[Cite as State v. Brooks, 2011-Ohio-5877.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 97455 and 97509



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  REGINALD BROOKS
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeals from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-172340

        BEFORE:           Boyle, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                         November 14, 2011
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ATTORNEYS FOR APPELLANT

Michael J. Benza
The Law Office of Michael J. Benza
17850 Geauga Lake Road
Chagrin Falls, Ohio 44023

Alan C. Rossman
Assistant Federal Public Defender
Capital Habeas Unit
1660 West Second Street, #750
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Matthew E. Meyer
        Katherine Mullin
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

       {¶ 1} Defendant-appellant, Reginald Brooks, is scheduled to be executed on

Tuesday, November 15, 2011. In this consolidated appeal, Brooks appeals the trial

court’s judgment finding him competent to be executed and the trial court’s denial of his

motion for leave to file a motion for new trial.   We affirm.

                                   Procedural History and Facts
                                           3

      {¶ 2} In 1983, a three-judge panel convicted Brooks of three charges of

aggravated murder and sentenced him to death for the shooting of his three sons —

Reggie Jr. (age 17), Vaughn (age 15), and Niarchos (age 11).    For nearly three decades,

Brooks has sought to overturn his conviction and sentence through the state and federal

courts — all of which have been unsuccessful. See, e.g., State v. Brooks (Aug. 15,

1985), 8th Dist. No. 48914 (direct appeal), (1986), 25 Ohio St.3d 144, 495 N.E.2d 407

(decision affirmed); State v. Brooks (June 17, 1999), 8th Dist. No. 73729 (affirming trial

court’s denial of postconviction relief), (2000), 88 Ohio St.3d 1432, 724 N.E.2d 809

(discretionary appeal denied); and State v. Brooks (Nov. 9, 2000), 8th Dist. No. 48914

(application to reopen under App.R. 26(B) denied), (2001), 92 Ohio St.3d 537, 751

N.E.2d 1040 (decision affirmed). See, also, Brooks v. Bagley (C.A.6, 2008), 513 F.3d

618 (rejecting Brooks’s federal habeas claim).

      {¶ 3} On March 1, 2011, the Ohio Supreme Court granted the state’s motion to

set Brooks’s execution date, ordering that it occur on November 15, 2011.         State v.

Brooks, 128 Ohio St.3d 1408, 2011-Ohio-893, 942 N.E.2d 381.

      {¶ 4} On August 23, 2011, Brooks filed a postconviction petition under R.C.

2953.21 and a motion for an evidentiary hearing pursuant to R.C. 2949.28, requesting that

execution of his sentence be suspended pending an inquiry and determination of whether

he meets the definition of insanity set forth in R.C. 2949.28(A). R.C. 2949.28 codified

the United States Supreme Court holding in Ford v. Wainwright (1986), 477 U.S. 399,
                                           4

106 S.Ct. 2595, 91 L.Ed.2d 335, that it is unconstitutional under the Eighth Amendment

to execute one who does not have the mental capacity to understand the nature of the

death penalty and why it was imposed upon the convict. A Ford claim under R.C.

2949.28 is not ripe until an execution date has been set for a defendant since competency

to be executed cannot be determined until execution is imminent. Panetti v. Quarterman

(2007), 551 U.S. 930, 946, 127 S.Ct. 2842, 168 L.Ed.2d 662, citing Stewart v.

Martinez-Villareal (1998), 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849.

       {¶ 5} On September 26, 2011, following a hearing, the trial court found that

probable cause existed to believe that Brooks was presently insane within the meaning of

R.C. 2949.28(A) and, therefore, was entitled to further proceedings on the insanity

inquiry under the statute.

       {¶ 6} On October 11, 2011, the trial court commenced the inquiry pursuant to

R.C. 2949.29. The hearing lasted approximately four days, during which the trial court

heard testimony from Brooks, defense expert Dr. Rahn Bailey, and state expert Dr.

Stephen Noffsinger. The trial court also allowed the submission of a significant amount

of documentary evidence, which included the original trial transcripts, Brooks’s post-trial

correspondence, numerous psychiatric or psychological reports, and telephone recordings.

 The inquiry concluded on October 20, 2011, and the trial court timely issued its written

findings on October 21, 2011, concluding that Brooks is competent to be executed.
                                            5

       {¶ 7} One day prior to the trial court issuing its findings and judgment, Brooks

moved the trial court for leave to file a motion for a new trial, alleging that the state

withheld exculpatory evidence — evidence that Brooks only recently received in

connection with the competency inquiry. Specifically, Brooks argued that the police

reports and witness statements that were obtained during the homicide investigation but

not turned over to him until this competency inquiry contained information regarding his

mental condition, including the days and weeks, prior to the murders. He contended that

this information was vital to his defense for several reasons: (1) it supported a not guilty

by reason of insanity defense; (2) it demonstrated that he was incompetent to stand trial;

(3) it negated the state’s theory of “prior calculation and design”; or (4) it was relevant

mitigating evidence in the penalty phase.

       {¶ 8} On November 3, 2011, the trial court denied Brooks’s motion for leave.

       {¶ 9} Brooks has separately appealed the trial court’s finding that he is competent

to be executed and its denial of his motion for leave.   We have consolidated the appeals

for our review and now turn to the merits of his arguments.

       Appeal No. 97455: Competency to be Executed

       {¶ 10} In this appeal, Brooks raises the following three assignments of error:

       {¶ 11} “I.   The trial court erred in ruling Mr. Brooks is competent to be executed.
                                            6

       {¶ 12} “II.    O.R.C. 2949.28(B)(3) is unconstitutional as applied to Mr. Brooks,

denying him the right to due process and violating the 5th, 6th, 8th, and 14th

Amendments to the Constitution.

       {¶ 13} “III.   The fast paced state court process has deprived Mr. Brooks of his

right to the effective assistance of counsel during this competency to be executed

litigation.”

                                    Competency Determination

       {¶ 14} In his first assignment of error, Brooks argues that the trial court erred in

finding him competent to be executed.        He contends that the trial court essentially

applied Ford generally without adhering to the United States Supreme Court’s more

recent pronouncement in Panetti v. Quarterman, supra, that requires a convict to have a

rational understanding of the connection between the underlying conviction and his

sentence of execution.

       A. Standard of Review

       {¶ 15} Initially, before addressing the merits of Brooks’s argument, we must set

forth the applicable standard of review.    The fundamental question of whether the trial

court properly denied Brooks’s petition for postconviction relief by finding him

competent to be executed is reviewed under an abuse of discretion standard.

       {¶ 16} Adhering to the United State Supreme Court’s holding in Ford and the

principle that it is unconstitutional to execute a death sentence upon an insane convict, the
                                           7

Ohio legislature has enacted R.C. 2949.28 and 2949.29 — that allow a convict to

challenge his or her competency to be executed.     Under R.C. 2949.29(C), a convict is

presumed “not to be insane” and the convict bears the burden of proving insanity by a

preponderance of the evidence.

      {¶ 17} Indeed, the ultimate determination of whether a convict is insane is a factual

determination made by the trial court after considering the evidence at the hearing.

Therefore, absent a showing of an abuse of discretion, we will not overrule a trial court’s

findings on a petiton for postconviction relief that are supported by competent and

credible evidence.   See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77. See, also, State v. Scott, 92 Ohio St.3d 1, 2001-Ohio-148, 748 N.E.2d 11

(applying an abuse of discretion standard of review to a challenge made under R.C.

2949.28).

      B. Application of Ford — Panetti Standard

      {¶ 18} The crux of Brooks’s argument is that the trial court failed to apply the

Panetti standard. Relying on the trial court’s specific findings that (1) he is suffering

from paranoid schizophrenia, and (2) he “presents with grandiose delusions regarding his

past accomplishments and persecutory delusions that he has been framed” for the

underlying murders, Brooks argues that the trial court could not have reasonably found

him sane to be executed in light of Panetti. We find his argument to lack merit.
                                           8

       {¶ 19} In Panetti, the United States Supreme Court reversed the Fifth Circuit’s

decision and found that “the federal appellate court employed an improperly restrictive

test when it considered petitioner’s claim of incompetency on the merits.”       Id. at 935.

The record on Panetti’s Ford claim revealed that he had been hospitalized numerous

times for psychiatric disorders, including fragmented personality, delusions, and

hallucinations, and that he had numerous psychotic episodes and became convinced that

the devil possessed his home. Although troubled by this evidence, the district court did

not believe Panetti’s delusions were relevant to his competency to be executed once it

was established that Panetti was aware of the following: (1) that he murdered his wife’s

parents; (2) that he will be executed; and (3) the reason the state has given for the

execution is his commission of the murders. The Fifth Circuit agreed with the district

court’s analysis on appeal, and its interpretation of Ford prompted the Supreme Court to

step in and clarify Ford’s application to competency determinations.

      {¶ 20} Specifically, the Supreme Court held that Ford did not foreclose inquiry

into whether a defendant has a rational understanding of the reasons for his execution

once a court has found he can identify the stated reason for his execution.      Id. at 959.

The Court expressly rejected that Ford stands for the proposition that a prisoner’s

delusional belief system is irrelevant if “the prisoner knows that the State has identified

his crimes as the reason for his execution.”   Id. at 958.   Instead, Panetti holds that the

inquiry into whether a capital defendant is insane is whether the prisoner is able to
                                                  9

 understand the reasons for his punishment or whether he is unaware of why he is to suffer

 it. Id. at 959.1

           {¶ 21} Under R.C. 2949.28(A), the term “insane,” for purposes of the inquiry, is

 defined to mean “that the convict in question does not have the mental capacity to

 understand the nature of the death penalty and why it was imposed upon the convict.”

 During the competency proceeding, Brooks was presumed not to be insane and the court

 could not find him to be so unless the court found by a preponderance of the evidence that

 he is insane. R.C. 2949.29(C).

           {¶ 22} Here, we find no basis to conclude that the trial court unreasonably applied

 Panetti in concluding that Brooks failed to satisfy his burden of demonstrating that he is

 insane.     Indeed, unlike the trial court in Panetti, there is no concern that the trial court

 did not consider all the evidence relevant to Brooks’s mental illness in determining

 whether Brooks possessed a rational understanding of the connection between the

 underlying conviction and his sentence of execution. Although the trial court found

 Brooks to suffer from paranoid schizophrenia, Panetti does not stand for the proposition

 that a person suffering from paranoid schizophrenia may never be competent to be

 executed.      Moreover, one does not have to admit that he committed the underlying


         We note that, despite reversing the lower courts, the United States Supreme Court did not
       1


declare that Panetti was incompetent to be executed; instead, it remanded the matter for the
determination to be made by the lower court after a full hearing on the matter with the consideration of
all relevant evidence, including expert medical testimony.
                                           10

crimes.   Indeed, even under Panetti, one who suffers from delusions may still be found

competent to be executed if those delusions do not prevent him from rationally

understanding the connection between the underlying conviction and his sentence of

execution. And the fact that the trial court found Brooks to be suffering from paranoid

schizophrenia does not belie its other findings or preclude a finding that Brooks failed to

meet his burden under the statute.

       {¶ 23} We find that the trial court strictly adhered to Panetti, considering all

relevant evidence, and determined that Brooks possessed both a factual and rational

understanding of (1) his crimes, (2) his impending death, and (3) the causal relationship

between the murders and his punishment.       Indeed, relying on a recorded telephone call

between Brooks and his brother on March 13, 2011, the trial court specifically found that

Brooks “exhibited the knowledge that he is going to be executed” and “an understanding

why he was sentenced to death,”      — that he had been convicted for the mass murder of

his three sons. Additionally, relying on Brooks’s testimony and demeanor during his

recent examination by Dr. Noffsinger, the trial court specifically found the following:

       {¶ 24} “[Brooks] had the mental capacity to understand the nature of the death

penalty and why it was imposed upon him. In particular, [Brooks] understood that he

had been charged with the murder of his three sons and convicted of the same by a three

judge panel, after which that same panel sentenced him to death.         Defendant further
                                           11

understood that his physical body would die upon receiving a lethal injection.

Defendant was not psychotic or exhibiting signs of post-traumatic stress disorder.”

       {¶ 25} Accordingly, based on the evidence presented, which included Brooks’s

own testimony and the expert medical testimony, we find competent, credible evidence to

support the trial court’s determination.

       {¶ 26} We find no abuse of discretion and overrule the first assignment of error.

                                 Constitutionality of R.C. 2949.28

       {¶ 27} In his second assignment of error, Brooks challenges the constitutionality of

R.C. 2949.28(B)(3), which provides:

       {¶ 28} “If the judge who is given notice under division (B)(1) of this section finds

probable cause to believe that the convict is insane, the judge shall inquire into the

convict’s insanity at a time and place to be fixed by the judge and shall give immediate

notice of the inquiry to the prosecuting attorney who prosecuted the case, or that

prosecuting attorney’s successor, and to the convict and the convict’s counsel. The

judge may hold the inquiry at the place at which the convict is confined.    If the convict

does not have counsel, the court shall appoint an attorney to represent the convict in the

inquiry. The court may appoint one or more psychiatrists or psychologists to examine

the convict.   The court shall not appoint a psychiatrist or psychologist who is an

employee of the department of rehabilitation and correction to examine the convict. The

court shall conduct any hearing under this section and section 2949.29 of the Revised
                                             12

Code and issue any ruling in the matter no later than sixty days from the date of the

notice given under division (B)(1) of this section.”   (Emphasis added.)

          {¶ 29} Brooks argues that the “statutory scheme’s truncated time frame was simply

insufficient to protect [his] right to a fundamentally fair hearing” and therefore is

unconstitutional as applied to him.2 Specifically, he contends that “the 60 day time

frame did not provide counsel with sufficient time to conduct an in-depth investigation of

this kind.” He further contends that the statute fails to satisfy the basic mandate of Ford,

which requires the state to afford a prisoner challenging his competency to be executed an

adequate fact-finding procedure. But the Sixth Circuit has already upheld Ohio’s Ford

statutes as being constitutional and complying with the dictates of Ford.       See Scott v.

Mitchell (C.A.6, 2001), 250 F.3d 1011; Bedford v. Bobby (C.A.6, 2011), 645 F.3d 372.

          {¶ 30} We find no basis to conclude that the 60-day time period deprived Brooks

of due process.       Indeed, these proceedings specifically contemplate an accelerated

schedule because (1) an execution date has been set, and (2) the competency inquiry goes

directly to the convict’s present state of mind. Here, during the 60-day period, Brooks

was afforded the opportunity to fully brief the issues, to retain a mental health expert and

an investigator, to obtain discovery, and to fully present his evidence over the course of a

four day hearing. Further, within this time period, the trial court issued detailed findings

of fact.    Indeed, the trial court took great lengths to ensure that Brooks was afforded a



           Although couched as an “as applied” constitutional challenge, Brooks’s argument is
      2
                                                  13

 fair and complete hearing after providing him extensive leeway to gather evidence in

 support of his claim.

         {¶ 31} Accordingly, because we find that Brooks was clearly afforded due process

 under both state and federal law, we find no merit to his argument and overrule the

 second assignment of error.

                                      Ineffective Assistance of Counsel

         {¶ 32} In his final assignment of error related to competency, Brooks argues that

 the “truncated time frame” deprived him of his right to the effective assistance of counsel

 during the competency-to-be-executed litigation.             But having already found the 60-day

 time period to be constitutional, we find no merit to this claim. Although Brooks claims

 that his counsel needed more time to conduct a full and adequate investigation into his

 background, he fails to demonstrate how he was prejudiced without this information.

 Moreover, based on the evidence and pleadings submitted in this case, Brooks’s counsel

 in the competency-to-be- executed litigation has been far from deficient.                     The third

 assignment of error is overruled.

         Appeal No. 97509: Denial of Motion for Leave to File a Motion for a New Trial

         {¶ 33} In challenging the trial court’s denial of his motion for leave to file a

 motion for a new trial, Brooks raises the following four assignments of error:




attacking the general time period set forth in the statute, which amounts to a facial challenge.
                                            14

       {¶ 34} “I.     The trial court abused its discretion by erroneously denying leave to

file the motion for new trial.

       {¶ 35} “II.    The trial court abused its discretion in basing its ruling on a finding

that assuming arguendo, that the statements offered as newly discovered mitigating

evidence were not previously disclosed by the state, such evidence was not material.

       {¶ 36} “III.   The trial court abused its discretion in basing its ruling on a finding

that ‘the statements support the conclusion that defendant was suffering from

schizophrenia prior to and at the time he murdered his three sons; however the trial court

already had before it similar information and, in fact, found defendant to be

schizophrenic.’

       {¶ 37} “IV.    The trial court abused its discretion in basing its ruling on a finding

that ‘it is clear defendant had information in his possession at the time of trial (via his

investigator) and during post-trial proceedings (via affidavits from family and friends)

upon which he could have moved for a new trial.[’]”

       {¶ 38} Brooks’s four assignments of error are related, as he even states that his

sole issue presented for review is: “Whether the trial court abused its discretion [in]

denying Mr. Brooks leave to file a new trial motion.” Accordingly, we will address them

together.

       {¶ 39} We review a trial court’s decision denying a motion for leave to file a

motion for a new trial under an abuse of discretion. State v. Yates, 8th Dist. No. 96664,
                                           15

2011-Ohio-4962, ¶5. We therefore will not reverse the trial court’s decision unless we

find it to be unreasonable, arbitrary, or unconscionable. Id.

       {¶ 40} Crim.R. 33(B) states, in pertinent part:

       {¶ 41} “Motions for new trial on account of newly discovered evidence shall be

filed within one hundred twenty days after the day upon which the verdict was rendered,

or the decision of the court where trial by jury has been waived. If it is made to appear

by clear and convincing proof that the defendant was unavoidably prevented from the

discovery of the evidence upon which he must rely, such motion shall be filed within

seven days from an order of the court finding that he was unavoidably prevented from

discovering the evidence within the one hundred twenty day period.” (Emphasis added.)

       {¶ 42} “A party is ‘unavoidably prevented’ from filing a motion for a new trial if

the party had no knowledge of the existence of the ground supporting the motion and

could not have learned of that existence within the time prescribed for filing the motion in

the exercise of reasonable diligence.”       State v. Berry, 10th Dist. No. 06AP-803,

2007-Ohio-2244, ¶19, citing State v. Lee, 10th Dist. No. 05AP-229, 2005-Ohio-6374, ¶7.

       {¶ 43} In support of his motion for leave to file a motion for new trial, Brooks

relies on witness statements and police reports contained in the prosecutor’s file that he

recently obtained in his competency-to-be-executed litigation. According to Brooks, this

information is exculpatory and should have been turned over by the prosecutor in his

underlying trial. In his motion, he argues that this evidence paints a clear picture that he
                                            16

suffered from paranoid schizophrenia — evidence that would have supported a not guilty

by reason of insanity defense at trial or would have been relevant in the mitigation phase

of his capital proceeding.

       {¶ 44} We agree with the trial court that Brooks has failed to satisfy his burden that

“he was unavoidably prevented from filing a motion for new trial prior to this time

despite due diligence.” The record reveals that Brooks’s mental illness has been at the

heart of this litigation — including the mitigation phase of his sentencing — since its

inception. And the issue of his suffering from paranoid schizophrenia is not a new

revelation to the defense. Indeed, as noted by the Sixth Circuit in Brooks’s habeas

corpus appeal, the trial court had a diagnosis of paranoid schizophrenia before it. Brooks

v. Bagley, 513 F.3d at 629. In fact, Brooks has already relied on some of the statements

that he now argues constitutes “newly discovered evidence” when he filed his petition for

postconviction relief in 1987. See Bagley. To the extent that he now has additional

statements that he did not have in his possession prior to trial, we find that the trial court

reasonably concluded that this evidence is duplicative or cumulative to evidence already

in Brooks’s possession, or that it could have been discovered with due diligence.

       {¶ 45} Additionally, we find that the trial court reasonably denied leave to file a

motion for a new trial because the granting of such leave would have been futile: Brooks

cannot prevail on a Brady claim for a new trial or satisfy the Petro standard for a new

trial based on the alleged “newly discovered evidence.”
                                            17

       {¶ 46} In Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d

215, the United States Supreme Court held that, “the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence is

material to either guilt or punishment, irrespective of the good faith or bad faith of the

prosecution.”

       {¶ 47} “To warrant the granting of a motion for a new trial in a criminal case,

based on the ground of newly discovered evidence, it must be shown that the new

evidence (1) discloses a strong probability that it will change the result if a new trial is

granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of

due diligence have been discovered before the trial, (4) is material to the issues, (5) is not

merely cumulative to former evidence, and (6) does not merely impeach or contradict the

former evidence.” State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370, syllabus.

       {¶ 48} The evidence relied on by Brooks in support of his motion was either

known to him at trial or could have been obtained with reasonable diligence. See Coe v.

Bell (C.A.6, 1998), 161 F.3d 320, 344 (recognizing that to implicate Brady, the withheld

material evidence must be “wholly within the control of the prosecution”). For this same

reason, his claim fails under Petro.

       {¶ 49} Accordingly, because Brooks failed to establish by clear and convincing

evidence that he was unavoidably prevented from the discovery of any new evidence that

would entitle him to a new trial, we cannot say that the trial court abused its discretion in
                                           18

denying Brooks leave to file a motion for a new trial. His four assignments of error in

Appeal No. 97509 are overruled.

      Judgment affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
