[Cite as State v. Hale, 2016-Ohio-5837.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103654



                                       STATE OF OHIO
                                                            PLAINTIFF-APPELLEE

                                                 vs.

                                           DELANO HALE
                                                            DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-04-454857-A

               BEFORE:           Blackmon, J., Kilbane, P.J., and McCormack, J.

              RELEASED AND JOURNALIZED:                    September 15, 2016
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

By: Isa Mauch
Jessica Carrico
Assistant Public Defenders
250 East Broad Street
Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Matthew E. Meyer
Christopher D. Schroeder
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Delano Hale (“Hale”) appeals the trial court’s dismissal of his petition for

postconviction relief and assigns the following five errors for our review:

       I. The trial court erred by applying the doctrine of res judicata to bar
       Hale’s first through twelfth and fifteenth through nineteenth grounds for
       relief.

       II. The trial court erred in dismissing Hale’s postconviction petition, when
       he presented sufficient operative facts to merit relief or, at a minimum, an
       evidentiary hearing.

       III. The trial court erred when it failed to rule on Hale’s motion for leave
       to conduct discovery.

       IV. The trial court erred when it failed to rule on Hale’s motion for funds
       to employ experts and to conduct expert testing.

       V. The trial court abused its discretion when it denied Hale relief without
       affording him the necessary due process to meet his burden.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} The underlying criminal case against Hale arises from the aggravated

murder of Douglas Green (“Green”). Hale was indicted on two counts of aggravated

murder, with each one carrying a felony-murder death specification, alleging murder

during a robbery. Other counts charged aggravated robbery, tampering with evidence,

and having a weapon while under disability.

       {¶4} On June 7, 2005, the jury convicted Hale of all counts and specifications,

and he was sentenced to death for the aggravated murder of Green. Hale filed a direct
appeal from his conviction. His conviction was affirmed by the Ohio Supreme Court.

State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864.

       {¶5} While his appeal was pending before the Ohio Supreme Court, Hale filed a

petition in common pleas court for postconviction relief. On this same date, he filed a

motion for discovery and a motion for funds in order to obtain experts. The state

answered the petition. On September 24, 2015, the trial court dismissed Hale’s petition

and issued a 15-page findings of fact and conclusions of law.

                            Petition for Postconviction Relief

       {¶6} We will address Hale’s first and second assigned errors together because

they both concern the trial court’s denial of Hale’s petition for postconviction relief.

Hale argues that because his attached evidence dehors the record, the trial court erred by

dismissing some of the grounds listed in his petition for postconviction relief based on res

judicata. Additionally, he argues that the trial court erred by not granting his petition

or at least conducting an evidentiary hearing based on the evidence he attached to his

petition.

Standard of Review

       {¶7} A postconviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d 399, 639

N.E.2d 67 (1994). R.C. 2953.21(A)(1)(a) allows Hale to file a petition asking the trial

court to vacate or set aside the judgment of conviction or sentence. Hale, as petitioner,

must state all grounds for relief on which he relies, and he waives all other grounds not so
stated. R.C. 2953.21(A)(4). In determining whether substantive grounds for relief exist,

the trial court must consider, among other things, the petition, the supporting affidavits,

and the documentary evidence filed in support of the petition. R.C. 2953.21(C).

       {¶8} A trial court may rule on a postconviction petition without first holding a

hearing.   Proper grounds for dismissing a petition for postconviction relief without

holding an evidentiary hearing include: 1) the failure of the petitioner to set forth

sufficient operative facts to establish substantive grounds for relief, and 2) the operation

of res judicata to bar the constitutional claims raised in the petition. State v. Calhoun, 86

Ohio St.3d 279, 714 N.E.2d 905 (1999), at paragraph two of the syllabus; State v. Lentz,

70 Ohio St.3d 527, 639 N.E.2d 784 (1994). A petition for postconviction relief is not the

proper vehicle to raise issues that were or could have been determined on direct appeal.

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).

       {¶9} The evidence submitted in support of the petition must meet some threshold

standard of cogency “otherwise it would be too easy to defeat the holding of Perry by

simply attaching as exhibits evidence that is only marginally significant and does not

advance the petitioner’s claim beyond mere hypothesis and a desire for further

discovery.” State v. Lawson, 103 Ohio App.3d 307, 659 N.E.2d 362 (12th Dist.1995).

The evidence submitted with the petition must be competent, relevant, and material and

not merely cumulative of or alternative to evidence presented at trial. State v. Combs,

100 Ohio App.3d 90, 652 N.E.2d 205 (1st Dist.1994).
        {¶10} We review the trial court’s ruling on a postconviction petition for an abuse

of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77,

¶45.

Mitigation Phase

        {¶11} We will first address Hale’s argument that the trial court erred by dismissing

his claims that counsel was ineffective during the mitigation phase of his trial.

        {¶12} To succeed on a claim of ineffective assistance, a defendant must establish

that counsel’s performance was deficient and that the defendant was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

Counsel will only be considered deficient if his or her conduct fell below an objective

standard of reasonableness. Strickland at 688.

        {¶13} When reviewing counsel’s performance, this court must be highly

deferential and “must indulge a strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.” Id. at 689. To establish resulting

prejudice, a defendant must show that the outcome of the proceedings would have been

different but for counsel’s deficient performance. Id.

        1) Experts

        {¶14} Hale contends that counsel was ineffective for not presenting prison,

substance abuse, and cultural experts during the mitigation phase of his trial. He claims

that the following evidence attached to his petition prevented a dismissal based on res
judicata and required that the trial court conduct an evidentiary hearing: (1) the affidavit

of Clemens Bartollas, Ph.D. stating the sexual pressure and fear that Hale experienced

during his previous incarceration influenced him; (2) various articles regarding the

neurological affects of substance abuse; (3) the affidavit of social worker Dorian L. Hall

in which he states Hale’s trial counsel should have investigated whether Hale had a

neurological defect and should have retained a cultural expert.

       {¶15} Because the above evidence was outside of the record, the trial court erred

by concluding that res judicata barred Hale from raising these claims in his petition.

However, a reviewing court is not authorized to reverse a correct judgment merely

because it was reached for the wrong reason. State v. Lozier, 101 Ohio St.3d 161, 166,

2004-Ohio-732, 803 N.E.2d 770, ¶ 46. We agree that the trial court was correct in

dismissing these claims without conducting an evidentiary hearing. As we stated above,

simply attaching exhibits as evidence that are only marginally significant or that are

merely cumulative will not guarantee an evidentiary hearing. We conclude the testimony

of the above experts would have been cumulative to the testimony presented by defense

counsel at trial.

       {¶16} A review of Dr. Bartollas’s affidavit shows that it mostly consists of general

statements regarding prison conditions in Ohio and around the country as related to sexual

assaults. He concluded, based on a one-hour telephone conversation with Hale, that Hale

suffered from post traumatic stress disorder from his time previously spent in prison.

Hale told him that during that time he was pressured for sex, but was admittedly never
sexually assaulted in prison. Because most of Bartollas’s information deals with sexual

assault in prison, it is not directly relevant to Hale because Hale was not sexually

assaulted in prison.

       {¶17} A review of Dr. Fabian’s testimony at trial shows he interviewed Hale for

eight hours. Dr. Fabian acknowledged that prison life is violent and that during his time

in prison, Hale was confronted with “stressors.” The fact that Dr. Bartollas provided

more general information than Dr. Fabian regarding violence in prison did not result in

prejudice. Although Dr. Fabian did not discuss sexual assaults in prison, Hale was not

sexually assaulted in prison. Dr. Fabian, however, stressed that the sexual abuse that

Hale suffered as a child may have caused him to react violently if Green did make sexual

advances toward him.

       {¶18} We also conclude that the evidence submitted in support of Hale’s claim

that counsel was ineffective for failing to obtain a substance abuse expert was cumulative.

 The Ohio Supreme Court has held that a defendant in a capital case is not deprived of

mitigating evidence in the form of a substance abuse expert, where the defense presented

“‘alternative devices that * * * fulfill[ed] the same functions as the expert assistance

sought [by the defendant].’” State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823

N.E.2d 836, ¶ 103, quoting State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984),

paragraph four of the syllabus. Dr. Fabian testified at length during the mitigation

hearing regarding Hale’s and Hale’s parent’s substance abuse. He testified that Hale

abused alcohol and drugs since the age of 12 and that substance abuse was one of the
factors that contributed to the cycle of violence that Hale experienced. Based on Dr.

Fabian’s testimony, having another expert testify regarding the affect of substance abuse

on Hale would have been cumulative.

       {¶19} Hale also argues that a neurologist could have testified to any neurological

defect caused by the substance abuse. However, without any evidence that Hale in fact

suffered from a neurological disorder, such an allegation is speculative. Although social

worker Hall stated that counsel should have explored “potential neurological impairment

caused by his substance abuse,” the social worker was not a doctor and had no interaction

with Hale. Dr. Fabian, a forensic psychologist had extensive interaction with Hale and

found he did not suffer from a mental illness. “Strickland does not require counsel to

investigate every conceivable line of mitigating evidence no matter how unlikely the

effort would be to assist the defendant at sentencing.” Wiggins v. Smith, 539 U.S.

510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Here, the retaining of a neurological

expert to test Hale, or the presentation of one at trial, when there was no evidence that

Hale had a neurological defect, did not constitute ineffective assistance of counsel.

       {¶20} We also conclude the presentation of a cultural expert would have been

cumulative. Hale attached the affidavit of social worker Hall in which he stated that

Hale’s family history and culture and surrounding environment in which he was raised

influenced him as an adult. He stated that an expert should have been obtained to

facilitate how these factors influenced Hale in order to “humanize” Hale to the jury.
         {¶21} Again, we conclude such an expert would have been cumulative to

 the     testimony   presented   by   Dr.   Fabian, who testified to the unstable family

environment in which Hale was raised.          Dr. Fabian also described the low income

neighborhood where gang violence and drugs existed and described in detail the sexual

abuse that Hale suffered as a child. Dr. Fabian concluded that all of these factors caused

Hale to be an aggressive, impulsive, and violent adult.

         {¶22} Additionally, Hale’s sisters testified regarding Hale’s close relationships to

his mother and Father Lynch, the priest who was like a surrogate father to Hale, and how

the loss of those relationships affected him. Hale, himself, testified to his childhood, his

close relationship to his mother and Father Lynch, his attempts to become closer to his

sisters, and his difficult relationship with his father.       These concepts that would

“humanize” Hale to the jury, were not so difficult or complicated to understand that an

expert would have been necessary to explain the influences on Hale. Moreover, as the

Ohio Supreme Court stated in Hale’s direct appeal, “Hale’s history, character, and

background have some mitigating weight. * * * But we have seldom given decisive

weight to this factor.” Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at

¶ 265.

         2) Stephen Key

         {¶23} Hale also contends that the trial court erred by not granting an evidentiary

hearing based on the affidavit of Stephen Key that he attached to his petition. He argued

that Key’s testimony would have bolstered Hale’s statement to police that the victim
made sexual advances on him, which provoked Hale into shooting him. Hale argued that

Key’s position as a correction officer would have made him a credible witness. In the

affidavit, Key averred that the victim approached him several times to come to his studio

to audition to sing, which was odd because Key did not sing. Key stated that every time

he saw Green, Green “seemed to be hitting on me” and that he thought he was “very

aggressive.”

       {¶24} The trial court found that res judicata prevented Hale from raising this

argument; however, because Hale did not have this evidence in the original record, it was

dehors the record and res judicata, therefore, did not bar him from raising the claim.

However, the trial court, nonetheless, did not err by dismissing the claim.        Hale’s

contention that the victim provoked the murder was refuted by the physical evidence, as

we will discuss in more detail later. Moreover, the jury was already aware that the victim

had raped another man by forcefully performing oral sex on him. Thus, the fact he “hit

on Key” would not have added to his defense. Also, although Key was a corrections

officer, he also admitted that he and Hale went to school together when they were

children.

       3) Statistical Data

       {¶25} Hale also contends that the trial court erred by failing to find merit to his

argument that counsel was ineffective for failing to present statistical data showing that

the death penalty was applied in an arbitrary and discriminatory manner. In support of

his claim, he attached evidence to his petition presenting statistics showing the racial
disparity of the imposition of the death penalty against African Americans as compared

with other races in Cuyahoga County.               The evidence also allegedly showed that

Cuyahoga County was over-indicting death penalty cases at the time Hale was indicted.

       {¶26} Hale has failed to show how such evidence, if presented, would have

resulted in a different outcome.       In State v. Foust, 8th Dist. Cuyahoga No. 83771,

2005-Ohio-5331, we addressed this same issue and found “that the evidence failed to

prove that the actions of [defendant’s] attorneys fell below an objective standard of

reasonable representation and that he was prejudiced.” Id. at ¶ 36. Likewise, in the

instant case, Hale has failed to prove that the result would have been different if the

evidence had been presented.

Guilt Phase of Trial

       {¶27} We will now address Hale’s arguments that the trial court erred by

dismissing his petition for postconviction relief based on his claims that his counsel was

ineffective during the guilt phase of his trial.

       1) Cross-examination of Lashayla Hale.

       {¶28} Hale argues that he discovered after the trial that his sister Lashayla was

threatened by the prosecutor that if she did not testify that their sickly father would be

called to testify instead. He claims that his defense counsel knew about this threat and

failed to cross-examine Lashayla regarding the threat. He claims this would have shown

that Lashayla was testifying under duress. He further states that Lashayla’s testimony

was prejudicial because she testified that Hale had a gun several months prior to the
murder. In support of this claim, he attached the affidavit of his trial counsel who stated

that she knew about the threat and that the failure to question Lashayla about the threat

was not the result of trial strategy.

       {¶29} We do not see how defense counsel’s failure to question Lashayla about the

prosecutor’s threat was prejudicial to Hale. Lashayla appeared as a defense witness;

therefore, the prosecutor would have been able to cross-examine her          regardless of

whether or not she testified for the state. Lashayla was also under subpoena and had to

testify. Thus, the trial court did not err by refusing to conduct a hearing based on this

evidence.

       2) Crime Scene Expert

       {¶30} Hale argues that the trial court erred by not finding merit to his claim that

counsel was ineffective for failing to retain a crime scene expert to refute the

forensic evidence presented by the state. Attached to Hale’s petition in support of

this argument was the affidavit of Gary Rini, who opined that the evidence could be

viewed as being consistent with Hale’s story that he shot Green to stop his sexual

advances. Although the trial court held that res judicata prevented this claim because the

Ohio Supreme Court in Hale’s direct appeal held that the failure to hire a crime scene

expert was speculative, Hale at that time of the direct appeal, did not have Rini’s expert

opinion, which is dehors the record. Although the trial court erred by concluding res

judicata prevented the claim, we agree that the evidence did not support the claim.
       {¶31} Hale stated in his statement to detectives that the victim, while seated at the

foot of the bed, grabbed both of his wrists and laid his head in Hale’s crotch area. Hale

then allegedly freed his right wrist, reached into the bag of the victim and grabbed the gun

from the bag and placed it near the victim’s head. The victim told him it was not loaded.

 Hale stated he pulled the trigger and the victim “reeled back still gripping my wrist.”

Hale fired the gun again while backing away toward the mirror.             He was not sure

whether Green was incapacitated, so he retrieved some bullets from the victim’s bag and

reloaded the gun. When the victim again attempted to stand, he fired “once or twice

again.”

       {¶32} According to the state’s forensic witnesses at trial, the bullet wounds

showed an execution style killing with three out of the four gunshots being clear contact

wounds to the right side of Green’s head in the area behind the ear. Because Hale is

right handed, the victim had to be standing facing forward with Hale behind him or facing

forward with Hale to his right. Both of these positions indicate an execution-style

killing. Green also had gunshot residue to his right hand, indicating he lifted his hand to

protect himself when the shots were fired. Hale had claimed that Green was at the foot of

the bed when he shot him, but a circular spot of blood was found on the head board

showing the origin was no more than three to four feet from the headboard.

       {¶33} The pathologist also testified that at least three of the four gunshot wounds

would have immediately rendered the victim incapacitated.           This    conflicts   with

Hale’s statement in which he stated that he shot the victim two times and that as the
victim got up from the bed he grabbed a handful of bullets, reloaded the gun, and shot

him two more times. There is no way that the victim could have been moving towards

Hale due to the incapacitating shots.

       {¶34} Hale contends that Rini’s expert report supports his statement to police that

he acted in self-defense. Rini claimed that “the state did not take into account the

possibility that, while seated at the edge of the bed, the decedent could have turned his

head down and to his left, thereby exposing the right side of his head to a right handed

shooter.”   While this would account for the location of the entrance wounds, the

evidence showed the bullets traveled towards the front of Green’s head, not straight to the

other side. So Green’s head would have to be turned so far to the left that he was facing

away from Green. Hale stated that Green attempted to stand up and advance toward him

when he fired the last two shots. Thus, he would have been facing towards Green, not

away from Green. Rini also fails to address how the gunshot residue got onto Green’s

right hand. Thus, because Rini’s expert report does not refute the state’s evidence,

counsel was not ineffective for failing to retain him and there was no reason for the trial

court to conduct an evidentiary hearing.

       3) In Camera Review

       {¶35} Hale argues the trial court erred by not allowing counsel to participate in

the in camera review of Sergeant Baird’s report. Attached to Hale’s petition for

postconviction relief was the affidavit of Hale’s trial counsel in which she stated she was

not present at the in camera hearing and that she was informed by the trial court that there
were no inconsistencies in Baird’s report. She was later surprised to find that there were

in fact inconsistencies in Baird’s report because Baird did not state in his report that he

told Hale that Green was bisexual, but testified to this at trial.

       {¶36} We agree with the trial court that res judicata bars Hale’s claim. Although

the Supreme Court did not have counsel’s affidavit on direct appeal, the Supreme Court

found that there was no inconsistency in Baird’s report. The court concluded:

       There was no plain error here, because Hale “has failed to identify any
       inconsistencies that would warrant reversal.” [State v. Cunningham, 105
       Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 49].                   The
       “inconsistencies” mentioned by Hale are actually details of the interrogation
       to which Baird testified but did not mention in his report. However, “[t]he
       fact that details may be lacking in a pretrial statement does not mean that
       inconsistencies exist for purposes of Crim.R. 16(B)(1)(g).” Id.

       {¶37} Because the Supreme Court concluded that there were no inconsistencies in

Baird’s report, res judicata bars this claim.

       4) Testimony of Key and Bartollas

       {¶38} Hale makes the same arguments regarding counsel’s failure to present the

testimony of Key and Dr. Bartollas at trial that he did in his mitigation arguments above.

Because we have already addressed these arguments and found no prejudice, we will not

repeat our analysis.

       {¶39} Hale also argues that counsel erred by not having Dr. Bartollas testify

regarding Hale’s prior sexual assaults in prison. However, as stated above, there was

no evidence that Hale was sexually assaulted in prison.

Constitutional Issues
       {¶40} Hale also raised issues separate from ineffective assistance of counsel

claims where he attacked the constitutionality of the death penalty.

       1) Proportionately of Sentence of Death Compared to Other Cases

       {¶41} Hale argues that the trial court erred by concluding res judicata prevented

review of his claim that the imposition of death in his case was disproportionate to the

sentence issued in order of murder cases with similar or worse facts in Cuyahoga County

where the death penalty was not imposed. In support of this argument, he attached 18

murder cases from Cuyahoga County where the death sentence was not imposed.

       {¶42} We agree that res judicata prevents review of this claim because the Ohio

Supreme Court has already conducted a proportionality review of Hale’s sentence and

concluded as follows:

       The death sentence is also proportionate to death sentences we have
       approved in robbery-murder cases. See, e.g., State v. Allen (1995), 73 Ohio
       St.3d 626, 644, 653 N.E.2d 675; State v. Tyler (1990), 50 Ohio St.3d 24, 42,
       553 N.E.2d 576; State v. Scott (1986), 26 Ohio St.3d 92, 107, 26 OBR 79,
       497 N.E.2d 55 (attempted robbery).

Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 278.

       {¶43} Moreover, in McLeskey v. Kemp, 481 U.S. 279, 292-293, 107 S.Ct. 1756, 95

L.Ed.2d 262 (1987), the United States Supreme Court held that mere statistics do not

establish that the administration of capital punishment violates equal protection. To

sustain his claim, the defendant must show that racial considerations affected the

sentencing process in his case. Id.      Hale has failed to specifically show that racial

considerations affected his sentence.
       2) Death Penalty Arbitrarily Imposed

       {¶44} Hale argues that the trial court erred by finding no merit to his claim that the

death penalty law permits the imposition of capital punishment in an arbitrary, capricious,

and discriminatory manner due to the uncontrolled discretion afforded to elected county

prosecutors. In support of his claim, he attached statistics from Cuyahoga County cases

to show the alleged erratic method of charging and prosecuting cases in Cuyahoga

County.

       {¶45} We addressed this identical issue in State v. Foust, 8th Dist. Cuyahoga No.

83771, 2005-Ohio-5331, and held as follows:

       In his fourteenth ground for relief, Foust argues that Ohio’s death penalty
       statute improperly “permits the imposition of capital punishment in an
       arbitrary, capricious, and discriminatory manner due to the uncontrolled
       discretion afforded elected county prosecutors in determining when to seek
       the death penalty.” In support of his claim, Foust references the same chart
       in support of his thirteenth claim for relief, as well as the 2000 Census
       Profile of General Demographic Characteristics. Such evidence was
       available to Foust at the time of his direct appeal and accordingly, this claim
       is barred by res judicata.

Id. at ¶ 20.

       {¶46} The Ohio Supreme Court has also rejected the argument that the death

penalty is unconstitutional because it is applied at the discretion of prosecutors. Jenkins,

15 Ohio St.3d at 169-170, 473 N.E.2d 264. The court in Jenkins held, “‘[a]bsent facts

to the contrary, it cannot be assumed that prosecutors will be motivated in their charging

decision by factors other than the strength of their case and the likelihood that a jury

would impose the death penalty if it convicts.’” Id. at 169, quoting Gregg v. Georgia,
428 U.S. 153, 225, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). To conclude otherwise would

represent “an indictment of our entire criminal justice system which must be

constitutionally rejected.” Jenkins at 170.

      3) Reporting System to Ohio Supreme Court Inadequate

      {¶47} Hale argues the trial court erred by not finding merit to his claim that “the

Ohio Capital statutory scheme uses an inadequate system of proportionality and

appropriateness review” because R.C. 2929.021 only requires minimal information to be

reported to the Ohio Supreme Court.

      {¶48} The trial court properly denied this claim because Hale failed to demonstrate

that the alleged inadequacies in the reporting system prejudiced the proportionality review

conducted by the Supreme Court in his case.

      4) Cumulative Error

      {¶49} Finally, Hale argues all of the above cumulative errors amounted to

prejudicial error that deprived him of a fair trial. A judgment of conviction may be

reversed if the cumulative effect of errors deemed separately harmless is to deny the

defendant a fair trial. State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),

paragraph two of the syllabus. By its terms, the doctrine of “cumulative error” will not

provide a basis for reversal in the absence of multiple errors. State v. Madrigal, 87 Ohio

St.3d 378, 398, 721 N.E.2d 52 (2000). Because Hale failed to support his petition with

evidence demonstrating multiple constitutional deprivations, the trial court properly
denied Hale’s argument regarding cumulative error.            Accordingly, Hale’s second

assigned error is overruled.

                          Failure to Rule on Discovery Motion

       {¶50} Hale argues in his third assigned error that the trial court erred by failing to

rule on his postconviction motion for leave to conduct discovery.

       {¶51} When a trial court fails to rule on a motion, the motion is considered denied.

 State v. Collins, 5th Dist. Licking No. 03-CA-103, 2004-Ohio-3645, ¶ 28. Thus, the

trial court implicitly denied appellant’s motion by failing to issue a judgment prior to

entering a final order.

       {¶52} The long-standing rule in Ohio is that a convicted criminal defendant has no

right to additional or new discovery, whether under Crim.R. 16 or any other rule, during

postconviction relief proceedings. See State ex rel. Love v. Cuyahoga Cty. Prosecutor’s

Office, 87 Ohio St.3d 158, 718 N.E.2d 426 (1999). See also State v. Bryan, 8th Dist.

Cuyahoga No. 93038, 2010-Ohio-2088, ¶ 45; State v. Taylor, 8th Dist. Cuyahoga No.

80271, 2002-Ohio-2742, ¶ 19 (courts are not required to provide petitioners discovery in

postconviction proceedings). The trial court, therefore, did not err by denying Hale’s

motion for discovery. Hale’s third assigned error is overruled.

                               Motion for Funds for Expert

       {¶53} In his fourth assigned error, Hale argues that the trial court erred by failing

to rule on his motion for funds to retain experts.
       {¶54} While an indigent defendant sentenced to death has a statutory right under

R.C. 2953.21 to appointed counsel to pursue a timely filed, first postconviction petition,

the statute “does not provide for appointment of experts or investigators.” State v.

Monroe, 10th Dist. Franklin No. 04AP-658, 2005-Ohio-5242, ¶15. Ohio courts have

concluded that there is no constitutional right to the appointment of an expert or an

investigator even where the statute provides for appointed counsel in a postconviction

proceeding. Id., citing State v. Smith, 9th Dist. Lorain No. CA 98CA007169, 2000 Ohio

App. LEXIS 972 (Mar. 15, 2000), and State v. Trummer, 7th Dist. Columbiana No. 96

CO 97, 1998 Ohio App. LEXIS 6193 (Dec. 16, 1998). See also State v. Coleman, 2d

Dist. Clark No. 2001-CA-42, 2002-Ohio-5377, ¶ 109 (noting that there is no

constitutional or statutory right to funding of an expert in aid of a postconviction

petition).

       {¶55} In opposition to the foregoing conclusion, Hale cites State v. Mason, 82

Ohio St.3d 144, 694 N.E.2d 932 (1998); Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264

(1984); and Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

Although Mason, Jenkins, and Ake are capital cases, they involve the appointment of

experts to assist at the trial level, not for purposes of postconviction relief. Therefore,

they are inapposite. Hale’s fourth assigned error is overruled.

                  Postconviction Fails to Provide Meaningful Review

       {¶56} In his fifth assigned error, Hale argues that Ohio’s postconviction

proceedings fail to provide meaningful review because they allow for little opportunity
for factual development because postconviction discovery is not permitted and, without

sufficient documentation, a defendant is not entitled to an evidentiary hearing.

       {¶57} This court in State v. Hutton, 8th              Dist. Cuyahoga No. 76348,

2004-Ohio-3731, ¶25, 26, addressed this identical issue and held:

       A postconviction proceeding is not an appeal of a criminal conviction, but,
       rather, a collateral civil attack on the judgment. See State v. Crowder
       (1991), 60 Ohio St.3d 151, 573 N.E.2d 652. It bears emphasis that state
       postconviction review is not a constitutional right. Id. Postconviction
       review is a narrow remedy, since res judicata bars any claim that was or
       could have been raised at trial or on direct appeal.  State v. Duling (1970),
       21 Ohio St.2d 13, 254 N.E.2d 670; State v. Perry (1967), 10 Ohio St.2d
       175, 226 N.E.2d 104.

       Notwithstanding the narrow focus of the postconviction review under R.C.
       2953.21, we believe this remedy provides adequate safeguards to protect the
       constitutional rights of individuals convicted of a criminal offense.

       {¶58} Based on the above precedent, Hale’s fifth assigned error is overruled.

       {¶59} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


___________________________________________
PATRICIA ANN BLACKMON, JUDGE

TIM McCORMACK, J., CONCURS;
MARY EILEEN KILBANE, P.J., DISSENTS
(SEE ATTACHED DISSENTING OPINION)




MARY EILEEN KILBANE, P.J., DISSENTING:

       {¶60} I respectfully dissent. I would sustain Hale’s second assignment of error

and remand the matter to the trial court to conduct an evidentiary hearing on Hale’s

petition.

       {¶61} While a hearing is not automatically required on every petition, the trial

court is required to consider whether the petitioner has set forth sufficient operative facts

in the files and record of the case to establish substantive grounds for relief. State v.

Stedman, 8th Dist. Cuyahoga No. 83531, 2004-Ohio-3298, ¶ 24, citing State ex rel.

Jackson v. McMonagle, 67 Ohio St.3d 450, 1993-Ohio-143, 619 N.E.2d 1017; Calhoun,

86 Ohio St.3d 279, 714 N.E.2d 905, paragraph two of the syllabus. If the petition, the

files, and the records of the case demonstrate that the petitioner is entitled to relief, the

court must then proceed to a prompt hearing on the issues. R.C. 2953.21(E).

       {¶62} This court has stated that “there are two conditions that must be satisfied

prior to the court holding a hearing: the petitioner must state substantive grounds for

relief, and the issue cannot be determined through a review of the record.” State v.

Broom, 8th Dist. Cuyahoga No. 96747, 2012-Ohio-587, ¶ 14. We have “additionally

recognized that trial courts are required to hold an evidentiary hearing only if the
petitioner is relying on facts outside the record.” Id., citing State v. Milanovich, 42 Ohio

St.2d 46, 325 N.E.2d 540 (1975).

       {¶63} The petition at issue in the instant appeal was filed on March 6, 2007. In

his petition, Hale set forth 18 different grounds for relief and requested an evidentiary

hearing. Hale argued trial counsel was ineffective for failing to: (1) investigate and

present mitigating evidence through the testimony of a prison expert; (2) cross-examine

his sister about the threats she received from the prosecutor; (3) utilize a crime scene

expert to confirm the reliability of his statement to the police; (4) thoroughly investigate

and present mitigating evidence, specifically the use of Steven Key as a witness; (5)

thoroughly investigate and present evidence in his defense; (6) present available and

relevant mitigation evidence for purposes of sentencing, specifically the effects of

substance abuse; (7) present evidence that the death penalty is applied in an arbitrary and

discriminating manner; (8) present a prison expert at trial regarding self defense,

specifically the testimony of Dr. Bartollas; (9) effectively assist him during the mitigation

phase of his capital trial; (10) present mitigating evidence that he may have suffered

neurological deficits because of his extensive history of alcohol abuse, chemical abuse,

and black-outs; and (11) present mitigating evidence from Dorian Hall, a substance abuse

expert. Hale further argued that: (12) the trial court failed to permit defense counsel to

participate in the in camera inspection of the witness statements; (13) his sentence was

disproportionate to similarly situated capital offenders; (14) the death penalty law permits

the imposition of capital punishment in an arbitrary manner; (15) the statutory and
proportionality reporting system for death penalty cases is inaccurately and ineffectively

processed in the county; (16) the death penalty as administered by lethal injection in the

state; (17) Ohio’s postconviction procedures are unconstitutional; and (18) the cumulative

effects of the errors he presented violated his constitutional rights.

       {¶64} On August 20, 2008, the state requested a 60-day extension to respond to

Hale’s petition. The trial court granted the state’s request five days later. The state then

requested another extension on November 10, 2008. In this request, the state sought an

additional 30-days to respond to Hale’s petition. According to the trial docket, the court

did not rule on this extension request. The state’s response, which was the next entry on

the docket regarding Hale’s petition was not filed until July 7, 2011. Inexplicably, the

state’s response was filed nearly three years after the trial court granted its 60-day

extension and nearly four and one-half years after the filing of Hale’s petition. Eight

days later, Hale moved to strike the state’s untimely response. On July 25, 2011, the trial

court denied Hale’s motion in part. The court declined to strike the state’s response, but

granted Hale 60 days to reply to the state’s response. Hale replied to the state’s response

on September 23, 2011. Another four years passed, however, before the trial court

issued its ruling denying Hale’s petition. It is unclear from the docket as to why the

court’s denial and its findings of fact and conclusions of law were issued on September

24, 2015, which was eight and one-half years after Hale’s initial petition filing.

       {¶65} In support of his 455-page petition, Hale attached 391 pages of exhibits.

The majority concedes that a portion of these exhibits is evidence outside the record.
Specifically, the majority refers to the affidavit of Dr. Bartollas, various articles regarding

neurological affects of substance abuse, the affidavit of social worker Dorian Hall, and

the affidavit of Stephen Key as evidence outside the record. The majority concludes,

however, that a hearing was not required on Hale’s petition because this evidence was

marginally significant or merely cumulative.

       {¶66} I disagree with this conclusion. In support of his petition, Hale presented

an extensive amount of evidence — a 455-page brief with 391 pages of exhibits. This

evidence was in the trial court’s purview for eight and one-half years. He argued that

defense counsel was ineffective for failing to present evidence of: his history of sexual

abuse, the effects of prison, alcohol abuse, and Stephen Key’s experience with the

victim’s sexual advances. Hale’s petition was inexplicably pending before the trial court

for eight and one-half years before the trial court issued its ruling, denying the petition on

res judicata grounds.

       {¶67} I would find that this evidence is outside the record and sets forth

substantive grounds for relief. Moreover, given the eight and one-half years of delay

between when Hale filed his petition, the state responded, and when the court issued its

ruling, and the fact that Hale presented evidence outside the record, I would find that the

failure to conduct a hearing under these circumstances was unreasonable and arbitrary.

       {¶68} I recognize the trial court could reach the same conclusion after a hearing on

remand. However, in this unique circumstance, it would be beneficial to hold a hearing

at which this voluminous evidence would be presented and examined by the trial court.
{¶69} Accordingly, I would sustain the second assignment of error.
