[Cite as State v. Roberts, 2020-Ohio-4188.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                   :        OPINION

                   Plaintiff-Appellee,            :
                                                           CASE NO. 2019-T-0089
          - vs -                                  :

 DONNA ROBERTS,                                   :

                   Defendant-Appellant.           :


 Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2001 CR
 000793.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, Christopher Becker and Ashleigh Musick,
 Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
 Warren, OH 44481 (For Plaintiff-Appellee).

 David L. Doughten and Robert A. Dixon, 4403 St. Clair Avenue, Cleveland, OH 44103
 (For Defendant-Appellant).


MATT LYNCH, J.

        {¶1}       Defendant-appellant, Donna Roberts, appeals the denial of her Amended

Post-Conviction Petition on plaintiff-appellee, the State of Ohio’s, Motion for Summary

Judgment in the Trumbull County Court of Common Pleas. For the following reasons, we

affirm the Judgment of the court below.

        {¶2}       Following her convictions for Aggravated Murder, Aggravated Burglary, and

Aggravated Robbery, Roberts received, inter alia, the death sentence. The charges
arose from Roberts’ role, as aider and abettor, in the shooting death of Robert Fingerhut

by Nathaniel Jackson. The details of Roberts’ crimes are set forth in State v. Roberts,

110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 5-86.

      {¶3}   On August 20, 2008, Roberts filed a Petition to Vacate or Set Aside

Sentence Pursuant to Ohio Revised Code §2953.21.

      {¶4}   On February 17, 2015, Roberts filed a Motion to Amend Post-Conviction

Petition Pursuant to R.C. 2929.03(F).        On August 19, 2015, the Petition was duly

amended “per agreement of the parties.”

      {¶5}   On August 28, 2015, the State filed a Motion for Summary Judgment.

      {¶6}   On June 5, 2019, Roberts filed a Memorandum in Support of the Amended

Post-Conviction Petition.

      {¶7}   On November 20, 2019, the trial court granted the State’s Motion for

Summary Judgment and dismissed the Amended Post-Conviction Petition without

hearing.

      {¶8}   On December 18, 2019, Roberts filed a Notice of Appeal. On appeal, she

raises the following assignments of error:

             [1.] Petitioner Roberts’ convictions and sentences are void and/or
             voidable because Petitioner was denied the effective assistance of
             counsel during the trial or first stage of her capital trial.

             [2.] If the affidavits provided in Petitioner’s Motion to Vacate filed
             pursuant to R.C. §2953.21 establish a meritorious issue, may the trial
             court dismiss the petition without an evidentiary hearing.

      {¶9}   “Any person who has been convicted of a criminal offense * * * and who

claims that 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




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States [or] any person who has been convicted of a criminal offense and sentenced to

death and who claims that there was a denial or infringement of the person’s rights under

either of those Constitutions that creates a reasonable probability of an altered verdict * *

* may file a petition in the court that imposed sentence, stating the grounds for relief relied

upon, and asking the court to vacate or set aside the judgment or sentence or to grant

other appropriate relief.” R.C. 2953.21(A)(1)(a); State v. Calhoun, 86 Ohio St.3d 279,

281-282, 714 N.E.2d 905 (1999).

       {¶10} “Before granting a hearing on a petition * * *, the court shall determine

whether there are substantive grounds for relief.” R.C. 2953.21(D). “A trial court has the

discretion to deny a postconviction petition without discovery or an evidentiary hearing if

the petition, supporting affidavits, documentary evidence, and trial record do not

demonstrate ‘sufficient operative facts to establish substantive grounds for relief.’” State

v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 29, citing Calhoun at

paragraph two of the syllabus.

       {¶11} Either party may move for summary judgment in a postconviction

proceeding. “The right to summary judgment shall appear on the face of the record.”

R.C. 2953.21(E). When a trial court dismisses a petition for postconviction relief on a

motion for summary judgment, the standards set forth in Civil Rule 56(C) apply: i.e., the

motion may be granted if “there is no genuine issue as to any material fact” and

“reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, that party being entitled

to have the evidence or stipulation construed most strongly in the party’s favor.” The

decision to grant summary judgment in a postconviction proceeding is reviewed de novo.




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State v. Williams, 11th Dist. Trumbull No. 2007-T-0105, 2008-Ohio-3257, ¶ 31.

       {¶12} “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.” State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. With

respect to counsel’s performance, the defendant must demonstrate that “counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). The element of prejudice means “that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Id. “Unless a defendant makes both showings, it cannot be said that the conviction or

death sentence resulted from a breakdown in the adversary process that renders the

result unreliable.” Id.

       {¶13} Roberts presents her claim for ineffective assistance of trial counsel as

follows:

              Counsel did not provide an articulated defense for the Petitioner at
              trial. * * * Although counsel did cross-examine and challenge
              evidence throughout the culpability stage of trial, counsel failed to
              give an opening statement, present a video tape of the co-defendant
              Nate Jackson in which Jackson precluded Roberts’ participation in
              the homicide, failed to present the co-defendant’s claim of self-
              defense, obstructed the Petitioner’s right to testify and failed to
              provide a closing argument to the jury. This confusing strategy would
              only suggest to the jury that the Petitioner was not professing her
              innocence. There is no articulable reasonable strategy for counsels’
              above actions or inactions at trial.

Petition to Vacate or Set Aside Sentence Pursuant to Ohio Revised Code §2953.21, at

15.




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       {¶14} The opening statement at trial was given by Roberts herself.              She

addressed the jury as follows:

              Good morning. Will the real Donna Roberts please stand up? Ladies
              and gentlemen, the real Donna Roberts stands before you. The
              testimony and evidence will establish that I played no part in
              [Fingerhut’s] death. The Donna Roberts you’ll hear portrayed in the
              letters and on those tapes is not the real Donna Roberts.

              My attorneys will test the State’s evidence and ask important
              questions in cross-examination. Please, please listen carefully for
              those questions.

              Perhaps I’ll have more to say later. Regardless, I am not guilty. I am
              not guilty. And you’ll know that when this case is over.

       {¶15} In support of her Petition, Roberts submitted an affidavit in which she stated

in relevant part:

              5. I did not know that my attorneys were not going to give an opening
              statement. They did give me a piece of paper with what they wanted
              me to say in opening statement. I practiced and did what they told
              me. They did not tell me that I was the only one who was going to
              speak.

              6. I wanted them to argue self-defense in this case. Not for me, but
              Nate Jackson, my co-defendant. It was my understanding that Nate
              had argued self-defense at his trial. I thought that my jury should
              know that. To that end, I wanted Nate Jackson’s video statement to
              be introduced into evidence because it is my understanding that he
              admitted that I had nothing to do with the offense. My attorneys did
              not discuss this strategy with them [sic]. I had paid them a lot of
              money I thought that they would do the right thing for me. They did
              not in this regard.

              7. I wanted to testify on my behalf. I begged my attorneys to let me
              testify. They wavered, agreeing I should testify one day and
              changing their mind the next. When it came time for me to testify,
              they said no.

              8. I did not ask my attorneys not to say anything in closing argument
              on my behalf. This strategy was not discussed with me. I was
              shocked when they did not say anything on my behalf. They just
              took charge of the case and I did not know what to say or what I



                                            5
             should do.

      {¶16} With respect to opening and closing arguments, the face of the record in the

present case does not raise issues of material fact with respect to counsel’s performance

or prejudice arising therefrom. It has often been observed that, “[w]hen performing a

Strickland analysis, courts ‘must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.’” (Citation omitted.)

State v. Goff, 154 Ohio St.3d 218, 2018-Ohio-3763, 113 N.E.3d 490, ¶ 42. Given this

presumption, “counsel’s decision to waive opening or closing statements is generally

viewed as a tactical one, even in a capital case.” State v. Belton, 149 Ohio St.3d 165,

2016-Ohio-1581, 74 N.E.3d 319, ¶ 139; Bradley, 42 Ohio St.3d at 144, 538 N.E.2d 373

(counsel’s omission of an opening statement and the substance of closing arguments

“must be viewed as tactical decisions and do not rise to the level of ineffective

assistance”); State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, ¶ 69

(“[c]ounsel’s decision on whether to give an opening statement or closing argument and

how to formulate and deliver them are tactical decisions”).

      {¶17} In the present case, the opening statement given by Roberts apprised the

jury that she was asserting her innocence and that the defense would focus on

challenging the State’s evidence. The decision to omit any closing argument must be

viewed as a tactical decision made by trial counsel. The affidavit submitted by Roberts

provides no support either for counsel’s deficiency or prejudice resulting from counsel’s

performance. At most, the affidavit evidences Roberts’ personal dissatisfaction with

counsel’s trial strategy, rather than “specific errors by counsel that undermine confidence

in the reliability of the verdict.” State v. Sanders, 92 Ohio St.3d 245, 273, 750 N.E.2d 90




                                            6
(2001).

       {¶18} Apart from consideration of the affidavit, any argument with respect to

opening and closing arguments would be, as noted by the trial court, precluded by res

judicata.   “Under the doctrine of res judicata, a defendant cannot raise an issue in

a postconviction petition if he or she raised or could have raised the issue at the trial that

resulted in that judgment of conviction or on an appeal from that judgment.” State v.

Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 92. Roberts did file a

direct appeal in which claims regarding the effectiveness of trial counsel were raised.

Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 146-148. There is

nothing in Roberts’ Petition regarding opening and closing arguments which could not

have been argued on direct appeal. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169

(1982), syllabus (“[w]here defendant, represented by new counsel upon direct appeal,

fails to raise therein the issue of competent trial counsel and said issue could fairly have

been determined without resort to evidence dehors the record, res judicata is a proper

basis for dismissing defendant’s petition for postconviction relief”).

       {¶19} We further note that, in the penalty phase of her trial, Roberts forbade trial

counsel from making arguments or presenting evidence in mitigation. In lieu of arguing

for mitigation, Roberts chose to personally make an unsworn statement directly to the

jury. The statement was made against the advice of counsel. Her expressed purpose in

making the statement was “to expose people who have taken an oath to God to tell the

truth, the whole truth, and then sat in that witness box and lied and cheated [and] abused

authority, used their power to destroy lives,” and “to demand racial equality in a

courtroom.” In the course of this statement she expressed her appreciation for her




                                              7
attorneys described as “wonderful, brilliant men.” She instructed her attorneys to quit

filing motions on her behalf. Roberts also made mention of “the real Donna Roberts” as

she had in her opening statement. In considering the performance of trial counsel with

respect to opening and closing arguments, it is not unreasonable to infer that the

character or personality of their client influenced the manner in which they chose to

proceed at trial.

       {¶20} Roberts also claims trial counsel was deficient for not introducing into

evidence a video tape of Jackson being interviewed by the police in which Jackson

asserts that he shot Fingerhut in self-defense and that Roberts “ain’t had nothing to do

with it at all, man.” See State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d

362, ¶ 69-72.

       {¶21} The State counters that the video tape was inadmissible hearsay: “A

statement tending to expose the declarant to criminal liability, whether offered to

exculpate or inculpate the accused, is not admissible unless corroborating circumstances

clearly indicate the truthworthiness of the statement.” Evid.R. 804(B)(3). “The primary

undertaking of a trial court’s analysis [with respect to truthworthiness] is to apply the

corroboration requirement in a manner to attempt to determine whether there are

sufficient circumstances to overcome the motive to fabricate, whether because of fear,

love, monetary inducement, etc.” State v. Cohen, 11th Dist. Lake No. 12-011, 1988 WL

41545, *6.

       {¶22} Nothing is proffered in Roberts’ Petition that would serve as corroborating

circumstances indicating the truthworthiness of Jackson’s statement. On the contrary,

other statements in the interview tend to undermine Jackson’s claim that Roberts had




                                           8
nothing to do with Fingerhut’s murder.       According to Jackson’s statements in the

interview, he contacted Roberts, with whom he was having an affair, after leaving the

residence in Fingerhut’s car. Roberts met Jackson and rented a room for him at a hotel.

She purchased medical supplies and treated his finger which had been injured during the

struggle with Fingerhut. Yet Jackson maintained Roberts knew nothing about the events

that evening. Rather than being a disinterested statement, Jackson had to exculpate

Roberts from any involvement or knowledge if his own claims of self-defense were to

appear credible.

      {¶23} Roberts claims that trial counsel was nevertheless ineffective for not

attempting to introduce the video into evidence. “Even if the trial court had found that

Evid.R. 804 would not allow its admission, counsel would have preserved the issue for

appeal as the preclusion of the admission of such strong evidence of actual innocence

and/or mitigation would have violated her right to present a defense.” Appellant’s brief at

15. Roberts relies on a line of United States Supreme Court cases recognizing an implicit

constitutional right to present a complete defense. “Whether rooted directly in the Due

Process Clause of the Fourteenth Amendment * * * or in the Compulsory Process or

Confrontation clauses of the Sixth Amendment * * *, the Constitution guarantees criminal

defendants ‘a meaningful opportunity to present a complete defense.’”            Crane v.

Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), quoting California

v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “This right is

abridged by evidence rules that ‘infring[e] upon a weighty interest of the accused’ and are

‘“arbitrary” or “disproportionate to the purposes they are designed to serve.”’” Holmes v.

South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), quoting




                                            9
United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), quoting

Rock v. Arkansas, 483 U.S. 44, 58 and 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).

         {¶24} Roberts’ argument falls short of demonstrating a genuine issue of material

fact as to whether counsel was ineffective for not at least proffering the evidence. In the

first instance, the Ohio Supreme Court has confirmed that Evidence Rule 403(B)(3) does

not violate the right to present a complete defense:

                [W]e hold that the corroboration requirement of Evid.R.
                804(B)(3) rationally serves a legitimate interest in the admission of
                trustworthy evidence, and therefore exclusion of a defendant’s
                proffered evidence for lack of corroboration does not deprive a
                defendant of the right to present a complete defense. As we stated
                in [State v.] Sumlin, 69 Ohio St.3d [105,] at 111, 630 N.E.2d
                681, “Through Evid.R. 804(B)(3), Ohio has addressed one of the
                principal concerns of cases such as Chambers [v. Mississippi, 410
                U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)] which is that a
                criminal defendant’s reliable evidence should not be excluded
                through application of hearsay rules that do not adequately protect
                due process rights. Evid.R. 804(B)(3) strikes a balance between
                hearsay statements against penal interest which are sufficiently
                trustworthy to be admissible and those which are not.”

State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, 895 N.E.2d 821, ¶ 30.

         {¶25} In the second instance, “[i]t is not ineffective assistance for a trial lawyer to

maneuver within the existing law, declining to present untested or rejected legal theories.”

State v. McNeill, 83 Ohio St.3d 438, 449, 700 N.E.2d 596 (1998).

         {¶26} The first assignment of error is without merit.

         {¶27} In her second assignment of error, Roberts argues the trial court erred by

dismissing her Petition without an evidentiary hearing. She asserts that she “included

evidence outside the record to support her claim that she had not been afforded effective

assistance of counsel during the first phase of trial of her capital trial.” Appellant’s brief

at 21.



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       {¶28} “To warrant an evidentiary hearing in a postconviction proceeding, a

petitioner must submit evidence outside the record that sufficiently establishes that the

petitioner is entitled to relief on one or more asserted constitutional grounds.” Broom,

146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, at ¶ 29.               “Where ineffective

assistance of counsel is alleged in a petition for postconviction relief, the defendant, in

order to secure a hearing on his petition, must proffer evidence which, if believed, would

establish not only that his trial counsel had substantially violated at least one of a defense

attorney’s essential duties to his client but also that said violation was prejudicial to the

defendant.” Cole, 2 Ohio St.3d at 114, 443 N.E.2d 169.

       {¶29}   In contrast to the standard for granting summary judgment, a trial court’s

decision as to “whether a defendant will even receive a hearing” is “entitled to deference”

to which an abuse-of-discretion standard applies. State v. Miller, 11th Dist. Lake No.

2019-L-084, 2020-Ohio-3329, ¶ 8, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 50-51.

       {¶30} We have considered the import of Roberts’ affidavit and Jackson’s

videotaped interview under the first assignment of error and concluded that these

evidentiary materials did not raise a genuine issue as to whether Roberts had a viable

claim of ineffective assistance. Accordingly, the State was entitled to judgment as a

matter of law even construing the evidence in Roberts’ favor. In light of this conclusion,

it was certainly within the discretion of the trial court to dismiss the Petition without a

hearing.

       {¶31} The second assignment of error is without merit.

       {¶32} For the foregoing reasons, the dismissal of Roberts’ Amended Post-




                                             11
Conviction Petition is affirmed. Costs to be taxed against the appellant.



TIMOTHY P. CANNON, P.J.,

MARY JANE TRAPP, J.,

concur.




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