[Cite as State v. Agee, 2017-Ohio-7750.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO                                    )    CASE NO. 14 MA 0094
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )    OPINION AND
                                                 )    JUDGMENT ENTRY
KEVIN D. AGEE, JR.                               )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                             Appellant’s Motion to Certify a Conflict
                                                      Under App.R. 25

JUDGMENT:                                             Motion Denied.

APPEARANCES:

For Plaintiff-Appellee:                               Atty. Paul J. Gains
                                                      Mahoning County Prosecutor
                                                      Atty. Ralph M. Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 West Boardman Street, 6th Floor
                                                      Youngstown, Ohio 44503

For Defendant-Appellant:                              Atty. Timothy Young
                                                      Ohio Public Defender
                                                      Atty. Kenneth R. Spiert
                                                      Assistant State Public Defender
                                                      250 East Broad Street, Suite 1400
                                                      Columbus, Ohio 43215

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                      Dated: September 21, 2017
[Cite as State v. Agee, 2017-Ohio-7750.]
PER CURIAM.


        {¶1}     Appellant Kevin D. Agee, Jr. has filed a motion to certify a conflict to the

Ohio Supreme Court. Appellant asks this Court to certify the following question:

whether affidavits by legal experts, submitted in postconviction proceedings in

support of ineffective assistance of counsel claims, constitute cogent evidence

dehors the record and defeat the application of res judicata. Because judgments

cited by Appellant from the Tenth and Second District Courts of Appeals are not in

conflict with the decision of this Court, the motion to certify a conflict is denied.

        {¶2}     App.R. 25(A) reads, in pertinent part:

        A motion to certify a conflict under Article IV, Section 3(B)(4) of the Ohio

        Constitution shall be made in writing no later than ten days after the

        clerk has both mailed to the parties the judgment or order of the court

        that creates a conflict with a judgment or order of another court of

        appeals and made note on the docket of the mailing, as required by

        App. R. 30(A). * * * A motion under this rule shall specify the issue

        proposed for certification and shall cite the judgment or judgments

        alleged to be in conflict with the judgment of the court in which the

        motion is filed.

        {¶3}     Article IV, Section 3(B)(4) Article IV, Section 3(B)(4) reads:

        Whenever the judges of a court of appeals find that a judgment upon

        which they have agreed is in conflict with a judgment pronounced upon

        the same question by any other court of appeals of the state, the judges
                                                                                         -2-

       shall certify the record of the case to the Supreme Court for review and

       final determination.

       {¶4}   Hence, the following conditions must be met before and during

certification pursuant to Section 3(B)(4), Article IV of the Ohio Constitution:

       First, the certifying court must find that its judgment is in conflict with the

       judgment of a court of appeals of another district and the asserted

       conflict must be “upon the same question.” Second, the alleged conflict

       must be on a rule of law─not facts. Third, the journal entry or opinion of

       the certifying court must clearly set forth that rule of law which the

       certifying court contends is in conflict with the judgment on the same

       question by other district courts of appeals. (Emphasis deleted.)

Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 613 N.E.2d 1032, (1993),

paragraph one of the syllabus. In addition, the issue proposed for certification must

be dispositive of the case. See, e.g., State ex rel. Davet v. Sutula, 131 Ohio St.3d

220, 2012-Ohio-759, 963 N.E.2d 811, ¶ 2.

       {¶5}   This Court provided the following analysis regarding the affidavit

submitted in support of Appellant’s ineffective assistance of counsel claim:

       In order to overcome the res judicata bar to his ineffective assistance of

       counsel claim, Appellant offered the affidavit of Kort Gatterdam, a

       criminal defense attorney licensed in Ohio. Gatterdam opines that trial

       counsel was deficient due to their failure to obtain the services of a

       neuropsychologist and/or neurologist to evaluate Appellant’s TBI and
                                                                               -3-

dementia, and the combined effect of these on his ability to knowingly

waive his rights to counsel and against self-incrimination. According to

Gatterdam, a criminal defense lawyer and former public defender,

Appellant’s medical records establish cognitive impairments that

required the expert testimony of a neuropsychologist or neurologist.

Gatterdam Aff., ¶ 7-8. Gatterdam explained that a neurologist could

have performed an MRI and used other techniques to “see what was

actually going on in [Appellant’s] brain at or near the time of his arrest.”

Gatterdam Aff., ¶ 8.


The trial court concluded that the Gatterdam affidavit offered no new

evidence regarding the need for a neurological expert. Gatterdam’s

affidavit merely offered his opinion on the ultimate question: whether

trial counsel’s performance was deficient and whether Appellant was

prejudiced. The trial court stated that the argument Appellant did not

understand his Miranda warning was absurd, based on a colloquy

between Appellant and the trial court on August 25, 2011, two days

after the suppression hearing, where Appellant quoted Albert Einstein.

Appellant provided the following testimony at the August 25, 2011 pre-

trial conference:


When I first went to jail, I really didn't know the situation I was in and

how deep. * * * I was blessed enough to have a family member [Agee’s
                                                                                -4-

uncle] actually in the pod when I got there.        He already knows my

situation, everything, my brain situation.


The first couple weeks I was in there, I was very frustrated, and he had

* * * me read a quote, and he had me write it down and put it in my cell,

and I read it every day. It's by Albert Einstein. * * * [“A] problem can

never be solved at the same level of intelligence in which it was

created.[”] When I finally figured out what my uncle was trying to tell

me, he started having me try to understand the constitution[.]


(8/25/11 Tr., pp. 5-6.)


In fact, Ohio appellate districts have consistently concluded that an

affidavit by a legal expert does not constitute cogent evidence dehors

the record sufficient to overcome procedural default. State v. Group,

7th Dist. No. 10 MA 21, 2011-Ohio-6422, ¶ 86-87; State v. Hill, 1st Dist.

No. C961052 (Nov. 21, 1997) (“Attorney's affidavits explaining

prevailing norms do not constitute evidence dehors the record and are

akin to a notarized legal argument.”); State v. Davis, 5th Dist. No. 2008-

CA-16, 2008-Ohio-6841, at ¶ 161-162 (quoting Hill and advocating that

instead of a countervailing attorney opinion, a more objective test for

attorney ineffectiveness is that set forth in Strickland); State v. Franklin,

2d Dist. No. 19041, 2002-Ohio-2370, at ¶ 12 (“the affidavit of an

attorney giving an opinion based on facts in the record does not
                                                                              -5-

constitute evidence outside the record, but merely legal argument[.]”)

Accord State v. Jones, 11th Dist. No. 2000-A-0083, 2002-Ohio-2074;

State v. Scudder, 131 Ohio App.3d 470, 722 N.E.2d 1054 (10th

Dist.1998); State v. Lawson, 103 Ohio App.3d 307, 659 N.E.2d 362

(12th Dist.1995). Accordingly, the trial court correctly concluded that

Appellant failed to overcome the procedural bar.


Even assuming that the Gatterdam affidavit constituted valid evidence

dehors the record, Appellant failed to offer sufficient operative facts to

show that trial counsels’ failure to request the appointment of a

neuropsychologist and/or neurologist resulted in an unfair trial. There is

no evidence in the record before us to show that Appellant’s cognitive

impairments affected his ability to understand the Miranda waiver. On

the contrary, the record establishes that Appellant was aware of both

the effect and the consequences of his confession.


After waving his right to counsel and his right against self-incrimination,

Appellant had the presence of mind to deny any involvement in the

crime. (DVD Tr., p. 13.) When asked why .308 ammunition and a

baseball cap identified by eyewitnesses at the crime scene as being

worn by one of the assailants was found at his mother’s house,

Appellant explained that he and Toney were close friends, and that he

let Toney “chill” at the Garfield address. (DVD Tr., pp. 15-16, 21.) He

further explained that Toney often left guns and ammunition at the
                                                                             -6-

Garfield address because he considered it a safe place. (DVD Tr., pp.

56, 60-61.) When asked about eyewitness testimony placing him in the

vehicle at the crime scene, Appellant stated that he frequently drove

around town with Toney, and the eyewitnesses were probably mistaken

as to the day they saw them together. (DVD Tr., pp. 18, 32.)


Appellant told police that, when he learned about the crime on the local

news, he was disappointed that he did not have any information

regarding the crime, because there was a reward offered. (DVD Tr., p.

31.) He did not realize Toney was the shooter until the following day,

when friends told him that OB drove a Cadillac that was the same color

and model as the vehicle targeted in the drive-by shooting. (DVD Tr., p.

33.)   When Detective Sergeant Daryl Martin told Appellant that the

Durango was being swept for DNA and prints and asked how Appellant

would explain the existence of his fingerprints on the steering wheel,

Appellant responded that he drove the Durango a few weeks earlier.

(DVD Tr., p. 58.)


Appellant’s grandmother spoke to him outside of the presence of the

detectives.   She informed Appellant that he had been caught on

camera, and that he should tell the truth. (DVD Tr., p. 63.) She also

informed him that eyewitnesses placed him at the scene of the crime.

(DVD Tr., p. 66.)    Appellant told his grandmother that he would be

looking at “football numbers * * * [b]ig numbers” for jail time. (DVD Tr.,
                                                                             -7-

p. 67.) When his grandmother pressed him to confess, Appellant told

her that he was not being stubborn, he was “thinking.” (DVD Tr., p. 70.)

He observed that he was going to get the same number of years

whether he was the driver or the shooter. Id.


When Appellant spoke to his mother, he told her that he would receive

a high bond and suggested that his girlfriend, whose mother had just

died, might have enough money from her mother’s estate to provide his

bail. (DVD Tr., p. 78.) Agee also told his mother that someone “in the

click” was talking, because the detectives had information that

eyewitnesses could not have provided. (DVD Tr., p. 83.)


All of the foregoing evidence reveals that Appellant was processing

information quite clearly during the police interrogation. He not only

provided succinct excuses for the presence of evidence implicating him

in the crime, but also recognized the degree of punishment he would

face if convicted, as well as the high bond that would likely be assigned.

Of equal import, Appellant had entered a guilty plea to charges of drug

possession after his automobile accident, so he was also familiar with

the state justice system.


Appellant has failed to offer evidence dehors the record in support of

his right to counsel and due process claims regarding the appointment

of a neuropsychologist and/or neurologist, which could have been
                                                                                         -8-

      raised on direct appeal. In the alternative, Appellant has failed to offer

      evidentiary   material     setting   forth   sufficient   operative   facts   to

      demonstrate a reasonable probability that a neurological expert would

      have aided his defense, and that the denial of expert assistance

      resulted in an unfair trial. Accordingly, Appellant’s first assignment of

      error based on claims of ineffective assistance of counsel is overruled.

State v. Agee, 7th Dist. No. 14 MA 0094, 2016-Ohio-7183, ¶ 28-37.

      {¶6}   Appellant contends that three Ohio appellate cases, State v. Dumas,

10th Dist. No. 99AP-853, 2000 WL 518555, State v. McDaniel, 2d Dist. No. 97-CA-7,

1997 WL 691508, and State v. Hooks, 2d Dist. No. CA 16978, 17007, 1998 WL

754574, are in conflict with the judgment in this case.               However, on closer

examination, the Tenth and Second District Courts of Appeals reach the identical

conclusion regarding expert legal affidavits submitted to overcome the procedural bar

in postconviction proceedings.

      {¶7}   In State v. Dumas, the petitioner offered two affidavits in support of his

ineffective assistance of counsel claim based on his trial counsel’s failure to raise a

speedy trial violation. First, he offered the affidavit of his trial counsel, Rogers, in

which Rogers stated that he was not aware the speedy trial clock had run, and that

his failure to assert the speedy trial violation was not a trial tactic. Next, Dumas

offered the affidavit of his pre-trial attorney, Nowland, in which Nowland stated that

he would have raised the speedy trial violation and that Rogers’ failure to raise any

objection was unreasonable.
                                                                                       -9-

       {¶8}   The Tenth District Court of Appeals held that Rogers’ affidavit

constituted evidence dehors the record sufficient to overcome the res judicata bar in

a postconviction proceeding. Distinguishing State v. Hill, supra, the Tenth District

wrote, “Rogers’ affidavit is not a legal argument but, rather, a statement that, since

assertion of the speedy trial claim would have resulted in dismissal of four felonies,

the failure to assert it was not a matter of trial strategy. This evidence was not part of

the original record and could not have been considered by this court or the trial

court.” Dumas at *4.

       {¶9}   The decision in Dumas does not conflict with the judgment in this case.

The Dumas panel held that trial counsel’s affidavit constituted evidence dehors the

record because it established operative facts surrounding counsel’s failure to raise

the speedy trial violation. The Tenth District did not reach the same conclusion

regarding the Nowland affidavit, and it is significant that the Dumas panel did not

consider the Nowland affidavit in its legal analysis. In actuality Dumas appears to

apply the holding in Hill, supra, to the Nowland affidavit.

       {¶10} The Second District Court of Appeals cases, McDaniel and Hooks,

supra, specifically address the submission of expert legal affidavits in support of

ineffective assistance of counsel claims based on the failure of counsel to call lay and

expert witnesses. These cases also support rather than conflict with the judgment of

this Court. In both, the Second District held that ineffective assistance of counsel

claims predicated on the failure to call lay and expert witnesses “must be determined

dehors the record.” Hooks at *16, quoting McDaniel at *3. However, the Second
                                                                                  -10-

District recognizes in each case that expert legal affidavits that are conclusory in

nature do not constitute evidence dehors the record. Both panels held that, in order

to overcome the procedural bar, expert legal affidavits must contain operative facts.

McDaniel at *5; Hooks at *15 (“In this case, Hooks fails to suggest how the testimony

of another pathologist would rebut the testimony of the coroner. He also fails to state

how, or even if, he was prejudiced by the failure to call a pathologist.”)

       {¶11} In the case before us, Gatterdam’s affidavit, stating that trial counsel

provided ineffective assistance based upon their failure to seek the appointment of a

neuropsychologist and/or neurologist, did not contain operative facts, but, instead,

constituted notarized legal argument. Agee at ¶ 30, quoting Hill, supra. The Second

District reached the same conclusion with regard to the affidavits in McDaniel and

Hooks.

       {¶12} In summary, all three of the Ohio appellate court decisions cited by

Appellant stand for the proposition that a conclusory legal affidavit containing no

operative facts does not constitute evidence dehors the record. Consequently, this

affidavit cannot overcome the res judicata bar in postconviction proceedings. No

conflict exists with this case, and Appellant’s motion to certify conflict to the Ohio

Supreme Court is denied.


Waite, J., concurs.

Donofrio, J., concurs.

DeGenaro, J., concurs.
