State v. Lavender

[Cite as State v. Lavender, 2024-Ohio-229.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230042
TRIAL NO. B-1700948
Plaintiff-Appellee, :
O P I N I O N.
vs. :

ANDREW LAVENDER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded

Date of Judgment Entry on Appeal: January 24, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Elizabeth Miller, Ohio Public Defender, Patrick T. Clark, Assistant Public
Defender/Managing Counsel, and Charlyn Bohland, Assistant Public
Defender/Supervising Attorney, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, Judge.

{¶1} Defendant-appellant Andrew Lavender appeals the judgment of the

Hamilton County Court of Common Pleas dismissing his timely-filed R.C. 2953.21

petition for postconviction relief without an evidentiary hearing. Reviewing the appeal

in light of the Ohio Supreme Court’s decision in State v. Bunch, 171 Ohio St.3d 775,

2022-Ohio-4723, 220 N.E.3d 773, we hold that Lavender was entitled to an

evidentiary hearing on six of his 12 claims. Those six claims asserted that his trial

counsel was constitutionally ineffective in challenging the eyewitness and informant

testimony presented at trial and in investigating and presenting mitigation evidence

at sentencing. Accordingly, we reverse the common pleas court’s judgment in part and

remand this cause for an evidentiary hearing on those six claims. We affirm the trial

court’s judgment in all other respects.

Background

{¶2} In January 2018, following a jury trial, Lavender was convicted of the

aggravated murder of Ceran Lipscomb in violation of R.C. 2903.01(A) and sentenced

to life in prison without the possibility of parole. Lavender was a juvenile at the time

Lipscomb was murdered.

{¶3} The shooting took place outside of a neighborhood park on August 1,

2014, at around 6:00 p.m. The state’s theory at trial was that Lavender, a teenager

with no significant familial support and desperate for money, became a “hitman,” and

engaged in murder-for-hire. To support this theory at trial, the state relied on (1) the

eyewitness testimony of 15-year-old Dennis Coulter, who had been across the street

talking with his cousin at the time of the shooting; (2) the informant testimony of

Domingo Johnston, who had overheard Lavender telling others that he was taking a

hit on Lipscomb; and (3) Lavender’s text messages to others seeking money and his

social-media posts of pictures of himself holding guns and/or cash.

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{¶4} With respect to the eyewitness testimony, Coulter initially described the

shooter as a black male in his 20s with blue eyes, a chinstrap beard, and five feet eight

inches tall. Although he told police he was a few feet away when the shooting occurred,

a picture of the scene admitted at trial showed that he had been standing more than

20 feet away. Almost two weeks after the crime, Coulter identified Lavender from a

six-person photo lineup. When asked how confident he was on a scale of one to ten

that he had correctly identified the suspect, he responded, “9.”

{¶5} The state also presented the expert testimony of Dr. John Wixted, whose

research centers on the reliability of eyewitness identification. Dr. Wixted testified that

a high-confidence identification is a strong indicator of the reliability of eyewitness

identification, even if other indicators that affect the reliability or accuracy of an

identification are present, such as witnessing a crime from a distance, witnessing a

crime where a gun is used (a stress factor), and where the period of time from

witnessing the crime to making the first identification is lengthy. In his testimony, Dr.

Wixted stressed that the high-confidence factor is the strongest indicator of the

reliability of an identification if the eyewitness who expresses high confidence in his

identification does so upon his first viewing of a photo lineup and if the lineup is not

unduly suggestive; i.e., where the suspect identified did not stand out from the other

people pictured in the photo array. Dr. Wixted testified that in his opinion the line-up

was not suggestive because it appeared that others pictured in the array also had some

facial hair like Lavender’s.

{¶6} Lavender’s defense at trial focused on exposing holes in the murder

investigation, which was led by a rookie detective. For example, they point out that the

police failed to interview the 911-caller who had reported the crime until more than six

months after the crime. The 911-caller had been in a port-o-let when he heard a shot

fired. He testified at trial that he came out of the port-o-let and saw a man, who appeared

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to be in his 40s, running away. When interviewed, the 911-caller said that he would be

unable to identify the shooter because too much time had passed since the shooting.

{¶7} In addition to that line of defense, Lavender presented the testimony of an

eyewitness-identification expert, Dr. Jonathon Vallano, in an attempt to discredit

Coulter’s identification of Lavender. Dr. Vallano discussed different factors—distance

between the witness and the crime, the presence of a weapon, the duration of the time

the witness was able to view the suspect—that affect the reliability of an identification

and that specifically affected the reliability of Coulter’s identification of Lavender. But

Dr. Vallano agreed with Dr. Wixted that a high-confidence identification is typically

reliable and accurate unless the photo lineup being viewed is suggestive or unfair. Unlike

Dr. Wixted, Dr. Vallano testified that he thought the array was unfair because the only

suspect with a chinstrap beard in the photo array was Lavender.

{¶8} Finally, the defense challenged the state’s interpretation of Lavender’s

social-media posts by cross-examining Coulter, who was also a black urban male close in

age to Lavender, about Coulter’s own, similar social-media posts, and challenged the

credibility of Domingo Johnston, the police informant, by cross-examining him on his

lengthy history of “snitching” on others in exchange for leniency on criminal charges

against him.

{¶9} Ultimately, the jury found Lavender guilty of aggravated murder. The trial

court, prior to sentencing Lavender, indicated that it had reviewed the presentence-

investigation report and Lavender’s sentencing memorandum, and was considering

Lavender’s “youth as a mitigating factor for purposes of sentencing with the

understanding that the imposition of life in prison without parole is not to be entered

into lightly and that the Court needs to be aware of the possible Eighth Amendment

ramifications for cruel and unusual punishment.” The court imposed a life term without

the possibility of parole after noting that “murder for hire is a particularly troubling

motivation.”

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{¶10} This court affirmed Lavender’s conviction and sentence on direct

appeal. State v. Lavender, 2019-Ohio-5352, 141 N.E.3d 1000 (1st Dist.), appeal not

accepted, 159 Ohio St.3d 1435, 2020-Ohio-3634, 148 N.E.3d 576. In our opinion, we

overruled, among other assignments of error, challenges to (1) the admission of

Lavender’s text messages and photographs from his Facebook account, holding they

were properly admitted for the purposes set forth in Evid.R. 404(B) and that any

individual item that may have been improperly admitted, was harmless error, see id.

at ¶ 13, 47; (2) trial counsel’s effectiveness in failing to object to the admission of the

photographs, holding that counsel was not ineffective where one of the defense

strategies was “to explain away the texts and social media evidence * * * by depicting

it as the posturing of a teenager engaged in a segment of urban culture that finds such

images and talk admirable” and where defense counsel successfully obtained

testimony from the state’s eyewitness, Dennis Coulter, admitting that he too had

posted pictures similar to Lavender’s on social media, even though he was a

“positivity” rap artist, see id. at ¶ 85; (3) trial counsel’s ineffectiveness in failing to

present effective mitigation evidence at sentencing, holding that trial counsel’s

decision to call or not call a mitigation witness was a matter of trial strategy, see id. at

¶ 122; and (4) the admission of Coulter’s identification of Lavender from the six-

person photo array, holding that the photo array was not unduly suggestive even

though Lavender’s photograph was the only one with a chinstrap beard, see id. at ¶

135.

{¶11} Following his direct appeal, Lavender challenged his conviction and

sentence in a timely-filed postconviction petition, raising 12 grounds for relief. Most

of the grounds challenged the constitutional effectiveness of trial counsel in

investigating the eyewitness and informant testimony, challenging the state’s

interpretation of Lavender’s text messages, and in preparing mitigation evidence for

sentencing. On appeal, this court reversed the denial of his petition because the lower

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court’s findings of fact and conclusions of law did not conform with the requirements

of R.C. 2953.21(H) and prevented this court from conducting a meaningful review of

Lavender’s appeal. State v. Lavender, 1st Dist. Hamilton No. C-210151, 2021-Ohio-

4274.

{¶12} On remand, the court heard oral arguments on Lavender’s request for

an evidentiary hearing, but ultimately denied the request and dismissed Lavender’s

petition. In its findings of fact and conclusions of law, the court, complying with R.C.

2953.21(H), set forth which grounds were barred by res judicata, and which claims

were barred for failing to set forth substantive grounds for relief.

{¶13} Lavender now appeals, arguing in two assignments of error that the

court erroneously dismissed eight of the 12 grounds for relief without first holding an

evidentiary hearing. All eight1 grounds, which allege that Lavender’s trial counsel was

constitutionally ineffective, are set forth below:

Ground Two. Trial counsel was ineffective for failing to adequately

investigate the eyewitness identification claims.

Ground Three. Trial counsel was ineffective for failing to interview

Lavender’s brother, Michael “Duke” Lavender, which hindered

counsel’s ability to adequately investigate the link between the Lavender

family and Domingo Johnston.

Ground Four. Trial counsel was ineffective for failing to develop a

theory of defense that rebutted or mitigated the state’s interpretation of

his text messages.

Ground Six. Lavender’s counsel was ineffective due to cumulative

errors.

1 Lavender also states in his appellate brief that he is appealing Ground Seven, which alleges that
his trial counsel was ineffective for failing to retain a mitigation specialist. But Lavender does not
assign the dismissal of that ground as error. Although not assigned as error, we note that the issues
raised in that ground were issues that were encompassed within Grounds Eight through Eleven.

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Ground Eight. Lavender’s counsel was ineffective for failing to

present the specific sentencing factors in Miller v. Alabama [567 U.S.

460, 132 S.Ct. 2455, 183 L.Ed.2d407 (2012)] and Montgomery v.

Louisana [577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016)] and link

those factors to Lavender’s life.

Ground Nine. Lavender’s counsel was ineffective for failing to retain

and present the testimony of a forensic psychologist as mitigation at the

sentencing hearing.

Ground Ten. Lavender’s counsel was ineffective for failing to conduct

a reasonable investigation and failed to present mitigating evidence of

the child’s history and family background at the sentencing hearing.

Ground Eleven. Lavender’s counsel was ineffective for failing to

present mitigation information about the capacity for change in youth.

Law and Analysis

{¶14} We review a decision to grant or deny a petition for postconviction relief,

including the decision whether to afford the petitioner a hearing, under an abuse-of-

discretion standard. State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d

513, ¶ 38, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶

51-52, 58.

{¶15} In his first assignment of error, Lavender argues that the common pleas

court erroneously dismissed Grounds Two, Eight, Nine, Ten, and Eleven on the basis of

res judicata and, in his second assignment, contends that the court abused its discretion

in dismissing all eight grounds at issue in this appeal for failing to set forth substantive

grounds for relief. We consider these assignments of error together for ease of

discussion.

{¶16} The issue in this appeal is whether Lavender was entitled to an
evidentiary hearing on his postconviction claims of ineffective assistance of counsel.

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{¶17} In State v. Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773,

the Ohio Supreme Court addressed the standard to be used for determining whether a

hearing should be held on a postconviction petition and emphasized that it was only

addressing the standard for holding a hearing on a timely-filed postconviction petition

and not the standard for ultimately granting relief on the petition. Id. at ¶ 22.

{¶18} Under the postconviction statutes, a trial court must, before granting an

evidentiary hearing, “determine whether there are substantive grounds for relief.” Id. at

¶ 23, citing R.C. 2953.21(D). “If the petition ‘is sufficient on its face to raise an issue that

the petitioner’s conviction is void or voidable on constitutional grounds, and the claim is

one which depends upon factual allegations that cannot be determined by examination

of the files and records of the case, the petition states a substantive ground for relief.’ ”

Id., citing State v. Milanovich, 42 Ohio St.2d 46, 325 N.E2d 540 (1975).

{¶19} The Bunch court further explained that in determining whether there are

substantive grounds for relief, the trial court must consider the entirety of the record

from the trial proceedings as well as any evidence filed by the parties in postconviction

proceedings. Then, “[i]f the record does not on its face disprove the petitioner’s claim,”

the court is required to “proceed to a prompt hearing on the issues.” Id. at ¶ 24, citing

R.C. 2953.21(F).

{¶20} As noted previously, all the grounds at issue in this appeal assert a claim

for ineffective assistance of counsel. To establish that trial counsel was ineffective, a

petitioner must show that counsel’s performance was deficient, and that the deficient

performance prejudiced the defendant. Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, 220

N.E.3d 773, at ¶ 26, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). With respect to the prejudice, the petitioner must demonstrate

that there is a “reasonable probability” that counsel’s deficient performance affected the

outcome of the trial. Id., citing Strickland at 694. “ ‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’ ” Id., citing Strickland at

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695. The failure to make an adequate showing on either prong is fatal to an ineffective-

assistance-of-counsel claim. See Strickland at 697; State v. Daniels, 2018-Ohio-1701, 111

N.E.3d 708, ¶ 24 (1st Dist.).

{¶21} We briefly note that with respect to postconviction petitions asserting

grounds for relief based on ineffective assistance, res judicata does not operate to bar

those grounds where the petitioner has submitted competent evidence of ineffective

assistance outside of the trial record and where that evidence presents substantive

grounds for relief. State v. Blanton, 171 Ohio St.3d 19, 2022-Ohio-3985, 215 N.E.3d 467,

¶ 33. With respect to Grounds Two, Eight, Nine, Ten, and Eleven, the state concedes that

Lavender submitted competent evidence outside the record in support of those

postconviction claims but maintains that that evidence did not present substantive

grounds for relief.

{¶22} We now turn to evaluate each of Lavender’s ineffective-assistance claims

with respect to whether he should have been granted a hearing on each claim. We

reiterate that we are not considering whether there are substantive grounds for relief with

respect to the merits of the postconviction petition. See Bunch at ¶ 27. Therefore, we are

mindful that Lavender’s petition “need not definitively establish counsel’s deficiency or

whether [Lavender] was prejudiced by it [in order to be entitled to an evidentiary

hearing]. Instead, the petition must be sufficient on its face to raise an issue whether

[Lavender] was deprived of the effective assistance of counsel, and [Lavender’s] claim[s]

depend[] on factual allegations that cannot be determined by examining the record from

his trial.” Id.

{¶23} In a majority of these claims, the state contends that Lavender is simply

attempting to relitigate his claims by arguing that his trial counsel should have used

different strategies in defending him and discrediting the state’s evidence and theory of

the murder at trial, and thus, the state contends that Lavender’s counsel’s performance

was not deficient but within the realm of trial strategy. In response, Lavender argues that

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trial counsel’s actions in failing to present certain evidence cannot be considered trial

strategy because any such strategy was the result of an inadequate investigation of the

charges and witnesses against Lavender and inadequate preparation for his sentencing

hearing. Essentially, Lavender is contending that even if trial counsel’s performance

could be construed as strategy, it was an unreasonable strategy and thus, a deficient

performance. The defendant in Bunch raised the same argument as Lavender and in

considering that argument, the Bunch court concluded that in the context of

postconviction litigation, where courts can consider evidence outside the record, “it is

possible and appropriate to question whether a trial counsel’s decisions were in fact

deliberate and strategic and whether strategic decisions were reasonable ones. Trial

strategy is usually within the ‘wide range of reasonable professional assistance,’ but

strategy is not synonymous with reasonableness.” (Citations omitted.) Bunch, 171

Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773, at ¶ 36. Keeping this in mind, we

turn to the specific grounds for relief.

Grounds for Relief—Trial Proceedings

{¶24} Ground Two. Lavender argues that his counsel’s performance was

deficient in failing to adequately investigate the eyewitness-identification claims, and

that even though his trial counsel had believed an expert in eyewitness identification was

necessary to attack Coulter’s identification, Dr. Vallano’s testimony did not go far

enough. Dr. Vallano based his opinion on the presumption that the photo lineup was

suggestive and unfair without ever objectively evaluating it. Lavender argues that his

defense counsel should have utilized a “functional size analysis”2 of the photo array to

demonstrate its suggestiveness. To demonstrate his counsel’s deficient performance,

2 Functional size refers to the number of “filler” nonsuspects that are included in the lineup who
resemble the suspect or the description of the suspect. We note that no court in Ohio has yet ruled
on whether a functional-size analysis is either necessary or admissible to demonstrate the
suggestiveness of a photo lineup. We do not reach this issue yet as this is an evidentiary matter to
be addressed when considering the merits of Lavender’s ineffective-assistance-of-counsel claim.

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Lavender presents the affidavit of Carrie Wood, a colleague of Lavender’s trial counsel.

Wood contacted trial counsel after the hearing on Lavender’s motion to suppress

Coulter’s identification and recommended that he hire an expert to conduct a functional-

size analysis of the photo array to objectively demonstrate that the lineup was unfair. She

provided trial counsel with a list of experts who might be able to assist in that analysis.

Wood attested to the fact that trial counsel acknowledged receiving her email.

{¶25} Lavender also submitted his trial counsel’s affidavit in support. Trial

counsel attested that he had believed that Dr. Vallano was intimidated by the report of

the state’s expert, Dr. Wixted, and was reluctant to criticize it because Dr. Vallano

considered Dr. Wixted the expert in the field of eyewitness identification. Trial counsel

stated that he never discussed with Dr. Vallano ways to objectively test the suggestiveness

of the photo lineup and he did not “consider consulting additional experts on the issue of

lineup fairness” even though that was an issue at trial.

{¶26} To demonstrate prejudice, Lavender submitted the affidavit of Kaitlyn

Ensor, M.A., a doctoral candidate in the field of cognitive science whose research focuses

on eyewitness identification, and who conducted a functional-size analysis of the lineup

that Coulter viewed when identifying Lavender. The functional size of a lineup refers to

the number of viable “filler” suspects who resemble the culprit. Ensor pointed to

research that demonstrates that a six-person lineup is biased if its “effective size is under

4.80.” Ensor conducted the functional-size analysis of the lineup at issue, determined its

effective size was 3.50 and was able “to conclude with a reasonable degree of scientific

certainty that the lineup was not fair, based on a flawed selection of lineup candidates.”

Lavender maintains that because the state’s eyewitness-identification expert, Dr. Wixted,

based his opinion that Coulter’s high-confidence identification of Lavender was reliable

on the presumption that the lineup was fair, then Ensor’s testimony and analysis would

have objectively demonstrated the suggestiveness of the lineup and thus, would have

impacted the weight given to Dr. Wixted’s opinion.

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{¶27} The state maintains that Lavender has not demonstrated that trial

counsel’s performance in failing to hire an expert to conduct a functional-size analysis of

the lineup was deficient, pointing out that no court in Ohio has determined that failing

to conduct a functional-size analysis of a lineup is deficient performance. But here, in

this specific case, where the suggestiveness of the lineup was an issue at trial, where each

expert’s opinion on the reliability of Coulter’s high-confidence identification was based

on differing presumptions as to whether the lineup was suggestive, and where the

evidence submitted shows that Lavender’s trial counsel was advised that there was a

potential way to objectively test the fairness of the lineup and counsel chose not to do so,

Lavender has demonstrated that there is an issue as to whether counsel’s performance

was deficient, i.e., a reasonable strategy, and the submission of the functional-size

analysis performed by Ensor, showing the lineup to be unfair, demonstrates an issue of

prejudice. Given that evidence, we cannot say the record on its face disproves Lavender’s

claim.

{¶28} Because Lavender has submitted evidence to demonstrate that there is an

issue whether his counsel was ineffective for failing to investigate issues surrounding

eyewitness identification, we hold that the common pleas court abused its discretion in

denying Lavender an evidentiary hearing on this claim.

{¶29} Ground Three. Lavender argues that defense counsel was ineffective for

failing to interview Lavender’s brother, Michael “Duke” Lavender, because it hindered

counsel’s ability to adequately investigate the link between the Lavender family, the

West End community where Lavender lived, and Domingo Johnston. In support,

Lavender submits the affidavit of Duke Lavender. Duke attests that he called trial

counsel and asked him to visit him in prison because he had information about his

brother’s case. Lead trial counsel admits in his affidavit that he spoke with Duke but

did not follow up with him or visit him in prison. In Duke’s affidavit, he explains that

he has a longstanding feud with Johnston starting when they were in middle school.

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Duke believes that Johnston identified Lavender as the assailant in this case because

of his feud with Johnston.

{¶30} Lavender argues trial counsel has a constitutional duty to conduct a

thorough pretrial factual investigation and did not do so here. He contends that his

trial counsel could have used the information from Duke to challenge the state’s theory

that this was a “murder-for-hire” and to challenge the credibility of Domingo

Johnston’s testimony that he had overheard Lavender telling others that he was taking

a “hit” on Lipscomb. The state argues that Lavender has not demonstrated prejudice

because Duke was not credible given his criminal history. However, after reviewing

the record, we cannot say that the record disproves Lavender’s claim on its face. See

Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773, at ¶ 24. Although

Lavender’s trial counsel was able to cross-examine Johnston on his criminal history

and his habit of “snitching” on others in exchange for leniency on his criminal charges,

trial counsel could have also used the information that Duke provided regarding

Johnston’s feud with Duke and Johnston’s potential grudge against the Lavender

family to poke more holes in Johnston’s credibility. Given the importance of

Johnston’s testimony—the police were only able to identify Lavender as a suspect after

Johnston had approached police—the failure of trial counsel to further investigate the

connection between Duke and Johnston may have been prejudicial to Lavender.

{¶31} Upon our review of the record, we hold that Lavender has submitted

evidence to demonstrate a potential issue of ineffective assistance for failing to follow

up with Lavender’s brother, Duke, and thus, the common pleas court abused its

discretion in failing to hold an evidentiary hearing on this ground for relief.

{¶32} Ground Four. Lavender argues that his defense team was ineffective

because they failed to adequately explain or mitigate Lavender’s inculpatory text

messages. In support, Lavender submits the affidavit of Law Professor Andrea Dennis,

whose research has focused on “the ways in which rap lyrics, hip-hop, and more

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recently, social media are used as evidence by prosecutors in criminal trials.” In her

affidavit, Professor Dennis opines that an expert in African-American Vernacular

English should have been used to help the jury understand Lavender’s text messages.

For example, she points to the state’s interpretation of Lavender’s text that said, “You

got some money I can hold.” She states that the state provided testimony at trial that

that text meant Lavender was “asking for money to have” but Professor Dennis said

that text would more correctly be interpreted as asking for money to borrow.

{¶33} Based upon our review of the record, we hold that Lavender has not

demonstrated substantive grounds for relief regarding his claim that his counsel was

ineffective for failing to present an expert in African-American juvenile sociolect to

combat the state’s interpretation of his text messages. A review of the whole record

demonstrates that defense counsel zealously and effectively contested the state’s

interpretation of Lavender’s text messages and argued that they reflected “the

posturing of a teenager engaged in a segment of urban culture that finds such images

and talk admirable,” see Lavender, 2019-Ohio-5352, 141 N.E.3d 1000, at ¶ 85, and

effectively elicited Coulter’s admission on cross-examination that he too had engaged

in social-media behavior similar to Lavender. The evidence Lavender has submitted

in support of this postconviction claim does not demonstrate how trial counsel’s

strategy at trial was unreasonable.

{¶34} Because Lavender has not submitted substantive grounds for relief, we

hold that the trial court properly dismissed this claim without an evidentiary hearing.

{¶35} Ground Six. Lavender argues that the cumulative effect of the errors

that occurred at trial and alleged in his postconviction petition warrant the grant of a

new trial or, at a minimum, an evidentiary hearing on those specific postconviction

claims.

{¶36} Under the doctrine of cumulative error, a judgment may be reversed

when the cumulative effect of errors deprives a defendant of his or her constitutional

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rights, even though the errors individually do not rise to the level of prejudicial error.

State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623 (1997).

{¶37} Because we have reversed the common pleas court’s decision denying

Lavender an evidentiary hearing on Grounds Two and Three in his postconviction

petition, we find Ground Six to be moot and will not address it at this time. See State

v. Ibrahim, 10th Dist. Franklin No. 14AP-355, 2014-Ohio-5307, ¶ 37.

Grounds Eight, Nine, Ten, and Eleven — Sentencing

{¶38} The next four grounds all claim that Lavender’s trial counsel was

constitutionally ineffective in failing to adequately prepare for and present effective

mitigation evidence at his sentencing hearing. In Ground Eight, Lavender contends

that his trial counsel was ineffective for failing to discuss the traits of youth outlined

in two cases from the United States Supreme Court on juvenile sentencing—Miller v.

Alabama and Montgomery v. Louisiana—and then failing to present evidence to

demonstrate how those traits played out in Lavender’s life.3 More specifically,

Grounds Nine, Ten, and Eleven, respectively, contend that defense counsel was

ineffective for failing to present mitigation testimony from a forensic or clinical

psychologist, mitigation evidence of Lavender’s childhood history and family

background, and evidence of the capacity for change in youth and, specifically,

Lavender’s capacity for change.

{¶39} Under these grounds, Lavender maintains that his trial counsel was

unfamiliar with the jurisprudence on sentencing juveniles for aggravated murder and

the type of evidence necessary to provide the sentencing court with a complete picture

3 See Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery
v. Louisiana, 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), both of which discuss sentencing
factors that reflect the “distinctive (and transitory) mental traits and environmental
vulnerabilities” of youth. Miller at 473. Some of these factors include the character and record of
the juvenile; the chronological age of the juvenile and the failure to appreciate risks and
consequences; the family and home environment; the way familial and peer pressure may have
affected the juvenile; any incompetency associated with youth in navigating the legal system; and
the juvenile’s potential for rehabilitation.

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of Lavender’s youth as a mitigating factor. Further, Lavender contends that when his

trial counsel reached out to a colleague for help in preparing for the sentencing

hearing, counsel then failed to follow through with recommendations to obtain certain

evidence. Lavender maintains that his counsel’s performance was deficient and

prejudiced him because the sentencing court lacked a comprehensive understanding

of Lavender’s youthful traits and how that may have diminished his culpability in

committing the charged offense.

{¶40} In support of these claims, Lavender submits the following evidence:

(1) the affidavit of Alexis Kidd, the head of a community center in

Lavender’s neighborhood, who attested that she would have advocated

for Lavender at his sentencing hearing if she had been contacted, that

Lavender was “quiet, fun, funny, playful and did not bully others,” and

that Lavender’s mom loved him but was not stable, and she discussed

the economic reality of Lavender’s life and the deterioration of his

neighborhood;

(2) the affidavit of Michael Turner, Lavender’s high school principal,

who attested that Lavender was on a college trajectory before he was

arrested, that he was a “good kid,” “always responded appropriately,”

and was “not a troublemaker”;

(3) Lavender’s school records, including disciplinary logs that can be

construed as supporting Turner’s affidavit;

(4) Richard Rothenberg, a clinical psychologist, who interviewed

Lavender in 2019 in prison, and discussed in his report the effects of

Lavender’s chronological age on his ability to appreciate consequences,

noting that “a review of [Lavender’s] social history is consistent with the

previously described research regarding adolescent brain development

in that he did not appear to fully appreciate the consequences of his

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actions * * * because * * * his prefrontal cortex is still developing”;

Lavender’s home environment and his inability to escape the negative

aspects of that environment; Lavender’s inability to assert his rights

during the criminal process due to his youth; and Lavender’s capacity

for change or rehabilitation, noting that Lavender’s “records during his

incarceration suggest there is the possibility of rehabilitation and there

is nothing in his history to suggest he possess irretrievably depraved

character”;

(5) the affidavit of Carrie Wood, a colleague of defense counsel, attesting

that although Lavender’s trial counsel was worried about Lavender’s

potential life-without-parole sentence if convicted, trial counsel did not

consult her on preparing for sentencing until after a verdict had been

reached at which time she provided trial counsel with a variety of

juvenile sentencing material; she advised trial counsel to hire a

mitigation specialist and to conduct mitigation interviews with family

and friends as well as have a juvenile-brain-development expert

interview Lavender;

(6) the affidavit of a junior attorney on Lavender’s defense team, who

attested that trial counsel did not start preparing for mitigation until

after a verdict had been reached and that counsel had been unfamiliar

with the jurisprudence surrounding sentencing for juveniles convicted

of aggravated murder;

(7) sentencing guidelines for juveniles.

{¶41} The state argues that Lavender’s evidence is simply positing an

alternative theory of mitigation and that it is insufficient to warrant an evidentiary

hearing. We disagree. Lavender’s argument is not simply that there was “better”

mitigation evidence to present, but that because his trial counsel failed to perform an

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adequate mitigation investigation, trial counsel was unable to present effective

evidence of Lavender’s youth at the sentencing hearing. In the context of

postconviction litigation, a defendant may argue lack of preparation and investigation

when submitting evidence outside the trial record to support such an argument, see

Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773, at ¶ 36, and Lavender

has done so here.

{¶42} After reviewing the entire record, including the evidence presented with

the postconviction petition, we hold that the common pleas court abused its discretion

in failing to hold an evidentiary hearing on these grounds for relief related to

sentencing. Lavender presented evidence demonstrating that there was an issue

whether trial counsel was ineffective in preparing and presenting mitigation evidence

at the sentencing hearing. The junior attorney on Lavender’s defense team attested

that trial counsel did not start preparing for the sentencing hearing until after a verdict

had been reached, despite being concerned about the potential life-without-parole

sentence for a juvenile offender and having an unfamiliarity with the sentencing

jurisprudence. Further, although trial counsel reached out to Woods to help prepare

for the sentencing hearing, trial counsel either chose to not follow the advice of Woods

or ran out of time, because trial counsel failed to conduct any mitigation interviews

with family, friends or community members familiar with Lavender or have an

updated clinical psychologist interview completed. In light of the severity of the

sentence that Lavender was facing,4 evidence of trial counsel’s minimal investigation

into mitigation raises an issue of ineffective assistance of counsel.

Conclusion

4 The Ohio Supreme Court equates a life sentence without the possibility of parole, when imposed
upon a juvenile offender, to the death penalty. See State v. Long, 138 Ohio St.3d 478, 2014-Ohio-
849, 8 N.E.3d 890, ¶ 27.

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{¶43} Based on the foregoing, we sustain in part Lavender’s assignments of

error to the extent they assert the common pleas court erroneously dismissed Grounds

Two, Three, Eight, Nine, Ten, and Eleven without first holding an evidentiary hearing.

Lavender submitted evidence outside the record to raise an issue of ineffective

assistance of counsel in challenging the eyewitness and informant testimony and in

preparing for and presenting mitigation evidence at sentencing, and thus,

demonstrated substantive grounds for relief entitling him to a hearing with respect to

these claims.

{¶44} Accordingly, the common pleas court’s judgment is reversed in part and

the cause is remanded for an evidentiary hearing on Grounds Two, Three, Eight, Nine,

Ten, and Eleven. The lower court’s judgment is affirmed in all other respects.

Judgment affirmed in part, reversed in part, and cause remanded.

CROUSE, P.J., and BOCK, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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