[Cite as State v. Pickens, 2016-Ohio-5257.]



                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :    APPEAL NO. C-130004
                                                   TRIAL NO. B-0905088
          Respondent-Appellee,                :

        vs.                                   :         O P I N I O N.

MARK PICKENS,                                 :

          Petitioner-Appellant.               :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 5, 2016




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Respondent-Appellee,

Kathryn L. Sandford and Allen M. Vender, Assistant Ohio Public Defenders, for
Petitioner-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Petitioner-appellant Mark Pickens appeals the Hamilton County

Common Pleas Court’s judgment dismissing his R.C. 2953.21 petition seeking

postconviction relief from his aggravated-murder convictions and death sentences.

We reverse the court’s judgment, because in dismissing the petition upon findings of

fact and conclusions of law submitted ex parte by the state, without affording Pickens

notice of the submission or an opportunity to respond, the court denied him due

process and the deliberative process required under R.C. 2953.21(C).

       {¶2}   In 2010, Pickens was convicted on three counts of aggravated murder.

The trial court, upon the jury’s recommendation, imposed for each murder a

sentence of death. In 2014, the Ohio Supreme Court affirmed Pickens’s convictions.

State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023.

       {¶3}   Pickens had filed with the common pleas court in 2011 a petition under

R.C. 2953.21 for postconviction relief. He also moved for discovery and for the funds

for neurological testing to aid him in that discovery.

       {¶4}   On October 31, 2012, the common pleas court conducted a hearing on

Pickens’s discovery motions and on the state’s motion to dismiss Pickens’s

postconviction petition. Those matters were submitted to the court upon arguments

presented at the hearing by the assistant prosecuting attorney and Pickens’s counsel

and upon pleadings, motions, and responses filed prior to the hearing, including

Pickens’s postconviction petition and its amendments and attachments, the state’s

motion to dismiss the petition, and Pickens’s reply to the motion to dismiss. On

November 5, the common pleas court overruled Pickens’s discovery motions. And on

December 5, the court filed an entry captioned “Proposed Findings of Fact,



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Conclusions of Law, and Entry Dismissing Petition to Vacate.”

       {¶5}   From that entry, Pickens appeals.        On appeal, he advances four

assignments of error.

                  Findings of Fact and Conclusions of Law

       {¶6}   In his first assignment of error, Pickens contends that the common

pleas court’s procedure in deciding his postconviction petition denied him the

protections afforded by the Due Process Clause of the Fourteenth Amendment to the

United States Constitution. He asserts that the court’s entry dismissing his petition,

captioned “Proposed Findings of Fact, Conclusions of Law, and Entry Dismissing

Petition to Vacate,” demonstrates a total abdication to the state of the court’s duty

under R.C. 2953.21(C) to “make and file findings of fact and conclusions of law.”

And he contends that the state’s apparent submission to the court of proposed

findings of fact and conclusions of law, without notice to him or an opportunity to

respond, constituted an improper ex parte communication between the court and the

state concerning his postconviction claims. This challenge is well taken.

       {¶7}   The common pleas court’s duties under R.C. 2953.21.

R.C. 2953.21 et seq. governs the proceedings on a postconviction petition. R.C.

2953.21 empowers the common pleas court to dismiss a timely filed postconviction

petition without an evidentiary hearing if, upon consideration of the petition,

supporting affidavits, documentary evidence, and the files and records of the

proceedings leading to the petitioner’s conviction, the court determines that “there

are [no] substantive grounds for relief.”      R.C. 2953.21(C).    The statute further

requires that the court, in dismissing the petition, “make and file findings of fact and

conclusions of law.” Id.



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       {¶8}   The court below did not conduct an evidentiary hearing on Pickens’s

postconviction petition. At the hearing on the state’s motion to dismiss the petition,

the court took the matter under submission upon counsel’s arguments, the petition

and its amendments and attachments, the motion to dismiss, and Pickens’s reply to

that motion. The court requested nothing more from either party. Specifically, the

court did not request, nor did either party offer to submit, proposed findings of fact

and conclusions of law.

       {¶9}   The court then dismissed Pickens’s petition by filing an entry

captioned “Proposed Findings of Fact, Conclusions of Law, and Entry Dismissing

Petition to Vacate.” (Emphasis added.) Although the state, in its appellate brief,

asserts that it “sua sponte offered the proposed findings in conjunction with [its]

motion to dismiss Pickens’ post-conviction petition,” the record does not show that

they were filed in the case, attached to any pleading or motion, solicited by the court,

or served on opposing counsel. But based on the state’s statement in its brief, along

with the presence of the word “Proposed” in the caption of the court’s entry granting

the state’s motion to dismiss the petition, we may reasonably conclude that the court

adopted verbatim proposed findings of fact and conclusions of law that had been

submitted in written form by the state. And from the absence of any suggestion in

the record that Pickens knew that the state had provided the court with proposed

findings of fact and conclusions of law or that Pickens had been afforded an

opportunity to respond or to propose his own, the state’s submission can only be said

to have been ex parte.

       {¶10} State v. Roberts. In State v. Roberts, 110 Ohio St.3d 71, 2006-

Ohio-3665, 850 N.E.2d 1168, the Ohio Supreme Court vacated Roberts’s death



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sentence and remanded for resentencing, because its “confidence in the trial court’s

sentencing opinion [had been] undermined by the fact that the trial judge directly

involved the prosecutor in preparing the sentencing opinion and did so on an ex

parte basis.” Id. at ¶ 159. The Supreme Court concluded that the trial court had

failed to follow the “proper process,” because the “delegation of any degree of

responsibility in [its] sentencing opinion does not comply with [the mandate of] R.C.

2929.03(F),” that “the trial court itself will draft the death-sentence opinion,” and

does not comport with the court’s “firm belief that the consideration and imposition

of death are the most solemn of all the duties that are imposed on a judge.” Id. at ¶

160.

       {¶11} This conclusion, the Supreme Court declared, was “compelled

particularly in light of the trial court’s ex parte communications about sentencing

with the prosecutor in preparing the sentencing opinion.” Id. at ¶ 161. The Supreme

Court determined that, because of the trial court’s ex parte communications with the

prosecutor without defense counsel’s knowledge or participation, the trial court’s

“grievous violation of the statutory deliberative process” could neither be deemed

harmless error nor be cured by the Supreme Court’s own independent assessment.

Id. at ¶ 162-163. Accordingly, the Supreme Court vacated Roberts’s death sentence

and remanded the case for a new sentencing opinion. Id. at ¶ 167.

       {¶12} Roberts followed.         The Sixth Appellate District in Sedlack v.

Palm, 189 Ohio App.3d 135, 2010-Ohio-3924, 937 N.E.2d 642 (6th Dist.), followed

Roberts to reverse and remand a domestic relations court’s entry adopting a child-

visitation decision by a magistrate who, following a hearing on motions to modify

visitation, had contacted the father’s counsel regarding preparation of the decision,



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without notice to or input by opposing counsel. The magistrate’s contact with the

father’s counsel was undisputed. And the court found that this “blatant instance of

ex parte communication * * * at a crucial point in the judicial process” constituted a

“grievous violation of the deliberative process” and “undermin[ed] [the] court’s

confidence in the impartiality of the magistrate’s decision.” Id. at ¶ 12.

       {¶13} Roberts distinguished. Other appellate districts have declined to

follow Roberts when the record could not be said to demonstrate an ex parte

communication. See, e.g., State v. Reid, 2d Dist. Montgomery No. 24672, 2012-

Ohio-1659, ¶ 16 (holding that an ex parte communication was not demonstrated by

“the mere fact” that the trial court, in its entry overruling defendant’s public-records

request, had incorporated language from the state’s opposing memorandum); State

v. Davie, 11th Dist. Trumbull No. 2007-T-0069, 2007-Ohio-6940, ¶ 12-19 (holding

that Roberts did not apply, when the record did not demonstrate that the court’s

opinion sentencing Davie to death was the product of an ex parte communication).

       {¶14} Still other appellate districts have found Roberts additionally

distinguishable based on the procedural posture of the case in Roberts—on direct

appeal from a death sentence—and that of a case on appeal from the dismissal of a

postconviction petition. The Seventh District in State v. Ahmed, 7th Dist. Belmont

No. 05-BE-15, 2006-Ohio-7069, distinguished Roberts in rejecting a challenge to the

findings of fact and conclusions of law issued in an entry dismissing a postconviction

petition. Id. at ¶ 65-73. There, the findings of fact and conclusions of law were

drafted by the state, but were not demonstrably the product of an ex parte

communication, because the prosecution had filed them with the common pleas

court and had served them on the petitioner’s counsel, the common pleas court had



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                    OHIO FIRST DISTRICT COURT OF APPEALS



afforded the petitioner’s counsel the opportunity to file objections or to submit

findings of fact and conclusions of law, and counsel had filed objections. Id. at ¶ 70.

The Seventh District further held that the common pleas court had not violated R.C.

2953.21(C) in adopting the state’s findings of fact and conclusions of law, because

Ahmed was not denied meaningful appellate review. Id. at ¶ 71-73.

       {¶15} The Eleventh Appellate District in its October 2010 decision in State v.

Jackson, 190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221 (11th Dist.),

ordered resentencing for Roberts’s partner in the murder of her husband, because

the same trial court had employed the same procedure in drafting Jackson’s death-

sentence opinion that it had employed in drafting Roberts’s opinion. But seven

months earlier, the Eleventh District had rejected the Roberts challenge advanced by

Jackson on appeal from the overruling of his Civ.R. 60(B) motion seeking relief from

the dismissal of his postconviction petition.      See State v. Jackson, 11th Dist.

Trumbull No. 2008-T-0024, 2010-Ohio-1270 (“Jackson I”).            The common pleas

court had denied Civ.R. 60(B) relief upon its determination that its procedure in

drafting     the entry   dismissing   Jackson’s postconviction     petition with the

prosecution’s assistance was “permit[ted] [under R.C. 2953.21] * * * even in a death

case.” Id. at ¶ 20. And the record showed that Jackson had known of the state’s

involvement in drafting the entry, because he filed with the common pleas court a

motion “requesting [that] the court not delegate [that] judicial function.” Id. at ¶ 21.

Thus, the findings of fact and conclusions of law dismissing Jackson’s postconviction

petition were not the product of an ex parte communication between the state and

the court.

       {¶16} Despite this clear basis for finding Roberts inapplicable, the Eleventh



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District in Jackson I went on to further distinguish Roberts. The court read the

Seventh District’s decision in Ahmed to hold that the rule of Roberts does not apply

in postconviction proceedings. Id. at ¶ 36. Postconviction proceedings, the court

noted, are civil in nature. And in the court’s view, the Supreme Court in Roberts was

“clearly focused on the fact that R.C. 2929.03(F) required the trial court to make its

own findings” in drafting its death-sentence opinion, while R.C. 2953.21(G) “does

not contain similar language mandating the trial court [] make its own findings” in

dismissing a postconviction petition. Id. at ¶ 37. The court thus concluded that “the

language of R.C. 2953.21(G) does not impose the same mandate precluding

assistance in drafting the judgment entry as the Supreme Court of Ohio found R.C.

2929.03(F) does.” Id. at ¶ 37.

       {¶17} The statutory deliberative process, due process, and ex

parte communication.             The Eleventh District in Jackson and the Seventh

District in Ahmed concluded that Roberts was inapplicable, because the findings of

fact and conclusions of law dismissing those postconviction petitions had not been

the product of an ex parte communication between the state and the court. Those

decisions may also be read to hold that the rule of Roberts does not apply in

postconviction proceedings. We respectfully disagree.

       {¶18} Certainly, there is a reasonable basis for distinguishing between the

duty imposed under R.C. 2929.03(F) upon a trial court imposing a death sentence, to

“state in a separate opinion its specific findings,” and the duty imposed under R.C.

2953.21(C) upon a common pleas court dismissing a postconviction petition, to

“make and file findings of fact and conclusions of law.” Because “the consideration

and imposition of death are the most solemn of all the duties that are imposed on a



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judge,” a trial court may not delegate any responsibility imposed by R.C. 2929.03(F)

in drafting its sentencing opinion imposing death. Roberts, 110 Ohio St.3d 71, 2006-

Ohio-3665, 850 N.E.2d 1168, at ¶ 160. In contrast, in dismissing a postconviction

petition, a court’s verbatim adoption of a party’s proposed findings of fact and

conclusions of law will not, alone, provide a ground for reversal if those findings of

fact and conclusions of law adequately advance their purposes, that is, if they cover

and pertain to the material and determinative issues presented in the petition and

adequately apprise the petitioner and the reviewing court of the legal and evidentiary

bases for the decision denying the petition. State v. Calhoun, 86 Ohio St.3d 279,

291-292, 714 N.E.2d 905 (1999), citing State ex rel. Carrion v. Harris, 40 Ohio St.3d

19, 530 N.E.2d 1330 (1988), and State v. Clemmons, 58 Ohio App.3d 45, 46, 568

N.E.2d 705 (2d Dist.1989); State v. Powell, 90 Ohio App.3d 260, 263, 629 N.E.2d 13

(1st Dist.1993); State v. Sowell, 73 Ohio App.3d 672, 676, 598 N.E.2d 136 (1st

Dist.1991). Thus, a common pleas court may delegate the drafting responsibility

imposed under R.C. 2953.21(C) in dismissing a postconviction petition.

       {¶19} But the issue here is not, as the state insists, whether the findings of

fact and conclusions of law contained in the entry dismissing Pickens’s

postconviction petition were adequate to their task. Like R.C. 2929.03(F), R.C.

2953.21(C) further mandates, in the words of the Roberts court, a “deliberative

process,” requiring the common pleas court to not just “make” findings of fact and

conclusions of law, but to do so based upon its consideration of the petition,

supporting affidavits, documentary evidence, and the files and records of the

proceedings leading to the petitioner’s conviction, to determine whether “there are

substantive grounds for relief.” This deliberative process may not be delegated.



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       {¶20} Moreover, the procedural protections afforded by the Due Process

Clause of the Fourteenth Amendment require that parties to an action be given

reasonable notice and an opportunity to be heard before a competent tribunal, “at a

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319,

334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545,

552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); State v. Luff, 117 Ohio St. 102, 157 N.E. 388

(1927), paragraph four of the syllabus.         An ex parte communication is a

communication concerning a substantive matter in a case between the decision-

maker and an adverse party, without notice to an affected party. See Jenkins, 15

Ohio St.3d 164, 473 N.E.2d 264, at paragraph thirteen of the syllabus. An ex parte

communication denies the affected party procedural due process, because without

notice of the communication, the affected party cannot respond. Cummins v. Village

of Minster, Ohio, 2015-Ohio-4129, 43 N.E.3d 902, ¶ 14 (3d Dist.); State v. Sanders,

188 Ohio App.3d 452, 2010-Ohio-3433, 935 N.E.2d 905, ¶ 19 (10th Dist.); In re

Swader, 12th Dist. Warren No. CA2000-04-036, 2001-Ohio-4191; State v. Denger,

6th Dist. Huron No. H-95-059, 1996 Ohio App. LEXIS 3089, *19 (July 19, 1996); In

re Dismissal of Osborn, 5th Dist. Ashland No. CA-1009, 1992 Ohio App. LEXIS

4364, *34 (Aug. 20, 1992).

       {¶21} In Roberts, the trial court’s ex parte communications with the state in

preparing its death-sentence opinion, without defense counsel’s knowledge or

participation, so “undermined” the Supreme Court’s “confidence in the * * * opinion”

that the trial court’s failure to engage in the “deliberative process” mandated by R.C.

2929.03(F) could neither be deemed harmless error nor be cured by the Supreme

Court’s own independent assessment.        Accordingly, the Supreme Court vacated



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Roberts’s death sentence and remanded for resentencing. Roberts, 110 Ohio St.3d

71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 159, 162-163.              Compare In re

Investigation of Natl. Union Fire Ins. Co. of Pittsburgh Pa., 66 Ohio St.3d 81, 88,

609 N.E.2d 156 (1993) (holding that when de novo review is conducted and that

review is not affected by the ex parte communication, then the due-process violation

is harmless). The Sixth District in Sedlack followed Roberts to reverse the domestic-

relations court’s entry adopting the magistrate’s decision, because the “blatant

instance of ex parte communication” between the magistrate and the father’s counsel

“at a crucial point in the judicial process” constituted a “grievous violation of the

deliberative process” and “undermin[ed] [the] court’s confidence in the impartiality

of the magistrate’s decision.” Sedlack, 189 Ohio App. 3d 452, 2010-Ohio-3924, 937

N.E.2d 642, at ¶ 12.

       {¶22} Here, the common pleas court’s dismissal of Pickens’s petition by filing

the state’s “Proposed Findings of Fact and Conclusions of Law” suggests that the

court, in “making” the findings of fact and conclusions of law, did not engage in the

“deliberative process” mandated by R.C. 2953.21(C). The effect of that dismissal was

to deny Pickens relief from aggravated-murder convictions for which he had been

sentenced to death. The findings of fact and conclusions of law contained in the

entry dismissing the petition were the product of an ex parte communication

between the court and the state. And because Pickens was not afforded either notice

of the state’s submission of its proposed findings of fact and conclusions of law or an

opportunity to respond, he was denied procedural due process.              Under the

circumstances, we cannot say that the deprivation of due process occasioned by that

ex parte communication was harmless.



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       {¶23} We, therefore, sustain the first assignment of error.

                           We Reverse and Remand

       {¶24} Our disposition of Pickens’s first assignment of error renders moot the

challenges advanced in his remaining assignments of error. We, therefore, do not

reach the merits of those challenges.

       {¶25} We reverse the common pleas court’s entry dismissing Pickens’s

postconviction petition, because the court’s ex parte communication with the state in

making its findings of fact and conclusions of law violated due process and

undermined any confidence that the court had engaged in the deliberative process

mandated by R.C. 2953.21(C), and because that deprivation of due process cannot be

said to have been harmless.     And we remand this case for further proceedings

consistent with the law and this opinion.

                                                 Judgment reversed and cause remanded.

FISCHER, P.J., CUNNINGHAM and STAUTBERG, JJ.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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