[Cite as State v. Spivey, 2014-Ohio-721.]

                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT


STATE OF OHIO,                                    )
                                                  )    CASE NO.    12 MA 75
        RESPONDENT-APPELLEE,                      )
                                                  )
VS.                                               )    OPINION
                                                  )
WARREN SPIVEY,                                    )
                                                  )
        PETITIONER-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                              Criminal Appeal from Common Pleas
                                                       Court, Case No. 89CR20.


JUDGMENT:                                              Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                                Attorney Paul Gains
                                                       Prosecuting Attorney
                                                       Attorney Ralph Rivera
                                                       Assistant Prosecuting Attorney
                                                       21 West Boardman Street, 6th Floor
                                                       Youngstown, Ohio 44503

For Defendant-Appellant:                               Attorney John Juhasz
                                                       7081 West Boulevard, Suite 4
                                                       Youngstown, Ohio 44512


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                       Dated: February 21, 2014
[Cite as State v. Spivey, 2014-Ohio-721.]
VUKOVICH, J.


        {¶1}     Petitioner-appellant Warren Spivey appeals from the decision of the
Mahoning County Court of Common Pleas denying his December 20, 2002 petition
for postconviction relief. The issue in this appeal is whether the trial court abused its
discretion when it found that Spivey did not present evidence of intellectual
impairment that would classify him as “mentally retarded.”1 Spivey seeks a finding
that he is “mentally retarded” so that his death sentence can be reversed and a life
sentence can instead be imposed. For the reasons expressed below, the trial court
did not abuse its discretion when it denied Spivey’s petition for postconviction relief.
The judgment of the trial court is hereby affirmed.
                                        Statement of the Case
        {¶2}     On January 18, 1989, Spivey was indicted, among other charges, for
the aggravated murder of Veda Vesper, who was found murdered in Youngstown,
Ohio on January 3, 1989. Originally Spivey pled not guilty; however, on October 11,
1989, he entered a no contest plea to the charges. Following the plea’s entrance, a
three judge panel found him guilty of all charges. A mitigation hearing was held on
November 13, 1989.            One week later, the three judge panel imposed the death
sentence. 11/20/1989.
        {¶3}     A timely notice of appeal was filed from that decision and the conviction
and sentence were thereafter affirmed by this court. State v. Spivey, 7th Dist. No.
89CA172, 1997 WL 16196 (Jan. 13, 1997). Spivey appealed that decision to the
Ohio Supreme Court, which also affirmed the conviction and sentence. State v.
Spivey, 81 Ohio St.3d 405, 692 N.E.2d 151 (1998).
        {¶4}     On March 31, 1997, while the appeal of his 1989 conviction and
sentence was pending in the Ohio Supreme Court, Spivey filed a timely application to
reopen his appeal. We denied the motion. State v. Spivey, 7th Dist. No. 89CA172,
1998 WL 78656 (Feb. 11, 1998).                   Spivey appealed that decision to the Ohio

        1
         We recognize that the term “mentally retarded” is not technically correct. However, it is the
term that is used by the Ohio Supreme Court in Lott and the United States Supreme Court in Atkins,
both of which are controlling in this case. Furthermore, it is the term used by the trial court. Therefore,
despite the insensitivity of the term, we continue to use it for the legal standard set forth in those
cases.
                                                                                     -2-

Supreme Court, which affirmed our decision. State v. Spivey, 84 Ohio St.3d 24, 701
N.E.2d 696 (1998).
        {¶5}   On September 20, 1996, before we affirmed his conviction and
sentence, Spivey filed his first postconviction petition. An evidentiary hearing was
held on that petition in 1999. The trial court denied the petition in May 2000. That
decision was appealed to our court. In 2002, we affirmed the trial court’s decision.
State v. Spivey, 7th Dist. No. 00CA106, 2002 WL 418373 (Mar. 15, 2002).
        {¶6}   Two months following the affirmance of the trial court’s denial of
Spivey’s postconviction petition, the United States Supreme Court ruled that the
execution of “mentally retarded” criminals violates the Eighth Amendment's ban on
cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242
(2002). However, the Atkins decision did not establish procedures for determining
whether an individual is “mentally retarded” for purposes of escaping execution.
Rather, it left that determination to the states; “we leave to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences.” Id. at 317 quoting Ford v. Wainwright, 477 U.S. 399, 405,
416-417, 106 S.Ct. 2595 (1986).
        {¶7}   Thereafter, the Ohio Supreme Court set forth the standards to be
employed in Ohio. State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d
1011.    In rendering that decision, the Court explained that the procedures for
postconviction relief as set forth in “R.C. 2953.21 et seq. provide a suitable statutory
framework for reviewing” an Atkins claim. Id. at ¶ 13. R.C. 2953.23(A) specifically
indicates that a court may not entertain a successive petition unless one of the two
exceptions apply. Id. at ¶ 14. The Court found that the exception enumerated in
subsection (b) was applicable. Id. at ¶ 17. That subsection states a successive
petition can be entertained if the “United States Supreme Court has recognized a
new federal or state right that applies retroactively to persons in the petitioner’s
situation, and the petition asserts a claim based on that right.” R.C. 2953.23(A)(1)(b);
Id. at ¶ 16.
        {¶8}   Following that reasoning, the Court explained:
                                                                                       -3-

               For all other defendants who have been sentenced to death, any
        petition for postconviction relief specifically raising an Atkins claim must
        be filed within 180 days from the date of the judgment in this case.
        Petitions filed more than 180 days after this decision must meet the
        statutory   standards    for   untimely   and   successive   petitions   for
        postconviction relief.
Id. at ¶ 24.
        {¶9}   On December 20, 2002, Spivey filed a successive petition for
postconviction relief asserting an Atkins claim. Based on the advisements in Lott,
this petition was timely and could be entertained.
        {¶10} Spivey then filed a Motion for Jury Determination of Mental Retardation
and for Rejection of Presumption of the IQ Level of 70 to Determine Mental
Retardation, which was denied. 09/22/04 Motion; 04/05/05 J.E.
        {¶11} In 2004, Spivey was evaluated by Dr. Jeffrey Smalldon to determine if
he was “mentally retarded.” Dr. Smalldon determined that Spivey is not “mentally
retarded” as defined by either the Diagnostic and Statistical Manual of Mental
Disorders-IV-Text Revision or the American Associated of Mental Retardation’s
Mental Retardation Manual.
        {¶12} In 2008, Spivey asked for a competency determination and requested a
stay of the proceedings. The trial court granted the stay for purposes of allowing
Spivey to be evaluated by Dr. Thomas Gazley from the Forensic Center of Northeast
Ohio.    Dr. Gazley determined that Spivey was competent to participate in the
postconviction proceedings.
        {¶13} The trial court then ordered Dr. Gazley to evaluate Spivey for purposes
of determining if he is “mentally retarded” under Atkins and Lott. Dr. Gazley rendered
the opinion that Spivey is not “mentally retarded.”
        {¶14} An evidentiary hearing on whether Spivey met the definition of “mental
retardation” as set forth in Atkins and Lott was held on April 28, 2011 and June 14,
2011.
        {¶15} In March of 2012 the trial court denied the successive postconviction
petition. 03/19/12 J.E. In doing so, it concluded:
                                                                                       -4-

               6. Clinical definitions of mental retardation, cited with approval in
      Atkins, provide a standard for evaluating an individual’s claim of mental
      retardation. State v. Lott, at 307. Citing definitions from the American
      Association of Mental Retardation and the American Psychiatric
      Association, the standard requires (1) significantly sub-average
      intellectual functions, (2) significant limitations in two or more adaptive
      skills, such as communication, self-care and self-direction, and (3)
      onset before the age of 18.
               7. In the instant case there is evidence that the Defendant had
      limitations in some adaptive skills, such as self-care and self-direction
      and those limitations were present before the age of 18.
               8. There is no evidence that the Defendant had significantly sub-
      average intellectual functioning.
               9. According to Dr. Thomas Gazley, the Defendant could never
      qualify for a diagnosis of mental retardation, based on the Defendant’s
      IQ scores of 84 and 87.
               10. This Court finds that the Defendant did not establish that the
      Defendant is mentally retarded.
03/19/12 J.E
      {¶16} Spivey timely appeals from that decision.
                                First Assignment of Error
      {¶17} “The trial court erred in finding that Spivey’s Atkins claim was not
proved by a preponderance of the evidence.”
      {¶18} In Lott, the Ohio Supreme Court explained that in order to be entitled to
relief, the petitioner must prove by a preponderance of the evidence that he is
“mentally retarded” as defined by Atkins and Lott. Lott at ¶ 17. In reviewing the trial
court’s decision as to whether that standard was met, we employ an abuse of
discretion standard of review. State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–
6679, 860 N.E.2d 77, ¶ 58. A trial court abuses its discretion when its judgment is
unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,
404 N.E .2d 144 (1980).
                                                                                     -5-

       {¶19} As aforementioned in Atkins, the United States Supreme Court
determined that it was unconstitutional to execute a “mentally retarded” individual. In
Lott, the Ohio Supreme Court set forth the standards and guidelines to be used in
Ohio to determine mental retardation:
              In the absence of a statutory framework to determine mental
       retardation, Ohio courts should observe the following substantive
       standards and procedural guidelines in determining whether convicted
       defendants facing the death penalty are mentally retarded. * * *
              Clinical definitions of mental retardation, cited with approval in
       Atkins, provide a standard for evaluating an individual's claim of mental
       retardation. Id. at fn. 3, citing definitions from the American Association
       of Mental Retardation and the American Psychiatric Association. These
       definitions require (1) significantly sub-average intellectual functioning,
       (2) significant limitations in two or more adaptive skills, such as
       communication, self-care, and self-direction, and (3) onset before the
       age of 18. Most state statutes prohibiting the execution of the mentally
       retarded require evidence that the individual has an IQ of 70 or below.
       See Ky.Rev.Stat. 532.130 and 532.140; Neb.Rev.Stat. 28-105.01(2);
       N.M.Stat. 31-20A-2.1; N.C.Stat. 15A-2005; S.D. Codified Laws 23A-
       27A-26.2; Tenn.Code 39-13-203(b); and Wash.Rev.Code 10.95.030(2).
       While IQ tests are one of the many factors that need to be considered,
       they alone are not sufficient to make a final determination on this issue.
       Murphy v. State, 54 P.3d at 568, 2002 OK CR 32, at ¶ 29. We hold that
       there is a rebuttable presumption that a defendant is not mentally
       retarded if his or her IQ is above 70.
Lott at ¶ 11-12.
       {¶20} In this case, there are reports from two different doctors as to whether
Spivey qualifies for a diagnosis of “mental retardation” under the Lott decision. The
first doctor, Dr. Smalldon, concluded in 2004 that Spivey would not qualify for a
“mental retardation” diagnosis. Dr. Smalldon indicated that Spivey’s full scale IQ on
                                                                                      -6-

the Wechsler Adult Intelligence Scale – Third Edition, was 82, which falls within the
range that is typically referred to as “low average.” He further concluded:
             [A]lthough [Spivey] has a long history of learning/behavioral
      problems, as well as some striking cognitive limitations, he is not
      mentally retarded as that term is defined in either the Diagnostic and
      Statistical Manual of Mental Disorders-IV-Test Revision (DSM-IV-TR) or
      the American Association of Mental Retardation’s Mental Retardation
      Manual.
             His IQ scores are simply too high. * * * Although it’s possible, for
      a variety of different reasons, for a test subject to obtain IQ estimates
      that underestimate his/her actual intellectual potential, it’s not possible –
      at least under any scenario that I can imagine – for him/her to obtain
      scores that overestimate his/her intellectual capabilities.
Dr. Smalldon Report pgs. 15-16.
      {¶21} Dr. Gazley’s testing and diagnosis that occurred in September 2010
reached a similar conclusion. Dr. Gazley administered two IQ tests; Spivey’s full
scale IQ results were 84 and 87. He indicated that these scores are “well beyond the
range which would be considered necessary for a diagnosis of mental retardation or
developmental disability.”     Dr. Gazley Atkins/Lott Report pg. 8.           Akin to Dr.
Smalldon’s opinion, Dr. Gazley also indicated that the scores on the IQ test are too
high to support a diagnosis of “mental retardation.” Dr. Gazley Atkins/Lott Report pg.
9.
      {¶22} The results of the IQ tests administered by Drs. Smalldon and Gazley
were consistent with previous IQ determinations that were administered on Spivey
when he was younger.         At the death penalty mitigation hearing in 1989, Mary
Stewart, who was Spivey’s probation officer, testified that Spivey’s mental intelligence
was borderline. Mitigation Hrg. Tr. 936. Dr. Eisenberg testified that Spivey’s full
scale IQ result was 74, which placed him in the borderline range of intelligence.
Mitigation Hrg. Tr. 1072-1073; 1163-1164.       He further explained that the highest
Spivey ever scored was 89 and the lowest he scored was in the high 50s. Mitigation
Hrg. Tr. 1073. Dr. Eisenberg’s ultimate opinion was that in 1989, when Spivey was
                                                                                       -7-

20 years old, he was functioning like a ten year old. Mitigation Hrg. Tr. 1073. There
is no indication in any of the evidence that was submitted at the mitigation hearing
that Spivey was ever diagnosed as being “mentally retarded.”
         {¶23} The IQ scores establish a presumption that Spivey is not “mentally
retarded” as defined by Lott. That said, it is acknowledged that the record is replete
with evidence that Spivey has had cognitive limitations during his entire life. Dr.
Smalldon explained:
                Despite the fact that Mr. Spivey’s IQ estimates do not fall within
         the range that is usually associated with mental retardation, still certain
         of his responses speak clearly to his cognitive limitations, for example
         his limited fund of general information, his poor skills at abstract
         concept formation, and his relatively impoverished vocabulary.
Dr. Smalldon Report pg. 12.
         {¶24} There was testimony at the mitigation hearing and at the Atkins/Lott
hearing that Spivey started having convulsions/seizures when he was one and that
continued through his teenage years. He was in and out of hospitals because of this.
There was also testimony from his mother and family members that intellectually he
developed more slowly than other kids, that he had learning problems, and that he
went to a school for children with learning and behavioral problems.              He was
described as “childlike” by one cousin. It was also stated that his hygiene skills were
not good, he could not keep a job, that he could not make change (in fact they would
not send him to the store because he would not come back with change and would
not get everything he was told to get), and although he was given chores, he would
not always complete them. All of this testimony discussed behaviors prior to the age
of 18.
         {¶25} The testimony from his mother, family members, and the above
statement from Dr. Smalldon tends to show limitations in adaptive skills, such as
communication, self-care, and self-direction that were apparent before the age of 18.
These limitations, however, may not be classified as significant, as is required by Lott
to meet the definition of “mentally retarded.” For instance, the testimony from the
family members concerning hygiene was that he would wear the same pants over
                                                                                       -8-

and over again. Having a favorite pair of pants is not a hygiene issue and it was
explained that he would change the pants when he was instructed to do so.
Furthermore, Dr. Gazley offered the opinion that although adaptive skills could not be
tested in the death row prison setting, that Spivey probably did not have significant
limitations in his adaptive skills. He explained that in meeting with Spivey, he showed
an interest in current events, utilized humor, demonstrated an ability to maintain
focus and concentration on task, and showed an ability to read.               Dr. Gazley
Atkins/Lott Report pg. 9.
       {¶26} Regardless, even if the above testimony did amount to significant
limitations of adaptive skills, the problem is that even with that testimony the trial
court’s conclusion that Spivey could not overcome the presumption that he was not
“mentally retarded” because of his IQ scores was not an abuse of discretion. As
aforementioned, both Dr. Smalldon and Dr. Gazley concluded that Spivey’s IQ scores
were simply too high to ever qualify for a “mentally retarded” diagnosis. Dr. Gazley
explained this best during his testimony at the Atkins/Lott hearing. He stated that
there is no specific number beyond a score of 70 which automatically disqualified a
person from a diagnosis of mental retardation, but as the scores go up, “as defined
by the Diagnostic and Statistical Manual, you fall well above what they consider a
cutoff.” Atkins/Lott Hrg. Tr. 172-174. He explained that when a score approaches 80
or is in the 80s, that is a different categorization of intelligence. Atkins/Lott Hrg. Tr.
173. He also explained that IQ scores do not typically go up in later life:
              But it seems difficult for me to imagine a person scoring low
       enough to qualify for a mental retardation diagnosis prior to the age of
       18 and then later in life being evaluated and getting scores in the low
       average range. That seems unlikely because intelligence is such a
       stable construct given the lack of other, you know, injury, illness,
       trauma, those kinds of things.
Atkins/Lott Hrg. Tr. 177.
       {¶27} The conclusion that Spivey’s IQ scores are too high to be ever be
considered “mentally retarded” as defined by Lott, is not inapposite to the language
used in Lott. It is logical to conclude that at some point a score will be too high to
                                                                                        -9-

qualify the person for a mental retardation diagnosis, even though the person may
show significant limitations in adaptive skills that were apparent before the age of 18.
Doctors are in the best position to make this determination.
       {¶28} Spivey cites this court to a 2006 First Appellate District case, State v.
Gumm, to support its position that the evidence submitted at the Atkins/Lott hearing
overcame the presumption that he was not “mentally retarded” and that the trial court
abused its discretion in not granting the postconviction petition. Gumm, however, is
distinguishable from the case at hand.
       {¶29} In Gumm, the testimony established that before the age of 18 Gumm
would use grunts and not words to communicate, that he could not read or write and
did not learn to tie his shoes until he was a teenager. State v. Gumm, 169 Ohio
App.3d 650, 2006-Ohio-6451, 864 N.E.2d 133, ¶ 6 (1st Dist.).             There also was
testimony from multiple people that Gumm exhibited poor hygiene skills. Id. He
likewise did not drive and could not keep a job. Based on the poor adaptive skills
and the fact that they occurred before 18 years of age, the doctor concluded that
even though Gumm scored 70, 71, 73 and 79 on IQ tests, he was “mentally
retarded.” Id. at ¶ 9.
       {¶30} In the case at hand, there is testimony that Spivey communicated
through talking, although he did not begin to talk as early as his siblings. Also, there
is evidence that he can read and write minimally.          As to the hygiene skills, as
discussed above, there is no indication other than continuing to wear the same
clothing that as a child he failed to clean himself, would not brush his teeth, or take
care of himself. As to driving, while Spivey may not have had a driver’s license, we
know that he drove a car because the victim’s car was stolen and driven to a bar by
Spivey. Although there was testimony that Spivey could not keep a job, testimony
established that he did work for six months at a corner store. 10/18/99 First
Postconviction Relief Hrg. pg. 39. Moreover, the doctor in Gumm concluded that
Gumm is “mentally retarded.”        Here, two doctors concluded that Spivey is not
“mentally retarded.” It is difficult to conclude that the trial court abused its discretion
when it agreed with the opinion of two doctors that Spivey’s scores were too high to
ever qualify him for a “mentally retarded” diagnosis.
                                                                                     -10-

       {¶31} Considering all the above, we cannot find that the trial court’s decision
was an abuse of discretion. This assignment of error is meritless.
                              Second Assignment of Error
       {¶32} “The trial court erred in failing to find that the 70 IQ presumption violates
due process.”
       {¶33} In this assignment of error, Spivey admits that the Ohio Supreme Court
in Lott established a rebuttable presumption that a defendant with an IQ score of over
70 is not “mentally retarded”. Spivey acknowledges that the government is allowed
to create and apply a presumption if the presumption is rational. Spivey contends
that this presumption is not rational and thus, violates due process. Therefore, he
asserts that the trial court should have granted his motion that requested it to reject
the presumption. The essence of his argument is that the Ohio Supreme Court
created an unconstitutional rebuttable presumption in Lott.
       {¶34} As an inferior court, we are bound to follow the Ohio Supreme Court’s
directives and have no authority to overturn them. State v. Loyed, 8th Dist. No.
83075, 2004–Ohio–3961, ¶ 33. Furthermore, “it is unlikely the Ohio Supreme Court
would direct inferior courts to violate the constitution.” State v. Gibson, 10th Dist. No.
06AP-509, 2006-Ohio-6899, ¶ 15 (Appellant raised argument that the Ohio Supreme
Court’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470
violated due process. Appellate court concluded that it had to follow Foster because
it is an inferior court and it did not believe the Court would direct inferior courts to
violate the constitution) citing State v. Hildreth, 9th Dist. No. 06CA8879, 2006-Ohio-
5058, ¶ 10 (same). See also State v. Whiteside, 10th Dist. No. 08AP-602, 2009-
Ohio-1893, ¶ 54 (same); State v. Fuller, 12th Dist. No. CA2006-11-047, 2008-Ohio-
20, ¶ 28 (same). Therefore, we will not address Spivey’s argument that the rebuttable
presumption is unconstitutional because it violates due process other than to
conclude that this court and the trial court are bound by the Ohio Supreme Court’s
decision in Lott.
       {¶35} For those reasons, we do not find that the trial court erred when it did
not reject the rebuttable presumption. This assignment of error lacks merit.
                                                                                     -11-

                                Third Assignment of Error
       {¶36} “The trial court erred in refusing to require the existence of mental
retardation to be determined by a jury.”
       {¶37} The argument presented in this assignment of error has already been
addressed and rejected by the Ohio Supreme Court. Lott at ¶ 18 (“We believe that
these matters should be decided by the court and do not represent a jury question.”);
State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263. In Were, the
Court specifically explained:
              Lott holds that the decision whether or not a defendant is
       mentally retarded “should be decided by the court and do[es] not
       represent a jury question. In this regard, a trial court's ruling on mental
       retardation should be conducted in a manner comparable to a ruling on
       competency (i.e., the judge, not the jury, decides the issue).” Lott, 97
       Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 18. Were
       invokes Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348,
       147 L.Ed.2d 435; Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428,
       153 L.Ed.2d 556; Blakely v. Washington (2004), 542 U.S. 296, 124
       S.Ct. 2531, 159 L.Ed.2d 403; and United States v. Booker (2005), 543
       U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, in arguing that a jury must
       determine whether a capital defendant is mentally retarded.
              ***
              Based on the Apprendi line of cases, Were claims that the
       determination of whether a capital defendant is mentally retarded was a
       factor that eliminated the possibility of a death sentence, and thus must
       be decided by the jury. The fact that a capital defendant is not mentally
       retarded, however, is not an aggravating circumstance that increases a
       defendant's punishment. Rather, the failure to find mental retardation
       simply means that the capital defendant remains eligible to be
       sentenced to death.      Such a finding can affect a sentence only by
       mitigating it. Other jurisdictions that have considered this argument
       have reached similar conclusions. See State v. Grell (2006), 212 Ariz.
                                                                                   -12-

       516, 526, 135 P.3d 696 (“Ring does not require that a jury find the
       absence of mental retardation”); State v. Laney (2006), 367 S.C. 639,
       647–649, 627 S.E.2d 726 (same); Pruitt v. State (Ind.2005), 834 N.E.2d
       90, 112–113 (same); Howell v. State (Tenn.2004), 151 S.W.3d 450,
       466–467 (mental retardation not required to be proven by the state nor
       found by a jury); Head v. Hill (2003), 277 Ga. 255, 258, 587 S.E.2d 613
       (Ring and Atkins do not require a jury trial on the issue of mental
       retardation); Russell v. State (Miss.2003), 849 So.2d 95, 148 (Ring has
       no application to Atkins determination).     We conclude that the trial
       court, not the jury, determines whether a capital defendant is mentally
       retarded. Nothing in the Apprendi line of cases requires otherwise.
Were at ¶ 184-186.
       {¶38} Therefore, considering that the argument made in this assignment of
error has already been rejected by the Ohio Supreme Court and that we are an
inferior court that is bound by the pronouncements of the Ohio Supreme Court, we
find no merit with the argument. See State v. Waddy, 10th Dist. No. 09AP-1197,
2011-Ohio-3154, ¶ 53 (Appellate court bound by Were’s decision that mental
retardation is not jury question); State v. Lawson, 12th Dist. No. CA2007-12-116,
2008-Ohio-6066, ¶ 7-9 (same); State v. Hill, 177 Ohio App. 3d 171, 187, 2008-Ohio-
3509, 894 N.E.2d 108, ¶ 65-69 (11th. Dist.2008) (same). This assignment of error
lacks merit.
                              Fourth Assignment of Error
       {¶39} “The trial court erred in failing to find Spivey incompetent to participate
in the proceedings and stay the proceedings until Spivey is competent.”
       {¶40} Under this assignment of error Spivey formulates the question to be
decided as whether the United States and Ohio Constitutions require a “capital
postconviction petitioner to be competent in order to meaningfully participate in
collateral proceedings?” He then asserts that the trial court erred in failing to find
Spivey incompetent and in failing to stay the proceedings until competence was
restored.
                                                                                   -13-

      {¶41} The Ohio Supreme Court has held that a competency determination
must be made before a capital defendant may waive his right to seek postconviction
review of his conviction and sentence. State v. Berry, 80 Ohio St.3d 371, 382-383,
696 N.E.2d 1097 (1997). Or, in other words, a capital defendant must be deemed
competent before he can forego further legal proceedings and submit to his
execution.   Id.   This rule of law however has not been extended to require a
determination as to whether a capital defendant who chooses to seek postconviction
review is competent to proceed. Previously, we have held that a trial court does not
abuse its discretion when it does not grant a capital defendant a competency
evaluation to determine if the capital defendant is competent to assist in the
postconviction proceedings. State v. Eley, 7th Dist. No. 99CA109, 2001 WL 1497095
(Nov. 6, 2001). See also State v. Cassano, 5th Dist. 12CA55, 2013-Ohio-1783, ¶ 39-
42. We explained:
             In a post-conviction relief proceeding, the petitioner's life is at
      stake. Thus, it is tempting for this court to grant Eley the requested
      competency hearing considering the nature of this case. However, we
      must exercise judicial restraint and acknowledge that a petitioner
      receives no more rights than those granted by the statute. State v.
      Calhoun, (1999), 86 Ohio St.3d 279.
             Consequently, we cannot find that a post-conviction proceeding
      should be treated as a quasi-criminal proceeding where the petitioner
      must be competent to participate.      Inasmuch as the post-conviction
      statute does not provide for a competency hearing at this stage, and
      guided by Berry, we conclude the trial court did not abuse its discretion
      by refusing a competency hearing.        We specifically hold a capital
      defendant is neither statutorily nor constitutionally entitled to a
      competency hearing as a part of his or her post-conviction proceedings.
Id.
      {¶42} Appellant has not persuaded us that the reasoning and conclusions of
the foregoing cases are flawed and we decline to overrule our prior precedent.
Accordingly, other than a competency hearing to ensure that a capital defendant is
                                                                                     -14-

competent to make the decision to forego postconviction proceedings and submit to
his execution, a capital defendant is not entitled to a competency evaluation and
hearing to determine whether he is competent to assist in the postconviction
proceedings.
       {¶43} Regardless, even if we are incorrect in our determination, there is no
basis to find error with the trial court’s actions in this instance. As aforementioned, in
2008 Spivey requested a competency evaluation. The trial court granted that and
stayed the proceedings for purposes of allowing Spivey to be evaluated by Dr.
Gazley from the Forensic Center of Northeast Ohio. A competency hearing was held
on August 26, 2010. Following that hearing, the trial court concluded that Spivey was
competent. Therefore, since the trial court ordered a competency evaluation, stayed
the proceeding until competency could be determined, and held a competency
hearing, any constitutional right that may exist for a competency determination for a
capital defendant during postconviction proceedings was met. Any argument to the
contrary lacks merit.
       {¶44} Spivey’s stated assignment indicates that the trial court erred when it
found him to be competent. However, he does not present an argument in the brief
that the trial court’s conclusion is not supported by the record. Thus, without an
argument to support his position, the position fails.
       {¶45} That said, even if we consider their position, it is not supported by the
record because it does not demonstrate that the trial court abused its discretion in
finding Spivey competent. State v. Clark, 71 Ohio St.3d 466, 469, 644 N.E.2d 331
(1994) (review competency determination under an abuse of discretion standard of
review). The only information in the record that is reviewable regarding what the trial
court’s decision was based on when it found Spivey to be competent is Dr. Gazley’s
report on competency and the trial court’s ruling. The transcript of the competency
hearing was not filed of record. The report indicates that Spivey is competent to
proceed with the postconviction proceedings. When asked questions about his death
sentence and the appeals process, Spivey indicated that he was on death row, that
death is his sentence and that an appeal could change whether he dies or not. Dr.
Gazley 06/22/10 Competency Report pg. 4. The report also states that Spivey does
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not suffer symptoms of mental illness or defect and therefore those conditions do not
diminish his ability to communicate with counsel regarding the facts of the case. Dr.
Gazley 06/22/10 Competency Report pg. 6. Rather, it is the passage of time and the
fact that he may have been high or intoxicated at the time of the offenses that affects
his communication with counsel regarding the facts of the crime.            Dr. Gazley
06/22/10 Competency Report pg. 6, 8. Given that this report supports the conclusion
that Spivey is competent and since there is no filed transcript of the competency
hearing, we presume the regularity of that proceeding. State v. Stewart, 7th Dist. No.
11MA195, 2013-Ohio-753, ¶ 16 quoting In re Sublett, 169 Ohio St. 19, 20, 157
N.E.2d 324 (1959) (“all reasonable presumptions consistent with the record will be
indulged in favor of the validity of the judgment under review and of the regularity and
legality of the proceeding below”). Therefore, even if we review the competency
determination it must be upheld; the record supports the conclusion that Spivey was
competent. This assignment of error lacks merit.
                                      Conclusion
      {¶46} For the foregoing reasons, all assignments of error lack merit. The
judgment of the trial court denying the timely successive postconviction petition is
hereby affirmed.

Waite, J., concurs.
DeGenaro, P.J., concurs.
