[Cite as State v. Obermiller, 2019-Ohio-1234.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 101456



                                            STATE OF OHIO

                                                            PLAINTIFF-APPELLEE

                                                    vs.

                                        DENNY OBERMILLER

                                                            DEFENDANT-APPELLANT




                                                 JUDGMENT:
                                                  AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                          Case Nos. CR-10-541010-A and CR-10-542119-A

        BEFORE: Blackmon, P.J., Laster Mays, J., and Jones, J.

        RELEASED AND JOURNALIZED:                         April 4, 2019
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

Shawn P. Welch
Randall Porter
Melissa Jackson
Assistant State Public Defenders
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Christopher D. Schroeder
Saleh Awadallah
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, P.J.:

       {¶1} Defendant-appellant, Denny Obermiller (“Obermiller”), appeals from the denial of

his petition to vacate his capital murder convictions and other offenses. He assigns the errors

designated in the appendix for our review.

       {¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial

court. The apposite facts follow.

       {¶3} Following the rape and murder of Obermiller’s grandmother, Candace Schneider

(“Candace”), and the murder of Obermiller’s grandfather, Donald Schneider (“Donald”),

Obermiller was indicted for seven counts of aggravated murder, three counts of theft, two counts
of kidnapping, two counts of aggravated robbery, and one count each of rape, aggravated

burglary, tampering with evidence, attempted aggravated arson, and burglary, as well as notices

of prior convictions and repeat offender specifications.     On January 11, 2011, Obermiller

appeared before a three-judge panel and waived his right to a jury trial.   He pled guilty to the

entire indictment, except the notices of prior convictions and repeat offender specifications,

which the state then dismissed. During a hearing pursuant to R.C. 2945.06, the evidence

established:

       Shortly before noon on Tuesday, August 10, 2010, Officer Michael Gazer was
       dispatched to the Schneiders’ house in Maple Heights, Ohio, in response to a theft
       complaint. Donald and Candace told Gazer that they suspected Obermiller of
       stealing rare coins from their home.


       * * * Candace Flagg, one of the Schneiders’ granddaughters, * * *
       contacted her cousin, Obermiller, who told her that he would try to check on the
       Schneiders and get back to her. Obermiller did not call her that evening.

       The next day, Flagg called Obermiller again. Obermiller initially told her that he
       had not yet stopped by the Schneiders’ house. But when Flagg said that she was
       going to ask some friends to check on the Schneiders, Obermiller changed his
       story and told her that their grandparents were fine and that he had checked on
       them. After calling several other people, Flagg contacted the Maple Heights
       Police Department and requested that an officer stop by her grandparents’ house.
       Flagg was subsequently informed that an officer had driven past the house and
       had seen Donald’s van parked in the driveway.

       [On August 14, 2010,] officers looked through a partially open window, saw a
       body lying on the floor, forced their way in through the side door, and smelled a
       strong odor of natural gas. A candle was burning on the mantle in the living
       room, and the unlit gas stove in the kitchen had been left on with the burners
       exposed. One of the officers threw the candle out the door and turned off the gas
       stove.

       Officers found Candace’s body in the first-floor bedroom. She was lying on her
       back on the floor with her arms above her head and her wrists handcuffed
       together. A power cord was wrapped around her neck, and a bed sheet partly
       covered her torso and completely covered her face. Police recovered condom
       wrappers and two used condoms in the same bedroom.
Officers found Donald’s body on the bed in the second-floor bedroom. He was
wearing only underwear and was lying on his right side with his feet at the head of
the bed. * * *.

An investigator observed that a television set was missing from above the mantle
in the living room, as indicated by a dust outline and hanging cables. Flagg
testified at the hearing that her grandparents owned a large, flat-screen television
set, which they had mounted above the mantle in the living room. * * *

Subsequent forensic testing of vaginal swabs, performed by an analyst with the
DNA department of the Cuyahoga County Coroner’s Office, confirmed the
presence of seminal material containing DNA that matched Obermiller’s DNA
profile as a major contributor to a reasonable degree of scientific certainty.
Obermiller also could not be excluded as the source of epithelial cells found in the
two used condoms.

Deputy Medical Examiner Joseph Felo, D.O., conducted Donald’s autopsy and
concluded that the cause of Donald’s death was the same as Candace’s: “asphyxia
by cervical compression (ligature strangulation”). * * *

After the evidentiary hearing, the panel found him guilty of all counts and
specifications.

At the start of the mitigation phase, the state requested that the court merge a
number of the counts and specifications, and Obermiller waived the presentation
of mitigating evidence [and otherwise would not allow his attorneys to put on any
mitigating evidence after the panel determined that Obermiller] was competent to
do so. [The] panel merged many of the counts and declared that it would
sentence Obermiller on the following charges: Count 1 with specifications for
course of conduct and witness murder, Count 4 with specifications for course of
conduct, witness murder, and felony murder predicated on rape, Count 12 (rape),
Count 13 (aggravated burglary), Count 15 (theft), Count 16 (theft), Count 17
(attempted aggravated arson), and Count 18 (burglary).

Ultimately, the panel unanimously sentenced him to death on Counts 1 and 4 and
to an aggregate sentence of 32.5 years on the remaining counts.

* * * The record is replete with evidence that Obermiller’s objective was to plead
guilty as charged and to offer no mitigation during sentencing. Obermiller
instructed his counsel to refrain from objecting, cross-examining the state’s
witnesses, offering opening statements and closing arguments during both phases,
and offering any mitigating evidence. Had defense counsel ignored Obermiller’s
instructions, cross-examination and other tools of advocacy might have interfered
with Obermiller’s desire to present no defense.
See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 4-21, 90-91

(hereafter referred to as “Obermiller I”).

        {¶4} The panel subsequently sentenced Obermiller to death for the aggravated murders

plus 32.5 years in prison for his noncapital offenses. On direct appeal to the Ohio Supreme Court,

Obermiller raised ten propositions of law that challenged the voluntariness of his plea, the

effectiveness of his trial counsel, prosecutorial misconduct, and other issues.          The Ohio

Supreme Court affirmed the convictions, and, after conducting an independent review, also

affirmed the imposition of the death penalty. Id.

        {¶5} Obermiller filed a petition to vacate his conviction under R.C. 2953.21, asserting

sixteen claims for relief. On January 29, 2014, the presiding judge of the three-judge panel

denied the petition.

                                   Petition to Vacate Conviction

        {¶6}     In the assigned errors, Obermiller argues that the trial court erred in denying his

petition for postconviction relief because he set forth meritorious claims that support the vacation

of his convictions.    We shall address each assigned error in turn and combine the claims where

it is appropriate to do so.

        {¶7}     We review a trial court’s decision on a petition for postconviction relief for an

abuse of discretion.     State v. White, 8th Dist. Cuyahoga No. 90544, 2008-Ohio-4228, ¶ 19,

citing State v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-102, 714 N.E.2d 905.

        {¶8} Under R.C. 2953.21, a prisoner may obtain postconviction relief “only if the

court can find that there was such a denial or infringement of the rights of the prisoner as to

render the judgment void or voidable under the Ohio Constitution or the United States

Constitution.”    State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the

syllabus.   A postconviction petition does not provide a petitioner a second opportunity to litigate
his or her conviction. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); State v.

Smith, 8th Dist. Cuyahoga No. 93534, 2010-Ohio-1869, ¶ 11. Rather, it is a means to reach

constitutional issues that would otherwise be impossible to reach because the evidence

supporting those issues is not contained in the record.     Id. at ¶ 12.

        {¶9} Pursuant to R.C. 2953.21(C), a trial court may deny a petition for postconviction

relief without holding an evidentiary hearing where the petition, the supporting affidavits, the

documentary evidence, the files, and the records do not demonstrate that petitioner set forth

sufficient operative facts to establish substantive grounds for relief.     Calhoun, 86 Ohio St.3d at

281.

        {¶10} Res judicata is a proper basis upon which to dismiss a R.C. 2953.21 petition

without a hearing.    Smith, 2010-Ohio-1869 at ¶ 23, quoting State v. Banks, 10th Dist. Franklin

No. 08AP-722, 2009-Ohio-1667, ¶ 10. As stated in Perry:

        Under the doctrine of res judicata, a final judgment of conviction bars the
        convicted defendant from raising and litigating in any proceeding, except an
        appeal from that judgment, any defense or any claimed lack of due process that
        was raised or could have been raised by the defendant at the trial which resulted in
        that judgment of conviction or on an appeal from that judgment.

Id. at 180. A petition for postconviction relief may be denied on the basis of res judicata if the

trial court “finds that the petitioner could have raised the issues in the petition at trial or on direct

appeal without resorting to evidence beyond the scope of the record.”         State v. Abdussatar, 8th

Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 16, citing State v. Scudder, 131 Ohio App.3d 470,

475, 722 N.E.2d 1054 (10th Dist.1998).

                               R.C. 2953.21 and Meaningful Review
                                   R.C. 2953.21 and Discovery

        {¶11} In the first assigned error, Obermiller argues that R.C. 2953.21 fails to provide

meaningful review because res judicata can be applied to bar claims that were not previously
raised, and R.C. 2953.21 presents “little opportunity for factual development.” In the third

assigned error, Obermiller also argues that because petitioners cannot conduct discovery, there is

little opportunity for development of facts to support postconviction claims. Obermiller notes

that the Death Penalty Task Force appointed by the Chief Justice of the Ohio Supreme Court and

the Ohio State Bar Association issued a final report that includes recommendations on providing

for depositions and subpoenas during discovery in postconviction relief, and after his conviction,

these recommendations were adopted in the Revised Code.

       {¶12} As an initial matter, we note that state collateral review itself is not a constitutional

right; rather, it is a civil attack on a judgment. Calhoun, 86 Ohio St.3d at 281. As such, the

petitioner has only those rights granted by the statute. Id.; Steffen, 70 Ohio St.3d at id., 639

N.E.2d 67 (“Postconviction review is a narrow remedy, since res judicata bars any claim that was

or could have been raised at trial or on direct appeal.”).

       {¶13} As to the rule permitting application of res judicata to bar claims that were not

raised, this rule is applicable where the claim could have been raised on direct appeal. Perry,

10 Ohio St.2d 175, at paragraph four of the syllabus. We further note that R.C. 2953.21 has

been held to be constitutional.    See State v. Sklenar, 71 Ohio App.3d 444, 594 N.E.2d 88 (9th

Dist.1991).   In State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), the Ohio Supreme

Court explained:

       Res judicata is applicable in all postconviction relief proceedings. Our holding
       today underscores the importance of finality of judgments of conviction. “Public
       policy dictates that there be an end of litigation; that those who have contested an
       issue shall be bound by the result of the contest, and that matters once tried shall
       be considered forever settled as between the parties.” [Citation omitted.] We
       have stressed that ‘[the] doctrine of res judicata is not a mere matter of practice or
       procedure inherited from a more technical time than ours. It is a rule of
       fundamental and substantial justice, “of public policy and of private peace,” which
       should be cordially regarded and enforced by the courts. * * * ” [Citation
       omitted.] Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101
       S.Ct. 2424, 2429, 69 L.Ed.2d 103, 110-111.
Id. at ¶ 95.

        {¶14} 1This court has recognized that the United States Court of Appeals for the Sixth

Circuit has disapproved of the application of res judicata for claims that could have been raised

but were not raised on direct appeal. State v. Lewis, 8th Dist. Cuyahoga No. 73736, 1998 Ohio

App. LEXIS 5777, 9 (Dec. 3, 1998). However, the Lewis court stated:

        [T]he Sixth Circuit Court of Appeals’ dissatisfaction with Ohio’s postconviction
        relief process and the Perry decision does not require us to hold the
        postconviction relief process invalid. Perry remains good law in this State.

Id. Accord State v. Zich, 6th Dist. Lucas No. L-15-1263, 2017-Ohio-414, ¶ 27 (“Notably,

appellant does not assert that the Sixth Circuit actually deemed R.C. 2953.21 to be

unconstitutional.”); State v. Goff, 12th Dist. Clinton No. CA2000-05-014, 2001-Ohio-4215; State

v. La Mar, 4th Dist. Lawrence No. 98 CA 23, 2000 Ohio App. LEXIS 1211 (Mar. 17, 2000);

State v. Cassano, 5th Dist. Richland No. 12CA55, 2013-Ohio-1783, ¶ 32.

        {¶15} As to the discovery issue, in 2014 when Obermiller’s petition was ruled upon, the

postconviction statutes did not contemplate discovery in the initial stages of a postconviction

proceeding. State v. Hutton, 8th Dist. Cuyahoga No. 76348, 2004-Ohio-3731, ¶ 22. Rather,

the petitioner was entitled to discovery to develop his claims, and to experts to aid in that

discovery, only if the petition and its supporting evidentiary material demonstrate substantive

grounds for relief. State ex rel. Love v. Cuyahoga Cty. Prosecutor’s Office, 87 Ohio St.3d 158,

159, 1999-Ohio-314, 718 N.E.2d 426; State v. Leonard, 157 Ohio App.3d 653, 660,

2004-Ohio-3323, 813 N.E.2d 50 (1st Dist.). This rule has passed constitutional scrutiny. State

v. Hunter, 1st Dist. Hamilton No. C-090569, 2012-Ohio-2859, ¶ 65; State v. Jones, 1st Dist.

Hamilton No. C-990813, 2000 Ohio App. LEXIS 6197 (Dec. 29, 2000). Similarly, in Hutton,

this court rejected the claim that postconviction proceedings fail to provide meaningful review
because they allow for little opportunity for factual development. Id. at ¶ 25-26. Accord State

v. Hale, 8th Dist. Cuyahoga No. 103654, 2016-Ohio-5837, ¶ 57; State v. Jackson, 8th Dist.

Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 87.

       {¶16} In 2017, R.C. 2953.21 was amended to authorize trial courts to grant

postconviction petitioners in capital cases discovery for good cause shown, adopting the

deposition and subpoena recommendations of the task force. We recognize that in State v.

Ketterer, 2017-Ohio-4117, 92 N.E.3d 21 (12th Dist.), the court remanded a matter decided

before this amendment in order “for the trial court to determine whether newly amended R.C.

2953.21 applies to appellant’s [postconviction] petitions, and if so, whether appellant has shown

good cause under the new statute and is entitled to discovery.” Id. at ¶ 47.

       {¶17} Here, however, we conclude that the trial court conducted a thorough analysis of

each claim and provided Obermiller with a meaningful review of his petition, and under the

circumstances of this case, the trial court did not err in denying discovery.

       {¶18} The first and third assigned errors lack merit.

                         ReConvening the Original Three-Judge Panel

       {¶19} Obermiller next argues that the trial court erred by ruling on the petition and denied

it without reconvening the three-judge panel that determined his guilt and sentence.

       {¶20} This claim was rejected in Ketterer, 2017-Ohio-4117, 92 N.E.3d 21 (12th Dist.).

The court explained:

       [The] language in R.C. 2945.06 above unambiguously indicates that the duties of
       a three-judge panel are restricted to the “trial” phase of a capital case and the
       issues “arising upon the trial.” Our research indicates that in capital murder
       cases, a single judge, and not a three-judge panel, has routinely ruled upon a
       capital defendant’s PCR petition. See, e.g., State v. Rojas, 1st Dist. Hamilton
       No. C-950091, 1995 Ohio App. LEXIS 5764 (Dec. 19, 1995). The one exception
       was a case from the Second Appellate District where a PCR petition was ruled
       upon by a three-judge panel. State v. Bays, 2d Dist. Greene No. 96-CA-118,
       1998 Ohio App. LEXIS 226 (Jan. 30, 1998). Whether R.C. 2945.06 and 2953.21
        require a three-judge panel to rule upon a PCR petition was not at issue in that
        case. We further note that the Ohio Supreme Court has denied the affidavit of a
        capital defendant seeking to disqualify a trial judge who had presided over the
        three-judge panel that sentenced the defendant to death from ruling upon the
        defendant’s PCR petition. In re Disqualification of Nastoff, 134 Ohio St.3d
        1232, 2012-Ohio-6339, 983 N.E.2d 354. The Supreme Court denied the
        affidavit of disqualification and then held, “The case may proceed before Judge
        Nastoff.” Id. at ¶ 12.

Id. at ¶ 20.

        {¶21} The Ketterer court additionally rejected the argument that the Ohio Supreme Court

has required reconvening the original panel in State v. Stumpf, 32 Ohio St.3d 95, 512 N.E.2d 598

(1987), State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988), and State v. Filiaggi, 86 Ohio

St.3d 230, 1999-Ohio-99, 714 N.E.2d 867. The Ketterer court found that these cases did not

support Ketterer’s argument because they did not involve petitions for postconviction relief.

        {¶22} The second assigned error is without merit.

                      Denial of Claims that the Death Penalty Violates the
                              Constitution and International Law

        {¶23} Obermiller next argues that the trial court erred in overruling his second claim for

relief, that argues that the death penalty violates international law.   In his fourth claim for relief,

that the death penalty violates the Constitution of the United States and the Ohio Constitutions.

        {¶24} We note that in the direct appeal, the Ohio Supreme Court rejected Obermiller’s

various constitutional challenges to the death penalty and rejected the argument that the death

penalty violates international law. See Obermiller I, 147 Ohio St.3d 175, at ¶ 111. These

claims, and any related claims, are now barred by res judicata. Perry, 10 Ohio St.2d at 181, 226

N.E.2d 104.

        {¶25} Moreover, the Ohio Supreme Court has repeatedly rejected numerous

constitutional challenges to Ohio’s death penalty process. See State v. Beasley, 153 Ohio St.3d

497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 228, citing State v. Kirkland, 140 Ohio St.3d 73,
2014-Ohio-1966, 15 N.E.3d 818, ¶ 106-120. In Kirkland, the court rejected claims that the

Ohio death penalty statutes result in arbitrary and unequal punishment, leads to arbitrary

imposition of the death penalty, utilizes unreliable sentencing procedures, burdens a defendant’s

right to a jury trial, is imposed in a racially discriminatory manner, is unconstitutionally vague,

and does not provide for meaningful proportionality and appropriateness reviews. Accord State

v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 183.             See also State v.

Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 103 (rejecting arbitrariness

challenge, and claims that death penalty is unconstitutional because it is neither the least

restrictive punishment nor an effective deterrent, pursuant to State v. Jenkins, 15 Ohio St.3d 164,

169, 473 N.E.2d 264 (1984)); State v. Waddy, 10th Dist.          Franklin No. 96APA07-863, 1997

Ohio App. LEXIS 2542 (June 10, 1997) (rejecting claim, based upon study by Professor Hans

Zeisel, that capital jurors do not understand their responsibilities and apply inaccurate standards);

State v. Buell, 22 Ohio St.3d 124, 138, 489 N.E.2d 795 (1986) (rejecting the claim that R.C.

2929.03(D)(1) improperly utilizes presentence investigations requested by a defendant);

Mammone (rejecting the claim that R.C. 2929.03(D)(1) improperly utilizes presentence

investigations requested by a defendant).

       {¶26} Additionally, Ohio courts have repeatedly held that Ohio’s death penalty does not

violate international law. Beasley at ¶ 228; Mammone; State v. Short, 129 Ohio St.3d 360,

2011-Ohio-3641, 952 N.E.2d 1121, ¶ 137-138; State v. Craig, 110 Ohio St.3d 306,

2006-Ohio-4571, 853 N.E.2d 621, ¶ 127.

       {¶27} Therefore, the fourth assigned error lacks merit.



                 Discovery and Relief on Challenge to Grand Jury Foreman
       {¶28} Obermiller next argues that the trial court erred in overruling his fourth claim for

relief in which he argues that the foreman of the grand jury that initially indicted him (issuing a

13-count indictment alleging capital murder and other offenses) was African-American, but the

foreman of the second grand jury that indicted him (in a 19-count indictment that alleged capital

murder and other offenses) was Caucasian, and his conviction is based upon the second

indictment.

       {¶29} Evidence as to the manner by which the grand jury foreperson was chosen could

have been sought prior to Obermiller’s trial.       State v. Jackson, 11th Dist. Trumbull No.

2004-T-0089, 2006-Ohio- 2651, ¶ 68.

       {¶30} In any event, in State v. Hughbanks, 1st Dist. Hamilton No. C-010372,

2003-Ohio-187, the court explained this challenge as follows:

       If a grand-jury foreperson is selected from within the ranks of a properly
       constituted grand jury, and the foreperson’s role is essentially ministerial,
       purposeful discrimination in the selection of a grand-jury foreperson will not
       provide a basis for reversing a conviction or dismissing an indictment. See
       Hobby v. United States (1984), 468 U.S. 339, 344, 104 S.Ct. 3093, 82 L.Ed.2d
       260. If, on the other hand, the foreperson is selected from outside the system
       used to compose the balance of the grand jury, but possesses the same voting
       power as the other grand jurors and takes on, by virtue of the status of foreperson,
       duties that are merely ministerial in nature, we must treat a claim of
       discrimination in the selection of the grand-jury foreperson as one alleging
       discrimination in the composition of the grand jury itself. See Campbell v.
       Louisiana (1998), 523 U.S. 392, 396-397, 118 S.Ct. 1419, 140 L.Ed.2d 551.

       To prove purposeful discrimination in the selection of grand jurors, the accused
       must demonstrate that the procedure employed to select the grand jurors resulted
       in “substantial underrepresentation” of an “identifiable group.” To show
       substantial underrepresentation, and thus establish a prima facie case of
       purposeful discrimination, the accused must (1) “establish that the group is one
       that is a recognizable, distinct class, singled out for different treatment under the
       laws, as written or as applied,” (2) prove “the degree of underrepresentation * * *,
       by comparing the proportion of the group in the total population to the proportion
       called to serve as grand jurors, over a significant period of time,” and (3) support
       “the presumption of discrimination raised by the statistical showing" with proof
       that “the selection procedure * * * is susceptible of abuse or is not racially
       neutral.”     Once the defendant has established a prima facie case of
        discriminatory purpose, the burden shifts to the state to rebut that case. Id. at
        494-495, 97 S.Ct. 1272.

        Hughbanks offered in support of his petition evidence to show that
        African-American and female residents of the county were “seriously
        underrepresented” as grand-jury forepersons. The record is unclear, however,
        concerning the precise procedure employed by the county to select the foreperson
        for the grand jury that indicted him. And Hughbanks presented no evidence that
        that procedure, whatever its particulars, resulted in substantial underrepresentation
        of either African-Americans or women on his grand jury or on grand juries over a
        significant period of time.

        Thus, the evidence offered in support of the fourth claim failed to establish a
        prima facie case of purposeful discrimination in the selection of grand jurors.

Id. at ¶ 35-39.

        {¶31} In this matter, the record is unclear as to how the grand jury foreman was selected,

and there has been no evidence that the procedure employed by the county to select the

foreperson resulted in substantial underrepresentation of either African-Americans or women on

his grand jury or on grand juries over a significant period of time.    Obermiller merely asserted

that the first foreman, who presided over the grand jury that issued capital murder charges, was

African-American, and the second foreman, who also presided over a grand jury that issued

capital charges, was Caucasian.    Accordingly, the trial court properly rejected this claim.

        {¶32} The fifth assigned error is without merit.

                              Discovery and Relief on Brady Claim

        {¶33} In his sixth assigned error, Obermiller asserts that the trial court erred in denying

his sixth claim for relief that asserted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963), and in denying discovery on this claim.             In support of this

assigned error, Obermiller argues that the prosecuting attorney’s office “has a history [of]

suppressing material evidence,” and other courts have determined that the office “suppressed
material evidence in other homicide investigations.” In opposition, the state asserts that this

claim is speculative and that it provided Obermiller with “open file” discovery.

          {¶34} Under Brady, the suppression by prosecution of evidence favorable to an accused

upon request violates due process where evidence is material either to guilt or to punishment,

irrespective of good faith or bad faith of prosecution. Id. at 87.

          {¶35} However, “mere speculation is not sufficient to sustain a Brady claim.” Lang v.

Bobby, N.D.Ohio No. 5:12-CV-2923, 2015 U.S. Dist. LEXIS (Mar. 27, 2015), citing

Cunningham v. Wenatchee, 345 F.3d 802, 812 (9th Cir.2003). Further, the trial court was not

required to examine the prosecutor’s file based on speculation that the prosecutor might have

withheld exculpatory evidence. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873

N.E.2d 1263, ¶ 123, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d

1032, and State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678.

          {¶36} The sixth assigned error lacks merit.

                       Discovery and Relief on Ineffective Assistance Claim

          {¶37} In the seventh and tenth assigned errors, Obermiller asserts that the trial court erred

in denying his claims that he was denied effective assistance of trial counsel during the pretrial,

trial, and mitigation phases, and also erred in denying him factual development of these claims.

          {¶38} A claim of ineffective assistance of counsel was raised in Obermiller’s direct

appeal.     Obermiller I, 147 Ohio St.3d 175, at ¶ 82-92.         In rejecting this claim, the Ohio

Supreme Court noted that defense counsel filed approximately 30 pretrial motions (including a

motion to suppress Obermiller’s statements),“hired a defense investigator, a mitigation expert,

and a psychologist to evaluate Obermiller’s competency, and obtained numerous documents

regarding Obermiller’s history.” The court held:
       Given all of the circumstances, Obermiller has not demonstrated that defense
       counsel’s performance was constitutionally deficient. The record is replete with
       evidence that Obermiller’s objective was to plead guilty as charged and to offer no
       mitigation during sentencing. Obermiller instructed his counsel to refrain from
       objecting, cross-examining the state’s witnesses, offering opening statements and
       closing arguments during both phases, and offering any mitigating evidence.
       Had defense counsel ignored Obermiller’s instructions, cross-examination and
       other tools of advocacy might have interfered with Obermiller’s desire to present
       no defense.

Id. at ¶ 91. Therefore, res judicata bars these claims.

       {¶39}       In any event, a “defense attorney’s failure to reasonably investigate a

defendant’s background and present mitigating evidence * * * at sentencing can constitute

ineffective assistance,” but a petitioner cannot establish prejudice resulting from counsel’s failure

to conduct a thorough investigation when the petitioner refuses to allow the presentation of any

mitigating evidence at the sentencing hearing. Henness v. Bagley, 644 F.3d 308, 323 (6th

Cir.2011), citing Schriro v. Landrigan, 550 U.S. 465, 476-477, 127 S.Ct. 1933, 167 L.Ed.2d 836

(2007). Accord Coleman v. Mitchell, 244 F.3d 533, 545 (6th Cir.2001) (“An attorney’s conduct

is not deficient simply for following his client’s instructions.”).

       {¶40}      Accordingly, this claim is without merit.

       {¶41} The seventh and tenth assigned errors lack merit.

                        Discovery and Relief on Challenge to Guilty Plea

       {¶42} In the eighth assigned error, Obermiller asserts that the trial court erred in denying

his claim challenging the voluntariness of his guilty plea.      He maintains that he suffered from

mental illness so he could not understand the nature of his plea. He also complains that the trial

court erred in denying him factual development of this claim.

       {¶43} In his direct appeal, Obermiller maintained that the trial court erred in denying his

motion to suppress and that this ruling “tainted his decision to plead guilty to the charges against

him.” Obermiller I, 147 Ohio St.3d 175, at ¶ 54. The Ohio Supreme Court specifically noted
that “Obermiller has not challenged his guilty plea on appeal.” Id. at ¶ 56. Accordingly, this

claim, although not explicitly raised in the direct appeal, could have been raised, and it is

therefore barred by res judicata. Moreover, as noted by the trial court:

       [T]he transcript directly refutes [Obermiller’s] claims. The Court advised
       [Obermiller] of his rights and conducted an in-depth colloquy with [Obermiller]
       about any medications he was taking and the seriousness of his decision. * * *
       [On the morning of the plea, the Court asked Obermiller about any drugs that
       could alter his thinking. Obermiller] informed the Court that he was on
       Neurontin and Remeron * * * “for mental health reasons.” * * *[Obermiller]
       responded that he had not received any medication on the day of his plea.
       Furthermore [Obermiller] agreed that he had been on the medication long enough
       that his body had adjusted to it. Upon being asked by the Court to further
       consult with his attorneys regarding the decision that he was making, [Obermiller]
       responded, “We have been over this already. It’s not going to change my
       decision.”

       {¶44} Finally, we note that the trial court referred Obermiller to the Court Psychiatric

Clinic for a competency evaluation and he was determined to be competent and able to

understand the ramifications of his plea.

       {¶45} Accordingly, the eighth assigned error lacks merit.




     Failure to Grant Relief on the Claim that Obermiller Was Not Competent to Waive
                                         Mitigation

       {¶46} Obermiller next asserts that the trial court erred in rejecting his claim that he lacked

competence to waive a mitigation hearing.     Specifically, he argues that he had been prescribed

Lithium prior to the offenses, but at the time he waived mitigation, he was receiving different

medications that impacted his mental state and caused him to waive the presentation of

mitigating evidence at trial.

       {¶47} In State v. Ashworth, 85 Ohio St.3d 56, 1999-Ohio-204, 706 N.E.2d 1231, the

Ohio Supreme Court held that a waiver of the presentation of mitigating evidence must be
knowing and voluntary, and that to ensure this, the trial court must conduct an inquiry of the

defendant on the record. Id. at paragraph one of the syllabus. The record must affirmatively

demonstrate that (1) the court has informed the defendant of the right to present mitigating

evidence, (2) the court has explained what mitigating evidence is, (3) the defendant understands

the importance of mitigating evidence, (4) the defendant understands the use of mitigating

evidence to offset the aggravating circumstances, (5) the defendant understands the effect of

failing to present mitigating evidence, and (6) the defendant wishes to waive mitigation.    Id. at

62.

       {¶48} In the direct appeal of this case, the Ohio Supreme Court noted that the trial court

conducted an Ashworth hearing prior to accepting Obermiller’s waiver of mitigation and

“reasonably concluded that his decision to waive mitigation was knowing, intelligent, and

voluntary.”   Obermiller I, 147 Ohio St.3d 175, at fn. 3, ¶ 141. The court further noted that

Obermiller was not challenging the Ashworth hearing on appeal. Id. at fn. 3. Accordingly,

this claim is barred by res judicata.

       {¶49} In any event, the record indicates that the trial court fully complied with Ashworth.

 Further, as explained by the trial court:

       [Obermiller] insisted repeatedly that his counsel not put forth any evidence in the
       mitigation phase. Furthermore, as previously stated, [Obermiller] was found
       competent to waive mitigation by the Court Psychiatric Clinic.

       {¶50} Moreover, our review of the record demonstrates that the state’s expert, Dr. Phillip

Resnick, provided the court with a detailed report outlining Obermiller’s history of substance

abuse and psychiatric history.     Dr. Resnick also “systematically screened Mr. Obermiller for

current symptoms of depression, mania * * *, psychosis * * *, posttraumatic stress disorder * * *,

and anxiety disorders[.]” Additionally, Dr. Resnick determined that Obermiller had “insight

into his current situation and [h]is judgment was fair based upon his response to hypothetical
situations.” Obermiller did not have delusions or hallucinations.        Dr. Resnick also remarked

that Obermiller “never changed or regretted his decision to plead guilty,” his decision to waive

mitigation was “firm,” and he has “never changed in his desire to receive a death sentence.” Dr.

Resnick was fully qualified to evaluate whether Obermiller’s prescription medications would

have affected his competency. Accord State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805

N.E.2d 1064, ¶ 30-34. Therefore, this assigned error lacks merit.

                     Failure to Grant Relief on Claim of Cumulative Error

       {¶51} In the eleventh assigned error, Obermiller argues that the trial court erred in

refusing to grant him relief on his claim of cumulative error.

       {¶52} Under the doctrine of cumulative error, a conviction will be reversed when the

cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial

even though each of the errors does not individually constitute cause for reversal. State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 132; State v. Garner, 74 Ohio

St.3d 49, 64, 1995-Ohio-168, 656 N.E.2d 623. However, the doctrine of cumulative error is

inapplicable when the alleged errors are found to be harmless or nonexistent. Id.; State v.

Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 48.

       {¶53} Inasmuch as we have determined that none of the individual claims of error are

well taken, the claim of cumulative error must likewise fail.

       {¶54} The eleventh assigned error lacks merit.

       {¶55} Judgment is affirmed.

       It is ordered that appellee recover of and appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR




                                     APPENDIX

Assignments of Error

       I. The presiding judge abused her discretion when she denied Obermiller relief
       on the first ground for relief.

       II. The presiding judge erred when she denied Obermiller’s motion to reconvene
       the three judge panel.

       III. The presiding judge abused her discretion when she denied Obermiller’s
       postconviction petition without affording him an opportunity to conduct
       discovery.

       IV. The presiding judge abused her discretion when she overruled the second
       and fifth grounds for relief.

       V. The presiding judge abused her discretion when she denied Obermiller
       factual development and relief on the fourth ground for relief.

       VI. The presiding judge abused her discretion when she denied Obermiller
       factual development and relief on the sixth ground for relief.
VII.   The presiding judge abused her discretion when she denied Obermiller

factual development and relief on the eighth ground for relief.

VIII. The presiding judge abused her discretion when she denied Obermiller
factual development and relief on the ninth ground for relief.

IX. The presiding judge abused her discretion when she denied Obermiller
factual development and relief on the tenth and eleventh grounds for relief.

X. The presiding judge erred when she denied Obermiller Factual development
and relief on the twelfth, thirteenth, fourteenth and fifteenth grounds for relief.

XI. The presiding judge abused her discretion when she denied Obermiller
factual development and relief on the sixteenth ground for relief.
