[Cite as State v. Jones, 2014-Ohio-3064.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
ELMER JONES, III                             :       Case No. 14-COA-002
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 12-CRI-045




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 11, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

PAUL T. LANGE                                        MELISSA M. PRENDERGAST
110 Cottage Street                                   250 East Broad Street
Third Floor                                          Suite 1400
Ashland, OH 44805                                    Columbus, OH 43215
Ashland County, Case No. 14-COA-002                                                    2

Farmer, J.

         {¶1}   On April 27, 2012, the Ashland County Grand Jury indicted appellant,

Elmer Jones, III, on three counts of rape in violation of R.C. 2907.02 and one count of

gross sexual imposition in violation of R.C. 2907.05. Said charges arose from incidents

involving a twelve year old child.

         {¶2}   On May 23, 2012, defense counsel filed a motion for a psychological

evaluation to determine appellant's mental capacity. A hearing was held on June 26,

2012.     During the course of the hearing, defense counsel modified the motion and

requested a competency evaluation. By judgment entry filed June 27, 2012, the trial

court ordered a competency evaluation to determine appellant's competency to stand

trial.

         {¶3}   On June 17, 2012, a pretrial was held wherein the trial court reviewed

appellant's competency evaluation. By judgment entry filed same date, the trial court

found appellant competent to stand trial and assist in his defense.

         {¶4}   On July 20, 2012, appellant filed a motion to suppress, claiming an

unlawful arrest, his right to counsel was violated, and any confessions were not

voluntarily made. A hearing was held on August 9, 2012. By judgment entry filed

September 9, 2012, the trial court denied the motion, finding the first two interviews of

appellant (March 28, and April 24, 2012) did not constitute custodial interrogation

requiring Miranda warnings, appellant was properly advised of his rights prior to the

third interview on April 24, 2012 at the police department, appellant's statements to

police were voluntary, and probable cause existed for the arrest.
Ashland County, Case No. 14-COA-002                                                        3


        {¶5}   A jury trial commenced on October 23, 2012. The jury found appellant

guilty as charged. By judgment entry filed January 16, 2013, the trial court sentenced

appellant to an aggregate term of thirty years to life in prison. Appellant's conviction and

sentence were affirmed on appeal. State v. Jones, 5th Dist. Ashland No. 13 COA 012,

2014-Ohio-1716.

        {¶6}   On November 27, 2013, appellant filed a petition for postconviction relief,

claiming ineffective assistance of trial counsel for counsel's failure to pursue the issue of

his intellectual disabilities. By judgment entry filed December 18, 2013, the trial court

denied the petition without hearing, finding no ineffective assistance of trial counsel or

prejudice to appellant.

        {¶7}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

        {¶8}   "JOE    JONES      WAS      DENIED      HIS    FEDERAL       AND      STATE

CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

DURING HIS TRIAL COURT PROCEEDINGS, AND THE TRIAL COURT ABUSED ITS

DISCRETION WHEN IT DENIED HIS PETITION FOR POSTCONVICTION RELIEF.

SIXTH     AND     FOURTEENTH         AMENDMENTS          TO    THE     UNITED      STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

                                             II

        {¶9}   "JOE JONES'S TRIAL COUNSEL FAILED TO INVESTIGATE JOE'S

INTELLECTUAL DISABILITY TO SUPPORT THE MOTION TO SUPPRESS COUNSEL

FILED.    BECAUSE AMPLE EVIDENCE EXISTS TO SUPPORT THE ARGUMENT
Ashland County, Case No. 14-COA-002                                                           4


THAT JOE IS UNABLE TO COMPREHEND THE IMPORT OF HIS WAIVER OF THE

RIGHT AGAINST SELF-INCRIMINATION, TRIAL COUNSEL WAS INEFFECTIVE IN

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES        CONSTITUTION          AND    SECTION        10,   ARTICLE   I    OF   THE   OHIO

CONSTITUTION."

                                                  I, II

       {¶10} Appellant claims the trial court erred in denying his petition for

postconviction relief based on ineffective assistance of trial counsel, as the evidence

presented dehors the record was sufficient to establish that his trial counsel was

ineffective    for   failing   to   investigate     and   present   evidence   of   his   mental

capacity/intellectual disabilities. We disagree.

       {¶11} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)

states the following in pertinent part:



                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
Ashland County, Case No. 14-COA-002                                                   5


      journal entries, the journalized records of the clerk of the court, and the

      court reporter's transcript.



      {¶12} The standard of review on a denial of a postconviction relief petition is

explained by our brethren from the Eighth District in State v. Hines, 8th Dist. Cuyahoga

No. 89848, 2008-Ohio-1927, ¶ 8:



             "A postconviction proceeding is not an appeal of a criminal

      conviction, but, rather, a collateral civil attack on the judgment." State v.

      Steffen (1994), 70 Ohio St.3d 399, 410, 1994-Ohio-11. In postconviction

      cases, a trial court acts as a gatekeeper, determining whether a defendant

      will even receive a hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-

      Ohio-6679. In State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, the

      Ohio Supreme Court held that the trial court's gatekeeping function in the

      postconviction relief process is entitled to deference, including the court's

      decision regarding the sufficiency of the facts set forth by the petitioner

      and the credibility of the affidavits submitted.    Accordingly, we review

      appellant's postconviction claims brought pursuant to R.C. 2953.21 under

      an abuse-of-discretion standard. Id. An abuse of discretion is more than

      a mere error in judgment, it implies that a court's ruling is unreasonable,

      arbitrary, or unconscionable.    Blakemore v. Blakemore (1983), 5 Ohio

      St.3d 217, 219.
Ashland County, Case No. 14-COA-002                                                    6

      {¶13} The standard of ineffective assistance of trial counsel is set forth in State

v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus.

Appellant must establish the following:



             2. Counsel's performance will not be deemed ineffective unless and

      until counsel's performance is proved to have fallen below an objective

      standard of reasonable representation and, in addition, prejudice arises

      from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

      O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a

      reasonable probability that, were it not for counsel's errors, the result of

      the trial would have been different.



      {¶14} Appellant summarized his reasons for postconviction relief in his

November 27, 2013 petition as follows in part:



             2) Mr. Jones' convictions and sentences are void and/or voidable

      because he was denied the effective assistance of counsel at his trial to

      which he was entitled under the Sixth and Fourteenth Amendments to the

      United States Constitution. Strickland v. Washington, 466 U.S. 668, 104

      S.Ct. 2052, 80 L.Ed.2d 674 (1984).         Mr. Jones' trial counsel failed to
Ashland County, Case No. 14-COA-002                                                        7


     employ a competent expert to refute the findings of the Forensic

     Diagnostic Center that his full-scale I.Q. of 61 was questionable. (See

     July 17, 2012 Judgment Entry; July 19, 2012 Judgment Entry; and Aug.

     16, 2012 State's Closing Argument on Defendant's Motion to Suppress, at

     p. 3).    Mr. Jones' trial counsel also failed to investigate his client's

     intellectual disability by seeking out appropriate documentary proof of that

     disability, including but not limited to medical records, educational records,

     and records of county, state, and federal agencies and boards who

     manage and administer government-provided disability benefits.

              7) Competent defense counsel would have realized the critical

     importance of the FDC's finding and suggestion of Mr. Jones' malingering.

     To rebut that finding and support Mr. Jones' meritorious motion to

     suppress, defense counsel would have had to investigate Mr. Jones'

     medical, educational, employment, and psychological history.          Counsel

     would have had to obtain releases from Mr. Jones and request records

     from the Social Security Administration, local and state developmental

     disability boards, physicians, and schools, among others. Counsel did no

     investigation to support Mr. Jones' claims. In fact, counsel even withdrew

     his motion for expert funds, which may have provided the critical evidence

     needed to rebut the FDC's adverse findings.



     {¶15} Attached to the petition are the certified records from the Cuyahoga

County   Board   of   Developmental    Disabilities,   indicating   the   presence    of   a
Ashland County, Case No. 14-COA-002                                                       8


"developmental handicap" (September 29, 1983), physical and mental impairments with

substantial functional limitations in "receptive and expressive language," "self direction,"

and "economic self sufficiency," (January 11, 1995), and "mildly MR" (May 13, 1994).

Appellant was born on February 14, 1969.

       {¶16} In its December 18, 2013 judgment entry denying the petition for

postconviction relief, the trial court addressed in detail the issues raised by appellant in

its Findings of Fact:



              3. Prior to trial, the Court referred the Defendant to the Forensic

       Diagnostic Center, Mansfield, Ohio for an assessment as to his

       competency to stand trial. Dr. Covey, who performed the assessment,

       rendered an opinion "with reasonable psychological certainty" that the

       Defendant "has the capacity to understand the nature and objectives of

       the proceedings against him and does currently have the capacity to

       assist in his defense."

              4. Dr. Covey, during his assessment, administered a Weschler

       Adult Intelligence Scale IV, and although Dr. Covey determined that the

       Defendant had not made a good effort on the test, the results were

       considered in his assessment.

              5. Dr. Covey, in his assessment, specifically found that the

       Defendant did not qualify for a diagnosis of mental retardation (cognitive

       disability). The only deficit of the Defendant was in adaptive functioning,

       an academic deficit.
Ashland County, Case No. 14-COA-002                                                   9


              6. While Defendant submits records that suggest he was

     intellectually disabled as a child, those records and findings do not, due to

     their age and the age of the Defendant at the time they were compiled,

     refute the findings of Dr. Covey in his assessment of the Defendant as an

     adult.

              7. Defendant fails to establish how prior counsel's failure to make

     additional inquiries, in light of Dr. Covey's assessment, would have

     necessitated a second forensic assessment.



     {¶17} Following its Conclusions of Law, the trial court decided the following:



              In the present case, the Court finds that Defendant fails in his

     burden to demonstrate a lack of competent counsel, and fails to

     demonstrate that the defense was prejudiced by any asserted

     ineffectiveness. There is no indication, based on any of the information or

     documentation presented by Defendant, that Defendant's motion to

     suppress would have had any additional potential for success. The issue

     at the suppression hearing was whether Defendant's statements of

     admission were voluntary. There is no evidence in the record to suggest

     they were not. The Court cannot see how the retention of an additional

     expert by prior defense counsel would have changed the facts and

     circumstances leading to the admissions the Court determined were

     admissible.
Ashland County, Case No. 14-COA-002                                                      10


             Based on the foregoing, the Court finds no grounds for granting the

      Defendant's petition for relief. The Court therefore DENIES Defendant's

      Post-Conviction Petition.



      {¶18} Some twenty-eight days after appellant's arraignment, on May 23, 2012,

defense counsel filed a motion for psychological evaluation for the following reasons:



             The Defendant and his family have brought to counsel's attention

      that Defendant suffers from mental incapacity and receives Social Security

      Disability benefits as a result. A suppression motion is contemplated in

      this case challenging the voluntariness of certain statements made by the

      Defendant prior to charges being filed. Mental incapacity is a significant

      factor in determining whether or not a suspect's statements were

      voluntary, State of Ohio vs. Shawn Clemens, 2001 Ohio 3212; Ohio App.

      LEXIS 1405. A psychological evaluation is necessary to determine this

      Defendant's ability to voluntarily waive his Miranda rights and to make a

      voluntary statement.



      {¶19} A hearing on the motion was held on June 26, 2012 during which the

following discussion was had:



             MR. SULLIVAN: Your Honor, it's my understanding that by consent,

      by agreement with the State, that Mr. Jones can be evaluated for the
Ashland County, Case No. 14-COA-002                                                  11


      purpose of a competency evaluation by the Forensic Center, and in the

      event that leads the professional to diagnose mental retardation, that

      would be addressed as well in accordance with however they do it

      professionally, and we would be in agreement with that.

             THE COURT: Mr. Lange?

             MR. LANGE: Your Honor, just for the Record, again, the State is

      opposed to a general psychological evaluation, however, Mr. Sullivan has

      indicated with the Court and the State that the Defendant has been of

      limited value in assisting in the preparation of this case, and the State is

      therefore not opposed to a general competency evaluation.           Just so

      everyone is aware, it's my understanding based on the statute 2945.371

      that the Forensic Diagnostic Center will do the competency evaluation and

      they may give an opinion about whether or not the Defendant appears to

      be mentally retarded, if they find that he appears to be mentally retarded,

      it will come back to this Court and this Court will have to determine

      whether or not to send it to the Board of Developmental Disabled People

      for them to make a more thorough diagnosis of mental retardation.



      {¶20} In its June 27, 2012 judgment entry following the hearing, the trial court

memorialized the following:



             Prior to the hearing the Court met briefly with the attorneys to

      discuss the matter before the Court. During the course of the hearing, the
Ashland County, Case No. 14-COA-002                                                    12


       Defendant modified his request and requested instead that the Court order

       a competency evaluation for the Defendant. The State of Ohio had no

       objection to the Court ordering a competency evaluation of the Defendant.

       By separate judgment entry, the Court does hereby ORDER that the

       Defendant be evaluated to determine his competency to stand trial.



       {¶21} In the July 20, 2012 motion to suppress, defense counsel argued

appellant's confession was involuntary because of his mental incapacity, coupled with

the "constant and lengthy suggestive interrogation." In an August 27, 2012 filing entitled

"Defendant's Closing Arguments on Motion to Suppress," defense counsel argued the

following:



              The claim in this case is not that the Defendant suffers from some

       "mental defect" as argued by the State. Rather, the Forensic Diagnostic

       Report, which was ordered by this Court, shows throughout that the

       Defendant is low functioning. This is true even if Dr. Covey's IQ test is not

       considered.    Dr. Covey also reported a previous IQ score of 83

       established when the Defendant was 6 years seven months old based

       upon the Stanford Binet Intelligence Test. This score "is known to fall at

       the thirteenth percentile." See Collateral Information, page 5. Dr. Covey

       was certainly entitled to consider the Defendant's history just as a

       physician/patient examination would require. Further, it was established

       by Dr. Covey that the Defendant is unable to read or write. The Court can
Ashland County, Case No. 14-COA-002                                                    13


       give Dr. Covey's report whatever weight it merits but it is evident that this

       Defendant did not have the ability to resist Officer Mager's constant

       insistence that the Defendant did something wrong. The State's assertion

       that the Defendant inquired about the Flinders case because the

       Defendant had committed similar offenses is simply not supported by the

       evidence.   It was Officer Mager who initiated the conversation about

       Flinders and who inquired about what the Defendant knew or did not know

       about the case.

              The Court has heard the entire recording of the three interviews. It

       is submitted that, under the totality of circumstances, Defendant's

       statements were not voluntary and should be suppressed.



       {¶22} After a full hearing on the motion to suppress, the trial court determined it

would consider Dr. Covey's competency report. August 9, 2012 T. at 77-78. In its

September 5, 2012 judgment entry denying the motion to suppress, the trial court

referenced its consideration of the report:



              Defendant argues that his low IQ made him so susceptible to

       manipulation and improper influence, that his statements were rendered

       involuntary. The Court does not find that to be correct in this case. The

       Defendant freely discussed similar inappropriate sexual conduct by

       another adult, and clearly showed an understanding that such conduct

       was inappropriate and illegal.         At no time during the interviews did
Ashland County, Case No. 14-COA-002                                                   14


      Defendant's mental faculties impair his ability to engage in rational

      conversation and thought. The report from the Forensic Diagnostic Center

      indicates that Defendant's only area of deficiency with regard to adaptive

      functioning, is academic. The Defendant does not qualify for a diagnosis

      of mental retardation.    The Defendant's conversation showed a clear

      understanding of legal processes, both civil and criminal.



      {¶23} The record establishes that defense counsel consistently argued and was

aware of appellant's limitations. The fact that the trial court denied extra funds cannot

support any deficiency on the part of defense counsel.                The trial court's

acknowledgment of the report, as well as the report's own references to previous

testing, establishes that defense counsel was not deficient.1

      {¶24} Despite this finding, we also concur with the trial court's analysis of the

second prong of an ineffective assistance of trial counsel claim, no showing of prejudice

to appellant.   During the suppression hearing, Ashland Police Officer Kim Mager

testified to the three aforementioned interviews of appellant. During the first interview

on March 28, 2012, appellant was clearly in charge of the scope of the interview. He

was in his place of residence, he terminated the interview, and he invited the officer to

interview him at the Kroc Center. August 9, 2012 T. at 10-11, 18-19. During the second

interview on April 24, 2014 at the Kroc Center, appellant agreed to talk in Officer

Mager's unmarked and unlocked car. Id. at 21-24. Appellant acknowledged to the



1
 The record does not contain Dr. Covey's report. We therefore presume the validity of
the proceedings and rely on the trial court's analysis of the report. Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197 (1980).
Ashland County, Case No. 14-COA-002                                                    15


officer that he believed he was not going to be arrested, otherwise he reasoned, he

would have been arrested inside the Kroc Center.           Id. at 26.   Again, appellant

terminated the interview by stating he had to get back to work and exiting the car. Id. at

24, 31-32.   Appellant was arrested at the Kroc Center later that day.         Id. at 37.

Appellant was taken to the police department and was given his Miranda warnings, and

spoke to Officer Mager for forty minutes. Id. at 38, 47. Appellant was not new to the

system, as had served some previous time in jail on a drug arrest. Id. at 40-41. During

the interviews, appellant appeared coherent and stated he was comfortable. Id. at 41.

Appellant told the officer his source of income was odd jobs and SSI. Id. at 68.

      {¶25} The presentation of the previous testing would have added nothing to the

trial court's decision on the voluntariness of appellant's statements.        Two of the

interviews were recorded; therefore, the trial court had the ability to judge appellant's

demeanor and ability to respond to the questions. Id. at 34, 38, 52-53, 71.

      {¶26} Given the testimony presented during the suppression hearing, we concur

that any deficiency would not have impacted the trial court's decision on voluntariness.

      {¶27} Assignments of Error I and II are denied.
Ashland County, Case No. 14-COA-002                                          16


      {¶28} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




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