[Cite as State v. Jones, 2019-Ohio-289.]


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

STATE OF OHIO                                         C.A. No.       28063

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PHILLIP JONES                                         COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2007 04 1294

                                  DECISION AND JOURNAL ENTRY

Dated: January 30, 2019



        SCHAFER, Presiding Judge.

        {¶1}     Defendant-Appellant, Phillip Jones, appeals the judgment of the Summit County

Court of Common Pleas denying his petition for post-conviction relief. For the reasons that

follow, we affirm.

                                                 I.

        {¶2}     Jones was sentenced to death for the rape and murder of S.Y. The Supreme Court

of Ohio affirmed Jones’s convictions and sentence of death in State v. Jones, 135 Ohio St.3d 10,

2012-Ohio-5677, ¶ 267 (“Jones I”). However, prior to the release of the Supreme Court’s

decision in Jones I, Jones filed a timely petition for post-conviction relief. Jones submitted

multiple arguments for relief including that his trial counsel was ineffective during the mitigation

phase of his trial. The trial court denied his petition without holding an evidentiary hearing.

        {¶3}     On a previous appeal, this Court outlined the substantive facts and relevant

procedural history as follows:
                                        2


On the morning of April 23, 2007, a man was jogging through a cemetery when
he discovered [S.Y.]’s body lying near some headstones. According to the county
medical examiner, she had bruises on her head, external and internal neck
injuries, and eye and facial petechia (spots caused by the breaking of small blood
vessels). She was dressed in multiple layers, including a summer dress and denim
skirt. Several buttons were missing from the dress and were lying in the road.
The skirt had a slit, but it had been torn apart even more from where the slit had
ended. [S.Y.]’s bra was also torn between the cups and there was a small, plastic,
glow-in-the-dark cross lying over one of her eyes.

The medical examiner concluded that [S.Y.]’s cause of death was asphyxia by
strangulation and that the manner of her death was homicide. He also concluded
that [S.Y.] had been vaginally and anally raped. A couple of days after [S.Y.]’s
body was found, Mr. Jones’s wife told the police that Mr. Jones was the one who
killed her. Mr. Jones’s semen was found on [S.Y.]’s skirt and on a vaginal swab.
The cross that had been found over [S.Y.]’s eye was similar to one that Mr. Jones
had given to his wife a year earlier.

The Grand Jury indicted Mr. Jones for aggravated murder, murder, and rape. He
was arraigned on May 15, 2007. In August 2007, the court determined that Mr.
Jones was competent to stand trial and set a trial date for December 3. On
October 22, the Grand Jury issued a supplemental indictment, adding death
penalty and repeat offender specifications. Mr. Jones was arraigned on the
supplemental indictment two days later.

At the October 24 arraignment, Mr. Jones’s lawyers acknowledged that a
mitigation investigation normally “takes several months,” but did not move for a
continuance. Instead, they said that they had agreed with the prosecutor to keep
the December 3 trial date. They also suggested scheduling two or three days in
January 2008 for the penalty phase of the trial, if it proved necessary. At the
hearing, Mr. Jones’s lawyers also presented the court with an order allowing them
to retain Dr. James Siddall, a psychologist, so that he could begin conducting
interviews and testing for mitigation purposes. The court signed the proposed
order that same day. According to the statement Dr. Siddall submitted after trial,
between October 24, 2007, and January 8, 2008, he spent four and a half hours
consulting with Mr. Jones’s lawyers. His statement also indicated that on
November 21 and December 12 he did a total of 7.75 hours of “[i]nterviews and
testing.”

On November 1, Mr. Jones’s lawyers moved for appropriation of funds to hire a
defense mitigation expert. At a hearing on November 15, the court granted the
motion and ordered Mr. Jones’s lawyers to prepare an entry appointing Thomas
Hrdy as that expert. While the record does not indicate when Mr. Jones’s lawyers
submitted a proposed entry, the trial court entered an order appointing Mr. Hrdy
on December 5. According to the invoice Mr. Hrdy submitted after trial, he
began working on Mr. Jones's case on December 10.
                                                 3



       According to the affidavits submitted by Mr. Jones’s family members, either Mr.
       Hrdy did not spend much time with them asking about their family background or
       no one from Mr. Jones’s defense team attempted to speak with them at all.
       According to Mr. Hrdy’s invoice, on December 20, he spent 3.5 hours
       interviewing Mr. Jones’s mother and his oldest sister. On December 23, he spent
       4.5 hours “[m]eeting w/ family @ [Mr. Jones's mother’s] home.” On January 2,
       he billed 2 hours for “[i]nterview w/ family, drop off records (Siddall).” Finally,
       on January 5, he billed 4 hours for “[m]eeting w/ family, atty.” There is no
       additional detail in the record regarding which “family” members he met or how
       he divided his time between the two activities listed on each of the January dates.

State v. Jones, 9th Dist. Summit No. 25695, 2011-Ohio-6063, ¶ 2-7 (Jones II).

       {¶4}    Ultimately, this Court affirmed the trial court’s decision in part but reversed and

remanded for further proceedings on Jones’s claim of ineffective assistance of counsel during the

mitigation phase of his trial. See id. In so doing, we specifically determined that the trial court

had “exercised improper discretion when it denied Mr. Jones’s penalty phase ineffective

assistance of counsel claims without holding a hearing to determine whether his lawyers began

their mitigation phase investigation early enough and whether they allowed Dr. Siddall and Mr.

Hrdy enough time to do a complete investigation into Mr. Jones’s family life.” Id. at ¶ 66.

       {¶5}    Upon remand, the trial court held an evidentiary hearing and issued a lengthy

decision dismissing Jones’s petition for post-conviction relief. In the trial court’s decision, the

court acknowledged that trial was before the court’s predecessor judge, noting that the trial court

read the trial transcripts from the mitigation phase and referred to the Supreme Court of Ohio’s

summarization of the mitigation testimony that was presented during the mitigation phase in

Jones I. In denying Jones’s petition, the trial court explicitly found that Jones’s trial counsels’

assistance was reasonable “[i]n light of the variety of circumstances faced by [his] trial counsel

and the range of legitimate decisions regarding how best to represent him.” Further, with regard

to any prejudicial affect that the alleged ineffective assistance of counsel may have had, the trial
                                                  4


court determined that in light of all of the evidence presented, the trial court could not conclude

that the decision of the jury or of the trial judge would have been different.

       {¶6}    Jones subsequently filed this timely appeal, raising two assignments of error for

our review.

                                                 II.

                                      Assignment of Error I

       The trial court erred by concluding that Jones did not receive ineffective
       assistance of counsel, when Jones’s attorneys conducted their investigation
       after the trial began, did not allow their experts enough time to fully
       investigate Jones’s background, and failed to discover sexual abuse endured
       by Jones as a child. [ ]

       {¶7}    In his first assignment of error, Jones contends that the trial court erred when it

determined that Jones did not receive ineffective assistance of counsel. Jones argues that his

counsel was ineffective during the penalty mitigation phase of his trial because his attorneys

conducted the mitigation investigation after Jones’s trial had already begun, did not allow

enough time for their experts to fully investigate Jones’s background, and failed to discover

sexual abuse Jones endured as a child. We disagree.

       {¶8}    R.C. 2953.21(A)(1)(a) provides that any person who has been convicted of a

criminal offense may petition the court for post-conviction relief pursuant to a claim “that there

was such a denial or infringement of the person’s rights as to render the judgment void or

voidable under the Ohio Constitution or the Constitution of the United States.” A trial court’s

denial of a petition for post-conviction relief after an evidentiary hearing is held is reviewed for

an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58. “The term

‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” Id. at ¶ 60, quoting State v. Adams, 62
                                                5


Ohio St.2d 151, 157. “[A] reviewing court should not overrule the trial court’s finding on a

petition for postconviction relief that is supported by competent and credible evidence.” Id. at ¶

58. However, while reviewing the record to determine if the trial court’s findings are supported

by competent credible evidence, we must keep in mind that “[e]valuating evidence and assessing

credibility are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th

Dist.1994), citing Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982).

       {¶9}    In this case, the trial court employed the correct legal standard in resolving

Jones’s claim of ineffective assistance of counsel. In order to prevail on a claim of ineffective

assistance of counsel, Jones must demonstrate “(1) that his counsel’s performance was deficient

to the extent that ‘counsel was not functioning as the “counsel” guaranteed by the Sixth

Amendment’ and (2) that but for his counsel’s deficient performance the result of the trial would

have been different.” State v. Velez, 9th Dist. Lorain No.13CA010518, 2015-Ohio-642, ¶ 18,

quoting Strickland v. Washington, 466 U.S. 668, 687 (1984). However, this court need not

address both prongs of the Strickland test if it should find Jones failed to prove either prong.

State v. Ray, 9th Dist. No. 22459, 2005-Ohio-4941, ¶ 10.

       {¶10} Moreover, in Ohio, a properly licensed attorney is presumed competent and the

burden of proof is on Jones to demonstrate that counsel was ineffective. Gondor at ¶ 62.

Counsel in a capital case has the “‘obligation to conduct a thorough investigation of the

defendant’s background’ to determine the availability of mitigating evidence.” State v. Herring,

142 Ohio St.3d 165, 2014-Ohio-5228, ¶ 69, quoting Williams v. Taylor, 529 U.S. 362, 396

(2000). “Counsel’s ‘investigations into mitigating evidence “should comprise efforts to discover

all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that

may be introduced by the prosecutor.”’” (Emphasis sic.) Herring at ¶ 69, quoting Wiggins v.
                                                  6


Smith, 539 U.S. 510, 524, quoting ABA Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases, Guideline 11.4.1(C). A trial counsel’s performance will not be

deemed ineffective unless it falls below an objective standard of reasonable representation. State

v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. “[T]he deference owed to

counsel’s strategic judgments about mitigation is directly proportional to the adequacy of the

investigations supporting such judgments.” Herring at ¶ 69, quoting Jells v. Mitchell, 538 F.3d

478, 492 (6th Cir.2008). Nonetheless, the Supreme Court of Ohio has specifically recognized

that “‘the finding as to whether counsel was adequately prepared does not revolve solely around

the amount of time counsel spends on the case or the numbers of days which he or she spends

preparing for mitigation. Instead, this must be a case-by-case analysis.’” State v. Hand, 107

Ohio St.3d 378, 2006-Ohio-18, ¶ 227, quoting State v. Lewis, 838 So.2d 1102, 1114, (Fla.2002),

fn. 9.

A. Timing of the Mitigation Investigation

         {¶11} Jones first argues that the trial court erred when it concluded that his trial counsel

were effective since his counsel had done limited mitigation investigation prior to the start of the

trial and thus, could not have formed an appropriate trial or mitigation theory. We disagree for

the following reasons.

         {¶12} With regard to the timing of the mitigation investigation, the trial court made the

following factual findings: the trial court authorized payment for defense counsel to retain Mr.

Hrdy as an investigator two days after the start of jury selection; Jones’s trial counsel did not ask

the jurors questions pertaining to their theories of mitigation during jury selection; at the time

jury selection began, Jones’s trial counsel had information about Jones’s background, education,

family history, and mental health through competency evaluations, interviews and records;
                                                 7


Jones’s trial counsel “had the benefit of having already received the information and points of

view of two psychologists” prior to jury selection; Jones’s trial counsel had Jones’s statement to

the arresting detective that the victim’s death was an accident; during the trial phase, Jones’s

counsel presented a defense consistent with their client’s statement to the arresting detective that

the victim’s death was an accident and had the defense been successful, the jury would never

have considered the death penalty; defense counsel did not receive Dr. Siddall’s written report

until two days before the start of the mitigation phase; Jones’s own mitigation expert testified

that some cases are “mitigation cases right up front” and trial counsel needs the mitigation

information during jury selection, but that expert did not see Jones’s case as such.

        {¶13} A review of the record on appeal shows that with the exception of the trial court’s

finding that Jones’s trial counsel “had the benefit of having already received the information and

points of view of two psychologists,” the above findings were supported by competent credible

evidence. However, as we discuss below, the trial court’s unsupported finding that Jones’s

counsel had information and points of view of two psychologists was not determinative in this

case.

        1. Law of the Case

        {¶14} Jones argues that “[u]nder the law of this case, defense counsel’s performance

was deficient.” Jones bases this argument on a statement in Jones II, where this Court professed

that “[i]f Mr. Jones’s defense team did not do much mitigation investigation by the time the trial

started, they could not have formed an appropriate trial or mitigation theory.” (Emphasis added.)

Jones II, 2011-Ohio-6063 at ¶ 47, citing Williams, 529 U.S. at 395. Jones supports this argument

by pointing to the testimony of one his trial attorneys and the trial court’s finding that defense

counsel had not retained Mr. Hrdy until after jury selection had already begun. The testimony to
                                                8


which Jones refers occurred on cross-examination during the post-conviction hearing where one

of his trial attorneys agreed that “Dr. Siddall’s work couldn’t have really been completed in a

meaningful way until Mr. Hrdy was involved in doing his role.”

       {¶15} “[T]he doctrine of the law of the case * * * establishes that the ‘decision of a

reviewing court in a case remains the law of that case on the legal questions involved for all

subsequent proceedings in the case at both the trial and reviewing levels.’” Hood v. Diamond

Prod., Inc., 137 Ohio App.3d 9, 11 (9th Dist.2000), quoting Pipe Fitters Union Local No. 392 v.

Kokosing Constr. Co., Inc., 81 Ohio St.3d 214, 218 (1998). Consequently, “[a]n inferior court

has no discretion to disregard the mandate of a superior court in a prior appeal in the same case.”

Id. quoting Nolan v. Nolan, 11 Ohio St.3d 1 (1984), syllabus. However, Jones’s argument that

this Court’s “if” statement is law of the case asks us to disassociate that statement not only from

the rest of the paragraph in which it is contained, but also from our entire decision. The full

paragraph reads as follows:

       Although Dr. Siddall’s invoice indicates that he began meeting with Mr. Jones’s
       lawyers six weeks before trial, it is troubling that he spent less than eight hours
       conducting interviews and tests before Mr. Jones’s trial began. It is more
       troubling that Mr. Hrdy, the social worker who Dr. Siddall said was responsible
       for interviewing Mr. Jones’s family members, did not begin any work on his case
       until a week into the trial. The American Bar Association guidelines advise
       lawyers to begin the mitigation investigation [ ] as quickly as possible, because it
       may affect the investigation of first phase defenses (e.g., by suggesting additional
       areas for questioning police officers or other witnesses), decisions about the need
       for expert evaluations (including competency, mental retardation, or insanity),
       motion practice, and plea negotiations. The guidelines also advise lawyers to
       devote substantial time to [ ] choosing a jury most favorable to the theories of
       mitigation that will be presented. Ideally, the theory of the trial must
       complement, support, and lay the groundwork for the theory of mitigation. If Mr.
       Jones’s defense team did not do much mitigation investigation by the time the
       trial started, they could not have formed an appropriate trial or mitigation theory.

(Internal quotations and citations excluded.) Jones II at ¶ 47. The use of the word “if” and the

extensive application of the American Bar Association Guidelines confirm that this statement did
                                                 9


not create law of the case. Indeed, the United States Supreme Court had made clear “that the

Federal Constitution imposes one general requirement: that counsel make objectively reasonable

choices” and that the ABA Guidelines “are ‘only guides’ to what reasonableness means, not its

definition.” Bobby v. Van Hook, 558 U.S. 4, 9 (2000) quoting Strickland, 466 U.S. 668 at 688.

       {¶16} Moreover, the “if” statement and the entire paragraph in which it is contained are

not necessary to the holding in Jones II wherein we concluded that the trial court had improperly

denied Jones’s petition for post-conviction relief without first holding a hearing. As such, the

entire paragraph is dicta intended to give guidance to the trial court upon remand. “Dicta is not

authoritative, and, by definition, cannot be the binding law of the case.” Gissiner v. Cincinnati,

1st Dist. Hamilton No. C-070536, 2008-Ohio-3161, ¶ 15. Accordingly, the law of the case

doctrine does not require us to conclude the defense counsel’s performance was deficient.

       2. Jury Selection

       {¶17} Jones next argues that the trial court erred when it concluded that trial counsel’s

failure to ask about various mitigating factors during jury selection did not constitute ineffective

assistance of counsel since counsel could not have made reasonable or strategic decisions

because the mitigation investigation had barely begun.

       {¶18} Regarding the information Jones’s defense counsel had at the beginning of jury

selection, the trial court stated that “[t]he evidence is clear that at the time voir dire began,

defense counsel had information about [Jones]’s background, education, family history and

mental health through competency evaluations, interviews and records.           But they also had

Petitioner’s statement to the arresting detective that [S.Y.]’s death ‘was an accident.’” The trial

court further found that Jones’s trial counsel “had the benefit of having already received the

information and points of view of two psychologists” prior to jury selection. Although Jones
                                                 10


takes exception to the trial court’s finding that his trial counsel had the benefit of information and

opinions from two psychologists prior to jury selection, even assuming without deciding that the

record does not support that finding, such a conclusion would not be determinative in this case.

       {¶19} The Supreme Court of Ohio has “consistently declined to ‘second-guess trial

strategy decisions’ or impose ‘hindsight views about how current counsel might have voir dired

the jury differently.’” State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 63, quoting State v.

Mason, 82 Ohio St.3d 144, 157 (1998). “‘Few decisions at trial are as subjective or prone to

individual attorney strategy as juror voir dire, where decisions are often made on the basis of

intangible factors.’” Id. at ¶ 64, quoting Miller v. Francis, 269 F.3d 609, 620 (C.A.6, 2001). “In

some cases, asking few or no questions of a prospective juror ‘may be the best tactic for a

number of reasons.’” Id. at ¶ 65. “Strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.      In other words, counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary.” (Emphasis added.) Strickland, 466 U.S. at 691. The United States Supreme

Court has stated the following:

       The reasonableness of counsel’s actions may be determined or substantially
       influenced by the defendant’s own statements or actions. Counsel’s actions are
       usually based, quite properly, on informed strategic choices made by the
       defendant and on information supplied by the defendant. In particular, what
       investigation decisions are reasonable depends critically on such information. For
       example, when the facts that support a certain potential line of defense are
       generally known to counsel because of what the defendant has said, the need for
       further investigation may be considerably diminished or eliminated altogether.
       And when a defendant has given counsel reason to believe that pursuing certain
       investigations would be fruitless or even harmful, counsel's failure to pursue those
       investigations may not later be challenged as unreasonable. In short, inquiry into
       counsel’s conversations with the defendant may be critical to a proper assessment
       of counsel’s investigation decisions, just as it may be critical to a proper
       assessment of counsel’s other litigation decisions.
                                                11



Strickland at 691, citing United States v. Decoster, 624 F.2d 196, 209-210 (D.C.Cir.1976).

       {¶20} The trial court found that Jones’s defense counsel had information about Jones’s

background, education, family history and mental health through competency evaluations

interviews and records. Jones’s counsel testified at the post-conviction hearing that they had

incorporated information regarding Jones’s family history, background, and mental health issues

into the defense at both the trial and the mitigation phase. However, the trial court emphasized

that during the trial phase, defense counsel presented a defense that was consistent with Jones’s

statement that S.Y.’s death was an accident. A review of the trial record shows that finding is

supported by competent credible evidence. See also State v. Jones, 135 Ohio St.3d 10, 2012-

Ohio-5677. At trial, Jones testified on his own behalf and stated that he and S.Y. had rough, but

consensual sexual intercourse. He further stated that putting his hands around S.Y.’s throat was

not his idea and “I guess it got too – went too far, applied too much pressure, and * * * it was an

accident.” Additionally, defense counsel reiterated the defense’s theory of the case that S.Y.’s

death was an accident during closing argument.

       {¶21} The trial court went on to state in its journal entry that based on the defense’s

strategy and intention to show that S.Y.’s death was an accident, the court failed to see how the

introduction of information about Jones’s mental history and dysfunctional family background

would assist in showing S.Y.’s death was an accident. The trial court stated this was especially

true in light of the potential for “other acts” evidence the jury would hear as a result. Thus, the

trial court determined that an attempt by trial counsel to limit questions focusing on the death

penalty may have been a tactical decision. We note that during the post-conviction relief

hearing, neither of Jones’s defense counsel testified regarding the defense’s strategy during jury

selection nor were they asked any questions regarding that strategy on direct or cross-
                                                12


examination. As the trial court applied the proper legal standard and its findings are support by

competent, credible evidence, we cannot conclude that the trial court abused its discretion when

it determined that asking potential jurors their views on mitigation was not essential to competent

representation in this case.

       {¶22} As Jones has failed to show that his trial counsel rendered deficient performance

during jury selection we need not address whether Jones was prejudiced. See Ray, 2005-Ohio-

4941 at ¶ 10.

B. The Mitigation Investigation

       {¶23} Jones contends that the amount of time spent on the mitigation investigation was

inadequate. First, Jones argues that because Mr. Hrdy spent fewer than 10 hours interviewing

Jones’s family, Mr. Hrdy did not discover Jones’s family’s “history of severe and pervasive

dysfunction.” Specifically, Jones maintains that if Mr. Hrdy and his trial counsel would have

conducted an adequate investigation they would have learned of rampant sexual abuse and

additional physical and emotional abuse within the family. Second, Jones contends that Dr.

Siddall had neither the time nor the information necessary to do a complete a psychological

evaluation and make a diagnosis for the purposes of the mitigation hearing. Thus, the extent of

Jones’s mental illness was not discovered.

    1. The Mitigation Investigation

       {¶24} The trial court concluded that Mr. Hrdy’s late start was not detrimental to Jones’s

mitigation investigation due to the nature and quality of the mitigation facts that the defense team

was able to obtain, especially in light of the lengthy time that pre-existed the death penalty

specification, during which there was the production of psychological reports, the development
                                               13


of a rapport between Jones and his attorneys, and significant communication and information

gathering with the Jones family.

         {¶25} Ample information regarding the dysfunction of the Jones family was presented

during the mitigation phase of Jones’s trial. See Jones I, 135 Ohio St.3d 10, 2012-Ohio-5677 at

¶ 226-227, 249-250 (“Dr. Siddall testified that Jones grew up in a troubled family where there

was domestic violence * * * that Jones’s family has a history of psychiatric, substance-abuse,

and criminal-justice problems * * * Jones’s father committed domestic abuse and suffered from a

learning disability. * * * In an unsworn statement, Jones stated that he had an abusive childhood.

He witnessed domestic violence on numerous occasions, and his family abused alcohol and

drugs. Jones also watched his siblings fight. His oldest brother stole cars and gave Jones

marijuana when he was seven years old. Jones’s parents divorced when he was eight. His

mother left home, and Jones was then raised by his aunt, his grandmother, and his father. * * *

After witnessing the abuse in his family, Jones started ‘acting out’ as a teenager.”) However, on

appeal, Jones argues that the trial court erred when it determined that his trial counsel was not

ineffective for failing to discover further neglect as well as physical, emotional, and sexual

abuse.

    a. Witnesses for the Defense

         {¶26} At the evidentiary hearing on Jones’s petition for post-conviction relief, Jones

called twelve witnesses, five of whom testified as experts. Jones himself did not testify. Of the

seven lay witnesses’ who testified regarding Jones’s history and background, the trial court

found that “much of the lay-witnesses’ testimony, at least that which can be corroborated and is

credible, was cumulative to that which was already presented during mitigation.” In support of
                                                14


these conclusions, the trial court made the following observations regarding the lay-witnesses’

and experts’ testimony.

       {¶27} Pastor Fuller, whose testimony the trial court found credible, stated that he was

Jones’s first cousin once removed and that he was the Jones family’s pastor. As such, Jones

called on him for pastoral care when Jones experienced trauma in his life. Although he did not

testify at Jones’s mitigation hearing, Pastor Fuller stated that a member of the defense team had

questioned him about his pastoral relationship with Jones and that there “may have been other

questions, but [he] did not recall.” He further stated that he had been a part of a group of persons

who had met with defense counsel when defense counsel defined mitigation and asked if the

group had any questions about mitigation. Pastor Fuller believed he should have testified at the

mitigation hearing, since he had more knowledge of the Jones’s family history and dysfunction

than the pastor who ultimately testified at Jones’s mitigation hearing. Nonetheless, Pastor Fuller

was not aware of mental illness or specific drug abuse within the family, except that he had “seen

family members looking high.” However, he did state that he became aware of “possible” sexual

abuse in the family through Jones’s sister, but that the discussion had occurred in his capacity as

a pastor and privilege would have prevented him from revealing even the possibility of abuse to

the mitigation team. Accordingly, the trial court determined that Pastor Fuller’s testimony was

merely cumulative of the testimony received at Jones’s mitigation hearing.

       {¶28} Pastor Hargrave testified at Jones’s mitigation hearing and at the hearing on

Jones’s petition for post-conviction relief. The trial court found that he repeated much of the

same testimony he had given during Jones’s mitigation hearing. With regard to mitigation

preparation, he testified that he had “at least two conversations by phone, perhaps a third. There

was a large gathering, the family was there, I was there as well and I was called back into a room
                                                15


individually with them * * * I talked about my role and the work that I do and my observations

and I said I would like to help in any way that I could.” Pastor Hargrave also testified about

“significant disruption with boundaries, family boundaries, physical personal boundaries, for

example bedroom space, what is borne outside the bedroom, and all of those things * * *.” It

was from this “boundaries” discussion with Jones’s mother that Pastor Hargrave became aware

of possible sexual abuse. However, he admitted that this conversation was not such that it

caused him to feel compelled to make a police report under Ohio’s mandatory reporting statute

and that he would have been bound by privilege and not able to disclose the information to the

mitigation team. The trial court found Pastor Hargrave to be credible, but noted that many of the

opinions he presented regarding the dysfunction of the Jones family went beyond his role as a

pastor and bordered on offering opinions and on issues beyond those for which he was qualified

to testify.

        {¶29} Rhonda Jones, one of Jones’s sisters testified at the post-conviction relief hearing,

but not during the mitigation phase. The trial court did not find Ms. Jones to be a credible

witness. The trial court found that during her testimony, Ms. Jones was unfamiliar with the

affidavit she executed as part of the evidence reviewed by this Court in Jones II and that during

her testimony she denied making several of the statements contained within it. Ms. Jones did

testify as to the dysfunction in the Jones family, such as having to steal food to survive, being

physically and mentally abused by her parents, and of her parents’ drug and alcohol abuse.

However, Ms. Jones stated she was not familiar with any mental health issues in the Jones

family. Ms. Jones stated that she was at her parents’ house when Mr. Hrdy came for a meeting

with the family, but that “he was more sitting there watching the game than talking.”
                                                 16


       {¶30} Concerning alleged sexual abuse in the Jones family, the trial court found that Ms.

Jones testified that her father had tried to molest her and that there were persons dressed in

skeleton costumes who fondled the Jones girls at night. In her affidavit attached to Jones’s

petition for post-conviction relief, Ms. Jones stated “[m]y father tried to molest me. Once when

he tried to get into my bedroom, I blocked the door. My father broke in. I was 17 years old, and

my boyfriend was there. My boyfriend beat up my father.” Although Ms. Jones stated in her

affidavit that she was 17 years old at the time of the alleged incident, she testified during the

mitigation hearing that she was 16 years old, going on 17 and then subsequently testified that she

was 17 years old at the time of the alleged incident. At the post-conviction hearing, the trial

court found that Ms. Jones gave a vivid account of her naked, enraged father pounding on her

barricaded bedroom door and trying to burst through. She escaped out the back and was kicked

out of the house shortly thereafter. Although Ms. Jones characterized the incident as an attempt

by her father to molest her, the trial court determined that there was no credible evidence that this

event was an attempted molestation. Rather, the trial court concluded that the facts were far

more consistent with a father who was enraged that his 16-year-old daughter had her boyfriend

behind her locked bedroom door.

       {¶31} Jones’s niece, Sh’torie Harpster, did not testify during the mitigation phase, but

did testify at the post-conviction relief hearing. The trial court found that she had testified that

Jones was a father figure to her and that she further testified about the dysfunction in the Jones

family, including mental illness and that Jones’s brother had sexually abused her. Additionally,

she stated that she was at the group meeting at her grandmother’s house and had spoken to

someone from the trial team, but thought her individual conversation with Mr. Hrdy could not

have been longer than five minutes. She stated that no one from the defense team spoke to her
                                                17


about sexual abuse. The trial court found Ms. Harpster’s testimony to be merely cumulative of

the testimony presented during Jones’s mitigation hearing.

       {¶32} Shain Harmel, Jones’s nephew, did not testify at the mitigation hearing. The trial

court found that Mr. Harmel testified during the post-conviction relief hearing that although he is

not Jones’s biological son, he had grown up thinking Jones was his father because Jones had

treated him as such. The trial court found Mr. Harmel’s testimony to be merely cumulative of

the testimony presented during Jones’s mitigation hearing.

       {¶33} Yolanda Jones is Jones’s sister. She testified at the mitigation hearing and during

the post-conviction relief hearing.   The trial court observed three significant points in her

testimony: first, Ms. Jones testified about the abuse and dysfunction in the Jones family; second,

she discussed rampant sexual abuse that she did not disclose during her mitigation testimony;

and third, she testified that she had not been properly prepared for her testimony during the

mitigation hearing.   The trial court, however, found Ms. Jones’s testimony to be “wholly

unbelievable” based on her rehearsed demeanor and that her testimony was contradicted by

evidence in the record.

       {¶34} The trial court found that Ms. Jones’s testimony concerning the dysfunction of the

Jones family was the same or similar to her mitigation phase testimony. However, Ms. Jones

presented some additional examples about the abuse in the family. Specifically, she added some

details of her own abuse of Jones when he was a child and offered testimony which painted their

mother in a poor light. The trial court found the testimony regarding alleged physical and mental

abuse suffered by the Jones children at the hands of their mother contradicted the testimony Ms.

Jones gave during the mitigation hearing. Although Ms. Jones claimed she was not given an

opportunity to give the same detailed information during her mitigation hearing testimony, the
                                                18


trial court found that during the mitigation hearing, Jones’s defense counsel often guided Ms.

Jones to specific subjects or instances that were helpful to mitigation and even asked her to give

examples. Additionally, the trial court found that when the prosecutor asked Ms. Jones questions

on cross-examination, that she asked many open-ended questions and did not cut Ms. Jones’s

testimony off at any point. The trial court also found that Jones’s defense counsel asked

questions during rebuttal that gave Ms. Jones the opportunity to clarify some of her responses

during cross-examination.

       {¶35} With regard to mitigation preparation, Ms. Jones stated she was never properly

prepared for her testimony and that there were questions that were not asked during mitigation

preparation or during the mitigation hearing. Nevertheless, Ms. Jones was not able to give any

specifics of her mitigation preparation or lack thereof. Ms. Jones did admit that Mr. Hrdy had

asked her about sexual abuse and that she understood at the time of Jones’s mitigation hearing

“that it was important to show that he came from an abusive, neglect (sic) family, where he was

mistreated all his life.” However, the trial court did not find her testimony about why she did not

relate any of the abuse to the defense team to be credible.

       {¶36} Christy Coffee testified that she was romantically involved with Mr. Jones. She

testified at both the mitigation hearing and the hearing on post-conviction relief. The trial court

found that her testimony at the post-conviction relief hearing was similar to the testimony she

gave during the mitigation phase. However, Ms. Coffee gave additional testimony revealing that

Jones’s brother had raped her and that he, not Jones, was the father of her son.

       {¶37} Ms. Coffee further stated that the only time she spoke with defense counsel prior

to the mitigation hearing was with the Jones family at defense counsel’s office. She stated that

the attorneys asked about her relationship with Jones, but did not ask if she had children by his
                                                19


brothers or if a paternity test had been done. She acknowledged that Mr. Hrdy had asked her

open-ended questions about sexual abuse, but that she felt it was too quick. She further stated

that she knew the attorneys had asked the Jones family about sexual abuse at the meeting

“[b]ecause when the family came out that is what they were talking about, they talked about.”

       {¶38} Dr. Howard Fradkin is a psychologist with an expertise in the area of adult

survivors of child sex abuse. He did not testify at the mitigation hearing. The trial court found

that at the time of his post-conviction relief testimony, Dr. Fradkin had devoted thirty-four years

of his practice to the area of adult survivors of child sexual abuse. He is also an advocate of the

interviewing style called the Forensic Experiential Trauma Interview (FETI) which he believes is

the most appropriate when interviewing trauma survivors. This form of interviewing did not

come into existence until 2013. Dr. Fradkin opined that Jones is the survivor of male child sex

abuse and that from the time of Jones’s alleged suicide attempt at age six and for thirty years

subsequent to that, medical professionals missed the diagnosis of sexual abuse. Dr. Fradkin

further testified concerning prolific sexual abuse committed against Jones by Jones’s brothers,

Jones’s sister’s boyfriend, and Jones’s stepmother. He attributed the defense team’s failure to

discover this horrific abuse to deficient mitigation investigation and methods. However, Dr.

Fradkin also testified that the disclosure of sexual abuse “varies from person to person. It could

take months. It could take years” and that “[m]ost men go to their graves without ever talking

about [sexual abuse].”

       {¶39} While admiring Dr. Fradkin’s devotion to helping survivors of child sexual abuse,

the trial court gave no weight to his testimony for a number of reasons. First, the trial court

found it questionable that Dr. Fradkin’s FETI interview method would survive a Daubert

challenge, but even assuming it did, the trial court found that Dr. Fradkin’s opinions were based
                                                20


almost entirely upon the hearsay affidavits of family members whom Dr. Fradkin had never met

or personally interviewed as well the self-serving statements of Jones, which were made in a

setting in which Dr. Fradkin was not treating or diagnosing Jones. Second, the trial court found

that Dr. Fradkin’s report was “fraught with mischaracterizations of the evidence.”          These

mischaracterizations were partly attributable to the fact that Jones’s current counsel did not

provide him with all of Jones’s records and partly to the fact that he simply ignored the evidence

he did have. Third, the trial court noted that although Dr. Fradkin referenced Jones’s prison

disclosure of sexual abuse by his father, Dr. Fradkin failed to reconcile Jones’s non-disclosure of

that abuse during his own FETI interview with Jones when Jones was sharing memories of abuse

by at least five other people. Finally, the trial court found that Dr. Fradkin had conceded that he

could not have testified to sexual abuse at a time when Jones and his family were denying its

occurrence.

       {¶40} Dr. Bob Stinson is an expert in forensic psychology. He testified at the post-

conviction relief hearing, but not during the mitigation hearing. The trial court found that Dr.

Stinson testified about the dysfunction and abuse with the Jones family.           He personally

interviewed Jones, but did not conduct any tests. In addition to the interview, Dr. Stinson relied

upon the affidavits of family members and Dr. Fradkin’s report. Dr. Stinson opined during his

post-conviction relief testimony, that a review of Jones’s medical records and school records

indicate dysfunction that is consistent with a person who is sexually abused. The trial court

found that Dr. Stinson remained firm in his opinion that the mitigation investigation should have

uncovered the alleged sexual abuse at the time of the mitigation hearing. However, when

offering his opinion about why the abuse was now being disclosed, he stated it may be “because

the main perpetrator and person who said ‘we do not talk about these things’ ([Jones’s mother])
                                                21


eventually died.” The trial court noted that Jones’s mother was alive at the time of the mitigation

hearing.

        {¶41} Dorian Hall testified at the post-conviction hearing as an expert in the area of

mitigation investigation. The trial court found that she has been employed by the Ohio Public

Defender’s Office since 1988 as a mitigation specialist and at the time of the post-conviction

relief hearing supervised that office’s mitigation specialists. Ms. Hall opined that an investigator

must begin at least 90 days before jury selection in order to conduct a proper investigation and

was critical of Mr. Hrdy’s acceptance of the engagement to do work on Jones’s case after jury

selection had already begun. She was also critical of the amount of time Mr. Hrdy spent on the

mitigation investigation, Mr. Hrdy’s method of group interviewing, and of Mr. Hrdy’s note

keeping and record keeping. Ms. Hall further criticized the portrayal of Jones’s father as a good

role model during the mitigation phase and blamed the deficient detailed mitigation for allowing

that portrayal.

        {¶42} The trial court found Ms. Hall to be a professional and credible witness, but

acknowledged that Ms. Hall’s many years of employment with the Ohio Public Defender’s

Office gave the trial court cause to question her objectivity regarding her criticisms of Mr. Hrdy.

Additionally, Ms. Hall was not able to comment on what Mr. Hrdy specifically did or did not do

with regard to his mitigation investigation nor was she able to give any support for her opinion

that a mitigation investigation should begin 90 days prior to jury selection. Although the trial

court acknowledged that 90 days would be optimal, Ms. Hall also testified that “[g]enerally you

need to spend as much time as you need to get all the information.” The trial court found that

although Ms. Hall criticized the lack of detailed, anecdotal information presented during the

mitigation phase, that the additional anecdotal information Ms. Hall ultimately presented was
                                                22


obtained solely from affidavits of Jones’s family members. Thus, since she had not personally

spoken to the family members, she had not been given the opportunity to assess their credibility.

The trial court noted, however, that it “had the opportunity to do so with several of the witnesses

who executed the affidavits upon which Ms. Hall relied and [] found their credibility

questionable.”

    b. Witnesses for the State

       {¶43} In addition to Jones’s witnesses, all four members of the defense mitigation team

testified at the hearing for post-conviction relief. The trial court made the following observations

about their testimony.

       {¶44} Mr. Hrdy is a licensed social worker and part-time mitigation specialist. The trial

court found that at the time of his testimony, Mr. Hrdy had finished his casework for his

doctorate, was a member of the National Legal Defenders Association as a mitigation specialist,

and has worked as a mitigation specialist since 1994. Mr. Hrdy admitted that he was engaged to

work on Jones’s case “late in the game.” Excluding travel time, Mr. Hrdy spent approximately

three hours with Jones and approximately ten additional hours with others, including family

members and ministers.      Mr. Hrdy spent additional time retrieving and reviewing records,

meeting with Dr. Siddall and Jones’s attorneys, and other casework. Mr. Hrdy stated he had no

difficulty gathering information from Jones and found him to be cooperative. Mr. Hrdy also

found the Jones family to be cooperative and forthcoming. Mr. Hrdy testified that he explained

mitigation to the family and the fact that Jones was facing the death penalty. He felt that the

family was able to provide him with information that was helpful to Jones’s case. He further

testified that he would not have specifically asked the family a leading question about sexual
                                                 23


abuse, but if anyone had indicated such, he would have noted it and provided that information to

Dr. Siddall and Jones’s attorneys.

        {¶45} Mr. Hrdy testified that he met with many family members for four and a half

hours at Jones’s mother’s home. He stated that he asked how the family preferred to be

interviewed and that they preferred to be interviewed as a group. Mr. Hrdy acknowledged that a

Cleveland Browns football game remained on the television during the interview, but with the

volume turned down. Mr. Hrdy explained that he found advantages to the group interview

because “a dynamic forms where someone will say something that will trigger a memory from

someone else and you get a fuller interview.” However, he did acknowledge that there could be

some disadvantages such as someone not wanting to disclose personal information in a group

setting or a stronger personality taking over, but that he always leaves his business card and asks

the interviewees to call him if they remember anything else.

        {¶46} Mr. Hrdy further testified that he had “enough and appropriate time to gather the

records, interview the witnesses, assist the defense attorneys and Dr. Siddall in preparation of

mitigation in this case.” The trial court found this testimony very compelling since Mr. Hrdy had

attested in an unrelated case about his mitigation investigation being substandard due to a lack of

time to do an appropriate job. See Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, ¶ 36-38. Mr.

Hrdy’s testimony combined with the amount and type of mitigating evidence produced during

Jones’s trial, together with the trial court’s credibility evaluations of other witnesses, caused the

trial court to accept Mr. Hrdy’s statement that he had “enough and appropriate time to gather the

records, interview the witnesses, assist the defense attorneys and Dr. Siddall in preparation of

mitigation in this case” as true.
                                                  24


       {¶47} Dr. Siddall is in an expert in forensic psychology and had testified as an expert in

“maybe a dozen” capital mitigation hearings prior to Jones’s case. The trial court found that he

is licensed in both clinical and forensic psychology and also practices in the area of drug

addiction. He has been licensed since 1975, is published and has received awards. At the time

of his testimony, Dr. Siddall had taught graduate level courses, including courses on diagnosis.

Although he is currently in private practice, Dr. Siddall has had significant experience with

persons in a criminal legal setting through his work at a diagnostic clinic.

       {¶48} Dr. Siddall stated that as a rule he would get records and complete his report

before the start of trial, but in this case he completed his report after Jones’s trial, but before the

mitigation phase.    Dr. Siddall visited Jones in the Summit County Jail on two occasions,

spending about three and a half hours at each visit. The visits were divided equally between

interviewing and testing Jones.      In addition to documentary sources, Dr. Siddall relied on

information from Jones and detailed family information he received from Mr. Hrdy. Dr. Siddall

testified that he had enough time to complete the tasks he was assigned to do, but that he had also

been aware that if he needed additional time, he would be able to ask for and receive more time.

Dr. Siddall also testified that he asked Jones if he was sexually abused or if there was sexual

abuse in the family. Jones denied both and Dr. Siddall testified that sex abuse would be evident

in the records.

       {¶49} Attorney Donald Hicks represented Jones during his trial. The trial court found

that at the time of his testimony, Attorney Hicks had been practicing law for over thirty years,

doing “a considerable amount of criminal defense work.” When the grand jury initially indicted

Jones with aggravated murder and rape, no death penalty specification was attached. Although

Attorney Hicks was not certified to handle capital cases when he was appointed to Jones’s case,
                                               25


he was certified by the time the death penalty specification was attached to Jones’s indictment.

From the time of the original indictment to the time of Jones’s trial, Attorney Hicks testified he

had met with Jones fifty or sixty times and met with him at least a couple of times a week. He

stated that some of the meetings were “face-time,” as he had promised to meet with Jones any

time he was at the jail. However, at other such meetings, he discussed the death penalty and

mitigation with Jones. He further stated that such discussions occurred even before the death

penalty specification was added because there had been ongoing discussions with the prosecutors

about the possibility of the addition of the death penalty specification. The trial court further

found that Attorney Hicks felt he had built a rapport and trust with Jones and during his

discussions with Jones, he had gathered information that would be useful in the mitigation phase

and incorporated that information into Jones’s defense during both trial and the mitigation phase.

Attorney Hicks testified that Jones never indicated that he had been sexually abused.

       {¶50} Attorney Hicks recalled the primary family contact person was Jones’s sister,

Yolanda. He also recalled speaking to Yolanda “a couple of dozen times” on the phone and

“eight or ten times, maybe a dozen” in person. Meetings occurred after court hearings and in his

office. Attorney Hicks stated that the mitigation team “had a lot of contact with the family.”

However, there were never any indications from Yolanda, the Jones family, or any other contacts

whose names were provided to the defense team that Jones had been subjected to sexual abuse.

Although Attorney Hicks acknowledged the defense team got a late start hiring experts due to

the timing of the death penalty specification, he felt he had enough time to prepare for the

mitigation hearing. He stated he would have requested a continuance of the trial if he had felt

they had not had enough time to prepare for mitigation and was confident the request would have
                                                26


been granted as the trial court’s predecessor judge had a reputation for being “exceedingly

accommodating.”

       {¶51} Attorney Kerry O’Brien also represented Jones during his trial. The trial court

found that at the time of his testimony, Attorney O’Brien had practiced law for over thirty-eight

years and had been certified to handle capital cases since the mid-1980s and had defended over

30 death penalty cases. Attorney O’Brien testified that he met with Jones on average once a

week and they had no communication or trust issues. He recalled speaking with Jones’s mother

mostly by telephone and recalled meeting with family members two or three times on Saturday

or Sunday mornings at his office. The meetings included updates on the case and conferences.

Attorney O’Brien testified that he explained the purpose of mitigation to the family and the goal

of what they were trying to accomplish. He stated that he asks about “the complete family

history from day one” and that he usually asked

       did the client have a rough upbringing, or what were the financial circumstances
       of the family, was there any physical abuse, did the defendant suffer any head
       injuries like fall off of a tree or hit by a car or hit by a baseball bat or something
       like that. And then I go into emotional or mental retardation. I then ask if the
       client had any mental evaluation. I also ask about sex abuse, whether an uncle or
       an aunt or something like that had molested him.

Attorney O’Brien stated that he would have absolutely used sexual abuse during mitigation if it

had been mentioned. However, Jones denied any sexual abuse when Attorney O’Brien asked

him about it.

    C. Conclusion - Counsels Performance

       {¶52} Despite the extensive amount of mitigating evidence presented during Jones’s

mitigation hearing, See Jones I, 135 Ohio St.3d 110, 2012-Ohio-5677, at ¶ 224-256, Jones

contends his defense counsel were ineffective for not finding more. However, the trial court

determined that much of the credible lay witness testimony at the post-conviction relief hearing
                                                 27


was cumulative to that which was presented during the mitigation hearing. Further, the trial

court determined that “because of the nature and quality of the mitigation facts Mr. Hrdy was

able to obtain, as well as the lengthy time that pre-existed the death penalty specification, during

which there were psychological reports, the development of a rapport with [Jones] and his

attorneys (especially Mr. Hicks), communication with the family and information gathering, the

late start was not detrimental to [Jones’s] mitigation investigation.” As shown above, these

findings were supported by competent, credible evidence.

          {¶53} With specific reference to the allegations of sexual abuse in the Jones family, the

trial court acknowledged that the purpose of the post-conviction relief hearing was not to

determine the merits of Jones’s sexual abuse or incest claims, but to determine if the defense

team should have reasonably discovered the abuse.          However, in so doing, the trial court

necessarily had to evaluate the testimony and credibility of the witnesses. The trial court found

that the credible testimony in this case showed that all four members of the mitigation team

asked about sexual abuse and that they were all met with denials. Based on the trial court’s

observations of the testimony and evidence presented at the post-conviction relief hearing, we

conclude that this determination was supported by competent credible evidence.

          {¶54} “The Sixth Amendment entitles criminal defendants to the ‘“effective assistance

of counsel”’–that is, representation that does not fall ‘below an objective standard of

reasonableness’ in light of ‘prevailing professional norms.”’” Bobby v. Van Hook, 588 U.S. 4

(2009), quoting Strickland, 466 U.S. at 686, quoting McMann v. Richardson, 397 U.S. 759, 771

(1970).     Counsel’s failure to reasonably investigate a defendant’s background and present

mitigating evidence to the jury can constitute ineffective assistance of counsel. Wiggins, 539

U.S. at 521-522. However, “[t]he reasonableness of counsel’s actions may be determined or
                                                28


substantially influenced by the defendant’s own statements or actions.” Strickland at 691, citing

Decoster, 624 F.2d at 209-210 (D.C.Cir.1976).

       {¶55} In applying the above standard, the trial court determined that in light of the

variety of circumstances Jones’s trial counsel faced, their investigation was reasonable and thus,

counsel was not ineffective for failing to discover additional alleged abuse. First, the trial court

found that the mitigation team’s failure to utilize the FETI method of questioning was not

unreasonable as FETI did not come into existence until 2013. Second, Dr. Fradkin testified that

“most men go to their graves without ever talking about [sexual abuse]” and the disclosure of

sexual abuse “varies from person to person.        It could take months.     It could take years.”

Consequently, the trial court determined that even assuming there was any truth to the

allegations of sexual abuse and incest within the Jones family,

       in light of the 30 years of failure of trained medical, psychiatric, psychological
       and education professionals to uncover the abuse, to require his attorneys to
       discover such information in the limited time provided by the time constraints of a
       criminal trial in which the defendant is incarcerated is unreasonable and beyond
       any requirements of the ABA Guidelines.

Third, Dr. Stinson testified that the abuse may have been disclosed now “because main

perpetrators and the main individuals who said we do not talk about this eventually died.” The

trial court further determined that if that was the case, Jones’s defense counsel would have had

no chance of obtaining any type of disclosure since Jones’s mother was still alive at the time of

the mitigation investigation.

       {¶56} As the trial court applied the appropriate legal standard and the trial court’s

findings were based upon competent credible evidence, we cannot conclude that the trial court

abused its discretion when it determined that Jones’s trial counsel did not render deficient

performance when they failed to discover alleged sexual abuse and additional alleged physical
                                                29


and emotional abuse perpetrated against Jones during their mitigation investigation.            See

Maryland v. Kulbicki, 136 S.Ct. 2, 4-5 (2015) (recognizing that the right to effective assistance

of counsel does not demand that lawyers go “looking for a needle in a haystack” when they have

“reason to doubt there is any needle there.”) As Jones has failed to show that his trial counsel

rendered deficient performance during their mitigation investigation we need not address

whether Jones was prejudiced. See Ray, 9th Dist. No. 22459, 2005-Ohio-4941 at ¶ 10.

2. Dr. Siddall’s Evaluation & Diagnosis

       {¶57} Jones next argues that Dr. Siddall had neither the time nor the information

necessary to perform a complete a psychological evaluation and make a diagnosis for the

purposes of the mitigation hearing. Thus, the extent of Jones’s mental illness was not discovered

and his trial counsel’s assistance was ineffective due to their failure to adequately review Jones’s

mental health records and ensure that Dr. Siddall did so as well.

       {¶58} Dr. Siddall’s testimony regarding Jones’s mental illness during the mitigation

hearing was summarized by the Supreme Court of Ohio in the following way:

       In summary, Dr. Siddall testified that Jones has “a chronic history of mental
       illness which has required very expansive psychiatric treatment while he was
       incarcerated and in the community.” Jones has been repeatedly hospitalized and
       been treated with antidepressants, mood-stabilizing drugs, and antipsychotic
       medications. Jones was also raised in a family with a long history of psychiatric
       problems, alcohol and drug abuse, domestic violence, and involvement with the
       criminal-justice system. Dr. Siddall testified that these severe problems affect
       most members of Jones’s family and represent “a rather unusual cluster of very
       serious problems in a given family.” He opined that “certain psychiatric
       problems, certain psychological problems * * * are known to be biologically
       based * * * [and were] genetically transmitted * * * across generations in the
       Jones family.”

       During cross-examination, Dr. Siddall acknowledged that a Dr. Stafford, a
       psychiatrist who treated Jones at the Oakwood Forensic Hospital, reported that
       Jones admitted that he falsely reported hearing voices. Dr. Stafford concluded,
       “He is not psychotic at all. His whole outlook is due to malingering and put on.”
       Dr. Stafford’s report also stated that Jones “puts on psychosis due to experience
                                                  30


       with mental health professionals through the years. He is difficult to differentiate
       because he is clever to answer vaguely.”1

Jones I, 135 Ohio St.3d, 2012-Ohio-5677, at ¶ 236-237.

       {¶59} Dr. Siddall is an expert in forensic psychology and testified as an expert in

“maybe a dozen” capital mitigation hearings prior to Jones’s case. He testified at Jones’s post-

conviction relief hearing as a witness for the State. Based on this testimony, the trial court found

that he is licensed in both clinical and forensic psychology and also practices in the area of drug

addiction. He has been licensed since 1975, is published and has received awards. At the time

of his testimony, Dr. Siddall had taught graduate level courses, including courses on diagnosis.

Although he is currently in private practice, Dr. Siddall has had significant experience with

persons in a criminal legal setting through his work at a diagnostic clinic.

       {¶60} Dr. Siddall stated that as a rule he would get records and complete his report

before the start of trial, but in this case he completed his report after Jones’s trial, but before the

mitigation phase. Dr. Siddall stated that when he first became involved in the case, “[t]here was

a ship load of records that came in and continued to come in.” He also stated that he thought he

had received some records after he had completed his report, but did not recall which ones. The

trial court found that Dr. Siddall’s report identified his documentary sources as Jones’s

educational records from Akron Public Schools (1978-1986), as well as mental health records

from the Ohio Department of Rehabilitation and Corrections, Summit Psychological Associates,

Portage Path Mental Health Center, and the Psycho-Diagnostic Clinic. Dr. Siddall also visited

Jones in the Summit County Jail on two occasions, spending about three and a half hours at each

visit. The visits were divided equally between interviewing and testing Jones. The trial court


       1
        The trial court noted in its decision that “[t]he report attributed to Dr. Stafford in the
Supreme Court opinion was actually the April 18, 1996 report of Dr. Khalid Matouk.”
                                               31


found that Dr. Siddall’s invoice documented billing for 32.75 hours of casework, which included

interviews, testing, record review, and consultations with Jones’s attorneys and mitigation

specialist. In addition to the documentary sources, Dr. Siddall relied on information from Jones

and detailed family information he received from Mr. Hrdy. Dr. Siddall testified that he had

enough time to complete the tasks he was assigned to do, but that he had also been aware that if

he needed additional time, he would be able to ask for and receive more time.

       {¶61} Dr. Siddall diagnosed Jones with a mood disorder. Dr. Siddall testified that he

was aware that other diagnoses had been made with regard to Jones that differed from the one to

which he opined during mitigation. However, he testified that it would be inappropriate for him

to diagnose Jones by giving him a diagnosis given by another doctor rather than making his own

diagnosis. Dr. Siddall stated that “you have to understand that anybody that has been in the

system for years will probably have many diagnoses” and that “[t]he important thing here is that

the core of defendant’s psychological problems included a depressive disorder, psychotic like

features, and the history of antisocial behavior.     Those are the things that needed to be

represented in the diagnosis. There is various ways of labeling them.”

       {¶62} At the post-conviction relief hearing, Jones called three expert witnesses to testify

concerning his mental health. The first was Dr. Jeffery Madden. Dr. Madden is an expert in

neuropsychology.     The trial court found that Dr. Madden had performed a battery of

neuropsychological tests on Jones to determine if there were any signs of organic brain injury.

During his post-conviction relief testimony, he opined that those results validated Jones’s prior

diagnosis of schizoaffetive disorder-bipolar type. However, Dr. Madden could not opine to a

reasonable degree of neuropsychological certainty as to the presence or absence of neurological

dysfunction or whether Jones suffered from a cognitive disorder attributable to organic brain
                                               32


damage. However, Dr. Madden did opine to a reasonable degree of scientific certainty that Jones

was not malingering at the time that Dr. Madden conducted his tests in January 2013.

        {¶63} Jones also called Dr. Gary Beven, an expert in psychiatry and forensic psychiatry.

The trial court found that Dr. Beven was the Chief Psychiatrist at the Southern Ohio Correctional

Facility from 1995-2003, during which time Jones was incarcerated at the facility. Dr. Beven

was the primary lead of the mental health team and provided Jones with mental health treatment.

Dr. Beven had examined Jones 35 times while he was incarcerated and had diagnosed Jones with

shizoaffective disorder-bipolar type with personality disorder. During the entire time of Dr.

Beven’s treatment of Jones, Jones remained on the mental health C.I.C. caseload, indicating

serious and chronic mental illness. Dr. Beven acknowledged a discussion of malingering or

exaggeration in his case notes, but that discussion did not cause him to second-guess his

diagnosis of Jones. Dr. Beven’s last contact with Jones was in 2003 and he could not offer any

testimony about Jones after that time. Jones’s original mitigation team did not contact Dr. Beven

prior to Jones’s capital trial.

        {¶64} Jones also called Dr. Bob Stinson, an expert in forensic psychology. The trial

court found that Dr. Stinson testified about the dysfunction and abuse with the Jones family. He

personally interviewed Jones, but did not conduct any tests on Jones.        In addition to the

interview, Dr. Stinson relied upon the affidavits of family members and Dr. Fradkin’s report. Dr.

Stinson opined to a reasonable degree of psychological certainty that Jones suffers from

schizoaffective disorder, bipolar type. During his testimony, Dr. Stinson was critical of Dr.

Siddall’s diagnosis of mood disorder, his testing methods, his mitigation testimony regarding

Jones’s malingering, and the amout of time Dr. Siddall spent with Jones. Dr. Stinson was further

critical of the amount of time Dr. Siddall spent reviewing Jones’s records. However, when
                                                 33


testifying about the difference between his diagnosis and that of Dr. Siddall’s, Dr. Stinson stated

that “we are actually not as far off as it may seem, but mood disorder not otherwise specified is

our label for saying, I see a mood component to his illness, but I don’t have enough information

to tell you exactly what category it fits in.” Dr. Stinson’s further stated that he would not say Dr.

Siddall’s diagnosis was wrong, but that he did not have enough information to give a more

specific diagnosis.

       {¶65} Despite the extensive amount of mitigating evidence presented during Jones’s

mitigation hearing, See Jones I, 135 Ohio St.3d, 2012-Ohio-5677 at ¶ 224-256, Jones contends

his defense counsel were ineffective due to their failure to adequately review Jones’s mental

health records and ensure that Dr. Siddall did so as well. However, even assuming without

concluding that counsel was deficient, Jones is not able to show he was prejudiced by the

mitigation investigation into his history of mental illness. When assessing prejudice, “‘the

question is whether “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”’” Herring, 142 Ohio St.3d,

2014-Ohio-5228, at ¶ 116, quoting State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, ¶ 163,

quoting Strickland, 466 U.S. at 694. Accordingly, “[a]dditional mitigating evidence that is

merely cumulative of that already presented does not undermine the results of sentencing.”

(Internal quotations omitted.) Id. at ¶ 117.

       {¶66} In this case, the trial court determined that the testimony given about the

manifestations of Jones’s mental illness given by Dr. Stinson and Dr. Beven was consistent with

and cumulative of the testimony presented by Dr. Siddall at Jones’s mitigation hearing.

Specifically, the trial court found that “[w]hile [Jones] is mentally ill, his mental illness is
                                               34


inextricably wrapped around his anti-social personality disorder.” The trial court based this

determination on the “scores of case notes in the prison records and other documents submitted

as evidence.” The trial court then pointed to Dr. Siddall’s mitigation testimony, in which he

gave a significantly more detailed diagnosis than just the named disorder and determined that

despite the differing names of the diagnoses, Dr. Stinson’s and Dr. Beven’s testimonies about the

manifestations of Jones’s mental illness and the medications used to treat him was consistent

with and cumulative of testimony given by Dr. Siddall at the mitigation hearing.            Such

manifestations included suicide attempts, self-mutilation, depression, hallucinations, and

psychiatric hospitalizations and the medications included mood stabilizing drugs for bipolar

disorder and antipsychotic drugs. The trial court additionally noted that when testifying about

the differences between his diagnosis and Dr. Siddall’s, Dr. Stinson stated that their diagnoses

were “not as far off as it may seem” and that in his own report, Dr. Stinson did not reference any

of the records he suggested Dr. Siddall needed in order to have a more complete picture of

Jones’s mental illness. However, when forming his opinion, the trial court noted that Dr. Stinson

did not have access to the 1448 pages of mental health records contained in Jones’s ODRC

records, was selective in his use of the information in some of Jones’s other records, and did not

personally conduct any tests on Jones.       Accordingly, we conclude that the trial court’s

determination that the testimony given by Dr. Stinson and Dr. Beven was consistent with and

cumulative of the testimony presented by Dr. Siddall at Jones’s mitigation hearing did not

constitute an abuse of discretion.

       {¶67} Furthermore, the trial court determined that Jones’s argument that Dr. Siddall

used an inappropriate method to diagnosis Jones’s malingering ignored the fact that Dr. Stafford

also opined that Jones showed evidence of malingering during his competency evaluation.
                                                 35


During his testimony, Dr. Siddall pointed out that mental illness and malingering are not

mutually exclusive. Furthermore, Dr. Siddall’s testimony regarding malingering was part of the

focus of the State’s cross-examination on Jones’s history of malingering and that Dr. Siddall

addressed the malingering the most positive way possible.

           {¶68} Therefore, we cannot conclude that the trial court abused its discretion when it

determined that the testimony given about the manifestations of Jones’s mental illness given by

Dr. Stinson and Dr. Beven was consistent with and cumulative of the testimony presented by Dr.

Siddall at Jones’s mitigation hearing. As Jones has failed to show he was prejudiced by his

counsels’ actions we need not address whether counsel was deficient. See Ray, 2005-Ohio-4941

at ¶ 10.

C. Conclusion

           {¶69} Jones has failed to demonstrate the trial court abused its discretion when it

determined that Jones’s trial counsel was not deficient for failing to discover further alleged

abuse during their mitigation investigation or that Jones was prejudiced by counsel’s alleged

failure to discover the extent of Jones’s mental illness. Therefore, Jones’s first assignment of

error is overruled.

                                      Assignment of Error II

           The trial court erred by refusing to consider out of court statements for
           hearsay and nonhearsay purposes, in violation of Due Process and Ohio law.
           []

           {¶70} In his second assignment of error, Jones argues that the trial court erred by not

considering out of court statements offered other than for the truth of the matter asserted or for

other non-hearsay purposes. The first statements Jones argues that the trial court should have

considered were made by his mother in an affidavit sworn to before her death. The second set of
                                                 36


statements were out of court statements made by individuals not testifying at the hearing for

post-conviction relief about which Jones’s sisters attempted to testify to during the hearing. Both

sets of statements were made regarding alleged sexual abuse which occurred within the Jones

family.

          {¶71} “The decision to admit or exclude evidence at trial lies within the sound

discretion of the trial judge, and the court’s decision will not be reversed absent a showing of an

abuse of discretion.” State v. Stover, 9th Dist. Wayne No. 13CA0035, 2014-Ohio-2572, ¶ 7. An

abuse of discretion is more than an error in judgment; it implies that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When applying the abuse of discretion standard, this court may not substitute its

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

          {¶72} Hearsay is inadmissible except as otherwise provided in the Ohio Rules of

Evidence or other relevant constitutional or statutory provisions.        Evid.R. 802. Hearsay is

defined as “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R. 801.

          {¶73} Prior to Jones’s post-conviction relief hearing, Jones filed a motion in limine

requesting the trial court allow the affidavit of Jones’s now deceased mother to be admitted into

evidence at the hearing. The trial court denied the motion in part and granted it in part. The trial

court found that part of the affidavit contains a claim “which goes to the issue of ineffective

assistance of counsel” and as such went to the heart of the very issue before the trial court in the

post-conviction relief hearing. The trial court further determined that the statements were not

admissible as statements against interest.     Thus, the statements “must be subject to cross-

examination to be admissible.” However, the trial court did find that statements within the
                                                 37


affidavit pertaining to personal or family history were admissible for the truth of the matter

asserted pursuant to Evid.R. 804(B)(4). Jones reasserted the issue during his hearing and the trial

court again denied Jones’s request to admit those statements within the affidavit which went to

the issue of ineffective assistance of counsel, thus preserving the issue for appeal.

       {¶74} First, Jones argues these hearsay statements should have been admitted pursuant

to Green v. Georgia, 442 U.S. 95 (1979). Specifically, Jones contends that the out of court

statements at issue in Jones’s mother’s affidavit should have been admitted because they would

have been admissible during the mitigation phase of Jones’s capital trial. In Green, the Supreme

Court “carved out an exception to evidentiary rules for mitigation evidence in extreme

circumstances when its exclusion would violate the Due Process Clause of the Fourteenth

Amendment to the United States Constitution.” State v. Sheppard, 84 Ohio St.3d 230, 237

(1998), citing Green at 97. However, the holding in Green addressed the exclusion of hearsay

evidence where “[t]he excluded testimony was highly relevant to a critical issue in the

punishment phase of trial.” (Emphasis added.) Id. The present appeal was taken after Jones’s

hearing on his motion for post-conviction relief, not after Jones’s sentencing hearing.

       {¶75} In Ohio, post-conviction relief is governed by statute and the right to file a

petition for post-conviction relief is a statutory right, not a constitutional one. State v. Calhoun,

86 Ohio St.3d 279, 281 (1999); R.C. 2953.21. Additionally, “a postconviction proceeding is not

an appeal of a criminal conviction but, rather, a collateral civil attack on the judgment.” Id. R.C.

2953.21(A)(1)(a) provides that any person who has been convicted of a criminal offense may

petition the court for post-conviction relief pursuant to a claim “that there was such a denial or

infringement of the person’s rights as to render the judgment void or voidable under the Ohio

Constitution or the Constitution of the United States.” Thus, Jones’s reliance on Green is
                                                 38


misplaced because the evidentiary hearing on Jones’s request for post-conviction relief is a

separate and distinct proceeding from the punishment or mitigation phase of his trial.

       {¶76} “R.C. 2953.21 grants a petitioner only those rights specifically enumerated in its

provisions and no more.” State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, ¶ 28, citing

Calhoun at 281. R.C. 2953.21 does not carve out any exceptions to the rules of evidence during

a hearing for post-conviction relief. Thus, “[e]videntiary hearings under R.C. 2953.21 are

subject to the rules of evidence.” State v. Jeffers, 10th Dist. Franklin No. 10AP-1112, 2011-

Ohio-3555, ¶ 25; See State v. Brinkley, 6th Dist. Lucas No. L-04-1066, 2004-Ohio-5666, ¶ 12-

14; See also State v. Morgan, 10th Dist. Franklin No. 95APA03-382, 1995 WL 694489, at 3

(Nov. 21, 1995) (concluding that although it was necessary for appellant to submit affidavits in

order for the trial court to determine whether he was entitled to a hearing, once the trial court

granted that hearing, it became necessary for him to produce admissible evidence under the rules

of evidence.). Accordingly, we cannot say that the trial court abused its discretion when it

excluded hearsay testimony from Jones’s sisters.

       {¶77} Next, Jones argues that Jones’s mother’s affidavit was admissible pursuant to

Evid.R. 804(B)(3) as a statement against interest because Jones’s mother “subjected herself to

possible perjury charges.” That rules states that if the declarant is unavailable as a witness, the

following is not excluded by the hearsay rule:

       A statement that was at the time of its making so far contrary to the declarant's
       pecuniary or proprietary interest, or so far tended to subject the declarant to civil
       or criminal liability, or to render invalid a claim by the declarant against another,
       that a reasonable person in the declarant's position would not have made the
       statement unless the declarant believed it to be true. A statement tending to
       expose the declarant to criminal liability, whether offered to exculpate or
       inculpate the accused, is not admissible unless corroborating circumstances
       clearly indicate the truthworthiness of the statement.
                                                39


Evid.R. 804(B)(3). A witness who “is unable to be present or to testify at the hearing because of

death” is considered an unavailable witness for the purposes of the hearsay exception. Evid.R.

804(A)(4). A person is guilty of perjury when, in any official proceeding, she knowingly makes

a false statement under oath or affirmation, or knowingly swears or affirms the truth of a false

statement previously made, when either statement is material. R.C. 2921.11(A). A falsification

is material if it can affect the course or outcome of the proceeding. R.C. 2921.11(B).

       {¶78} In denying the motion in limine, the trial court noted that Jones’s mother’s

affidavit differed “somewhat” from her testimony during trial, such as portraying Jones’s father

as a good father and provider during trial, but calling him “mean and harsh2” in her affidavit and

stating that “he didn’t provide for the family.” The trial court found the fact that Jones’s mother

never states in her affidavit that she lied during her trial testimony or “that she purposely held

back pertinent mitigation information” to be critical as that could have subjected her to criminal

perjury charges.

       {¶79} On appeal, Jones points to three instances in Jones’s mother’s mitigation

testimony which differ from the statements in her affidavit and which may have subjected her to

possible perjury charges. However, a review of the record shows no explicit contradiction of any

material statement. Additionally, Jones’s mother makes no statement in her affidavit that she

made false statements during her mitigation testimony. The first exchange Jones points to went

as follows:

       Q: Throughout, all of your kids, the time they were growing up, when they were
       children to adults, have you always been very supportive of them?

       A: Yes.

       2
         We note that a review of Jones’s mother’s affidavit shows that Jones’s mother refers to
Jones’s paternal grandfather as “mean and harsh” and not Jones’s father. However, the affidavit
does refer to Jones’s father as a “violent person.”
                                              40



       Q: What about your husband? Was your husband, would you consider him a
       good role model for your kids?

       A: Yes.

The second exchange was as follows:

       Q: Okay. And would you describe the home that you and your husband provided
       to your kids a stable home, at least in terms of support and providing care for
       them?

       A: Yes.

Finally, the third exchange happened as follows:

       Q: Ma’am, your husband, Mr. Jones, you said that he worked for the post office.
       Did he end up retiring from the post office after thirty-seven years?

       A: Yes.

       Q: So he retired with a pension, obviously?

       A: Yes.

       Q: And, ma’am, you working at least a couple of jobs, between you and your
       husband, you probably made a fairly good living considering you had eight
       children?

       A: Yes.

       Q: And they were always provided for?

       A: Yes.

       ***

       Q: All right. So Mr. Jones, Phillip Jones’s father, just a good guy who took care
       of his kids?

       A: Yes, basically.

Jones argues that the above mitigation testimony is inconsistent with statements Jones’s mother

made in her affidavit. Although Jones does not point to any specific statements, a review of the
                                               41


affidavit shows that Jones’s mother made the following statements about Jones’s father that are

somewhat inconsistent to her mitigation testimony and were redacted from her affidavit:

       19. Although [Jones’s father] worked, he didn’t provide for the family. He spent
       his money on other women. He drank a lot and came home drunk. He drank
       bourbon and whiskey. He also smoked reefer.

       ***

       21. [Jones’s father] cheated on me with other women. Once I followed him to
       the home of his mistress.

       22. When my daughter Yolanda was young, someone I knew, [E.H.], had just
       been released from prison. My husband and I took him out. [Jones’s father]
       brought him home with us and wanted me to have sex with [E.H.] while he
       watched. I said no. The two men then began to fight, and [Jones’s father]
       grabbed an ax from the basement and began to swing it at [E.H.].

       ***

       26. [Jones’s father] and I argued a lot. He was a violent person. During one
       argument, he kicked me in the eye. * * * My children, including Phillip, saw the
       abuse. [Jones’s father] broke my nose, gave me black eyes, and hit me in the
       head with a frying pan. In 1979, we divorced.

       ***

       32. I disciplined my children with a belt. [Jones’s father] also whooped the
       children sometimes, but he was too lenient. Once when Phillip was six or seven
       years old, he took money from his father’s billfold while he was sleeping.
       [Jones’s father] came to my work to tell me about it instead of disciplining
       Phillip. I gave Phillip a whooping.

       ***

       38. When I was still living with my husband, and my daughters Yolanda and
       Rhonda were children (Yolanda might have been 10 or 11 years old), I couldn’t
       find the knives in the kitchen. I eventually found them in my daughters’
       bedroom. They said they kept the knives in their beds for protection against their
       father, who tried to molest them. I didn’t report my husband to the authorities.

       ***

       41. In 1998, [Jones’s father] and I married each other again.
                                                42


       42. In 2006, [Jones’s father] died from cancer. Phillip took his father’s death
       very hard.

       {¶80} Although these statements seem inconsistent with Jones’s mother’s statement that

she considered Jones’s father a good role model, none of the statements in the affidavit directly

contradict that opinion or suggest that Jones’s mother testified falsely as to that opinion during

her mitigation testimony. Likewise, Jones’s mother’s affidavit does not directly contradict her

mitigation testimony affirming that she and Jones’s father provided the Jones children with a

stable home “in terms of support and providing care” and that the Jones children were “always

provided for.” The question posed during mitigation did not ask whether Jones’s father provided

for the Jones children, but rather: (1) whether Jones’s mother and father together provided a

stable home for the Jones children; and (2) whether the children were generally “always provided

for.” Accordingly, we cannot say that the trial court abused its discretion when it excluded

hearsay statements in Jones’s mother’s affidavit.

       {¶81} Alternatively, Jones argues that statements made by Jones’s mother in her

affidavit asserting abuse were admissible for the non-hearsay purpose of showing that she was

willing to disclose abuse, regardless of the truth of those disclosures. However, the Supreme

Court of Ohio has recognized that “‘the well-worn phrase “not offered for the truth of the matter

asserted” is not a talismanic incantation that opens the door to everything said outside the

courtroom.’”   State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, ¶ 25, quoting State v.

Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, ¶ 26 (6th Dist.). In this case, the trial court

determined that Jones’s mother’s statements in her affidavit went “to the issue of ineffective

assistance of counsel” and thus, went “to the very heart of the issue” before the trial court in the

post-conviction relief hearing and therefore, “must be subject to cross-examination to be
                                                 43


admissible.” Under these circumstances, we cannot say that the trial court abused its discretion

when it excluded the statements.

       {¶82} Therefore, Jones’s second assignment of error is overruled

                                                 III.

       {¶83} Jones’s first and second assignments of error have been overruled. Therefore, the

decision of the trial court dismissing Jones’s petition for post-conviction relief is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                        JULIE A. SCHAFER
                                                        FOR THE COURT
                                                44


TEODOSIO, J.
CONCURS.

CARR, J.
CONCURRING.

       {¶84} While I am troubled by various aspects of this case, I cannot say that the trial

court’s decision to deny Jones’ petition after a full evidentiary hearing was unreasonable,

arbitrary or unconscionable. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶85} The performance of trial counsel and their mitigation team is of paramount

importance in capital cases. Since we decided Jones II, the Ohio Supreme Court convened a

Task Force to review the administration of the death penalty in Ohio.                  Among its

recommendations, the Task Force recommended the adoption of the American Bar Association’s

Guidelines for death penalty counsel. It also recommended adoption of the Supplementary

Guidelines for the defense mitigation team. These Guidelines establish a high bar for trial

counsel and the mitigation team. Although the Ohio Supreme Court has declined to formally

adopt these Guidelines, they nevertheless underscore the importance of counsel’s preparation for

the mitigation hearing.

       {¶86} In this case, Jones’ defense team agreed to a timetable that resulted in a scenario

where Mr. Hrdy did not begin his mitigation work until one month prior to the commencement

of the sentencing hearing. Consequently, Mr. Hrdy was restricted in the amount of time he could

spend on the case and he was forced to conduct interviews under less than ideal circumstances.

The accelerated nature of Mr. Hrdy’s efforts is particularly concerning given that he did not learn

about the sexual abuse that Jones allegedly suffered. After a thorough review of the evidentiary

hearing transcript in this case, however, I cannot say that the trial court’s ultimate decision to

deny Jones’ motion constituted an abuse of discretion.
                                      45



APPEARANCES:

KIMBERLY RIGBY, LISA LAGOS, AND ALLAN VENDER, Assistant State Public
Defenders for Appellant.

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