State v. Eggers

[Cite as State v. Eggers, 2013-Ohio-3379.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
: Appellate Case No. 2012-CA-33
Plaintiff-Appellee :
: Trial Court Case No. 11-CR-40
v. :
:
ADAM EGGERS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........

OPINION

Rendered on the 2nd day of August, 2013.

...........

LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee

ADAM EGGERS, #610-525, Lebanon Correctional Institution, Post Office Box 56, Lebanon,
Ohio 45036
Defendant-Appellant, pro se

.............

FAIN, P.J.

{¶ 1} Defendant-appellant Adam Eggers appeals from an order overruling his

petition for post-conviction relief and his motion for additional discovery. Eggers contends

that the trial court abused its discretion in overruling his petition for post-conviction relief
 2

without holding an evidentiary hearing. Eggers further contends that the trial court erred in

failing to grant his post-conviction request for additional discovery.

{¶ 2} We conclude that the trial court did not abuse its discretion in overruling

Eggers’s petition without holding an evidentiary hearing, because Eggers failed to submit

evidentiary documents containing sufficient operative facts to demonstrate ineffective

assistance of trial counsel. We further conclude that the trial court did not err in overruling

Eggers’s post-conviction motion for additional discovery. Accordingly, the judgment of the

trial court is Affirmed.

I. Course of the Proceedings

{¶ 3} In May 2010, Adam Eggers fired four shots into a residence in Springfield,

Ohio, with the intention of killing Dustin Bryant. One of the shots went through a wall and

struck Julie Snyder, killing her instantly. Eggers was indicted on one count of Aggravated

Murder, R.C. 2903.01(A), with a firearm specification, two counts of Felony Murder, R.C.

2903.02(B), each with a firearm specification, one count of Felonious Assault, R.C.

2903.11(A)(2), with a firearm specification, one count of Improperly Discharging a Firearm at

or into a Habitation, R.C. 2923.161(A)(1), and one count of Improper Handling of Firearms in

a Motor Vehicle, R.C. 2923.16(B). Dkt. 1.

{¶ 4} Pursuant to a negotiated plea agreement, with a motion to suppress statements

pending, Eggers pled guilty to Felony Murder, as charged in count three of the indictment,

causing the death of another as a proximate result of improperly discharging a firearm at or into a

habitation, in violation of R.C. 2903.02(B) and 2923.161(A)(1). In exchange for Eggers’s guilty
 3

plea, the State dismissed the firearm specification attached to count three and the remaining

charges and specifications. The parties agreed that Eggers’s sentence would be fifteen years to

life.

{¶ 5} The trial court sentenced Eggers to life imprisonment with parole eligibility after

fifteen years. The trial court also sentenced Eggers to a mandatory five-year term of post-release

control. Dkt. 23. Eggers appealed from his conviction and sentence. On appeal, he contended

that his plea was not knowingly, intelligently, and voluntarily made and that the trial court erred

by including a term of post-release control in his sentence. We concluded that Eggers’s plea was

knowing, intelligent, and voluntary. We vacated the portion of the sentence imposing

post-release control and affirmed the judgment and sentence in all other respects. State v.

Eggers, 2d Dist. Clark No. 2011-CA-48, 2013-Ohio-3174.

{¶ 6} Eggers moved to withdraw his guilty plea, contending that he had made his plea

under duress and coercion by his counsel. He stated that his trial counsel was ineffective in

representing him and he had been denied his constitutional rights. The court overruled the

motion, noting that Eggers was represented by experienced counsel, Eggers’s rights had been

carefully and completely explained to him, Eggers did not express any doubt that he understood

his rights and that he wanted to give them up, and Eggers stated at the hearing that he was freely

and voluntarily entering his guilty plea. The court concluded that there was no evidence that

Eggers did not make his plea knowingly, voluntarily, and intelligently. Dkt. 31. Eggers did not

appeal from the trial court’s order denying his motion to withdraw his guilty plea.

{¶ 7} On February 10, 2012, Eggers filed a “Motion for Evidentiary and Exculpatory

Evidence” in which he requested the trial court to order the State to provide additional evidence
 4

to be used in Eggers’s anticipated petition for post-conviction relief. Six days later, Eggers filed

his petition for post-conviction relief, alleging that he received ineffective assistance of trial

counsel when his trial counsel failed to adequately prepare for trial and that he was coerced into

entering a guilty plea by his trial counsel. The motion for exculpatory evidence and the petition

for post-conviction relief are the subject of this appeal.

{¶ 8} The trial court, without holding a hearing, reviewed the record and overruled

Eggers’s motion for exculpatory evidence and his petition for post-conviction relief.

Specifically, the court found, in part:

The defendant has not submitted sufficient evidentiary documents

containing sufficient operative facts to show that he is entitled to any relief. From

the record of the plea agreement, and the transcript of the plea hearing, it is clear

that the defendant knew and understood he was entering a guilty plea for felony

murder; that the Court complied with Crim.R. 11(C)(2) and that the defendant was

under no coercion when he entered the plea knowingly, voluntarily and

intelligently. Dkt. 41.

{¶ 9} From the order overruling his motions, Eggers appeals.

II. The Trial Court Did Not Abuse its Discretion

by Not Holding an Evidentiary Hearing

{¶ 10} Six of the seven assignments of error set forth by Eggers concern the trial court’s

failure to hold an evidentiary hearing prior to denying Eggers’s petition for post-conviction relief.
 5

{¶ 11} Eggers’s First, Second, Third, Fourth, Fifth, and Sixth Assignments of Error

state:

THE TRIAL COURT ERRED BY DISMISSING THE APPELLANT’S

POST-CONVICTION PETITION WITHOUT HOLDING AN EVIDENTIARY

HEARING, THUS ABUSING IT’S [SIC] DISCRETION, THUS PREJUDICING

THE APPELLANT & VIOLATING HIS 1ST, 5TH, 6TH, 8TH & 14TH U.S.

CONST. AMEND.S [SIC] AND ARTICLE I, SECTIONS 1, 9, 10 & 16 OF THE

OHIO CONST.

THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

DENIED THE APPELLANT’S PETITION WHEN RULING THAT

INEFFECTIVE ASSISTANCE OF COUNSEL IS TO BE RAISED ON APPEAL

WHEN THE EVIDENCE ATTACHED IS EVIDENCE THAT DEHORS THE

RECORD, DUE TO NO TRIAL RECORD, THUS VIOLATING THE

APPELLANT’S 1ST, 5TH, 6TH, 8TH & 14TH U.S. CONST. AMEND.S [SIC]

AND ARTICLE I, SEC.S [SIC] 1, 9, 10 & 16 OHIO CONST.

TRIAL COURT ABUSED IT’S [SIC] DISCRETION WHEN IT DID

NOT HOLD AN EVIDENTIARY HEARING AND RESPOND TO THE

VARIOUS SWORN AFFIDAVIT’S [SIC] ATTACHED TO THE

APPELLANT’S PETITION FOR RELIEF, THUS VIOLATING THE

APPELLANT’S 1ST, 5TH, 6TH, 8TH & 14TH U.S. CONST. AMEND.S [SIC]

AND ARTICLE I, SEC.S [SIC] 1, 9, 10 & 16 OF THE OHIO CONST.

THE TRIAL COURT ERRED WHEN IT DID NOT HOLD AN
 6

EVIDENTIARY HEARING RELATING TO THE SEVEN GROUNDS FOR

RELIEF PERTAINING TO INEFFECTIVE ASSISTANCE OF COUNSEL,

THUS VIOLATING THE APPELLANT’S 1ST, 4TH, 5TH, 6TH, 8TH & 14TH

U.S. CONST. AMEND.S [SIC] AND ARTICLE I, SEC.S [SIC] 1, 9, 10, 14 & 16

OF THE OHIO CONST.

THE TRIAL COURT ERRED WHEN IT DID NOT RELATE TO,

REVIEW AND HOLD AN EVIDENTIARY HEARING FOR THE I.A.C. ISSUE

FOR TRIAL COUNSELS [SIC] FAILURE TO FILE AN APPROPRIATE,

MEANINGFUL AND EFFECTIVE MOTION TO SUPPRESS EVIDENCE OF

THE GUN SHOT RESIDUE ALLEGED AGAINST THE APPELLANT AT

TRIAL. SUCH ACT’S [SIC] BY TRIAL COUNSELS [SIC]

INEFFECTIVENESS AND TRIAL COURTS [SIC] JUDICIAL MISCONDUCT

VIOLATED THE APPELLANT’S 1ST, 4TH, 5TH, 6TH, 8TH & 14 U.S.

CONST. AMEND.S [SIC] AND ARTICLE I, SEC.S [SIC] 1, 9, 10, 14 & 16

OHIO CONST.

TRIAL COUNSEL WAS INEFFECTIVE BELOW THE REQUIRED

STANDARD FOR FAILING TO INVESTIGATE THE APPELLANT’S CASE;

FOR FAILING TO SUBJECT THE PROSECUTIONS [SIC] CASE TO A

MEANINGFUL ADVERSARIAL TESTING AND: MORE AND THE TRIAL

COURT ERRED BY NOT RELATING TO THESE GROUNDS FOR RELIEF

AND ABUSED IT’S [SIC] DISCRETION WHEN NOT HOLDING AN

EVIDENTIARY HEARING, THUS, BOTH VIOLATED THE APPELLANT’S
 7

1ST, 4TH, 5TH, 6TH, 8TH AND 14TH U.S. CONST. AMEND.S [SIC] AND

ARTICLE I, SEC.S [SIC] 1, 9, 10, 14 & 16 OHIO CONST. RIGHTS.

{¶ 12} Eggers contends in these six assignments of error that the 42 exhibits attached to

his petition for post-conviction relief establish that he received ineffective assistance of trial

counsel and that he was coerced into entering his guilty plea. According to Eggers, these

exhibits demonstrate that his counsel provided ineffective assistance in the following ways:

failing to move to suppress the gun-shot-residue test and the statements he made to the police;

failing to interview vital witnesses; failing to have Brad Locher undergo a second polygraph

examination; and giving his mother bad advice regarding whether Eggers should agree to the plea

deal offered by the State. Eggers contends that these exhibits are sufficient to demonstrate

ineffective assistance of trial counsel or, at a minimum, are sufficient to require the trial court to

hold an evidentiary hearing prior to overruling his petition for post-conviction relief. We do not

agree.

A. Eggers Had the Burden of Submitting Evidentiary Documents Containing Sufficient

Operative Facts to Demonstrate the Lack of Competent Counsel

and that the Defense Was Prejudiced by Counsel's Ineffectiveness

{¶ 13} Petitions for post-conviction relief are governed by R.C. 2953.21(A)(1)(a), which

provides, in pertinent part:

Any person who has been convicted of a criminal offense * * * and who

claims that there was such a denial or infringement of the person's rights as to

render the judgment void or voidable under the Ohio Constitution or the
 8

Constitution of the United States, * * * may file a petition in the court that

imposed sentence, stating the grounds for relief relied upon, and asking the court

to vacate or set aside the judgment or sentence or to grant other appropriate relief.

The petitioner may file a supporting affidavit and other documentary evidence in

support of the claim for relief.

{¶ 14} An appellate court reviews a trial court’s decision granting or denying a

post-conviction petition under R.C. 2953.21 under an abuse of discretion standard. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. The term “abuse of

discretion” has been defined as a decision that is unreasonable, arbitrary, or unconscionable.

Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).

{¶ 15} “[I]n a petition for post-conviction relief, which asserts ineffective assistance of

counsel, the petitioner bears the initial burden to submit evidentiary documents containing

sufficient operative facts to demonstrate the lack of competent counsel and that the defense was

prejudiced by counsel's ineffectiveness.” State v. Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d

819 (1980).

{¶ 16} ”A hearing is not automatically required whenever a petition for post-conviction

relief is filed. The test is whether there are substantive grounds for relief that would warrant a

hearing based upon the petition, the supporting affidavits and the files and records in the case.”

State v. Strutton, 62 Ohio App.3d 248, 251, 575 N.E.2d 466 (2d Dist.1988), citing State v.

Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). A court may overrule the petition

“without a hearing when the record, including the dialogue conducted between the court and the

defendant pursuant to Crim. R. 11, indicates that the petitioner is not entitled to relief and that the
 9

petitioner failed to submit evidentiary documents containing sufficient operative facts to

demonstrate that the guilty plea was coerced or induced by false promises.” State v. Kapper, 5

Ohio St. 3d 36, 38, 448 N.E.2d 823 (1983).

B. The Affidavits Submitted with Eggers’s Petition Do Not Contain Sufficient

Operative Facts to Establish Ineffective Assistance of Counsel

{¶ 17} Affidavits may be submitted in support of post-conviction relief motions. R.C.

2953.21. “However, not all affidavits accompanying a postconviction relief petition

demonstrate entitlement to an evidentiary hearing, even assuming the truthfulness of their

contents.” State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999). “[W[here a

petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief, and

the information in the affidavit, even if true, does not rise to the level of demonstrating a

constitutional violation, then the actual truth or falsity of the affidavit is inconsequential.” Id.

{¶ 18} The evidentiary documents submitted with Eggers’s petition include six sworn

affidavits by friends and family of Eggers. Exhibit 11 to Eggers’s petition for post-conviction

relief is an affidavit from a personal friend of Eggers, Joseph Dugan. The affidavit states, in

pertinent part:

On the night of May 15, 2010, I walked up to [Eggers’s] car, Brad

[Locher] was in the passenger seat. He was the only one in the car. He was

handling a small semi-auto handgun. I asked him “What the hell are you doing?”

He said not to worry, it was not loaded. I told him he was stupid and to put the

gun away. I walked away at that point, got in my truck and left.
 10

* * * I feel from Brad’s response to me asking him “what the hell are you

doing” and his response being “not to worry, it was not loaded” is as if Brad was

in possession/control of the gun he was handling.

{¶ 19} Eggers contends throughout his petition for post-conviction relief and his

appellate brief that Brad Locher is a liar who framed Eggers for the murder of Snyder. However,

assuming the truthfulness of the averments in Dugan’s affidavit, at most the affidavit establishes

that Locher had a gun in his hands at some point during the evening that Julie Snyder was

murdered. We conclude that Dugan’s affidavit does not contain sufficient operative facts to

demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's

ineffectiveness, or that Eggers’s guilty plea was coerced or less than knowingly, voluntarily, and

intelligently made.

{¶ 20} Exhibit 23 to Eggers’s petition is a February 15, 2012 affidavit of Robert Buck,

Eggers’s stepfather. Buck averred that Eggers’s trial counsel, Adam Nemann, was initially paid

$6,000 as a retainer fee on January 17, 2011, and Nemann visited Eggers in jail on that same day.

In the latter portion of January 2011, Nemann was paid another $14,000 by Eggers’s family.

Buck avers that this additional payment was made despite the fact that “Mr. Nemann had done

nothing to this date in Adams [sic] defense.” Buck also averred that he and his wife met with

and were interviewed by Nemann in February 2011. According to Buck, Nemann explained to

him that Brad Locher had stated to police that Eggers had committed the murder and that Buck

had assisted in hiding the murder weapon.

{¶ 21} Buck’s affidavit consists primarily of general allegations of deficiencies in

Nemann’s representation of Eggers and some contradictory statements regarding this
 11

representation. Furthermore, although Buck averred that Nemann “had done nothing to this

date” in the defense of Eggers, the date referred to by Buck was only a couple of weeks into

Nemann’s representation of Eggers. Indeed, Buck stated in his affidavit that Nemann had visited

Eggers in jail on January 17, 2011, and interviewed Buck and his wife in early February 2011.

{¶ 22} Assuming the truthfulness of the averments in Buck’s affidavit, we conclude that

the affidavit does not contain sufficient operative facts to demonstrate the lack of competent

counsel and that the defense was prejudiced by counsel's ineffectiveness, or that Eggers’s guilty

plea was coerced or less than knowingly, voluntarily, and intelligently made.

{¶ 23} Attached as Exhibits 16, 24, and 36 to Eggers’s petition are three affidavits of

Paula Buck, Eggers’s mother. In Exhibit 16, Ms. Buck described the events as she recalled them

from the evening of May 15, 2010. She explained that she heard her son’s car pull up into her

garage after midnight and she then heard Eggers and Brad Locher arguing. Eggers informed her

that Julie Snyder had been in a shooting. Eggers and Locher then left the house, and Ms. Buck

subsequently left the house to go purchase cigarettes at a gas station. On her way there, she saw

that the police had pulled over the vehicle in which Eggers was riding. The police subsequently

obtained a search warrant to search Ms. Buck’s residence, and Eggers was identified as a suspect

in the murder of Snyder and taken to the police station for questioning.

{¶ 24} In Exhibit 24, Ms. Buck addressed the retention of Adam Nemann as Eggers’s

trial counsel. Nemann visited Eggers in jail on the same day that Ms. Buck retained him as trial

counsel. According to Ms. Buck, on February 2, 2011, she and her husband drove to Nemann’s

office to be interviewed. During this interview, Ms. Buck was provided with several police

interviews of Brad Locher. Ms. Buck stated that she could refute all of Locher’s lies about her
 12

and her son. Nemann explained to Ms. Buck that he was aware of Locher’s chronic lying and

that he planned to have Locher undergo another polygraph test, despite the fact that Locher had

already passed a polygraph. According to Ms. Buck, Nemann also alerted her that Eggers’s gun

shot residue test came back positive for gun-shot residue, but that Nemann “would file the

appropriate motion attacking the test and its results.” Nemann also requested another $10,000 to

hire an independent investigator.

{¶ 25} In her third and final affidavit, Exhibit 36, Ms. Buck described her interactions

with Nemann leading up to her son’s guilty plea. According to Ms. Buck, Nemann consistently

claimed that the case would proceed to trial and that he was filing the proper motions in defense

of Eggers. Ms. Buck stated that she had “many interactions” with Nemann over the phone and

in person. However, she averred that it eventually became more difficult to get in contact with

Nemann. On June 1, 2011, Nemann visited Eggers in jail. Nemann subsequently called Ms.

Buck and told her that he had recently reviewed new evidence that showed Eggers’s guilt in the

death of Julie Snyder. Nemann told Ms. Buck that he had worked out a plea with the State and

that he wanted her help in talking to Eggers about accepting the plea deal. Ms. Buck then stated

that:

Mr. Nemann told me that he could get [Eggers] a 15 year to life sentence

with an early parole and if Adam did not take this plea and lost at trial that Judge

Rastatter has made it clear that he (Rastatter) would give my son the maximum

sentence and Mr. Nemann told me how corrupt and bad Judge Rastatter was and

that Adam had to take the plea, and for me not to forget the New Indictment,

which was bad too.
 13

{¶ 26} On June 9, 2011, Ms. Buck asked Nemann in person about the new evidence that

led to his advice that Eggers take the plea deal. According to Ms. Buck:

Mr. Nemann said that he spoke to B.C.I. and had found out the G.S.R. Test

was administered properly and the Polygraph administered to Locher was

performed adequately and Locher was quetioned [sic] properly and that Locher’s

latest police interview incriminated [Eggers] and my Husband and it may lead to

other arrest and that he had the investigator question Nicole Bowers and David

Hall Jr. and both retracted their statements and was refusing to come to trial

against [Locher].

{¶ 27} When Eggers arrived at the courtroom on June 9th, Nemann explained to Eggers

the evidence against him and urged Eggers to take the plea deal. Ms. Buck also told Eggers to

take the plea deal. Ms. Buck concluded her affidavit by stating that Nemann had deceived her

and her son and had essentially played on her love for her son to steal $25,000 from her in

attorney fees.

{¶ 28} Eggers contends that the affidavits of Ms. Buck demonstrate that he received

ineffective assistance of trial counsel and was coerced into entering a guilty plea. For example,

Eggers points out that his counsel failed to file a motion to suppress the statements he made to

the police and the results of a gun-shot-residue test. However, Eggers’s counsel did in fact file a

motion to suppress the statements Eggers made to the police. Dkt. 18. Furthermore, Eggers has

not submitted any evidence that a motion to suppress the gun-shot residue test would likely have

been successful. Also, it could have been trial strategy for Eggers’s trial counsel to wait to

challenge the findings on cross-examination at trial. Of course, Eggers’s decision to plead guilty
 14

prevented a trial from taking place.

{¶ 29} Eggers also points to the allegations in Ms. Buck’s affidavits that trial counsel

had informed Eggers and herself that the trial judge was corrupt and that Eggers would lose at

trial and receive a maximum sentence. A lawyer’s sincere assessment of the likely outcome of a

defendant’s decision to reject a plea offer and go to trial does not constitute ineffective assistance

of counsel unless it is so clearly unwarranted that no reasonable attorney would offer that

assessment. There is no evidence here that Nemann’s assessment was either insincere or

unwarranted.

{¶ 30} Furthermore, let us assume, for purposes of analysis, that Nemann actually made

the comment about the trial judge that Ms. Buck attributes to him. Although a lawyer may have

contrasting duties as an officer of the court, the lawyer’s duty to his client is not breached when

the lawyer offers his sincere opinion concerning the character of the trial judge, even when that

opinion is an unflattering one.

{¶ 31} Assuming the truthfulness of the contents of Ms. Buck’s affidavits, we conclude

that the affidavits do not contain sufficient operative facts to demonstrate the lack of competent

counsel and that the defense was prejudiced by counsel's ineffectiveness or that Eggers’s guilty

plea was coerced or less than knowingly, voluntarily, and intelligently made.

{¶ 32} Attached as Exhibit 37 to Eggers’s petition is an affidavit of Melissa Dugan, a

close friend of Eggers and his family. Dugan avers that she has worked in the legal field in Clark

County since 1989. Dugan accompanied Eggers’s mother to Eggers’s arraignment on January

27, 2011. At the arraignment, Dugan offered her assistance to Eggers’s trial counsel. Nemann

subsequently contacted Dugan and asked her to copy documents out of Eggers’s court case files
 15

and fax them to him, which she did. On June 3, 2011, Dugan received information from her

husband about the night of the murder that she believed could prove to be beneficial to Eggers.

She presented this information to Nemann, but Dugan did not identify in her affidavit what this

information was. Dugan believed that Nemann did not give Eggers the necessary priority and

opined that Nemann should have conducted additional discovery and filed additional motions.

{¶ 33} Dugan does not aver that she has personal knowledge of all the work performed

by Nemann in preparation for Eggers’s trial. Furthermore, her vague allegations that her

husband had key information to use in the defense of Eggers, which Nemann ignored at the last

hour, are insufficient to demonstrate ineffective assistance of counsel. Assuming the

truthfulness of the contents of Dugan’s affidavit, we conclude that the affidavit does not contain

sufficient operative facts to demonstrate the lack of competent counsel and that the defense was

prejudiced by counsel's ineffectiveness, or that Eggers’s guilty plea was coerced or less than

knowingly, voluntarily, and intelligently made.

{¶ 34} Overall, the affidavit evidence submitted with Eggers’s petition for

post-conviction relief is largely conclusory and often self-contradictory. Moreover, many of the

statements in the affidavits are based on opinions rather than objective facts gleaned from

personal knowledge. We conclude that even if we assume the truthfulness of the allegations

contained in the affidavits, Eggers has failed to satisfy his burden pursuant to R.C. 2953.21.

C. The Non-Affidavit Documents Submitted with Eggers’s

Petition Do Not Contain Sufficient Operative Facts

to Demonstrate Ineffective Assistance of Counsel
 16

{¶ 35} Eggers submitted numerous other exhibits with his petition for post-conviction

relief. These exhibits consisted of text messages; phone records; pictures; letters from his trial

counsel; the transcripts from police interviews with Eggers, Brad Locher, and other potential

witnesses; a report from a polygraph of Locher; property receipts from the Springfield Police

Department; Locher’s criminal history; a gun-shot-residue test showing gun-shot residue on

samples from Eggers; an inmate visitor log report; legal invoices from his trial counsel; and

articles from the internet relating to gun-shot residue.

{¶ 36} We have reviewed all of the exhibits attached to Eggers’s petition for

post-conviction relief. Many of the exhibits contain information that would be damaging to

Eggers’s defense. It is clear that Nemann relayed the damaging nature of this evidence to

Eggers. We are unpersuaded by Eggers’s contentions that the exhibits he submitted with his

petition for post-conviction relief establish his innocence, demonstrate ineffective assistance of

counsel, and prove that his guilty plea was less than knowing, intelligent, and voluntary.

Eggers’s petition fails to contain sufficient operative facts to demonstrate ineffective assistance of

counsel or require the trial court to hold an evidentiary hearing.

{¶ 37} Eggers’s First, Second, Third, Fourth, Fifth, and Sixth Assignments of Error are

overruled.

III. The Trial Court Did Not Err in Denying Eggers’s

Post-Conviction Motion for Additional Discovery

{¶ 38} Eggers’s Seventh Assignment of Error states:

TRIAL COUNSEL WAS INEFFECTIVE BELOW A REASONABLE
 17

STANDARD FOR FAILING TO FILE A SECOND DEMAND OF DISCOVERY

FOR EXCULPATORY EVIDENCE DURING THE TRIAL PROCESS AND

THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION FOR DENYING

APPELLANT’S MOTION FOR EVIDENTIARY AND EXCULPATORY

EVIDENCE TO SUPPORT HIS POST-CONVICTION RELIEF. BOTH TRIAL

COUNSEL AND TRIAL COURTS [SIC] ACT’S [SIC] VIOLATED BRADY

VIOLATIONS, DUE PROCESS AND EQUAL PROTECTION OF LAW, THUS

VIOLATING APPELLANT’S 1ST, 4TH, 5TH, 6TH, 8TH & 14TH U.S. CONST.

ADMEND.S [SIC] AND ARTICLE I, SEC.S [SIC] 1, 9, 10, 14 & 15 OHIO

CONST.

{¶ 39} In this assignment of error, Eggers contends that the trial court erred in denying

his post-conviction request for additional discovery. Eggers further contends that his trial

counsel was ineffective for not obtaining this additional discovery, which led Eggers to become

scared and enter into a guilty plea.

{¶ 40} The evidence sought by Eggers appears to be evidence relating to the lie-detector

test of Brad Locher, transcripts of police interviews with Brad Locher, and the gun shot residue

test performed on Eggers. Evidence relating to these subjects are attached to Eggers’s petition

for post-conviction relief and the affidavits attached to his petition consistently state that Eggers’s

counsel discussed these matters with Eggers. According to Eggers and his mother, Nemann

explained to them that this evidence would result in a guilty verdict against Eggers if he chose to

go to trial. Based on our review of the evidence attached to Eggers’s petition for post-conviction

relief, we conclude that Nemann’s advice regarding Eggers’s chances at trial was not completely
 18

unwarranted. We further conclude that the trial court did not err in overruling Eggers’s

post-conviction motion for additional discovery.

{¶ 41} Eggers’s Seventh Assignment of Error is overruled.

IV. Conclusion

{¶ 42} All of Eggers’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.

.............

FROELICH and HALL, JJ., concur.

Copies mailed to:

Lisa M. Fannin
Adam Eggers
Hon. Douglas M. Rastatter