[Cite as State v. Jackson, 2009-Ohio-5906.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 14-09-24

        v.

ERIC A. JACKSON,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Union County Common Pleas Court
                            Trial Court No. 02-CR-0116

                                      Judgment Affirmed

                          Date of Decision:    November 9, 2009




APPEARANCES:

        Claire R. Cahoon for Appellant

        Terry L. Hord for Appellee
Case No. 14-09-24


PRESTON, P.J.

      {¶1} Petitioner-appellant, Eric A. Jackson (hereinafter “Jackson”),

appeals the Union County Court of Common Pleas’ judgment denying his petition

for post-conviction relief without a hearing. We affirm.

      {¶2} The pertinent facts and procedural history of this case was set forth

by this Court in Jackson’s direct appeal, State v. Jackson, 3d Dist. No. 14-03-28,

2004-Ohio-4016, appeal not allowed by State v. Jackson, 104 Ohio St.3d 1439,

2004-Ohio-7033, 819 N.E.2d 1123, as follows:

      It is undisputed that on October 15, 2002, Jackson shot his
      mother, Donna Levan (“Levan”), with a sawed-off twelve-gauge
      shotgun. The shooting occurred in the parking lot of Levan’s
      place of employment, the Heartland of Marysville Nursing and
      Rehabilitation Center, in Union County, Ohio. There were no
      witnesses to the shooting. Following the shooting, Jackson drove
      away from the scene, but he was shortly thereafter pulled over
      and arrested by a Union County Sheriff’s deputy. Levan died
      nine days after the shooting.

      On October 24, 2002, following Levan’s death, Jackson was
      indicted and charged with one count of Aggravated Murder, in
      violation of R.C. 2903.01(A), a felony of the first degree, with a
      firearm specification, and Unlawful Possession of Dangerous
      Ordnance, in violation of R.C. 2923.17, a felony of the fifth
      degree.

      Pertinent to this appeal, Jackson entered written pleas of not
      guilty and not guilty by reason of insanity to the charge of
      aggravated murder. See Crim.R. 11(A). Jackson was deemed
      competent to stand trial by the court-appointed psychiatrist and
      the matter was set for a jury trial.




                                       -2-
Case No. 14-09-24


      On June 26, 2003, the jury returned a verdict finding Jackson
      guilty on all charges. Jackson was sentenced to consecutive
      prison terms of three (3) years for the firearm specification and
      twenty (20) years for aggravated murder. Jackson was also
      sentenced to one (1) year in prison for unlawful possession of
      dangerous ordnance, to be served concurrently with the
      aggravated murder conviction. In aggregate, Jackson was
      sentenced to twenty-three (23) years in prison.

On August 2, 2004, this Court affirmed Jackson’s conviction but reversed and

remanded for resentencing finding sua sponte that Jackson should have been

sentenced to a life term under R.C. 2929.03(A)(1). Id. at ¶¶22-23; (Doc. No. 165).

      {¶3} On February 26, 2004, while his direct appeal was pending, Jackson

filed a Crim.R. 33(B) motion for a new trial on the basis of newly discovered

evidence. (Doc. No. 153).     Specifically, Jackson alleged a newly discovered

witness, Kaci Chaffin, observed the shooting and averred that Jackson never

pointed the gun toward his mother; but “[r]ather, the gun discharged after Jackson

aimed the weapon at his own head and his mother struggled to pull the gun away.”

(Id.); (Id., Ex. A). On March 2, 2004, however, the trial court overruled the

motion as being untimely filed. (Doc. No. 157). On March 24, 2004, Jackson

appealed this decision, and, on September 27, 2004, we affirmed the trial court’s

decision. State v. Jackson, 3d Dist. No. 14-04-11, 2004-Ohio-5103 (Doc. No.

165), appeal not allowed by State v. Jackson, 105 Ohio St.3d 1451, 2005-Ohio-

763, 823 N.E.2d 456.




                                       -3-
Case No. 14-09-24


       {¶4} On April 16, 2004, after the trial court denied his Crim.R. 33(B)

motion for a new trial, Jackson filed a post-conviction petition in the trial court.

(Doc. No. 164). In support of his petition, Jackson alleged that his trial counsel

was ineffective because he failed to discover Kaci Chaffin, an eyewitness whose

testimony would have likely changed the outcome of his trial. (Id.). For unknown

reasons though, the trial court failed to rule on the motion. Then, on May 27,

2009, Jackson filed a motion for a ruling on the petition. (Doc. No. 180). On June

22, 2009, the trial court dismissed Jackson’s post-conviction relief petition without

a hearing. (Doc. No. 181).

       {¶5} On July 10, 2009, Jackson filed a notice of appeal from the trial

court’s decision. (Doc. No. 183).      Jackson now appeals raising two related

assignments of error. We elect to address them together.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN DISMISSING MR.
       JACKSON’S POSTCONVICTION PETITION, BECAUSE MR.
       JACKSON PRESENTED A SUBSTANTIVE GROUND FOR
       RELIEF IN OFFERING SUFFICIENT EVIDENCE THAT HE
       WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
       STRICKLAND V. WASHINGTON (1984), 466 U.S. 668, 687-88;
       (JOURNAL ENTRY, JUNE 22, 2009).

                         ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DISMISSING MR.
       JACKSON’S POSTCONVICTION PETITION WITHOUT AN
       EVIDENTIARY HEARING WHEN THE PETITION
       DEMONSTRATED SUFFICIENT OPERATIVE FACTS TO


                                        -4-
Case No. 14-09-24


       ESTABLISH SUBSTANTIVE GROUNDS FOR RELIEF. R.C.
       2953.21(C); (JOURNAL ENTRY, JUNE 22, 2009).

       {¶6} In his first assignment of error, Jackson argues that he presented

substantive grounds for relief by offering sufficient evidence that his trial counsel

was ineffective. In his second assignment of error, Jackson argues that the trial

court erred by denying his petition without first granting an evidentiary hearing.

The State argues that the trial court did not abuse its discretion by denying

Jackson’s petition without a hearing. We agree with the State.

       {¶7} R.C. 2953.21, the post-conviction relief statute, provides, in

pertinent part:

       (A)(1)(a) Any person who has been convicted of a criminal
       offense * * * who claims 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 * * * may file a petition in the court that
       imposed sentence, stating the grounds for relief relied upon, and
       asking the court to vacate or set aside the judgment or sentence
       or to grant other appropriate relief. * * *

       (C) The court shall consider a petition that is timely filed under
       division (A)(2) of this section even if a direct appeal of the
       judgment is pending. Before granting a hearing on a petition
       filed under division (A) of this section, the court shall determine
       whether there are substantive grounds for relief. In making such
       a determination, the court shall consider, in addition to the
       petition, the supporting affidavits, and the documentary
       evidence, all the files and records pertaining to the proceedings
       against the petitioner, including, but not limited to, the
       indictment, the court’s journal entries, the journalized records
       of the clerk of the court, and the court reporter’s transcript. * *
       * If the court dismisses the petition, it shall make and file


                                        -5-
Case No. 14-09-24


       findings of fact and conclusions of law with respect to such
       dismissal. * * *

       (G) If the court does not find grounds for granting relief, it shall
       make and file findings of fact and conclusions of law and shall
       enter judgment denying relief on the petition. * * *

       {¶8} A petitioner seeking to challenge his conviction through a post-

conviction relief petition is not entitled to a hearing automatically. State v. Jones,

3d Dist. No. 4-07-02, 2007-Ohio-5624, ¶12, citing State v. Jackson (1980), 64

Ohio St.2d 107, 110, 413 N.E.2d 819; State v. Driskill, 3d Dist. Nos. 10-07-03, 10-

07-04, 2008-Ohio-827, ¶12. Instead, the applicable test is “whether there are

substantive grounds for relief that would warrant a hearing based upon the

petition, the supporting affidavits, and the files and records in the case.” Jones at

¶12, citing State v. Strutton (1988), 62 Ohio App.3d 248, 251, 575 N.E.2d 466.

When reviewing the documentary evidence in support of the petition, the trial

court may judge credibility and determine whether to accept the affidavits as true

for the purpose of showing substantive grounds for relief. Jones at ¶15, citing

State v. Calhoun (1999), 86 Ohio St.3d 279, 284, 714 N.E.2d 905; State v. Bays

(Jan. 30, 1998), 2nd Dist. No. 96-CA-118; Strutton, 62 Ohio App.3d at 252

       {¶9} When the post-conviction relief petition “‘alleges grounds for relief,

and the record of the original criminal prosecution does not fully rebut the

allegations, the petitioner is entitled to an evidentiary hearing in which he is

provided an opportunity to prove his allegations.’” Jones at ¶13, quoting Bays, 2nd


                                        -6-
Case No. 14-09-24


Dist. No. 96-CA-118, citing State v. Williams (1966), 8 Ohio App.2d 135, 136,

220 N.E.2d 837. “However, if the court determines that there are no substantive

grounds for relief, it may dismiss the petition without an evidentiary hearing.”

Jones at ¶14, citing State v. Smith, 3d Dist. No. 1-04-50, 2004-Ohio-6190, citing

Calhoun, 86 Ohio St.3d at 282-83; State v. Cole (1982), 2 Ohio St.3d 112, 443

N.E.2d 169.

       {¶10} When a petition for post-conviction relief alleges ineffective

assistance of counsel, “the petitioner bears the initial burden to submit evidentiary

documents containing sufficient operative facts to demonstrate the lack of

competent counsel and that the defense was prejudiced by counsel’s

ineffectiveness.” Driskill, 2008-Ohio-827, at ¶16, citing Jackson, 64 Ohio St.2d

107, syllabus; Jones at ¶18. Prejudice results when “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” State v. Bradley (1989), 42 Ohio St.3d

136, 142, 538 N.E.2d 373, citing Strickland v. Washington (1984), 466 U.S. 668,

691, 104 S.Ct. 2052, 80 L.Ed.2d 674. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Bradley, 42 Ohio St.3d at

142; Strickland, 466 U.S. at 694.

       {¶11} We review a trial court’s denial of a post-conviction petition without

a hearing for an abuse of discretion. Jones at ¶16, citing State v. Campbell, 10th



                                        -7-
Case No. 14-09-24


Dist. No. 03AP-147, 2003-Ohio-6305, citing Calhoun, 86 Ohio St.3d at 284. An

abuse of discretion implies more than an error of law; rather it connotes that the

trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶12} In support of his petition, Jackson submitted the affidavit of Kaci

Chaffin, an alleged eyewitness to the shooting. (Doc. No. 164, Ex. B). Ms.

Chaffin averred, in relevant part, that:

       1. * * * On October 15, 2002, I was employed by Heartland
       nursing home in Marysville, Ohio. * * *
       2. I was acquainted with Donna Levan from working with her.
       Donna periodically discussed her son, Eric Jackson. She told me
       that he had drug problems and had attempted suicide.
       3. Eric Jackson came to Heartland, midday on October 15,
       2002. Donna went outside to see him in the parking lot, saying
       he was probably going to ask her for money.
       4. I walked down the hallway to continue my work, when
       Annabelle Reed, a patient, told me I should come to the window
       and see what was happening in the parking lot between Donna
       and her son.
       5. From the window of Ms. Reed’s room, I saw Donna fighting
       with her son. Mr. Jackson had the shotgun pointed to his own
       head. Donna was trying to pull the shotgun away from him.
       6. As Donna struggled with her son, the gun discharged and
       shot her hand off. At no time did Mr. Jackson appear to point
       the gun at his mother.
       7. I pulled the curtains closed and went to the bathroom to get
       sick. I called my grandfather and he picked me up from work
       soon thereafter.
       8. I was not aware that anything I saw was significant to the
       police investigation. I was never approached by the police or
       anyone else regarding the event.
       9. In October 2003, I was working at the Millcrest nursing
       home. I spoke with Barbara Jackson, who I am casually


                                           -8-
Case No. 14-09-24


         acquainted with because she sometimes babysat me as a child.
         She was discussing her husband when I realized that she was
         married to Eric Jackson. I told her what I saw on the day
         Donna was shot.       In November 2003, I spoke with an
         investigator from the Ohio Public Defender and recounted the
         information contained in this affidavit.

(Id.).   Jackson also submitted the affidavit of his trial counsel, Jeffery M.

Holtschulte. (Doc. No. 164, Ex. A) Holtschulte averred, in relevant part:

         2. That * * * I was assigned through the Union County Public
         Defender system * * * to represent Eric Jackson, the Defendant
         in the above captioned matter [State v. Jackson, Case No. 2002
         CR 0116];
         3. That Mr. Jackson was indicted in this matter on one count
         of Aggravated Murder and one count of Unlawful Possession of
         Dangerous Ordinance;
         4. That said indictment was based upon allegations that Mr.
         Jackson, on or about October 15, 2002, shot his mother with a
         sawed off shotgun in the parking lot of her workplace,
         Heartland Nursing Home, in Marysville, Union County, Ohio
         and she subsequently died as a result of the injuries she
         sustained;
         5. That Mr. Jackson indicated that he had no recollection of
         the actual shooting;
         6. That based upon the interviews with Mr. Jackson, his wife,
         his treating psychiatrist at the time and review of the
         investigation information provided in discovery, a defense
         theory was developed and Defendant entered a written plea of
         Not Guilty and Not Guilty By Reason Of Insanity;
         7. That witnesses identified and/or disclosed saw activity
         immediately before and after the shooting but none stated they
         saw the actual instant of the shooting;
         8. That no action was taken to search for other witnesses that
         had not been identified, discovered or voluntarily come forward;
         9. That I reviewed the affidavit of Kaci Chaffin, dated
         December 23, 2003, wherein she sets forth that she saw the
         actual instant of the shooting, but was not aware that what she
         saw was significant to the police investigation;


                                       -9-
Case No. 14-09-24


         10. That had Kaci Chaffin been discovered or otherwise
         identified there is a reasonable probability that her testimony, as
         set forth in the affidavit, would have altered the theory of
         defense; she would have been called as a defense witness; and
         that said testimony would have been resulted in Mr. Jackson not
         being convicted of Aggravated Murder.

(Id.).

         {¶13} The trial court, in its findings of fact and conclusions of law, found

that Jackson’s trial counsel did not render ineffective assistance for failing to

discover a “reluctant and silent witness.” (June 22, 2009 JE, Doc. No. 181). The

trial court further found that Jackson’s trial counsel “diligently investigated the

facts, witnesses, and theories of the case.” (Id.). In the alternative, the trial court

found that even if trial counsel’s assistance was constitutionally ineffective,

Jackson was not prejudiced since it was unlikely Chaffin’s testimony would have

affected the outcome at trial. (Id.). The trial court found that Chaffin’s affidavit

was not credible because Chaffin’s averment that she “was not aware that anything

[she] saw was significant to the police investigation” and that she witnessed

Jackson shoot his mother’s hand off were irreconcilable. (Id.). The trial court

further questioned the credibility of Chaffin’s affidavit since Jackson’s wife was

Chaffin’s friend and childhood babysitter. (Id.).         Therefore, the trial court

determined that Jackson was not denied effective assistance of counsel under

Strickland, and therefore, his constitutional rights were not violated. (Id.).




                                         - 10 -
Case No. 14-09-24


       {¶14} After reviewing the trial court’s judgment, the affidavits, the record,

and all the documentary evidence listed in R.C. 2953.21(C), we cannot conclude

that the trial court abused its discretion by dismissing Jackson’s post-conviction

petition without a hearing. To begin with, we are not persuaded that Jackson was

provided ineffective assistance of trial counsel for trial counsel’s failure to

investigate for potential eyewitnesses outside of the State’s provided discovery.

Jackson correctly points out that “[c]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691. Jackson’s trial counsel

averred that he developed a defense theory based upon his interviews with

Jackson, Jackson’s wife, and Jackson’s treating psychiatrist at the time, as well as

an investigation of information provided in discovery. (Holtschulte Aff. at ¶6,

Doc. No. 164, Ex. A). The State’s initial discovery provided: a list of thirty-five

(35) potential witnesses that could be called at trial; copies of police reports and

narratives; copies of the witness statements; property custody documents; vehicle

inventory documents; gunshot residue analysis; inventory of items obtained by

search warrant; copies of vehicle identifications; and copies of related press

releases and newspaper articles. (Doc. No. 12). The State filed supplemental

discovery several times. (Doc. Nos. 16, 19, 34, 40, 58, 62, 63, 66, 86, 103, 113).

We believe that trial counsel’s decision to review and investigate those witnesses



                                       - 11 -
Case No. 14-09-24


and evidence provided in the State’s discovery filings—and not investigate outside

of the evidence contained in these filings—was reasonable in light of all the

evidence provided by the State during discovery. Based upon that evidence, trial

counsel developed a theory of defense predicated upon Jackson’s desire to commit

suicide and his alleged mental defect. (June 24, 2003 Tr. at 30); (Holtschulte Aff.

at ¶6, Doc. No. 164, Ex. A). “[A]fter counsel chooses an adequate theory of

defense, there is no duty to prepare for alternative theories.” State v. Heffernan,

12th Dist. Nos. CA2005-11-104, CA2005-11-105, 2006-Ohio-5659, ¶15, citing

State v. Hoop, 12th Dist. No CA2004-02-003, 2005-Ohio-1407, ¶30, citing State v.

Murphy, 91 Ohio St.3d 516, 2001-Ohio-112, 747 N.E.2d 765. Therefore, we

cannot conclude that trial counsel failed to fulfill his duty of conducting a

reasonable investigation under Strickland.

       {¶15} In addition, we cannot conclude that Jackson was prejudiced by

counsel’s failure to discover Chaffin. As an initial matter, we cannot conclude

that the trial court abused its discretion by determining that Chaffin’s affidavit was

not credible. Jones at ¶15, citing Calhoun, 86 Ohio St.3d at 284; Bays, 2nd Dist.

No. 96-CA-118; Strutton, 62 Ohio App.3d at 252. In assessing the credibility of

affidavits, the trial court should consider all relevant factors, including:

       (1) whether the judge reviewing the post-conviction relief
       petition also presided at the trial, (2) whether multiple affidavits
       contain nearly identical language, or otherwise appear to have
       been drafted by the same person, (3) whether the affidavits


                                         - 12 -
Case No. 14-09-24


       contain or rely on hearsay, (4) whether the affiants are relatives
       of the petitioner, or otherwise interested in the success of the
       petitioner’s efforts, and (5) whether the affidavits contradict
       evidence proffered by the defense at trial. Moreover, a trial
       court may find sworn testimony in an affidavit to be
       contradicted by evidence in the record by the same witness, or to
       be internally inconsistent, thereby weakening the credibility of
       that testimony.

Calhoun, 86 Ohio St.3d at 285. “[O]ne or more of these factors may be sufficient

to justify the conclusion that an affidavit asserting information outside the record

lacks credibility. Such a decision should be within the discretion of the trial court.”

Id. The trial court found that Chaffin’s relationship with Jackson’s wife—a co-

worker and childhood babysitter—raised credibility issues (factor 4). We cannot

find an abuse of discretion with that conclusion. Furthermore, although not listed

among the Calhoun factors, we find no abuse of discretion in the trial court’s

conclusion that Chaffin’s statement that she “was not aware that anything [she]

saw was significant to the police investigation” is inconsistent with what she

averred she witnessed and raises serious credibility issues. (Chaffin Aff. at ¶8,

Doc. No. 164, Ex. B). Accordingly, we cannot find that the trial court abused its

discretion in finding that Chaffin’s affidavit was of questionable credibility.

       {¶16} Furthermore, we cannot conclude that Jackson was prejudiced by

trial counsel’s alleged failure to investigate. The evidence at trial overwhelmingly

supported the conclusion that Jackson purposefully killed his mother. Deputy

Lonnie Elmore of the Union County Sheriff’s Department testified that when he


                                        - 13 -
Case No. 14-09-24


stopped Jackson driving his car shortly after the shooting, Jackson stated, “I’m the

one you’re looking for. I’m the one that did it. I threw the gun out the window in

the grass.” (June 24, 2003 Tr. at 128-30). When Deputy Elmore asked Jackson

what he did, Jackson replied, “[s]hot her * * * [m]y mother.” (Id. at 132). Sheriff

Rocky Nelson testified that he heard Jackson state, “I did it * * * I shot her * * *

my mother.” (Id. at 145-46).

       {¶17} Carla Rees, a Heartland employee who was working when the

incident occurred, testified to the following:

       Q: When you got outside, what did you see?
       A: Um, we ran around to Donna’s car, and Donna was on the,
       she was on the ground. There was a guy had a belt around her
       right arm, and a lady had her shirt on her belly, putting
       pressure. Her whole right side of her hand was completely
       blown away. You could see the inside of her hand. Her thumb
       was barely hanging on the back of her hand. And when I got
       there, I hollered for some of the staff to go get some blankets to
       put on her, and I put her legs up, and she said, “Oh my God, I
       can’t believe he would do this, and I said, “Who, Donna?”, and
       she said, “My son, Eric,” and she just kept saying, “Oh, my God,
       I’m going to die, “and I said, “Donna, you’re not going to die.
       You’ll be okay.”
            I kept trying to reassure her she wasn’t going to die. She
       said three or four times that she was going to die, and she kept
       laying there, her head kept going back and forth. “Oh, my God,
       it hurts so bad.” And I assured her, you know, that they were
       coming to help her, and when the medics got there, they took
       away that shirt that the lady had on her belly, and she had a big
       hole in the right side of her stomach, and she had had spaghetti
       for lunch that day, and it was all over her belly, all over the
       concrete around her. And she kept getting kind of shocky. She
       just kept kind of going out, and I kept just trying to help her,



                                        - 14 -
Case No. 14-09-24


        and she just [sic] saying, “My God, it hurts so bad,” you know,
        “I’m going to die.”
        ***
        Q: How many times did you hear her say who shot her?
        A: Twice. Once before the Chief got there, and then when he
        got there, he asked her point blank if she knew who shot her.
        She said, “Yes. My son,” and he said, “who is your son?” She
        said, “Eric Jackson.”

(Id. at 381-84). Alicia Davis, also a Heartland employee, testified, in pertinent

part:

        Q: * * * Did you have occasion to go outside shortly before
        noon that day?
        A: I went to my van.
        Q: Why did you go to your van?
        A: To get some change out, and to check on an employee that
        went out there, Donna.
        Q: Okay. When you went outside, what did you see?
        A: When I went outside, you know, went to my van, and
        Donna at that time was coming back, somebody she had met in
        the driveway, and we had met, and we were talking.
        Q: So you saw her head back into the building?
        A: Yeah, at that time. And so we stood in the driveway and
        talked about why she was out there, and --
        Q: Okay. Without going into details of the conversation, did
        Donna go back inside at that time?
        A: No.
        Q: She stayed outside?
        A: Correct.
        Q: And what did you do?
        A: We talked, and a car pulled up, and she went to the car that
        was, somebody that, that’s who she was going to meet.
        Q: Could you see who was in the car?
        A: I could see just a shape, a shadow, but I couldn’t see
        directly who was in the car.
        Q: What did you see or hear after Donna went up to her car?




                                     - 15 -
Case No. 14-09-24


       A: When Donna went to the car, I went to my van, and I could
       hear yelling, very belligerent yelling, screaming, hollering, the
       person in the car hollering at her.
       Q: * * * Did you say you could identify this person as a man?
       A: It appeared to be a man.
       Q: Did you hear or see anything else between this person and
       Donna Levan?
       A: Yeah. When I heard the yelling going on, I looked out
       through the windows in my van, and I could see the person in
       the car grabbing at Donna, and Donna trying to pull away.

(Id. at 389-91).

       {¶18} Jackson, on the other hand, testified about meeting his mother

Donna at Heartland as follows:

       A: * * * My next memory is coming from a side street --
       Heartland is on South Plum Street, which is the main entrance
       to their property. There is a side street on the other end of the
       parking lot that is not drawn.
            When I got to Heartland, and saw my mom outside, I pulled
       up to her. She goes, “What do you need?” I said, Well, I said –
       I’ve obviously planned to kill myself. I wanted to say goodbye. I
       am tired of not being able to provide for my family, and I
       wanted to be on speaking terms when I passed away.
            An argument broke out * * *
            My memory was obviously first on her own behalf, just
       trying to get her to understand that I was done, I did not want to
       move anymore, I was not working, that I wanted to be done.
            My rage got to a point that I still was not just getting a
       simple okay. I remember reaching out, having ahold of my
       mother’s smock jacket, and pulling my hand back, realizing that
       I haven’t touched my mother since I gave her away at wedding
       December 3, 1986.
            I then saw the Mills Center building at the end of the
       parking lot through a clearing in the trees.
       Q: Are you familiar with the Mills Center?
       A: Yes. I had been there for my suicide treatments over the
       years.


                                     - 16 -
Case No. 14-09-24


             I was looking at the building. My hands, just as they are
       now, my left hand on the steering wheel at 10:00 o’clock, my
       right hand on my gear shift in first gear, wanting to get help.
             My mother’s argument continued. I focused on getting
       help. * * *
             At the end of my mother’s argument I drove away, having a
       sight on the Mills Center the entire time, even as I drove away.
       There is no spot in my mind that will black out -- there is no spot
       in my mind of even touching the gun while I was with my
       mother.
             I drove away. I looked in the rearview mirror as I shifted
       gears, saw my mother doubled over. I could not pick up my
       eight-year-old daughter. I was going to jump out of the car
       because I thought my mother was having a heart attack from
       this argument, carry her to the Emergency Room. She raised up
       looking at me with her hand on her belly. I thought she was
       laughing at me. Got my car back in gear, and drove off, leaving
       my mother alive and laughing at me.

(Id. at 415-18). Jackson could not recall making any confession to Deputy Elmore

and denied making any plans to kill his mother. (Id. at 419, 421, 439). On

rebuttal, Dr. Chris Khellaf, a licensed psychologist, testified that he evaluated

Jackson and concluded that Jackson had “pseudo-amnesia * * * meaning that it’s

not true amnesia * * * it is selective forgetfulness, it is fake amnesia.” (Id. at 459-

60, 480); (State’s Ex. 54).

       {¶19} In light of the evidence presented that: Jackson admitted to shooting

his mother and never claimed it was accidental; Davis’ testimony that Jackson was

arguing with his mother, and Jackson physically grabbed and pulled his mother

toward the car; Jackson’s mother’s statement that her son shot her and never

mentioning that it was accidental or that her son was attempting to commit suicide


                                        - 17 -
Case No. 14-09-24


when it happened; and the fact that Dr. Khellaf testified that Jackson’s amnesia

was “fake,” we are not persuaded that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 691. Nor

is our confidence in the outcome undermined as a result of counsel’s alleged

shortcomings. Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.

Consequently, Jackson has failed to establish ineffective assistance of trial

counsel, and therefore, a constitutional violation upon which post-conviction relief

would be warranted.     Therefore, the trial court did not abuse its discretion in

denying Jackson’s post-conviction relief petition without a hearing.

       {¶20} Jackson’s first and second assignments of error are, therefore,

overruled.

       {¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




                                       - 18 -
