[Cite as State v. Simmonds, 2017-Ohio-2739.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                  :

                Plaintiff-Appellee,             :
                                                                     No. 16AP-332
v.                                              :                  (C.P.C. No. 14CR-232)

Devonere Simmonds,                              :               (REGULAR CALENDAR)

                Defendant-Appellant.            :



                                          D E C I S I O N

                                      Rendered on May 9, 2017


                On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                Gilbert, for appellee. Argued: Seth L. Gilbert.

                On brief: Timothy Young, Ohio Public Defender,
                Charlyn E. Bohland, and Katherine R. Ross-Kinzie, for
                appellant. Argued: Charlyn E. Bohland.

                 APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Devonere Simmonds, appeals a March 30, 2016
decision of the Franklin County Court of Common Pleas, dismissing his petition for
postconviction relief without a hearing.            Because we agree that Simmonds failed to
demonstrate "substantive grounds for relief," we affirm the trial court's decision to
dismiss the petition without a hearing.
I. INTRODUCTION AND BACKGROUND
        {¶ 2} On July 21, 2013, Simmonds shot both James Norvet and Quinten Prater in
the head. Prater, who was shot with a shotgun, did not survive. Three days later, on
July 24, Simmonds fatally shot a third person, Imran Ashgar, a convenience store clerk
during a robbery. He shot him in the eye; departed briefly; then returned and shot him a
second time in the head as he lay wounded on the floor. Three days after that, during
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No. 16AP-332
Simmonds' attempt to flee Ohio, Simmonds approached William Rudd at a gas station,
shot him in the face, and stole his truck. Rudd managed to survive. Simmonds was 17
years old when he committed these offenses.
II. FACTS AND PROCEDURAL HISTORY
        {¶ 3} On July 25, August 28, and August 29, 2013 respectively, Simmonds was
charged as a juvenile for the shootings of Ashgar, Prater, and Rudd. (July 25, 2013 Compl.
13JU-10445; Aug. 28, 2013 Compl. 13JU-11920; Aug. 29, 2013 Compl. 13JU-11966.) In a
hearing held on January 13 2014, the prosecution noted that during the events underlying
common pleas case No. 13JU-11920 Simmonds also shot another person (Norvet).
(Jan. 13, 2014 Hearing Tr. at 9-10, filed on Jan. 5, 2015.) The juvenile court issued
decisions on January 13, and 14, 2014 binding over Simmonds for trial as an adult in each
of the three cases. (Jan. 13, 2014 Bindover Decision 13JU-10445; Jan. 14, 2014 Bindover
Decision 13JU-11920; Jan. 14, 2014 Bindover Decision 13JU-11966.)
        {¶ 4} On January 16, 2014, having been bound over to stand trial as an adult, a
Franklin County Grand Jury indicted Simmonds1 for two counts each of aggravated
murder and murder (Ashgar and Prater), five counts of aggravated robbery (Prater,
Norvet, Ashgar, and Rudd2), two counts each of attempted murder and felonious assault
(Norvet and Rudd), and one count of having a weapon while under a disability. (Jan. 16,
2014 Indictment.) Each offense (except the weapon offense) included a gun specification
under R.C. 2941.145. Id.
        {¶ 5} Simmonds was tried by a jury on the counts relating to Ashgar, Rudd, and
one count (for which he was eventually acquitted) related to another party; the remaining
counts relating to Prater and Norvet were severed for later trial, and the weapon under
disability count was tried to the bench. (Dec. 5, 2014 Jury Verdict Count 4; July 1, 2014
Hearing Tr. at 16-17; Dec. 8, 2014 Hearing Tr. at 797-98.) A previous decision of this
Court summarized the facts adduced at trial:

                Simmonds basically executed the store clerk by shooting him
                in the eye once and then returning to shoot the clerk in the

1 Also indicted with Simmonds was an adult co-defendant who was present during the crimes (though

Simmonds was the shooter). The co-defendant is not relevant to this appeal and is not mentioned further.
2 The indictment also included a charge of aggravated robbery as to one other alleged victim. (Jan. 16, 2014

Indictment.) However that charge is not relevant to this appeal because Simmonds was eventually acquitted
of the charge. (Dec. 5, 2014 Verdict Count 4.)
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No. 16AP-332
                   head a second time after the clerk briefly survived the first
                   shot. A few days later, while fleeing central Ohio, Simmonds
                   found himself in need of a motor vehicle. He shot the owner of
                   a vehicle in the head while stealing the car. The owner
                   miraculously survived the shooting and was able to testify at
                   the trial.

State v. Simmonds, 10th Dist. No. 14AP-1065, 2015-Ohio-4460, ¶ 2.                             Our previous
decision noted that the weight of evidence against Simmonds was "massive" and included,
among other things, a surveillance tape showing Simmonds executing the clerk, Ashgar.
Id. at ¶ 7. Following trial, on December 5, 2014, the jury returned a verdict of "guilty" on
all counts related to Ashgar and Rudd. (Dec. 5, 2014 Verdicts Counts 1-3, 5-7.)
          {¶ 6} On Friday, December 5, 2014, after the jury delivered its verdicts, the trial
court denied a request for a presentence investigation as to Simmonds and asked counsel
if they would be amenable to convening for sentencing the following Monday,
December 8, 2014. (Dec. 5, 2014 Tr. Vol. 5 at 788-89.) Counsel indicated that date would
be agreeable. Id. Other than the request for a presentence investigation (which the trial
court denied), the record contains no request for a continuance at that point. Id.
          {¶ 7} When proceedings reconvened on December 8, the trial court found
Simmonds guilty of the weapon under disability offense and immediately turned to the
issue of sentencing. (Dec. 8, 2014 Hearing Tr. Vol. 6 at 797-98.) At sentencing, counsel
for Simmonds offered two psychological evaluations of Simmonds. Id. at 819-21. One was
by psychologist David Tennenbaum, Ph.D. that was prepared on November 4, 2013, for
an unrelated juvenile burglary case (common pleas case No. 12JU-13008) and one by
psychologist Jaime Adkins, Psy.D.3 that was prepared on November 18, 2013 for one of
the cases for which Simmonds was bound-over (common pleas case No. 13JU-11966); it
was attached to the State's May 16, 2014 response to a motion by Simmonds challenging
his competence to stand trial. Id.; May 16, 2014 Memo Contra. Arguing from these
reports (which covered Simmonds' background in considerable detail) Simmonds'
counsel stated:

                   This case has been a recipe for disaster. We have a 17-year-
                   old African-American male, fractured family, one out of seven
                   children on his mother's side, one out of twelve on his father's.

3   Counsel, erroneously, referred to Dr. Jaime Adkins as Dr. Jaime Lai during the hearing.
                                                                                        4
No. 16AP-332
              We have criminal activities on the part of a parent who acted
              as a role model. Drug use and abuse, alcohol, immaturity,
              vulnerability, weapons, older boys whom he looked up to. He
              has a ninth—grade education, an IQ range in the first
              percentile.

              I guess if you put in a convenient store and you have a hot
              summer night, the result is unfortunately too often very
              predictable.

(Dec. 8, 2014 Hearing Tr. Vol. 6 at 826.)
       {¶ 8} The trial court, after listening to the arguments of counsel attempted "to
construct a compassionate yet a serious penalty," and reasoned as follows:

              Certainly the Court, you know, has taken into consideration
              their youth, their emotional immaturity, the background, the
              fact they're a product of our system, our criminal system at a
              young age. Essentially they were left to fend for themselves at
              age, you know, tender young ages of, you know, 12, 13, 14, and
              so forth, left to be on the street.

              And I ask myself, you know, what, you know, how would
              anyone cope and adapt to life on the streets at such a young
              age? I don't know. I don't know. I don't know what I would
              do or the next person would do.

              But, I mean, I do realize that we all have a conscience, I mean,
              we all are born with an ability to determine and distinguish
              between right and wrong. And that's what it comes down to.
              The fundamental ability inside ourselves to be able to
              determine what's right and wrong.

Id. at 828.
       {¶ 9} Ultimately, the trial court merged the aggravated murder and murder
counts as to Ashgar and the felonious assault and attempted murder counts as to Rudd.
(Jan. 12, 2015 Jgmt. Entry at 2.) It then sentenced Simmonds to 3 years on the weapon
under disability count, 11 years each on the aggravated robbery counts (as to Ashgar and
Rudd) and the attempted murder count (as to Rudd) with an additional 3 years for each of
the firearm specifications for each of the 11-year sentences. Id. The trial court also
sentenced Simmonds to serve life without the possibility of parole for the aggravated
murder of Ashgar with an additional 3 years for the firearm specification as to that count
and ordered all sentences and specifications to be served consecutively to one another for
                                                                                         5
No. 16AP-332
a total term of imprisonment of life without parole plus 48 years. Id. Simmonds timely
appealed arguing, among other things, that his sentence of life without parole was cruel
and unusual punishment and that he was denied effective assistance of counsel.
Simmonds at ¶ 1.
       {¶ 10} Approximately seven months after being sentenced on the Rudd and Ashgar
offenses, and while the appeal of those cases was pending, Simmonds entered a guilty plea
to murder and attempted murder without specifications for the shootings of Prater and
Norvet. (Jul. 14, 2015 Guilty Plea.) The trial court sentenced Simmonds to serve 15 years
to life for the murder and 11 years for the attempted murder but allowed the sentences to
be served concurrently with each other and concurrently with the sentence Simmonds
was already serving in relation to the Ashgar and Rudd case. (Jul. 15, 2015 Jgmt. Entry at
2.)
       {¶ 11} On September 8, 2015, Simmonds filed a petition for postconviction relief
(which was amended ten days later on September 18, 2015 to add supplemental affidavits)
before the Franklin County Common Pleas Court, arguing that trial counsel was
ineffective in failing to appropriately prepare for and present evidence of mitigating
circumstances during sentencing. (Sept. 8, 2015 Post-Conviction Petition; Sept. 18, 2015
Amended Post-Conviction Petition.) On October 27, 2015, after the petition was filed and
amended, but before the State responded, this Court issued a decision in the direct appeal.
Among other matters addressed, this Court found that counsel was not ineffective in
representing Simmonds and that, far from being cruel and unusual, given Simmonds'
crimes, "[a] sentence of life in prison without the possibility of parole was readily
foreseeable." Simmonds at ¶ 35.
       {¶ 12} The State answered and moved to dismiss the postconviction petition
without a hearing on February 8, 2016, arguing, consistent with this Court's decision, that
counsel's presentation had been adequate and that, in any case, because of the gravity of
Simmonds' crimes, the result would not have changed even had the presentation been
more robust. (Feb. 8, 2016 Mot. to Dismiss Post-Conviction in passim.)             Shortly
thereafter, Simmonds responded to the motion and the State replied. (Feb. 23, 2016
Memo Contra Mot. to Dismiss; Mar. 1, 2016 Reply in Support of Mot. to Dismiss.) On
March 30, 2016, after full briefing on Simmonds' motion and the intervening decision of
                                                                                        6
No. 16AP-332
this Court on direct appeal, the trial court granted the motion to dismiss without a
hearing. The trial court reasoned that Simmonds had not shown deficient performance or
a reasonable probability that "additional reports and testimony of various experts would
have altered the outcome of the sentencing hearing." (Mar. 30, 2016 Decision at 10.)
      {¶ 13} Simmonds now appeals.
III. ASSIGNMENTS OF ERROR
      {¶ 14} Simmonds presents two assignments of error for review:

             [1.] The trial court erred when it failed to consider Devonere
             Simmonds's claims of ineffective assistance of counsel
             utilizing a per-se prejudice standard of review when counsel
             did not present mitigation at a critical stage of the
             proceedings, in violation of the Sixth, Eighth, and Fourteenth
             Amendments to the U.S. Constitution; Article I, Sections 10
             and 16, Ohio Constitution; R.C. 2953.21; United States v.
             Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984);
             and, State v. Johnson, 24 Ohio St.3d 87, 494 N.E.2d 1061
             (1986).

             [2.] The trial court abused its discretion in making a merits
             determination without holding a hearing because Devonere's
             post-conviction petition provided sufficient operative facts to
             demonstrate that trial counsel was ineffective for failing to
             investigate and present mitigation evidence, in violation of the
             Sixth and Fourteenth Amendments to the U.S. Constitution;
             Article I, Sections 10 and 16, Ohio Constitution; R.C. 2953.21;
             Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 2469, 183
             L.Ed.2d 407 (2012); and, State v. Long, 138 Ohio St.3d 478,
             2014-Ohio-849, 8 N.E.3d 890[.]

IV. DISCUSSION
   A. Standard of Review
      1. Postconviction
      {¶ 15} The postconviction relief process is a collateral civil attack on a criminal
judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). "It is a means to reach
constitutional issues which would otherwise be impossible to reach because the evidence
supporting those issues is not contained" in the trial court record. State v. Murphy, 10th
Dist. No. 00AP-233 (Dec. 26, 2000); see also State v. Carter, 10th Dist. No. 13AP-4,
2013-Ohio-4058, ¶ 15.
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No. 16AP-332
        {¶ 16} A defendant is not automatically entitled to an evidentiary hearing on a
postconviction relief petition. State v. Jackson, 64 Ohio St.2d 107, 110 (1980). R.C.
2953.21(C) provides that, "[b]efore granting a hearing on a petition * * * the court shall
determine whether there are substantive grounds for relief." The petitioner bears the
initial burden of offering evidence that demonstrates a cognizable claim of constitutional
error. State v. Ibrahim, 10th Dist. No. 14AP-355, 2014-Ohio-5307, ¶ 9. Because the
burden is the petitioner's, a postconviction relief petition may be denied without an
evidentiary hearing when the petition, the supporting affidavits, the documentary
evidence, the files, and the records do not demonstrate that the petitioner has offered
sufficient operative facts to establish substantive grounds for relief. State v. Calhoun, 86
Ohio St.3d 279 (1999), paragraph two of the syllabus. We review for abuse of discretion a
trial court's denial of a postconviction relief petition without a hearing. State v. McBride,
10th Dist. No. 14AP-237, 2014-Ohio-5102, ¶ 11.
        2. Ineffective Assistance
        {¶ 17} Ineffective assistance of counsel claims are reviewed using the two-pronged
approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the
defendant must show that counsel's performance was deficient.            * * * Second, the
defendant must show that the deficient performance prejudiced the defense." Id. at 687.
" '[T]here is no reason for a court deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.' " State v. Bradley, 42 Ohio St.3d 136,
143 (1989), quoting Strickland at 697. If one part cannot be proved, regardless of which
or in which order, the analysis ends, and the claim for ineffective assistance of counsel
fails. Id.
        {¶ 18} "In evaluating counsel's performance, 'a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances the challenged action "might be considered sound trial strategy." ' " State v.
Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 37, quoting Strickland at 689, quoting
Michel v. Louisiana, 350 U.S. 91, 101 (1955). " '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
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No. 16AP-332
have been different.' " State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 42,
quoting Bradley at paragraph three of the syllabus.
   B. First Assignment of Error—Whether the Trial Court Erred in
      Addressing Prejudice Rather than Holding that the Failure to Engage
      in Substantial Mitigation was Prejudice Per Se
       {¶ 19} Simmonds argues that, as a minor facing the possibility of a sentence of life
without parole, he was entitled to a more significant mitigation presentation akin to a
death penalty mitigation hearing and that the failure to engage in such detailed mitigation
should have been considered prejudicial per se. (June 30, 2016 Simmonds Brief at 8-20.)
The State responds that although juvenile life without parole is similar to the death
penalty for adults in that it is the most severe sanction available, it is not subject to the
same statutory procedures and no statute, rule, constitution, or case requires more than
was presented or establishes per se prejudice. (Aug. 26, 2016 State's Brief at 33-40, 53-
56.) Simmonds is correct that rigorous consideration of an offender's youth is required in
sentencing a juvenile to life without parole. But the State is also correct in that no legal
precedent imputes per se prejudice to the failure to follow a procedure like a death-
penalty mitigation hearing in a case where a juvenile bound over to an adult felony trial
court and is sentenced to life in prison without the possibility of parole.
       {¶ 20} Both the United States Supreme Court and the Supreme Court of Ohio have
recognized that juveniles are different from adult offenders in that their impetuosity and
susceptibility to negative influences may lead young people to commit serious offenses
but may not reflect irretrievable incorrigibility. See, e.g., Montgomery v. Louisiana,
__ U.S. __, 136 S.Ct. 718, 733-34 (2016); Roper v. Simmons, 543 U.S. 551, 569-71 (2005);
State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, ¶ 11-12, 15.                According to this
philosophy, even juveniles who have committed extremely serious offenses should not
necessarily be considered beyond redemption, as the character flaws and other factors
that led them to commit the offenses may lessen or be eliminated with age and
experience. Montgomery at 733-34; Roper at 569-71; Long at ¶ 11-12, 15.                For that
reason, the United States Supreme Court has held that the Eighth Amendment prohibits
certain criminal punishment for persons who were under 18 when they committed the
offense(s) in question. The prohibition includes the death penalty, life in prison without
parole for non-homicide offenses, or enacting or enforcing laws that would make life
                                                                                          9
No. 16AP-332
without parole mandatory for a juvenile offender. Miller v. Alabama, __ U.S. __, 132
S.Ct. 2455 (2012) (prohibition on mandatory life without parole); Graham v. Florida, 560
U.S. 48 (2010) (prohibition on life without parole for non-homicide); Roper (prohibition
on death penalty). Recently, the United States Supreme Court has interpreted Miller as
having stated a substantive rule: life without parole cannot be imposed except upon "the
rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."
Montgomery, 136 S.Ct. at 734.
       {¶ 21} Under Montgomery, a trial court must consider the youth of the offender
and determine that the "crimes reflect permanent incorrigibility" before imposing life
without parole. Id.; Long at paragraphs one and two of the syllabus. The United States
Supreme Court views life without parole as being "akin" or "analogous" to the death
penalty such that "individualized sentencing" is required. Miller at 2466-67. Accordingly,
a degree of inquiry into the juvenile's individual circumstances is constitutionally
necessary before imposing life without parole.
       {¶ 22} The Supreme Court of Ohio also has explained that in a death case a
complete failure to investigate mitigation may give rise to a presumption of prejudice.
Bradley at 156, citing State v. Johnson, 24 Ohio St.3d 87 (1986). But no constitution,
statute, rule, case, or other legal source plainly states or implies the more specific
proposition posited by Simmonds, that it is prejudicial per se to not investigate and
conduct a mitigation hearing for potential punishment of life without parole as if it were a
death penalty mitigation hearing. The Ohio General Assembly has enacted a detailed
death penalty procedure in order to consider mitigating and aggravating factors before the
death penalty is imposed for adult felonies. See R.C. 2929.03(D) through (F); R.C.
2929.04. But the Ohio General Assembly has not enacted a similar or parallel procedure
when sentencing juveniles to life in prison without the possibility of parole.
       {¶ 23} R.C. 2929.03(E) addresses when a defendant is found at trial not to have

been at least 18 years old at the time of an aggravated murder and specifically gives the

sentencing court the option to impose a sentence of "[l]ife imprisonment without parole."

R.C. 2929.03(E)(1)(a). The statute is devoid of instruction that the same procedures to be

used in an adult death penalty hearings apply for this statutory sentence. We cannot add
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No. 16AP-332
provisions to this statute by judicial decision. We can only adjudicate issues concerning

the statute's legal application and its constitutionality, and then only as the issues may be

timely offered and not subject to waiver, res judicata, or unripeness.

       {¶ 24} Simmonds' first assignment of error is overruled.
   C. Second Assignment of Error—Whether Counsel's Presentation of
      Mitigation at Sentencing Amounted to Constitutionally Ineffective
      Assistance
       {¶ 25} Simmonds argues that his trial counsel failed to investigate and present
appropriate evidence of his lack of maturity, the effect of negative influences on his life,
and his potential for rehabilitation through experience and aging. (Simmonds Brief at 20-
26.) Had his counsel not failed to prepare and present appropriate information, asserts
Simmonds, there is a reasonable probability that he would not have been sentenced to life
in prison without parole. Id. The State counters, in arguments that roughly parallel the
trial court's decision, that Simmonds' attorneys did present information on those topics
and that Simmonds' offenses were so egregious that no amount of information or
testimony on those topics would have altered the result. (State Brief at 45-53, 56-59.)
       {¶ 26} Even if we were to assume that counsel's mitigation presentation was
deficient to the constitutionally significant degree required by Strickland, we are not
convinced that the other element of Strickland can be met in this case. Simmonds, even
before these events, had a startlingly voluminous criminal history for someone of his age,
including assault, carrying a concealed weapon, burglary, and aggravated burglary. (Davis
Aff. at ¶ 23, 35.) During the pendency of the action, Simmonds was transferred to the
Franklin County Jail for acts that included physically attacking and spitting on staff
members of the youth detention facility, wiping feces on the window of his cell to prevent
observation, and making a weapon out of a sock and piece of concrete. Id. at ¶ 24; Jan. 13,
2014 Order Granting Transfer of Custody 13JU-10445 at 2.
       {¶ 27} The crimes Simmonds committed are more than disturbing. In the space of
six days, he point blank shot four people in the head for no reason other than they had
something he wanted. When Simmonds robbed Ashgar, he shot him in the eye. When
Ashgar did not die, Simmonds returned and without provocation delivered a cold, fatal
shot to Ashgar's head. When two victims survived (because Simmonds thought they were
                                                                                          11
No. 16AP-332
dead), Simmonds was at least relieved of an indictment for four aggravated murders;
instead it was two. Simmonds' behavior is so far down the scale of acceptable social
behavior that the prospect of improvement upon maturity is exceedingly remote. It is not
unreasonable to find that Simmonds belongs to a class of offenders that the United States
Supreme Court has termed "the rarest of juvenile offenders, [] whose crimes reflect
permanent incorrigibility." Montgomery at 734. We are not convinced that any amount
of mitigation of the sort proposed by the postconviction petition and supporting materials
would have stood a reasonable probability of changing Simmonds' sentence. Having
found that Simmonds cannot prove he was prejudiced by his counsel's performance, we
need not reach the issue of determining whether Simmonds' counsel "made errors so
serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Strickland at 687. See also Bradley at 143, quoting Strickland at 697.
       {¶ 28} Simmonds' second assignment of error is overruled.
V. CONCLUSION
       {¶ 29} Juvenile offenders facing life without parole are similar to adult offenders
facing the death penalty in some respects and, therefore, care is required before imposing
the ultimate sanction on them. Under the existing statutory scheme, a trial court is
required to consider the youth of the offender and it must determine that the "crimes
reflect permanent incorrigibility" before imposing life without parole. Montgomery; Long
at paragraphs one and two of the syllabus. No law in existence in Ohio requires an
identical level of mitigation as might be presented in an adult death penalty case, and it is
not per se prejudicial for a trial court to not afford such procedures. In Simmonds' cases,
his actions were of such a serious nature that he does not appear to have prospects for
significant or lasting rehabilitation. His crimes could well be described as reflecting
permanent incorrigibility. Simmonds' counsel's opportunity to present a more robust
picture of mitigation to the trial court at sentencing would not likely have yielded a
different result.
       {¶ 30} Both of Simmonds' assignments of error are overruled and the trial court's
judgment is affirmed.
                                                                       Judgment affirmed.
                          SADLER and DORRIAN, JJ., concur.
