[Cite as State v. Waddy, 2016-Ohio-4911.]



                                    IN THE COURT OF APPEALS

                             TENTH APPELLATE DISTRICT OF OHIO

                                            FRANKLIN COUNTY




STATE OF OHIO,                                     :
                                                              CASE NO. 15AP-397
        Appellee,                                  :
                                                                 OPINION
                                                   :
   - vs -
                                                   :

WARREN WADDY,                                      :

        Appellant.                                 :




     CRIMINAL APPEAL FROM FRANKLIN COUNTY COURT OF COMMON PLEAS
                           Case No. 86CR-3182


Ron O'Brien, Franklin County Prosecuting Attorney, Steven L. Taylor, 373 South High Street,
Columbus, Ohio 43215, for appellee

Vicki R.A. Werneke, Assistant Federal Public Defender, 1660 West Second Street, #750,
Cleveland, Ohio 44113, for appellant



        M. POWELL, P.J.

        {¶ 1} Appellant, Warren Waddy, appeals a judgment of the Franklin County Court of

Common Pleas denying his motion for leave to file a motion for new trial.

                       I. FACTUAL AND PROCEDURAL BACKGROUND

        {¶ 2} In 1987, appellant was sentenced to death following his conviction by a jury of

aggravated murder and several other crimes. This court affirmed appellant's sentence and
                                                                                           Franklin 15AP-397

conviction on appeal. State v. Waddy, 10th Dist. Franklin Nos. 87AP-1159 and 87AP-1160,

1989 WL 133508 (Nov. 2, 1989) (Waddy I). Subsequently, the Ohio Supreme Court affirmed

this court's decision. State v. Waddy, 63 Ohio St.3d 424 (1992) (Waddy II).

        {¶ 3} On June 6, 1995, appellant filed a petition for post-conviction relief pursuant to

R.C. 2953.21.1 Appellant raised numerous claims for relief, including a claim he was

mentally retarded.2 The trial court dismissed appellant's petition without an evidentiary

hearing, holding that res judicata barred appellant's mental retardation claim because it could

have been raised on direct appeal. This court affirmed the trial court's decision. State v.

Waddy, 10th Dist. Franklin No. 96APA07-863, 1997 WL 318032 (June 10, 1997) (Waddy III).

        {¶ 4} Subsequently, the United States Supreme Court held that the execution of

mentally retarded criminals violates the Eighth Amendment's ban on cruel and unusual

punishment. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242 (2002). Atkins, however,

did not establish procedures for determining whether a person is mentally retarded. Rather,

the Supreme Court left it to the states to develop appropriate ways to implement Atkins.

Consequently, in December 2002, the Ohio Supreme Court set forth the procedures Ohio

now follows in adjudicating a capital defendant's Atkins claim. State v. Lott, 97 Ohio St.3d

303, 2002-Ohio-6625.

        {¶ 5} Lott set forth a three-prong test for determining a defendant's mental retardation

claim under Atkins. Whether asserting the claim in a post-conviction context or during the

original trial, a defendant must demonstrate "(1) significantly subaverage intellectual

functioning, (2) significant limitations in two or more adaptive skills, such as communication,


1. The record does not explain why this post-conviction relief petition was filed under R.C. 2953.21, and not
under R.C. 2953.23, as it was clearly untimely filed.

2. This court notes that the United States Supreme Court has recently chosen to substitute the term "intellectual
disability" for "mental retardation." Hall v. Florida, 134 S.Ct. 1986, 1990 (2014). While this court agrees that
sensitivity is due in any discussion of mental disabilities, the Ohio Revised Code and the records in this case use
the term "retarded." Thus, for clarity, this court shall do so also, but no pejorative connotation from such use is
                                                       -2-
                                                                                       Franklin 15AP-397

self-care, and self-direction, and (3) onset before the age of 18." Lott at ¶ 12. The Ohio

Supreme Court held that "[w]hile IQ tests are one of the many factors that need to be

considered, they alone are not sufficient to make a final determination." Id. Further, "there is

a rebuttable presumption that a defendant is not mentally retarded if his or her IQ is above

70." Id.

        {¶ 6} On May 30, 2003, appellant filed a second petition for post-conviction relief,

alleging once again he was mentally retarded and thus, ineligible for the death penalty

pursuant to Atkins and Lott.          The trial court dismissed appellant's petition without an

evidentiary hearing. On appeal, this court reversed and remanded, finding appellant was

"entitled to an evidentiary hearing and funding for an expert to develop his Atkins claim."

State v. Waddy, 10th Dist. Franklin No. 05AP-866, 2006-Ohio-2828, ¶ 48 (Waddy IV). This

court also noted that pursuant to Lott, a petition for post-conviction relief asserting an Atkins

claim for the first time must be treated as a first petition for post-conviction relief pursuant to

R.C. 2953.21, and not as a successive petition pursuant to R.C. 2953.23. Id. at ¶ 25; Lott,

2002-Ohio-6625 at ¶ 17.

        {¶ 7} On remand, the trial court appointed two attorneys to represent appellant with

regard to his Atkins claim. The trial court also approved funding for appellant's counsel to

hire a firm to investigate appellant's Atkins claim, and for Dr. Daniel Grant to conduct a

psychological evaluation of appellant. In January 2009, the trial court held a two-day

evidentiary hearing ("2009 Atkins hearing"). The sole witness at the hearing was Dr. Jeffrey

L. Smalldon, a psychologist called as a court's witness upon appellant's motion. Dr.

Smalldon discussed IQ testing and scoring techniques as well as common indicators of

mental retardation. Based upon his 1995 evaluation of appellant and a review of appellant's

history of IQ testing, which included the full scale IQ of 83 Dr. Smalldon obtained from his


intended by the appellate court. State v. Nelson, 10th Dist. Franklin No. 14AP-229, 2014-Ohio-5757, ¶ 3, fn.1.
                                                     -3-
                                                                             Franklin 15AP-397

own testing, Dr. Smalldon ultimately opined that although appellant functions at a sub-

average level, he "is not mentally retarded."

        {¶ 8} On November 25, 2009, the trial court denied appellant's Atkins post-conviction

relief petition ("Atkins PCR petition"), finding that appellant had failed to prove, by a

preponderance of the evidence, that he was mentally retarded. On appeal, this court

affirmed the trial court's decision. State v. Waddy, 10th Dist. Franklin No. 09AP-1197, 2011-

Ohio-3154 (Waddy V). The Ohio Supreme Court declined jurisdiction. State v. Waddy, 133

Ohio St.3d 1422, 2012-Ohio-4902.

        {¶ 9} On July 18, 2013, appellant filed a motion for leave to file a motion for a new

trial under Crim.R. 33(B) ("Crim.R. 33(B) motion"). Appellant alleged that newly discovered

evidence supports his claim he is mentally retarded and thus ineligible for the death penalty.

Appellant further alleged that the evidence was not previously discovered due to the

ineffective assistance of his prior attorneys. Specifically, appellant asserted his appointed

Atkins counsel was ineffective at the 2009 Atkins hearing for failing to provide the trial court

"with an in-depth understanding of the principles applicable to a proper retroactive

determination of an Atkins claim." That is, his appointed Atkins counsel was ineffective for

failing to call an expert witness. As a result, the trial court's prior decisions "were based on a

woefully incomplete record," because the WAIS-IV, "which is considered to be the gold

standard for IQ tests," was never administered to appellant by Dr. Smalldon, and prior

evaluations of appellant failed to both assess his adaptive functioning and interview his

relatives for that purpose. Appellant also asserted his 1987 trial counsel was ineffective for

failing to uncover the physical and sexual abuse that occurred at appellant's home during his

childhood, and was thus ineffective for failing to present such "critical" mitigating evidence at

the trial.

        {¶ 10} Appellant's Crim.R. 33(B) motion was supported by a 2012 psychological report
                                                -4-
                                                                              Franklin 15AP-397

from Dr. Cynthia Hartung, a 2013 affidavit from Dr. Smalldon, affidavits from appellant's

siblings, and a 2013 affidavit from Dr. Grant. In her report, Dr. Hartung opined that based

upon appellant's "historical information, IQ testing, and adaptive behavior testing [which

included the administration of the ABA-II test, an adaptive behavior test, and Dr. Hartung's

interview of two of appellant's siblings], * * * the majority of the available evidence indicates

that Mr. Waddy is functioning in the mild mental retardation range and has been performing

at this level since childhood." Dr. Hartung further stated that she had administered the

WAIS-IV on appellant which resulted in a full scale IQ of 73.

          {¶ 11} In his affidavit, Dr. Smalldon generally stated he would not testify today in the

same way he testified at the 2009 Atkins hearing. Dr. Smalldon noted he was not asked to

and did not assess appellant for mental retardation during the 1995 evaluation, nor did he

administer any adaptive behavior test to determine appellant's adaptive functioning skills. Dr.

Smalldon stated that upon reviewing additional materials regarding appellant, including Dr.

Hartung's report, and the evolving psychological study of mental retardation, especially since

2002, he agrees with Dr. Hartung that "the most weight should be given to" the full scale IQ

of 73 resulting from the WAIS-IV because this test is considered superior to the older IQ

tests.     Dr. Smalldon further stated, "I would cite the strong likelihood that, all things

considered, Mr. Waddy would have met" the three-prong test under Lott.

          {¶ 12} In his affidavit, Dr. Grant indicates he administered two IQ tests to appellant,

including the WAIS-IV, after he was retained by appellant's appointed Atkins counsel in

preparation for the 2009 Atkins hearing. Both tests resulted in a full scale IQ of 76. The

affidavits of appellant's four siblings detail the physical abuse suffered by appellant and his

siblings as a result of their father's beatings. The affidavit of appellant's sister also indicates

her suspicions their father may have attempted to molest her daughters during overnight

visits.
                                                 -5-
                                                                            Franklin 15AP-397

       {¶ 13} On March 13, 2015, the trial court denied appellant's Crim.R. 33(B) motion,

finding that appellant had failed to prove, by clear and convincing evidence, that he "was

unavoidably prevented from filing a new trial motion within the time constraints based on

ineffective assistance of counsel." With regard to the 2009 Atkins hearing, the trial court

found that appellant had failed to establish that his appointed Atkins counsel's performance

was deficient. The trial court found that given Dr. Grant's affidavit, "it was both reasonable

and strategic for counsel to forego calling Dr. Grant to testify" at the hearing. Further, while

appellant "has now located an expert who supports his position, there is no indication that his

counsel acted unreasonably. Effectiveness standards do not mandate that counsel consult

multiple experts until they find one who supports their conclusion." With regard to the 1987

trial, the trial court found that appellant's claim of ineffective assistance of counsel was

barred by res judicata because the claim could have been raised in his 1995 petition for post-

conviction relief and/or his 2003 Atkins PCR petition.

       {¶ 14} Appellant appeals, raising one assignment of error:

       {¶ 15} THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

APPELLANT'S DUE PROCESS RIGHTS WHEN IT DENIED APPELLANT'S MOTION FOR

LEAVE TO FILE A MOTION FOR A NEW TRIAL UNDER CRIMINAL RULE 33(B) WITHOUT

HOLDING A HEARING ON THE MOTION OR PERMITTING ANY FACT DEVELOPMENT

TO SUPPORT THE MOTION FOR LEAVE.

                                        II. ANALYSIS

       {¶ 16} Appellant argues the trial court abused its discretion in denying his Crim.R.

33(B) motion without a hearing. Appellant generally asserts he was unavoidably prevented

from timely discovering the evidence he now seeks to introduce because of the ineffective

assistance of both his 1987 trial counsel and his appointed Atkins counsel.

                           A. Crim.R. 33(B); Preliminary Issues
                                              -6-
                                                                             Franklin 15AP-397

       {¶ 17} Crim.R. 33(B) provides that a motion for new trial based on newly discovered

evidence must be filed

              within one hundred twenty days after the day upon which the
              verdict was rendered. If it is made to appear by clear and
              convincing proof that the defendant was unavoidably prevented
              from the discovery of the evidence upon which he must rely,
              such motion shall be filed within seven days from an order of the
              court finding that he was unavoidably prevented from discovering
              the evidence within the one hundred twenty day period.

Because appellant's motion was filed well outside the 120-day period, he was required to

obtain leave of court to file his motion for new trial. State v. Hoover-Moore, 10th Dist.

Franklin No. 14AP-1049, 2015-Ohio-4863, ¶ 13.

       {¶ 18} "To obtain such leave, the defendant must demonstrate by clear and convincing

proof that he or she was unavoidably prevented from discovering the evidence within the 120

days." Id. A party is "unavoidably prevented" from filing a motion for a new trial if the party

had no knowledge of the existence of the ground supporting the motion and could not have

learned of that existence within the time prescribed for filing the motion in the exercise of

reasonable diligence. Id.; State v. Walden, 19 Ohio App.3d 141, 145-146 (10th Dist.1984).

       {¶ 19} "Clear and convincing proof that the defendant was 'unavoidably prevented'

from filing 'requires more than a mere allegation that a defendant has been unavoidably

prevented from discovering the evidence he seeks to introduce as support for a new trial.'"

State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 9. The requirement of

clear and convincing evidence puts the burden on the defendant to prove he was

unavoidably prevented from discovering the evidence in a timely manner.                 State v.

Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-44, 2012-Ohio-5360, ¶ 11.

       {¶ 20} An appellate court applies an abuse-of-discretion standard in reviewing a trial

court's denial of a motion for leave to file a motion for new trial. State v. Anderson, 10th Dist.

No. 12AP-133, 2012-Ohio-4733, ¶ 9.           A trial court's decision whether to conduct an
                                               -7-
                                                                           Franklin 15AP-397

evidentiary hearing on a motion for leave to file a motion for new trial is also discretionary.

Hoover-Moore, 2015-Ohio-4863 at ¶ 14.

                       1. Is Crim.R. 33(B) An Appropriate Remedy?

       {¶ 21} As an initial matter, the state argues that Crim.R. 33 is "the wrong vehicle in

which to relitigate [appellant's Atkins] claim." The state asserts that appellant "should have

been proceeding, if at all, under the suitable post-conviction framework in R.C. 2953.21 et

seq." The state cites R.C. 2953.21(J), Lott, and State v. Reynolds, 79 Ohio St.3d 158

(1997), in support of its assertion.

       {¶ 22} In Lott, the Ohio Supreme Court recognized that a petition for post-conviction

relief is the appropriate remedy within which to raise a first-time Atkins claim. Lott, 2002-

Ohio-6625 at ¶ 13 (the procedures for postconviction relief outlined in R.C. 2953.21 et seq.

provide a suitable statutory framework for reviewing Lott's Atkins claim). The supreme court

further held that for defendants who have been sentenced to death, any petition for post-

conviction relief specifically raising an Atkins claim and filed more than 180 days after Lott

"must meet the statutory standards for untimely and successive petitions for postconviction

relief," that is, R.C. 2953.23. Id. at ¶ 24.

       {¶ 23} In Reynolds, the Ohio Supreme Court held that "[w]here a criminal defendant,

subsequent to [his] direct appeal, files a motion seeking vacation or correction of [his]

sentence on the basis [his] constitutional rights have been violated, such a motion is a

petition for postconviction relief as defined in R.C. 2953.21." Reynolds, 79 Ohio St.3d at

syllabus. In turn, R.C. 2953.21(J) provides that a petition for post-conviction relief "is the

exclusive remedy by which a person may bring a collateral challenge to the validity of a

conviction or sentence in a criminal case[.]" Neither Lott nor Reynolds address the interplay

between R.C. 2953.21 et seq., and Crim.R. 33(B).



                                               -8-
                                                                             Franklin 15AP-397

       {¶ 24} Notwithstanding R.C. 2953.21(J), and "with or without a constitutional claim,

this court [has] at least implicitly found that the Crim.R. 33(B) procedure for new trial motions

exists independently from the R.C. 2953.21 procedure for post-conviction petitions." Lee,

2005-Ohio-6374 at ¶ 13; State v. Burke, 10th Dist. No. 06AP-656, 2006-Ohio-4597, ¶ 10; and

State v. Caulley, 10th Dist. Franklin No. 12AP-100, 2012-Ohio-2649, ¶ 18 (rejecting the

state's argument that the defendant's motion for new trial based upon newly discovered

evidence and raising a claim of ineffective assistance of counsel should be treated as a

petition for post-conviction relief).

       {¶ 25} In ruling upon appellant's Crim.R. 33(B) motion, the trial court ignored the

state's argument that R.C. 2953.21 was appellant's exclusive remedy and denied appellant's

motion on the ground appellant had failed to meet the requirements under Crim.R. 33(B).

       {¶ 26} Had the trial court treated appellant's Crim.R. 33(B) motion as a post-conviction

relief petition, the motion would have been a successive and untimely petition pursuant to

R.C. 2953.23. As pertinent here, a trial court may not entertain an untimely and second or

successive petition for post-conviction relief "unless the petitioner initially demonstrates * * *

he was unavoidably prevented from discovering the facts necessary for the claim for relief[.]"

State v. Tolliver, 10th Dist. Franklin No. 14AP-170, 2014-Ohio-4824, ¶ 18; R.C.

2953.23(A)(1)(a).

       {¶ 27} Similarly, within the context of this case, proceedings under Crim.R. 33(B) upon

grounds of newly discovered evidence would require appellant to demonstrate he was

unavoidably prevented from discovering the evidence within the requisite time. Thus, in

order to obtain relief pursuant to Crim.R. 33(B) or R.C. 2953.23, a movant/petitioner must

satisfy the threshold requirement of unavoidable prevention.

       {¶ 28} "The phrase 'unavoidably prevented' in R.C. 2953.23(A)(1)(a) means that a

defendant was unaware of those facts and was unable to learn of them through reasonable
                                               -9-
                                                                            Franklin 15AP-397

diligence." State v. Howard, 10th Dist. Franklin No. 15AP-161, 2016-Ohio-504, ¶ 21. This

court notes that the "unavoidably prevented" requirement in Crim.R. 33(B) mirrors the

"unavoidably prevented" requirement in R.C. 2953.23(A)(1). Id. at ¶ 55; see also State v.

Keenan, 8th Dist. Cuyahoga No. 77480, 2001 WL 91129, *2 (Feb. 1, 2001) (the exception

stated in Crim.R. 33[B] for evidence that a defendant was unavoidably prevented from timely

presenting is consistent with the standard for untimely or successive postconviction relief

petitions stated in R.C. 2953.23).

       {¶ 29} Because appellant's burden to establish unavoidable prevention is the same

under Crim.R. 33(B) and R.C. 2953.23(A)(1), we need not determine whether the latter is

appellant's exclusive remedy, as we find that the trial court did not err in denying appellant's

Crim.R. 33(B) motion.

 2. Did the Trial Court Apply the Proper Standard of Review in Denying Appellant's
                                Crim.R. 33(B) Motion?

       {¶ 30} Appellant initially argues the trial court abused its discretion in denying his

Crim.R. 33(B) motion because the court applied the wrong standard when it considered

appellant's motion. Specifically, appellant asserts the trial court incorrectly focused on the

merits of his ineffective assistance of counsel claim, instead of whether appellant had clearly

and convincingly established he was unavoidably prevented from discovering the evidence.

In support of his assertion, appellant cites the trial court's following statement made at the

outset of the court's analysis:

              Before the Court may grant Defendant leave to file his Motion for
              New Trial, Defendant must establish by clear and convincing
              evidence that his counsel's representation at the [2009] hearing
              was constitutionally deficient.

       {¶ 31} However, the foregoing quote omits the trial court's very next sentence which

states, "Defendant must further establish that that deficiency precluded Defendant's

discovery of relevant evidence until now."        Given the fact appellant claims he was
                                             - 10 -
                                                                           Franklin 15AP-397

unavoidably prevented from discovering the evidence precisely because of ineffective

assistance of both his trial counsel and his appointed Atkins counsel, it would have been

impossible for the trial court to consider appellant's claim of being "unavoidably prevented"

without concurrently considering whether counsel was ineffective.

       {¶ 32} Ultimately, the trial court denied appellant's Crim.R. 33(B) motion on the ground

appellant failed to demonstrate he was unavoidably prevented from discovering the evidence

relied upon in the motion, and hence from timely filing the motion: "The Court does not find

clear and convincing evidence that Defendant was unavoidably prevented from filing a new

trial motion within the time constraints based on ineffective assistance of counsel." See

State v. Mosley, 10th Dist. Franklin No. 07AP-860, 2008-Ohio-951 (trial court's denial of

Crim.R. 33[B] motion for leave presumes trial court found defendant failed to show he was

unavoidably prevented from discovering the evidence relied upon in the motion).

Accordingly, the trial court applied the proper standard when it considered appellant's Crim.R.

33(B) motion.

       3. Was Appellant Entitled to a Hearing Upon His Crim.R. 33(B) Motion?

       {¶ 33} Appellant also suggests he was entitled to a hearing on his Crim.R. 33(B)

motion given Dr. Smalldon's recantation in his 2013 affidavit. Appellant cites State v.

Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-4468, in support of his

argument. This court finds that Alexander is not applicable in the case at bar.

       {¶ 34} In Alexander, the trial court denied the defendant's motion for leave to file a

motion for new trial as untimely, and without holding a hearing to inquire into the

circumstances of a state witness' recantation. The Eleventh Appellate District held that, had

the trial court's denial of the motion for leave not been harmless, the denial of the motion

without a hearing "would have been an abuse of discretion [because] such a procedural

requirement is necessary so that a genuine recantation that could be outcome determinative
                                             - 11 -
                                                                                           Franklin 15AP-397

is not foreclosed only because the recanting witness decides to 'do the right thing' belatedly."

Alexander at ¶ 21.

        {¶ 35} Contrary to appellant's suggestion, Dr. Smalldon's 2013 affidavit is not a

recantation of his testimony at the 2009 Atkins hearing. "A witness recants * * * by formally

or publicly withdrawing or repudiating earlier testimony." State v. Covender, 9th Dist. Lorain

No. 07CA009228, 2008-Ohio-1453, ¶ 21 (Dickinson, J., concurring in part and dissenting in

part), citing Black's Law Dictionary (7th Ed.1999) 1274. Dr. Smalldon testified at the 2009

Atkins hearing that appellant's full scale IQ was 83 based upon his 1995 IQ testing of

appellant. Dr. Smalldon's 2013 affidavit does state he would now apply the Flynn effect

which would result in a "lowering of the Full Scale IQ estimate from 83 to 79."3 However, a

full scale IQ of 79, even after applying an additional downward adjustment of five points

reflecting the standard deviation, would result in a full scale IQ score of 74.4 Pursuant to Lott,

a full scale IQ score of 74 raises a rebuttable presumption that appellant is not mentally

retarded, consistent with Dr. Smalldon's ultimate conclusion in 2009.

        {¶ 36} As opposed to a recantation, a review of Dr. Smalldon's 2013 affidavit simply



3. In general, the Flynn effect, a theory published by political scientist James R. Flynn, "'argues that IQ scores
have gone up over the years, and that when a test is administered years after its publication, the results should
be adjusted downward to account for the lapse in time between publication and its administration.'" State v.
Waddy, 10th Dist. Franklin No. 09AP-1197, 2011-Ohio-3154, ¶ 20, quoting Thomas v. Quarterman, 335
Fed.Appx. 386, 390 (5th Cir.2009). See also Wiley v. Epps, 625 F.3d 199, 214 (5th Cir.2010) ("the Flynn effect
provides a reduction in IQ scores to account for inflation in the score based on the number of years since the test
was normalized"). The theory "attributes the general rise of I.Q. scores of a population over time to the use of
outdated testing procedures, emphasizing the need for the repeated renormalization of I.Q.-test standard
deviations over time." In re Salazar, 443 F.3d 430, 433 (5th Cir.2006). This court, in addressing the theory in the
context of an Atkins-Lott claim, has held that "a trial court must consider evidence presented on the Flynn effect,
but, consistent with its prerogative to determine the persuasiveness of the evidence, the trial court is not bound
to, but may, conclude the Flynn effect is a factor in a defendant's IQ score." State v. Burke, 10th Dist. Franklin
No. 04AP-1234, 2005-Ohio-7020, ¶ 51.

4. As this court explained in Waddy V, "'IQ tests typically have a five point standard error of measurement, which
means that any score actually represents a score that could be five points higher or lower.'" 2011-Ohio-3154 at ¶
32, quoting Wilson v. Quarterman, E.D.Texas No. 6:06-cv-140, 2009 WL 900807, *4 (March 31, 2009). "The
standard of measurement is an interpretative tool that reflects the idea that I.Q. scores have a ninety-five percent
confidence interval, and thus an individual's true score is somewhat within a five-point range of the reported
score." Waddy V at id.


                                                       - 12 -
                                                                                       Franklin 15AP-397

shows that based upon the evolving psychological study of mental retardation, especially

since 2002, he now believes it is appropriate to apply the Flynn effect in capital cases where

IQ results were obtained using older IQ tests, which would include his 1995 IQ testing of

appellant. In his affidavit, Dr. Smalldon also agrees with Dr. Hartung that the most weight

should be given to appellant's 2012 IQ test results following Dr. Hartung's administration of

the WAIS-IV test. Dr. Smalldon's 2013 affidavit plainly explains the timing and reasons for

his change of opinion and is not a recantation of his earlier testimony.

     B. Unavoidable Prevention As a Result of Ineffective Assistance of Counsel

        {¶ 37} Appellant argues it was an abuse of discretion for the trial court to deny his

Crim.R. 33(B) motion because appellant was unavoidably prevented from discovering and

timely presenting evidence of his mental retardation and abusive childhood due to the

ineffective assistance of both his 1987 trial counsel and his appointed Atkins counsel.5

Appellant asserts he was entitled to effective assistance of counsel both during the mitigation

phase of his 1987 trial and in connection with his Atkins litigation, but was deprived of that

right, and consequently seeks a new mitigation phase of his trial.

         1. Was 1987 Trial Counsel Ineffective For Failing to Present Evidence of
                          Appellant's Abusive Childhood At Trial?

        {¶ 38} Appellant first argues he was unavoidably prevented from discovering and

timely presenting evidence of his abusive childhood at his 1987 trial due to the ineffective

assistance of trial counsel. As a result, the trial court abused its discretion in denying his

Crim.R. 33(B) motion.

        {¶ 39} The record shows that during the mitigation phase of appellant's 1987 trial, only

one of appellant's siblings testified on behalf of appellant. The sibling testified regarding the



5. Appellant's argument seemingly creates a "Catch 22" situation. In order for counsel to have been ineffective
in presenting evidence, the evidence would have had to be discoverable. If the evidence was undiscoverable, as
required by Crim.R. 33(B), then counsel could not have been ineffective in failing to present it.
                                                     - 13 -
                                                                               Franklin 15AP-397

circumstances under which appellant grew up, and stated that appellant and his siblings were

punished for misbehaving by receiving beatings by their father. When appellant filed his

Crim.R. 33(B) motion, he attached the affidavits of four other siblings. As stated earlier,

those affidavits detail the physical abuse suffered by appellant and his siblings as a result of

their father's beatings. The affidavit of appellant's sister also indicates her suspicions their

father may have attempted to molest her daughters during overnight visits.

       {¶ 40} The trial court denied appellant's Crim.R. 33(B) motion on the ground his claim

of ineffective assistance of trial counsel for failure to present evidence of his abusive

childhood was barred by res judicata. As the trial court aptly stated, appellant "raised a claim

alleging ineffective assistance of trial counsel" in his first petition for post-conviction relief in

1995 "and had the opportunity to raise the issue again in 2003" when he filed his Atkins PCR

petition. Appellant does not explain why or how he was prevented from raising the issue in

either prior petition for post-conviction relief. Because appellant could have raised the issue

in his 1995 and 2003 petitions for post-conviction relief, it is barred by res judicata. See

State v. Russell, 10th Dist. Franklin No. 04AP-1149, 2005-Ohio-4063; State v. Petrone, 5th

Dist. Stark No. 2013 CA 00213, 2014-Ohio-3395 (res judicata bars a defendant from raising

the issue of ineffective assistance of trial counsel via an appeal from the denial of a motion

for leave to file a motion for new trial where the issue could have been, but was not, raised in

earlier proceedings).

      2. Was Appointed Atkins Counsel Ineffective at the 2009 Atkins Hearing?

       {¶ 41} Appellant next argues he was unavoidably prevented from discovering and

timely presenting evidence of his abusive childhood and mental retardation at the 2009

Atkins hearing due to the ineffective assistance of his appointed Atkins counsel.

            a. The Right to Counsel in Post-Conviction Relief Proceedings

       {¶ 42} The Sixth Amendment to the United States Constitution provides a right to the
                                                - 14 -
                                                                            Franklin 15AP-397

effective assistance of counsel in criminal proceedings. See Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052 (1984). However, the United States Supreme Court has held that

there is no federal constitutional right to counsel in state post-conviction proceedings.

Rather, "the right to appointed counsel extends to the first appeal of right, and no further."

Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990 (1987). Subsequently, the

Supreme Court held that because there is no constitutional right to an attorney in state post-

conviction proceedings, there is no federal constitutional right to the effective assistance of

counsel in such proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546

(1991) ("a petitioner cannot claim constitutionally ineffective assistance of counsel in [state

post-conviction] proceedings"). That same year, the Ohio Supreme Court held that a post-

conviction indigent petitioner has neither a state nor a federal constitutional right to counsel.

State v. Crowder, 60 Ohio St.3d 151, 152 (1991).

       {¶ 43} This court has generally held that the right to appointed counsel does not apply

to post-conviction relief proceedings because such proceedings are civil in nature. State v.

Scudder, 131 Ohio App.3d 470, 473-474 (10th Dist.1998). As this court explained in

Scudder,

              The right to appointed counsel extends to only the first appeal of
              right, and since a defendant has no federal constitutional right to
              counsel when pursuing a discretionary appeal on direct review of
              his conviction, * * * he has no such right when attacking, in post-
              conviction proceedings, a conviction that has become final upon
              exhaustion of the appellate process.

Id. This court continued, "[e]xcept as noted above, a civil litigant does not have a right to the

effective assistance of appointed counsel. Unlike a criminal defendant, a civil litigant has no

constitutional right to the effective assistance of counsel." (Internal citation omitted.) Id. at

474. "Accordingly, although the General Assembly felt it appropriate to grant indigent

postconviction petitioners access to appointed counsel, it was not required to do so, nor was


                                              - 15 -
                                                                             Franklin 15AP-397

it required to guarantee the effective assistance of counsel." Id. This court then held that

because post-conviction relief proceedings in Ohio are civil in nature, a "defendant has no

Sixth Amendment right to the effective assistance of" post-conviction counsel. Id.

         {¶ 44} Other appellate courts have reached the same conclusion. See State v.

Sheppard, 1st Dist. Hamilton No. C-000665, 2001 WL 331936 (Apr. 6, 2001) (a civil litigant in

a post-conviction proceeding has no due-process right to the effective assistance of counsel,

even in a death-penalty case); State v. D'Ambrosio, 8th Dist. Cuyahoga No. 75076, 2000 WL

283079 (Mar. 16, 2000) (same); In re Scharf, 6th Dist. Ottawa No. OT-01-044, 2002-Ohio-

5204 (because post-conviction relief proceedings are civil in nature, a petitioner has no Sixth

Amendment right to the effective assistance of counsel); State v. Brown, 7th Dist. Mahoning

No. 01CA229, 2003-Ohio-3551 (holding that while appointed counsel must be qualified to file

a capital post-conviction petition, there is no requirement that they be effective); and State v.

McKelton, 12th Dist. Butler No. CA2015-10-183, 2016-Ohio-3216 (the Sixth Amendment right

to effective assistance of counsel does not extend to state post-conviction relief

proceedings).

         {¶ 45} Although R.C. 2953.21(I)(1) allows an indigent petitioner sentenced to death to

have appointed counsel in a first post-conviction relief proceeding, R.C. 2953.21(I)(2)

expressly prohibits the petitioner from collaterally challenging counsel's effectiveness in

pursuit of post-conviction relief: "The ineffectiveness or incompetence of counsel during

proceedings under this section does not constitute grounds for relief in a proceeding under

this section, in an appeal of any action under this section, or in an application to reopen a

direct appeal." R.C. 2953.21(I)(2); see also Scudder, 131 Ohio App.3d at 474; Brown at ¶

13-14.

         {¶ 46} This court recognizes that while the decisions cited above involved petitions for

post-conviction relief filed pursuant to R.C. 2953.21, none of the cases involved post-
                                               - 16 -
                                                                                           Franklin 15AP-397

conviction Atkins proceedings. Nevertheless, whether a defendant has a constitutional right

to effective assistance of counsel in connection with his post-conviction Atkins petition is

debatable. See State v. Bays, 2d Dist. Greene No. 2014-CA-24, 2015-Ohio-1935; Waddy v.

Robinson, S.D.Ohio No. 3:98-CV-084, 2014 WL 4674291 (Sept. 18, 2014) (there is no

constitutional right to effective assistance of counsel in post-Atkins proceedings); and Waddy

v. Robinson, S.D.Ohio No. 3:98-CV-084, 2015 WL 46209 (Jan. 2, 2015) (holding that

"[p]rospectively, this Court has always assured that capital habeas petitioners with Atkins

claims had death-certified counsel to represent them in those post-Atkins Ohio Revised Code

§ 2953.21 proceedings. But that is far different from recognizing a constitutional right to

effective assistance in a post-Atkins post-conviction proceeding. Such a right can be

recognized only by the United States Supreme Court").6

        {¶ 47} In the case at bar, following this court's decision in Waddy IV, 2006-Ohio-2828,

the trial court appointed two attorneys to represent appellant with regard to his Atkins claim.

This was in accord with this court's decision in Burke where we held, "an indigent capital

defendant raising an Atkins claim for the first time in a post-conviction proceeding is entitled

to be represented by two certified attorneys."                  Burke, 2005-Ohio-7020 at ¶ 46; R.C.

2953.21(I).

        {¶ 48} Because appellant was provided with two certified attorneys to prosecute his


6. In Bays, the defendant initially filed a petition for post-conviction relief seeking to vacate his death sentence
pursuant to Atkins and Lott. He subsequently filed a Civ.R. 41(A)(1) notice of voluntary dismissal of his Atkins
PCR petition which the trial court denied. The case sat dormant for over five years until the defendant moved to
withdraw his notice of voluntary dismissal and to supplement or amend his Atkins PCR petition with additional
evidence regarding his mental retardation. The trial court denied both motions. In a split decision, the Second
Appellate District upheld the trial court's denial of both motions but remanded the case for the trial court to
consider the defendant's pending Atkins PCR petition. The concurring judge agreed with the authoring judge's
decision to remand the case for the trial court to consider the Atkins PCR petition. "At the same time," the
concurring judge also agreed with the dissenting judge that the defendant had a constitutional right to effective
assistance of counsel in pursuing post-conviction relief based on Atkins and Lott. The dissenting judge's position
was based on a decision of the Tenth Circuit, Hooks v. Workman, 689 F.3d 1148 (10th Cir.2012), which held that
"defendants in Atkins proceedings have the right to effective counsel," and that such right was "clearly
established Federal law, as determined by the Supreme Court of the United States." Id. at 1885. In both of its
Waddy decisions, the federal district court declined to follow Hooks and noted that no federal courts have
                                                       - 17 -
                                                                             Franklin 15AP-397

Atkins claim, and because we agree with the trial court that his appointed Atkins counsel was

not ineffective, we find that the trial court did not err in denying his Crim.R. 33(B) motion.

b. Failure to Present Evidence of Appellant's Abusive Childhood at the 2009 Atkins
                                     Hearing

       {¶ 49} On appeal, appellant ostensibly argues he was unavoidably prevented at the

2009 Atkins hearing from presenting evidence of his abusive childhood and mental

retardation due to the ineffectiveness of his appointed Atkins counsel. However, in his

Crim.R. 33(B) motion, appellant did not argue he was unavoidably prevented from

discovering evidence of his abusive childhood and presenting such evidence at the hearing

due to the ineffectiveness of his appointed Atkins counsel. Rather, appellant only argued he

was unavoidably prevented from discovering evidence of his mental retardation because until

Dr. Hartung, "no expert ever performed an adaptive functioning evaluation" on appellant, "nor

did anyone attempt to interview [appellant's] family members in person." By contrast, Dr.

Hartung had assessed appellant's adaptive functioning by administering the ABAS-II test and

by interviewing two of appellant's siblings. In its decision denying appellant's Crim.R. 33(B)

motion, the trial court only addressed the alleged ineffectiveness of appellant's appointed

Atkins counsel for failing to call an expert willing to testify that appellant suffers from mental

retardation.

       {¶ 50} In any event, assuming appellant argues on appeal that he was unavoidably

prevented from discovering evidence of his abusive childhood and presenting such evidence

at the 2009 Atkins hearing, we find appellant cannot demonstrate he was unavoidably

prevented from discovering the evidence before the Atkins hearing or in a timely manner

thereafter. Appellant cannot demonstrate under Crim.R. 33(B) that he had no knowledge of

his abusive childhood.     Indeed, the fact he presented some evidence of his abusive


followed Hooks.
                                              - 18 -
                                                                            Franklin 15AP-397

childhood at the mitigation phase of his 1987 trial plainly indicates he was aware of this

evidence. Therefore, at the time of the 2009 Atkins hearing, appellant was aware of the facts

upon which he now bases his claim for relief.

       {¶ 51} Furthermore, while appellant's Atkins PCR petition is considered a first and

timely petition for post-conviction relief under R.C. 2953.21 with regard to the Atkins claim, it

is a successive and untimely petition under R.C. 2953.23 with regard to the abusive

childhood evidence. In Lott, the Ohio Supreme Court created an allowance for capital

defendants to raise an Atkins claim under R.C. 2953.21 within 180 days from the release of

the Lott opinion. Lott, 2002-Ohio-6625 at ¶ 24. Lott, however, did not provide that non-

Atkins issues would enjoy the same special dispensation. The significance of this is that the

R.C. 2953.21(I)(1) statutory right to counsel of capital defendants in post-conviction relief

proceedings is limited to first and timely petitions under R.C. 2953.21. Because appellant's

Atkins PCR petition was a successive and untimely petition under R.C. 2953.23 with regard

to the abusive childhood evidence, there was no right to counsel and therefore, no right to

the effective assistance of counsel.

           c. Failure to Present Atkins Evidence at the 2009 Atkins Hearing

       {¶ 52} Appellant argues he was unavoidably prevented from discovering evidence of

his mental retardation and presenting such evidence at the 2009 Atkins hearing because of

the failure of his appointed Atkins counsel to call an expert such as Dr. Hartung. We agree

with the trial court that appellant failed to establish that counsel's performance at the hearing

was deficient. As the trial court properly found:

              The Court appointed two knowledgeable and experienced
              attorneys to represent defendant at his 2009 evidentiary hearing.
              The Court approved counsel's request for expert funding for an
              investigator and for psychologist, Dr. Daniel Grant. At the
              evidentiary hearing, counsel confirmed that they were electing
              not to call Dr. Grant as a defense witness. Rather, counsel
              chose to rely on their cross-examination of Dr. Smalldon.
                                              - 19 -
                                                                          Franklin 15AP-397

             Defendant argues that counsel was ineffective for failing to call
             an expert willing to testify that Defendant suffers from MR
             [mental retardation]. Defendant submits Dr. Cynthia Hartung's *
             * * Report in support of his argument, wherein Dr. Hartung
             opines that Defendant suffers from a mild form of MR.

             The Court finds that Defendant has failed to establish by clear
             and convincing evidence that counsel's performance at his 2009
             evidentiary hearing was deficient. Defendant submitted an
             affidavit from Dr. Grant in support of his Motion for New Trial. In
             his affidavit, Dr. Grant concedes that he administered two IQ
             tests on Defendant which resulted in a full scale IQ of 76. As
             such, it was both reasonable and strategic for counsel to forego
             calling Dr. Grant to testify at the evidentiary hearing. Although
             Defendant has now located an expert who supports his position,
             there is no indication that his counsel acted unreasonably.

      {¶ 53} Counsel's decision whether to call a witness generally falls within the rubric of

trial strategy and will not be second-guessed by a reviewing court. See State v. Were, 118

Ohio St.3d 448, 2008-Ohio-2762, ¶ 222. In hiring experts, "[a]ttorneys need not pursue every

conceivable avenue; they are entitled to be selective." State v. Murphy, 91 Ohio St.3d 516,

542 (2001); State v. Drummond, 7th Dist. Mahoning No. 05 MA 197, 2006-Ohio-7078, ¶ 61.

As the trial court properly found, "[e]ffectiveness standards do not mandate that counsel

consult multiple experts until they find one who supports their conclusion."

      {¶ 54} We therefore find that the trial court did not err in denying appellant's Crim.R.

33(B) motion with regard to his post-conviction Atkins proceedings.

             d. Applicability of Martinez v. Ryan, and Maples v. Thomas

      {¶ 55} Appellant asserts, however, that the ability of his appointed Atkins counsel to

discover evidence of appellant's abusive childhood and mental retardation and present it at

the 2009 Atkins hearing cannot be held against him and does not preclude him from

asserting he was unavoidably prevented from discovering such evidence because he was

essentially abandoned by his counsel. Appellant also asserts that given his imprisonment

and mental retardation, he was "in 'no position' to develop evidence in support of an

                                            - 20 -
                                                                                           Franklin 15AP-397

ineffectiveness claim." In support of his assertions, appellant cites two decisions from the

United States Supreme Court, Martinez v. Ryan, __U.S.__, 132 S.Ct. 1309 (2012), and

Maples v. Thomas, __U.S.__, 132 S.Ct. 912 (2012). Both decisions address what may

constitute cause to excuse a procedural default in federal habeas proceedings.7

        {¶ 56} It is well-established that "[a] lawyer is an agent for his client and a party is

deemed bound by the acts of his lawyer and is considered to have 'notice of all facts, notice

of which can be charged upon the attorney.'" State v. Mayle, 10th Dist. Franklin No. 01AP-

978, 2002 WL 756864, *2 (Apr. 30, 2002), quoting GTE Automatic Electric v. ARC Industries,

47 Ohio St.2d 146, 152 (1976).

        {¶ 57} Martinez involved a petition for habeas corpus and originated in Arizona where

state law only permits ineffective assistance of counsel claims to be brought in state collateral

proceedings rather than on direct appeal. Martinez's post-conviction counsel filed a direct

appeal and initiated a state collateral proceeding, but failed to present a claim of ineffective

assistance of trial counsel in the state collateral proceeding. On federal habeas review,

Martinez argued he could overcome procedural default as he had cause for the default, to

wit, his first post-conviction counsel was ineffective for failing to raise any claims in the first

notice of post-conviction relief. Both the District Court for the District of Arizona and the Ninth

Circuit Court of Appeals held that Martinez had not shown cause to excuse the procedural

default because, under Coleman, 111 S.Ct. 2546, prisoners have no federal constitutional

right to the effective assistance of counsel in post-conviction proceedings.

        {¶ 58} In addressing Martinez's claim, the Supreme Court acknowledged its holding in

Coleman that under well-settled principles of agency law, "[n]egligence on the part of a



7. A prisoner must litigate federal law challenges to his conviction in state court before bringing them to federal
court. As the Eighth Appellate District explained, "the failure to assert claims in state court bars a prisoner from
later litigating those claims in federal habeas proceedings because the prisoner failed to exhaust available state
remedies. This concept is known as 'procedural default.' However, a petitioner may overcome a 'procedural
                                                       - 21 -
                                                                                       Franklin 15AP-397

prisoner's postconviction attorney does not qualify as 'cause.'" Martinez, 132 S.Ct. at 1316.

The Supreme Court also acknowledged that in cases where the initial-review collateral

proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective

assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner's

direct appeal as to the ineffective-assistance claim and thus, the prisoner's "one and only

appeal" as to the claim. Id. at 1315-1316. As a result, "when an attorney errs in initial-review

collateral proceedings, it is likely that no state court at any level will hear the prisoner's claim,"

and since a procedural default would preclude any habeas claim, "no court will review the

prisoner's claim." Id. at 1314-1316.

        {¶ 59} Consequently, the Supreme Court qualified its holding in Coleman and held that

"[i]nadequate assistance of counsel at initial-review collateral proceedings may establish

cause for a prisoner's procedural default of a claim of ineffective assistance of counsel." Id.

at 1315. The Supreme Court further held that under state law, where claims of ineffective

assistance of trial counsel must be raised in an initial-review collateral proceeding, a

procedural default "will not bar a federal habeas court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective." Id. at 1320. In other words, if the

post-conviction proceeding was the defendant's first opportunity to argue an error in his

conviction, then the defendant, whether unrepresented or whose counsel was ineffective in

the "initial-review collateral proceeding," is not precluded by the procedural default doctrine

from raising the trial error in federal habeas proceedings.

        {¶ 60} Appellant ostensibly parallels his case to Martinez's case in that "an

incarcerated prisoner like [appellant] is in 'no position' to develop evidence in support of an


default' by demonstrating 'cause' and 'prejudice.'" State v. Glover, 8th Dist. Cuyahoga Nos. 100330 and 100331,
2014-Ohio-3228, ¶ 22.
                                                     - 22 -
                                                                             Franklin 15AP-397

ineffectiveness claim." See Martinez, 132 S.Ct. at 1317 ("While confined to prison, the

prisoner is in no position to develop the evidentiary basis for a claim of ineffective assistance,

which often turns on evidence outside the trial record").

       {¶ 61} Martinez, however, does not recognize a constitutional right to counsel or

effective assistance of counsel in post-conviction proceedings. Nor does it find any particular

state procedural or substantive rules akin to Ohio's post-conviction relief scheme to be

unconstitutional. State v. Glover, 8th Dist. Cuyahoga Nos. 100330 and 100331, 2014-Ohio-

3228, ¶ 28 (Martinez "does not provide a free-standing constitutional right to the appointment

of counsel in postconviction proceedings").         Rather, Martinez simply "established an

equitable doctrine for overcoming procedural default in certain limited circumstances." Id.

Indeed, the Supreme Court was careful to point out it was only recognizing a "narrow

exception" to its holding in Coleman:

              The rule of Coleman governs in all but the limited circumstances
              recognized here. The holding in this case does not concern
              attorney errors in other kinds of proceedings, including appeals
              from initial-review collateral proceedings, second or successive
              collateral proceedings, and petitions for discretionary review in a
              State's appellate courts. It does not extend to attorney errors in
              any proceeding beyond the first occasion the State allows a
              prisoner to raise a claim of ineffective assistance at trial, even
              though that initial-review collateral proceeding may be deficient
              for other reasons.

(Internal citations omitted.) Martinez, 132 S.Ct. at 1320. That is, the Court made clear that

Martinez applies only to cases where defendants have been denied the effective assistance

of counsel at the "initial review" stage of the litigation. Id. at 1315. The Court expressly

stated that its holding does not apply to successive collateral proceedings. Id. at 1320.

Claims of newly discovered evidence may be brought, and often are brought, in successive

collateral proceedings, which the Martinez court expressly excluded from its holding. Id.;

Glover at ¶ 30.

                                              - 23 -
                                                                            Franklin 15AP-397

       {¶ 62} Appellant argues that in Martinez, the Supreme Court observed that

incarcerated defendants claiming ineffective of counsel or denial of the right to counsel in

initial-review collateral proceedings "'are generally ill equipped to represent themselves'

because they do not have a brief from counsel or an opinion of the court addressing their

claim of error." Martinez at 1317. Such was not the case here. The record shows there

were substantial briefing and courts' decisions regarding appellant's mental retardation claim

from his 2003 Atkins PCR petition.

       {¶ 63} Appellant spends considerable effort likening the cause for procedural default

aspect of Martinez to this case. Specifically, appellant claims that his 2009 Atkins hearing is

an initial review collateral proceeding with regard to his Atkins claim, and that the alleged

ineffectiveness of his appointed Atkins counsel at the hearing is cause to excuse procedural

default at that hearing. This court finds that the exception to the application of the procedural

default doctrine recognized in Martinez has no relevancy to our analysis of appellant's

Crim.R. 33(B) claim. First, the procedural default doctrine, while applicable to federal habeas

corpus proceedings, does not apply to state post-conviction relief proceedings. Furthermore,

the mere fact that a claim may be subject to the Martinez exception to the procedural default

doctrine does not mean that the claim has merit or that a state court is required to afford a

subsequent merit review on the claim.

       {¶ 64} Appellant also cites the Supreme Court's decision in Maples in support of his

claim he was abandoned by his prior counsels and thus cannot be bound by their ineffective

assistance.

       {¶ 65} Maples addressed whether an habeas corpus petitioner was bound by his post-

conviction attorneys' failure to timely file a notice of appeal or whether cause for a procedural

default existed. The Supreme Court generally held that "under agency principles, a client

cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor
                                              - 24 -
                                                                              Franklin 15AP-397

can a client be faulted for failing to act on his own behalf when he lacks reason to believe his

attorneys of record, in fact, are not representing him." Maples, 132 S.Ct. at 923.

        {¶ 66} In reaching its holding, the Supreme Court explained that "[n]egligence on the

part of a prisoner's postconviction attorney does not qualify as 'cause' * * * because the

attorney is the prisoner's agent, and under 'well-settled principles of agency law,' the principal

bears the risk of negligent conduct on the part of his agent." (Internal citation omitted.) Id. at

922.    "Thus, when a petitioner's postconviction attorney misses a filing deadline, the

petitioner is bound by the oversight and cannot rely on it to establish cause. We do not

disturb that general rule." (Internal citation omitted). Id. "A markedly different situation is

presented, however, when an attorney abandons his client without notice, and thereby

occasions the default. Having severed the principal agent relationship, an attorney no longer

acts, or fails to act, as the client's representative." Id. at 922-923. As a result, the attorney's

acts or omissions "cannot fairly be attributed to [the client]." Id. at 923. The Supreme Court

further observed that there was an "essential difference between a claim of attorney error,

however egregious, and a claim that an attorney ha[s] essentially abandoned his client." Id.

        {¶ 67} In Maples, the defendant's attorneys had failed to timely file a notice of appeal.

In finding that Maples' attorneys had abandoned their representation of him, as opposed to

merely being negligent, the Supreme Court noted that two of the attorneys had left the law

firm, taken jobs that precluded their further representation of Maples, and failed to file

motions to withdraw, thus providing no notice to the court as to where notices, orders, and

the like were to be directed. In addition, Maples' third attorney never undertook to represent

him, and was involved in the case only so that the other two attorneys could appear pro hac

vice.

        {¶ 68} By contrast here, the record is clear that appellant's prior attorneys did not

abandon him, but instead were actively engaged in representing him both at trial and with
                                               - 25 -
                                                                                 Franklin 15AP-397

regard to his Atkins claim. Unlike in Maples, there is no evidence in the case at bar that

appellant's prior attorneys had severed the principal-agent relationship. At most, appellant's

claim only raises an issue of negligence, not abandonment. Accordingly, under the well-

settled principles of agency law, appellant is bound by the acts and/or omissions of his prior

attorneys.

                                        III. CONCLUSION

       {¶ 69} In light of all of the foregoing, this court finds that the trial court did not abuse its

discretion in denying appellant's Crim.R. 33(B) motion for leave to file a motion for new trial

based on newly discovered evidence.            Appellant's assignment of error is accordingly

overruled.

       {¶ 70} Judgment affirmed.


       HENDRICKSON and PIPER, JJ., concur.




       M. Powell, P.J., of the Twelfth Appellate District, sitting by assignment of the Chief
Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.

       Hendrickson, J., of the Twelfth Appellate District, sitting by assignment of the Chief
Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.

      Piper, J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice,
pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.




                                                - 26 -
