[Cite as State v. Elmore, 2014-Ohio-3674.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 13-CA-84
PHILLIP L. ELMORE                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Court of Common Pleas, Case No. 02-CR-
                                                   275

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            August 22, 2014

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

KENNETH OSWALT                                     WILLIAM LAZAROW
Licking County Prosecutor                          400 S. Fifth Street, Ste. 301
20 S. Second Street Fourth Fl.                     Columbus, OH 43215
Newark, OH 43055

RANDALL L. PORTER                                  KATHLEEN MCGARRY
Assistant State Public Defender                    Box 310
250 East Broad Street, Ste. 1400                   Glorieta, New Mexico 87535
Columbus, OH 43215-0708
[Cite as State v. Elmore, 2014-Ohio-3674.]


Gwin, P.J.

        {¶1}     Defendant-appellant Phillip L. Elmore appeals the August 30, 2013

Judgment Entry of the Licking County Court of Common Pleas denying his motion for

new trial after an evidentiary hearing. Plaintiff-appellee is the State of Ohio.

                                         Facts and Procedural History

        {¶2}     On June 1, 2002, 47-year-old Pamela Annarino attended her son’s

wedding ceremony and reception. While Annarino was attending these activities,

Elmore broke into her Newark home and waited for her to return. Elmore and Annarino

had previously had a personal relationship.

        {¶3}     After she arrived home, Elmore murdered Annarino by strangling her and

hitting her in the head with a pipe. Elmore then stole Annarino’s purse and fled in her

car. Subsequently, Elmore was convicted of the aggravated murder of Annarino and

sentenced to death. Among the seventeen propositions of law raised by Elmore on his

direct appeal, two concerned ineffective assistance of trial counsel. Proposition of law

XIII concerned counsel’s closing argument; in proposition of law X, Elmore argues that

his counsel provided ineffective assistance during the penalty phase. The Ohio

Supreme Court affirmed Elmore’s conviction and death sentence. State v. Elmore, 111

Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547. [Hereinafter “Elmore I”].

        {¶4}     Elmore filed his petition for post-conviction relief on August 26, 2004. The

petition raised seventeen grounds for relief supported by 50 exhibits numbering 673

pages in length. On September 30, 2004, Elmore amended his petition for post-

conviction relief by adding two additional grounds for relief and two additional exhibits.

State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, ¶7. [Hereinafter
Licking County, Case No. 13-CA-84                                                       3

“Elmore II”]. Elmore raised numerous claims alleging ineffective assistance of trial

counsel. Elmore II, ¶33; ¶39; ¶42; ¶53; ¶64; ¶74; ¶76; ¶99; ¶108; ¶117; and ¶126. This

Court overruled each assignment of error and affirmed the trial court’s denial of

Elmore’s petition for post-conviction relief. The Ohio Supreme Court decline to accept

Elmore’s appeal. State v. Elmore, 111 Ohio St.3d 1492, 2006-Ohio-61712, 857 N.E.2d

1230.

        {¶5}   Elmore proceeded to file a Petition for Writ of Habeas by a Person in State

Custody, 28 U.S.C. 2254. Elmore v. Bobby, S.D.Ohio No. 1:07-cv-776, 2012 WL

4057245(Sept. 14, 2012).

        {¶6}   On August 3, 2011, Elmore filed a Motion for Leave to File a Motion for

New Trial Based on Newly Discovered Evidence (“Motion for Leave"). Elmore's Motion

for Leave was based on information he obtained in his federal habeas corpus litigation.

The gravamen of Elmore’s claim is that his trial attorney Andrew Sanderson convinced

Elmore to reject a plea offer that he had previously agreed to and would have saved his

life, solely because Sanderson needed to participate in two capital jury trials to qualify

for first-chair status under Rule 20 of the Ohio Rules of Superintendence. Elmore v.

Bobby, *1.

        {¶7}   On October 6, 2011, upon the agreement of the parties, the trial court

stayed the proceedings on Elmore's Motion for Leave pending decisions from the United

States Supreme Court in Lafler v. Cooper, __ U.S.__, 131 S.Ct. 1376, 182 L.Ed.2d

398(Oct. 21, 2012) [“Hereinafter Lafler”] and Missouri v Frye, __ U.S.__, 132 S.Ct.

1399, 182 L.Ed.2d 379 (Mar. 21, 2012) [Hereinafter “Frye”]. The stay was lifted after

those decisions were issued on March 21, 2012.
Licking County, Case No. 13-CA-84                                                       4


      {¶8}   On July 19, 2012, the trial court granted Elmore's Motion for Leave to File

a Motion for New Trial and scheduled an evidentiary hearing on the Motion for New

Trial. The evidentiary hearing occurred on February 19-20, 2013. Thereafter, the Court

granted the parties an opportunity to submit post-hearing briefs. The following facts

were established at the evidentiary hearing on Elmore’s motion for a new trial and

adopted by the trial court in its August 30, 2013, Judgment Entry overruling Elmore’s

motion.

                               A. The trial phase of Elmore’s case.

      {¶9}   Because this was a capital case, the trial court appointed two attorneys to

represent Elmore as required by Rule 20 of the Ohio Rules of Superintendence. J.

Michael King was appointed as lead counsel and Andrew Sanderson was appointed as

co-counsel. At the time, Sanderson had been certified as capital trial co-counsel, but not

as lead counsel under Rule 20. The only requirement Sanderson needed to obtain in

order to become lead counsel certified was to participate as co-counsel in two capital

jury trials. King and Sanderson were appointed by the trial court on June 20, 2002, and

June 21, 2002, respectively.

      {¶10} Elmore did not have a strong case. Evidence of his guilt was

overwhelming, and the victim died a gruesome death. After a series of pre-trial

conferences, the resolution of a motion to suppress evidence in the state's favor, and

informal inquiries about the possibility of a negotiated plea, the lead prosecutor

extended a plea offer to Elmore's lead counsel. In a letter dated January 22, 2003, the

state offered life without parole on count one (aggravated murder) and [the state] “would
Licking County, Case No. 13-CA-84                                                                      5


agree not to seek the death penalty" [Def's Ex. 5]. In addition, the state would seek

maximum consecutive sentences on the remaining counts.

        {¶11} On February 3, 2003, King met with Elmore at the Licking County Justice

Center to discuss the offer. Sanderson was unable to attend this meeting. At the

conclusion of that meeting, Elmore indicated that he wished to accept the offer and

indicated his desire to do so by writing on the bottom of that letter. "O K 2-3-03 /s/

Phillip Elmore" [Def's Ex 5]. After this meeting, King advised the trial court that Elmore

had accepted the state's offer and the case was scheduled for a change of plea and

sentencing hearing before a three judge panel on February 13, 2003. Judge Jon R.

Spahr1 presided over Elmore’s trial. (2T. at 316).2 The two other judges would have

been Judge Gregory Frost and Judge Robert Hoover. (2T. at 329). A three-judge panel

was necessary because this was a capital case. (1T. at 165).

        {¶12} When King arrived at court that morning, he met Sanderson who had just

spoken to Elmore. Sanderson told King that there was a problem with the case and that

Elmore no longer wished to accept the plea offer. King then spoke with Elmore and

confirmed that he did not wish to proceed with the plea.

        {¶13} On March 31, 2013, King filed a motion to withdraw from the case, which

was granted the same day On April 26, 2003, Brian Rigg was appointed lead counsel as

King's replacement.

        {¶14} Throughout the next several months, Rigg and Sanderson prepared

Elmore’s case for trial. However, at various times, both Rigg and Sanderson

approached Elmore about negotiating a plea agreement.

        1
         Judge Spahr retired in 2009.
        2
         References to the transcript are to the Hearing on Elmore’s Motion for a New Trial, February 19,
2013 [“1T.”] and February 20, 2013 [“2T.”], unless otherwise noted.
Licking County, Case No. 13-CA-84                                                       6


       {¶15} Sanderson wrote Elmore on March 11, 2003, outlining the steps he would

take to reinitiate plea discussions if that was Elmore’s desire. According to Rigg, at

times Elmore may have been close to reconsidering a life term if the prosecutor agreed,

but in the end Elmore would not agree to a sentence that did not have at least the

possibility of him becoming eligible for parole.

       {¶16} Elmore's case eventually proceeded to trial. During the mitigation phase,

Elmore gave an unsworn statement to the jury during which he stated, "I'm truly sorry

for what I have done. But I feel that I deserve the worst punishment that there is. That's

one thing I agree with the prosecutor.” After the mitigation hearing, the jury

recommended death and the Court sentenced him to death.

                            B. Newly Discovered Evidence.

       {¶17} Elmore's Motion for New Trial is based on evidence that came to light in

early 2011 during his federal habeas corpus litigation. Elmore's attorneys took the

deposition of the attorneys involved in Elmore's trial, including Shanda Behrens, a

former associate of Sanderson's.

       {¶18} During Behrens deposition, she alleged that Sanderson felt compelled to

persuade Elmore to reject the plea offer of life without parole because Sanderson

needed the case to go to trial in order to become eligible for lead counsel certification

under Rule 20.

       {¶19} Elmore's defense team also obtained an affidavit from Leigh Bayer,

another former associate of Sanderson's, who assisted in the trial of a second capital

case about a year after Elmore's. Bayer made similar allegations, i. e., that Sanderson
Licking County, Case No. 13-CA-84                                                       7


was obsessed with having the case go to trial in order to complete his requirements to

obtain lead counsel certification.

        {¶20} In light of these allegations, the court scheduled an evidentiary hearing on

Elmore's Motion for New Trial This hearing occurred on February 19 - 20, 2013.

                              C. Hearing on Motion for New Trial.

        1. Shanda Behrens – Law Clerk/Associate Attorney

        {¶21} Elmore's claim that Sanderson had a conflict of interest rests primarily on

the testimony of Shanda Behrens. Behrens was working as an intern in Sanderson's

office in June 2002, when Sanderson was appointed to represent Elmore. At the time,

she had just graduated law school, sat for the bar exam, and was waiting on her results.

She became licensed to practice law in November 2002, and continued to work there as

an attorney. One of Behrens' assignments during that period was to assist Sanderson

on the Elmore case. Typically, her duties included .visiting Elmore at the jail and

speaking with members of his family. She also provided other assistance in preparation

for trial.

        {¶22} In early 2003, Behrens learned that the prosecutor’s office extended a

plea offer to Elmore. After King received the written offer, both he and Sanderson were

supposed to visit Elmore to discuss the offer. Sanderson was not able to attend so King

met with Elmore alone. After the meeting, King advised Sanderson that Elmore

indicated he would accept the offer. Behrens testified that after Sanderson became

aware that Elmore had accepted the plea offer, Sanderson indicated that he wanted

Elmore's case to go to trial. Specifically, she stated that Sanderson,
Licking County, Case No. 13-CA-84                                                         8


              [W]anted to be eligible for his first chair certification and indicated

       that this would have been his first trial. You have to have two trials to get

       — to apply for your first chair certification and that he needed to have this

       trial in order to get on the road to doing that. [2T. at 207].

       {¶23} Behrens testified that Sanderson was preoccupied with his desire to

become lead counsel eligible under Rule 20 and that he mentioned it several times,

              It was an ongoing discussion. We talked about the case all the

       time, of course I specifically recall him say to me, I need Mr. Elmore to

       have a trial in this matter. I need my first chair certification. [2T. at 209].

       {¶24} However, Behren acknowledged that she never heard Sanderson talk

Elmore out of the plea offer or even advise Elmore that he should proceed to trial in any

of the conferences she attended between Sanderson and Elmore. She acknowledged

that her primary function during her meetings with Elmore was to act as a liaison

between Elmore and Sanderson and that most of her involvement in the case consisted

of meeting with Elmore a few of times a week. She also acknowledged that Elmore

might have indicated that he did not have anything to lose by going to trial, because he

would die in prison anyway and that "if they want to kill me, I might as well have a trial”

[2T. at 218-219].

       2. Andrew Sanderson - Elmore’s trial co-counsel.

       {¶25} Sanderson testified that Elmore had consistently refused to consider

pleading to anything that would result in a life sentence without the possibility of parole,

(1T. at 79). Sanderson could not recall meeting with Elmore after he learned Elmore

would take the offer, but according to Sanderson's billing records, Sanderson met with
Licking County, Case No. 13-CA-84                                                      9


Elmore briefly on January 31, 2003, after the date the written offer was extended to

King, but before, Elmore agreed to plead on February 3, 2003. Sanderson also

acknowledged that his billing records showed he met with Elmore alone on February 11,

2003, after Elmore said he would accept the offer, but before the scheduled court date

of February 13, 2003.

      {¶26} After Elmore refused to plead on February 13, 2003, Sanderson testified

that Elmore claimed that he accepted the offer to “get King off his back “[1T. at 80-81].

Sanderson did not dispute that he may have told Behrens he hoped the case went to

trial. He testified that he enjoyed trial work. However, he claimed that he never talked

Elmore out of the plea,

      Q.      If Ms.    Behrens were to come to court and say that you were

      interested in Mr. Elmore's case going to trial, would you have any reason

      to dispute that?

      A.      Not a one.

      Q.      And if Ms. Behrens were to come to court and say that you were

      interested in Mr. Elmore's case going to trial because it would ultimately

      lead to your first chair certification, would you have any reason to contest

      that?

      A.      No, but it presents it in a vacuum.

      Q.      Okay Would you — do you ever recall telling Ms. Behrens that you

      needed to talk Mr. Elmore out of pleading so that you could have the trial?

      A.      I would never have said that to her.

      1T. at 98. Sanderson further testified,
Licking County, Case No. 13-CA-84                                                       10


      Q.        On February 13, 2003, the day on which the three judge panel

      hearing was set, you and Michael King and Phillip Elmore met privately in

      Judge Spahr’s jury room. Is that correct?

      A.        I believe so, yes.

      Q.        At that time, Phillip Elmore made the decision not to accept the

      state’s proposed resolution. Is that correct?

      A.        I would assume so, yes.

      Q.        At that time, you did not make Phillip Elmore reject the State’s

      proposed resolution, did you?

      A.        No, I did not.

                                                ***

      Q.        If Elmore gave you the authorization, you would have attempted to

      convince the prosecutor to return to the original deal, the life in prison,

      back on the table, correct?

      A.        I would have, and I have every expectation I could have gotten it

      back on the table.

      Q.        At no point thereafter did Elmore give you authorization to ask the

      prosecutor to reinstate the life without parole recommendation, correct?

      A.        Not that I recall.

1T. at 107-108. On March 11, 2003, Sanderson wrote a letter to Elmore stating,

                I am writing in response to your letter, received by my office today,

      March 7, 20033. Needless to say, I was disappointed in your words,

      thoughts and emotions. I am sorry you have reached this decision, but, as
      3
          Elmore’s March 7, 2003 has not been recovered.
Licking County, Case No. 13-CA-84                                                     11


        I have told you in the past, I would respect the same and do what I could

        to bring your desires to fruition. That being said, I am unclear from your

        letter what it is exactly you want me to try and accomplish. You expressed

        in your letter that you wished to plead guilty to “all counts,” but did not

        elaborate on what you meant by that. Do you want me to try and convince

        the prosecutor to return the original deal, the life in prison, back to the

        table or are you representing that it is your desire to plead to all counts

        even if the specification is included and, in doing so, waive mitigation,

        effectively pleading to the death sentence?

                                           ***

              I have contacted the prosecutor’s office and provided them with a

        preliminary indication of your renewed desire to plead, but need more

        information from you before I may fully pursue this matter and attempt to

        carry out your wishes.

        3. J. Michael King – Elmore’s Lead Counsel.

        {¶27} J. Michael King indicated that on June 20, 2002, Judge Jon Spahr

appointed him "lead counsel" pursuant to Rule 20, Rules of Superintendence for the

Courts of Ohio, on Phillip Elmore's capital case.

        {¶28} King indicated that as a general rule Licking County does not engage in

plea bargaining. (1T. at 127). Although he has no specific recollection, King was sure

that either he or Sanderson nevertheless approached the prosecutor about a possible

plea.
Licking County, Case No. 13-CA-84                                                    12


        {¶29} King received a letter dated January 22, 2003 from Assistant Prosecutor

Glenn Rossi offering a resolution. Pursuant to the agreement, Elmore would have pled

guilty before a three-judge panel to all charges. The state was offering life without

parole on the aggravated murder charge and the state would agree not to seek the

death penalty. The state further offered the maximum consecutive sentences on all

other charges. The offer was expressly made contingent upon the acceptance of the

terms by the trial court.

        {¶30} King conveyed the offer to Sanderson, who at King's request was able to

get an extension of the cut-off date. (1T. at 132-33). Although King and Sanderson

originally planned to visit Elmore together, King ultimately met with Elmore alone after

receiving a phone message that Sanderson had gotten tied up in court. King conveyed

this offer to Elmore who accepted the agreement, initialing and dating the written offer

from the prosecutor to confirm his assent. The case was then set for a hearing before a

three-judge panel at which time Elmore was to enter his guilty plea.

        {¶31} The morning of the hearing, King was met in the hall outside the

courtroom by his co-counsel, Andrew Sanderson. (1 T. at 142). Sanderson informed

King that Elmore had changed his mind, and would no longer accept the plea offer. King

and Sanderson then met privately with Elmore in Judge Spahr’s jury room. King

testified,

        Q.    During this private conference with Elmore, you asked Elmore if he

        had changed his mind about the proposed resolution. Is that correct?

        A.    Yes.
Licking County, Case No. 13-CA-84                                                    13


      Q.     In response, Elmore acknowledged that he changed his mind. Is

      that correct?

      A.     Yes.

      Q.     Andrew Sanderson did not impair or restrict your dialogue with

      Elmore. Is that correct?

      A.     At that point, yeah. He didn’t. I don’t recall Andrew saying anything

      at that point in time.

      Q.     When you asked questions of Elmore, Elmore gave his own

      responses. Is that correct?

      A.     Yes.

                                          ***

      Q.     You reminded Elmore that if his decision was to reject the proposed

      resolution, you would withdraw from the case. Is that correct?

      A.     Correct.

      Q.     You were satisfied that Elmore was cogent and lucid. Is that

      correct?

      A.     Yeah, didn’t have any question about that.

      Q.     Even though you disagreed with Elmore’s decision, you were

      satisfied that Elmore did not misunderstand the options before him. Is that

      correct?

      A.     He should have. I mean, I don’t know what he understands, but we

      certainly explained the various penalties and options to him throughout

      this—certainly throughout my representation of him.
Licking County, Case No. 13-CA-84                                                   14


      Q.     Were you then—were you then satisfied that Elmore did not

      misunderstand the options before him?

      A.     It was my belief that my client at that time knew what the penalties

      were and what his options were.

      Q.     Even though you disagreed with Elmore’s decision, you were

      satisfied that Elmore himself did not want to go through with the proposed

      deal. Is that correct?

      A.     Correct.

1T. at 148-149.

      4. Brian Rigg – Successor Lead Counsel

      {¶32} Brian Rigg testified that he was appointed lead counsel in Phillip Elmore's

capital case on April 15, 2003 after Elmore withdrew his guilty plea and former lead

counsel J. Michael King filed a motion to withdraw from the case. Rigg testified that

because of the death specifications a plea before a single judge was not possible. [1T.

at 165] A three-judge panel would be convened. At the time of Elmore’s trial, in a plea

proceeding before a three-judge panel the state remained obligated to show the three-

judge panel there was sufficient evidence to justify a guilty plea to aggravated murder

and the death penalty specifications. [Id.] The defense would be required to present

mitigation evidence. [1T. at 166] The ultimate sentence would be determined by the

three-judge panel who would not be bound to follow any recommendation the state may

have made. [1T. at 166-167] Rigg further testified,

             Q.     In fact, a couple weeks before the trial started, just a few

      weeks before the trial started, Elmore gave you reason to believe that he
Licking County, Case No. 13-CA-84                                                     15


      was seriously considering taking a plea to resolve the case short of trial.

      Isn’t that correct?

                                            ***

             A.       Yes. I thought up until – yeah, maybe a few weeks before

      trial that we were getting close to maybe a plea.

             Q.       In fact, Elmore told you after he – he would need to talk to

      his family by telephone and that he would let you know whether he was

      going to take that plea or at least give you authorization to approach the

      State. Is that correct?

             A.       Yes, I remember that conversation, because his family lived

      out of state.

             Q.       Now according to your deposition, a couple weeks before

      the trial started, you were, quote, a little bit taken aback that Elmore

      wanted to go forward with the trial, because you thought it was going to be

      a plea. Is that correct?

             A.       Yeah, I thought we were getting close to –Mr. Elmore was

      getting close to wanting to take a plea, yes.

             Q.       But it was Elmore’s decision to, ultimately, reject that plea

      even shortly before the trial—even the idea of approaching the State?

             A.       It was his decision, yes.

                                            ***
Licking County, Case No. 13-CA-84                                                         16


             Q.      And in all you-although you may have disagreed with

      Elmore’s decision, you were of the belief Elmore was competent to make

      that decision. Isn’t that correct?

             A.     Yes.

             Q.      And if you thought Elmore was not competent to make that

      decision, you would advise Judge Spahr. Is that correct?

             A.     Yes

                                           ***

             Now if you thought Elmore was getting advice not to take a plea

      offer, do you believe Elmore would have told you that?

             A.     Yeah, I’d hope so. Yeah.

             Q.      And he never told you that, did he?

             A. Mr. Elmore, no.

1T. at 169-172.

      5. Kenneth Oswalt - Trial Prosecutor.

      {¶33} Kenneth Oswalt testified that he was involved in almost all of the pretrial

proceedings in Elmore's case, but was not one of the trial prosecutors because he had

a conflict that week. Bob Becker, the elected prosecutor at the time of Elmore's trial, and

Assistant Prosecutor Glenn Rossi, represented the State of Ohio at Elmore's jury trial.

      {¶34} Oswalt further testified that the policy of the Licking County Prosecutor's

Office not to initiate plea negotiations in criminal cases. (2T. at 246-48). If the defense

team indicates that a defendant is amenable to accepting a negotiated plea, the

Prosecutor's Office will consider a possible plea. In a capital case, the Prosecutor's
Licking County, Case No. 13-CA-84                                                    17


Office needs to talk to the victim's family before agreeing to a negotiated plea. Oswalt

described the state’s proposed resolution in Elmore’s case,

             It means that if you enter a plea to everything in this indictment

      including a specification -- actually four specifications any one of which

      technically makes you eligible for the death penalty, we would go on

      record and not -- and although it's not specifically spoken in here,

      represent to the Court not only are we not seeking the death penalty, that

      we are okay with life without parole, we represent that's also the position

      held by the victim's family if he pleads guilty. Okay? That is we are no

      longer insisting upon the death penalty if he pleads guilty, accepts

      responsibility, we'll be completely - accept because we get closure, we

      being the government, but more so the family, we get closure; we get a

      defendant acknowledging his guilt.

1T. at 172. Oswalt then explained what steps would occur after the plea,

             Q.     If Elmore would plead guilty to all the charges, who would

      make the final decision about the sentence, the prosecutor's office or the

      three judge panel?

             A.     Three judge panel.

             Q.     Why would that be?

             A.     Because as any plea agreement case, plea bargained case,

      the judge always has -- the Court always has the ability to say, "No, I'm

      not bound by it," and here we had three judges, so we had a situation

      where three judges ultimately would be called upon to decide whether
Licking County, Case No. 13-CA-84                                                         18


      they would accept a recommendation presupposing they accepted the

      plea. If Mr. Elmore came in and waffled about what he wanted to do and

      ambivalent, the Court may have said, "I'm not even taking the plea," and

      we wouldn't have gotten to sentencing issue.

      Q.     If Elmore would plead guilty to all the charges and the prosecutor's

      office agreed not to seek the death penalty, would it still be legally

      possible for Elmore to be sentenced to death by a three judge panel?

      A.     Legally possible, yes.

      Q.     And why is that?

      A.     Because with a death penalty specification remaining on the

      indictment, with a finding of guilt to that specification, either by trial, or as

      we're talking here, by plea, an acceptance of that plea after hearing

      testimony, under Ohio law, that's an option. Period. Whether it's an option

      the Court chooses to follow or not is another story, but it is an option.

      Q.     And turning back to that letter, the letter says, "This offer is

      contingent upon acceptance of the term -- these terms by the Court." What

      does that mean?

      A.     Intention is if for some reason, one or more of the judges wanted to

      do something less than life without parole, 30 years to life, that we would

      have to have some assurance that the Court was not going to give some

      minimum sentence. If we got some indication the Court wasn't going to do

      life without parole, then we were going to move the offer off the table.

2T. at 266-268.
Licking County, Case No. 13-CA-84                                                      19


       {¶35} Rossi subsequently advised Oswalt that Elmore had accepted the offer,

and provided him with a copy of King's acceptance letter. (2T. at 269). A hearing was

scheduled before a three-judge panel at which time Elmore was scheduled to formally

enter his plea. (Id. at 273-74). Oswalt recalls that the three judges were ready to

proceed that morning, but that no court hearing actually took place. They were "advised

that Elmore had changed his mind." 2T. at 274.

       {¶36} Oswalt further testified that between February 13, 2003 (the date the

three- judge panel hearing was set) until the time of trial, neither Andrew Sanderson nor

Brian Rigg requested reinstatement of the resolution proposed in Rossi's letter to King.

       6. Glenn Rossi - Trial Prosecutor

       {¶37} Glenn Rossi testified that he was assigned as an assistant prosecuting

attorney in Phillip Elmore's capital case, and that he and former Licking County

Prosecutor Robert Becker represented the State of Ohio at Elmore's jury trial. [2T. at

283]

       {¶38} Rossi further testified that he prepared and sent to Elmore's lead counsel,

J. Michael King, a written plea offer. Rossi indicated that he was subsequently informed

in writing by King that Elmore had accepted the offer. A hearing date was set before a

three-judge panel at which time Elmore was scheduled to plead guilty and be

sentenced. The morning of the scheduled hearing, Andrew Sanderson informed Rossi

"his client was not going to proceed with the plea.” (2T. at 288).

       {¶39} Rossi indicated that he believed Sanderson contacted either Oswalt or

him about a possible plea both before and after the February 13, 2003 three-judge

panel hearing date. 2T. at 288-289. Rossi indicated that both Sanderson and Rigg had
Licking County, Case No. 13-CA-84                                                        20

contacted him about renewing the plea offer. (Id. at 305). However, on cross-

examination Rossi indicated that he was not sure if Sanderson and/or Rigg had talked

to him, talked to Oswalt, or talked to Becker. He did, however, recall that overtures were

made about renewing the plea offer. (2T. at 306-07).

       7. Jon Spahr - Trial Judge

       {¶40} Retired Licking County Common Pleas Judge Jon Spahr indicated that he

was the presiding judge in Elmore's capital case. [2T. at 317] 53)    In Elmore's case,

Judge Spahr indicated that the case had been scheduled for a three- judge panel,

meaning the parties had reached some sort of agreement on the case. Judge Spahr

testified the two other judges would have been Judge Gregory Frost and Judge Robert

Hoover. (2T. at 329). The hearing never took place because Elmore did not enter a jury

waiver. (Id. at 330). He did not learn the reason that the plea hearing did not take place.

(Id. at 334).

       {¶41} Judge Spahr further indicated that he has known Andrew Sanderson for

more than ten years, and that he would see him weekly when he was sitting as a

Common Pleas Judge. (2T. at 342). He also had contact with other attorneys who dealt

with Sanderson on a professional basis. (Id. at 343). It was Judge Spahr's opinion that

Sanderson has always been truthful and honest. (Id.).

       {¶42} Judge Spahr stated that he recalled a discussion about resolving Elmore's

case without a trial, although he did not "recall the particulars." (2T. at 326). He further

stated,

                I know that a judge presiding over a death penalty case is always

       interested in whether or not there will be a plea to it, because death
Licking County, Case No. 13-CA-84                                                     21


        penalty cases are tough on everybody, and if it can be resolved by a plea,

        a judge is going to, you know, to explore that possibility.

(Id.). He also indicated that "a judge [does not] want [] to go through a death penalty

case if it can be avoided," and that he would personally give deference to any

agreement the parties came up with, as long as the defendant also okayed it. (Id. at

347).

        8. Intervenor Roland T. Davis

        {¶43} On February 19, 2013, the first day of the new trial hearing, attorney

Randall Porter entered an appearance in the case on behalf of Sanderson's former

client, and Porter’s current client, Roland Davis. Like Elmore, Davis had been found

guilty by a Licking County jury and sentenced to death. Porter informed the court that he

had recently learned that testimony might be elicited at the hearing about the Davis

case, and he wanted the court to know that Davis had not waived his statutory attorney-

client, privilege or his right to confidentiality under Rule 1.6 of the Ohio Rules of

Professional Conduct.

        {¶44} Elmore argued that the testimony of Leigh Bayer would have provided

crucial support for Elmore's motion for new trial. She worked at Sanderson's office after

Behrens left, and would have been able to provide an independent perspective

regarding the office workings and Sanderson's widely known and overwhelming desire

to become first chair eligible. She would also have been able to testify that Sanderson

was finally able to achieve his coveted goal by co-counseling on the Davis case, an

achievement that further supports Behrens' assertion that Sanderson expressed a

willingness to do whatever was required to achieve his goal.
Licking County, Case No. 13-CA-84                                                                 22


          {¶45} The trial court conducted a voir dire examination of the witness out of the

hearing of either party and determined that Bayer's testimony in response to certain

questions could violate the attorney client privilege and would not be admitted at the

hearing.4

          {¶46} After the conclusion of the evidentiary hearing, the parties submitted post-

hearing briefs. On August 30, 2013, the trial court filed a nunc pro tunc Judgment Entry

denying Elmore’s motion for a new trial.

                                       D. The Trial Court’s Decision.

          {¶47} The trial court framed the issue,

                   The issue In this case is whether Elmore is entitled to a new trial

          because one of his lawyers operated under a conflict of interest that

          resulted in his failure to provide effective assistance of counsel during the

          pretrial plea negotiation phase of his trial it is not about whether Elmore's

          trial attorneys - any one or all of them - should have spent more time and

          effort urging him to accept the state's plea offer of life without parole.

          {¶48} The trial court found after reviewing the evidence,

                   The evidence is insufficient to establish an actual conflict of interest

          or that he was serving two masters. At best, the evidence suggested that

          Sanderson's desire to become Rule 20 certified constituted a theoretical

          division of loyalty, but it was not the driving force behind Elmore's case

          going to trial. While it is clear that Sanderson made statements indicating

          a desire or a hope that Elmore's case went to trial, the evidence offered at

          4
              The transcript of Bayer’s in camera testimony was sealed and made part of the record on
appeal.
Licking County, Case No. 13-CA-84                                                       23


      the hearing is insufficient to demonstrate Mr. Sanderson was actually

      representing, furthering, or serving interests different than from those of

      his client.

             The court finds that the decision to go to trial was Elmore's.

      Although, he indicated a willingness to accept the State's offer early in

      2003, Elmore changed his mind when confronted with a very difficult

      decision to either (1) accept life in prison without the possibility -of parole

      and avoid the possibility of the death penalty; or (2) go to trial and have

      the possibility of receiving a sentence that included parole eligibility after

      25 or 30 years but also run the risk of receiving a death sentence.

                                           ***

             Elmore presented no testimony at the hearing on his motion to

      suggest that Sanderson's advice to him somehow caused him to reject the

      plea offer that he apparently had accepted before. Elmore himself was

      completely silent on the matter, and in light of the other evidence

      presented at the hearing, Elmore's silence was deafening.

                                           ***

             Even if The Court were to assume that Sanderson were laboring

      under an impossible conflict of interest because of his desire to obtain first

      chair certification, there was no evidence that Sanderson counseled

      Elmore to reject the plea There is absolutely no evidence that Elmore

      based his decision to reject the plea offer on any advice or conduct

      undertaker by Sanderson.
Licking County, Case No. 13-CA-84                                                         24


                                            ***

             Here, Elmore presented no evidence that he would have accepted

      the plea offer but for Sanderson's advice. At most the evidence suggests

      that at some point during the litigation Elmore expressed an intent to

      accept the plea early on, but there was no evidence as to what or who

      motivated him to change his mind. The fact that Sanderson wanted the

      case to go to trial is insufficient to establish causation Elmore's claim that it

      was because of Sanderson's divided loyalties is simply too great of a leap

      to make based on the evidence presented to [sic.] at the hearing.

      {¶49} On January 13, 2014, this Court granted Roland T. Davis’ limited motion

to intervene for the purpose of addressing Elmore’s claims concerning Bayer’s

testimony.

                                      Assignments of Error

      {¶50} Elmore raises three assignments of error,

      {¶51} “I.   TRIAL     COUNSEL'S        CONFLICT       OF    INTEREST       DEPRIVED

APPELLANT OF HIS RIGHT TO THE ASSISTANCE OF COUNSEL AND DUE

PROCESS OF LAW IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND

'FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

      {¶52} “II. PURSUANT TO LAFLER V. COOPER, 132 S.CT. 1376 (2012) AND

MISSOURI Y. FRYE, 132 S.CT, 1399 (2012), APPELLANT ELMORE RECEIVED

INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PLEA BARGAINING STAGE OF

THE PROCEEDINGS AND THE TRIAL COURT'S REFUSAL TO ADDRESS THIS

CLAIM WAS ERROR.
Licking County, Case No. 13-CA-84                                                     25


       {¶53} “III. THE TRIAL COURT ERRED IN ISSUING A BLANKET PROHIBITION

AGAINST THE TESTIMONY OF DEFENSE WITNESS LEIGH BAYER IN VIOLATION

OF APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNTIED STATES CONSTITUTION.”

                                                 I.

       {¶54} In his first assignment of error, Elmore contends that one of his trial

attorneys had a conflict of interest that deprived him of his right to the assistance of

counsel.

       {¶55} We begin by noting that this appeal is from the denial of a motion for a

new trial.

                        A. Standard of Review – Motion for a New Trial

       {¶56} Crim.R.33, which provides the procedure for obtaining a new trial, states

in part,

                                       (A) Grounds

              A new trial may be granted on motion of the defendant for any of

       the following causes affecting materially his substantial rights:

              (1) Irregularity in the proceedings, or in any order or ruling of the

       court, or abuse of discretion by the court, because of which the defendant

       was prevented from having a fair trial;

              (2) Misconduct of the jury, prosecuting attorney, or the witnesses

       for the state;

              (3) Accident or surprise which ordinary prudence could not have

       guarded against;
Licking County, Case No. 13-CA-84                                                         26


              (4) That the verdict is not sustained by sufficient evidence or is

       contrary to law. If the evidence shows the defendant is not guilty of the

       degree of crime for which he was convicted, but guilty of a lesser degree

       thereof, or of a lesser crime included therein, the court may modify the

       verdict or finding accordingly, without granting or ordering a new trial, and

       shall pass sentence on such verdict or finding as modified;

              (5) Error of law occurring at the trial;

              (6) When new evidence material to the defense is discovered which

       the defendant could not with reasonable diligence have discovered and

       produced at the trial. When a motion for a new trial is made upon the

       ground of newly discovered evidence, the defendant must produce at the

       hearing on the motion, in support thereof, the affidavits of the witnesses by

       whom such evidence is expected to be given, and if time is required by the

       defendant to procure such affidavits, the court may postpone the hearing

       of the motion for such length of time as is reasonable under all the

       circumstances of the case. The prosecuting attorney may produce

       affidavits or other evidence to impeach the affidavits of such witnesses.

                                             ***

       {¶57} “To warrant the granting of a motion for a new trial on the ground of newly

discovered evidence, it must be shown that the new evidence (1) discloses a strong

probability that it will change the result of a new trial if granted; (2) has been discovered

since the trial; (3) is such as could not in the exercise of due diligence have been

discovered before the trial; (4) is material to the issues; (5) is not merely cumulative to
Licking County, Case No. 13-CA-84                                                        27


former evidence; and (6) does not merely impeach or contradict the former evidence.”

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370(1947), syllabus. Accord, State v.

Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227(1993), syllabus; State v. LaMar, 95

Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶85.

       {¶58} The decision whether to grant a new trial on grounds of newly discovered

evidence falls within the sound discretion of the trial court. State v. Hawkins, 66 Ohio

St.3d at 350, 612 N.E.2d 1227. We cannot reverse unless there has been a gross

abuse of that discretion, and whether that discretion has been abused must be

disclosed from the entire record. State v. Petro, 148 Ohio St. at 507- 508, 76 N.E.2d

370, quoting State v. Lopa, 96 Ohio St. 410, 411, 117 N.E. 319(1917).

                 B. Ineffective Assistance of Counsel - Conflict of Interest

       {¶59} The gravamen of Elmore’s claim is that his trial attorney Andrew

Sanderson convinced Elmore to reject a plea offer that he had previously agreed to and

would have saved his life, solely because Sanderson needed to participate in two

capital jury trials to qualify for first-chair status under Rule 20 of the Ohio Rules of

Superintendence. The newly discovered evidence in the case at bar is the testimony of

Shanda Behrens, a former associate of Sanderson's. Behrens testified that after

Sanderson became aware that Elmore had accepted the plea offer, Sanderson

indicated that he wanted Elmore's case to go to trial because he needed to participate in

two capital jury trials to qualify for first-chair status under Rule 20 of the Ohio Rules of

Superintendence.

       {¶60} The instant case involves a specific type of ineffectiveness claim, that of

conflict of interest, which is also examined under a slightly different standard from that
Licking County, Case No. 13-CA-84                                                      28

used in a traditional ineffectiveness claim. Thomas v. Foltz, 818 F.2d 476,480(6th Cir

1987). The Supreme Court set forth the standard for determining conflict of interest

cases in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and

summarized it again in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984)as follows:

             In Cuyler ... [we] held that prejudice is presumed when counsel is

      burdened by an actual conflict of interest. In those circumstances, counsel

      breaches the duty of loyalty, perhaps the most basic of counsel’s duties.

      Moreover, it is difficult to measure the precise effect on the defense of

      representation corrupted by conflicting interests. Given the obligation of

      counsel to avoid conflicts of interest and the ability of trial courts to make

      early inquiry in certain situations likely to give rise to conflicts ... it is

      reasonable for the criminal justice system to maintain a fairly rigid rule of

      presumed prejudice for conflicts of interest. Even so, the rule is not quite

      the per se rule of prejudice that exists for the Sixth Amendment claims

      mentioned above [actual or constructive denial of the assistance of

      counsel altogether]. Prejudice is presumed only if the defendant

      demonstrates that counsel “actively represented conflicting interests” and

      that “an actual conflict of interest adversely affected his lawyer’s

      performance.”

Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (emphasis added) (quoting Cuyler, 446

U.S. at 345-50, 100 S.Ct. at 1716-19); Thomas v. Foltz, 818 F.2d at 480. Accord,

Mikens v. Taylor, 535 U.S. 162, 171-172, 122 S.Ct. 1237, 152 L.Ed.2d 291(2001). This
Licking County, Case No. 13-CA-84                                                          29


standard has been adopted in Ohio. An appellant establishes a claim of ineffective

assistance of counsel when he demonstrates that an “actual” conflict of interest

adversely affected his counsel’s performance. State v. Keith, 79 Ohio St.3d 514, 535,

684 N.E.2d 47, 1997–Ohio–367, citing Cuyler v. Sullivan), 446 U.S. 335, 348, 100 S.Ct.

1708, 64 L.Ed.2d 333(1980); State v. Jones, 5th Dist. Stark Nos. 2007-CA-00041, 2007-

CA-00077, 2008-Ohio-1068, ¶76.

       {¶61} In Foltz, the United States Court of Appeals for the Sixth Circuit adopted

the following test when a conflict of interest claim is raised,

              The standard for determining whether an actual conflict of interest

       exists was set forth in United States v. Mers, 701 F.2d 1321 (11th Cir.),

       cert. denied, 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983), as

       follows:

              We will not find an actual conflict unless appellants can point to

       “specific instances in the record to suggest an actual conflict or

       impairment of their interests...” Appellants must make a factual showing of

       inconsistent interests and must demonstrate that the attorney “made a

       choice between possible alternative courses of action, such as eliciting (or

       failing to elicit) evidence helpful to one client but harmful to the other. If he

       did not make such a choice, the conflict remained hypothetical.” * * *

       There is no violation where the conflict is “irrelevant or merely

       hypothetical”; there must be an “actual significant conflict.” Id. at 1328

       (citations omitted).

618 F.2d at 481.
Licking County, Case No. 13-CA-84                                                          30


         {¶62} In his direct appeal and in his appeal from the denial of his petition for post

conviction relief, Elmore raised numerous instances of alleged ineffective assistance of

counsel. Elmore I; Elmore II. At no time during those proceedings did Elmore argue that

his decision to go to trial was anything other than his own free will. If Elmore had been

pressured, cajoled, coerced or mislead into rejecting the plea agreement he would

certainly have been able to assert that claim because different counsel represented him

in those proceedings. The only basis for asserting that he did not take the plea

agreement at this late stage is his claim that he only recently discovered that Sanderson

wanted to obtain first chair certification. An asserted desire to obtain lead counsel

certification in death penalty cases would, in and of itself, be insufficient to demonstrate

an actual conflict of interest. Otherwise, every attorney who is second chair qualified

and who desires to obtain first chair certification would be laboring under a conflict of

interest in each death penalty case in which he or she participated.

         {¶63} Elmore presents only the statement of Behrens and the fact that Elmore

changed his plea after meeting with Sanderson on February 13, 2003 to establish an

“actual conflict.” He then asks this Court to infer from those facts that Elmore’s change

of heart was somehow brought about by Sanderson’s desire to obtain his first-chair

status. The record does not contain any evidence that any statements or actions of

Sanderson motivated Elmore’s decision to reject the plea bargain and proceed to a jury

trial.

         {¶64} Elmore places emphasis exclusively upon Sanderson’s representation.

However, Elmore was not left solely to the care of Sanderson. At all times, Elmore had

the benefit of a second attorney. The record demonstrates that no less than three
Licking County, Case No. 13-CA-84                                                       31


attorneys represented Elmore before the start of his jury trial. Two of those attorneys

were certified as first chair counsel. Both King and Rigg testified at the hearing on

Elmore’s motion for a new trial that Elmore understood the options available to him and

the penalties he was facing. In fact, King informed Elmore that if he intended to reject

the plea and insist on going to trial, King would resign. King did resign when Elmore

rejected the plea offer. Rigg was then appointed to replace him.

       {¶65} Further, evidence supports the conclusion that no actual conflict existed.

Sanderson clearly and unequivocally testified that he "did not make Phillip Elmore reject

the State's proposed resolution." (1T. at 107) Sanderson took steps to counsel Elmore

that a plea was still possible. In his letter of March 11, 2003, Sanderson told Elmore that

he would pursue a plea if Elmore instructed him to do so. Sanderson also indicted it that

letter that he would resign from the case if Elmore so desired. The record contains no

evidence to suggest that Elmore instructed Sanderson to pursue a plea after February

13, 2003, or why Elmore did not instruct him to do so.

       {¶66} Brian Rigg testifed that discussions of the suggested plea resolution were

ongoing after February 13, 2003. Rigg testified that Elmore wanted to speak to family

members and Elmore would let Rigg know whether he wanted to plead. The record

contains no evidence to refute Rigg’s testimony that discussion with Elmore concerning

the plea agreement continued after February 13, 2003. Rigg testified that he believed

that it was Elmore’s decision to reject the plea. The record contains no evidence that

Elmore’s decision to reject the plea agreement and proceed with a jury trial was

motivated by any of his attorneys’ advice or action, acting alone or in concert.
Licking County, Case No. 13-CA-84                                                      32


       {¶67} Assistant prosecutor Rossi testified that he believed that Sanderson

contacted the prosecutor’s office before February 13, 2003, about a possible plea. He

further testified that overtures were made about renewing the plea offer after February

13, 2003.

       {¶68} The record supports the fact that Elmore was presented with the

opportunity to plead guilty and chose not to do so. Elmore has never stated that

Sanderson advised him to reject the plea agreement and proceed with a jury trial. The

record supports the trial court’s conclusion that Elmore weighed the advice of all three

of his attorneys, and made the ultimate decision about whether to enter into the plea

agreement. Elmore cannot eight years later claim ineffective assistance of counsel

because he is dissatisfied with results of the choice he made.

       {¶69} We cannot find the trial court abused its discretion in overruling Elmore’s

motion for a new trial. The record contains no evidence that Sanderson had an “actual

conflict of interest.” Further, the record contains no evidence that Sanderson did

anything that was motivated by his supposed personal interest in obtaining first-chair

capital case certification that adversely affected his representation of Elmore.

       {¶70} Elmore’s first assignment of error is overruled.

                                                II.

       {¶71} Under his second assignment of error, Elmore begins by asserting that the

trial court "would not review Elmore's claim of ineffective assistance of counsel received

during the plea bargain stage of his case." (Brief of Appellant, p. 12.) This is an overly

broad statement. When framing the issues, the trial court indicated that it would

consider Elmore’s claim of ineffective assistance of counsel during the plea bargaining
Licking County, Case No. 13-CA-84                                                        33


stage of the proceedings. What the trial court declined to consider was Elmore's claim

that he suffered from the ineffective assistance of counsel predicated upon the factual

allegation that his attorneys failed to present Elmore his options in "a unified voice,” and

thus did not do enough to "persuade" or "convince" him to enter a plea.

                        A. Failure to persuade Elmore to plead guilty

       {¶72} The claim that Elmore’s attorneys did not do enough to persuade him to

accept the plea bargain was first advanced in writing in Elmore’s post-hearing

memorandum. It was not presented in Elmore’s motion for leave to file a motion for a

new trial. This theory was also not presented in Elmore’s motion for a new trial. Elmore

did not seek leave of the trial court to supplement his motion for a new trial with this new

theory.

       {¶73} Because Elmore’s “failure to persuade" claim was not asserted in his

motion for new trial the state had no opportunity to prepare for an evidentiary hearing on

that claim. More importantly, because this claim was not asserted in his motion for leave

to file a motion for new trial, the trial court never had the opportunity to decide if

Elmore’s “failure to persuade” claim was based upon new evidence that he could not

with reasonable diligence have discovered and produced at trial. Crim R. 33(A)(6).

       {¶74} Crim R. 33 provides,

                          (B) Motion for new trial; form, time

              Application for a new trial shall be made by motion which, except

       for the cause of newly discovered evidence, shall be filed within fourteen

       days after the verdict was rendered, or the decision of the court where a

       trial by jury has been waived, unless it is made to appear by clear and
Licking County, Case No. 13-CA-84                                                    34


       convincing proof that the defendant was unavoidably prevented from filing

       his motion for a new trial, in which case the motion shall be filed within

       seven days from the order of the court finding that the defendant was

       unavoidably prevented from filing such motion within the time provided

       herein.

               Motions for new trial on account of newly discovered evidence shall

       be filed within one hundred twenty days after the day upon which the

       verdict was rendered, or the decision of the court where trial by jury has

       been waived. 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.

       {¶75} Thus, an argument could be made that whether his attorneys did or did

not do enough to persuade Elmore to plead guilty would be based upon actions

occurring in 2003 at the time of Elmore’s trial. That evidence would have been within

Elmore’s own knowledge because he was a part of the discussions. As the actions

occurred in 2003 and would have been known to Elmore it could be argued that it is not

newly discovered evidence. Elmore would need to have established by clear and

convincing evidence that he was unavoidably prevented from the discovery of the

evidence upon which he must rely before Elmore could raise it as a ground for obtaining

a new trial.
Licking County, Case No. 13-CA-84                                                    35


      {¶76} A trial court abuses its discretion in granting a defendant a new trial

without first finding by clear and convincing evidence that the defendant was

unavoidably prevented from discovering the evidence within the one hundred twenty

day time frame established by Crim.R. 33(B). State v. Georgekopoulos, 9th Dist.

Summit No. C.A. 21952, 2004-Ohio-5197, ¶8.

      {¶77} Thus, we find no abuse of discretion in the trial court’s decision not to

review Elmore’s failure to persuade argument.

          B. Ineffective Assistance of counsel during the plea bargaining stage

      {¶78} Elmore further contends that the trial court failed to apply the U.S.

Supreme Court’s decisions in Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 182 L.Ed.2d

379 (2012) and Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed. 398 (2012).

      {¶79} In Frye and Lafler, the Supreme Court set forth a new standard to

determine prejudice in context of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984) as it applies to plea offers and plea negotiations.

      {¶80} In Frye, defense counsel allowed a plea offer to expire without

communicating the offer to the defendant resulting in the defendant accepting a later

offer that was less favorable. Frye, at 1404. The Court held that “defense counsel has

the duty to communicate formal offers from the prosecution to accept a plea....” 132

S.Ct. at 1408. Given this duty, the Court emphasized that the right to effective

assistance of counsel extends to the negotiation and consideration of plea offers that

have been rejected or have lapsed. Id. at 1407–08.

      {¶81} In Lafler, a favorable plea offer was reported to the client and rejected on

the advice of counsel, who advised the defendant that the state could not prove intent
Licking County, Case No. 13-CA-84                                                       36


because the victim was shot below the waist, even though the defendant shot the victim

three times and missed her head once. The defendant took the case to trial and was

convicted, after which he received a sentence more than three times higher than the

plea offer. Notably, in an earlier communication with the trial court, the defendant had

admitted guilt and expressed a willingness to accept the plea offer.

      {¶82} In Lafler, the Court reiterated that the Sixth Amendment requires effective

assistance not just at trial but at all critical stages of a criminal proceeding, including

plea bargaining. 132 S.Ct. at 1384. In order to prevail on a claim of ineffective

assistance of counsel when counsel’s ineffective advice led to the rejection of a plea

offer, the Court held that “a defendant must show that but for the ineffective advice,

there is a reasonable probability that [1] the plea offer would have been presented to the

court ...; [2] the court would have accepted [the plea];” and (3) the defendant was

convicted of more serious offense or received a less favorable sentence than he would

have received under the terms of the offer. Id. at 1385.

      {¶83} However, defense counsel’s deficient performance was stipulated in

Lafler. Id. at 1383, 1391. The issue of deficient performance was not before the Court

and was specifically not addressed. Id. at 1384, 1391. In fact, the Court declared, “an

erroneous strategic prediction about the outcome of a trial is not necessarily deficient

performance.” Id. at 1391.

      {¶84} In the case at bar, there is no stipulation that any of Elmore’s attorneys

ever counseled him to reject the plea bargain. Rather, as we addressed in our

disposition of Elmore’s First Assignment of Error, the record established that plea

negotiations were ongoing until the eve of trial. The record further confirms that Elmore
Licking County, Case No. 13-CA-84                                                      37


was aware of what the penalties he was facing and what options were available to him.

Lafler is further distinguishable as it arose from a post-conviction proceeding where the

defendant stated that he would have pled guilty but for counsel’s advice. Elmore did not

testify at the hearing on the motion for a new trial. The record contains no evidence that

Elmore has ever stated he would have plead guilty but for Sanderson or anyone else’s

advice. Thus, Lafler is in fact distinguishable from the case before us. State v. Marsh,

7th Dist. Mahoning No. 12 MA 40, 2013-Ohio-757, ¶25.

      {¶85} In any event, the record makes clear that Elmore was advised prior to trial

that his case was not strong and that acceptance of the plea was advisable. Attorney

King even went so far in his attempt to convince Elmore to accept the plea that he told

Elmore he would quit if Elmore insisted upon going to trial. Attorney King testified that

he was satisfied Elmore did not want to go through with the plea bargain so he withdrew

from the case.

      {¶86} In Florida v. Nixon, the United State Supreme Court made the following

observation,

               A defendant, this Court affirmed, has “the ultimate authority” to

      determine “whether to plead guilty, waive a jury, testify in his or her own

      behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct.

      3308, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1,

      97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C. J., concurring).

      Concerning those decisions, an attorney must both consult with the

      defendant and obtain consent to the recommended course of action.

                                           ***
Licking County, Case No. 13-CA-84                                                     38


             While a guilty plea may be tactically advantageous for the

      defendant, [Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d

      274 (1969)], at 240, 89 S.Ct. 1709, the plea is not simply a strategic

      choice; it is “itself a conviction,” id., at 242, 89 S.Ct. 1709, and the high

      stakes for the defendant require “the utmost solicitude,” id., at 243, 89

      S.Ct. 1709. Accordingly, counsel lacks authority to consent to a guilty plea

      on a client’s behalf, Brookhart v. Janis, 384 U.S. 1, 6-7, 86 S.Ct. 1245, 16

      L.Ed.2d 314 (1966); moreover, a defendant’s tacit acquiescence in the

      decision to plead is insufficient to render the plea valid, Boykin, 395 U.S.,

      at 242, 89 S.Ct. 1709.

534 U.S. 175, 187-188, 125 S.Ct. 551, 160 L.Ed.2d 565(2004).

      {¶87} In the case at bar, the record establishes that counsel communicated the

state’s plea offer to Elmore in conformity with Frye. In addition, Elmore makes no

argument that defense counsel advised him to reject the plea offer, nor does the record

permit the conclusion that defense counsel gave any advice to reject the plea offer in

violation of Lafler. State v. Hills, 8th Dist. Cuyahoga No. 98848, 2013-Ohio-2902, ¶20.

      {¶88} Accordingly, the record contains no credible evidence to prove that

Sanderson, King, or Rigg was constitutionally ineffective in his representation of Elmore

during the plea negotiation process.

      {¶89} Elmore’s second assignment of error is overruled.

                                              III.

      {¶90} In his third assignment of error, Elmore argues the trial court erred in

issuing a blanket prohibition against the testimony of defense witness Leigh Bayer.
Licking County, Case No. 13-CA-84                                                       39


Specifically, Elmore contends the trial court should have allowed Bayer to be called as a

witness, and directed Davis' counsel to raise objections to individual questions as they

were made. The court could then have addressed each privilege claim individually,

rather than lumping them together under a general Rule 1.6 objection. [Appellant’s Brief

at 28].

                                    A. The Trial Court’s Ruling

          {¶91} Roland Davis' current attorney appeared at the hearing on Elmore’s

motion for a new trial and argued that Bayer's testimony would violate Mr. Davis'

attorney client privilege. The trial court conducted a voir dire examination of the witness

out of the hearing of either party and determined that,

          THE COURT:           Okay, we're back on the record in the Elmore case,

          and the Court has conducted an in camera evaluation of Ms. Bayer's

          testimony in light of the privilege issues that were asserted by Mr. Davis,

          and based on that in camera evaluation, I have determined that based on

          Rule 1.6 of the Ohio Rules of Professional Conduct that Ms. Bayer would

          not be permitted to reveal any information relating to the rep - Mr.

          Sanderson's representation of Mr. Davis and that the information she

          would provide in response to certain questions regarding statements she

          might attribute to Mr. Sanderson during that representation would, in my

          view, violate the privilege, the attorney-client privilege, and potentially

          reveal confidential information in violation of Rule 1.6. So that ruling is

          based on my in camera evaluation and the arguments advanced by Mr.

          Davis' counsel.
Licking County, Case No. 13-CA-84                                                        40


             I’ve communicated this ruling before now to the attorneys, and Mr.

      Lazarow [Elmore’s attorney], do you intend to call Ms. Bayer or have we

      worked out some sort of procedure by which you might proffer her

      expected testimony?

      MR. LAZAROW:         Yes, Your Honor, we – the parties have agree to –as

      a proffer, to submit a copy of the affidavit of Leigh Ann Bayer that was

      previously filed in the motion - - I believe in the Motion for New Trial.

      THE COURT:           Correct. According to the file, it was Exhibit C to the

      Defendant’s Motion for New Trial filed on July 25, 2012.

      MR. LAZAROW:         Yes, and agree that if she were called to testify today,

      she would testify to the substance contained in the affidavit.

2T. at 229(emphasis added).

      1. No blanket prohibition

      {¶92} Thus, while the trial court limited the testimony of Ms. Bayer, it did not

issue a blanket prohibition against her testimony.

      {¶93} Under the doctrine of “invited error,” it is well settled that “a party will not

be permitted to take advantage of an error which he himself invited or induced the trial

court to make.” State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 1995-Ohio-40,

646 N.E.2d 1115(1995) citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357,

359,1994-Ohio-302, 626 N.E.2d 950(1994). See, also, Lester v. Leuck, 142 Ohio St. 91,

50 N.E.2d 145(1943) paragraph one of the syllabus. As the Ohio Supreme Court has

stated,
Licking County, Case No. 13-CA-84                                                        41


       [t]he law imposes upon every litigant the duty of vigilance in the trial of a

       case, and even where the trial court commits an error to his prejudice, he

       is required then and there to challenge the attention of the court to that

       error, by excepting thereto, and upon failure of the court to correct the

       same to cause his exceptions to be noted. It follows, therefore, that, for

       much graver reasons, a litigant cannot be permitted, either intentionally or

       unintentionally, to induce or mislead a court into the commission of an

       error and then procure a reversal of the judgment for an error for which he

       was actively responsible.

Lester at 92-93, quoting State v. Kollar (1915), 93 Ohio St. 89, 91, 112 N.E. 196.

       {¶94} In the case at bar, Elmore could have called Bayer to the stand. Instead,

Elmore chose to stipulate to her affidavit and agree that if she were called to testify, she

would testify to the substance contained in the affidavit. Elmore had possession of that

affidavit and had previously filed it in this case.

       2. Elmore consented to the in-camera hearing

       {¶95} Elmore consented to the trial court conducting the in camera hearing in

question:

       THE COURT:             All right. We've - - we're back on the record here with

       the Elmore case. We've had a chance to discuss an issue in chambers

       regarding some privilege issues with regard to Ms. Bayer's anticipated

       testimony, and we've discussed procedurally how best to handle those

       issues, and I think we've agreed or at least no one objects to the Court

       handling the matter in the following manner.
Licking County, Case No. 13-CA-84                                                     42


                                          ***

      [THE COURT:]         I'll conduct an in camera evaluation and then make

      the rulings on whether or not the State's [sic] objections to her testimony

      will be sustained or overruled and then also rule on the extent of whether

      she's permitted to testify and the parameters of the testimony. Does that

      sum it up pretty much?

      MR. MAHER:           Your Honor, that is yes accurate from the State's side,

      Your Honor.

      MR. LAZAROW:          And accurate from Mr. Elmore's.

2T. at 226-227.

      {¶96} Elmore's failure to object to the ex parte procedure employed by the trial

court waived the issue for purposes of this appeal. In the Matter of: J.E.D., 5th Dist.

Richland No. 12-CA-107, 2013-Ohio-2186, ¶17; State v. Riley, 5th Dist. Muskingum No.

CT2012-0022, 2013-Ohio-1332, ¶52. Further, Elmore invited the procedure that he

now claims is error. It is well established that "a party will not be permitted to take

advantage of an error which he himself invited or induced the trial court to make." State

ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 646 N.E.2d 1115 (1995) citing State

ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 626 N.E.2d 950 (1994).

      3. Harmless Error – Bayer’s testimony

      {¶97} In addition, even if error occurred in the exclusion of the Bayer’s

testimony, it was harmless. We note that any error will be deemed harmless if it did not

affect the accused's “substantial rights.” Before constitutional error can be considered

harmless, we must be able to “declare a belief that it was harmless beyond a
Licking County, Case No. 13-CA-84                                                     43

reasonable doubt.” United States v. Chapman, 386 U.S. 18, 24, 87 S.Ct. 824, 17

L.Ed.2d 705(1967). Where there is no reasonable possibility that unlawful testimony

contributed to a conviction, the error is harmless and therefore will not be grounds for

reversal. State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of

the syllabus, vacated on other grounds in (1978), 438 U.S. 910, 98 S.Ct. 3135, 57

L.Ed.2d 1154(1978). See also, State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984

N.E.2d 948, ¶177.

      {¶98} The substance of Bayer’s affidavit, which is unsealed and attached the

Elmore’s motion for a new trial, is that Sanderson appeared pleased that Mr. Davis

desired a trial and that Sanderson would now be eligible to obtain first chair status

under Rule 20 of the Ohio Supreme Court Rules of Superintendence. We have likewise

reviewed Bayer’s sealed testimony given during the in-camera hearing.

      {¶99} We find any error in the exclusion of Ms. Bayer’s testimony to be harmless

beyond a reasonable doubt because: 1). Elmore was aware of the substance and

nature of Bayer’s testimony by virtue of her affidavit; 2).Bayer’s testimony does not in

any manner address or concern Sanderson representation of Elmore; 2). Bayer’s

testimony does not provide any evidence that Sanderson did anything that was

motivated by his supposed personal interest in obtaining first-chair capital case

certification that adversely affected his representation of Elmore, as we have previously

discussed in Elmore’s First and Second Assignments of Error.

      {¶100} Elmore’s third assignment of error is overruled.
Licking County, Case No. 13-CA-84                                              44


      {¶101} Accordingly, the August 30, 2013 Judgment Entry of the Licking County

Court of Common Pleas denying Elmore's motion for a new trial claiming newly

discovered evidence is affirmed.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur
