[Cite as State v. Simpson, 2016-Ohio-1266.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 26631
                                                    :
 v.                                                 :   Trial Court Case No. 11-CR-1356/1
                                                    :
 KERON D. SIMPSON                                   :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                            Rendered on the 25th day of March, 2016.

                                               ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellee

GARY W. CRIM, Atty. Reg. No. 0020252, 943 Manhattan Avenue, Dayton, Ohio 45406-
5141
     Attorney for Defendant-Appellant

                                              .............

HALL, J.

        {¶ 1} Keron D. Simpson appeals from the trial court’s entry of summary judgment
                                                                                                -2-


against him on his R.C. 2953.21 petition for post-conviction relief.

       {¶ 2} Simpson advances ten assignments of error. The first five involve allegations

of ineffective assistance of counsel at trial. Specifically, Simpson contends his trial

counsel provided ineffective assistance by failing (1) to obtain an expert to evaluate his

mental status, (2) to interview a potential witness, (3) to obtain a DNA expert, (4) to obtain

an expert on witness perception, and (5) to obtain an eyewitness-identification expert. In

his sixth through eighth assignments of error, Simpson claims the trial court erred in

overruling his post-conviction motions for the appointment of (1) an expert to evaluate his

mental status, (2) an expert on DNA, and (3) an eyewitness-identification expert. In his

ninth assignment of error, Simpson asserts that the trial court erred in denying a post-

conviction claim for relief based on faulty eyewitness identification. Finally, in his tenth

assignment of error, Simpson contends the trial court erred in denying a post-conviction

claim for relief alleging a violation of his constitutional right against self-incrimination.

       {¶ 3} The record reflects that Simpson was convicted and sentenced in the above-

captioned case on multiple counts of murder, aggravated robbery, having a weapon while

under disability, and firearm specifications. The convictions stemmed from Simpson’s

participation in a shooting at an unlicensed liquor establishment. After merging certain

counts, the trial court imposed an aggregate prison term of 33 years to life. This court

affirmed on direct appeal in State v. Simpson, 2d Dist. Montgomery No. 25069, 2013-

Ohio-1072.

       {¶ 4} Simpson subsequently filed his petition for post-conviction relief. He raised

three claims. First, he alleged that his trial counsel provided ineffective assistance by (1)

failing to “secure expert testimony about the impact of cocaine on perception and
                                                                                            -3-


memory,” (2) failing to have “DNA testimony reviewed by an expert,” (3) failing to have

“an expert on eyewitness identification,” (4) failing to have his “mental status reviewed by

a mental health professional,” and (5) failing “to interview various witnesses.” (Doc. #8 at

6). Second, he argued that his constitutional right to a fair trial was violated “buy [sic] the

use of eyewitness identification that had a very substantial likelihood of irreparable

misidentification.” (Id. at 8). Third, he asserted that his constitutional right against self-

incrimination was violated because the voluntariness of various statements he made “was

litigated without considering his mental status.” (Id. at 9). In connection with his petition,

Simpson moved for the appointment of an expert witness to evaluate his mental status,

a DNA expert, and an eyewitness-identification expert. (Doc. #15, 16, 17). The trial court

overruled these motions. (Doc. #25). Thereafter, the State filed a combined motion for

summary judgment/motion to dismiss. (Doc. #38). After briefing, the trial court entered

summary judgment against Simpson on his petition. (Doc. #60). This appeal followed.

       {¶ 5} As a means of analysis, we begin with Simpson’s second assignment of

error, which asserts that the trial court erred in denying post-conviction relief predicated

on his trial counsel’s ineffective assistance due to failure to “interview witnesses.” In his

appellate brief, Simpson actually identifies only one witness, Terrence Jones, whom his

attorney failed to interview. According to Simpson, Jones gave a statement to police and

identified a co-defendant other than Simpson as the person he saw fire a fatal shot inside

the unlicensed liquor establishment. Simpson asserts that this statement “is consistent

with [his] innocence of the murder because Jones puts the guns in the hands of the other

two defendants.” (Appellant’s brief at 19). Simpson’s trial counsel admits that he did not

interview Jones, although he did review Jones’ statement to police. (Affidavit, Doc. #36).
                                                                                        -4-




       {¶ 6} The trial court rejected Simpson’s argument, finding that it did not warrant

even an evidentiary hearing. The trial court reached this conclusion for multiple reasons.

It first concluded that Jones’ police statement was “ambiguous concerning whether Mr.

Simpson or one of his companions shot [victim Hank] Sanders,” apparently because the

statement only provided a vague physical description of the three co-defendants,

including the shooter. (Doc. #60 at 10). The trial court noted Simpson’s failure to present

an affidavit from Jones clearly stating that Simpson did not shoot anyone. (Id.) The trial

court then continued:

              It is also noted that Terrence Jones was shown photospreads

       regarding Keron Simpson, Earl Moon, and Daviontae Norvell. Mr. Jones

       was not able to identify Mr. Norvell, but he did identify Mr. Simpson and Mr.

       Moon as participants in the aggravated robberies and murders at issue. This

       is consistent with the trial testimony of Shawn Dentel, Erika Peck, and

       Annette Dillard with each witness identifying Mr. Simpson as a participant

       in the aggravated robberies and as the person who shot Hank Sanders.

              The State’s theory was that Mr. Simpson shot Mr. Sanders and that

       Mr. Moon shot Michelle Carter. However, Mr. Simpson was also convicted

       of Ms. Carter’s murder, and Mr. Moon was convicted of not only Ms. Carter’s

       murder but also Mr. Sanders’ murder. Given this, and even assuming that

       Mr. Jones would testify that either Mr. Moon or the third participant shot Mr.

       Sanders, such testimony would not change the trial’s outcome because Mr.

       Simpson, as a participant in the aggravated robberies, is guilty of each
                                                                                         -5-


       murder even if he did not fire the weapon that fatally wounded either Mr.

       Sanders or Ms. Carter. It is, thus, concluded that [defense counsel Bobby

       Joe] Cox’s failure to interview Mr. Jones and pursue the suggested

       contradiction concerning who shot Mr. Sanders would not have changed

       the trial’s outcome. It is, therefore, concluded that Mr. Simpson has not met

       his initial burden to establish a substantial basis that Mr. Cox’s failure to

       interview Terrence Jones would have changed the trial’s outcome. As such,

       this contention may be dismissed without a hearing through summary

       judgment. This conclusion leads to the further conclusion that Keron

       Simpson’s motions relating to Terrence Jones’ statement are appropriately

       overruled.

(Id. at 11).

       {¶ 7} On appeal, Simpson completely ignores the trial court’s observation that he

was guilty of murder, as an aider and abettor, even if we accept, arguendo, that he did

not personally shoot Sanders. (Appellant’s brief at 19-20; Reply brief at 3). We believe

the trial court was correct. Simpson has not shown any possibility that the outcome of his

trial would have been different if defense counsel had interviewed Jones. Even if Jones

would have identified someone else as the shooter, Simpson still would have remained

guilty of murder as an aider and abettor. Accordingly, the second assignment of error is

overruled.

       {¶ 8} We turn next to Simpson’s first, third, fourth, and fifth assignments of error,

which we will address together. In these assignments of error, Simpson claims the trial

court erred in rejecting his post-conviction claim for relief based on his trial counsel’s
                                                                                            -6-


failure to obtain experts to address (1) his mental status, (2) DNA evidence, (3) witness

perception and memory, and (4) eyewitness identification.

       {¶ 9} With regard to trial counsel’s failure to obtain experts on DNA evidence,

witness perception and memory, and eyewitness identification, we do not know what such

experts would have concluded, or whether they would have aided Simpson’s defense,

because his petition for post-conviction relief is devoid of evidence outside the record

from such experts. We recognize that Simpson’s request for appointment of experts who

theoretically might have supplied additional evidence was denied, but we deal with that

issue in our analysis of his sixth, seventh and eighth assignments of error. Absent

evidence outside the record to support his claim that failure to retain experts was

prejudicial to him, Simpson cannot succeed on his post-conviction claim based on trial

counsel’s failure to secure such experts. Accordingly, his third, fourth, and fifth

assignments of error are overruled.

       {¶ 10} We reach a similar conclusion with regard to Simpson’s argument about

trial counsel’s failure to retain an expert to evaluate his mental status, which is the subject

of his first assignment of error. Simpson asserts that he suffers from an intellectual

disability, namely “mental retardation,” that his trial counsel failed to recognize this

disability or to make any “adjustment” for it, and that counsel should have retained a

mental-health expert to evaluate him. He argues that counsel’s failure to do so constituted

ineffective assistance. In support of his post-conviction claim about the need for an

evaluation of his mental status, Simpson provided the trial court with his Dayton Public

School records and Social Security Administration records. Those records show that he

received low grades in school, that he participated in a special-education program, that
                                                                                               -7-


he had a full-scale I.Q. of 53, and that he was classified as “mildly mentally retarded.” He

also provided an affidavit stating that his trial counsel, Bobby Joe Cox, knew he had a

“learning disability.” (Doc. #8 at Simpson affidavit).

       {¶ 11} The trial court rejected Simpson’s claim for post-conviction relief based on

counsel’s failure to have an expert review his mental status. In support, the trial court

noted that Simpson was not claiming he was legally incompetent to stand trial. Instead,

he was claiming that, as a result of his deficient mental status, he could not properly waive

his Miranda rights or assist counsel in making important trial decisions. The trial court

found “significant difficulty” with such a distinction. It noted that “[t]he issues of a voluntary

Miranda waiver, trial assistance, and trial decision making relate to competence, yet Mr.

Simpson does not suggest such incompetence.” (Doc. #60 at 8). The trial court then

continued:

               The indicated records, which the trial court has carefully reviewed,

       do not, in any event, demonstrate that Mr. Simpson’s level of mental

       functioning affected his ability to understand and knowingly and voluntarily

       waive his Miranda rights, to provide assistance to Mr. Cox, or to be involved

       in trial strategy decisions. Mr. Simpson, other than filing the records, has

       presented no evidence that Mr. Simpson’s mental status affected him as

       suggested.

               Mr. Simpson’s contention is compromised, if not dispelled, by Mr.

       Simpson’s video captured demeanor and conduct during video recorded

       interviews. Mr. Simpson, despite his suggestion to the contrary, was

       engaged and alert during the interviews. The interviews reveal no cause for
                                                                                   -8-


concern regarding Mr. Simpson’s mental status. Mr. Cox, going first to the

issue of ineffective assistance, had no reason to have Mr. Simpson’s mental

status evaluated based upon his assumed knowledge that Mr. Simpson had

a learning disability. Further, Mr. Simpson’s verbal competence and

demeanor, again as reflected by Mr. Simpson’s video recorded interviews,

would not reasonably have alerted Mr. Cox that a mental status evaluation

was appropriate. Further, Mr. Simpson, as noted, has not supplied the court

with information demonstrating that Mr. Simpson’s mental status

compromised his ability to knowingly and voluntarily waive his Miranda

rights, to assist counsel, and to be involved in trial decisions. There is, upon

this record, no basis upon which to conclude that Mr. Cox’s performance

was ineffective based upon his failure to have Mr. Simpson’s mental status

evaluated. It is also noted that Mr. Simpson has not presented evidence or

argument demonstrating how a mental status evaluation would have

affected the trial’s outcome. The trial, since Mr. Simpson does not suggest

he was not competent to stand trial, would have occurred even if a mental

status examination had been conducted. Mr. Simpson does not suggest and

the court cannot fathom how the trial’s outcome would have been affected

by the assumed mental status examination.

       Mr. Simpson, in summary, has failed in his initial burden to

demonstrate a substantial basis upon which it could be concluded that Mr.

Cox was ineffective for not having Mr. Simpson’s mental status evaluated

or that such an examination would have affected the trial’s outcome. As
                                                                                             -9-


       such, this claim may be dismissed without an evidentiary hearing through

       the grant of summary judgment.

(Doc. #60 at 8-9).

       {¶ 12} On appeal, Simpson reiterates his claim that his mental status affected his

ability to waive his Miranda rights as well as decisions such as whether to go to trial or

whether to testify and his ability to assist trial counsel in presenting a defense. Therefore,

he argues that his trial counsel should have investigated his mental status and retained

an expert to evaluate that status after being informed that he had a “learning disability.”

In connection with his argument, Simpson also asserts that developmental disability or

“mental retardation,” which he purportedly suffers from, cannot be detected though

observation by a lay person.

       {¶ 13} Having reviewed Simpson’s argument and his evidentiary materials, we see

no error in the trial court’s rejection of his claim without a hearing. As a preliminary matter,

Simpson does not challenge the trial court’s finding that his demeanor and conduct during

recorded interviews gave no outward indication that his mental status was impaired.

According to Simpson’s affidavit accompanying his petition, defense counsel had been

told only that he had a “learning disability,” which Simpson acknowledges in his appellate

brief “is not as bad in society’s eyes as suffering from mental retardation, or as it is now

defined, developmental disability.” (Appellant’s brief at 17). We are unconvinced that

being told Simpson had a learning disability reasonably should have alerted defense

counsel of the need to have his “mental status” evaluated, particularly in light of what the

trial court found to be Simpson’s appropriate behavior on recorded videos. This is true

even if we accept that Simpson in fact does suffer from “mild mental retardation.”
                                                                                          -10-


Simpson’s own admission, that his degree of developmental disability or “mental

retardation” would not be detected by a lay person, leads to the conclusion that his mental

status would not have been evident to his trial counsel either.

       {¶ 14} We also agree with the trial court that evidence of Simpson’s low I.Q. and

“mild mental retardation” fails to raise an issue as to his ability to assist trial counsel in

making strategic decisions. The trial court found that Simpson was not claiming to be

incompetent to stand trial, and Simpson has not challenged that finding on appeal. But if

Simpson does not claim his mental status rendered him legally incompetent, then we fail

to see the significance of, or the need for, trial counsel to have an expert evaluate his

mental status. By definition, if Simpson was legally competent to stand trial, then he was

sufficiently able to assist his attorney in making strategic decisions. We are unaware of

any authority that would have imposed on Simpson’s attorney an obligation to seek an

expert opinion on his “mental status” under the circumstances before us. Moreover, we

agree with the trial court that the evidentiary materials accompanying Simpson’s

petition—Dayton Public School and Social Security Administration records—did not

provide a substantial basis for concluding that Simpson’s mental status compromised his

ability to knowingly and voluntarily waive his Miranda rights, to assist defense counsel, or

to be involved in trial decisions. Finally, we have no way of knowing what result a mental-

status evaluation would have produced in the trial court, what conclusion a mental-health

expert retained by defense counsel would have reached, or whether such an evaluation

would have assisted Simpson. Therefore, Simpson also cannot establish that he was

prejudiced by his attorney’s failure to obtain a mental-status evaluation. The first

assignment of error is overruled.
                                                                                           -11-




       {¶ 15} In his sixth, seventh, and eighth assignments of error, Simpson asserts that

the trial court erred in overruling his post-conviction motions for the appointment of

experts   to   evaluate     his   mental    status,   DNA     evidence,    and    eyewitness

identification/perception. (Appellant’s brief at 21). Specifically, the sixth assignment of

error concerns the trial court’s rejection of his post-conviction request for an order

appointing Julie Gentile, M.D., to provide a preliminary review of documents concerning

his “mental status.” In particular, Simpson wanted Gentile to review the Dayton Public

School and Social Security Administration records mentioned above to bolster his post-

conviction claim that he suffered from a developmental disability. His seventh assignment

of error concerns the trial court’s rejection of his post-conviction request for an order

appointing an expert to review the State’s DNA evidence. Finally, the eighth assignment

of error concerns the trial court’s rejection of his post-conviction request for the

appointment of an eyewitness-identification/perception expert to support his post-

conviction claim about allegedly faulty eyewitness-identification testimony at trial.

       {¶ 16} We see no error in the trial court’s denial of Simpson’s motions for

appointment of the foregoing experts in connection with his petition for post-conviction

relief. The short answer to his arguments is that he had no right, statutory or constitutional,

to the appointment of experts to assist in his post-conviction relief petition. This court has

held that “indigent prisoners are not entitled to funding for experts when pursuing

collateral attacks on their convictions.” State v. Hooks, 2d Dist. Montgomery Nos. 16978,

17007, 1998 WL 754574, *3 (Oct. 30, 1998). This is so because “[p]ost-conviction relief

is not a constitutional right, and it affords a petitioner no rights beyond those granted by
                                                                                            -12-

the controlling statute, R.C. 2953.23.” State v. Osie, 12th Dist. Butler No. CA2014-10-

222, 2015-Ohio-3406, ¶ 31. “[I]t is not error for a trial court to deny a request * * * for the

appointment of an expert in a post-conviction relief petition because Ohio’s statute, R.C.

2953.21, does not provide * * * a right * * * to expert assistance.” Id. at ¶ 40; see also

State v. Bennington, 4th Dist. Adams No. 12CA956, 2013-Ohio-3772, ¶ 25, fn. 4 (citing

cases for the proposition that “R.C. 2953.21 does not provide a right to funding or

appointment of expert witnesses or assistance in a post-conviction petition”).

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

Ohio St.3d 144, 694 N.E.2d 932 (1998), State v. Broom, 40 Ohio St.3d 277, 533 N.E.2d

682 (1988), and Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

None of these cases, however, involved a petition for post-conviction relief. Mason,

Broom, and Ake were capital cases that involved the appointment of experts to assist at

the trial level. Therefore, they are inapposite. The sixth, seventh, and eighth assignments

of error are overruled.

       {¶ 18} In his ninth assignment of error, Simpson argues that the trial court erred in

rejecting his post-conviction claim for relief based on allegedly faulty eyewitness

identification. Specifically, he complains that his “right to a fair trial” was violated “by the

admission of an unfair eyewitness identification procedure.” (Appellant’s brief at 29). This

assignment of error lacks merit. Because Simpson’s post-conviction relief petition

presented no evidence outside the record to support his eyewitness-identification

challenge, res judicata applies. Moreover we specifically dealt with asserted error in the

eyewitness identification in his direct appeal. Accordingly, the ninth assignment of error

is overruled.
                                                                                          -13-




       {¶ 19} In his tenth assignment of error, Simpson contends the trial court erred in

rejecting his post-conviction claim for relief based on an alleged violation of his

constitutional right against self-incrimination. In support of this claim, Simpson argued in

his petition that the admissibility of various custodial statements he made had been

litigated below “without considering his mental status.” (Doc. #8 at 9). The trial court

rejected this argument, reasoning: “The material[s] Mr. Simpson has presented in support

of this argument—school and social security records—fail to demonstrate that Mr.

Simpson’s mental status was such that he could not understand his Miranda rights and

knowingly waive such rights.” (Doc. #60 at 12).

       {¶ 20} On appeal, Simpson simply cites a law review article to support the

proposition that “mentally retarded” individuals do not understand Miranda rights.

(Appellant’s brief at 29-30). He then asserts that the admissibility of his statements “rested

on a foundation that did not have all of the facts.” (Id. at 30).

       {¶ 21} The record reflects that Simpson filed a suppression motion that addressed,

among other things, custodial statements he had made to police. He sought suppression

of the statements, challenging the validity of his waiver of his Miranda rights prior to

making the statements. The trial court filed a decision, entry, and order overruling

Simpson’s motion. In relevant part, the trial court found that he had been advised of his

Miranda rights prior to custodial interrogations on December 27, 2010 and December 28,

2010 and that, on each occasion, he validly had waived those rights. (Nov. 8, 2011

decision, entry, and order at 9-11). The trial court specifically found “nothing to suggest”

that a “cognitive defect” or anything else prevented Simpson from making a valid waiver.
                                                                                          -14-

(Id.). On appeal, this court rejected Simpson’s challenge to the voluntariness of his

statements and his Miranda waiver. State v. Simpson, 2d Dist. Montgomery No. 25069,

2013-Ohio-1072, ¶ 51-58. As set forth above, the trial court subsequently found that

Simpson’s post-conviction evidentiary materials failed to raise a viable claim regarding

the admissibility of his statements to police.

       {¶ 22} We see no error in the trial court’s rejection of Simpson’s post-conviction

claim addressing whether his custodial statements were admissible. We reach this

conclusion for at least two independent reasons. First, a review of the trial transcript

reveals that the State neither introduced any of Simpson’s custodial statements into

evidence nor presented any testimony regarding what those statements were. Because

the State did not use the challenged statements, we see no basis for post-conviction relief

premised on the statements being made in violation of Simpson’s constitutional rights.

Second, in any event, the materials accompanying Simpson’s petition failed to support

his claim that his “mental status” resulted in him making involuntary or otherwise

inadmissible statements. Those materials included the Dayton Public School and Social

Security Administration records discussed above as well as affidavits from Simpson and

his mother. The records show that Simpson received low grades in school, that he

participated in a special-education program, that he had a full-scale I.Q. of 53, and that

he was classified as “mildly mentally retarded.” The affidavits state that Simpson was in

special-education classes, that he had a learning disability, that he took Ritalin as a child,

and that he received Supplemental Security Income benefits. (See affidavits

accompanying Doc. #8).

       {¶ 23} In our view, the foregoing evidence failed to support a finding that Simpson’s
                                                                                         -15-

waiver of his Miranda rights was less than knowing, intelligent, and voluntary or that his

statements themselves were involuntarily made. The mere fact that Simpson may have

a learning disability or suffer from “mild mental retardation” does not necessarily negate

his ability to make a knowing, intelligent, and voluntary statement to police. In his reply

brief, Simpson himself admits that he needs testimony from a mental-health expert to

support the allegations in his tenth assignment of error. (Appellant’s reply brief at 5). He

also acknowledges that his lack of such evidence “would require the denial of this

assignment,” but claims that he cannot afford to hire an expert. (Id.). As explained in our

analysis of Simpson’s sixth, seventh, and eighth assignments of error, however, he had

no right to court-appointed experts in post-conviction-relief proceedings. Accordingly, the

tenth assignment of error is overruled.

       {¶ 24} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                     .............




DONOVAN, P.J., and WELBAUM, J., concur.


Copies mailed to:

Mathias H. Heck, Jr.
Carley J. Ingram
Gary W. Crim
Hon. Michael Tucker
