instructed that a person
who commits or attempts to commit any offense
listed in division (B) of this section may be
inferred, because he engaged in a common design
with others to commit the offense by force or
violence or because the offense and the manner of
its Commission would be likely to produce death,
to have intended to cause the death of any person
who ts killed during the commission of, attempt to
commit, or flight from the commission of or
attempt to commit the offense, the jury also shall
be instructed that the inference is nonconclusive.
1Sa
that the inference may be considered in
determining intent, that it ts to consider all
evidence introduced by the prosecution to indicate
the person's intent and by the person to indicate his
lack of intent in determining whether the person
specifically intended to cause the death of the
person killed . . . .
Ohio Rev. Code § 2903.01(D) (1984) (amended 1996).
Finally, the fact-finder must also be instructed that “the
prosecution must prove the specific intent of the person to
have caused the death by proof beyond a reasonable doubt.
Ohio Rev. Code § 2903.01(D) (1984) (amended 1996). Read
together, these provisions indicate that specific intent may not
be inferred solely from the fact of participation in a felony
murder but must be established explicitly by the prosecution.
Ohio courts have confirmed this interpretation of the
statute. In In re Washington, 81 Ohio St. 3d 337, 1998 Ohio
627. 691 N.E.2d 285, 287 (Ohio 1998), the Supreme Court of
Ohio considered an appeal regarding whether there was
sufficient evidence to support the specific intent oe
n aggravated murder conviction, in a case in whic
a was committed in the course of a robbery. As the
court explained: “Washington cannot [be found guilty of]
aggravated murder based solely on his complicitous actions. It
is also necessary for the state to establish that Washington
acted with the kind of culpability required of the commission
of aggravated murder.” /d. In this particular case, the court
found that there was sufficient evidence for the trial court to
conclude that Washington had acted with the requisite intent,
because the trial court inferred intent only after “hearing and
considering all the evidence” instead of presuming intent
based on Washington's participation in the robbery. /d.
Here. the record of the plea proceeding clearly
demonstrates that the defendant did not possess an
l6a
understanding of the aggravated murder cha
. | rge to which he
pleaded guilty. Although the district court ultimately
concluded that the state court record was suggestive of a-
knowing and voluntary plea, it did concede tha
proceeding was “not a picture of clarity.” We howe gd pn
note that this “lack of clarity” first surfaced at the moment the
prosecutor informed the court that a plea agreement had been
reached. He gave the following account of the agreement:
SCOTT: Your Honor, the first matter that would
be dealt with or the State would ask leave of
Court pursuant to Criminal Rule 7 (D) and Ohio
Revised Code Section 2941.30 to amend by
interlineation specification one to the first count
of the Indictment in order that it may read as
follows: The Grand Jurors further find and
specify under Ohio Revised Code Section
2929.04(A)(3) in compliance with Ohio Revised
Code Section 2941.14 that the aforesaid offense
being the offense charged in the first court, the
Aggravated Murder, was [committed] for the
purpose of escaping detection, apprehension, trial
or punishment for other offenses—the words
“other offenses” are the first change, committed
by the above named John David Stumpf, to wit:
Aggravated Robbery and then we're adding the
language “and Attempted Aggravated Murder.” If
that amendment is granted, the defendant then
would enter a plea of guilty to the first count
contained in the Indictment, being the
Aggravated Murder count and a plea of guilty to
specification one to the first count as amended:
would also enter a plea of guilty to the second
count in the Indictment, being the offense of —
excuse me, back up. As to the first count he
would also enter a plea of guilty to specification
four to the first count. So, he will be pleading to
17a
the first count, the amended specification one to
the first count and specification four to the first
count. With regard to the second count, being the
Attempted Aggravated Murder, he would enter a
plea of guilty to the Attempted Aggravated
Murder and a plea of guilty to the specification to
the second count. If the pleas of guilty to the two
counts and the specifications I've mentioned are
accepted by the Court, the Court would then
proceed under Criminal Rule 11(C 3) to
determine if there is a factual basis for the plea of
guilty to the Aggravated Murder charge and the
existence of the aggravating circumstances and if
the pleas are accepted the State would then ask
leave to enter a nolle pros as to specifications two
and three to the first count and also a nolle pros
as to the third, fourth and fifth counts in the
Indictment and including the specification to the
third count.
That is my understanding of the arrangement that
we are proposing to the Court at the present time.
n3
n3 The plea agreement also merged specification four
of count one, and specification one of count two. That
is, both gun specifications were to be treated as part of
the same offense for sentencing purposes.
Reviewing this portion of the trial court record, the
district court commented that “the prosecuting attorney's
explanation of the plea agreement was somewhat difficult to
follow. and that criminal defendants in such situations will
often answer questions posed by the trial court without a clear
understanding of each and every term uttered—especially if
advised by counsel to do just that.” But the trial court in this
case, rather than attempting to elucidate the prosecutor's
l8a
explanation for the defendant, immediately turned to the
defendant for verification of the prosecutor’s account of the
plea agreement. As the record reveals, even at this stage in the
plea agreement, the defendant appeared to be unable to follow
the proceedings:
JUDGE HENDERSON: Thank you, Scott.
Before ruling on the motion or amendment of the
Indictment, | would ask Counsel for the defense
if they wish to comment upon the statement of
the Prosecutor. Tingle?
TINGLE: If the Court please, the statement made
by the Prosecuting Attorney is an accurate
statement based upon our discussions with him
earlier today and one upon which we are ready to
proceed at this time.
JUDGE HENDERSON: I'm going to ask the
Counsel for the defendant to inform the defendant
that | am going to ask one question of the
defendant very shortly and that question is this:
Do you, John David Stumpf, affirmatively
acknowledge the agreement that has been stated
by the Prosecutor and concurred in by the
defendant's counsel? Having forewarned the
defendant of the question that is to be asked, I’m
going to ask that question now. Stumpf, do you
affirmatively acknowledge this agreement?
STEPHENS: Would you repeat the question for
him Your Honor?
JUDGE HENDERSON: Stumpf, do you
affirmatively acknow!edge the agreement that has
been stated by the Prosecutor and concurred in by
your attorneys?
19a
THE DEFENDANT: Yes, sir.
Obviously, not every ambiguity in a plea proceeding,
without more, will demonstrate that a plea is not “knowing
and intelligent.” However, the exchange set out above turned
out to be merely the beginning of much confusion that was to
follow. After allowing amendment of the indictment, the court
conducted a plea colloquy, examining first the defense
attorneys, and then the defendant:
JUDGE HENDERSON: The Indictment seems to
be in order and the Court is going to make certain
inquiries of the counsel for the defendant and the
defendant as to the proposed entry of the guilty
plea. It is necessary that question be asked and
answers thoughtfully given in a case of this sort.
I'm going to inquire of the attorneys for the
defendant, have you fully investigated the facts
and the law of this case and determined whether
there exists any question of the admissibility of
any claimed admissions, confessions or other
evidence under Federal and State law and advised
your client concerning the same?
TINGLE: We have, Your Honor.
JUDGE HENDERSON: Have you informed your
client of the elements of the offenses with which
he is charged, of all defenses which may be
available to him and of all of his Constitutional
rights, both State and Federal?
TINGLE: Yes, we have.
After his attorneys indicated that they had explained the
elements of the crime to their client, Stumpf was sworn in for
20a -
the limited purpose of answering questions concerning his JUDGE HENDERSON: Are you satisfied with
guilty plea, and affirmed his attorney's statements, as follows:
JUDGE HENDERSON: Stumpf, I’m going to ask
you a number of questions and if you do not
understand those questions you may inquire of
your attorneys to better able you to understand
everything that is being asked you. These have to
do with the rights that you have as a person who
has been accused of a crime. Do you understand
that you have a constitutional privilege against
self-incrimination?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: With a __ full
understanding that anything that you say may be
used against you, are you willing then to answer
questions with regard to your understanding of
your rights?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Now, you heard the
questions that | put to your attorneys, | believe,
relative to their advice to you and their
counseling of you, did you not?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you personally
acknowledge that your attorneys have informed
and advised you as they say they have?
THE DEFENDANT: Yes, sir.
a ee ee ee
the services which they have performed for you?
THE DEFENDANT: Yes, sir.
Judge Henderson next questioned Stumpf as to his
physical and mental health, and whether he was presently
under the influence of drugs or alcohol. He then went over the
crimes to which Stumpf was pleading guilty. The following is
a complete account of his explanation to the defendant:
JUDGE HENDERSON: Do you understand that
you are charged with several offenses? The first
offense being that of Aggravated Murder, that
there have been two specifications being
presented at this time in_ this particular
proceedings, to wit: Aggravated Robbery and
Attempted Murder and possession of a firearm
while committing those offenses. Do you
understand that?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you understand also
that you have been charged with the offense of
Attempted Aggravated Murder, which is a felony
in the first degree?
THE DEFENDANT: Yes, sir. -
JUDGE HENDERSON: For the first count,
which is that of Aggravated Murder, you are
subject to the following penalties: you are subject
to being—to a sentence of twenty years without
probation, that is, a sentence of life without
probation for twenty years; a sentence of life
without probation for a period of thirty years and
22a
the death penalty by electrocution could be
imposed against you. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you understand also
that you would be subject under the—under
specification four to the first count to three years
incarceration before you begin to serve any other
sentence?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you understand also
that the Attempted Aggravated Murder, which is
set forth in count two, is a felony in the first
degree and that you could be sentenced to be
incarcerated for a period of four, five, six or
seven but not more than twenty-five years? Do
you understand that, sir?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you understand also
that for a felony of the first degree that you could
be fined not more than $10,000.00?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: And that you could
receive both the fine and the incarceration, which
| have mentioned?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Are you presently on
probation or parole, sir?
23a
THE DEFENDANT: No, sir.
As indicated below, Stumpf has a low IQ and has been
found to be mentally and emotionally immature. Nevertheless,
the trial court never inquired into Stumpfs ability to
understand the guilty plea proceedings or the nature of the
charges against him. The explanation set out above is the only
account of the crimes provided to Stumpf by the court.
Nowhere does the court explain the elements, or even read the
charges as listed in the indictment. n4
n4 Stumpf did initia! the interlineation amendment to
the indictment during the plea hearing, but there is no
indication in the record that he had actually read the
indictment at any point or that it had been read to him.
Moreover, we conclude that use of the term “purposely”
is not sufficient to put the defendant on notice that
specific intent, which is expressly more than intent
implied from participation in a felony, is a required
element of aggravated murder.
Judge Henderson then proceeded to question Stumpf
about the rights he was surrendering by pleading guilty. The
exchange went as follows:
JUDGE HENDERSON: Do you understand that
if you plead guilty you will waive, that is, you
will give up the right to a jury trial or trial by the
Court; the right to be presumed innocent and until
proved guilty beyond a reasonable doubt; the
right to confront and to question the witnesses
against you and to have compulsory process for
obtaining witnesses in your favor; the right to
remain silent or to testify at your trial as you may
choose and that no inferences may be drawn if
you choose not to testify at your trial. Do you
24a
understand that ou may be giving up those
rights?
STEPHENS: Your Honor, with reference to that,
we have explained that to the defendant. He was
going to respond but we have informed him that
there is, after the plea, a hearing or trial relative
to the underlying facts so that he is of the belief
that there will be presentation of evidence and |
wanted to make that clear to the Court with
reference to his right of waiver of trial to Court.
JUDGE HENDERSON: I understand that and |
appreciate your bringing that to my attention,
Stephens. Of course in the sentencing portion of
this trial you do have those rights to speak in
vour own behalf to present evidence and
testimony on your own behalf: My statement to
you and my question to you was intended to
except those rights that you do have. Counsel, is
that satisfactory?
STEPHENS: Yes, sir.
We read this exchange to reflect a misunderstanding
between attorney Stephens and Judge Henderson. Stephens,
answering for Stumpf, asserted the defendant's right to
present evidence during “a hearing or trial relative to the
underlying facts” of the case. He was plainly referring to the
factual basis hearing and asserting the defendant’s wish to
challenge the state’s version of the facts. Judge Henderson
indicated in response that the defendant could present
evidence during “the sentencing portion of this trial,”
apparently referring to the mitigation phase. In any case, this
was the first indication that the defendant did not wish to
concede the state’s version of the facts. The parties next
25a
discussed a prior suppression hearing, and then the court
resumed questioning Stumpf:
JUDGE HENDERSON: Do you understand,
Stumpf, that if any promises or inducements have
been made to you by any person to cause you to
plead guilty that they are not binding upon the
Court, that if you plead guilty that Court, this
panel of Judges, will decide your sentence after
considering all of the evidence that is to be
presented and evidence in mitigation of
punishment and after considering a presentence
investigation, report and recommendation
approved and prepared by the probation
department and that you may receive the
maximum sentence prescribed by law. Do you
understand that, sir?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Have any promises or
inducements been made to you, sir, other than the
agreement which you have affirmatively
acknowledged on the record?
THE DEFENDANT: No, sir.
JUDGE HENDERSON: Are you in fact guilty of
count one with specification one and
specification four?
STEPHENS: One moment, Your Honor. Your
Honor, the defendant has asked me to explain his
answer. His answer is yes. He will recite that
with obviously his understanding of his right to
present evidence at a later time relative to his
conduct, but he'll respond to that.
26a
JUDGE HENDERSON: At no time am |
implying that the defendant will not have the
right to present evidence in mitigation hearing
and I do appreciate it, Stephens, that you bring
this to the attention of the Court. And I’m going
to ask that the defendant, himself, respond to the
question that I asked with that understanding that
he has the right to present evidence in mitigation.
I'm going to ask the defendant if he is in fact
guilty of the charge set forth in Count one,
ie specification one and specification
our?
The Defendant: Yes, sir.
Again, the exchange between Stephens and Judge
Henderson has all the hallmarks of a serious
misunderstanding. Stumpf was unwilling to plead “guilty”
without expressly reserving his right to present evidence
“relevant to his conduct.” Read with the preceding reference
(0 presenting evidence, this could only refer to the subsequent
evidentiary hearing to establish a factual basis for the plea.
Stumpf, obviously, was reiterating his desire to challenge the
state’s account of his actions, and had the provedure called for
an immediate determination of the evideace relied upon by
the state to support the defendant’s imminent conviction, the
misunderstanding would undoubtedly have come to light
before the plea was finalized and Stumpf's fate was sealed.
Once again, however, Judge Henderson referred to the
defendant's “right to present evidence in mitigation hearing,”
completely missing the clear implication that despite his
admission of guilt, Stumpf was concerned about preserving
his ability to contest <he state's account of his actions.
Moreover, defense counsel's arguments during the
subsequent evidentiary hearing confirm the defendant's desire
27a
to contest the state’s version of the crime. From the opening
statement at that hearing, counsel argued that Wesley, not
Stumpf, was the one who shot Mary Jane Stout. For example,
defense counsel's opening statement included the following:
The scenario as outlined by Scott [the prosecutor]
does follow the sequence of events as they did
occur, except for the statements as to the actual
shooting of Mary Jane Stout, which the defendant
believes the evidence will show occurred at the
hands of Daniel Wesley.
The district court rejected Stumpf's argument that his
position that he was not the shooter rendered his guilty plea
involuntary, relying on Garcia, 991 F.2d at 327, as authority
for the proposition that a “temporary qualification of position
by the defendant is not sufficient to rebut the presumption of
correctness of state court proceedings, and to support a
finding that [the defendant] did not understand the nature of
his plea.” Saumpf v. Anderson, 2001 WL 242585 (S.D. Ohio
2001) (quoting Garcia, 991 F.2d at 327). We conclude that
the district court's reliance was misplaced, however, because
Stumpf's qualification was more than temporary, and it was
never addressed by the trial court.
By contrast, in Garcia, the defendant first claimed that
he had not intended to kill his victim. Garcia, 991 F.2d at
327. After this statement, the judge conducted “a substantial
discussion” with the defendant regarding the facts of the case,
and Garcia then admitted that he had intended to kill his
victim. /d. Here, the trial judge, before accepting Stumpi's
plea, had not informed the defendant that specific intent was
an element of the crime to which he was pleading, nor had he
inquired whether Stumpf had actually shot the victim or, if
not, had specifically intended that she be killed. In the
absence of some inquiry, Stumpf's express reservations of his
ability to put on evidence of his version of the crime, along
28a
with his attorneys’ arguments that he did not intend, and was
a _— present for, the killing of Mrs. Stout, should have put
> trial court on notice that Stumpf was not aw:
import of his plea. ' ee
The district court did not focus on the
Rather, it found that Stumpf's position itis aes
shooter was consistent with the specification to which he
pleaded guilty. However, in making this finding, the district
court failed to recognize that Stumpf's position is inconsistent
= 4 mane to which he also pleaded guilty. It is this
onsistency that gives ri
~iithrem tb | gives rise to his claim that his plea was not
Generally, a reviewing court presumes that defense
counsel has explained the elements of the crime to a
defendant pleading guilty, even where the record does not
reflect any statement by counsel to that effect. Berry v
Mintzes, 726 F.2d 1142, 1147 (6th Cir, 1984) (“it may be
appropriate to presume that in most cases defense counsel
routinely explain the nature of the offense in sufficient detail
to give the accused notice”); but cf. Henderson vy. Morgan
426 U.S. 637, 642-48, 49 L. Ed. 2d 108, 96 S. Ct. 2253 (1976)
(finding that, where the defendant's attorneys had argued to
the court that their client had not intended to harm the victim
there could be no presumption that counsel had explained to
their client that intent was an element of the crime). In this
case, defense counsel did state to the court that they had
informed Stumpf of the elements of the crime. In a typical
case, such an assurance would prevent a reviewing court from
finding that a plea was involuntary. In this case, however. the
record clearly establishes that Stumpf sought to preserve his
right to argue that he was not the shooter and thus
counterbalances the assurances given by defense counsel that
they had explained the elements to Stumpf.
29a
We recognize, of course, that Stumpf need not have
been the “principal offender”—the actual shooter—in order to
have specifically intended the death of Mary Jane Stout.
Nevertheless, it is clear from the record of the factual basis
hearing that the state's theory of guilt relied completely on
Stumpf being the principal offender. The prosecution
presented no evidence that Stumpf intended Mrs. Stout's
death, other than arguing that he was the actual shooter. In the
closing arguments at the evidentiary hearing, defense counsel,
contending that the prosecution had not met its burden with
regard to the basis for seeking the death penalty, effectively
challenged the prosecution's proof as to specific intent to kill.
The prosecutor responded that “as to a purpose to kill,
whoever shot Mrs. Stout didn’t intend to do her any favors
when he shot her four times. It seems to me that shooting a
person four times shows what your intent was.”
Indeed, the three-judge panel, which presumably knew
of the intent element, found, beyond a reasonable doubt, that
Stumpf was “the principal offender” in the aggravated murder
and made no other finding as to specific intent. Its conclusion
in this regard indicates that the panel found that Stumpf s
shooting of Mrs. Stout provided the requisite specific intent,
as there was no other evidence in the record to satisfy this
element. Given this finding, it is unlikely that Stumpf can be
said to have knowingly conceded specific intent to kill by
pleading guilty, when he continued to maintain throughout the
proceedings that he had not been the one who actually shot
the victim.
We conclude that the record of Stumpf's plea hearing
and the subsequent evidentiary hearing, taken together,
demonstrate that the plea he entered was constitutionally
invalid. Boykin holds that, “because a guilty plea is an
admission of all the elements of a formal criminal charge, it
cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts.” Bovkin, 395
30a
U.S. at 243 n.5. This understanding must include “real notice
of the true nature of the charge against him, the first and most
universally recognized requirement of due process.”
Henderson v. Morgan, 426 U.S. at 644 (quoting Smith v.
O'Grady, 312 U.S. 329, 334, 85 L. Ed. 859, 61 S. Ct. 572
(1941) (finding that, because the defendant did not know
intent was an element of the crime to which he pleaded guilty,
his plea could not be voluntary). nS We have held that “a
guilty plea is not deemed voluntary where the person entering
it does so without understanding of the consequences of his
plea.” United States v. Stubbs, 279 F.3d 402, 411, 412 (6th
Cir. 2002) (quotation omitted) (finding, in a split decision in a
case involving a mandatory minimum sentence, that if the
“essential elements of the crime with which the defendant was
charged were not understood by the defendant, his counsel, or
the district court, then the defendant's guilty plea would be
constitutionally invalid”).
n5 Indeed, in Henderson, the defendant had heard the
indictment, which charged that he had “willfully”
stabbed the victim, read in open court. Henderson, 426
U.S. 637, 642, 49 L. Ed. 2d 108, 96 S. Ct. 2253. The
Supreme Court found that this was not sufficient to put
him on notice that intent was a required element of the
crime to which he was pleading guilty. /d. at 645-46.
As discussed above, when the state court record of a
defendant’s plea does not demonstrate that the plea is
constitutionally adequate, the state bears the burden of
showing the plea was voluntary, knowing and intelligent.
Here, the state has presented no extrinsic evidence to counter
the record of the proceedings discussed above. Instead, the
respondent has explicitly relied on that record alone to argue
that the plea was voluntary, knowing, and intelligent. Given
the paucity—indeed, the lack—of the evidence to refute what
is clear on the record, we must conclude that the state has
3la
—— not met its burden of showing that the plea may
stand.
Furthermore, the totality of the circumstances
surrounding the plea provide additional evidence that the plea
was not voluntary, knowing, and intelligent. For example,
Stumpf argues that the fact that he remained eligible for the
death penalty and, therefore, pleaded guilty under an
agreement that provided absolutely no benefit in the form of a
reduction in possible sentence, is an additional indication that
his plea was not knowing and intelligent. n6 This argument
standing alone would not carry much weight, given the well-
recognized principle that a guilty plea cannot be rendered
involuntary merely because, in hindsight, it turned out not to
be the best decision. See McMann-v. Richardson, 397 U.S.
759, 769-71, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970).
However, Stumpf's decision to plead guilty—by agreement—
to a crime with a capital specification, especially in the
absence of any identifiable reason to take such a course of
action, creates an additional inference that his plea was
invalid. In combination with his position that he was not the
shooter, which reveals his ignorance of specific intent as an
element of the crime, the record indicates that Stumpf’s plea
was involuntary “because he had such an incomplete
understanding of the charge that his plea cannot stand as an
intelligent admission of guilt.” /vy v. Caspari, 173 F.3d 1136,
1141-42 (8th Cir. 1999) (guilty plea involuntary where
defendant was not informed that intent was a necessary
element of the underlying felony).
N6 Stumpf also claims that his plea was invalid because
he was not aware that he remained eligible for the death
penalty. We discount this as.a-possible basis for relief.
however, because the record of the plea hearing
indicates that the judge, while listing the possible
sentences Stumpf could receive for aggravated murder,
did inform Stumpf at the time of his plea that “the death
32a
penalty by electrocution could be imposed against you.”
The judge then asked whether Stumpf understood, and
Stumpf answered, “Yes, sir.”
The question of counsel's effectiveness in representing
Stumpf is not before us as an independent ground for relief. It
is, however, raised in the context of challenge to the validity
of his guilty plea. The record shows clearly that Stumpf has
always denied being the shooter. It is also clear that defense
counsel’s strategy, throughout both the evidentiary hearing
and the mitigation hearing, was to argue that after Stumpf shot
Norman Stout he panicked and fled, that Stumpf was not even
present in the home when Mary Jane Stout was shot, and that
Wesley was, in fact, the one who shot Mrs. Stout. One
possible, if unlikely, explanation for counsel's strategy is that
they themselves were unaware that specific intent was an
element of the crime. But, failure to research the most basic
details of the statute under which their client was charged
would be outside the “range of competence” to which the
defendant is entitled. See Henderson, 426 U.S. at 647.
Perhaps more disturbing is the possibility that counsel,
realizing that intent was an element of the offense,
nonetheless chose to allow their client to plead guilty and
then—and only then—to contest the existence of that element.
But this, too, would manifestly constitute ineffective
assistance, since a plea is not merely a confession but serves
as a conviction, with only the resulting sentence left to be
decided. See Boykin, 395 U.S. at 242. It is true that Ohio
requires a factual basis hearing in cases of aggravated murder.
but it would nonetheless be reckless and plainly incompetent
for an attorney to rely on a factual basis hearing to refute an
element of a crime to which his client has already pleaded
guilty. Finally, whether Stumpf’s lawyers were aware of the
intent element or not, their behavior compels the conclusion
that Stumpf himself was not aware of the intent element.
Stumpf’s observation of his attorneys’ attempt to contest the
state’s version of events, and his own position throughout the
33a
plea colloquy that he intended to challenge the state’s facts, a
position evidently sanctioned by his attorneys, reaffirms the
conclusion that Stumpf was not aware that by pleading guilty
to aggravated murder he was admitting to specific intent to
kill Mary Jane Stout.
| There are other indications in the record, as well,
pointing to the existence of at least a reasonable probability
that Stumpf would not have pleaded guilty had he known that
such a plea would have amounted to admitting that he
specifically intended the death of Mary Jane Stout. A
mitigation investigator later reported, in an affidavit, that
“John did not want to plead guilty.” Moreover, affidavits from
Stumpf's family affirm the impression that his attorneys were
less than candid in explaining to them the motive behind the
plea. For example, Stumpf’s mother and sister said that they
were told by Stumpf’s attorney that he would not receive the
death penalty because of his plea.
We conclude from the record before us, as it relates to
the murder of Mary Jane Stout, that there exists a reasonable
probability that, had the petitioner been fully informed of the
elements of the offense to which he was pleading and
consequences of that plea, he would not have pleaded guilty
to her aggravated murder.
34a
B. The Due Process Violation
At the time of Stumpf's post-plea evidentiary hearing
and his mitigation—or sentencing—hearing, his accomplice,
Wesley, was still in Texas, fighting extradition. During both
Stumpf’s plea hearing, held pursuant to Ohio Rev. Code
§ 2945.06, and his sentencing hearing, the prosecutor argued,
and the three-judge panel ultimately found, that Stumpf was
the principal offender, responsible for actually shooting Mary
Jane Stout. After Stumpf's sentencing in the fall of 1984, the
state tried Clyde Wesley before a jury in the spring of 1985.
Wesley was also charged with aggravated murder with capital
specifications, and during his trial, the state argued that
Wesley, not Stumpf, was the shooter. To support this
argument, the state presented testimony from Eastman,
Wesley’s cellmate, about statements Wesley had made to
Eastman concerning details about the murder. Wesley took
the stand and denied that he was the shooter, but the jury
convicted him of the aggravated murder of Mrs. Stout. At the
sentencing phase of Wesley's trial, the same jury then
recommended a sentence of 20 years to life, rather than the
death penalty.
Stumpf argues that the prosecutor’s use of two
conflicting theories concerning the identity of the shooter to
convict both him and Wesley constitutes a due process
violation.
The Constitution’s Due Process clause guarantees every
defendant the right to a fair trial. See Lassiter v. Department
of Soc. Servs., 452 U.S. 18, 24-5, 68 L. Ed. 2d 640, 101 S. Ct.
2153 (1981); Turner v. Louisiana, 379 U.S. 466, 471-72, 13
L. Ed. 2d 424, 85 S. Ct. 546 (1965). The Supreme Court has
also emphasized that “because the prosecutor is in a peculiar
and very definite sense the servant of the law, the twofold aim
of which is that guilt shall not escape or innocence suffer... ,
it is as much his duty to refrain from improper methods
eel =e -
Olin. we ae nee 2. ee
3Sa
calculated to produce a wrongful conviction as it is to use
every legitimate method to bring about one.” Berger v. United
States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935),
overruled on other grounds, Stirone v. United States, 361 U.S.
212, 4 L. Ed. 2d 252, 80S. Ct. 270 (1960).
Drawing on the principle that the Constitution's
“overriding concern [is] with the justice of the finding of
guilt,” United States v. Agurs, 427 U.S. 97, 112, 49 L. Ed. 2d
342, 96 S. Ct. 2392 (1976), several of our sister circuits have
found, or implied, that the use of inconsistent, irreconcilable
theories to secure convictions against more than one
defendant in prosecutions for the same crime violates the due
process clause. See, e.g., Smith v. Groose, 205 F.3d 1045 (8th
Cir. 2000); Thompson v. Calderon, 120 F.3d 1045 (9th Cir.
1997) (en banc), vacated on other grounds, 523 U.S. 538, 140
L. Ed. 2d 728, 118 S. Ct. 1489 (1998); Drake v. Kemp, 762
F.2d 1449 (11th Cir. 1985) (en banc) (Clark, J., specially
concurring); cf. Nichols v. Scott, 69 F.3d 1255 (Sth Cir. 1995)
(involving a situation where both defendants had shot at the
victim and it was unclear whose bullet had actually hit and
killed the victim; the court found that the two theories
advanced by the prosecution were not inconsistent because
both defendants could have been convicted under the law of
parties). On this issue of first impression in this court, we now
join our sister circuits in finding that the use of inconsistent,
irreconcilable theories to convict two defendants for the same
crime is a due process violation.
In Smith v. Groose, the Eighth Circuit considered a case
in which a prosecutor had used two different, conflicting
statements by a co-defendant at successive trials to convict the
petitioner at the first trial and a second individual at a second
trial. See Smith v. Groose, 205 F.3d at 1049. That case
involved a group of four young men who were looking for
homes to burglarize one evening. In the course of their search,
they saw another group of burglars breaking into a home.
36a
They realized they knew these men and decided to help them
break into the house. The residents were murdered in the
course of the burglary. The primary issue at trial was whether
the murders took place before or after the four young men
began participating in the offense. One of the four men first
told the police that the other group had committed the
murders without the participation of the group of four. Two
_days later, he told police that he had seen one of the four men
from his group stabbing the victims with a pocketknife; he
later recanted this story. The prosecutor then used both
statements to obtain convictions against men in each of the
two groups. See id. at 1047-49.
Examining the record before it, the Eighth Circuit held
that “the use of inherently factually contradictory theories
violates the principles of due process.” /d. at 1052. The court
found that in order to amount to a due process violation, an
inconsisteney in the prosecutor’s theories “must exist at the
core of the prosecutor’s case against defendants for the same
crime.” /d. This constitutes a due process violation because it
renders convictions unreliable, given that “the state’s duty to
its citizens does not allow it to pursue as many convictions as
possible without regard to fairness and the search for truth.”
Id. at 1051.
In finding a due process violation under these
circumstances, the Eighth Circuit in Smith v. Groose was
careful to distinguish the facts in its case from those in the
Fifth Circuit’s opinion in Nichols v. Scott, 69 F.3d 1255 (Sth
Cir. 1995), where the court did not reach the due process
question in a case in which the prosecutor argued in two
separate cases that different defendants had each shot the one
bullet that killed the victim. See id. at 1268. The distinction in
the Nichols case was that both perpetrators had fired shots at
the victim, and both could have been convicted under a felony
murder theory. Therefore, the prosecutor’s arguments were
not factually inconsistent, because both defendants could have
ee
OO OO
37a
been convicted even if the prosecutor had used the identical
argument in both cases. See Grouse, 205 F.3d at 1051.
Finally, the Ninth Circuit considered a similar situation
in Thompson. \n that case, the prosecutor argued at one trial
that, based on jailhouse informant testimony, one defendant
had committed a rape and murder. At a second trial, the
prosecutor used different jailhouse informants to argue that
the second defendant had the motive and disposition to
commit the crimes. A plurality of the en bane Ninth Circuit,
n7 specifically excluding situations where new evidence
comes to light, found that a prosecutor cannot use inconsistent
theories of the same crime in order to secure multiple
convictions. See id. at 1058. The court echoed Judge Clark’s
concurrence in an Eleventh Circuit case which, although it
granted habeas relief on alternate grounds, also involved
inconsistent theories:
The prosecutor’s theories of the same crime
in the two different trials negate one another. They
are totally inconsistent. This flip flopping of
theories of the offense was inherently unfair.
Under the peculiar facts of this case the actions by
the prosecutor violate the fundamental fairness
essential to the very concept of justice... The
state cannot divide and conquer in this manner.
Such actions reduce criminal trials to mere
gamesmanship and rob them of their supposed
search for the truth.
Thompson, 120 F.3d at 1059 (quoting Drake, 762 F.2d
at 1479 (Clark, J., concurring)).
n7 The majority opinion rested on an ineffective
assistance of counsel claim. See Thompson, 120 F.3d at
1051-56. However, despite the fact that a majority of
judges did not join in the portion of the opinion finding a
38a
due process violation, several of the concurring and
dissenting judges indicated that they would find a due
process violation for the use of wholly. inconsistent
theories to convict separate defendants. See, e.g., id. at
1063-64 (Tashima, J., concurring, joined by Thomas, J.)
(agreeing with the premise that “due process is violated
when a prosecutor pursues wholly inconsistent theories
of a case at separate trials” but arguing that, in order to
find prejudice, the court must decide which of the two
theories is true) (quotation omitted); id. at 1066-73
(Kozinski, J., dissenting, joined by Nelson, J.) (“In the
case of mutually inconsistent verdict, which | am not
sure is the case here, I believe that the state is required to
take the necessary steps to set aside or modify at least
one of the verdicts.” /d. at 1071.)
In this case, the state clearly used inconsistent,
irreconcilable theories at Stumpf’s hearings and Wesley’s trial
At each proceeding, the prosecutor argued that the defendant
had been the one to pull the trigger, resulting in the fatal shots
to Mary Jane Stout. At Wesley’s trial, the prosecutor relied on
Eastman’s testimony and on the gun-switching scenario
argued by Stumpf, to secure Wesley’s conviction. The
prosecutor asserted:
Believing he had killed Mr. Stout, [Stumpf]
pitched the gun aside and left the immediate area
back the hallway down the steps to the basement.
At that point [Wesley,] whose own gun was
jammed, picked that chrome colored Raven up and
as Mrs. Stout sat helplessly on her bed, shot her
four times in order to leave no witnesses to the
crime.
These statements are irreconcilably inconsistent with
those made by the very same prosecutor at Stumpf's plea
hearing, when he told the trial court:
ee
——
—_— eT
39a
Believing that the had killed Mr. Stout, Stumpf
[then] turned the same chrome colored Raven
automatic pistol upon Mary Jane Stout as she sat
on the bed and shot her four times. Three times in
the left side of the head and neck and one time in
the writs; obviously in order not to leave anyone
available to identify him.
The state claims that, because Eastman’s testimony was
not available at the time of Stumpf's guilty plea, Stumpf is
really asserting Wesley’s due process claim in the guise of his
own. The state also argues that “it was of no import to the
charge of capital murder against Stumpf which of the two
[defendants] killed the witness [Mrs. Stout]” since the capital
specification was that Mrs. Stout was killed because she was a
witness to the crime, and not that the defendant had been the
shooter. Finally, the state asserts that inconsistent,
irreconcilable theories were not used in these two cases,
because the prosecution did not rely on Eastman's testimony
at Wesley’s trial. None of these arguments is persuasive.
First, Stumpf clearly has a due process claim even
though Eastman’s testimony was not available at the time of
his trial. It is true that this is not a case where the prosecutor
selectively presented evidence in Stumpf’s case to support the
theory of the murder he was arguing in that case. However,
the due process challenge to the use of inconsistent theories is
based on the notion of fundamental fairness. Because
inconsistent theories render convictions unreliable, they
constitute a violation of the due process rights of any
defendant in whose trial they are used. In Groose, the
petitioner was in fact the defendant at the first trial, and the
second, inconsistent theory did not come to light until four
years after his conviction, at the second trial. See Groose, 205
F.3d at 1048. Nevertheless, the Eighth Circuit found that his
due process rights had been violated. Logically, “both
40a
[defendants’ due process rights] were prejudiced by the
prosecutor’s actions or neither’s were.” Drake, 762 F.2d at
1479 (Clark, J., concurring). Furthermore, it is disingenuous
of the state to argue that there is no violation of Stumpf's
rights because the prosecutor had no knowledge of Eastman’s
testimony at the time of Stumpf’s plea. The state learned of
Eastman’s testimony soon after Stumpf’s plea and sentencing
and yet continued to maintain that the convictions of both
Stumpf and Wesley, each of which Was obtained by arguing
that a different individual was the shooter, were sound and
reliable. n8 Indeed, as discussed below, the state maintained
that Eastman’s testimony was unreliable during a hearing on
Stumpf's motion to vacate his plea and/or his sentence. To
this day, there has been no suggestion of corrective action by
the state.
n& In fact, Wesley’s counsel wanted to inform the jury
that the prosecutor had previously argued that Stumpf,
and not Wesley, was the shooter. The prosecutor argued
that Stumpf had never admitted to firing the shots, and
that his own argument was irrelevant. The trial court did
not allow Wesley’s counsel to discuss Stumpf's
proceedings in front of the jury.
The state’s second argument, with which the district
court agreed, is that the identity of the shooter was not the
critical issue in either trial and that therefore the use of
different theories did not violate Stumpf’s due process rights.
By pleading guilty to capital murder, the state’s argument
goes, Stumpf admitted concerted action with Wesley in
causing the death of Mary Jane Stout for the purposes of
avoiding detection. All that was left for the prosecution then
to prove, under this theory, was that Mrs. Stout was killed so
that the defendant could escape detection for other crimes.
But this argument ignores the fact that, as the aggravated
murder statute existed in 1984, specific intent was a necessary
element of the crime. See Ohio Rev. Code § 2903.01(B); see
——
4la
also supra, pp.!5-16. Because Stumpf never confessed to
specific intent to kill Mrs. Stout, the prosecution bore the
burden of proving beyond a reasonable doubt that Stumpf was
guilty of the charge.
Finally, the state argues that irreconcilable theories were
not used because Eastman’s testimony was completely
unreliable. State’s counsel even asserted at oral argument that
the state did not rely on Eastman’s testimony in order to
prosecute Wesley. This argument is just short of astounding,
given the fact that in seeking to convict Wesley of aggravated
murder, the prosecution offered no proof of the element of
specific intent other than the theory that Wesley was the
actual shooter. That the state relied on Eastman’s testimony is
evident from the fact that it presented his testimony to the
jury, and from the fact that it prevented Wesley's counsel
from presenting evidence of Stumpf's guilty plea. Had the
state presented a theory of the crime consistent with the
theory it asserted at Stumpf's evidentiary hearing, it would
have had no need to keep that information from Wesley's
jury. ™
The district court ultimately accepted the state's
argument that the core issue at Stumpf's evidentiary hearing
was not the identity of the shooter. However, in reaching this —
conclusion, the court started with what we believe to be a
faulty assumption, i.e., that “the state was not required to
prove that petitioner was the actual shooter.” The district
court, in concluding that the specification to which Stumpf
pleaded guilty, Ohio Rev. Code § 2929.04(A)(3), did not
require that Stumpf be proven to be the “principal offender,”
overlooked, once again, the fact that the aggravated murder
statute itself requires specific intent. See discussion supra pp.
42a
15-16. The state was not required to prove that the petitioner
was the actual shooter, but it was required to prove specific
intent.
Even proceeding from the district court's false
assumption, however, we cannot agree with the court's
ultimate conclusion. The district court found that, although
the state was not required to prove that Stumpf was the actual
shooter, “the fact remains that the state did argue that
petitioner was [the] actual shooter and the trial court did find
that petitioner was the actual shooter.” The district court went
on to recognize that the trial court cited this very finding as “a
reason, and a very substantial reason” that petitioner received
the death penalty. The district court found, however, that
habeas relief was not warranted, because the Supreme Court
of Ohio’s independent reweighing of the aggravating and
mitigating circumstances cured any misplaced reliance on
Stumpf having been the actual shooter. Apparently engaging
in such a reweighing process, the Ohio Supreme Court
concluded that Eastman’s testimony was not sufficient to tip
the balance of aggravating and mitigating factors.
We cannot agree with this reasoning, because we do not
believe that a reweighing of the factors used to support
imposition of the death penalty cures the due process violation
at issue. The Ohio Supreme Court, it is true, found that “the
testimony of a cellmate during Clyde Wesley’s trial is of
minimal credibility, especially in light of appellant's guilty
plea and the substantial evidence to the contrary adduced
during appellant’s sentencing hearing.” State v. Stumpf, 32
Ohio St. 3d at 106. But, putting aside for the moment the
question of whether Eastman’s testimony need be credible for
a due process violation to be established by the state
prosecution's presentation of and evident reliance on it, there
is no explicit state court determination regarding Eastman’s
credibility to which this court must give deference. Although
there is a presumption that a state court’s factual findings are
43a
correct, this presumption applies only to basic facts and to
those facts implicitly established through the trial court's
unique ability to judge the witnesses’ credibility and
demeanor. See McQueen, 99 F.3d at 1310. No court at any
level considering Stumpfs claims actually observed
Eastman’s testimony. n9 The first court explicitly to examine
the transcripts of that testimony, the two-judge trial panel,
failed to make any factual findings, instead denying Stumpf s
motion summarily. The Supreme Court of Ohio recognized as
much when it found that the trial court had “apparently”
determined that Eastman’s testimony did not change the
balancing of mitigating and aggravating factors. The Supreme
Court of Ohio also presumably examined the transcripts,
concluding that the testimony was of “minimal credibility.”
Neither the presumed factual finding by the trial court, nor the
more explicit one made by the Supreme Court of Ohio is due
the type of complete deference contemplated by the state,
because neither of these courts had any better opportunity to
judge Eastman’s credibility than we do.
n9 Indeed, only two fact-finders actually observed
Eastman’s testimony. The jury at Wesley's trial
obviously credited Eastman enough to find Wesley
guilty. The trial judge, in pre-trial proceedings, made at
least one credibility determination when he found that
Eastman was not a government agent within the
meaning of Miranda v. Arizona, 384 U.S. 436, 16 L.
Ed. 2d 694, 86 S. Ct. 1602 (1966). See State v. Wesley,
1986 Ohio App. LEXIS 8651 (1986).
Finally, the state presses an argument that Eastman’s
testimony was not credible because it relied on “the same type
of implausible gun switching and gun juggling that Stumpf
told.” nl0 This, of course, is beside the point. The pertinent
fact for Stumpf's due process claim is not whether Eastman’s
gun-switching story is plausible, nll but whether the
prosecution relied on that story to secure Wesley's conviction.
44a
The prosecution found Eastman’s testimony credible enough
to present the “implausible gun switching” theory to Wesley's
jury and obtain his conviction on that theory.
nl0 Eastman testified at Wesley's trial that Wesley told
him that after Stumpf had shot Mr. Stout, Stumpf
panicked and dropped the .25 caliber Raven. Wesley
then picked up the Raven and shot Mrs. Stout a few
times. When Mrs Stout moaned, Wesley shot her again
to make sure she was dead.
nl! One could argue that this story is more likely to be
plausible because it is so similar to Stumpf's account of
the crime, which he recounted many months before
Eastman testified.
In holding that a constitutional violation occurred in this
case, we recognize that at least one circuit has suggested that
a due process violation for the use of conflicting theories may
be obviated when the second of two inconsistent theories
results from the discovery of new evidence. See Thompson,
120 F.3d at 1058 (“when no new significant evidence comes
to light a prosecutor cannot, in order to convict two
defendants at separate trials, offer inconsistent theories and
facts regarding the same crime”). We have no quarrel with
this proposition, to the extent that it is meant to acknowledge
a state’s need to continue to investigate crimes and to present
all available evidence in court. However, in this case,
although Eastman’s testimony did not come to light until after
Stumpf had been convicted and sentenced to death, the state
had many opportunities to correct its use of conflicting
theories. Stumpf, upon learning of the state's reliance on the
theory that Wesley was actually the shooter, timely filed a
motion to vacate his guilty plea and/or his sentence. The two
judges hearing this motion expressed some concern over
whether there was evidence that Stumpf was not in fact the
shooter. but the state did not take that opportunity to advocate
45a
that all the available evidence be presented to the sentencing
panel.
A due process claim is a mixed question of law and fact
and is therefore subject to de novo review. See Williams v.
Covle, 260 F.3d 684, 706-07 (6th Cir. 2000). Here, the proper
standard of review is whether there is a reasonable probability
that the prosecutor's use of inconsistent, irreconcilable
theories rendered the conviction unreliable. See, e.g., id., at
706-07; Brady v. Marvland, 373 U.S. 83, 10 L. Ed. 2d 215, 83
S. Ct. 1194 (1963); Strickland v. Washington, 466 U.S. 668,
694, 80 L. Ed. 2d 674, 104 S. Ct. 2052(1984). A “reasonable
probability” is a probability sufficient to undermine the
outcome and is less than a preponderance of the evidence. See
Strickland at 694, Lyons v. Jackson, 299 F.3d 588, 599 (6th
Cir. 2002).
Measured against this standard, the state’s due process
violation mandates that both Stumpf's plea and his sentence
be set aside. First, there is a reasonable probability that, had
the prosecution not pursued conflicting theories concerning
who was the actual shooter, Stumpf either would not have
pleaded guilty or the three-judge panel would not have found
a factual basis for the specific intent element of aggravated
murder. Second, and perhaps more likely, there is a
reasonable probability that, had the prosecution not pursued
inconsistent theories, Stumpf would not have been sentenced
to death.
As discussed at length above, it was necessary for the
three-judge panel to find that Stumpf specifically intended the
death of Mary Jane Stout in order for it to accept his plea to
aggravated murder. See Ohio Rev. Code § 2903.01(D) (“no
person shall be convicted of aggravated murder unless he is
specifically found to have intended to cause the death of
another”). The prosecution offered virtually no evidence
regarding intent other than its contention that Stumpf shot
46a
Mrs. Stout. Had the prosecution's alternate theory been heard
by the three-judge panel, there is a reasonable probability that
it would have found Stumpf guilty of something less than
aggravated murder.
Moreover, there is more than a reasonable probability
that the three-judge panel would not have sentenced Stumpf to
death had the prosecution not employed inconsistent and
irreconcilable theories. In explaining its reasoning for finding
that the aggravating factors in Stumpf's case outweighed the
mitigating factors (and therefore that Stumpf deserved the
death penalty), the court's first pronouncement was that it had
“found beyond a reasonable doubt that the Defendant was the
principal offender in count one of the indictment,” i.e., the
aggravated murder charge. In turn, this finding prevented the
panel from concluding that Stumpf was not the principal
offender, which would have been “a powerful mitigating
factor.” State v. Green, 90 Ohio St. 3d 352, 363, 2000 Ohio
182, 738 N.E.2d 1208, 1224 (Ohio 2000) (noting that “very
few death sentences have been approved against persons who
were not the principal offender”). In fact, during the hearing
on Stumpf's motion to withdraw his guilty plea, one of the
original panel members, Judge Bettis, stated:
If we had not been satisfied that Stumpf was, in
fact, the trigger man, the principal offender . . . that
may very well have had an effect upon this Court's
determination of whether the death penalty should
follow. I'm not saying it would, but it’s possible.
It is true that Judge Bettis made this comment during a
hearing in which the panel had before it both a transcript of
Eastman’s testimony and evidence of the prosecution's
reliance on that theory of the crime. However, the fact that the
panel did not grant Stumpf's motion to withdraw his guilty
plea does not dictate the conclusion that they did not find
Eastman’s testimony persuasive. First, in denying the motion
47a
summarily, the panel stated, “The Court took the matter under
advisement and after having considered the same, does
overrule the Motion to Withdraw Former Plea and the
Alternative Motion to Set Aside the Sentence Imposed.”
Because the court gave no basis for its ruling, the denial of
relief could have been made on any number of grounds; it
would be impossible to divine its reasoning. Hence, the
panel’s rejection of Stumpf's motion does not negate the
conclusion that, had the prosecution's alternate theory been
before the panel at a sentencing proceeding, there is a
reasonable probability that the panel would not have
sentenced him to death. Second, only two of the three judges
on the original panel were still alive when Stumpf brought his
motion. Stumpf's contention that his motion should have been
heard by three judges was rejected by the Ohio Supreme
Court:
R.C. 2945.06 expressly provides that “the judges
or a majority of them may decide all questions of
fact and law arising upon the trial . . . ..” Unanimity
is mandated only when the panel finds a defendant
guilty or not guilty. Whether appellant was entitled
to withdraw his guilty plea or to a new sentencing
hearing were questions of law, properly
determined by a majority of the panel.
State v. Stumpf, 32 Ohio St. 3d 95, 105, 512 N.E.2d 598, 609
(Ohio 1987).
Under Ohio Rev. Code § 2945.06, then, only one
judge’s opinion was required to deny Stumpf's motion.
However, under the same provision, unanimity was required
as to questions of guilt and penalty. Because the third judge
on Stumpf's panel died before the prosecution's alternate
theory and Eastman’s testimony came to light, the trial court's
denial of Stumpf's motion can prove nothing as to whether
that third judge, at the factual basis or mitigation hearings,
48a
would have been persuaded by Eastman’s testimony, and the
state's reliance on it, that Stumpf should either not have been
found guilty of aggravated murder, or should not have
received the death penalty.
Finally, as petitioner points out, Ohio courts have held
that reweighing of aggravating and mitigating circumstances
by a higher court is not a cure for errors in the sentencing
process, where the result of the weighing process, had the
correct factors been present, is unknown. See State v. Davis,
38 Ohio St. 3d 361, 372, 528 N.E.2d 925, 936 (Ohio 1988)
(“We cannot accept independent review as a cure in this
particular action because we cannot know if the result of the
weighing process by the three-judge panel would have been
different had the impermissible aggravating circumstance not
been present.”’).
IV. CONCLUSION
On the basis of the two claims addressed in this opinion,
that Stumpf's guilty plea was not voluntary, knowing, and
intelligent and that his due process rights were violated by the
prosecution's use of inconsistent, irreconcilable theories to
convict both him and his accomplice, we REVERSE the
district court's decision and REMAND this case to the district
court with instructions to issue the writ of habeas corpus in
the petitioner's favor, unless the state elects to retry him
within 90 days of the date of entry of the conditional writ.
Because we are granting Stumpf relief on both his involuntary
plea and due process claims, we need not reach his remaining
arguments.
DISSENT BY: BOGGS
DISSENT
49a
BOGGS, Chief Judge, dissenting. The court has reversed the
district court's denial of a writ of habeas corpus on two
grounds: that Stumpf's guilty plea was involuntary and
unknowing, and that his due process rights in his own trial
and sentencing were violated by the state's /ater use of
evidence against another person. | disagree with both of these
conclusions, and therefore respectfully dissent from the
granting of the writ of habeas corpus.
| begin with the second of the court’s two grounds, as |
believe that is the more profoundly mistaken. The majority
cites three cases from other circuits to buttress its theory that
Ohio’s prosecution of Wesley, which took place in April
1985, some seven months after Stumpf pleaded guilty and
was sentenced to death, somehow violates Stumpf's due
process rights. None of the three are germane to this case.
In Thompson v. Calderon, a celebrated California death
penalty case, the court vacated a death sentence because the
prosecutor presented two mutually incompatible theories for
the rape-murder during contemporaneous trials of two
defendants, Thompson and Leitch. Thompson v. Calderon,
120 F.3d 1045 (9th Cir. 1997) (en banc) (plurality), vacated
on other grounds, 523 U.S. 538, 140 L. Ed. 2d 728, 118 S. Ct.
1489 (1998). During the pre-trial proceedings for both men,
and in Leitch’s trial, the prosecutor’s theory was that Leitch
killed the victim, his girlfriend, because he wanted to get back
together with his ex-wife; Thompson assisted him in the
crime. /d. at 1055. In Thompson’s trial, however, ~ the
prosecutor argued that Thompson had raped the victim and
then killed her to cover up his act. He presented different jail
house informants at each trial to bolster each contradictory
theory. /d. at 1056. The Ninth Circuit held that this shift in
arguments violated a prosecutor's duty to discover the truth
S0a
and that he was improperly trying to secure convictions for
their own sake. Thompson, 120 F.3d-at 1058-59; see, e.g,
Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55
S. Ct. 629 (1935) (stating that the government's fundamental
interest in a criminal prosecution is “not that it shall win a
case, but that justice shall be done”). It also found that
Thompson, who was tried first, was prejudiced due that the
fact that “only in Thompson’s trial did the prosecutor change
the theory and the arguments [from those presented in the pre-
trial nearing}, and offer facts that directly conflicted with the
underlying premise of the charges he brought.” Thompson,
120 F.3d at 1059.
Distinguishing Thompson from the case before us is not
difficult, however. First of all, the prosecutor in Thompson
pursued the two mutually incompatible theories of the murder
at contemporaneous trials after joint pre-trial proceedings, and
deliberately chose witnesses who would tell the conflicting
story that he needed to convict each defendant. Knowingly
putting on false evidence is prosecutorial misconduct that
violates the Due Process Clause. Napue v. Illinois, 360 U.S.
264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). Nothing in
this case indicates that the prosecutors deliberately presented
false evidence: Stumpf pleaded guilty to aggravated murder
with the specification of killing a witness and attempted
aggravated murder with a firearm. The State had every reason
to believe his over-all admission of responsibility. It was
under no obligation, however, to accept at face value his
assertion that he did not actually pull the trigger, especially in
light of contradictory forensic evidence, such as the fact that a
.25-caliber weapon killed Mrs. Stout, the same caliber as
Stumpf's gun.
Nor did the prosecutor in Thompson collect new
evidence between trials; he simply manipulated the facts that
he had. In contrast, Wesley’s trial took place seven months
after Stumpf pleaded guilty, during which time informant
Sla
Eastman told prosecutors that Wesley confessed that he
murdered Mrs. Stout. However, Wesley denied having
confessed to Eastman, and the forensic evidence suggested
that Eastman’s statement was not airtight. A cursory
comparison of the facts to those in Thompson therefore
reveals that the California case has little application to our
case. nl-
nl It is worth noting that constitutional claim made in
Thompson ultimately did not prevent the defendant's
execution on July 14, 1998. Calderon v. Thompson, 523
U.S. 538, 566, 140 L. Ed. 2d 728, 118 S. Ct. 1489
(1998) (reinstating the mandate denying habeas relief).
In Drake v. Kemp, an Eleventh Circuit case, the
majority remanded for a new trial because the burden of proof
was improperly shifted to the defendant and the prosecutor
violated the defendant's rights during his closing arguments in
the sentencing phase. Drake v. Kemp, 762 F.2d 1449 (11th
Cir. 1985) (en banc). A single concurring judge argued that
Drake’s Fourteenth Amendment rights had been violated. The
prosecutor, in trials that were a year apart, argued in one
instance that a co-defendant must have committed the murder
alone and, after having secured a conviction, argued that same
person was not strong enough to commit the crime, and
therefore Drake must have helped. The concurring judge
concluded that it “seems inescapable that the prosecutor
obtained Henry Drake’s conviction through the use of
testimony he did not believe; bringing this case under the
logical if not actual factual framework of . .. Napue.” Drake,
762 F.2d at 1479 (Clark, J. specially concurring). Drake
therefore does not further Stumpf’s case either: a concurring
opinion that turns on the prosecutor’s inferred knowledge that
he was presenting false evidence does not comport with the
facts in this case.
52a
The last case cited by the majority, Smith v. Groose, 205
F.3d 1045 (8th Cir. 2000), is equally unconvincing. That case
involved two groups of robbers, the first of which, when
preparing to burglarize a house, discovered the second already
in the process of stealing the homeowner's possessions. The
two groups joined forces, and at some point during the crime
the homeowners were murdered. /d. at 1047. The leader of
the first group, Anthony Lytle, provided varying accounts of
what happened, alternately claiming that the head of the
second group, Michael Cunningham, killed the couple and
that one of his (Lytle’s) cohorts, James Bowman, was the
murderer. /d. at 1047-48. The state convicted Jon Keith
Smith, another member of Lytle’s group, for felony-murder
based on his association with purported fellow gang member
Bowman, who was argued to be the actual killer. Four months
later, the state then successfully prosecuted Cunningham for
the same murders, based on Lytle’s other story that
Cunningham had already killed the couple when Lytle and his
friends entered the house. /d. at 1048.
The Eighth Circuit ultimately granted Smith a writ of
habeas corpus because the state’s prosecution of Cunningham
violated Smith’s due process rights. /bid. Again, the crux of
the case was the deliberate presentation of false evidence: “In
short, what the State claimed to be true in Smith’s case it
rejected in Cunningham’s case, and vice versa.” /d. at 1050.
Only a showing of this kind of prosecutorial misconduct could
support a claim, dubious as it might be, that Stumpf’s
constitutional rights were retroactively violated.
Although this court mentions the prosecution’s
knowledge of Eastman’s subsequent statement concerning
Wesley’s alleged confession to being Mrs. Stout's killer, the
court’s decision does not rest on this knowledge. It is
undisputed that the prosecution did not know of Eastman’s
statement at the time of Stumpf’s conviction and sentencing.
Nothing indicates that the prosecution cherry-picked facts in
OO te 2s Ge SN
a
53a
~-
order to confirm Stumpf’s guilty plea in the evidentiary
hearing. The majority does not argue that the prosecution was
under any obligation to confess error in Stumpf's post-
conviction proceedings or appeals, nor even to bring
Eastman’s statement to Stumpf's attention. There is simply no
prosecutorial misconduct in this case that could retroactively
implicate Stumpf’s due process rights.
Groose does not “hold that prosecutors must present
precisely the same evidence and theories in trials for different
defendants. Rather [it] holds only that the use of inherently
factually contradictory theories violates principles of due
process.” /d. at 1052. The majority remarkably expands this
holding to conclude that evidence in a second case that
contradicts a guilty plea in an earlier case can implicate due
process rights. Stumpf pled guilty after a colloquy in which he
indicated that he understood that he was waiving certain
constitutional rights. A defendant’s guilty plea is an
“admission that he committed the crime charged against him.”
North Carolina v. Alford, 400 U.S. 25, 32, 27 L. Ed. 2d 162,
91 S. Ct. 160 (1970). Nothing in the record suggests that the
prosecutor was remiss in_ relying on Stumpf's
acknowledgment of guilt. See Dickerson v. United States, 530
U.S. 428, 450, 147 L. Ed. 2d 405, 120 S. Ct. 2326 (2000)
(Scalia, J., dissenting) (observing that if a defendant
voluntarily acknowledges wrong-doing, the “Constitution is
not... offended by a criminal’s commendable qualm of
conscience or fortunate fit of stupidity). n2 Therefore, | do not
see any grounds on which to base an allegation that the
prosecution skewed the same set of facts in two different trials
in order achieve two mutually incompatible guilty verdicts.
This case has little or no similarity with the facts of
Thompson, Drake, and Groose.
n2 Even assuming, arguendo, that the majority is
correct that Stumpf pled guilty based on substandard
legal advice, it does not follow that accepting the
S4a
acknowledgment of guilt amounts to prosecutorial
misconduct, the prerequisite for finding a violation of
Stumpf's constitutional rights. The majority argues that
the plea was not voluntary, a conclusion | address infra,
but the validity of the plea is an entirely different
matter. However flawed a defendant's guilty plea might
be, it cannot constitute a contradictory prosecutorial
theory of guilt, as required in Groose.
Far more instructive is the Ninth Circuit’s quite revent
decision in Shaw v. Terhune, 353 F.3d 697 (9th Cir. 2003).
The court held that imposing sentence enhancements on two
defendants for personal use of a firearm during an attempted
robbery and assault on a restaurant manager was not a
violation of due process, although the testimony clearly
indicated that only one perpetrator had held a gun to the
manager’s head. /d. at 701-02. When the first defendant,
Shaw, learned of the conviction and sentence of his
accomplice three years later, he filed a habeas petition, citing
the California Court of Appeals decision upholding Watts’s
sentence which stated: “Indeed, the evidence adduced at trial,
which presumably was available to the prosecutor prior to
trial, tends to support the conclusion that the jury in [Shaw’s]
trial was mistaken.” People v. Watts, 76 Cal. App. 4th 1250,
1259-61, 91 Cal. Rptr. 2d | (1999) (quoted in Shaw, 353 F.3d
at 701) (bracket added in Shaw).
However, the Shaw court distinguished its case from
Thompson, pointing to the fact that the prosecutor did not
manipulate evidence—the same crucial distinction that is
present in our case. Shaw, 353 F.2d at 702. Ambiguous
evidence is not false evidence; “regrettable” tactics are not
necessarily unconstitutional. /d. at 703-04. The fact of the
matter is that no one but Wesley and Stumpf know who shot
Mrs. Stout. The State is entitled to put on the available
evidence to convince the finder of fact of guilt. As long as it
5Sa
does so in a good faith manner, without manipulating or
selecting out critical evidence, due process is not violated.
The Shaw court also speculated that if there were a
constitutional violation, that Watts, the second defendant,
rather than Shaw, would be the one who could argue the
point. /d. at 704, n. 5. Similarly, | could understand a court
accepting Wesley's claim that the prosecution could not
honestly present evidence in his case that contradicted what
the government had relied upon previously (a type of
“prosecutorial estoppel”), or even that it could not present
evidence that contradicted a position it was taking elsewhere.
However, none of those theories can retroactively render
unfair the fundamentally fair proceedings that Stumpf
received.
Having indicated that | believe it is logically impossible
for Stumpf's claim to succeed under these circumstances, |
touch only lightly on the court's resolution of the question of
“whether there is a reasonable probability that the
prosecutor's use of inconsistent, irreconcilable theories
rendered the conviction unreliable.” (Maj. Op. at 40). Nothing
that occurred in Stumpf's proceeding rendered the conviction
unreliable. At most, the existence of Eastman’s statement
could be argued to have rendered the conviction unreliable,
but then our analysis would simply be that of any newly
discovered evidence, which proceeds against a more difficult
background and which the court does not undertake. United
States v. O'Dell, 805 F.2d 637, 640 (6th Cir. 1986) (“Motions
for a new trial based on newly discovered evidence are
disfavored.”); see, e.g.. Herrera v. Collins, 506 U.S. 390, 400,
122 L. Ed. 2d 203, 113 S. Ct. 853 (1993) (stating the rule that
habeas relief is not the proper remedy for a claim of judicial
error based on newly discovered evidence, absent some
constitutional flaw in the trial proceedings). It would indeed
be bizarre if Eastman’s statement could not undermine
Stumpf's conviction by its own force, but introducing it into
S6a
another proceeding could do so. Following our court's
decision, a prosecutor faced with the same dilemma in the
future would be well advised not only to eschew reliance
upon such potentially contradictory evidence in later
proceedings, but presumably prevent any other prosecutor
from doing so. He or she might even be forced deceitfully to
disclaam a belief that a jury was entitled to hear such
evidence. In sum, whatever the result might be were Wesley
bringing the claim, | cannot agree to the principle of
retroactive unconstitutionality propounded in this case.
With respect to Stumpf's claim attacking his guilty plea,
the court’s opinion appears to take no notice of the benefit
that Stumpf in fact gained from pleading guilty. He first
waived a jury trial, opting to contest the charges before a
three-judge panel. He then pled guilty in return for the
prosecution dropping some charges and specifications. It is
axiomatic that acceptance of responsibility decreases the
chances that the death penalty will be imposed. The
sentencing court had three choices in sentencing Stumpf: life
without parole for twenty years; life without parole for thirty
years; and death. It made sound strategic sense for him to act
in a way that would encourage the judges to choose one of the
first two options.
Once Stumpf pled guilty, he was entitled to an
evidentiary hearing before a three-judge panel to confirm that
the evidence in the case supported his plea. Ohio Rev. Code
Ann. § 2945.06. Under one strategic view of the facts, the
panel might have been less likely than a jury to render a death
verdict because it would have grasped the legal theory behind
Stumpf's position that, while guilty of Mrs. Stout's murder, he
was not actually the shooter, and therefore did not deserve the
death penalty. Stumpf was arguably hoping for another
benefit, namely the dismissal of the remaining specifications
S7a
to the charges against him that made him eligible for the death
penalty. In Ohio “if the indictment contains one or more
specifications, and a plea of guilty or no contest to the charge
is accepted, the court may dismiss the specifications and
impose sentence accordingly, in the interests of justice.” Ohio
R. Crim. P. 11(C)(3). Therefore, the majority is incorrect that
Stumpf received no benefit at all from pleading guilty: he
significantly improved his chances to avoid the death penalty,
although in the end his strategy did not yield the desired
result.
Despite the court's extensive exegesis of the
“confusion” at the plea hearing itself, the events that took
place at the sentencing hearing apparently were neither a
surprise nor a disappointment, in the beginning, to the
defendant or his counsel. In fact, the defense attorney stated
that the prosecution's rendition of the plea agreement was
accurate, (Maj. Op. at 16). No objection was made to the
course of the sentencing hearing, nor was there any effort to
withdraw the guilty plea at that point. It was only after the
Eastman statement came to light that Stumpf attempted to
withdraw his guilty plea. Similarly, at the “factual basis
hearing” before the three-judge panel the defense did not
attempt to say: “Wait a minute, we aren't able to make an
argument that we thought we would be able to make at this
stage.” It made the argument. The three-judge panel heard and
considered it. They simply were not persuaded.
Finally, it is true that Stumpf denied that he actually
shot Mrs. Stout. Nevertheless, he knew that by pleading
guilty, he would only be able to argue that Wesley in fact
committed the murder as part of the mitigation phase of the
proceedings. The majority asserts that there is evidence of a
“serious misunderstanding,” (Maj. Op. at 23), between the
judge and Stumpf's lawyers. But no one was denying that
Stumpf was involved in the murder of Mrs. Stout. His lawyers
were laying the groundwork to argue that Stumpf was not the
Sa
triggerman and therefore did not deserve the death penalty.
Stumpf would certainly be anxious to make that argument,
and it ts hardly surprising that, not knowing the precise point
in the proceedings that it would be relevant, he would want to
double-check that he would have an opportunity to argue this
mitigating factor. The majority aed misinterprets Stumpf's
caution as confusion.
Under these circumstances, it appears to me that Stumpf
understood his legal strategy, executed it according to plan,
and got exactly the opportunities that he bargained for,
making the grant of a writ of habeas corpus unwarranted.
Therefore, | respectfully dissent.
59a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_ No. 01-3613
JOHN DAVID STUMPF, Petitioner-Appellant,
BETTY MITCHELL, WARDEN, Respondent-Appelice.
Filed August 9, 2004
BEFORE: BOGGS, Chief Judge; DAUGHTREY and
MOORE, Circuit Judges.
OPINION
ORDER
The court having received a petition for rehearing en
banc, and the petition having been circulated not only to the
original panel members but also to all other active* judges of
this court, and no judge of this court having requested a vote
on the suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
* Judge Cook recused herself from participation
in this ruling.
The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were fully
considered upon the original submission and
61
a
decision of the case. Accordingly, the petition is denied. Chief
Judge Boggs would grant rehearing for the reasons stated in APPENDIX C
_ his dissent. |
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN DAVID STUMPF,
Petitioner,
Case No. C-1-96-668
v. JUDGE SMITH
Magistrate Judge Kemp
CARL ANDERSON, Warden,
Respondent.
OPINION AND ORDER
Petitioner, a state prisoner sentenced to death by the
State of Ohio following his plea of guilty to a charge of
capital murder, brings this action for a writ of habeas corpus
pursuant to 28 U.S.C. §2254. On November 9, 1999, this
Court issued an Opinion and Order finding that the following
4 claims were barred by procedural default: 1.2, 1.4, 1.6, 1.10,
1.12, 1:14, 3, and Sa. This matter is now before the Court on
the instant petition, respondent’s return of writ, petitioner's
traverse, and the state court record for a determination of the
merits of petitioner's remaining claims.' The facts of this case
are set forth in the Opinion and Order of November 9, 1999,
and will be repeated here only to the extent needed to provide
context for petitioner's merits arguments.
' Also before the Court are supplemental briefs filed by the
parties pursuant to an order from this Court dated
September | 1, 2000. (Order, 09/11/200, doc. no. 22).
62a
Second Claim for Relief
In his second claim for relief, petitioner argues that his
guilty plea was not knowing, voluntary, and intelligent. As
more fully described in the Court’s November 9, 1999
Opinion and Order, petitioner and another individual, Clyde
Daniel Wesley, participated in an armed robbery during which
the victim in this case, Mary Jane Stout, was shot and killed.
Petitioner has consistently maintained that Wesley fired the
shots that killed Mrs. Stout. He has also admitted, however, to
his participation in the robbery, and to shooting Mrs. Stout's
husband, who survived the attack. Petitioner asserts that he
derived no benefit from pleading guilty to the capital murder
charge, that he never specifically affirmed his guilt during the
plea colloquy, that he did not understand when he entered his
guilty plea that he could still be sentenced to death, and that
his counsel was ineffective for failing to advise him at that
stage that he was not benefitting from the plea bargain and
that he could still be sentenced to death. Petition at $9J38-47.
When a criminal defendant pleads guilty, he waives
numerous fundamental constitutional rights --- including the
right against compulsory self-incrimination, the right to trial
by jury, and the right to confront his accusers. Boykin v.
Alabama, 395 U.S. 238, 243 (1969). “A plea of guilty is more
than a confession which admits that the accused did various
acts; it is itself a conviction; nothing remains but to give
judgment and determine punishment.” /d. at 242. In light of
the numerous fundamental constitutional guarantees that a
defendant forfeits when he pleads guilty, the state has the
burden to demonstrate that the plea is voluntary, intelligent,
and knowing. /d; see also Garcia v. Johnson, 991 F.2d 324,
326 (6th Cir. 1993). Generally, a plea is voluntary if it is not
induced by threats or misrepresentations and if the defendant
is advised of the direct consequences of the plea. Brady v.
United States, 397 U.S. 742; 755 (1970). A plea is intelligent
- -
enlist es see a ENS care? os
63a
if the defendant understands the rights that he waives. Bovkin
v. Alabama, supra, 395 U.S. at 243.
A determination of the voluntariness and intelligence of
a guilty plea must be made upon an analysis of the totality of
the circumstances. Garcia, 991 F.2d at 327; see also Berry v.
Mintzes, 726 F.2d 1142 (6th Cir.), cert. denied, 467 U.S. 1245
(1984). When a defendant later challenges the plea in federal
habeas corpus on the ground that it was not voluntary,
intelligent, and knowing, the state generally satisfies its
burden by producing a transcript of the state court
proceedings. Garcia, 991- F.2d at 326; Dunn v. Simmons, 877
F.2d 1275, 1277 (6th Cir. 1989), overruled on other grounds
by Parke v. Raley, 506 U.S. 20 (1992). A state court’s factual
finding that the plea was proper generally enjoys a
presumption of correctness in federal habeas corpus. Garcia,
991 F.2d at 326; Dunn, 877 F.2d at 1277. But when the
transcript is inadequate to show that a plea was voluntary and
intelligent, the presumption of correctness is called into
question. Garcia, 991 F.2d at 326; see also Jones v. Parke,
734 F.2d 1142, 1148 (6th Cir. 1984).
Where the [guilty plea] is subsequently
challenged, the state normally will attempt to
demonstrate its effectiveness by introducing a
transcript of the proceedings surrounding the trial
court’s acceptance of the guilty plea, and other
trial court records. Where the records leave doubt
as to whether the plea was in fact intelligent and
voluntary, the state may look to evidence extrinsic
to the court records, such as the recollection of
those attending the plea proceedings. However, in
the face of a record which is inadequate to
demonstrate the regularity of proceedings at the
time of a guilty plea’s acceptance, the state must
make a clear and convincing showing with
64a
extrinsic evidence that the plea was in fact
intelligently and voluntarily entered.
Dunn v. Simmons, supra, 877 F.2d at 1277 (citing Roddy v.
Black, 516 F.2d 1380, 1384 (6th Cr.), cert. denied, 423 U.S.
917 (1975)).
The record of state court proceedings surrounding the
accepting of petitioner’s guilty plea, although not a picture of
clarity, is relatively straightforward. The furthest that the
proceedings strayed from “regularity” actually came prior to
petitioner’s entering his guilty pleas. Jury selection began on
August 20, 1984, after the trial court heard arguments on and
eventually overruled defense counsel’s motion to suppress
statements. Jury selection abruptly ended on August 23, 1984,
however, when petitioner apparently waived a jury trial. The
proceedings resumed on September 17, 1984 before a three-
judge panel, with Presiding Judge Henderson reading into the
record the written jury waiver that petitioner had signed and
filed on August 23, 1984."
Immediately after reading that statement into the record,
the trial court was advised by the prosecuting attorney that a
plea agreement had been reached. The terms of that
agreement, as they were set forth by the prosecuting attorney,
are recounted here verbatim:
MR SCOTT: Your Honor, the first matter
that would be dealt with or the State would ask
leave of Court pursuant to Criminal Rule 7(D) and
Ohio Revised Code Section 2941.30 to amend by
interlineation specification one to the first count of
the Indictment in order that it may read as follows:
The Grand Jurors further find and specify under
* It does not appear that any colloquy ensued between the trial
court and petitioner regarding his waiver of a jury trial.
a
65a
Ohio Revised Code Section 2929.04(A)(3) in
compliance with Ohio Revised Code Section
2941.14 that the aforesaid offense being the
offense charged in the first count, the Aggravated
Murder, was committed for the purpose of
escaping detection, apprehension, trial or
punishment for other offenses -- the words, “other
offenses” are the first change, committed by the
above named John David Stumpf, to wit:
Aggravated Robbery and then we’re adding the
language “and Attempted Aggravated Murder”. If
that amendment is granted, the defendant then
would enter a plea of guilty to the first count
contained in the Indictment, being the Aggravated
Murder count and a plea guilty to specification one
to the first count as amended; would also enter a
plea of guilty to the second count in the
Indictment, being the offense of -- excuse me, back
up. As to the first count he would also enter a plea
of guilty to specification four to the first count. So,
he will be pleading to the first count, the amended
specification one to the first count and
specification four to the first count. With regard to
the second count, being the Attempted Aggravated
Murder, he would enter a plea of guilty to the
Attempted Aggravated Murder and a plea of guilty
to the specification to the second count. If the pleas
of guilty to the two counts and the specifications
I"ve mentioned are accepted by the Court, the
Court would then proceed under Criminal Rule
11(C)(3) to determine if there is a factual basis for
the plea of guilty to the Aggravated Murder charge
and the existence of the aggravating circumstances
and if the pleas are accepted the State would then
ask leave to enter a. nolle pros as to specifications
two and three to the first count and also a nolle
pros as to the third, fourth and fifth counts in the
66a
Indictment and including the specification to the
third count.
(Transcript, 09/17/84, at 6-7). When asked by the trial court
whether he “affirmatively acknowledged” the agreement as
stated by the prosecuting attorney, petitioner answered, “Yes,
sir.” (Tr., 09/17/84, at 8). The trial court granted leave to
amend the indictment as indicated above, and petitioner
apparently initialed those changes. (/d. at 10).
The trial court then engaged petitioner and his attorneys
in a colloquy to determine that his guilty pleas were
voluntary, intelligent, and knowing. When asked whether they
had fully investigated the facts and law, determined whether
there existed any question as to the admissibility of statements
and other evidence, and informed the petitioner of the
elements of the offenses, as well as defenses and
constitutional rights available to him, petitioner’s counsel
answered, “Yes, we have.” (/d. at 11). Petitioner, after being
sworn, then answered a series of questions posed by the trial
court regarding the nature of the charges against him and the
federal constitutional guarantees that he was forfeiting. Most
important for purposes of this discussion, was the following
exchange:
JUDGE HENDERSON: _ For the first count,
which is that of Aggravated Murder, you are
subject to being -- to a sentence of twenty years
without probation, that is, a sentence of life
without probation for twenty years; a sentence of
life without probation for a period of thirty years
and the death penalty by electrocution could be
imposed against you. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
(/d. at 14). Later, the trial court asked:
67a
JUDGE HENDERSON: Do you _ understand,
Mr. Stumpf, that if any promises or inducements
have been made to you by any person to cause you
to plead guilty that they are not binding upon the
Court, that if you plead guilty the Court, this panel
of Judges, will decide your sentence after
considering all of the evidence that is to be
presented and evidence in_ mitigation of
punishment and after considering a presentence
investigation, report and recommendation
approved and prepared by the probation
department and that you may receive the
maximum sentence prescribed by law. Do you
understand that, sir?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: _ Have any promises or
inducements been made to you, sir, other than the
agreement which you have affirmatively
acknowledged on the record.
THE DEFENDANT: No, sir.
(/d. at 17-18). When the trial court then asked petitioner
whether he was in fact guilty of the Aggravated Murder
charge, defense counsel interrupted, at petitioner’s behest, and
explained that, although petitioner’s answer would be “yes,” it
was petitioner's understanding that he would be given the
opportunity to present evidence relevant to his conduct. (/d. at
18). Following that clarification, the trial court again asked
petitioner whether he was “in fact guilty of the charge set
forth in Count One, including specification one and
specification four,” to which petitioner responded, “Yes, sir.”
(/d. at 18-19).
68a
After the plea colloquy, the trial court conducted an
evidentiary hearing, as required under Ohio law with respect —
to guilty pleas in capital cases, to determine that there was a
factual basis for petitioner's plea. The hearing, which began
on September 18, 1984, concluded on September 20, 1984
with petitioner being found guilty of each offense to which he
had pleaded guilty. Following the mitigation proceedings, the
trial court reconvened on September 24, 1984 and sentenced
petitioner to death on Count One.
Aside from the abrupt manner in which the trial
proceedings shifted from jury selection to a three-judge panel
facing a negotiated plea, the transcript of the proceedings
surrounding petitioner’s guilty plea suggests both an air of
regularity and that petitioner's plea was voluntary, intelligent,
and knowing. After the prosecuting attorney explained the
plea agreement that had been reached, petitioner affirmatively
acknowledged the agreement. (Tr., 09-17-84, at 6-8).
Petitioner’s attorneys affirmed on the record that they had
investigated the facts and law relevant to the case, and had
examined the admissibility of various statements and
evidence. (/d. at 10-11). They further affirmed that they had
informed petitioner of the elements of the offenses with which
he was charged, of all the defenses that were available to him,
and of all his constitutional rights. (/d. at 11). Petitioner
personally acknowledged that his attorneys had informed and
advised him as such. (/d. at 13). Petitioner also affirmed that
he understood that, for the offense of aggravated murder, he
was eligible for, among other penalties, death by
electrocution. (/d. at 14). Later, he acknowledged an
understanding that, regardless of what promises or
inducements may have been made to him, punishment would
ultimately be determined by the trial court and that the Court
could impose the maximum sentence. (/d. at 17-18). Finally,
petitioner answered that he was in fact guilty of the offense of
aggravated murder -- albeit, only after a statement by defense
counsel emphasizing that petitioner had requested counsel to
69a
explain to the trial court that petitioner would answer that he
was guilty, with the understanding that he would have the
opportunity to present evidence relevant to his conduct. (/d. at
18-19). Petitioner averred that he was not under the influence
of drugs or alcohol, and the transcript does not suggest
otherwise. (/d. at 13-14). All of the foregoing indicates a plea
that was voluntary, intelligent, and knowing.
With respect to petitioner's argument that he derived no
benefit from pleading guilty to the aggravated murder offense,
that might appear, in hindsight, to be true. But criminal
defendants who make solemn admissions and declarations
under oath will not be permitted to challenge the voluntariness
of an otherwise valid plea -- made with a professed
understanding of the nature of the charges, the rights waived,
and the direct consequences including the maximum possible
sentence -- simply because they ultimately did not obtain the
results they had desired.
A guilty plea invariably is made without
complete foresight of the possible outcome of
alternative procedures that might have been
undertaken. Thus, an accused, with the assistance
of his attorney, must examine the evidence which
the Government has amassed against him, consider
possible defenses, weigh the costs and benefits of
proceeding to trial and ultimately decide, in light
of the information then available, whether to enter
a guilty plea. There is no guarantee that the
accused will make the correct decision or that in
hindsight such plea will not reflect an error in fact
or judgment. Such uncertainty, which after all is
the linchpin of every plea bargain, is inherent in a
guilty plea and does not make the plea involuntary.
United States v. Turner, 881 F.2d 684, 686-87 (9th Cir.), cert.
denied, 110 S.Ct. 199 (1989) (quoting Johnson v. United
70a
States, 539 F.2d 1241, 1243 (9th Cir. 1976), cert. denied. 431
U.S. 918 (1977)). See also McMann v. Richardson, 397 US.
759, 769-771 (1970) ("a guilty plea is not rendered
involuntary merely because in hindsight the defendant wishes
he had chosen a different course =f -ction.”); United States ex
rel. Curtis v. Zelker, 466 F.2d 12, 1098 (2d Cir. 1972) (“a
defendant's mistaken subjective impressions gained from
conferences with his legal counsel, in the absence of
substantial objective proof showing that they were not
reasonably justified, do not provide sufficient grounds upon
which to set aside his guilty plea.”), cert. denied, 410 U.S.
945 (1973).
As the Court noted above, petitioner affirmatively
acknowledged his understanding of and agreement with the
plea negotiations, as they were explained on the record by the
prosecuting attorney. Ordinarily, “{sJolemn declarations in
open court carry a strong presumption of verity.” Blackledge
v. Allison, 431 U.S. 63, 74 (1977). That said, the Court
acknowledges that the prosecuting attorney's explanation of
the plea arrangements was somewhat difficult to follow. and
that criminal defendants in such situations will often answer
questions posed by the trial court without a clear
understanding of each and every term uttered -- especially if
advised by counsel to do just that. Prophylactic colloquies
designed to foreclose subsequent attacks are “neither always
perfect nor uniformly invulnerable to subsequent challenge
calling for an opportunity to prove the allegations.” Fontaine
v. United States, 411 U.S. 213, 215 (1973) (per curiam); see
also Machibroda v. United States, 368 U.S. 487, 494-96
(1962); Blackledge, supra, 431 U.S. at 74-75; United States v.
Todaro, 982 F.2d 1025, 1030 (6th Cir.), cert. denied, 508 U.S.
943 (1993); However, the Court is faced with a transcript
revealing a comprehensive colloquy between the trial court
and petitioner, during which petitioner professed an
understanding of the nature of the charges against him, the
rights that he was waiving, and the direct consequences of his
Tila
plea -- including the maximum possible sentence, that being
death. In light of the foregoing, petitioner's argument that he
derived no benefit from the plea bargain does not persuade the
Court that his plea was not voluntary and intelligent.
Another argument advanced by petitioner in support of
his challenge to the validity of his guilty plea is that he never
actually affirmed that he was guilty of the aggravated murder
offense. Petitioner's assertion is belied by the record. As the
Court discussed above, petitioner answered, when asked by
the trial court whether he was in fact guilty of the offense of
aggravated murder, that he was -- albeit, only after a
statement by defense counsel emphasizing that petitioner had
requested counsel to explain to the trial court that petitioner
would answer that he was guilty, with the understanding that
he would have the opportunity to present evidence relevant to
his conduct. (Transcript, 09/17/84, at 18-19). That petitioner's
attorney qualified petitioner's position with respect to the
question of whether he was in fact guilty of aggravated
murder does not diminish or otherwise undermine the answer
that petitioner ultimately gave under oath -- namely, yes, that
he was in fact guilty of aggravate murder. “[A] temporary
qualification of position by the defendant ts not sufficient to
rebut the presumption of correctness of state court
proceedings, and to support a finding that [the defendant] did
not understand the nature of his plea.” Garcia v. Johnson,
supra, 991 F.2d at 327. Petitioner will not now be heard to
assert that he never actually affirmed that he was guilty of
aggravated murder.
Petitioner also argues, in support of his challenge to the
validity of his guilty plea, that he did not understand that he
would still be eligible for the death sentence. Again,
petitioner's assertion is belied by the record. As the Court
he understood that, by pleading guilty to the aggravated
murder offense and specifications, he would be eligible for a
72a
life sentence with possibility of parole in twenty years, a life
sentence with possibility of parole in thirty years, or death by
electrocution -- petitioner answered, “yes, sir.” (Transcript,
09/17/84, at 14). Later, petitioner acknowledged that he
understood that, regardless of inducements or representations
that may have been made to him, the trial court alone would
decide his punishment- and the trial court could impose the
maximum sentence. (/d. at 17-18). Petitioner gave his
answers on the record and under oath. His after-the-fact
assertion that the answers he gave then were false, while the
assertions he makes now are true, is an insufficient basis for
determining that his plea was not knowing or voluntary.
Further, petitioner was represented by counsel, and, no
doubt, discussed possible sentences with his attorney. “[I]t
taxes credibility to suggest that the paramount question of
sentence, from the point of view of the accused, would have
remained unexplored in the attorney/client conferences.”
Berry v. Mintzes, 726 F.2d 1142, 1149 (6th Cir.), cert. denied,
467 U.S. 1245 (1984). Defense counsel were well aware that
petitioner was eligible for the death sentence. During the
evidentiary hearing to determine that a factual basis existed
for petitioner's guilty pleas, one of petitioner's attorneys
noted in his opening statement that it was necessary to
determine whether there was also a factual basis for the first
specification to the aggravated murder count, “being the
specification which does authorize the death penalty in this
case.” (Transcript, 09/17/84, at 35). It seems highly unlikely,
in the absence of evidence to the contrary, that defense
counsel did not apprise petitioner that he was eligible for the
death penalty. Thus, above and beyond what is evident from
the transcript of the plea colloquy -- namely, that petitioner
stated under oath not once, but twice, that he understood that
he was eligible for the death sentence -- the fact that petitioner
was represented by counsel bolsters this Court’s conclusion
that possible sentences, including death, were discussed when
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considering whether petitioner should enter a guilty plea to
the aggravated murder sentence.
Petitioner further argues that his plea was not voluntary
and intelligent, due to the ineffectiveness of his attorneys in
not informing him that he would derive no benefit and that he
would still be eligible for the death penalty. As discussed
above, the Court must proceed with caution in the face of
after-the-fact assertions that what petitioner said under oath
during the plea colloquy was false, while what he asserts now
is true. During the plea colloquy, petitioner's attorneys
affirmatively acknowledged that they had advised petitioner
of the nature of the charges that he faced, of his possible
defenses, and of the rights that he was waiving. Petitioner,
who was present during that exchange between the trial court
and defense counsel, confirmed that his attorneys had advised
and informed him as such. The Court has before it a transcript
that indicates a knowing, intelligent, and voluntary plea. The
only evidence that petitioner has introduced to challenge the
validity of his pleas, as well as the apparent regularity of the
state court proceedings, is his own affidavit, first submitted to
the trial court as an exhibit to his postconviction action.
Although the Court is neither free, nor inclined, to disregard
that affidavit altogether, that affidavit, without more, does not
permit the Court to dismiss the validity of answers and a plea
of guilty given by petitioner on the record and under oath. See
Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir. 1993), cert
denied, 510 U.S. 180 (1994); Dempsey v. Wainwright, 471
F.2d 604, 607 (Sth Cir.), cert denied, 411 U.S. 968 (1973), see
also Faught v. Cowan, 507 F.2d 273, 275 (6th Cir. 1974), cert
denied, 421 U.S. 919 (1975).
It is evident from the record that defense counsel's
strategy was to demonstrate during the evidentiary hearing, as
well as the mitigation hearing, that petitioner did not fire the
shots that killed the victim, and that the death penalty,
accordingly, was either not authorized or not appropriate. This
74a
is amply demonstrated by the record, and petitioner has not
sufficiently rebutted either the regularity of the plea
proceedings, or that counsel's choices were borne from
neglect and a dereliction of duty, as opposed to reasoned trial
strategy.
_ For all of these reasons, the Court concludes that
petitioner's second claim for relief is without merit.
Fifth Claim for Relief
, In his fifth claim for relief, petitioner asserts ineffective
assistance of appellate counsel on direct appeal to the Court of
Appeals. Specifically, petitioner asserts that his appellate
attorneys were constitutionally deficient for failing to raise the
following issues on appeal:
5.1 That the trial court erred in failing to file
findings of fact and conclusions of law in
connection with its rejection of petitioner's
motion to suppress statements;
5.2 That the trial court erred in finding a
sufficient factual basis for petitioner's guilty
plea since, there is insufficient evidence
demonstrating that petitioner possessed
specific intent to kill Mrs. Stout;
5.3 That the trial court abused its discretion in
failing to grant petitioner's request for a
change of venue:
5.4 That the trial court abused its discretion in
accepting petitioner’s guilty plea without
explaining the nature of the charge as
75a
required by state rules of criminal procedure
and constitutional law;
5.5 That the prosecutor made improper
comments regarding the unsworn nature of
petitioner's statement in mitigation;
5.6 Appellate counsel's failure to ensure that the
presentence investigation report was made a
part of the record on appeal; and
5.7 That trial counsel had been ineffective for
failing to fully develop the record on the
involuntary nature of petitioner's guilty
plea.’
The Court will discuss the controlling standard for claims of
ineffective assistance of appellate counsel and then address
each of petitioner’s allegations separately.
The Strickland test applies to appellate counsel. Burger
v. Kemp, 483 U.S. 776 (1987), Counsel must provide
reasonable professional judgment in presenting the appeal.
Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). “[W]innowing
out weaker arguments on appeal and focusing on those more
likely to prevail, far from being evidence of incompetence, is
the hallmark of effective appellate advocacy.” Smith v.
Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes,
463 U.S. 745, 751-52 (1983)). The Court of Appeals for the
'2 As the Court noted in its earlier procedural default order,
the habeas corpus petition includes two claims designated as
the “fifth claim for relief.” The first “fifth claim” is comprised
of the allegations designated by the Court as 5.1 through 5.6.
The only allegation of the second “fifth claim” that was
properly presented to the state courts, and that is entitled to a
review on the merits by this Court, is designated
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Sixth Circuit has identified the following considerations that
ought to be taken into account in determining whether counsel
on direct appeal performed reasonably competently:
(1) Were the omitted issues “significant and
obvious?”
(2) Was there arguably contrary authority on the
omitted issues?
(3) Were the omitted issues clearly stronger than
those presented?
(4) Were the omitted issues objected to at trial?
(5) Were the trial court’s rulings subject to
deference on appeal?
(6) Did appellate counsel testify in a collateral
proceeding as to his appeal strategy and, if
So, were the justifications reasonable?
(7) What was appellate counsel's level of
experience and expertise?
(8) Did the petitioner and appellate counsel meet
and go over possible issues?
(9) Is there evidence that counsel reviewed all
the facts?
(10) Were the omitted issues dealt with in other
assignments of error?
(11) Was the decision to omit an issue an
unreasonable one which only an incompetent
attorney would adopt?
Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir.), cert. denied
528 U.S. 946 (1999). The Sixth Circuit cautioned, however,
that this list is not exhaustive and need not produce a certain
“score.” /d at 428. The Court will now turn its attention to
each allegation of appellate counsel ineffectiveness asserted
by petitioner.
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5.2 Trial Court’s Determination That There Was
Factual Basis for Guilty Plea
Petitioner argues that his appellate attorneys were
constitutionally ineffective for failing to challenge on appeal
the trial court’s determination that there was a sufficient
factual basis to support petitioner's guilty pleas. Specifically,
petitioner asserts that specific intent is the requisite culpability
and that there was insufficient evidence, demonstrating that he
possessed specific intent to kill the victim. Petitioner argues,
therefore, that his attorneys were ineffective for not
challenging on appeal the trial court’s determination that there
was a factual basis supporting his guilty pleas to aggravated
murder and the “escaping detection” specification.
The Court is not persuaded that petitioner's attorneys
were ineffective in this regard. Although the issue whether
there was a sufficient factual basis supporting petitioner's
guilty pleas seems, at first glance, to be an obvious issue for,
appeal, given the fact that petitioner steadfastly maintained,
even while pleading guilty, that it was his co-defendant
Daniel Wesley, who had actually shot and killed Mrs. Stout, it
cannot be said under Strickland that petitioner's attorneys
were constitutionally deficient, or that petitioner was
prejudiced, by the omission of this issue from the appeal.
Initially, it bears repeating, with respect to petitioner's
insistence that his co-defendant was the triggerman, that
petitioner pleaded guilty to the offense of aggravated murder
and the “escaping detection” specification. That is, petitioner
stood in open court and’ stated, under oath, that he had
purposely killed Mrs. Stout and that he had done so for the
purpose of escaping detection, apprehension, trial, or
punishment for the offense of aggravated robbery. Moreover,
there was circumstantial evidence and testimony placing the
murder weapon in petitioner's hand and _ establishing
78a
petitioner as the one who fired the fatal shots.”'> With that in
mind, the Court notes first that counsel may very well have
elected not to challenge the factual basis for petitioner's guilty
plea, since there was sufficient evidence from which a
reasonable factfinder could have found, beyond a reasonable
doubt, specific intent to kill. Evidence and testimony revealed
a methodical, calculated entrance into the Stout home by
petitioner and Wesley for the purpose of committing robbery;
that multiple gunshots were fired into the heads of Mr. and
Mrs. Stout at point blank range; that petitioner and Wesley
had reason to fear that they wold be identified by the Stouts;
and that petitioner and Wesley fled the Stouts’ home, leaving
them to die. Thus, counsel may very well have determined
that this issue was not stronger than the issues they ultimately
presented on appeal. Mapes, supra, 171 F.3d at 427-28.
Moreover, the issue of whether there was a sufficient factual
basis supporting petitioner's guilty pleas to aggravated murder
and the “escaping detection” specification were essentially
dealt with in other assignments of error concerning the trial
court’s decision not to permit petitioner to withdraw those
guilty pleas. Id. Having reviewed the record, the Court cannot
say that the decision not to pursue this issue on appeal was
“an unreasonable one which only an incompetent attorney
would adopt.” Id. For these reasons, the Court rejects
petitioner's claim that his attorneys on appeal were ineffective
for failing to assign as error the trial court’s determination that
there was a factual basis supporting petitioner’s guilty pleas.
** *
5.4 Trial Court’s Failure to Explain Nature of Charge
'’ The Court is mindful, just as the state courts were, of
affidavits and transcripts from the subsequent trial of Clyde
Daniel Wesley, filed by petitioner in support of his motion to
withdraw his guilty plea, attempting to show that Wesley had
confided to a cellmate that he, and not petitioner, had actually
killed Mrs. Stout.
79a
When Accepting Guilty Plea
Petitioner argues in claim 5.4 that his appellate attorneys
were ineffective for failing to challenge on appeal the fact that
the trial court accepted petitioner's guilty plea without
_ explaining the nature of the charges to which he was pleading
guilty; Although there arguably is some substance to
petitioner's allegations, the Court is not persuaded that
petitioner was prejudiced by appellate counsel's oversight.
The first prong of the Strickland test requires the Cc ourt
to determine whether counsel committed an error or omission
that was objectively unreasonable. The Court accomplishes
this task by examining whether the issue omitted from the
appeal was not only viable, but one that no competent
attorney reasonably would have foregone. Under Ohio law, a
trial court’s responsibilities in ensuring that a guilty plea is
made voluntarily are spelled out in Ohio R. Crim. P. II
(C)\(2):
In felony cases the court *** shall not accept a
plea of guilty or no contest without first addressing
the defendant personally and doing all of the
following:
(a) Determining that the defendant is making the
plea voluntarily, with understanding of the nature
of the charges and of the maximum penalty
involved***.
(b) Informing the defendant and determining that
the defendant understands the effect of the plea of
guilty or no contest, and that the court, upon
acceptance of the plea, may proceed with judgment
and sentence.
80a
(c) Informing the defendant and determining that
the defendant understands that by the plea the
defendant is waiving the rights to jury trial, to
confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the
defendant's favor, and to require the state to prove
the defendant's guilt beyond a reasonable doubt at
a trial at which the defendant cannot be compelled
to testier against himself or herself.
The Ohio Supreme Court has held that, although strict
compliance with Rule 11(C)(2) is preferred, substantial
compliance is sufficient, so long as the totality of the
circumstances demonstrate that the plea was voluntary. State
v. Carter, 60 Ohio St. 2d 34, 38 (1919); State v. Stewart, 51
Ohio St. 2d 86 (1977). With respect to ensuring that a
defendant enters a guilty plea “with understanding of ~the
nature of the charges,” although Ohio courts have stopped
Short of requiring trial courts to explicitly inform the
defendant of each element of the offense or to specifically ask
the defendant if he understands the nature of the charge, there
must be some basis in the record justifying a finding by the
trial court that the defendant understands the charge. See State
v; Rainey, 3 Ohio App. 3d 441 (Ohio app. 10 Dist. 1982): see
also State v. Blair, 128 Ohio App. 3d 435 (Ohio App. 2 Dist
1998)(defendant’s affirmative response to whether he
understood nature of attempted rape charge against him was
by itself, insufficient to support finding that he understood
what state would have to prove where there was nothing in
record to support finding that defendant was advised, by
anyone, of what state would have to prove to convict him): Jn
re Flynn, 101 Ohio App. 3d 778 (Ohio App. 8 Dist.
1995)(trial court is not required to inform defendant of each
element of the offense, but must ensure that defendant
understands the charge); State v. Swift, 86 Ohio App. 3d 407
(Ohio App. 11 Dist. 1993)(trial court is required to clear up
8la
confusion on defendant's part as to element of crime before it
can accept guilty plea).
In the instant case, it appears that the trial court
substantially complied with Ohio R. Crim. P. 11(C)(2) when
accepting petitioner's guilty pleas. The trial court informed
petitioner of the constitutional, rights to which he was entitled
and ensured that he understood he was waiving those rights;
inquired whether petitioner was under the influence of drugs,
alcohol, or mental defect that might impair his voluntariness,
advised petitioner of the maximum penalties that he faced;
inquired whether petitioner's guilty pleas had been obtained
through promises, inducements, or threats; and, inquired
whether petitioner had discussed his plea and was satisfied
with his attorneys. (Mitigation transcript, at 11-18). The trial
court did not inquire into petitioner's educational background
in ascertaining whether he was capable of understanding the
charges to which he was pleading guilty or the consequences
of his guilty pleas. The trial court also failed to inform
petitioner of the elements of the charges to which he was
pleading or to inquire whether he understood the charges. The
trial court did, however, inquire of petitioner's attorneys
whether they had explained the elements of the offenses to
petitioner. (Mitigation transcript, at 11). From the plea
colloquy as a whole, there appears to be a basis in the record
justifying the trial court’s finding that petitioner entered his
guilty pleas “with full knowledge of the nature of the
accusation and the consequences of the pleas,” (Mitigation
transcript, at 23), though that basis appears to have been
somewhat scant.
Further, there were intimations at the time that petitioner
entered his guilty pleas, as well as outright declarations in his
subsequent appeals and collateral attacks, that petitioner did
not fully grasp the nature of the charges to which he was
pleading guilty. During the plea colloquy, when the trial court
asked petitioner whether he was in fact guilty of the
82a
aggravated murder charge and specifications one and four to
that charge, petitioner did not immediately answer, prompting
defense counsel to interject:
MR. STEPHENS: One moment, Your Honor.
Your Honor, the defendant has asked me to
explain his answer. His answer is yes. He will
recite that with obviously his understanding of the
his right to present evidence at a later time relative
to his conduct, but he’ll respond to that.
(Mitigation transcript, at 18). After petitioner's pleas had been
accepted and petitioner had been sentenced to death, when
petitioner later sought to withdraw his plea and to attack his
conviction and sentence in postconviction, he asserted, (as he
continues to assert here), that he did not understand that he
was admitting to the actual shooting of Mary Jane Stout and
that he only pleaded guilty because he was led to believe that
he would be able to present evidence demonstrating that he
was not the shooter, i.e., the principal offender.
The trial court’s failure to explain more fully the nature
of the charges is fairly characterized as a non-frivolous, viable
issue worthy of appeal. The trial court did not notify petitioner
of the elements of the offenses to which he was pleading
guilty and did not specifically ask him whether he understood
the charges. The only basis supporting the trial court’s finding
that petitioner understood the nature of the charges was
defense counsel’s affirmative response to the trial court’s
question as to whether counsel had explained the elements of
the offenses to petitioner. That petitioner denied being the
actual shooter, or principal offender, was evidenced first in his
reluctance to answer when the trial court asked whether he
was in fact guilty of shooting Mrs. Stout and then throughout
the hearing to determine whether there was a factual basis for
his pleas, when he fought to establish that it as his co-
defendant, and not he, who had actually shot Mrs. Stout. The
83a
foregoing suggests that appellate counsel omitted a significant
and obvious issue when they failed to assign as error the trial
court’s failure to explain the nature of the charges when it
accepted petitioner's guilty plea. A tactical reason for not
raising this issue on appeal is not readily apparent. It is
likewise difficult to characterize this issue as one that a
competent attorney could understandably overlook. Hence,
petitioner has arguably satisfied the deficient performance
prong of the Strickland test.
It is not enough, of course, for petitioner to demonstrate
that appellate counsel's conduct fell below that of a
reasonable attorney under prevailing professional norms.
Petitioner must also show that, but for appellate counsel's
error, the appeal would have resulted in a different outcome.
Strickland, supra, 466 U.S. at 694; Tucker v. Prelesnik, 181
F.3d 747, 754 (6th Cir. 1999). The prejudice inquiry has been
defined in terms of whether counsel’s errors were so
egregious as to undermine reliability of and confidence in the
result of the proceedings. McQueen v. Scroggy, 99 F.3d 1302,
1311 (6th Cir. 1996), cert. denied, 521 U.S. 1131 (1997); see
also Lockhart v. Fretwell, 506 U.S. 364, 369-370 (1993). The
prejudice prong serves an important function -- namely, to
ensure that otherwise valid criminal judgments are not lightly
overturned because of attorney error that, in the end, did not
prejudice the rights of the defendant or undermine the
confidence in or reliability of the proceeding. Cf, Lockhart,
supra, 506 U.S. at 368-69 (holding that the right to effective
assistance of counsel is recognized not for its own sake but
because of the effect it has on ability of the accused to receive
a fair trial). Under the prejudice prong, even assuming that
appellate counsel could objectively be faulted for not raising
the trial court’s failure to explain the nature of the charges, the
Court cannot find that petitioner was prejudiced by that error
because it does not appear that the state courts in this case
would have accepted petitioner’s argument about the trial
court’s failure to instruct on the elements of the offense. That
4a
is, the Court cannot find that appellate counsel's failure to
raise that issue undermined the reliability of the outcome of
petitioner's appeal. This Court finds that appellate counsel's
failure to challenge the fact that the trial court did not explain
the nature of the charges does not undermine the reliability of
or confidence in the result of petitioner’s appeal.
As noted supra, the failure of a trial court to use, the
exact language contained in Ohio R. Crim. P. 11(C) does not
provide a basis for vacating the appeal. See State v. Anderson,
108 Ohio App. 3d 5, 9 (Ohio App. 9 Dist. 1995). “With
respect to constitutional rights, the trial court’s acceptance of
a guilty plea will be affirmed if the court engaged in a
meaningful dialogue with the defendant which, in substance,
explained the pertinent constitutional rights “in a manner
reasonably intelligible to that defendant.” /d (quoting State v.
Ballard, 66 Ohio St. 2d 473, paragraph two of the syllabus
(1981)). So long as the totality of the circumstances
demonstrate a basis for the trial court’s finding that the
defendant understood the nature of the offense to which he
was pleading guilty, the failure of the trial court to explicitly
ask whether the defendant understood the nature of the
offense does not provide a basis for attacking the
constitutionality of the plea. See, e.g., State v. Rainey, 3 Ohio
App. 3d 441, paragraph two of the syllabus (Ohio App. 10
Dist. 1982). The record reveals that the trial court received
assurances from defense counsel that the nature and elements
of the offense had been explained to petitioner and that
petitioner was entering his guilty plea with a full
understanding of the nature of the offense. That being so, it is
highly unlikely that the state appellate court would have
accepted petitioner's arguments about the failure of the trial
court explicitly to ask him whether he understood the nature
of the offense. State v. Carter, 60 Ohio St. 2d 34
(1974)(finding no error where trial counsel had given
assurances that defendant understood nature of offense to
which he was pleading guilty). Even assuming, therefore, that
85a
appellate counsel erred in not raising this issue on appeal,
appellate counsel's omission did not prejudice petitioner. The
Court is constrained to rejected claim 5.4.
** *
5.7 Trial Counsel’s Failure to Develop Record re:
Voluntariness of Plea
Finally, petitioner asserts that his appellate attorneys
were constitutionally ineffective for not challenging on appeal
the failure of petitioner's trial attorneys, in connection with
petitioner's motion for a new trial, to develop more fully
evidence demonstrating that petitioner's pleas were not
entered knowingly, intelligently, or voluntarily. For reasons
discussed more fully above, the Court is not persuaded that
appellate counsel omitted an issue of significant and obvious
strength because it is clear from the decisions of the appellate
court and the Supreme Court of Ohio that they conducted a
full review of the circumstances surrounding petitioner's
guilty plea, and of the subsequent allegations regarding the
fact that petitioner's co-defendant escaped a death sentence
following his trial, and concluded that-petitioner’s plea had
been voluntary and that petitioner was not entitled to
withdraw his plea. That being so, it cannot be said that
appellate counsel unreasonably ignored an issue significantly
and obviously stronger than those appellate counsel did raise
on appeal, or that petitioner was prejudiced by the omission.
** *
Seventh Claim for Relief
In his seventh claim for relief, petitioner asserts that the
‘trial court improperly denied his motion to vacate his sentence
or, in the alternative, to withdraw his guilty plea based on new
evidence. The new evidence offered by petitioner, which
86a
evidence had not been previously available to him, was
testimony presented by the state during Clyde Daniel
Wesley’s subsequent trial claiming that it was Wesley, and
not petitioner, who had shot and killed Mary Jane Stout.
According to Wesley's cellmate, Wesley had confessed to
him that, after petitioner shot Mr. Stout with the chrome .25
caliber pistol, petitioner dropped that pistol and ran. Wesley
then picked up the pistol and shot Mrs. Stout. Petitioner
argues that the new evidence, i.e., the testimony of Wesley's
cellmate implicating Wesley as the actual shooter, entitled
petitioner to withdraw his guilty plea or, in the alternative, to
have a new sentencing hearing. By far the most troubling of
petitioner's claims, this assertion, along with a recent decision
by the Court of Appeals for the Eighth Circuit prompted the
Court to order the parties to submit supplemental briefs.
In Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000), cert.
denied, Gammon v. Smith, -- $.Ct.-- 2000 WL 1337423 (Nov.
6, 2000), the Eighth Circuit granted a writ of habeas corpus
because the state had violated the petitioner's due process
rights when it presented factually inconsistent and
irreconcilable evidence during different trials to obtain the
convictions of two different defendants for the same murders.
During the petitioner's trial, the prosecution relied on one of a
co-defendant’s two inconsistent versions of the events to
obtain petitioner's conviction for the murders, and then relied
on the other version at a subsequent trial to convict someone
else of the same murders. Pointing to the prosecution’s use of
“diametrically opposed testimony” during different trials to
obtain convictions of different defendants for the same
murders, as well as the fact that the petitioner could not have
been convicted of felony murder under both theories, the
Eighth Circuit found that the prosecution’s actions rose to the
level of a due process violation.
After the decision in Smith v. Groose, this Court
directed the parties to file supplemental briefs addressing
en ad “st
87a
whether, or to what extent, the Eighth Circuit's decision might
_ apply to petitioner's case. Petitioner argued that his conviction
violates his rights under the Due Process Clause and must be
set aside because the prosecution secured convictions against
him and subsequently against Clyde Daniel Wesley by
arguing that each had been the actual shooter. Respondent
asserted that Smith v. Groose does not apply to petitioner's
case since petitioner could have been convicted and sentenced
to death even under the arguments and evidence that were
presented during Wesley's subsequent trial, as an aider and
abettor; neither the aggravated murder count nor the capital
specification to which petitioner pleaded guilty required that
he be the principal offender. The Court is constrained to
agree.
The factually inconsistent and irreconcilable evidence at
issue concerns who was the actual shooter, i.e., petitioner or
Clyde Daniel Wesley. During petitioner's culpability and
penalty hearings, the state argued that petitioner shot and
killed Mary Jane Stout. Later, during Wesley's trial, the state
argued and presented testimony that Wesley shot and killed
Mary Jane Stout. The critical difference between this case and
Smith is that here, it was not necessary for the state to argue
or prove beyond a reasonable doubt, nor was it necessary for
the trial court to find, that petitioner was the actual shooter,
ie., “principal offender.” That is, petitioner
88a
could have been convicted and sentenced to death as charged
under the arguments and testimony presented during Wesley's
trial.
Neither the aggravated murder count, nor the capital
specification to which petitioner pleaded guilty, included as
an element that petitioner was the actual shooter or “principal
offender.” Petitioner's indictment did not include a
complicity, ie., aiding and abetting, count. Indeed, all
indications from petitioner’s indictment were that the state
would proceed against petitioner as the actual shooter. Thus,
petitioner's indictment was silent as to whether the state
would proceed against him as the principal offender or as an
aider and abettor. Under Ohio's aidin and abetting statute,
however, it is not necessary for a defei.dant be charged as an
aider and abettor to be convicted under aider and abettor
liability; that a defendant is charged with a criminal offense is
considered sufficient to place him on notice that the state
could seek to convict him as either the principal offender or
and aider and abettor. Subsection (F) of Ohio’s aiding and
abetting statute provides in relevant part that a charge of
complicity may be stated in terms of that section or in terms
of the principal offense. R.C. §2932.03(F). Ohio courts have
construed R.C. §2923.03(F) to mean that a complicity
conviction will be sustained under an indictment solely
employing terms of the principal offense without an
amendment to the indictment. State v. Ensman, 77 Ohio St 3d
701, paragraphs one, two, and six of the syllabus (1991); see
also State v. Dotson, 35 Ohio App. 3d 135 (Ohio App. 3 Dist.
1987)holding that complicity statute allows defendant to be
indicted either as the principal offender or as aider and abettor
because statute gives sufficient notice that state could proceed
against defendant under either theory).
Citing State v. Taylor, 66 Ohio St. 3d 295 (1993),
petitioner asserted that, under Ohio law, a defendant
convicted of aggravated murder and a capital specific
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