[Cite as State v. Thomas, 2019-Ohio-4247.]


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

STATE OF OHIO                                        C.A. No.       29112

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RANDY A. THOMAS                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR-2013-07-2069

                                 DECISION AND JOURNAL ENTRY

Dated: October 16, 2019



        HENSAL, Judge.

        {¶1}    Randy Thomas appeals from the judgment of the Summit County Court of

Common Pleas, denying his petition for post-conviction relief. This Court affirms.

                                                I.

        {¶2}    This Court has previously set forth the relevant factual and procedural

background as follows:

        This case stems from an altercation that occurred between Thomas and Anthony
        Smith, the victim in this matter. According to Thomas, he and Smith agreed to a
        fist fight after exchanging verbal remarks. It was Thomas’ testimony that, after he
        threw the first punch, Smith pulled out a gun. According to Thomas, he wrestled
        the gun from Smith and shot Smith multiple times because he started coming
        toward Thomas again. Smith died as a result of his gunshot wounds.

        A grand jury indicted Thomas on one count of aggravated murder and one firearm
        specification. At trial, Thomas took the stand and argued self-defense. Although
        the jurors ultimately rejected his defense, they did not find him guilty of
        aggravated murder. Instead, the jury found him guilty of the lesser-included
        offense of murder and the attendant firearm specification. The court sentenced
        Thomas to 18 years to life in prison on those charges, and this Court affirmed its
                                                 2


       judgment on direct appeal. See State v. Thomas, 9th Dist. Summit No. 27266,
       2015–Ohio–2935.

       While Thomas’ direct appeal was pending, he filed a petition for post-conviction
       relief on numerous grounds. The State then filed a motion to dismiss the petition,
       and Thomas filed a reply. The trial court reviewed the written filings and
       determined that the petition did not warrant a hearing or an opportunity for
       discovery. Consequently, it denied the petition on all grounds.

State v. Thomas, 9th Dist. Summit No. 27698, 2016-Ohio-5507, ¶¶ 2-4

       {¶3}    Mr. Thomas then appealed the trial court’s denial of his petition for post-

conviction relief. Id. at ¶ 5. This Court affirmed in part and reversed in part, concluding that the

trial court erred by not holding an evidentiary hearing. Id. at ¶ 23. On remand, the case was

transferred to a visiting judge who held a hearing on Mr. Thomas’s petition. Following the

hearing, the trial court denied Mr. Thomas’s petition.       He has now appealed, raising two

assignments of error for our review. For ease of consideration, we will address his assignments

of error together.

                                                II.

                                  ASSIGNMENT OF ERROR I

       COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AND FOURTEENTH
       AMENDMENTS OF THE FEDERAL CONSTITUTION AND ART. I SEC. 10
       OF THE OHIO CONSTITUTION BY FAILING TO INVESTIGATE AND
       PRESENT AVAILABLE EVIDENCE OF THOMAS’[S] STATE OF MIND.

                                 ASSIGNMENT OF ERROR II

       COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AND FOURTEENTH
       AMENDMENTS OF THE FEDERAL CONSTITUTION WHEN THEY
       FAILED TO SECURE SERVICES OF MENTAL HEALTH EXPERT TO
       TESTIFY CONCERNING THE STIPULATED EXHIBITS AND ITS IMPACT
       ON THOMAS’[S] STATE OF MIND AND SUBJECTIVE ELEMENTS OF
       SELF DEFENSE; THOMAS WAS DENIED A COMPLETE DEFENSE AS A
       RESULT UNDER THE SIXTH AND FOURTEENTH AMENDMENTS.
                                                 3


       {¶4}    In his first assignment of error, Mr. Thomas argues that the trial court erred by

denying his petition for post-conviction relief because his trial counsel rendered ineffective

assistance when they failed to investigate and present available evidence regarding his “very low

intelligence” and personal background, which was relevant to the subjective component of his

claim for self-defense, and to the jury’s assessment of his credibility. He argues that the jurors

could not place themselves “in [his] shoes[,]” which deprived him of a complete defense. In his

second assignment of error, Mr. Thomas argues that his trial counsel rendered ineffective

assistance by not hiring a mental-health expert to testify regarding the available records and their

impact on his claim for self-defense. For the reasons that follow, this Court disagrees.

       {¶5}    This Court reviews a trial court’s decision to grant or deny a petition for post-

conviction relief under Revised Code Section 2953.21 for an abuse of discretion. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58. Here, the trial court held that Mr. Thomas

failed to establish a claim for ineffective assistance of counsel. “[I]n Ohio, a properly licensed

attorney is presumed competent.” Id. at ¶ 62. To prove ineffective assistance of counsel, the

defendant must establish that: (1) his counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Counsel’s performance is deficient if it falls below an objective standard of reasonable

representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To

establish prejudice, “the defendant must prove that there exists a reasonable probability that,

were it not for counsel’s errors, the result of the trial would have been different.” Id. at

paragraph three of the syllabus. If a defendant fails to prove one prong under Strickland, this

Court need not address the other prong. State v. Lortz, 9th Dist. Summit No. 23762, 2008-Ohio-

3108, ¶ 34.
                                                 4


       {¶6}    Initially, we note that Mr. Thomas asserts that “[i]f the Court decides Strickland

applies rather than Cronic, then [he] has met his burden of showing that there is a ‘reasonable

probability’ that counsel’s deficient performance prejudiced him.” In United States v. Cronic,

466 U.S. 648 (1984), the United States Supreme Court “recognized that some circumstances are

so likely to prejudice the defendant that no showing of prejudice is necessary.” State v. Sanders,

92 Ohio St.3d 245, 277 (2001). These circumstances include the complete denial of counsel at a

critical stage of the trial, the complete failure of counsel to subject the prosecution’s case to

meaningful adversarial testing, counsel’s active representation of conflicting interests, and where

defense counsel was appointed only a few minutes before trial commenced. Id., citing Cronic at

659-661. “Apart from circumstances of that magnitude, however, there is generally no basis for

finding a Sixth Amendment violation unless the accused can show how specific errors of counsel

undermined the reliability of the finding of guilt.” Id., quoting Cronic at 659, fn. 26.

       {¶7}    Aside from noting that “[i]t is not necessary to prove prejudice if Cronic is used

instead of Strickland[,]” Mr. Thomas has not developed an argument – including citations to

authority and the relevant portions of the record – as to why the U.S. Supreme Court’s decision

Cronic rather than Strickland applies. See App.R. 16(A)(7); State v. Franks, 9th Dist. Summit

No. 28533, 2017-Ohio-7045, ¶ 16 (declining to develop an argument on behalf of the appellant).

Notwithstanding, given this Court’s reasoning and holding below, any argument in that regard

would have lacked merit. We, therefore, will proceed with an analysis under Strickland.

       {¶8}    Mr. Thomas correctly argues that a defendant’s state of mind in a self-defense

case is crucial. State v. Koss, 49 Ohio St.3d 213, 215 (1990). His merit brief makes clear that he

is not arguing diminished capacity, which is not a defense in Ohio, and he has not argued that his

intellectual disabilities rendered him incompetent to stand trial. State v. Wilcox, 70 Ohio St.2d
                                                5


182 (1982), paragraph one of the syllabus (“The partial defense of diminished capacity is not

recognized in Ohio.”). Instead, he asserts that is not necessary to label him with anything other

than “very low intelligence with more testing recommended * * *.”

       {¶9}    The testimony from the post-conviction-relief hearing indicates that Mr.

Thomas’s trial attorneys knew that Mr. Thomas was “slow,” and that it played a role in their trial

strategy. Although they admitted that they did not investigate or present available records that

would have supported their position that Mr. Thomas suffered from intellectual disabilities, they

testified that their strategy was to demonstrate this through testimony from Mr. Thomas’s

grandmother.    At trial, Mr. Thomas’s grandmother testified that Mr. Thomas was born

prematurely, and – because of his mother’s drug use during pregnancy – addicted to cocaine.

She testified that Mr. Thomas was “slow * * * in his classroom; he was slow at home. He didn’t

comprehend anything too fast.” She further testified that Mr. Thomas had trouble understanding

situations, and that he often needed things explained to him.

       {¶10} Mr. Thomas testified on his own behalf, acknowledging his developmental delays

and stating that he has trouble “understanding as quick and catching on as quick as * * *

someone[ whose] parent * * * didn’t do drugs with them.” Mr. Thomas’s trial counsel then

addressed Mr. Thomas’s “capabilities or lack thereof” during closing arguments, to which the

State responded by arguing that “there is no evidence that [Mr. Thomas] is slow, other than him

and his grandmother. We don’t have any school records or anything like that. Nothing.”

       {¶11} Mr. Thomas’s trial attorneys testified that the crux of their trial strategy was to

emphasize the victim’s involvement with a violent gang to demonstrate that Mr. Thomas shot the

victim in self-defense, and that his doing so was reasonable under the circumstances. As part of

this strategy, the defense team subpoenaed the former chief of police to testify regarding local
                                                 6


gang activity and culture, “and in essence what it’s like to be threatened or get into an altercation

with a gang member, which [the victim] was.” One of Mr. Thomas’s attorneys testified that they

pursued this strategy to appeal to the jury’s sense of self-preservation, and to show that “it didn’t

matter if [Mr. Thomas was] slow or a genius, he understood the business end of a gun and that

was the basis of our self-defense argument.”

       {¶12} While records documenting the extent of Mr. Thomas’s intellectual disabilities

may have bolstered the defense’s position at trial, we cannot say that trial counsels’ failure to

investigate or present those records resulted in a deficient performance under these facts. We are

mindful of Mr. Thomas’s argument that the failure to investigate the extent of his intellectual

disabilities could not have been a strategic choice. But “[s]imply because there was ‘another and

better strategy available’ d[oes] not mean that counsel provided ineffective assistance.” State v.

Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, ¶ 19, quoting State v. Clayton, 62 Ohio St.2d

45, 49 (1980). As previously noted, the record indicates that Mr. Thomas’s trial counsel was

aware that Mr. Thomas suffered from intellectual disabilities, and that their trial strategy was to

establish this through his grandmother’s testimony. The record further indicates that the crux of

his trial counsels’ strategy was to emphasize the victim’s involvement with a violent gang, and to

show that – regardless of someone’s cognitive abilities or lack thereof – a reasonable person

would have shot the victim to protect his or her own life. Notably, one of Mr. Thomas’s trial

attorneys testified that jurors could interpret evidence regarding a criminal defendant’s IQ as an

attempt to escape responsibility, and others could consider it as “just bologna[.]”1 His other

attorney testified similarly, stating that evidence of Mr. Thomas’s low IQ “could go the other


       1
         In his merit brief, Mr. Thomas asserts that his trial attorney thought that IQ evidence
was “bologna[.]” Our reading of the transcript, however, indicates that his attorney was
explaining how a jury could interpret such evidence.
                                                7


way[,]” and that the defense team’s “angle was, * * * [the victim] was going to kill [Mr.

Thomas] and he knew that and that’s why he acted the way he did.”

       {¶13} In light of the facts presented and the testimony regarding the defense team’s

strategy, we cannot say that Mr. Thomas’s trial counsel was deficient for failing to investigate or

present available records for the purpose of establishing that he has “very low intelligence[.]”

We reach this conclusion having carefully examined Mr. Thomas’s argument that the lack of this

evidence prevented the jury from standing “in [his] shoes” with respect to his claim for self-

defense, and may have affected the jury’s assessment of his credibility. The jury heard Mr.

Thomas’s own account of the events that transpired, as well as his – and his grandmother’s –

testimony regarding his background and cognitive delays.         It was then free to believe or

disbelieve any or all of that testimony. State v. Hunter, 9th Dist. Summit No. 28484, 2018-Ohio-

568, ¶ 32.

       {¶14} Even assuming that Mr. Thomas’s trial counsels’ failure to investigate and present

available records documenting the extent of his intellectual disabilities resulted in a deficient

performance under Strickland, Mr. Thomas has failed to establish that he suffered prejudice, that

is, a reasonable probability that the result of the trial would have been different. Bradley, 42

Ohio St.3d 136 (1989), at paragraph three of the syllabus. According to Mr. Thomas, the

available records would have shown the jury that he suffered seizures at birth, had

communicative issues and cognitive delays as a child, continues to have intellectual disabilities

that are not readily apparent, has extremely low intelligence,2 and has a history depression, self-



       2
          To the extent that Mr. Thomas argues that his trial counsel should have presented
records showing an IQ test result from January 2011 (approximately two years prior to the
shooting) of 53, Dr. Webb – whose testimony Mr. Thomas argues should have been presented at
trial – testified at the post-conviction-relief hearing that the score of 53 was “[a]bsolutely”
                                                8


doubt, and mood sensitivity. He also argues that available records would have shown that he

was not homicidal, and that he had successfully completed an anger-management program. He

concludes that “[a]ll of the records not presented support [his] reasonable and honest belief that

he was about to be killed or receive great bodily harm.”

       {¶15} As the State points out, however, the records upon which Mr. Thomas relies also

contain information that may have potentially undermined his claim for self-defense.           For

example, those records contain statements indicating that Mr. Thomas: “has a[] problem with

bothering other children that [are] not messing with him”; “gets mad easily”; “loses [his] temper

easily”; “blames others for his * * * mistakes or behaviors”; “pushes or shoves classmates”;

“[c]an’t get along with nobody”; “shows very little self control”; “constantly provokes [and]

teases others”; “gets into arguments and fights and ‘it is always someone else’s fault’”; “needs to

learn to control his anger”; “was suspended for fighting w/ a peer”; “has considerable trouble

controlling his anger”; and “at times he has become overly vigilant[.]” While Mr. Thomas

asserts that these statements would have been excluded at trial under various Rules of Evidence,

he has not developed any argument in support of that position. See App.R. 16(A)(7). Even if he

had, any argument in that regard would have been speculative as to what the trial court – which

has broad discretion in determining whether to admit of exclude evidence – would have decided.

Krischbaum v. Dillon, 58 Ohio St.3d 58, 66 (1991) (“A trial court has broad discretion in

determining whether to admit or exclude evidence.”); State v. Moffett, 9th Dist. Summit No.

28001, 2016-Ohio-5314, ¶ 10-11 (rejecting a claim for ineffective assistance based upon

speculation).




invalid given that Mr. Thomas passed the Ohio Graduation Tests, and that he would have
expressed the same opinion at trial.
                                                  9


       {¶16} In light of the foregoing, Mr. Thomas has not established that – but for his trial

counsels’ failure to investigate and present available records relative to the extent of his

intellectual disabilities – the jury would have accepted his claim for self-defense and found him

not guilty of murder. Accordingly, the trial court did not err by finding that Mr. Thomas failed

to establish a claim for ineffective assistance of counsel. Strickland, 466 U.S. at 687. Mr.

Thomas’s first assignment of error is overruled. It, therefore, follows that his second assignment

of error challenging his trial counsels’ failure to hire a mental-health expert to testify relative to

the available records is now moot. App.R. 12(A)(1)(c).

                                                 III.

       {¶17} Mr. Thomas’s assignments of error are overruled. The judgment of the Summit

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 Summit, 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.
                                                10


       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT




TEODOSIO, P. J.
CONCURS.

CARR, J.
DISSENTING.

       {¶18} At the time that this Court affirmed Thomas’s conviction in 2015, I dissented and

wrote that I would reverse and remand for a new trial on the basis that the trial court committed

plain error when it delivered its jury instructions. State v. Thomas, 9th Dist. Summit No. 27266,

2015-Ohio-2935, ¶ 74-82 (Carr, J., dissenting). In light of the evidence presented at the PCR

hearing regarding defense counsel’s failure to fully investigate Thomas’s mental faculties, I feel

even more strongly that Thomas is entitled to a new trial.


APPEARANCES:

JOHN P. PARKER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
