[Cite as State v. D'Agostino, 2016-Ohio-1282.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.    14CA010707

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TINA D'AGOSTINO                                       COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   10CR080181

                                 DECISION AND JOURNAL ENTRY

Dated: March 28, 2016



        MOORE, Judge.

        {¶1}     Defendant-Appellant Tina D’Agostino appeals from the judgment of the Lorain

County Court of Common Pleas denying her petition for post-conviction relief without a hearing.

We affirm.

                                                 I.

        {¶2}     We previously summarized the history of this case on direct appeal from the

criminal convictions as follows:

        On the morning of February 27, 2010, [Ms.] D’Agostino and her live-in
        boyfriend, Steven Augustus, had a heated argument. [Ms.] D’Agostino ultimately
        retreated to their master bedroom and locked herself in while [Mr.] Augustus was
        taking a shower. The situation escalated when [Mr.] Augustus tried to gain entry
        into the bedroom and [Ms.] D’Agostino refused to let him in. [Mr.] Augustus
        then retrieved several tools from the garage and used the tools to open the
        bedroom door. When [Mr.] Augustus opened the door, [Ms.] D’Agostino shot
        him. She then took [Mr.] Augustus’ truck and drove off while [Mr.] Augustus
        stumbled to a neighbor’s house for help.

        A grand jury indicted [Ms.] D’Agostino on each of the following counts: (1)
        felonious assault, in violation of R.C. 2903.11(A)(2), and an attendant firearm
        specification; (2) theft, in violation of R.C. 2913.02(A)(1); and (3) domestic
                                                 2


       violence, in violation of R.C. 2919.25(A). Subsequently, the matter proceeded to
       a jury trial. At trial, [Ms.] D’Agostino presented expert testimony on battered
       woman’s syndrome, and the State presented expert testimony on rebuttal. The
       jury found [Ms.] D’Agostino not guilty of theft, but guilty of the lesser included
       offense of unauthorized use of a motor vehicle, in violation of R.C. 2913.03(A).
       Additionally, the jury found her guilty of felonious assault, that charge’s attendant
       firearm specification, and domestic violence. The trial court sentenced [Ms.]
       D’Agostino on all counts for a total of eight years in prison.

State v. D’Agostino, 9th Dist. Lorain No. 12CA010304, 2014-Ohio-551, ¶ 2-3.

       {¶3}    Ms. D’Agostino filed a notice of appeal with this Court. There she argued that

her trial counsel had provided ineffective assistance. See id. at ¶ 5. Specifically, she asserted

that trial counsel suffered from medical complications after childbirth that impaired her

performance, that trial counsel was ineffective in failing to object to the testimony of the State’s

rebuttal expert, and that trial counsel was ineffective for stipulating to the admissibility of the

State’s expert report. See id. at ¶ 5, 7, 10. Additionally, Ms. D’Agostino argued that the trial

court erred in giving a “duty to retreat” instruction, that the guilty verdicts for felonious assault

and domestic violence were against the manifest weight of the evidence, and that the trial court

erred in sentencing her on allied offenses. See id. at ¶ 25, 28, 46. We concluded all of her

arguments were without merit, except for her claim with respect to allied offenses. See id. at ¶

49.

       {¶4}    While the appeal was pending on the criminal case, Ms. D’Agostino filed a

petition for post-conviction relief pursuant to R.C. 2953.21 and a motion to allow further

supplementation of the petition. In her petition she argued that she had been denied effective

assistance of counsel. She asserted that her trial counsel’s “physical and mental difficulties

continued to be an impediment to her ability to render effective [assistance] of counsel.” She

attached several affidavits to her petition in support of her argument. Ms. D’Agostino further

maintained that an example of the ineffective assistance caused by trial counsel’s unspecified
                                                     3


illness was trial counsel’s failure to properly object to the trial court’s self-defense instruction.

Additionally, Ms. D’Agostino pointed to trial counsel’s decision to stipulate to the admissibility

of the State’s expert report as another example of ineffective assistance.             Finally, Ms.

D’Agostino maintained that her expert at trial, James R. Eisenberg, Ph.D., would provide

evidence of trial counsel’s ineffectiveness. She maintained that Dr. Eisenberg believed that trial

counsel engaged in insufficient witness preparation, did not understand how to question an

expert witness, and failed to emphasize the self-defense implications inherent in his testimony.

The State responded in opposition. Subsequently, Ms. D’Agostino filed a motion to supplement

the petition with an affidavit of Dr. Eisenberg, which the trial court granted in its ruling on her

petition.

        {¶5}    Prior to the trial court ruling on Ms. D’Agostino’s petition, this Court issued its

decision in her direct appeal. The trial court, in denying Ms. D’Agostino’s petition, concluded

that Ms. D’Agostino’s arguments with respect to trial counsel’s failure to object to the self-

defense jury instruction and trial counsel’s stipulation to the State’s expert report were barred by

res judicata.   The trial court concluded that Ms. D’Agostino’s allegations concerning trial

counsel having an undisclosed ailment that impaired her performance were speculative and not

supported by sufficient grounds. The trial court also determined that Dr. Eisenberg’s testimony

mirrored that of his expert report and that Ms. D’Agostino failed to demonstrate that further

preparation or a different manner of questioning would have altered the trial result. Thus, the

trial court denied her petition without a hearing.

        {¶6}    Ms. D’Agostino has appealed, raising a single assignment of error for our review.



                                                 II.
                                                 4


                                  ASSIGNMENT OF ERROR

          THE TRIAL COURT ERRED IN DENYING [MS.] D’AGOSTINO’S
          PETITION FOR POST-CONVICTION RELIEF, FILED PURSUANT TO R.C.
          [] 2953.21, WITHOUT AN EVIDENTIARY HEARING AS PROVIDED BY
          SAID STATUTE.

          {¶7}   Ms. D’Agostino argues that the trial court erred in denying her petition without

holding a hearing. Based on Ms. D’Agostino’s limited arguments, we do not agree.

          {¶8}   We begin by noting that it does not appear that Ms. D’Agostino challenges the

trial court’s conclusion that some of the arguments in her petition were barred by res judicata in

light of this Court’s opinion in her direct appeal. Accordingly, this opinion will not review those

issues.

          {¶9}   “This Court reviews a trial court’s decision to deny a post-conviction relief

petition for an abuse of discretion.” State v. Ross, 9th Dist. Summit No. 27180, 2014-Ohio-2038,

¶ 6. “Likewise, ‘[w]e review a trial court’s decision not to hold a hearing on a petition for post-

conviction relief for an abuse of discretion.’” Id., quoting State v. Chesrown, 9th Dist. Summit

No. 26336, 2014-Ohio-680, ¶ 7. “An abuse of discretion implies unreasonable, arbitrary, or

unconscionable conduct by the court.” Chesrown at ¶ 7, citing Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

          {¶10} “R.C. 2953.21(A)(1)(a) permits a person who has been convicted of a criminal

offense to petition the court for post-conviction relief where ‘there was such a denial or

infringement of the person’s rights as to render the judgment void or voidable under the Ohio

Constitution or the Constitution of the United States * * *.’”        Ross at ¶ 7, quoting R.C.

2953.21(A)(1)(a). “If the trial court agrees, it may ‘vacate or set aside the judgment or sentence

or [ ] grant other appropriate relief.’” Ross at ¶ 7, quoting R.C. 2953.21(A)(1)(a). “Before

granting a hearing on a petition * * * , the court shall determine whether there are substantive
                                                 5


grounds for relief. In making such a determination, the court shall consider, in addition to the

petition, the supporting affidavits, and the documentary evidence, all the files and records

pertaining to the proceedings against the petitioner, including, but not limited to, the indictment,

the court’s journal entries, the journalized records of the clerk of the court, and the court

reporter’s transcript.” R.C. 2953.21(C). “Unless the petition and the files and records of the

case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on

the issues even if a direct appeal of the case is pending.” R.C. 2953.21(E).

       {¶11} Thus, “[a] hearing is not automatically required for every petition for post-

conviction relief .” Chesrown at ¶ 8, quoting State v. Sales, 9th Dist. Summit No. 23498, 2007-

Ohio-4136, ¶ 7. “The trial court serves a gatekeeping function in the post[-]conviction relief

process. The gatekeeping function includes the trial court’s decision regarding the sufficiency of

the facts set forth by the petitioner and the credibility of the affidavits submitted.” (Internal

quotations and citations omitted.) Ross at ¶ 7. “[A] trial court properly denies a defendant’s

petition for post[-]conviction relief without holding an evidentiary hearing where the petition, the

supporting affidavits, the documentary evidence, the files, and the records do not demonstrate

that petitioner set forth sufficient operative facts to establish substantive grounds for relief.”

State v. Calhoun, 86 Ohio St.3d 279 (1999), paragraph two of the syllabus.

       {¶12} Ms. D’Agostino’s petition asserted she was entitled to relief based upon

ineffective assistance of counsel. “In evaluating claims of ineffective assistance of counsel, a

two-step process is used.     First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Internal

quotations and citations omitted.) State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 61.
                                                 6


“Second, the defendant must show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial *

* *.” (Internal quotations and citations omitted.) Id.

       On the issue of counsel’s ineffectiveness, the petitioner has the burden of proof
       because in Ohio, a properly licensed attorney is presumed competent. In order to
       overcome this presumption, the petitioner must submit sufficient operative facts
       or evidentiary documents that demonstrate that the petitioner was prejudiced by
       the ineffective assistance. To demonstrate prejudice, [t]he defendant must show
       that there is a reasonable probability that, but for counsel’s unprofessional errors,
       the result of the proceeding would have been different. A reasonable probability
       is a probability sufficient to undermine confidence in the outcome.

(Internal citations and quotations omitted.) Gondor at ¶ 62. Thus, “[b]efore a hearing is granted,

the petitioner bears the initial burden in a post-conviction proceeding to submit evidentiary

documents containing sufficient operative facts to demonstrate the lack of competent counsel and

also that the defense was prejudiced by counsel’s ineffectiveness.” State v. Jackson, 64 Ohio

St.2d 107, 111 (1980). “Broad assertions without a further demonstration of prejudice do not

warrant a hearing for all post-conviction petitions. General conclusory allegations to the effect

that a defendant has been denied effective assistance of counsel are inadequate as a matter of law

to impose an evidentiary hearing.” Id.

       {¶13} Ms. D’Agostino claimed in her petition that “she received ineffective assistance

of counsel due to the physical and mental difficulties that [trial counsel] experienced at the time

of trial.” The basis of this concern appears to stem from the fact that trial counsel requested a

continuance of the original trial date because trial counsel was recovering from a difficult

surgical child birth. The continuance was granted and nothing in the record reflects that trial

counsel requested any further continuances based upon any health issues. See also D’Agostino,

2014-Ohio-551, at ¶ 5-8.      In her petition, Ms. D’Agostino asserted that, nonetheless, trial

counsel’s “physical and mental difficulties continued to be an impediment to her ability to render
                                                  7


effective [assistance] of counsel.” To support her contention, Ms. D’Agostino presented five

affidavits, each from a relative.

          {¶14} Each of the affiants averred that trial counsel appeared nervous during trial. Some

of the affiants observed trial counsel’s hands shaking and trembling. The affiants also provided

observations about trial counsel’s appearance.        Both Ms. D’Agostino’s sister and mother

observed that trial counsel’s “hair was falling out” in “gobs[,]” and that trial counsel appeared to

be suffering from an “undisclosed, unknown physical ailment.” Ms. D’Agostino’s sister also

averred that trial counsel’s dress and appearance indicated to her that “something was not right

with her.”

          {¶15} In addition, several of the affiants indicated that a conversation with trial

counsel’s mother caused them concern. Ms. D’Agostino’s sister, cousin, and mother averred that

they sat near trial counsel’s mother who revealed that she was concerned about trial counsel

because “she had been sick.” Ms. D’Agostino’s sister, cousin, father, and mother indicated that

trial counsel’s mother told them that trial counsel had never tried a domestic violence case

before.

          {¶16} The affiants who were also trial witnesses expressed concern over how they were

prepared for trial and with trial counsel’s preparation and performance. Ms. D’Agostino’s sister

and cousin averred that trial counsel’s associate prepared her for her testimony, but only spent

less than five minutes doing so. Ms. D’Agostino’s mother and father indicated that they had no

pretrial preparation for their testimony. Ms. D’Agostino’s cousin observed that, during breaks,

trial counsel would ask the family how she was doing; Ms. D’Agostino’s cousin found this

behavior odd and indicative of a lack of confidence. Both Ms. D’Agostino’s mother and father

averred that trial counsel made “few objections” and Ms. D’Agostino’s nephew, who was not a
                                                  8


witness, believed that trial counsel “did not mount a very active defense and * * * did not appear

to be fully prepared or have prepared the defense witnesses to testify.”

       {¶17} We cannot say the trial court abused its discretion in concluding that Ms.

D’Agostino failed to present sufficient grounds to demonstrate that any ailment of trial counsel

prejudiced Ms. D’Agostino. The record reflects that, during voir dire, trial counsel began by

informing the jury of her hand tremors. Specifically she stated, “I’m on a medication that makes

my hands shake. That’s why I’m nervous. If you see that happening, please don’t mind it.”

Thus, the affiants’ observations of nervousness and shaking hands are unsurprising and are

explained in the record. Moreover, there was evidence that trial counsel had ample opportunities

at trial to voice any concerns she had about proceeding or to request a continuance. Each time

the trial resumed following a recess, the trial court asked both counsel if they were both ready to

proceed. Each time, both counsel responded affirmatively. Additionally, following the close of

evidence, trial counsel indicated that she was ready to proceed to closing argument even though

the State indicated it needed more time to prepare.

       {¶18} Even assuming that the affiants’ observations may have indicated that trial

counsel had some sort of ailment, or was recovering from some ailment, those observations do

not provide evidence that trial counsel was ineffective or that trial counsel’s deficient

performance prejudiced Ms. D’Agostino. See Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, at

¶ 61-62. Ms. D’Agostino has pointed to nothing that would require that trial counsel be in

perfect health in order to render effective assistance of counsel.

       {¶19} While several of the affiants indicated that they did not believe they received

adequate preparation for their testimony, they failed to indicate what additional testimony they

could have provided or how that would have benefited Ms. D’Agostino had they been better
                                                 9


prepared. Accordingly, Ms. D’Agostino has not demonstrated that any lack of preparation of

those witnesses prejudiced her defense. Further, the affiants’ feelings and general concerns

about trial counsel’s performance do not evidence specific incidents of deficient performance or

prejudice that resulted therefrom. We cannot say that the trial court abused its discretion when it

concluded that Ms. D’Agostino failed to state “sufficient grounds for her Petition based upon the

alleged undisclosed, unknown medical condition[.]”

       {¶20} Ms. D’Agostino additionally argues that the affidavit of Dr. Eisenberg evidences

the ineffective assistance of trial counsel. Dr. Eisenberg testified as the defense expert at trial.

He evaluated Ms. D’Agostino for battered woman’s syndrome and provided an opinion in his

report. In his report, he concluded that, assuming Ms. D’Agostino’s reports of her history were

accurate, it was his opinion that Ms. D’Agostino “was a victim of continued domestic violence

and was therefore a battered woman at the time of the alleged felonious assault[.]”

       {¶21} In his affidavit submitted in support of Ms. D’Agostino’s petition, Dr. Eisenberg

averred that, as an expert, he was accustomed to a certain amount of pretrial preparation and that

such preparation did not occur. He indicated that he evaluated Ms. D’Agostino in December

2010, and prepared a report in February 2011, but only spoke to trial counsel briefly over lunch

the day of his testimony in October 2012. Dr. Eisenberg stated he placed phone calls to trial

counsel’s office that were never returned. However, he did acknowledge that trial counsel was

on maternity leave for part of that time.

       {¶22} Dr. Eisenberg expressed concern with trial counsel’s examination of him at trial,

noting that it appeared to him that trial counsel had little experience or training in how to

examine an expert in forensic psychology. He found the State’s cross-examination to be more

skilled. He averred that trial counsel’s questioning, “was often confusing” and prevented him
                                                 10


from “clearly provid[ing] a coherent and logical explanation for [Ms.] D’Agostino’s conduct and

her diagnosis.” This “undermined [his] testimony and provided damaging avenues of inquiry for

the [p]rosecution on cross-examination.”       Additionally, Dr. Eisenberg contended that trial

counsel failed to emphasize self-defense as a part of trial counsel’s theory of the case and that the

theory of self-defense should not have been “subsumed by the defense based upon Battered

Woman Syndrome.”

       {¶23} While it is clear that Dr. Eisenberg was dissatisfied with the manner in which he

was prepared for trial and the way in which he was questioned at trial, he failed to indicate in his

affidavit what other testimony or information he could have provided at trial that would have

benefited the defense. The trial court found that Dr. Eisenberg’s testimony mirrored his expert

report, and, generally speaking, that conclusion is supported by the record before us.

       {¶24} To the extent Dr. Eisenberg asserts that trial counsel should have focused more on

a theory of self-defense outside the context of battered woman’s syndrome, it is unclear what

more Dr. Eisenberg believes should have been done. Dr. Eisenberg’s report does not make a

finding as to whether Ms. D’Agostino acted in self-defense, instead indicating that “it is the trier

of fact who will determine whether or not her actions constituted self-defense.” Nonetheless, at

trial, Dr. Eisenberg did conclude that Ms. D’Agostino was a battered woman and that she

“suffered abuse from * * * [Mr.] Augustus[.] * * * That this was over an extended period of

time, and that on the date in question [he] believe[d] she was in a situation where she believed

that she was in danger of imminent harm and acted accordingly.” To this extent, his expert

opinion was placed squarely before the jury.

       {¶25} Further, it appears that trial counsel at least attempted to impart to the jury that,

even if Ms. D’Agostino had fabricated the abuse and, thus, could not be classified as a battered
                                                11


woman, she nonetheless might still have acted in self-defense. On cross-examination, the State

challenged Dr. Eisenberg’s findings that Ms. D’Agostino was a battered woman because his

findings were based almost entirely on Ms. D’Agostino’s own reporting. On redirect, trial

counsel asked if Dr. Eisenberg would still think Ms. D’Agostino was acting in self-defense even

if she could not be classified as a battered woman. Dr. Eisenberg responded that, “Well, that

goes right to the jury, but I certainly would think that that speaks to some of the elements of

imminent threat of harm to oneself regardless of whether she is a battered woman or not.”

       {¶26} Finally, trial counsel in her closing argument repetitively discussed self-defense,

both in the context of battered woman’s syndrome and separately. Trial counsel argued that part

of the self-defense test was “met even without any evidence of Battered Woman Syndrome.

Even if she was never abused, any reasonable person would be in fear at that time. But it is

further bolstered because she did suffer from Battered Woman Syndrome.”           Later in closing

argument, trial counsel stated that, “Now, I haven’t talked a whole lot about Battered Woman

Syndrome. I’m getting to the experts here, because I think this is a straight self-defense case. I

think it is pretty clear cut. Somebody is breaking into a door with a hammer, yelling that he is

going to kick your a**, I think it is pretty clear cut self-defense if you defend yourself, whether

he intended to do those things or not.” Given the foregoing, including the lack of specificity in

Dr. Eisenberg’s affidavit, we cannot conclude the trial court abused its discretion in determining

that a hearing was not warranted on Ms. D’Agostino’s petition. Ms. D’Agostino failed to supply

“sufficient operative facts to establish substantive grounds for relief.” Calhoun, 86 Ohio St.3d

279, at paragraph two of the syllabus.

       {¶27} Ms. D’Agostino’s sole assignment of error is overruled.

                                               III.
                                                12


       {¶28} Ms. D’Agostino’s assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

MICHAEL J. DUFF, Attorney at Law, for Appellant.
                                    13


DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
