[Cite as State v. Maxwell, 2020-Ohio-3027.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107758
v. :
CHARLES MAXWELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 21, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-05-475400-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine Mullin, Assistant Prosecuting
Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Rachel
Troutman, Adrienne M. Larimer, and Natalie Presler,
Assistant State Public Defenders, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Charles Maxwell, appeals the trial court’s
decision denying his motion for postconviction relief. For the reasons that follow,
we affirm the trial court’s decision.
In 2007, Maxwell was convicted by a jury and sentenced to death for
the aggravated murder of Nichole McCorkle. The Supreme Court of Ohio affirmed
his convictions and death sentence in State v. Maxwell, 139 Ohio St.3d 12, 2014-
Ohio-1019, 9 N.E.3d 930, reconsideration denied, State v. Maxwell, 139 Ohio
St.3d 1420, 2014-Ohio-2487, 10 N.E.3d 739 (“Maxwell”). The United States
Supreme Court denied certiorari.
On August 11, 2008, while his direct appeal was pending before the
Ohio Supreme Court, Maxwell timely filed a petition for postconviction relief,
which set forth 12 grounds for relief. He filed a first amendment to the petition
two days later along with a motion for discovery. Two weeks later, Maxwell filed a
second amendment to the petition. In October 2008, the trial court denied
Maxwell’s request for discovery, and the state filed its opposition to Maxwell’s
petition. In November 2008, the state filed with the trial court proposed findings
of fact and conclusions of law, requesting denial of Maxwell’s petition.
On September 2, 2016, the trial court summarily denied Maxwell’s
petition. On August 31, 2018, the trial court adopted the state’s second proposed
findings of fact and conclusions of law. Maxwell now appeals, raising four
assignments of error for our review.
I. Denial of Discovery
In his first assignment of error, Maxwell contends that the trial court
erred by denying his postconviction petition without allowing him to conduct
discovery. He argues that without the opportunity to conduct discovery, he was
unable to fully produce evidence outside the record to withstand his burden to
support his postconviction claims to warrant an evidentiary hearing.
The decision to grant or deny a request for discovery with respect to a
petition for postconviction relief rests within the trial court’s discretion. State v.
Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28. The long-
standing rule in Ohio is that a convicted criminal defendant has no right to
additional or new discovery, whether under Crim.R. 16 or any other rule, during
postconviction relief proceedings. State ex rel. Love v. Cuyahoga Cty.
Prosecutor’s Office, 87 Ohio St.3d 158, 159, 718 N.E.2d 426 (1999), citing State v.
Spirko, 127 Ohio App.3d 421, 429, 713 N.E.2d 60 (3d Dist.1998). Nevertheless,
Maxwell contends that discovery may be warranted when the “petitioner sets forth
operative facts that demonstrate a substantive claim for relief.” State v. McKelton,
12th Dist. Butler No. CA 2015-02-028, 2015-Ohio-4228, ¶ 41.
In this case, we find no abuse of discretion. As will be discussed in
addressing his third and fourth assignments of error, Maxwell’s petition for
postconviction relief did not set forth sufficient operative facts justifying additional
discovery. Moreover, Maxwell has not demonstrated how he was prejudiced by the
denial to conduct additional discovery. We note that his petition, which raises 12
grounds for relief, is supported with over 20 exhibits, including affidavits from
both lay persons and experts, court filings, police reports, and medical records. It
does not appear that Maxwell’s presentation of materials to support his petition
was constrained in any way by the trial court’s denial of discovery.
Maxwell’s first assignment of error is overruled.
II. Findings of Fact and Conclusions of Law
Maxwell petitioned for postconviction relief and requested discovery
in August 2008. The court denied Maxwell’s request to conduct discovery. The
state opposed his petition and submitted proposed findings of fact and conclusions
of law in October and November 2008, respectively. Maxwell filed his reply
petition and requested that the court draft its own findings of fact and conclusions
of law rather than adopting the state’s submission. In September 2016, the trial
court summarily denied Maxwell’s petition for postconviction relief. The trial
court also denied Maxwell’s subsequent request for the trial court to issue findings
of fact and conclusions of law.
The state then requested permission to submit proposed findings of
fact and conclusions of law. Maxwell opposed the state’s request, contending that
the trial court was required to issue its own findings of fact and conclusions of law.
The trial court granted the state’s request and overruled Maxwell’s objections. On
October 31, 2016, the state filed its second set of proposed findings of fact and
conclusions of law, which included citing to the Supreme Court’s opinion
addressing Maxwell’s direct appeal. Approximately a year later, in 2017, Maxwell
objected to the state’s second submission contending that the trial court is
obligated to issue its own findings of fact and conclusions of law; Maxwell did not
submit his own proposed findings of fact or conclusions of law. A year later, on
August 31, 2018, the trial court adopted the state’s 2016 proposed findings of fact
and conclusions of law.
Maxwell contends in his second assignment of error that the trial
court violated his due process rights when it failed to provide him with the court’s
own findings of fact and conclusions of law. Specifically, he contends that the trial
court improperly delegated to the state the court’s deliberative process mandated
by R.C. 2953.21(C) by adopting the state’s findings of fact and conclusions of law
verbatim after it summarily denied Maxwell’s petition.
When a trial court denies a postconviction relief petition, R.C.
2953.21(G) requires the trial court to make and file findings of fact and conclusions
of law setting forth its findings on each issue presented and a substantive basis for
its disposition of each claim for relief advanced in the petition. See, e.g., State v.
Lester, 41 Ohio St.2d 51, 322 N.E.2d 656 (1975). The purpose of requiring findings
of fact and conclusions of law is to apprise the petitioner of the basis for the court’s
disposition and to facilitate meaningful appellate review. See, e.g., State ex rel.
Carrion v. Harris, 40 Ohio St.3d 19, 530 N.E.2d 1330 (1988).
When a party’s proposed findings of fact and conclusions of law are
accurate in law and in fact, nothing prohibits a trial court from adopting that
party’s proposed findings of fact and conclusions of law in a postconviction
proceeding. State v. Williams, 8th Dist. Cuyahoga No. 85180, 2005-Ohio-3023,
¶ 35, citing State v. Combs, 100 Ohio App.3d 90, 652 N.E.2d 205 (1st Dist.1994).
“In the absence of demonstrated prejudice, it is not erroneous for the trial court to
adopt, in verbatim form, findings of fact and conclusions of law which are
submitted by the state.” State v. Thomas, 8th Dist. Cuyahoga No. 87666, 2006-
Ohio-6588, ¶ 15, citing State v. Powell, 90 Ohio App.3d 260, 263, 629 N.E.2d 13
(1st Dist.1993). Moreover, a trial court may adopt verbatim a party’s proposed
findings of fact and conclusions of law as its own if it has thoroughly read the
document to ensure that it is completely accurate in fact and law. State v. Jester,
8th Dist. Cuyahoga No. 83520, 2004-Ohio-3611, ¶ 16; see also Thomas at id.
Maxwell does not discount that trial court can delegate the writing
responsibility to the parties but contends that the trial court cannot delegate its
deliberative process. In support, he cites to State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, and State v. Pickens, 1st Dist. Hamilton No.
C 130004, 2016-Ohio-5257.
In Roberts, the Supreme Court vacated the defendant’s death
sentence and remanded for resentencing, because its “confidence in the trial
court’s sentencing opinion [had been] undermined by the fact that the trial judge
directly involved the prosecutor in preparing the sentencing opinion and did so on
an ex parte basis.” Roberts at ¶ 159. The court concluded that the trial court had
failed to follow the “proper process,” because the “delegation of any degree of
responsibility in [its] sentencing opinion does not comply with [the mandate of]
R.C. 2929.03(F)” that “the trial court itself will draft the death-sentence opinion,”
and does not comport with the court’s “firm belief that the consideration and
imposition of death are the most solemn of all the duties that are imposed on a
judge.” Id. at ¶ 160. It determined that because of the ex parte communication,
the trial court’s “grievous violation of the statutory deliberative process” was not
harmless error nor could it be corrected on appeal. Id. at ¶ 162-163.
In Pickens, the First District applied Roberts to an appeal from a
postconviction proceeding.1 It distinguished between the duty imposed under the
death-penalty statutes and those under postconviction proceedings, finding that
although a court may not delegate the drafting responsibility under R.C. 2929.03(F),
it may do so under R.C. 2953.31(C), but that “the deliberative process may not be
delegated.” Pickens at ¶ 19. The Pickens court found that the record must show that
trial court engaged in the deliberative process based on its “consideration of the
petition, supporting affidavits, documentary evidence, and the files and records of
the proceedings leading to the petitioner’s conviction, to determine whether ‘there
are substantive grounds for relief.’” Id. at ¶ 19. The Pickens court also relied on
Roberts in finding that a defendant is denied due process when the court engages in
ex parte communication with the state, and the court’s findings of fact and
conclusions of law are a product of that ex parte communication. Id. at ¶ 22. When
this occurs, the trial court’s deliberative process has been delegated and a
defendant’s due process rights have been violated. Id.
1 However, in State v. Jackson, 11th Dist. Trumbull No. 2008-T-0024, 2010-Ohio-
1270, and State v. Ahmed, 7th Dist. Belmont No. 05-BE-15, 2006-Ohio-7069, those
districts found that the holding in Roberts does not apply to postconviction proceedings.
Nevertheless, these courts addressed Roberts in the context of ex parte communication
and found that if the findings of fact and conclusions of law filed by the court are a result
of ex parte communication, a defendant is denied due process.
Notwithstanding the procedural distinction in Roberts, both Roberts
and Pickens involved the trial court’s engagement in ex parte communications with
the state in rendering its judicial opinions. That did not occur in this case, and
there is no evidence that Maxwell was denied due process of law. Roberts and
Pickens are distinguishable. Accordingly, when the state’s submission of proposed
findings of fact and conclusions of law are not based on ex parte communications,
but as a result of an order by the court allowing the parties to each submit their
own proposed findings of fact and conclusions of law, no due process violation
occurs.
Maxwell argues that he was not given an opportunity to participate in
submitting proposed findings of fact and conclusions of law. We disagree. Much
like when the state filed its own proposed findings in 2008, which was prior to the
trial court issuing its summary decision to deny Maxwell’s petition, Maxwell could
have submitted his own proposed findings of fact and conclusions of law for the
court to consider. Instead, he merely objected to the state’s proposal and asked the
court to issue its own findings. The trial court did not summarily deny Maxwell’s
petition until 2016. Accordingly, Maxwell had approximately eight years to file his
own submission for the trial court to review, yet he failed to set forth the findings
and conclusions he wanted the trial court to make in deciding whether to grant or
deny his petition. Maxwell had the opportunity; he chose not to participate.
Finally, the fact that the trial court ultimately adopted the state’s
second proposed findings of fact and conclusions of law did not deny Maxwell due
process. The trial court’s 2016 summary denial was not final or appealable; thus,
the trial court could have changed its decision. Additionally, considering the
amount of time that had passed, as well as the Supreme Court’s issuance of its
decision regarding Maxwell’s direct appeal, it was not unreasonable for the state
to resubmit proposed findings.
Upon reviewing the state’s proposed findings of fact and
conclusions of law, we find that they were sufficiently accurate and afforded
Maxwell the right to meaningful appellate review. Moreover, we find no evidence
that the trial court failed to review and consider Maxwell’s petition in its entirety.
Admittedly, the trial court’s adopted findings of fact and conclusions of law contain
the same typographical errors and omissions that are in the state’s proposal.
However, this does not establish that the trial court failed to review the findings or
conclusions before adopting them verbatim. Finally, Maxwell does not allege or
explain how he was prejudiced by the trial court’s verbatim adoption of the state’s
proposed findings and conclusions. Accordingly, the trial court did not violate his
due process rights.
Maxwell’s second assignment of error is overruled.
III. Petition for Postconviction Relief
Maxwell contends in his fourth assignment of error that the trial
court erred in dismissing his petition for postconviction relief when he presented
sufficient operative facts to merit relief, or at a minimum, an evidentiary hearing.
Relative to the relief requested in grounds 1, 2, 3, and 6 of his petition, Maxwell
further contends in his third assignment of error that the trial court erred by
applying the doctrine of res judicata to bar his claims for relief. These assignments
of error will be addressed together.
A petition for postconviction relief is a collateral civil attack on a
criminal judgment, not an appeal of the judgment. State v. Bell, 8th Dist.
Cuyahoga No. 105000, 2017-Ohio-7168, ¶ 10. Postconviction relief is not a
constitutional right; it is a narrow remedy that gives the petitioner no more rights
than those granted by statute. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d
905 (1999). It is a means to resolve constitutional claims that cannot be addressed
on direct appeal because the evidence supporting the claims is outside the record.
State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975). To prevail on a
petition for postconviction relief, the petitioner must establish a violation of his
constitutional rights that renders the judgment of conviction void or voidable. R.C.
2953.21.
In a petition for postconviction relief, the petitioner must state all
the grounds for relief on which he relies, and waives all other grounds not
identified. R.C. 2953.21(A)(4). A criminal defendant seeking to challenge his
conviction through a petition for postconviction relief is not automatically entitled
to an evidentiary hearing. Calhoun at 282, citing State v. Cole, 2 Ohio St.3d 112,
443 N.E.2d 169 (1982). Before granting an evidentiary hearing on the petition, the
trial court must determine whether there are substantive grounds for relief, i.e.,
whether there are grounds to believe there was such a denial or infringement of the
rights of the petitioner so as to render the judgment void or voidable under the
United States or Ohio Constitutions. Calhoun at 283. In determining whether
there are substantive grounds for relief, the court must consider the petition, the
supporting affidavits, and the documentary evidence, as well as all the files and
records pertaining to the proceedings. R.C. 2953.21(D).
A trial court’s decision granting or denying a postconviction petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion.
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. The
trial court does not abuse its discretion in dismissing a petition without a hearing
if (1) the petitioner fails to set forth sufficient operative facts to establish
substantive grounds for relief, or (2) the operation of res judicata prohibits the
claims made in the petition. State v. Abdussatar, 8th Dist. Cuyahoga No. 92439,
2009-Ohio-5232, ¶ 15.
With respect to the trial court’s conclusion that several of Maxwell’s
claims were barred by the doctrine of res judicata, a petition for postconviction
relief is not the proper avenue to raise issues that were or could have been
determined on direct appeal. See generally State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967). Ordinarily, when a petitioner introduces evidence in his
postconviction petition that is outside of the record, the evidence is sufficient, if
not to mandate a hearing, to at least avoid dismissal on the basis of res judicata.
Cole, 2 Ohio St.3d at 114, 443 N.E.2d 169. The evidence submitted in support of
the petition “‘must meet some threshold standard of cogency; otherwise it would
be too easy to defeat the holding of Perry by simply attaching as exhibits evidence
[that] is only marginally significant and does not advance the petitioner’s claim
beyond mere hypothesis and a desire for further discovery.’” State v. Lawson, 103
Ohio App.3d 307, 315, 659 N.E.2d 362 (12th Dist.1995), quoting State v. Coleman,
1st Dist. Hamilton No. C-900811, 1993 Ohio App. LEXIS 1485, 21 (Mar. 17, 1993).
The evidence submitted with the petition must be competent, relevant, and material,
and not merely cumulative of or alternative to evidence presented at trial. State v.
Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 16, citing Combs, 100
Ohio App.3d 90, 652 N.E.2d 205.
Simply, to overcome the res judicata bar, evidence offered outside of
the record must demonstrate that the petitioner could not have appealed the
constitutional claim based upon information in the original record. Lawson at id.
Additionally, if the submitted evidence outside the record consists of
affidavits, the trial court should consider all the relevant factors when assessing
the credibility of affidavits. These factors include whether (1) the judge reviewing
the postconviction petition is the same judge who presided over the trial; (2) the
affidavits submitted contain identical language or appear to have been drafted by
the same person, (3) the affidavits contain or rely on hearsay, (4) whether the
affiants are relatives of the petitioner or interested in the petitioner’s success, and
(5) the affidavits contradict evidence proffered by the defense or are inconsistent
with or contradicted by the affiant’s trial testimony. Calhoun, 86 Ohio St.3d at
284-285, 714 N.E.2d 905.
With these principles and standards in mind, we now address
Maxwell’s grounds for relief together and out of order where appropriate.
A. Neurological Evaluation and Brain Dysfunction Evidence
Grounds 1, 2, and 3 of Maxwell’s petition for postconviction relief
focus on the lack of evidence obtained and presented during both phases of his
capital trial regarding Maxwell’s purported organic brain dysfunction.
Procedural History and Facts
On January 19, 2007, trial counsel requested the trial court to allow
Dr. John Fabian to perform a neurological evaluation of Maxwell and to allow expert
fees. The request was based on information obtained during evaluations by Dr.
Michael Aronoff at the court psychiatric clinic and by Dr. Alice Cook at Northcoast
Behavioral Healthcare System that revealed that Maxwell was rendered
unconscious during a 1999 motorcycle accident. Based on his independent
psychiatric evaluation, Dr. Fabian preliminarily concluded that Maxwell suffered
from mental health issues and recommended that neurological testing be performed
to ascertain Maxwell’s condition.
Following the February 2007, competency hearing, the trial court
denied the request for a neurological evaluation based, in part, upon the competency
reports offered by Drs. Aronoff and Cook. As explained by the Ohio Supreme Court
in discussing the issue of whether the court should have appointed a neurologist,
Trial counsel then stated that they were requesting a neurological
evaluation because Maxwell had told them that his life and the way he
looks at things were different since that motorcycle accident. Thus,
counsel requested a neurological evaluation to provide “objective
medical findings in terms of an MRI or a CAT scan as per Dr. Fabian’s
recommendation.”
During the competency hearing, Dr. Cook testified that she had talked
to Maxwell about the motorcycle accident, and he told her that he had
received no treatment and had not been hospitalized as a result of the
accident.
Dr. Aronoff testified that he had reviewed Maxwell’s medical records
that showed he was treated at Meridia-Huron Hospital on March 29,
1999, after the motorcycle accident. Dr. Aronoff quoted findings from
the medical records that reported that Maxwell was “sitting on
motorcycle which was struck from behind by a car at low speed. He
was thrown off the bike on to the right side. No loss of consciousness.
Was wearing a helmet. Right shoulder, right hip, right elbow, right
ankle are painful. No headache or neck pain.” Dr. Aronoff also stated
that x-rays were taken of Maxwell’s shoulder, elbow, ankle, and hip,
and they were all unremarkable. However, Dr. Aronoff testified that
Maxwell told him that he was rendered unconscious in the motorcycle
accident.
Maxwell at ¶ 216-218.
In finding no abuse of discretion in denying the request for a
neurological evaluation, the Supreme Court explained
Maxwell’s medical records showed that he suffered no loss of
consciousness and reported no headache or neck pain as a result of that
motorcycle accident. Thus, Maxwell’s request merely raised the
possibility that he had suffered a brain injury as a result of a motorcycle
accident. It was not supported by anything in his medical records.
Moreover, the medical records contradicted Maxwell’s story about
what happened after the accident. Maxwell told Dr. Aronoff that he
was rendered unconscious, and he told Dr. Cook that he received no
medical treatment.
Id. at ¶ 225.
The Supreme Court concluded further that trial counsel were not
ineffective for failing to request a neurologist to assist in the development of
mitigation.2 Maxwell at ¶ 229. The court began its discussion by reviewing “Dr.
[Sandra] McPherson’s testimony to determine whether she provided counsel with
additional information about Maxwell’s head injuries from the motorcycle accident
that required counsel to conduct a further investigation.” Id. at ¶ 230.
Dr. McPherson administered the Bender-Gestalt test during her
evaluation of Maxwell. She described the Bender-Gestalt as a “copying
task” that serves as a low-level screening test. She testified that there
was “some indication [that] his hand might not have been steady, but
there were distortions that didn’t make a lot of sense, so the question
remained as to whether or not there was some kind of organically based
anomaly, something that affects how his brain processes information.”
Dr. McPherson testified about past injuries that Maxwell reported
suffering. Maxwell stated that he had been briefly unconscious after
falling off a horse but that he did not receive any medical treatment for
that incident. Dr. McPherson also discussed the motorcycle accident
and said, “[H]e may have been briefly unconscious. He was certainly
conscious when he was seen at the hospital for that one.” Dr.
McPherson also stated that there was nothing in Maxwell’s medical
records showing that he had suffered a traumatic head injury in the
motorcycle accident.
In discussing her final diagnosis, Dr. McPherson stated that Maxwell
suffered from an adjustment disorder with depression and probable
alcohol dependency. Dr. McPherson testified that she could not
determine whether Maxwell had had a traumatic brain injury and
advised that “whoever is working with him next should continue to be
aware that this may be there and try to come up with information to
either rule it in or out.” She also testified that Maxwell has “some type
of cognitive difficulty. He may have some underlying organic problems
and these may have rendered him more likely to react with irritability
since that’s one of the known things that can occur with certain kinds
of organicity making him more prone to act out in a stressful situation
such as a relationship that was flawed.”
2 The term “trial counsel” is to be read plurally because Maxwell was represented
by two capitally certified trial attorneys pursuant to former Sup.R. 20(II)(A) and (B).
Maxwell at ¶ 231-233.
The Supreme Court determined that Dr. McPherson’s testing results
raised “only the possibility of brain impairment,” which the court found was
insufficient to find error that his defense team was ineffective for failing to further
investigate that Maxwell may suffer from a brain dysfunction.
Dr. McPherson’s testimony about the need for further testing to rule
out possible brain impairment appears to be based upon Maxwell’s
performance on the Bender-Gestalt test. She testified that the Bender-
Gestalt test indicated some distortions, but she did not indicate that
these results were conclusive as to brain damage. Thus, the Bender-
Gestalt results raised only the possibility of brain impairment.
Maxwell fails to establish that counsel were deficient by failing to
request a neurologist for mitigation purposes based on Dr.
McPherson’s testimony. First, the record does not show that trial
counsel failed to investigate the need to request a neurologist after
reviewing Dr. McPherson’s findings. We cannot infer a defense failure
to investigate from a silent record; the burden of demonstrating
ineffective assistance is on Maxwell. See [State v.] Were, 118 Ohio St.3d
448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 244.
Second, the trial court could have properly denied a motion for a
neurologist because Maxwell would have been unable to make a
particularized showing of a reasonable probability that the requested
expert would aid in his defense. [State v.] Mason, 82 Ohio St.3d 144,
1998-Ohio-370, 694 N.E.2d 932, syllabus. Dr. McPherson reiterated
that Maxwell’s medical records did not show that he had suffered a
traumatic head injury during the motorcycle accident. Indeed, Dr.
McPherson’s information about a possible head injury resulted from
Maxwell's self-reporting.
Finally, Maxwell has failed to show that the absence of a neurological
evaluation resulted in an unfair trial. Id. Dr. McPherson testified that
there might be “some underlying organic problems and these may have
rendered him more likely to react with irritability * * * in a stressful
situation.” (Emphasis added.) The evidence showed that Maxwell
murdered Nichole in retaliation for her testimony. Accordingly, this
was a planned murder rather than a sudden encounter involving a
stressful situation. Thus, we reject this ineffectiveness claim.
Maxwell at ¶ 234-237.
In his first ground for relief, Maxwell contends that the trial court
violated his right to due process, as guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution and Section 16, Article I of the Ohio
Constitution, by not granting sufficient funds for a neurological evaluation at the
time of trial. In his second and third grounds for relief, Maxwell contends that he
was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth
Amendments of the United States Constitution, and Article I, Section 10, of Ohio
Constitution because trial counsel failed to investigate and present evidence of
Maxwell’s organic brain dysfunction during the guilt phase of trial, and failed to
present evidence regarding the same during the mitigation phase of trial.
He maintains that these denials were prejudicial because the jury was
unable to consider his traumatic brain injury, which allegedly caused his personality
to change resulting in criminal behavior. According to Maxwell, it was important
for the jury to consider evidence of his organic brain dysfunction in consideration of
the R.C. 2903.01(A) murder specifications, and as a relevant R.C. 2929.04 factor
during mitigation.
Maxwell supports these grounds for relief with (1) his defense
counsel’s January 19, 2007, request for a neurological evaluation; (2) a
postconviction affidavit from his cousin, Rodney Maxwell, who averred that in the
mid-1980s, Maxwell hit his head on a concrete bumper and sought medical
treatment for his injuries and suffered headaches thereafter; (3) an affidavit from
Dr. Barry Layton, a board certified clinical neuropsychologist, who stated he
evaluated Maxwell following his conviction and opined to a reasonable degree of
psychological certainty that Maxwell suffers from significant brain impairment; (4)
a single-page facsimile cover page from Howard Memorial Hospital in Arkansas
stating that Maxwell was a patient there for two days in August 1986; a (5) a
postconviction affidavit from Dr. McPherson, Maxwell’s mitigation expert at trial,
averring Rodney’s affidavit would have confirmed her impression that Maxwell
suffered from brain impairment, which would imply potential defects in judgment;
(6) Dr. McPherson’s February 2007 report prepared for mitigation; and (7) an
affidavit from a juror who averred that additional information about Maxwell’s brain
injury “may have made a difference” at trial.
Neurological Evaluation
The trial court determined that Maxwell’s first ground for relief — that
the trial court abused its discretion in denying his request for a neurological
evaluation — was considered and rejected by the Ohio Supreme Court in his direct
appeal and thus, barred by res judicata. Notwithstanding this finding, the trial court
also determined that the evidence Maxwell presented outside of the record was “only
marginally significant,” and that his cousin’s account of Maxwell striking his head
in the 1980s was available at the time of trial. The trial court also concluded that Dr.
Layton’s reliance on Rodney Maxwell’s account failed to credibly prove that Maxwell
suffered from the effects of an organic brain injury. The trial court further
discounted Dr. Layton’s opinion based on prior cases where this court determined
that Dr. Layton’s opinions regarding organic brain injuries on behalf of litigants in
criminal and civil cases were “unconvincing.” Further, the trial court noted two
other experts who opined that Maxwell was competent to stand trial and that he may
have been malingering psychiatric symptoms. Finally, to the extent that Maxwell
provided evidence outside the record, the court found the evidence only marginally
significant and that it did not advance his ground for relief.
On appeal, Maxwell contends that the trial court’s decision that his
ground for relief was barred by res judicata was in error because his petition was
supported by evidence outside of the record. Moreover, he contends that the trial
court’s finding that Maxwell “failed to submit credible or competent evidence to
show a neurological examination was necessary” is belied by the record, and that it
was improper for the trial court to summarily reject Dr. Layton’s opinion based on
past judicial cases.
First, we note that Maxwell is misreading the trial court’s decision.
Maxwell’s failure to submit credible or competent evidence was the justification for
why the trial court denied his 2007 request for a neurological evaluation; it was not
the trial court’s basis for denying postconviction relief.
Addressing Maxwell’s first ground for relief, we find that the trial
court did not abuse its discretion in finding that res judicata prohibits relief. In his
direct appeal to the Supreme Court, Maxwell raised as his 12th proposition of law
that the trial court erred by failing to appoint a neurologist to develop mitigation.
As the Supreme Court clarified, “trial counsel did not request the appointment of a
neurologist for purposes of mitigation”; rather the request was “in the context of his
competency.” Maxwell at ¶ 222. Despite this procedural hurdle, the Ohio Supreme
Court concluded that the medical records contained in the record did not reveal or
support that Maxwell had suffered any brain injuries — the neurological request
“merely raised the possibility that he suffered a brain injury” following a 1999
motorcycle accident. Id. at ¶ 227. Because of the lack of evidence, the Ohio Supreme
Court concluded that it was not an abuse of discretion for the trial court to have
denied his request for a neurologist. Id. at ¶ 228.
Admittedly, the evidence attached to Maxwell’s petition in support of
his mid-1980s head injury and the report of Dr. Layton were not part of the trial
court record and thus not available on direct appeal. However, Maxwell is
attempting to relitigate an issue that was addressed on direct appeal and essentially
is asking this court to conclude that the trial court erred during pretrial proceedings
based on evidence that the trial court did not have the benefit of reviewing when
Maxwell brought the request for an evaluation before the trial court.
Even considering the merits, we find no abuse of discretion in
rejecting this ground for relief without an evidentiary hearing. Maxwell attached to
his petition affidavits and evidence that purportedly reveal that he had in fact
suffered a brain injury in the past. Maxwell’s cousin averred through affidavit that
he witnessed Maxwell hit his head on a concrete barrier in the mid-1980s and that
Maxwell suffered from headaches thereafter. Dr. Layton opined in his affidavit that
“the cause of Maxwell’s brain impairment appears to be a traumatic brain injury that
he suffered in August 1986.” This opinion was based on the cousin’s account of what
occurred, Maxwell’s own recollection, and a one-page facsimile cover page from a
hospital in Arkansas that indicates that Maxwell was a patient there from August 6,
1986 until August 7, 1986. Although the facsimile cover sheet states that the records
from Maxwell’s August 1986 hospital visit were destroyed, Dr. Layton relies
extensively on the facsimile to support his conclusion that Maxwell must have been
treated at the hospital for a head injury.
We note that this mid-1980s parking lot altercation occurred prior to
the 1999 motorcycle accident, which was the incident prompting trial counsel to
request a neurological evaluation. During his examinations with Drs. Aronoff and
Cook, Maxwell did not indicate that he suffered from a head injury in the mid-1980s,
although he reported it to Dr. McPherson. Additionally, if, as Dr. Layton opined,
this parking lot incident caused Maxwell to suffer a traumatic brain injury that
caused severe changes in Maxwell’s day-to-day functioning, including legal
problems, the brain injury would have been discernible to both Drs. Aronoff and
Cook in their evaluations, and would have bolstered Dr. Fabian’s request for a
neurological evaluation. However, the focus of the neurological evaluation request
was based on the 1999 motorcycle accident.
Dr. McPherson’s report noted past injuries suffered by Maxwell,
including falling off a horse, the parking lot altercation, and the motorcycle accident.
Dr. McPherson’s report noted that her testing and evaluation of Maxwell did not
reveal results that “were conclusive of brain damage.” Again, if, as Dr. Layton
opined, the parking lot altercation caused Maxwell to suffer from a traumatic brain
injury, the injury would have manifested itself in the testing conducted by Dr.
McPherson.
Maxwell was certainly available to disclose to Drs. Aronoff and Cook
that he suffered a head injury prior to the 1999 motorcycle accident because he
disclosed this information to Dr. McPherson before he was even evaluated by Drs.
Aronoff and Cook. Additionally, the Arkansas hospital facsimile cover page is only
marginally significant because it does not disclose the nature of the visit or
treatment sought. And Dr. Layton’s finding that “the hospital record of significance
with respect to neurological dysfunction is a note from Howard Memorial Hospital
confirming Maxwell’s stay on 8/6/1986-8/7/1986” is entirely speculative and
insufficient to establish substantive grounds for relief. State v. Jackson, 11th Dist.
Trumbull No. 2004-T-0089, 2006-Ohio-2651, ¶ 63 (mere speculation is not a basis
for relief under R.C. 2953.21).
Moreover, we note that information regarding the 1980s parking lot
altercation was available at the time of trial and on direct appeal because Dr.
McPherson’s report indicates that Maxwell reported he suffered a head injury
following the 1980s parking lot incident that required him to be hospitalized for two
days. Despite this incident being included in her report, the record does not
demonstrate that trial counsel raised this purported injury as a basis for justifying a
neurological evaluation. And because Dr. McPherson’s report was part of the trial
court record, it was also available on direct appeal to support any argument
regarding trial counsel’s ineffectiveness. The focus at trial and on direct appeal
involved Maxwell’s purported head injury from a 1999 motorcycle accident, not any
injury suffered in the 1980s.
Accordingly, the trial court did not abuse its discretion in rejecting
Maxwell’s first ground for relief without an evidentiary hearing.
Brain Dysfunction Evidence — Guilt Phase
The trial court determined that Maxwell’s third ground for relief —
trial counsel’s failure to investigate and present evidence of Maxwell’s organic brain
dysfunction during his guilt phase at trial — was barred by res judicata because the
issue was addressed on direct appeal. Nevertheless, the trial court addressed the
merits of this argument and found that contrary to Maxwell’s claim, trial counsel did
investigate the claim of an organic brain injury when the issue was raised by Dr.
Fabian in 2007. The trial court found that counsel’s choice to not present evidence
of a possible brain injury to negate prior calculation and design may have been
strategic because Maxwell’s defense at trial was actual innocence. The trial court
concluded that a defense that Maxwell had diminished capacity due to an organic
brain injury would have necessarily required an admission that Maxwell murdered
Nichole, which was contrary to their trial theory.
On appeal, Maxwell reiterates the arguments he raised in his petition
that trial counsel rendered ineffective assistance during trial. He contends that the
trial court abused its discretion in discounting and rejecting Dr. Layton’s opinion as
“speculative,” and that the trial court ignored Dr. Layton’s testing and conclusions.
He contends that Dr. Fabian alerted counsel that Maxwell may suffer from organic
brain damage yet did not investigate those injuries. Additionally, he maintains that
counsel knew that any evidence of brain impairment may have neutralized any
argument that he malingered his mental health symptoms. In support, he directs
this court to Dr. McPherson’s postconviction affidavit in which she avers that she
advised counsel that if brain dysfunction was present, Maxwell’s behavior during
testing was in accordance with his neurological dysfunctions. Additionally, Maxwell
maintains that if counsel had obtained evidence of his brain dysfunction, the defense
could have challenged the state’s theory at trial that he acted with prior calculation
and design.
We find that Maxwell’s third ground for relief is barred by res judicata,
but for different reasons than found by the trial court. In his direct appeal, Maxwell
raised as his fourth proposition of law that he received ineffective assistance of
counsel during the guilt phase of trial. Maxwell at ¶ 74. Despite raising this
proposition of law, Maxwell did not raise any argument about trial counsel’s failure
to investigate or present evidence of any brain dysfunction during the guilt phase of
trial. In his postconviction petition, Maxwell contends that his trial counsel was
ineffective because no further investigation regarding brain dysfunction was
conducted, even though Dr. McPherson’s report indicated that he sustained a head
injury in the 1980s that caused him to be hospitalized. As evidenced by the
argument advanced, this issue was available during direct appeal. Accordingly,
because the issue could have been raised on direct appeal, it is barred by res judicata
in postconviction proceedings.
And notwithstanding our conclusion that the issue is barred by res
judicata, the record reveals that trial counsel attempted to secure a neurologist for
use during trial — this was the basis for Maxwell’s first and twelfth propositions of
law in his direct appeal. Maxwell at ¶ 165, 214. Trial counsel cannot be deemed
ineffective when the trial court denies the request for an evaluation.
Moreover, and as the trial court noted, the presentation of evidence
regarding Maxwell’s brain dysfunction would have been inconsistent with his theory
at trial, which was actual innocence. See State v. Miller, 1st Dist. Hamilton No. C-
120109, 2012-Ohio-5964, ¶ 22 (counsel may have had legitimate tactical ground for
not pursuing an insanity defense because it would been inconsistent with his alibi
defense presented at trial). Tactical or strategic trial decisions, even if unsuccessful,
do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545,
558, 651 N.E.2d 965 (1995). “‘Rather, the errors complained of must amount to a
substantial violation of counsel’s essential duties to his client.’” State v. Bradley, 42
Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989), quoting State v. Lytle, 48 Ohio
St.2d 391, 396, 358 N.E.2d 623 (1976).
We can glean from the record that the strategy employed during trial
was possibly at Maxwell’s behest. For example, during the competency hearing,
counsel advised the court that they had been “begging him to come up with some
sort of meaningful defense or anything along those lines.” (Tr. 47). Additionally,
conversations were nonproductive with Maxwell when discussing options and
trying “to come up with some sort of meaningful defense in terms of defending this
crime either from the guilt and/or penalty phase.” (Tr. at id.) And during
mitigation, Dr. McPherson reported and testified that Maxwell “is maintaining his
innocence of the crime.” Finally, as the Ohio Supreme Court noted, “Maxwell has
also refused to accept responsibility for murdering Nichole.” Maxwell at ¶ 285.
Therefore, the strategy to not set forth evidence of Maxwell’s diminished capacity to
negate the state’s evidence of premeditation was trial strategy consistent with the
defense of raising reasonable doubt to show that he was actually innocent.
Even without applying the principles of res judicata, we find that
Maxwell has not set forth sufficient operative facts to establish that counsel’s
performance fell below an objective standard of reasonableness in its investigation
and presentation of evidence during the guilt phase of trial. Accordingly, we find no
abuse of discretion by the trial court in rejecting this ground for relief without an
evidentiary hearing.
Brain Dysfunction Evidence — Mitigation Phase
The trial court found that Maxwell’s claim in his second ground for
relief regarding counsel’s ineffectiveness in presenting mitigation evidence about
any purported brain dysfunction is barred by res judicata because the Ohio Supreme
Court held that the trial court properly denied Maxwell’s request for a neurological
evaluation, and because the information regarding the mid-1980s parking lot
incident that caused Maxwell to allegedly suffer a “traumatic brain injury” was
available before trial.
The trial court also considered the merits of Maxwell’s claim and
determined that Maxwell’s “mitigation strategy depended on calling his relatives
and acquaintances to testify as to his general history of good character, that he was
a versatile and dependable worker, an upstanding neighbor, a positive role model,
and a good family member, as well as providing residual doubt” about whether
Maxwell actually committed the offense as charged.
On appeal, Maxwell contends that evidence of an organic brain
dysfunction would have been a significant mitigating factor.
We find that res judicata bars Maxwell’s second ground for relief
because this issue was addressed on direct appeal, and the evidence attached to
Maxwell’s petition is irrelevant and immaterial to warrant relief. The Supreme
Court found that counsel was not ineffective for failing to request a neurologist for
mitigating purposes because (1) the record was silent regarding whether counsel
failed to further investigate the need for a neurological evaluation after reviewing
Dr. McPherson’s findings; (2) Maxwell was unable to make a particularized showing
of a reasonable probability that the requested expert would have aided in his
defense; and (3) Maxwell failed to demonstrate that the absence of a neurological
evaluation resulted in an unfair trial. Maxwell at ¶ 235-237.
Maxwell attempts to remedy these deficiencies with the affidavits of
his cousin and Dr. Layton. However, as previously discussed, the parking lot
incident was known at the time of trial because it is referenced in Dr. McPherson’s
report. Despite this notation, Dr. McPherson did not rely on it when evaluating any
potential brain dysfunction.
Additionally, Maxwell could have reported this 1980s parking lot
incident to Drs. Aronoff, Cook, and Fabian. The focus of the request for a
neurological evaluation was based on a motorcycle accident that occurred in 1999.
As previously discussed, any organic brain dysfunction would have manifested or
become apparent during Maxwell’s evaluations with the other medical experts.
Finally, Dr. Layton’s opinion is based partly on speculation — i.e., the
destroyed medical records from the Arkansas hospital. Maxwell again places much
emphasis on the fact that Dr. Layton was able to determine that Maxwell suffered
from an organic brain dysfunction based solely on his examination of Maxwell —
“the examination alone definitively demonstrates brain impairment, particularly in
the anterior of the brain (the frontal cerebrum).” However, the record clearly
demonstrates that at least four other physicians interviewed and evaluated Maxwell,
and none were able to definitively diagnosed Maxwell with an organic brain
dysfunction. Accordingly, we cannot say that trial counsel was ineffective for not
further investigating and presenting mitigating evidence regarding brain
dysfunction based on the evidence available to counsel at the time of trial.
Notwithstanding our conclusion, we note that this is not a case where
no evidence of Maxwell’s psychological or mental status was presented during
mitigation. Dr. McPherson testified as a defense mitigation witness about Maxwell’s
mental status, including test results that showed his low intelligence, and possible
neurological problems. In fact, she testified “that Maxwell has come cognitive
difficulty. He may have some underlying organic problems, and these may have
rendered him more likely to react with irritability in a stressful situation such as a
flawed relationship.” Maxwell at ¶ 273. Dr. McPherson further testified about
Maxwell’s background and his drug and alcohol problems, opining that he suffered
from alcohol abuse and probably dependency. Finally, she testified about Maxwell’s
prison records that showed compliance with authority and that he had the skills to
adjust to prison life and was thus amenable to a life sentence.
The presentation of mitigating evidence is a matter of trial strategy.
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 74. Nothing
in the record indicates that counsel failed to investigate any further indication of an
organic brain dysfunction. Furthermore, the mitigation evidence presented was a
matter of strategy to maintain consistency with the evidence and the defense theory
presented during the guilt phase of trial.
Much like the Ohio Supreme Court found in his direct appeal when
addressing lack of mitigation, we also find that Maxwell has failed to show prejudice
or that there was a reasonable likelihood of a different outcome had defense counsel
presented additional evidence that Maxwell may suffer from an organic brain
dysfunction. Maxwell attempts to establish prejudice by providing an affidavit from
a trial juror that information of a brain injury “may have made a difference” during
mitigation. The affidavit is purely based on speculation, which is insufficient to
grant relief under R.C. 2953.21. See Jackson, 11th Dist. Trumbull No. 2004-T-0089,
2006-Ohio-2651, ¶ 63. Moreover, because Evid.R. 606(B) would prohibit Maxwell
from using the juror’s statement to impeach a verdict, the juror’s testimony at an
evidentiary hearing would have been inadmissible. See State v. Jones, 9th Dist.
Summit No. 28063, 2019-Ohio-289, ¶ 76, citing State v. Morgan, 10th Dist.
Franklin No. 95APA03-382, 1995 Ohio App. LEXIS 5130, 3 (Nov. 21, 1995)
(concluding that although it was necessary for appellant to submit affidavits in order
for the trial court to determine whether he was entitled to a hearing, once the trial
court granted that hearing, it became necessary for him to produce admissible
evidence under the rules of evidence). Accordingly, Maxwell has failed to cure the
prejudicial impediment for this court to find that he was deprived his constitutional
right to effective assistance of counsel.
Even without applying the principles of res judicata, we find that
Maxwell has not set forth sufficient operative facts to establish that counsel’s
performance fell below an objectively reasonable standard in its presentation of
evidence during the mitigation phase of trial. Accordingly, we find no abuse of
discretion by the trial court in rejecting this ground for relief without an evidentiary
hearing.
B. Actual Innocence
The state claimed that Maxwell killed Nichole in retaliation for her
grand jury testimony that led to his subsequent indictment for felonious assault.
The alleged felonious assault occurred on October 6, 2005. Nichole testified before
the grand jury on November 23, 2005, regarding the assault, and the grand jury
indicted Maxwell for felonious assault, abduction, and domestic violence. Due to
the Thanksgiving holiday weekend, the indictment was not filed until November 28,
2005. However, Maxwell killed Nichole during the early morning hours of
November 27, 2005. Maxwell was indicted for Nichole’s murder with a prior
calculation and design specification. The aggravated murder count contained four
death specifications; however, the jury only found Maxwell guilty of murder in
retaliation for testimony in a criminal proceeding (R.C. 2929.04(A)(8), and murder
to escape accounting for a crime (R.C. 2929.04(A)(3)). For sentencing purposes and
after merger, Maxwell was sentenced to death under the R.C. 2929.04(A)(8)
specification — i.e., retaliation.
In his sixth ground for relief, Maxwell contends that his conviction
and sentence are void or voidable because he is actually innocent of the aggravating
circumstances. Specifically, he contends that because the state never proved that he
was guilty of felonious assault, he could not be found guilty of committing
aggravated murder in retaliation or to escape punishment for felonious assault.3
In support of this ground for relief, Maxwell attached to his petition
affidavits from (1) his brother, Andy Maxwell; (2) Andy’s friend, La-Tonya Kindell;
3 The death specification under R.C. 2929.04(A)(3) merged into the retaliation
death specification under R.C. 2929.04(A)(8); accordingly, only the death specification
under R.C. 2929.04(A)(8) survives and is subject to review. See Maxwell at ¶ 73 and 256
(finding that trial court merged the R.C. 2929.04(A)(3) specification with the murder-in-
retaliation specification in R.C. 2929.04(A)(8) before the jury considered its penalty-
phase verdict; analyzing death specification only under R.C. 2929.04(A)(8)).
(3) his mother, Earnestine Brewer; (4) his sister, Teresa McNear; (5) his long-time
friend, Terrell Tyson; (6) an investigator, Felicia Crawford; and (6) a trial juror; as
well as hospital records dated August 14, 2001, where he was treated for abrasions
to his face and penis as a result of “domestic assault.” Maxwell contends that the
testimony from these witnesses would have established that he had a legitimate self-
defense claim against the allegations of felonious assault and therefore he had no
reason to retaliate against Nichole. And according to Maxwell, had the jury heard
this evidence, the result may have been different.
The trial court concluded that Maxwell’s ground for relief was barred
by res judicata because the evidence he advanced was available at the time of trial.
Moreover, the trial court found the evidence presented outside the record was only
marginally significant and did not advance his claim because it did not prove his
actual innocence, the assertion of a self-defense claim would have been contrary to
his innocence claim at trial, and the evidence actually presented at trial proved that
Maxwell did in fact, commit the act of felonious assault against Nichole.
Maxwell raised a similar issue in his direct appeal as propositions of
law 8 and 9. Upon its review, the Supreme Court determined that the state
presented sufficient evidence to prove the R.C. 2929.04(A)(8) retaliation
specification that Maxwell killed Nichole to prevent her testimony in any criminal
proceeding and for testifying against him at the grand jury proceedings. Maxwell at
¶ 158 and 163. In fact, the Supreme Court stated: “We hold that Maxwell’s guilt of
the R.C. 2929.04(A)(8) specification was established by proof beyond a reasonable
doubt.” Id. at 163. Accordingly, the state did not have to prove the offense of
felonious assault, only that Maxwell killed Nichole for testifying against him.
On appeal, Maxwell does not demonstrate, much less argue, how the
trial court abused its discretion in rejecting this ground for relief. Rather, he
reiterates that during the trial, the court found that the testimony of John Gregg (the
state’s sole witness regarding the capital specification) incredible, and that in his
second motion for new trial, it was discovered that Gregg received immunity for his
testimony. According to Maxwell, Gregg’s lack of credibility and the evidence
“presented in [his] fourth, fifth, eighth, and ninth grounds for relief” “casts serious
doubt on the State’s case against [him],” and that he did not kill Nichole in
retaliation for testifying against him before the grand jury.
Admittedly, Maxwell presents evidence dehors the record; however,
in order to obtain postconviction relief, Maxwell must claim that “there was such a
denial or infringement of his right as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States.” R.C. 2953.21(A)(1).
Maxwell’s claimed constitutional violation is that he is serving a death sentence for
a crime he did not commit, which would violate the Cruel and Unusual Punishment
Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. A claim of actual innocence is not
itself a constitutional claim, nor does it constitute a substantive ground for
postconviction relief. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121
N.E.3d 351, ¶ 26, citing Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122
L.Ed.2d 203 (1993); see also State v. Williams, 8th Dist. Cuyahoga No. 85180, 2005-
Ohio-3023, ¶ 31. Therefore, Maxwell’s “actual innocence” claim fails to raise “a
denial or infringement of rights under the Ohio Constitution or the Constitution of
the United States” as required by R.C. 2953.21.
Accordingly, we find no abuse of discretion by the trial court in
rejecting this ground for relief.
C. Effective Assistance of Counsel
Nine of Maxwell’s postconviction claims sought relief on the grounds
that his trial counsel were constitutionally ineffective in investigating, preparing,
and presenting his case during both the guilt and mitigating phases of trial.4
To prevail on a claim of ineffective assistance of counsel, a
postconviction petitioner must demonstrate that counsel’s (1) performance fell
below an objective standard of reasonableness, and (2) deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 13 (1989).
When reviewing counsel’s performance, this court must be highly deferential and
“must indulge a strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance.” Strickland at 689. To establish
4 Maxwell’s second and third grounds for relief, which also claim a deprivation of
effective assistance of counsel, were previously discussed and rejected in this opinion;
they will not be addressed again.
resulting prejudice, a defendant must show that the outcome of the proceedings
would have been different but for counsel's deficient performance. Id.
Grounds 4, 5, and 9 — Guilt-Phase Evidence
Grounds 4, 5, and 9 each contend that Maxwell’s trial counsel were
ineffective in investigating and presenting his case during the guilt phase of his trial.
Respectively, in his fourth, fifth, and ninth grounds for relief, Maxwell contends that
his sentence is void or voidable because trial counsel failed to (1) investigate the
felonious assault charge that was the premise for the aggravating circumstance, (2)
investigate the actual crime of felonious assault, and such investigation would have
revealed that Maxwell did not act with prior calculation and design; and (3) present
several necessary witnesses in his defense, specifically about Maxwell’s tumultuous
relationship with Nichole
Maxwell supports grounds 4, 5, and 9 of his petition with affidavits
from (1) his brother, Andy Maxwell, (2) Andy’s friend La-Tonya Kindell, (3) his sister
Teresa McNear, and (4) his mother, Earnestine Brewer; and hospital records dated
August 2001 when he was treated for injuries caused by his “girlfriend” during a
“domestic assault.” Maxwell maintains the investigation and presentation of
witnesses regarding the felonious assault offense would have provided the jury with
the complete story that the murder of Nichole was not in response to her grand jury
testimony, but instead due to their tumultuous relationship and Maxwell’s despair
over Nichole’s actions, including observing her with another man. Finally, Maxwell
contends that counsel’s strategy to maintain his innocence did not absolve them of
their duty to investigate the felonious assault charge, and the supporting evidence
presents sufficient operative facts to establish that his trial counsel were ineffective.
The trial court found that the affidavits submitted in support of his
petition do not set out sufficient operative facts that the victim was the aggressor
and provoked Maxwell into committing felonious assault or aggravated murder.
The court determined that if Andy Maxwell or La-Tonya Kindell would have testified
similarly to what is stated in their affidavits, their testimony would have discounted
the defense theory of actual innocence. Additionally, the court found that the
evidence of past altercations between Nichole and Maxwell does not disprove that
he acted with prior calculation and design, or that Nichole provoked him. The court
found the affidavits marginally significant. Moreover, the court noted that the
Supreme Court rejected Maxwell’s argument that he acted spontaneously in killing
Nichole. Maxwell at ¶ 149-151.
In his direct appeal, Maxwell raised as his fourth proposition of law
that he received ineffective assistance of counsel during the guilt phase of trial.
Maxwell at ¶ 74. Despite raising this issue, Maxwell did not raise any challenge
regarding trial counsel’s failure to investigate the felonious assault charge or the
presentation of evidence to refute that he acted in retaliation or with prior
calculation of design. Accordingly, because the issue could have been raised on
direct appeal, it is barred by res judicata in postconviction proceedings.
Even reviewing the merits of these grounds for relief, we find no abuse
of discretion by the trial court. The affidavits and medical records Maxwell attached
to his petition do not set forth sufficient operative facts to demonstrate that trial
counsel was ineffective for failing to investigate the felonious assault offense.
The evidence Maxwell submits purportedly proves that he acted in
self-defense when Nichole suffered the injury that prompted the underlying
felonious assault charge, the two had a tumultuous relationship, and the murder was
a spontaneous crime of passion. However, as the Ohio Supreme Court concluded,
the state did not have to prove that Maxwell committed the act of felonious assault,
only that Nichole was murdered in retaliation for giving grand jury testimony
against Maxwell. Maxwell at ¶ 154-163. Whether Maxwell would have been found
guilty of felonious assault in the subsequent indictment is irrelevant to whether
Maxwell purposely killed Nichole for testifying before the grand jury or failing to
change her testimony as he requested.
Moreover, in his direct appeal, Maxwell challenged the sufficiency of
the evidence, contending that the state failed to prove (1) that he acted with prior
calculation and design, (2) his guilt on the witness-murder specification, and (3) that
he killed Nichole to prevent her from testify in any criminal proceeding because the
felonious assault charge was not pending at the time of the murder. See Maxwell at
¶ 145-164. (Propositions of Law No. 7, 8, and 9). In making these arguments, he
asserted that the evidence showed that he spontaneously shot Nichole after
observing her with another man, and kissing him goodnight, and receiving phone
calls from the man at home. Maxwell at ¶ 149. In rejecting this argument, the Ohio
Supreme Court focused on the evidence that showed that Maxwell shot Nichole in
retaliation for her failure to change her grand jury testimony about the felonious
assault. Maxwell at ¶ 150, 157.
The record demonstrates that, Maxwell’s theme at trial was that he
was innocent of the charges. When this theme proved unsuccessful, his theme on
direct appeal was that the murder of Nichole was not out of retaliation and thus, not
based on prior calculation or design, but rather based on a crime of passion after
seeing Nichole with another man. Maxwell now advances a theme of “self-defense”
for the felonious assault charge with evidence that he and Nichole had a tumultuous
relationship. This new evidence and theory are merely alternative theories to that
presented at trial and on direct appeal. “‘The mere existence of an alternative theory
of defense, however, is insufficient to establish ineffective assistance of counsel.’”
State v. Tenace, 6th Dist. Lucas No. L-05-1041, 2006-Ohio-1226, ¶ 26, quoting
Combs, 100 Ohio App.3d at 103, 652 N.E.2d 205.
Accordingly, we find that the trial court did not abuse its discretion in
rejecting grounds 4, 5, and 9 of Maxwell’s postconviction petition for relief because
he did not set forth sufficient operative facts to establish that trial counsel’s
performance fell below an objective standard of reasonableness to prove that he was
deprived of effective assistance of counsel during the guilt phase of his capital trial.
Moreover, the issues raised were or could have been raised on direct appeal; thus,
res judicata prohibits the claims made in the petition.
Grounds 7, 8, 10, and 11 — Mitigation Evidence
Maxwell raised as grounds for relief 7, 8, 10, and 11 the adequacy and
effectiveness of his trial counsel’s investigation, preparation, and presentation of his
case in mitigation. Respectively, in his seventh, eighth, tenth, and eleventh grounds
for relief, Maxwell contends that his sentence is void or voidable because trial
counsel failed to (1) present adequate mitigation by utilizing Dr. McPherson as both
an investigator and mitigation specialist; (2) investigate and present several
necessary witnesses to support the R.C. 2929.04(B)(1) and (2) mitigating factors;
(3) present evidence that he was a good father; and (4) present adequate evidence
of his work history.
In his seventh ground for relief, Maxwell contends that trial counsel
utilized Dr. McPherson as both investigator and mitigation specialist. According to
Maxwell, this dual-purpose role deprived her from performing both roles
sufficiently and, as result, counsel was unable to provide adequate mitigation.
In support of this ground for relief, Maxwell attached to his petition
affidavits from his brother, Andy Maxwell, and his sister, Teresa McNear; and he
makes a passing reference to Dr. Layton’s report. He maintains that Dr.
McPherson’s interview of the family was performed in a group setting, depriving
family members an opportunity to speak comfortably; thus, he contends she was
unable to build rapport with his family to help with mitigation. Additionally, he
contends that her dual roles caused her to present inaccurate information to the jury
during her testimony.
The trial court found that Maxwell’s submitted evidence was only
marginally significant and that the Supreme Court addressed a majority of his
concerns and arguments in his direct appeal. Specifically, the court noted that the
Supreme Court found that Maxwell’s defense team “thoroughly prepared for the
penalty phase,” and that “trial counsel employed a criminal investigator, a clinical
psychologist who was a mitigation specialist, and another psychologist who was a
mitigation expert.” Maxwell at ¶ 191. Additionally, the Supreme Court rejected
Maxwell’s contention that inadequate mitigation evidence was presented. Id. at ¶
187-198.
On appeal, Maxwell maintains that the trial court abused its discretion
in rejecting this ground for relief because its findings are not supported by the
record, and the trial court “ignored” all the arguments raised in his petition. He
contends that Dr. McPherson did not build a rapport with the family “in time to
convince Maxwell to take a deal,” and that the group meeting was inadequate to
allow the family to “open up.” According to Maxwell, the jury did not receive
information on his background, character, history, or mental deficiencies.
A majority of the trial court’s findings are consistent with the Ohio
Supreme Court’s findings addressing the same arguments. Even granting that the
affidavits and Dr. Layton’s report are outside the record and were not considered on
direct appeal, the information contained therein does not advance Maxwell’s
argument that Dr. McPherson’s purported dual-role deprived him of adequate
mitigation. Rather, the information Maxwell now advances in his petition
essentially relates to the tumultuous relationship between him and Nichole — a
theory contrary to his actual innocence claim.
Finally, Maxwell’s argument that the jury did not receive information
regarding his background, character, history, or mental deficiencies is completely
unsupported by the record. In fact, the Supreme Court expressly found that
Dr. McPherson provided expert testimony about Maxwell’s
background, his drug and alcohol problems, and his mental status.
Testimony from family members and friends did reveal Maxwell’s
criminal past. But there were advantages as well as disadvantages in
calling these witnesses. These witnesses helped to humanize him in
front of the jury and showed that he had many positive characteristics
as a good father and a hard worker.
***
[T]rial counsel presented the testimony of Maxwell’s family members
and coworkers that Maxwell was kind-hearted, a good worker, and a
family man. Dr. McPherson reviewed Maxwell’s educational records
and discussed test results that showed his low intelligence. She also
reviewed his prison records and explained how they showed that
Maxwell would be a good prisoner if given a life sentence. Dr.
McPherson also explained that Maxwell had suffered from alcohol
dependency.
Maxwell at ¶ 194, 200.
Without even considering the effect of res judicata on this claim, we
find that Maxwell has failed to demonstrate that the trial court’s decision rejecting
his seventh ground for relief was an abuse of discretion.
In his eighth ground for relief, Maxwell contends that he was denied
effective assistance of counsel because counsel failed to investigate and present
several necessary witnesses to support the R.C. 2929.04(B)(1) and (2) mitigating
factors; respectively, whether the victim of the offense induced or facilitated the
murder, and whether it is unlikely that the offense would have been committed but
for the fact that the offender was under duress, coercion, or strong provocation.
In its sentencing opinion, the trial court specifically found:
In my independent weighing process, I do not agree with the defense’s
contention that Nichole McCorkle’s behavior on the night of the
murder had anything to do with Mr. Maxwell’s actions. I specifically
find that she did not induce the offense. Further, I find that the
aggravated murder conviction by Mr. Maxwell was not done while the
defendant was acting under duress, coercion, or strong provocation.
Therefore, I find that the mitigatory factors listed in R.C. 2929.04(B)
(1) and (2) do not apply. Additionally, it should be noted that the
defense did not request the court to instruct the jury to consider these
two mitigatory factors.
State v. Maxwell, Cuyahoga C.P. No. 05-CR-475400, Opinion of the Court, Findings
of Fact and Conclusions of Law Regarding Imposition of Death Penalty, dated
March 23, 2007.
Notwithstanding that this issue could have been raised on direct
appeal, we note that Maxwell’s defense strategy at trial consisted of him maintaining
his innocence. Accordingly, it can only be viewed as strategy that these two factors
were not presented. It is well established that the presentation of mitigating
evidence is a matter of trial strategy and “‘[t]he decision to forgo the presentation of
additional mitigating evidence does not itself constitute ineffective assistance of
counsel.’” State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 240,
quoting State v. Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47 (1997). The
introduction of evidence mitigating and explaining that it was Nichole who induced
or facilitated the murder, or that Maxwell was acting under duress or strong
provocation when he shot her, would have been inconsistent with the defense’s trial
strategy and theory of the case. Because trial strategy cannot form the basis of an
ineffective assistance claim, the trial court did not abuse its discretion in rejecting
this claim for relief without an evidentiary hearing. See, e.g., State v. Ellison, 2d
Dist. Montgomery No. 25638, 2013-Ohio-5455, ¶ 30.
In his tenth ground for relief, Maxwell contends that his defense team
failed to present evidence that he was a good father, and that had this evidence been
presented, the trial court’s findings and conclusions would have offered the jury
mitigating evidence that would have humanized Maxwell and demonstrated what
kind of provider he was to his family.
Maxwell supported this ground for relief with the affidavits of his
brother, Andy Maxwell, and his mother, Earnestine Brewer. Additionally, he cites
to the trial court’s death penalty sentencing opinion’s findings of fact and
conclusions of law that “the evidence did not demonstrate that he was a regular
provider for his family, including his daughter * * * and [Nichole].” State v.
Maxwell, Cuyahoga C.P. No. 05-CR-475400, Opinion of the Court, Findings of Fact
and Conclusions of Law Regarding Imposition of Death Penalty, dated March 23,
2007.
The trial court acknowledged this ground for relief but did not make
any specific finding. Rather, it quoted from the Ohio Supreme Court’s decision that
the “defense thoroughly prepared for the penalty phase.” However, Maxwell does
not contend that this omission per se constitutes error. In fact, he maintains that
“the trial court addressed this claim, but it is difficult to discern what the findings
are.” Despite this perceived deficiency, Maxwell presents his argument with
supporting evidence that challenges the trial court’s finding in the sentencing entry.
Accordingly, the lack of specific finding addressing Maxwell’s tenth ground for relief
has not hindered Maxwell from making a reasoned appeal and affording him
meaningful appellate review. State v. Mapson, 1 Ohio St.3d 217, 219, 438 N.E.2d
910 (1982). Moreover, considering the entire record, this court is not precluded
from understanding the basis for the trial court’s decision on this ground for relief.
State v. Clemmons, 58 Ohio App.3d 45, 46, 568 N.E.2d 795 (2d Dist.1989).
As previously discussed in addressing Maxwell’s seventh ground for
relief, mitigation testimony was presented demonstrating that he was viewed as a
good person who loved and was loved by his family. Moreover, the affidavits
submitted by Maxwell in support of this ground for relief are cumulative to the
evidence presented during mitigation. Including other family and friends, both his
brother and his mother testified during mitigation and presented testimony that
Maxwell was a kindhearted man and according to Andy, “had a great relationship
with C.M.” Additionally, we note that Maxwell’s older sister, Sharon Graves,
testified during mitigation that her brother had a loving relationship with his
daughter, and that he was supportive of her own children — a sentiment that his
younger sister, Teresa McNear, shared. Additionally, Teresa testified that Maxwell
loved his daughter and had good interactions with her.
Based on the entire record, we find that the trial court did not abuse
its discretion in not affording Maxwell postconviction relief under his tenth ground
for relief because the evidence outside the record was cumulative to what was
presented during the mitigation phase at trial.
In his eleventh ground for relief, Maxwell contends that his defense
team did not provide him with effective assistance during the mitigation phase of
trial because inadequate evidence of his work history was presented.
The trial court determined that the record demonstrates that counsel
presented substantial evidence of Maxwell’s employment, reputation as a hard
worker, and generous nature. We agree.
On appeal, Maxwell admits that trial counsel presented testimony
that he was a hard worker, but argues that it was insufficient, and that counsel
should have instructed witnesses to elaborate. He contends that the trial court
abused its discretion in failing to “credit any of the information in the affidavits”
attached to his petition.
The affidavits submitted by Maxwell in support of this ground for
relief are cumulative to the evidence presented during mitigation. See, e.g., Maxwell
at ¶ 200. The record is replete with evidence of Maxwell’s employment history and
reputation as a generous, hardworking individual. Accordingly, we find that the trial
court did not abuse its discretion in rejecting Maxwell’s eleventh ground for relief
without an evidentiary hearing.
Accordingly, we find that the trial court did not abuse its discretion
in denying Maxwell’s grounds for relief challenging that he was deprived of his
constitutional right to effective assistance of counsel during the mitigation phase of
his capital trial.
D. Constitutionality of Ohio’s Postconviction Procedures
In his twelfth ground for relief, Maxwell contends that Ohio’s
postconviction procedures do not provide an adequate corrective process, in
violation of the constitution. The trial court found, citing to this court’s precedent,
that Ohio’s postconviction procedures repeatedly have been upheld as
constitutional. See State v. Hutton, 8th Dist. Cuyahoga No. 76348, 2004-Ohio-
3731, ¶ 26; see also State v. Conway, 10th Dist. Franklin No. 05AP-550, 2006-Ohio-
6219, ¶ 27. We agree with the trial court and find no abuse of discretion in its
decision dismissing this ground for relief without an evidentiary hearing.
E. Conclusion
Based on the foregoing, Maxwell’s fourth assignment of error is
overruled. His postconviction petition, the supporting affidavits, the documentary
evidence, and the entire court record do not demonstrate that Maxwell has set forth
sufficient operative facts to establish substantive grounds for relief, and therefore,
the trial court did not abuse its discretion in dismissing his petition without further
discovery or an evidentiary hearing.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
EILEEN T. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR
State v. Maxwell
Combined Opinion