[Cite as State v. Jones, 2014-Ohio-3064.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ELMER JONES, III : Case No. 14-COA-002
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12-CRI-045
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 11, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAUL T. LANGE MELISSA M. PRENDERGAST
110 Cottage Street 250 East Broad Street
Third Floor Suite 1400
Ashland, OH 44805 Columbus, OH 43215
Ashland County, Case No. 14-COA-002 2
Farmer, J.
{¶1} On April 27, 2012, the Ashland County Grand Jury indicted appellant,
Elmer Jones, III, on three counts of rape in violation of R.C. 2907.02 and one count of
gross sexual imposition in violation of R.C. 2907.05. Said charges arose from incidents
involving a twelve year old child.
{¶2} On May 23, 2012, defense counsel filed a motion for a psychological
evaluation to determine appellant's mental capacity. A hearing was held on June 26,
2012. During the course of the hearing, defense counsel modified the motion and
requested a competency evaluation. By judgment entry filed June 27, 2012, the trial
court ordered a competency evaluation to determine appellant's competency to stand
trial.
{¶3} On June 17, 2012, a pretrial was held wherein the trial court reviewed
appellant's competency evaluation. By judgment entry filed same date, the trial court
found appellant competent to stand trial and assist in his defense.
{¶4} On July 20, 2012, appellant filed a motion to suppress, claiming an
unlawful arrest, his right to counsel was violated, and any confessions were not
voluntarily made. A hearing was held on August 9, 2012. By judgment entry filed
September 9, 2012, the trial court denied the motion, finding the first two interviews of
appellant (March 28, and April 24, 2012) did not constitute custodial interrogation
requiring Miranda warnings, appellant was properly advised of his rights prior to the
third interview on April 24, 2012 at the police department, appellant's statements to
police were voluntary, and probable cause existed for the arrest.
Ashland County, Case No. 14-COA-002 3
{¶5} A jury trial commenced on October 23, 2012. The jury found appellant
guilty as charged. By judgment entry filed January 16, 2013, the trial court sentenced
appellant to an aggregate term of thirty years to life in prison. Appellant's conviction and
sentence were affirmed on appeal. State v. Jones, 5th Dist. Ashland No. 13 COA 012,
2014-Ohio-1716.
{¶6} On November 27, 2013, appellant filed a petition for postconviction relief,
claiming ineffective assistance of trial counsel for counsel's failure to pursue the issue of
his intellectual disabilities. By judgment entry filed December 18, 2013, the trial court
denied the petition without hearing, finding no ineffective assistance of trial counsel or
prejudice to appellant.
{¶7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶8} "JOE JONES WAS DENIED HIS FEDERAL AND STATE
CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
DURING HIS TRIAL COURT PROCEEDINGS, AND THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT DENIED HIS PETITION FOR POSTCONVICTION RELIEF.
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
II
{¶9} "JOE JONES'S TRIAL COUNSEL FAILED TO INVESTIGATE JOE'S
INTELLECTUAL DISABILITY TO SUPPORT THE MOTION TO SUPPRESS COUNSEL
FILED. BECAUSE AMPLE EVIDENCE EXISTS TO SUPPORT THE ARGUMENT
Ashland County, Case No. 14-COA-002 4
THAT JOE IS UNABLE TO COMPREHEND THE IMPORT OF HIS WAIVER OF THE
RIGHT AGAINST SELF-INCRIMINATION, TRIAL COUNSEL WAS INEFFECTIVE IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION."
I, II
{¶10} Appellant claims the trial court erred in denying his petition for
postconviction relief based on ineffective assistance of trial counsel, as the evidence
presented dehors the record was sufficient to establish that his trial counsel was
ineffective for failing to investigate and present evidence of his mental
capacity/intellectual disabilities. We disagree.
{¶11} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)
states the following in pertinent part:
The court shall consider a petition that is timely filed under division
(A)(2) of this section even if a direct appeal of the judgment is pending.
Before granting a hearing on a petition filed under division (A) of this
section, the court shall determine whether there are substantive grounds
for relief. In making such a determination, the court shall consider, in
addition to the petition, the supporting affidavits, and the documentary
evidence, all the files and records pertaining to the proceedings against
the petitioner, including, but not limited to, the indictment, the court's
Ashland County, Case No. 14-COA-002 5
journal entries, the journalized records of the clerk of the court, and the
court reporter's transcript.
{¶12} The standard of review on a denial of a postconviction relief petition is
explained by our brethren from the Eighth District in State v. Hines, 8th Dist. Cuyahoga
No. 89848, 2008-Ohio-1927, ¶ 8:
"A postconviction proceeding is not an appeal of a criminal
conviction, but, rather, a collateral civil attack on the judgment." State v.
Steffen (1994), 70 Ohio St.3d 399, 410, 1994-Ohio-11. In postconviction
cases, a trial court acts as a gatekeeper, determining whether a defendant
will even receive a hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-
Ohio-6679. In State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, the
Ohio Supreme Court held that the trial court's gatekeeping function in the
postconviction relief process is entitled to deference, including the court's
decision regarding the sufficiency of the facts set forth by the petitioner
and the credibility of the affidavits submitted. Accordingly, we review
appellant's postconviction claims brought pursuant to R.C. 2953.21 under
an abuse-of-discretion standard. Id. An abuse of discretion is more than
a mere error in judgment, it implies that a court's ruling is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219.
Ashland County, Case No. 14-COA-002 6
{¶13} The standard of ineffective assistance of trial counsel is set forth in State
v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus.
Appellant must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶14} Appellant summarized his reasons for postconviction relief in his
November 27, 2013 petition as follows in part:
2) Mr. Jones' convictions and sentences are void and/or voidable
because he was denied the effective assistance of counsel at his trial to
which he was entitled under the Sixth and Fourteenth Amendments to the
United States Constitution. Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mr. Jones' trial counsel failed to
Ashland County, Case No. 14-COA-002 7
employ a competent expert to refute the findings of the Forensic
Diagnostic Center that his full-scale I.Q. of 61 was questionable. (See
July 17, 2012 Judgment Entry; July 19, 2012 Judgment Entry; and Aug.
16, 2012 State's Closing Argument on Defendant's Motion to Suppress, at
p. 3). Mr. Jones' trial counsel also failed to investigate his client's
intellectual disability by seeking out appropriate documentary proof of that
disability, including but not limited to medical records, educational records,
and records of county, state, and federal agencies and boards who
manage and administer government-provided disability benefits.
7) Competent defense counsel would have realized the critical
importance of the FDC's finding and suggestion of Mr. Jones' malingering.
To rebut that finding and support Mr. Jones' meritorious motion to
suppress, defense counsel would have had to investigate Mr. Jones'
medical, educational, employment, and psychological history. Counsel
would have had to obtain releases from Mr. Jones and request records
from the Social Security Administration, local and state developmental
disability boards, physicians, and schools, among others. Counsel did no
investigation to support Mr. Jones' claims. In fact, counsel even withdrew
his motion for expert funds, which may have provided the critical evidence
needed to rebut the FDC's adverse findings.
{¶15} Attached to the petition are the certified records from the Cuyahoga
County Board of Developmental Disabilities, indicating the presence of a
Ashland County, Case No. 14-COA-002 8
"developmental handicap" (September 29, 1983), physical and mental impairments with
substantial functional limitations in "receptive and expressive language," "self direction,"
and "economic self sufficiency," (January 11, 1995), and "mildly MR" (May 13, 1994).
Appellant was born on February 14, 1969.
{¶16} In its December 18, 2013 judgment entry denying the petition for
postconviction relief, the trial court addressed in detail the issues raised by appellant in
its Findings of Fact:
3. Prior to trial, the Court referred the Defendant to the Forensic
Diagnostic Center, Mansfield, Ohio for an assessment as to his
competency to stand trial. Dr. Covey, who performed the assessment,
rendered an opinion "with reasonable psychological certainty" that the
Defendant "has the capacity to understand the nature and objectives of
the proceedings against him and does currently have the capacity to
assist in his defense."
4. Dr. Covey, during his assessment, administered a Weschler
Adult Intelligence Scale IV, and although Dr. Covey determined that the
Defendant had not made a good effort on the test, the results were
considered in his assessment.
5. Dr. Covey, in his assessment, specifically found that the
Defendant did not qualify for a diagnosis of mental retardation (cognitive
disability). The only deficit of the Defendant was in adaptive functioning,
an academic deficit.
Ashland County, Case No. 14-COA-002 9
6. While Defendant submits records that suggest he was
intellectually disabled as a child, those records and findings do not, due to
their age and the age of the Defendant at the time they were compiled,
refute the findings of Dr. Covey in his assessment of the Defendant as an
adult.
7. Defendant fails to establish how prior counsel's failure to make
additional inquiries, in light of Dr. Covey's assessment, would have
necessitated a second forensic assessment.
{¶17} Following its Conclusions of Law, the trial court decided the following:
In the present case, the Court finds that Defendant fails in his
burden to demonstrate a lack of competent counsel, and fails to
demonstrate that the defense was prejudiced by any asserted
ineffectiveness. There is no indication, based on any of the information or
documentation presented by Defendant, that Defendant's motion to
suppress would have had any additional potential for success. The issue
at the suppression hearing was whether Defendant's statements of
admission were voluntary. There is no evidence in the record to suggest
they were not. The Court cannot see how the retention of an additional
expert by prior defense counsel would have changed the facts and
circumstances leading to the admissions the Court determined were
admissible.
Ashland County, Case No. 14-COA-002 10
Based on the foregoing, the Court finds no grounds for granting the
Defendant's petition for relief. The Court therefore DENIES Defendant's
Post-Conviction Petition.
{¶18} Some twenty-eight days after appellant's arraignment, on May 23, 2012,
defense counsel filed a motion for psychological evaluation for the following reasons:
The Defendant and his family have brought to counsel's attention
that Defendant suffers from mental incapacity and receives Social Security
Disability benefits as a result. A suppression motion is contemplated in
this case challenging the voluntariness of certain statements made by the
Defendant prior to charges being filed. Mental incapacity is a significant
factor in determining whether or not a suspect's statements were
voluntary, State of Ohio vs. Shawn Clemens, 2001 Ohio 3212; Ohio App.
LEXIS 1405. A psychological evaluation is necessary to determine this
Defendant's ability to voluntarily waive his Miranda rights and to make a
voluntary statement.
{¶19} A hearing on the motion was held on June 26, 2012 during which the
following discussion was had:
MR. SULLIVAN: Your Honor, it's my understanding that by consent,
by agreement with the State, that Mr. Jones can be evaluated for the
Ashland County, Case No. 14-COA-002 11
purpose of a competency evaluation by the Forensic Center, and in the
event that leads the professional to diagnose mental retardation, that
would be addressed as well in accordance with however they do it
professionally, and we would be in agreement with that.
THE COURT: Mr. Lange?
MR. LANGE: Your Honor, just for the Record, again, the State is
opposed to a general psychological evaluation, however, Mr. Sullivan has
indicated with the Court and the State that the Defendant has been of
limited value in assisting in the preparation of this case, and the State is
therefore not opposed to a general competency evaluation. Just so
everyone is aware, it's my understanding based on the statute 2945.371
that the Forensic Diagnostic Center will do the competency evaluation and
they may give an opinion about whether or not the Defendant appears to
be mentally retarded, if they find that he appears to be mentally retarded,
it will come back to this Court and this Court will have to determine
whether or not to send it to the Board of Developmental Disabled People
for them to make a more thorough diagnosis of mental retardation.
{¶20} In its June 27, 2012 judgment entry following the hearing, the trial court
memorialized the following:
Prior to the hearing the Court met briefly with the attorneys to
discuss the matter before the Court. During the course of the hearing, the
Ashland County, Case No. 14-COA-002 12
Defendant modified his request and requested instead that the Court order
a competency evaluation for the Defendant. The State of Ohio had no
objection to the Court ordering a competency evaluation of the Defendant.
By separate judgment entry, the Court does hereby ORDER that the
Defendant be evaluated to determine his competency to stand trial.
{¶21} In the July 20, 2012 motion to suppress, defense counsel argued
appellant's confession was involuntary because of his mental incapacity, coupled with
the "constant and lengthy suggestive interrogation." In an August 27, 2012 filing entitled
"Defendant's Closing Arguments on Motion to Suppress," defense counsel argued the
following:
The claim in this case is not that the Defendant suffers from some
"mental defect" as argued by the State. Rather, the Forensic Diagnostic
Report, which was ordered by this Court, shows throughout that the
Defendant is low functioning. This is true even if Dr. Covey's IQ test is not
considered. Dr. Covey also reported a previous IQ score of 83
established when the Defendant was 6 years seven months old based
upon the Stanford Binet Intelligence Test. This score "is known to fall at
the thirteenth percentile." See Collateral Information, page 5. Dr. Covey
was certainly entitled to consider the Defendant's history just as a
physician/patient examination would require. Further, it was established
by Dr. Covey that the Defendant is unable to read or write. The Court can
Ashland County, Case No. 14-COA-002 13
give Dr. Covey's report whatever weight it merits but it is evident that this
Defendant did not have the ability to resist Officer Mager's constant
insistence that the Defendant did something wrong. The State's assertion
that the Defendant inquired about the Flinders case because the
Defendant had committed similar offenses is simply not supported by the
evidence. It was Officer Mager who initiated the conversation about
Flinders and who inquired about what the Defendant knew or did not know
about the case.
The Court has heard the entire recording of the three interviews. It
is submitted that, under the totality of circumstances, Defendant's
statements were not voluntary and should be suppressed.
{¶22} After a full hearing on the motion to suppress, the trial court determined it
would consider Dr. Covey's competency report. August 9, 2012 T. at 77-78. In its
September 5, 2012 judgment entry denying the motion to suppress, the trial court
referenced its consideration of the report:
Defendant argues that his low IQ made him so susceptible to
manipulation and improper influence, that his statements were rendered
involuntary. The Court does not find that to be correct in this case. The
Defendant freely discussed similar inappropriate sexual conduct by
another adult, and clearly showed an understanding that such conduct
was inappropriate and illegal. At no time during the interviews did
Ashland County, Case No. 14-COA-002 14
Defendant's mental faculties impair his ability to engage in rational
conversation and thought. The report from the Forensic Diagnostic Center
indicates that Defendant's only area of deficiency with regard to adaptive
functioning, is academic. The Defendant does not qualify for a diagnosis
of mental retardation. The Defendant's conversation showed a clear
understanding of legal processes, both civil and criminal.
{¶23} The record establishes that defense counsel consistently argued and was
aware of appellant's limitations. The fact that the trial court denied extra funds cannot
support any deficiency on the part of defense counsel. The trial court's
acknowledgment of the report, as well as the report's own references to previous
testing, establishes that defense counsel was not deficient.1
{¶24} Despite this finding, we also concur with the trial court's analysis of the
second prong of an ineffective assistance of trial counsel claim, no showing of prejudice
to appellant. During the suppression hearing, Ashland Police Officer Kim Mager
testified to the three aforementioned interviews of appellant. During the first interview
on March 28, 2012, appellant was clearly in charge of the scope of the interview. He
was in his place of residence, he terminated the interview, and he invited the officer to
interview him at the Kroc Center. August 9, 2012 T. at 10-11, 18-19. During the second
interview on April 24, 2014 at the Kroc Center, appellant agreed to talk in Officer
Mager's unmarked and unlocked car. Id. at 21-24. Appellant acknowledged to the
1
The record does not contain Dr. Covey's report. We therefore presume the validity of
the proceedings and rely on the trial court's analysis of the report. Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197 (1980).
Ashland County, Case No. 14-COA-002 15
officer that he believed he was not going to be arrested, otherwise he reasoned, he
would have been arrested inside the Kroc Center. Id. at 26. Again, appellant
terminated the interview by stating he had to get back to work and exiting the car. Id. at
24, 31-32. Appellant was arrested at the Kroc Center later that day. Id. at 37.
Appellant was taken to the police department and was given his Miranda warnings, and
spoke to Officer Mager for forty minutes. Id. at 38, 47. Appellant was not new to the
system, as had served some previous time in jail on a drug arrest. Id. at 40-41. During
the interviews, appellant appeared coherent and stated he was comfortable. Id. at 41.
Appellant told the officer his source of income was odd jobs and SSI. Id. at 68.
{¶25} The presentation of the previous testing would have added nothing to the
trial court's decision on the voluntariness of appellant's statements. Two of the
interviews were recorded; therefore, the trial court had the ability to judge appellant's
demeanor and ability to respond to the questions. Id. at 34, 38, 52-53, 71.
{¶26} Given the testimony presented during the suppression hearing, we concur
that any deficiency would not have impacted the trial court's decision on voluntariness.
{¶27} Assignments of Error I and II are denied.
Ashland County, Case No. 14-COA-002 16
{¶28} The judgment of the Court of Common Pleas of Ashland County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Baldwin, J. concur.
SGF/sg 6/18