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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 658 {¶ 1} Petitioner-appellant Patrick L. Leonard has taken the instant appeal from the denial of his petition for postconviction relief. He advances on appeal six assignments of error. We hold that Leonard was entitled to a hearing on his claim challenging the trial court's order that he wear a stun belt during his trial. Accordingly, we reverse in part the judgment of the common pleas court denying his postconviction petition.
{¶ 2} In June 2001, a Hamilton County jury found Leonard guilty of aggravated murder, felonious assault, attempted rape, and kidnapping, in connection with the shooting death of Dawn Flick and the wounding of Ryan Gries and Frank Minges. The trial court imposed for the charge of aggravated murder a sentence of death. Leonard's direct appeal remains pending before the Ohio Supreme Court.
{¶ 3} On July 30, 2002, Leonard filed with the common pleas court a petition, pursuant to R.C. 2953.21, to vacate or to set aside his convictions. He presented in his petition twelve claims for relief. The common pleas court denied the petition, and this appeal ensued.
{¶ 5} The common pleas court's adoption of the findings of facts and conclusions of law submitted by the state did not, by itself, constitute error. See State v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905. And we are unable to conclude that Leonard was thereby prejudiced, when the findings of fact and conclusions of law covered and pertained to the issues presented and provided the *Page 659 legal and evidentiary bases for the court's decision. See id., paragraph three of the syllabus; accord State v. Issa (Sept. 29, 2000), 1st Dist. No. C-000091, 2000 WL 1434159. We, therefore, overrule the first and second assignments of error.
{¶ 7} To prevail on a postconviction claim, the petitioner must demonstrate a denial or infringement of his rights in the proceedings resulting in his conviction that rendered the conviction void or voidable under the Ohio Constitution or the United States Constitution. See R.C.2953.21(A)(1). In advancing such a claim, the petitioner bears the initial burden of demonstrating, through the petition and any supporting affidavits and the files and records of the case, "substantive grounds for relief." See R.C. 2953.21(C).
{¶ 8} A postconviction claim is subject to dismissal without a hearing if the petitioner has failed to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. See id.; State v. Pankey (1981),68 Ohio St.2d 58, 22 O.O.3d 262, 428 N.E.2d 413; State v. Jackson (1980), 64 Ohio St.2d 107, 18 O.O.3d 348, 413 N.E.2d 819. Conversely, "the court shall proceed to a prompt hearing on the issues" if "the petition and the files and records of the case show the petitioner is * * * entitled to relief." R.C. 2953.21(E).
{¶ 9} We note that the common pleas court denied most of Leonard's claims for relief, in whole or in part, under the doctrine of res judicata. "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding[,] except an appeal from that judgment, any defense or any claimed lack of due process that was raisedor could have been raised by the defendant at the trial [that] resulted in that judgment of conviction or on an appeal from that judgment." (Emphasis sic.) State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189,226 N.E.2d 104, paragraph nine of the syllabus. Thus, a common pleas court may apply the doctrine of res judicata to dismiss a postconviction claim, when the claim presents a matter that could fairly have been determined *Page 660 without resort to evidence dehors the record. Id.; State v. Cole (1982),2 Ohio St.3d 112, 114, 2 OBR 661, 443 N.E.2d 169.
{¶ 10} We further note that Leonard's third and fourth assignments of error present, in essence, a challenge to the common pleas court's failure to permit discovery. We have long held that the postconviction statutes do not contemplate discovery in the initial stages of a postconviction proceeding. See State v. Zuern (Dec. 4, 1991), 1st Dist. Nos. C-900481 and C-910229, 1991 WL 256497; accord State v. Byrd (2001),145 Ohio App.3d 318, 332-333, 762 N.E.2d 1043. We have also determined that the failure of the statutes to so provide does not contravene any state or federal constitutional right. See State v. Jones (Dec. 29, 2000), 1st Dist. No. C-990813, 2000 WL 1886307. Thus, Leonard was entitled to discovery to develop his claims and the experts to aid in that discovery only if the petition and its supporting evidentiary material demonstrated substantive grounds for relief. See State v. Issa (Dec. 21, 2001), 1st Dist. No. C-000793, 2001 WL 1635592.
{¶ 12} Crim.R. 17 authorizes a court to issue a subpoena only to compel the attendance of a witness or the production of documents at a proceeding over which the trial court has jurisdiction. The rule does not compel a prospective witness to attend, or provide a means for discovery at, a pretrial interview with law enforcement officials. State v.Campbell (Jan. 8, 1997), 1st Dist. No. C-950746, 1997 WL 5182 (adopting the rule of United States v. Keen [C.A.6, 1975], 509 F.2d 1273); accordState v. Cleveland Plain Dealer (June 15, 1979), 8th App. Nos. 40531, 40532, and 40533. The remedy for a violation of the rule must be tailored to the prejudice sustained by the accused. Therefore, no remedial action is required when the accused has not been prejudiced. See Campbell, supra.
{¶ 13} The evidence offered in support of the second claim showed that the prosecution misused the Crim.R. 17 subpoena power. But Leonard failed to demonstrate how the prosecution's misconduct in this regard had prejudiced him. *Page 661 We, therefore, hold that the common pleas court properly denied the second claim for relief, because Leonard failed to support the claim with evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. See R.C. 2953.21(C); Pankey, supra; Jackson, supra.
{¶ 16} To prevail on a claim of ineffective assistance of defense counsel, a postconviction petitioner must demonstrate (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced him. See Strickland v.Washington (1984), 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674;State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. To establish prejudice, the petitioner must demonstrate that counsel's deficient performance "so undermined the proper functioning of the adversarial process that the trial could not have reliably produced a just result."State v. Powell (1993), 90 Ohio App.3d 260, 266, 629 N.E.2d 13 (citing Lockhart v. Fretwell [1993], 506 U.S. 364, 113 S.Ct. 838,122 L.Ed.2d 180; and Strickland, supra).
{¶ 18} In his sixth claim, Leonard also challenged the adequacy of his trial counsel's cross-examination of certain state's witnesses, counsel's failure to present testimony by his sister, and counsel's failure to challenge the underrepresentation of African-Americans on his petit jury venire. And in his fifth claim, Leonard assailed the adequacy of the investigation conducted by counsel in preparing for the guilt phase of his trial.
{¶ 19} The evidence offered in support of these challenges to counsel's competence demonstrated neither counsel's violation of an essential duty to Leonard nor a reasonable probability that, but for the alleged omissions of counsel, either independently or collectively, the results of the guilt phase of his trial would have been different. SeeBradley, supra. Leonard thus failed to sustain his initial burden of demonstrating substantive grounds for relief. Accordingly, we hold that the common pleas court properly denied without a hearing the sixth claim and the relevant aspects of his fifth claim. See Pankey, supra;Jackson, supra.
{¶ 22} In asserting his "right" to a competent mental-health evaluation, Leonard relied upon the decision of the United States Supreme Court in Ake v. Oklahoma (1985), 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53. This reliance was misplaced.
{¶ 23} The Supreme Court in Ake held that due process requires the government to provide an indigent criminal defendant with the funds to obtain expert assistance, upon a showing of benefit and fairness to the defendant. See State v. Mason (1998), 82 Ohio St.3d 144, 150,694 N.E.2d 932. But Leonard was not indigent and thus was not provided with a mental-health expert at government expense. Moreover, we note that while a defendant charged with aggravated murder has a statutory right to "reasonably necessary" expert assistance, see R.C. 2929.024, a postconviction claim must be predicated upon the denial or infringement of a state or federal constitutional right. See R.C. 2953.21(A)(1). Finally, we agree with the Sixth Appellate District that the decision inAke cannot reasonably be read to recognize a constitutionally based right to the effective assistance of an appointed mental-health expert, independent of the constitutional right to the effective assistance of counsel. See State v. Baston (Nov. 17, 2000), 6th Dist. No. L-98-1264, 2000 WL 1713768; accord Wilson v. Greene (C.A.4, 1998), 155 F.3d 396,401; Harris v. Vasquez (C.A.9, 1990), 949 F.2d 1497, 1518; Silagy v.Peters (C.A.7, 1990), 905 F.2d 986, 1013; Waye v. Murray (C.A.4, 1989),884 F.2d 765, 767; Davie v. Mitchell (N.D.Ohio 2003), 291 F.Supp.2d 573,616. Thus, Leonard's eighth claim was reduced to yet another challenge to trial counsel's competence in presenting the case in mitigation.
{¶ 24} Leonard supported his eighth claim with a report prepared by a licensed clinical psychologist at the behest of the Office of the Ohio Public Defender, highlighting alleged deficiencies in the evaluation conducted and the testimony presented at the mitigation hearing by the psychiatrist retained by the defense. These alleged deficiencies included the psychiatrist's failure to identify and testify to the dysfunctional nature of Leonard's social and sexual relationships and his mother's culpability in his emotional development. The introduction of much of this evidence would only have served to undermine the defense's mitigation strategy. And, again, proof of the existence of evidence not presented in *Page 664 mitigation that supported an alternative theory of mitigation did not prove counsel's ineffectiveness, when, as here, the record demonstrated that counsel had presented the case in mitigation competently in view of the facts available to them. See State v. Post, supra. Thus, upon our determination that Leonard failed to demonstrate substantive grounds for relief, we hold that the common pleas court properly denied the eighth claim. See Pankey, supra; Jackson, supra.
{¶ 26} The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel and, in doing so, secures him the assistance of counsel free from conflicts of interest. See Glasser v.United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. To prevail on a claim that he was denied his right to conflict-free counsel, a defendant must demonstrate "an actual conflict of interest." Wood v.Georgia (1981), 450 U.S. 261, 273, 101 S.Ct. 1097, 67 L.Ed.2d 220. An "actual conflict," for purposes of the Sixth Amendment, is "a conflict of interest that adversely affects counsel's performance." Mickens v.Taylor (2002), 535 U.S. 162, 172, 122 S.Ct. 1237, 152 L.Ed.2d 291, fn. 5. Therefore, to prove an actual conflict of interest, the defendant must show that his counsel "actively represented conflicting interests" and that the conflict "actually affected the adequacy of his representation." See id. (quoting Cuyler v. Sullivan [1980], 446 U.S. 335, 349-350,100 S.Ct. 1708, 64 L.Ed.2d 333); accord State v. Pelphrey,149 Ohio App.3d 578, 583, 2002-Ohio-5491, 778 N.E.2d 129; State v.Haberek (1988), 47 Ohio App.3d 35, 38, 546 N.E.2d 1361.
{¶ 29} Leonard supported this allegation with copies of the complaints and entries filed in the civil actions. This evidentiary material showed that the victims had predicated their civil claims against the company upon the company's ownership of the van Leonard had driven to the murder victim's home, and that the plaintiffs in each action had voluntarily dismissed their claims against the company before trial.
{¶ 30} The dismissal of the company as a defendant in the civil actions left Leonard solely liable on the victims' claims. In that sense, the evidence might be said to have permitted a conclusion that counsel, in securing the company's dismissal from the victims' actions, had incurred a duty adverse to their duties in defending Leonard in the civil action. But the evidence disclosed no duty incurred by counsel in defending the company in the civil action that might be said to have been adverse to or in conflict with counsel's duties in defending Leonard against the criminal charges. Thus, Leonard failed to show an actual conflict arising from his counsel's simultaneous representation of him in his murder trial and of the company in the victims' civil actions.
{¶ 32} A criminal defense counsel's "breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel." Nix v. Whiteside (1986), 475 U.S. 157, 165,106 S.Ct. 988, 89 L.Ed.2d 123. Moreover, the evidence offered in support of Leonard's petition, *Page 666 coupled with the record of the proceedings at trial, showed the existence of a multitude of witnesses to "the dysfunctional dynamics of the Leonard family." In the absence of evidence that only his counsel could have provided this "critical information," Leonard failed to demonstrate that a conflict of interest arose from, and persisted as a consequence of, his counsel's failure to conform to the ethical standard by withdrawing from representing him and instead testifying on his behalf at trial.
{¶ 34} Upon our determination that Leonard failed to demonstrate in any respect a violation of his Sixth Amendment right to conflict-free counsel, we hold that the common pleas court properly denied his third claim for relief without a hearing. See Pankey, supra;Jackson, supra.
{¶ 36} As we noted supra, a postconviction petitioner is not entitled to discovery to develop a claim if the claim and its supporting evidentiary material do not demonstrate substantive grounds for relief. See State v. Issa, supra. And a postconviction claim is subject to dismissal without a hearing if the petitioner has failed to support the claim with evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. See R.C. 2953.21(C); Statev. Pankey, supra; State v. Jackson, supra. In the absence of some demonstration of such grounds, we conclude that the common pleas court properly dismissed Leonard's ninth claim without a hearing and without permitting discovery on the matter. Accord State v. Lynch (Dec. 21, 2001), 1st Dist. No. C-010209, 2001 WL 1635760.
{¶ 40} The record discloses that, prior to trial, the defense filed a motion requesting that Leonard be permitted to appear without restraints at all proceedings before the trial court because he had not shown himself to pose a flight or security risk. The trial court essentially denied the motion, declaring that it would accept the recommendation of security made by the Hamilton County Sheriff.
{¶ 41} Leonard supported his postconviction claim with an instruction manual that the Hamilton County Sheriff's Office had issued to its Court Services Division, outlining the purposes and uses of the stun belt, and a notification form that Leonard had signed, advising him of the sheriff's requirement that he wear the belt, the circumstances under which the belt might be activated, and the consequences of its activation.
{¶ 42} Leonard supported his claim with his own affidavit and the affidavits of five siblings who had attended his trial. Leonard asserted that he had had no prior criminal record, and that he had presented neither disciplinary problems while in jail nor security problems during pretrial proceedings. He supported this assertion with copies of the records from his confinement. He further averred that the deputy sheriffs who had wielded the stun belt's remote control had warned him that they would activate the belt if he said anything that they deemed "verbally aggressive" or if he made what they perceived as a "quick move[ment]." Leonard insisted that these and similar admonitions, coupled with his knowledge of the consequences of the belt's activation, had distracted him from the proceedings at trial and had made him reluctant to interact with his counsel.
{¶ 43} In their affidavits, Leonard's siblings attested to their observations that, throughout the trial, two deputy sheriffs had stood close by Leonard's side, even when, during the penalty phase of the trial, he had taken the stand to make his unsworn statement. Leonard's siblings asserted, variously, that he or she had *Page 669 noticed the stun belt because the belt had been bulky, because Leonard had been apparently discomfited by it, and because the deputies had constantly hovered about Leonard and had openly exchanged the stun belt's remote control.
{¶ 44} The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant a fair trial, an important component of which is the presumption of innocence. See Coffin v. United States (1895), 156 U.S. 432,453, 15 S.Ct. 394, 39 L.Ed. 481. The Sixth Amendment secures the defendant's right to confer with his counsel and to assist in his defense. The placing of restraints upon a criminal defendant during his trial may significantly affect the jury's perception of the defendant, and may thus infringe upon the presumption of innocence, by stripping the defendant of the physical indicia of innocence. Restraints may also impede the defendant's ability, and thus implicate his Sixth Amendment right, to confer with his counsel and to assist in his defense. Moreover, the use of restraints may "affront * * * the very dignity and decorum of judicial proceedings that the judge[,] [by imposing the restraints, was] seeking to uphold." Illinois v. Allen (1970),397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353.
{¶ 45} The decision to use restraints is committed to the sound discretion of the trial court. Id., 397 U.S. at 343-344, 90 S.Ct. 1057,25 L.Ed.2d 353. But because their use is an "inherently prejudicial practice," Holbrook v. Flynn (1986), 475 U.S. 560, 568-569, 106 S.Ct. 1340,89 L.Ed.2d 525, restraints may be employed only as a "last resort,"Illinois v. Allen, 397 U.S. at 344, 90 S.Ct. 1057, 25 L.Ed.2d 353, and only when justified "by an essential state interest specific to each trial." Holbrook v. Flynn, 475 U.S. at 568-569, 106 S.Ct. 1340,89 L.Ed.2d 525; see, also, United States v. Brooks (C.A.7, 1997),125 F.3d 484, 502 (holding that the risk of prejudice inherent in restraints also entitles a defendant to the minimum restraints necessary and to the least obvious ones).
{¶ 46} Neither the United States Supreme Court nor the Ohio Supreme Court has addressed the practice of using a stun belt to restrain a criminal defendant during his trial.1 Courts that have addressed the issue have recognized that the use of a stun belt raises all of the concerns surrounding the use of traditional in-court restraints and presents some risks of its own. For example, placing a stun belt on a defendant who is all too aware of the possible consequences of the belt's activation presents "a far more substantial risk of interfering with [his] Sixth Amendment right to confer with counsel than do leg shackles" and may further *Page 670 affect his right to be present at trial and to participate in his defense by providing "a considerable impediment to [his] ability to follow the proceedings and take an active interest in the presentation of his case."United States v. Durham (C.A.11, 2002), 287 F.3d 1297, 1305-1306. Moreover, wearing a stun belt may lead to an "increase in anxiety" that may "materially impair and prejudicially affect" a defendant's ability, and thus his right, to testify on his own behalf. People v. Mar (2002),28 Cal.4th 1201, 1224, 124 Cal.Rptr.2d 161, 52 P.3d 95. Therefore, courts have subjected the "decision to use a stun belt * * * to at least the same close judicial scrutiny required for the imposition of other physical restraints." United States v. Durham, 287 F.3d at 1306.
{¶ 47} The Ohio Supreme Court has declared that "the presence of restraints tends to erode the presumption of innocence that our system attaches to every defendant." State v. Franklin, 97 Ohio St.3d 1,2002-Ohio-5304, 776 N.E.2d 26, at ¶ 79. Therefore, "[t]he usual practice * * * is for a defendant to appear in court while free of [restraints]," id., and a trial court may order a defendant to appear in restraints only under "unusual circumstances."
{¶ 48} The trial court is uniquely situated to determine the risks of violence or escape, upon its consideration of "the [defendant's] actions both inside and outside the courtroom, as well as his demeanor while court is in session." Id. For that reason, the decision to impose restraints is committed to the sound discretion of the trial court. SeeState v. Richey (1992), 64 Ohio St.3d 353, 358, 595 N.E.2d 915.
{¶ 49} The Supreme Court in State v. Franklin, supra, 97 Ohio St.3d 1,776 N.E.2d 26, at ¶ 82, recognized that a hearing on the need for restraints served to facilitate meaningful appellate review. While it declined to set down an "absolute rule," the court "stress[ed] that the preferred and encouraged practice prior to [imposing restraints upon] a defendant during any phase of trial is to hold a hearing on the matter." Id. With or without a hearing, a trial court's exercise of its discretion to impose restraints may not be disturbed on appeal if the record discloses "facts and circumstances surrounding [the] defendant [that] illustrate a compelling need to impose exceptional security procedures." Id.
{¶ 50} In the absence of a hearing on the need for restraints, the record of the proceedings at Leonard's trial manifested no such need. Leonard stood charged with a variety of violent crimes. But the violent nature of the crimes for which Leonard was being tried could not, standing alone, justify the requirement that Leonard wear the stun belt. See Miller v. State (Fla.App. 2003), 852 So.2d 904, 906 (noting that "allowing the charges of violence for which [a defendant was standing] trial to justify the use of restraint devices is circular reasoning that offends the presumption of innocence and [hence the defendant's] right to *Page 671 a fair trial"). And the record at this time otherwise disclosed no circumstance that might be said to have "illustrate[d] a compelling need to impose exceptional security procedures."
{¶ 51} The evidence submitted by Leonard in support of his postconviction petition showed that he had had no criminal record and that he had displayed no violent tendencies either while in the custody of the sheriff's office or during the proceedings before the trial court that had preceded the denial of his motion to appear before the jury without restraints. As we noted supra, Leonard's theory of defense and mitigation (which we have, at the state's urging, found to be at least competent) was that Leonard was not a violent man who had visited his violent nature upon the victims but an essentially peaceful man who had acted out of character on the night in question. The evidence offered by Leonard in support of his petition showed that the stun belt was discernible to spectators in the courtroom and that the stun belt could also have been discernible to the jurors. Leonard argues that the apparent presence of these restraints would have suggested to the jurors that Leonard was not capable of self-restraint.
{¶ 52} Leonard's petition, with its supporting affidavits and the files and the records of the case, established his entitlement to a hearing on his first postconviction claim. See R.C. 2953.21(E). We, therefore, hold that the common pleas court erred when it dismissed the first claim without a hearing. Accordingly, we sustain the third through sixth assignments of error to the extent that they challenge the dismissal of Leonard's first postconviction claim without a hearing. And upon our determination that the common pleas court properly dismissed the remaining postconviction claims, we overrule the balance of those assignments of error.
Judgment accordingly.
DOAN, P.J., SUNDERMANN and GORMAN, JJ., concur.
1 In State v. Smith, 1st Dist. No. C-020610, 2004-Ohio-250, 2004 WL 102285, the appellant presented this court with a challenge to the trial court's order that he wear a stun belt during his trial. But our reversal of the judgment of conviction on other grounds precluded us from addressing this challenge on its merits. *Page 672