State v. Short

Full title: STATE OF OHIO Plaintiff-Appellee v. DUANE ALLEN SHORT Defendant-Appellant

Court: COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

Date published: Jun 22, 2018

2018 Ohio 2429 (Ohio Ct. App. 2018)

Opinion

Appellate Case No. 27399

06-22-2018

STATE OF OHIO Plaintiff-Appellee v. DUANE ALLEN SHORT Defendant-Appellant

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee KIMBERLY S. RIGBY, Atty. Reg. No. 0078245, and ERIKA M. LAHOTE, Atty. Reg. No. 0092256, Office of the Ohio State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorneys for Defendant-Appellant

TUCKER, J.

Trial Court Case No. 2004-CR-2635 (Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee KIMBERLY S. RIGBY, Atty. Reg. No. 0078245, and ERIKA M. LAHOTE, Atty. Reg. No. 0092256, Office of the Ohio State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorneys for Defendant-Appellant TUCKER, J.

{¶ 1} Defendant-appellant Duane Short appeals from a judgment of the Montgomery County Court of Common Pleas denying his petition for post-conviction relief. Short claims that the trial court erred by failing to conduct a hearing on, and by ultimately dismissing, his petition He further contends that the trial court erred in its application of the doctrine of res judicata as a bar to his claim for relief. Finally, Short contends that the trial court erred by overruling his post-conviction motions to conduct discovery and to provide funds to enable him to employ experts and to obtain expert testing.

{¶ 2} We conclude that Short's petition, along with its supporting materials, does not set forth substantive grounds for relief, thus the trial court did not abuse its discretion in denying his petition without a hearing. We further find no prejudicial error in the trial court's application of res judicata as a bar to some of Short's claims. Finally, we conclude that the trial court did not abuse its discretion with regard to the denial of discovery, the appointment of experts, or the denial of his request for testing.

{¶ 3} Accordingly, the judgment of the trial court is affirmed.

I. Facts and Proceedings

{¶ 4} Short was convicted of the shooting deaths of his estranged wife, Rhonda Short and of Donnie Sweeney. For a recitation of the facts in this case relevant to Short's direct appeal of his conviction, see State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121.

{¶ 5} We also note the following facts relevant to Short's petition for post-conviction relief. Rhonda and Short resided in Butler County, Ohio along with their three children. On Thursday, July 15, 2004, Rhonda, leaving a note for Short behind, moved out of the marital home taking the two younger children with her. The oldest child, J., who was 14 at the time, elected to remain with his father. Rhonda and the two younger children then went to the home of her friend, Brenda Barion.¹ Rhonda and the children stayed in different hotels on the nights of July 15, 16, 17, 18 and 19. The rooms were paid for by Barion. Barion and Rhonda also hid Rhonda's car. On July 17, Barion located a home for Rhonda on Pepper Drive in Huber Heights that was available for rent. On July 19, Rhonda called Dayton Power & Light ("DP&L") seeking to obtain electric service for the home. She used her maiden name for the account. She and the two younger children moved into the home on July 20. Barion went to Rent-A-Center in an effort to procure furniture for the home. However, she decided against doing so in order to avoid giving out information regarding Rhonda.

1 Barion is the mother of Donnie Sweeney. She, Rhonda and Donnie taught Sunday school at the same church. Barion and Rhonda had been friends for approximately three years prior to the shooting.

{¶ 6} According to J., when Short returned home from work on July 15, he read the note and seemed upset and angry. Short then took J. with him to drive around looking for Rhonda.

{¶ 7} The following day, Short took J. to the home of Rhonda's friend, Leah Potter. Short informed Potter that Rhonda had left him. After the visit, Potter sent an email to the Monroe Police Department indicating that she thought Short was mentally unstable and suicidal. That evening, Monroe Police Officer Mike Rosenbalm received a dispatch to go to the Short residence. Upon his arrival there, he came into contact with Short. Rosenbalm observed that Short was "very emotional, crying." That night, Short was admitted to Middletown Regional Hospital with suicidal and homicidal thoughts. He was released the following day.

{¶ 8} On July 18, Short went to Barion's home. Short asked her where Rhonda was, but Barion did not tell him. On July 19 or 20, one of Short's co-workers at a grocery store in Trenton, Ohio, noted that Short was tearful and run down. The co-worker stated that during the work day, Short repeatedly stated that he "just wanted to die."

{¶ 9} On Wednesday, July 21, Short took J. to a church attended by Loren Taylor. Taylor and Short's father are cousins. Short approached Taylor in the church and asked to speak with him. Taylor did not recognize Short until Short reminded him of his name. Short informed Taylor that Rhonda had left him. Short also waved his fist in the air and stated that he "thought about going over there and killing him." Short did not identify the person to whom he was referring. Taylor told him not to speak that way in a church, and Short responded "I know, I understand. * * * God has been dealing with me. I don't want to think that way." Short then began to leave the church, but Taylor asked him to stay for the service.

{¶ 10} According to J., he and his dad went to four different church services during the week they were looking for Rhonda. He also indicated that Short received several disturbing telephone calls during the week prior to the shootings. He described the calls as "music" or "someone played songs." J. indicated that the calls upset his father.

{¶ 11} On July 22, at 3:39 p.m., Short telephoned DP&L and informed the customer service representative that he was calling because he and his wife had filed a bankruptcy action and he wanted to make sure their accounts noted the bankruptcy. He also claimed that he wanted to determine whether they had any outstanding accounts. The representative confirmed that Short's marital residence account contained the bankruptcy information. Short then provided the representative with Rhonda's social security number and asked her to check on the status of any other accounts. The representative informed Short of the account Rhonda had just opened and provided him with the address.

{¶ 12} After obtaining the address, Short and J. drove 42 miles to Huber Heights where Short located a real estate office. He and J. entered the office, and Short told one of the realtors that he was from Miamisburg, did not know his way around Huber Heights, and was looking for the home of a friend who had just moved to the Pepper Drive area of Huber Heights. Short asked the realtor for a map of the area. The realtor informed him that they did not have any maps. However, the realtor then used his computer to generate a map of the Pepper Drive area which he gave to Short. Short and J. then returned home.

{¶ 13} At 6:00 p.m., Brandon Fletcher, a friend of both Rhonda and Short, was visiting another friend who resided on the same street as Short. Short made J. go over to the home and ask Fletcher to come to their house. Once Fletcher arrived, Short told him that Rhonda was in Florida. He then asked whether Fletcher still had a shotgun to sell that he and Fletcher had previously discussed.

{¶ 14} Fletcher, who attended the same church as the Shorts, was already aware that Rhonda had moved out of the home. Approximately two weeks prior, he had observed Rhonda and Sweeney hugging in the church basement. Fletcher had, at that time, informed Short of what he had seen and told Short that he thought the interaction did not look right and that he did not like what he saw. Fletcher further informed Short that he had observed Rhonda leave church first and that Sweeney would follow her a few minutes later. Fletcher thought that Short acted "upset by finding out that his wife was possibly involved with another guy." Based upon this knowledge, Fletcher decided not to sell the gun to Short.

{¶ 15} At 6:30 p.m. that same day, Barion gave Sweeney a charcoal grill, cookware, silverware, glasses, paper plates and potting soil to take over to Rhonda's home. Around the same time, Short telephoned his boss and asked to borrow the company truck, citing the need to move some furniture. Upon receiving permission to use the truck, Short and J. drove to Trenton to get the white Ford pickup. Short left his vehicle at the store, and he and J. returned home. At 7:30 p.m., Short called Dick's Sporting Goods. Afterward, Short gathered a black raincoat, two hats, a green towel, gloves and shotgun ammunition.

{¶ 16} Short and J. then drove approximately 20 miles to the Dick's Sporting Goods located in Miamisburg near the Dayton Mall, where Short purchased a 20-gauge shotgun at 8:46 p.m. They then drove two miles to Meijer where Short purchased beef jerky and a hacksaw. After leaving Meijer, Short drove approximately 17 miles to Huber Heights. He used the map from the realtor's office to find Pepper Drive. He made J. put on one of the hats, while he put on the other. Short told J. that Rhonda was living at 5035 Pepper Drive and that he did not want Rhonda to recognize them if she observed them in the truck. Short drove past the home slowly. He and J. observed Rhonda in the home and Sweeney's car parked at the home.

{¶ 17} Short drove approximately three miles to a hotel where he paid for a room. He then took the shotgun and hacksaw into the room. Short placed the "do not disturb" sign on the door handle, closed the blinds, turned on the television and turned the volume to high. Short then began to saw off the shotgun barrel. At one point, he required J. to sit on the gun while he was sawing. J. asked Short whether he could talk to Sweeney or "just fight" him rather than shoot him. Short then stated that he wondered if he should remarry. He then said, "[n]o, I have to do this."

{¶ 18} Short and J. returned to the vehicle and drove to Rhonda's home. They parked on a cul-de-sac street directly across from, and facing, Rhonda's home. Short then put on the black raincoat, exited the truck and walked to Rhonda's home. He went to the backyard of the home and then returned to the truck. At that point, Short put the shotgun shells in his pocket and placed the shotgun under the raincoat. He told J. to keep his head down so that he would not be harmed. Short then went to the home where he shot Sweeney, who was grilling in the backyard. He then entered the home, brushed past his two younger children, kicked open the bathroom door and shot Rhonda.

{¶ 19} The two children ran to a neighbor's home. The neighbor called 9-1-1, and police were dispatched at 10:27 p.m. Short returned to the truck, placed the shotgun inside and told J. that he thought he had killed Rhonda and Sweeney. He then drove to a nearby UDF convenience store where he asked the clerk to call the police. Short then returned to Rhonda's home where he parked in the yard.

{¶ 20} When Huber Heights Detective Charles Taylor and Officer Robbie Graham arrived at Rhonda's home, they observed the white pickup truck in the grass and Short leaning inside the open driver's door. Graham yelled at Short, who looked at him and then began to walk toward the back of the house. Graham and Taylor followed Short and repeatedly told him to stop. Short was arrested and transported to jail.

{¶ 21} On September 20, 2004, Short was indicted on one count of breaking and entering, three counts of aggravated murder, one count of aggravated burglary and one count of unlawful possession of a dangerous ordnance. Each of the counts of aggravated murder carried capital specifications of multiple murder and felony murder. All of the indicted counts carried firearm specifications.

{¶ 22} On September 21, 2004, attorneys Bobby Joe Cox and Michael Pentecost were appointed to represent Short. Counsel filed a demand for discovery, a motion for a bill of particulars, a motion to suppress, a motion seeking authority to hire a mental health practitioner, and a suggestion of incompetency and request for a competency evaluation.

{¶ 23} Thereafter, Short was evaluated by Scott Kidd, Psy.D. A competency hearing was conducted on January 13, 2005, following which the trial court found Short competent to stand trial. During that hearing, the following colloquy took place:

THE COURT: * * * [W]e will proceed with setting his motion to suppress for hearing.

MR. COX: Your Honor, that's what we appear here today [sic] and Mr. Pentecost and I would like as his attorneys so we can aggressively and zealously represent his rights. However, our client is refusing to follow our advice. He wishes to address the Court and he is doing this against our will. My will as his attorney as well Mr. Pentecost, if the Court will permit him, he's got something he wants to read to the Court. Is that a correct statement, Mr. Short?

MR. SHORT: Yes, sir.

MR. COX: And, is that against the advice of both Mr. Pentecost and myself?

MR. SHORT: Yes, sir.

THE COURT: Mr. Short, before you say anything you understand that you have these two attorneys who are representing you and are looking after your best interest, do you understand that?

MR. SHORT: Yes, ma'am.

THE COURT: You further understand, sir, that if you say something here that could be used against you?

MR. SHORT: Yes, ma'am.

THE COURT: All right * * * go ahead, sir.

* * *

MR. SHORT: I have a letter here that I've proposed for you this morning. Your Honor, I wish to inform you today that I would like to withdraw the motion to suppress and enter a plea of guilty without any mitigation. Furthermore, having been informed by Mr. Cox and Mr. Pentecost of such a decision, being fully satisfied with both my counsel and having the utmost respect for them both, I have been - no way been influenced by either Mr. Cox or Mr. Pentecost to make this decision. It is solely my decision to do so, and I fully understand what I am doing as I am fully competent of making this decision. Also, I am requesting that no more motions be submitted by my attorneys in excessiveness that are not required by law that will prolong

this case any longer as I wish to proceed towards waiving a jury trial and a plea date. Further, if my attorneys wish to continue to submit motions in except - in excessiveness against my will, I wish to dismiss them both on my behalf and represent myself, allowing my attorneys to stand silent by my side for any questions that I may have as I proceed. That is all I have, Your Honor, thank you.

THE COURT: And, I'll ask you a couple questions, Mr. Short, okay? You understand, sir, that these two gentlemen are here to represent your interests, do you understand that?

MR. SHORT: Yes, ma'am, I fully understand that.

THE COURT: You understand further that, sir, that if - that this is a death penalty case, sir, you understand that?

MR. SHORT: Yes, ma'am, I understand.

THE COURT: Okay. You talked to your family about this?

MR. SHORT: Yes, ma'am, I have.

THE COURT: You understand that the motions your attorneys have filed are not excessive. They are in an effort to protect your interests?

MR. SHORT: Yes, ma'am. What I meant by that is I don't want to be sitting here on a periodic six-week basis while they continue to file motions for my competency to make a plea or, you know, for my mental stability, because I am fully competent and I'm aware of what I'm doing completely.

* * *

MR. COX: He has been locked up approximately six months whence the

incident occurred. Numerous, numerous hours I have spent with this gentleman as well as Mr. Pentecost. I've did [sic] everything. I've begged him, okay, to listen to us and let us do our job as lawyers. Mr. Pentecost and I talked to him yesterday for about two hours in the jail and we told him what we were going to do today, and that he will not listen to us. However, I would ask the Court and Mr. Pentecost is in total agreement with this that we do not feel that he's capable of making this decision, okay. This is against his will, but I'm doing this as an officer of the Court, and I would ask the Court to review the Ashworth decision by the Ohio Supreme Court and I would ask for a mental examination of my client. I further told him that, because he told me what he was gonna do today, and then I told him to think about it yet again and hold off and not do that this morning. But, when I got here he said he wasn't gonna listen to us anymore at all, and he's gonna do his thing and read that letter. So, I don't believe he's capable of making that decision and I would ask the Court not to permit him to withdraw his motion to suppress at this time, and to proceed to have him examined as mandated by the Ohio Supreme Court in this type of occasion.

THE COURT: First of all, I am not going to permit the Defendant to withdraw his motion at this time. I would like to have a conference in chambers with counsel this afternoon at 2:30, if that's possible.

Tr. p. 11-14.

{¶ 24} The next day, Short and counsel returned to the courtroom where the following colloquy occurred:

MR. SHORT: I haven't changed my mind, Your Honor, as to what I stated yesterday. I've been told and been prodded - it'd be in ...

THE COURT: I'm sorry, I didn't hear?

MR. SHORT: I've been counseled this morning and pressured a lot to try to make a decision not to make this decision, but I can't honestly say that I've changed my mind from what I said yesterday, to be honest with you.

THE COURT: Do you want some more time to think about it? This obviously, sir, this is a very weighty decision, but it's also your decision. But you have the counsel of two very fine attorneys who are here to help you and to assist in your defense, and yesterday I tried to make the impression on you that it was very important for you to listen to their counsel and to make your decision based on that. After you've had an opportunity to talk with them this morning, do you intend to proceed as you discussed yesterday, which is to enter a plea which we will not be doing today as you know that, and then to proceed to not offer any mitigation evidence?

MR. SHORT: And, that would mean I would get to proceed and get my evaluation to see if I'm able to do that?

THE COURT: Correct. If - if that's - again, sir, that's your choice, but I ask you to exercise, you know, a great deal of caution in that. Your attorneys as I said before are here to help you and to counsel you, and they have counseled you differently, is that correct? That you should proceed with the motion to suppress?

MR. SHORT: Yes, ma'am.

THE COURT: All right. Based upon your discussions with them, sir, what do you want me to do today?

MR. SHORT: Like I said, Your Honor, I haven't changed my mind from what I said I wanted to do yesterday. I think that if it's hard to proceed with an evaluation because I changed my mind at the time of that evaluation. I have not changed my mind at this moment with what I said yesterday.

THE COURT: All right. Well, I want you to understand, sir, you have the right to change your mind, and if at any time during this process you decide that you want to proceed with the motion to proceed [sic], that if you want to withdraw your request to enter a plea and not offer any mitigation, you have that right at any time, do you understand that?

MR. SHORT: Yes, ma'am. I just don't want to be toying with the courts, if you will...

THE COURT: You're not.

MR. SHORT: ...because the decision that I made yesterday I made - decided to make that decision, and I don't feel like just turning around and withdrawing that decision because I don't - that's not what I want to do right now.

THE COURT: I want you to understand a couple of things. You're not toying with anybody. This is very - a very weighty decision, and it is in - it is more important that you make a knowing, intelligent and voluntary decision. You are not inconveniencing me or anyone else. And, so if you change your mind, I don't want you to be afraid to tell anybody, because it's

not an inconvenience. It - it - it should not - you should not consider it as like I said whether it's an inconvenience to anyone or is causing anybody any distress. These are your choices, but I want them to be voluntary on your part, all right?

MR. SHORT: Yes, ma'am.

THE COURT: All right. Your attorneys have explained to you, sir, that based upon your statements yesterday there are certain procedures that we have to follow, do you understand that?

MR. SHORT: Yes, ma'am.

THE COURT: One of those procedures, is, is that I am required to have you examined by a second professional to determine certain factors, do you understand that?

MR. SHORT: Yes, ma'am.

THE COURT: And, by doing that, sir, that's gonna take some time.

MR. SHORT: I understand that.

* * *

MR. COX: I explained that to him, Your Honor. I asked him earlier this morning because if he wants to go the way he wants to go, which is different than his lawyers that it takes time. The Supreme Court mandates a certain evaluation in - and so we have to follow that. It's something the Court has to do, but I asked him would he sign a [speedy trial] waiver and not be in such a rush to get this thing to a point that he wants it to so that we can all do our jobs. As lawyers we can do our job. The Court can do their job,

and he just is not listening to me, Your Honor. Is that a fair statement?

MR. SHORT: Yes.

THE COURT: All right, sir.

* * *

MR. COX: And, I explained that, Your Honor, and - and I explained to him that I'm the one that asks for the evaluation along with co-counsel here, Mr. Pentecost, and the reason we did that is because we feel the law needs to be followed as officers of the court, and based on the Ashworth decision, which we both have dealt with in other cases, this is a necessary procedure to protect my client's interest.

THE COURT: Do you understand further, sir, as Mr. Pentecost and Mr. Cox have told you the Supreme Court mandates certain procedures in a case such as yours where you are requesting to enter a plea and not to offer any mitigation. And, that I am required to comply with those procedures, do you understand that?

* * *

THE COURT: And, your attorneys went over the Ashworth case with you and advised you and discussed with you the requirements that are necessary in order to meet your request to enter a plea and not offer any mitigation?

MR. SHORT: Yes.

THE COURT: All right. Do you have any questions about any of that, sir?

MR. SHORT: No, ma'am, I do not.

Tr. p. 18 - 23.

{¶ 25} The trial court then appointed Dr. Kim Stookey from the Forensic Psychiatry Center to perform an evaluation. Following the evaluation and report by Dr. Stookey, the issue of Short's competency to enter a plea and waive mitigation was set for hearing on March 16, 2005. On that date, the hearing was postponed as the parties indicated to the court that a plea agreement was being negotiated. On March 23, 2005, the parties appeared in court and informed the court that Short had decided to proceed with the motion to suppress and trial. The suppression motion was set for hearing on June 6, 2005.

{¶ 26} However, prior to the hearing on the motion to suppress, the parties did enter into a plea agreement. On May 19, 2005, the parties appeared in court at which time the trial court reviewed the charges and potential penalties, the terms of the written plea agreement, as well as Short's constitutional rights. The plea agreement provided that Short would enter a plea of guilty to each charge and specification in the indictment. In exchange for the plea, the State agreed that Short would be sentenced by a three-judge panel to an aggregate prison term of two consecutive life terms without the possibility of parole, plus seven years. The parties agreed to stipulate that the aggravating factors did not outweigh the mitigating factors. The plea before a three-judge panel was scheduled to occur on June 6 and 7, 2005.

{¶ 27} On June 3, 2005, the parties appeared before the court at which time Short indicated that his father had retained attorney Patrick Mulligan to represent Short. Short further indicated that it was his desire to proceed with Mulligan as his attorney and that Cox and Pentecost withdraw as counsel. On that same date, Short entered a plea of not guilty by reason of insanity. The trial court ordered another evaluation at the Forensic Psychiatry Center. Subsequently, George Katchmer entered his appearance as co-counsel for Short. Defense counsel proceeded to file more than sixty motions.

{¶ 28} During a pre-trial hearing conducted on March 31, 2006, the following exchange took place:

THE COURT: The Defendant was to turn over to the State by last Friday reports with regard to mitigation, and it's my understanding that that was not done * * * we have a trial date that's two weeks from Monday, and so I'm gonna go ahead and have Mr. Katchmer indicate what you wanted to talk about on the record, and then let the State follow up with any additional concerns.

MR. KATCHMER: Your Honor, as far as any reports, etcetera, we do not have them. We do not anticipate having any psychological reports, medical reports. I think that's the concern of the Prosecutor that he doesn't have to have a stack of medical or psychological reports he's gonna have to go through at the last minute. I can represent that that is not going to happen. And, in fact, I think the Court has an issue with Mr. Short concerning a mitigation expert. We have no intention of hiring a mitigation expert. We have discussed this with Mr. Short and explained what we intend to do for mitigation, and I believe if the Court wants to address him, he will affirm my conversation and his understanding of it without going into strategic detail. * * * I will represent to the Court that I am going to be going to Mr. Short's parents' home on Tuesday of next week. Mr. Daidone

asked me whether I was going to turn up any family pictures or anything like that. And, to be honest with you, I am going down there and I am gonna look, and if I do, I'm certainly not gonna come back with a volume of psychological reports. But, if I do see anything like that that I would intend to use in mitigation, I will give it to Mr. Daidone promptly.

* * *

THE COURT: Mr. Short, I inquired of your counsel last week if they intended to hire a mitigation specialist, which is a person who would assist in the preparation of your mitigation evidence. It's my understanding in discussing in a pretrial with all the counsel that Mr. Katchmer and Mr. Mulligan have talked with you about a mitigation specialist, and I'm just gonna ask you to answer yes or no, or however you want to answer it. Don't talk about their strategy, okay? But they've discussed that with you, is that correct:

MR. SHORT: Yes, ma'am.

THE COURT: All right. And you're aware of what a mitigation specialist is?

MR. SHORT: Yes, ma'am.

THE COURT: And, they also talked with you about the possibility of hiring or seeking out experts to present evidence or testimony at mitigation, is that correct?

MR. SHORT: Yes, ma'am.

THE COURT: All right. And, based upon their discussions with you, are

you satisfied with their advice in terms of not hiring a mitigation specialist?

MR. SHORT: Yes, ma'am.

Tr. p. 271-273.

{¶ 29} A jury trial began on April 17, 2006, following which the jury found Short guilty of all charges in the indictment. The mitigation and sentencing phase of trial began on May 8, 2006. At that time, the following exchange took place:

THE COURT: Before we bring the jury in, there are a few issues that we need to consider on the record. The first one is, it's my understanding, Mr. Katchmer, that the Defendant does not intend to present any additional mitigating evidence other than that which was presented in the trial phase, is that correct?

MR. KATCHMER: That's correct, Your Honor.

THE COURT: All right. And, it's my understanding further that you discussed with Mr. * * * Short his right to present mitigation evidence and what mitigation evidence consists of, correct?

MR. KATCHMER: That is correct, Your Honor.

* * *

THE COURT: Mr. Short, it's my understanding that you have consulted with your attorneys with regard to the issue of mitigation, is that correct?

MR. SHORT: Yes, ma'am.

THE COURT: All right. Sir, further if you will recall previously we discussed on the record the fact that it was your choice not to hire a mitigation specialist that was someone to assist your attorneys with

mitigation, and that could have been provided to you. I would have provided it to you through the State Public Defender's Office, you understand that?

MR. SHORT: Yes, I do.

THE COURT: All right. It's my understanding further, sir, that you did not want then and you do not want now any additional assistance in the presentation of mitigation evidence, is that correct?

MR. SHORT: That is correct.

THE COURT: You also understand what mitigation is?

MR. SHORT: Yes, ma'am, I do.

THE COURT: What do you understand that it means?

MR. SHORT: Mitigation is factors that could result in causing the jury to sway the case to give me more of a possibility of a more in-depth look into what happened and possibly a lighter sentence.

THE COURT: All right. And, you have discussed mitigation with both Mr. Mulligan and/or Mr. Katchmer, is that correct?

MR. SHORT: Yes, ma'am, I have.

THE COURT: Do you have any questions about what mitigation is or what it means?

MR. SHORT: No, I do not. I've been fully explained by both Mr. Katchmer and Mr. Mulligan.

THE COURT: And, they have answered all of your questions, sir?

MR. SHORT: Yes, they have.

THE COURT: Okay. Do you have any questions for me?

MR. SHORT: No, I do not.

THE COURT: All right. Do you understand, sir, that in this phase of the trial, that being the sentencing phase, you do not have a burden of proof, instead you have a burden of going forward, that is presenting what the mitigation evidence that you would like to offer is, do you understand that?

MR. SHORT: Yes.

THE COURT: Do you also understand that the State still has the burden of proving beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, and unless and until the State proves that the jury could not then sentence you to death, do you understand that?

MR. SHORT: Yes.

THE COURT: All right. Do you understand the importance of presenting mitigation evidence, sir?

MR. SHORT: Yes, I do.

THE COURT: Why do you think it's important to present mitigation evidence?

MR. SHORT: I think it's important to present evidence for - on my behalf because it would give the jurors, like I said, a more indef [sic] perspective than them just considering what the prosecution had presented to weigh more accurately their sentencing phase, I guess.

THE COURT: Okay. And, you understand, sir, that the importance of mitigation can be and probably is that without mitigation it may be, I don't

know, but it may be difficult for the jury to impose anything other than the death sentence, do you understand that?

MR. SHORT: I certainly do.

THE COURT: All right. Do you understand, sir, that the use of mitigating evidence is for the purposes of offsetting the aggravated circumstances which the jury already found you guilty of, do you understand that?

MR. SHORT: Yes, ma'am, I do.

* * *

THE COURT: You also understand though, sir, that the jury can consider in addition the nature and circumstances of the offense, your history, character and background, and any other mitigating factors or mitigating evidence that you present, do you understand that?

* * *

MR. SHORT: Yes, I do understand that.

THE COURT: All right. * * * Do you understand, sir, the difference between the choice of life and death?

MR. SHORT: Yes, ma'am, I do. * * * That's a choice that I have to make a decision on my own today whether - what you're questioning me about - about the mitigating phase of this trial is it could very well cost me my life if I don't put on any mitigation. I understand that fully.

THE COURT: Do you understand, sir, though that there was evidence presented in the trial phase that the jury can consider that they may consider to be mitigating, the fact that you have children and were employed, or

whatever it might be, I'm not limiting it to those things, sir.

MR. SHORT: Right. * * * I understand that there was other things brought up that could already be considered as mitigating evidence to weight their decision on what the sentence they would deem properly being imposed. I understand that.

THE COURT: All right. And, do you feel that you have all the information that you need to make this decision?

MR. SHORT: Yes, I do.

THE COURT: All right. And, you discussed these issues with Dr. Stookey previously, is that correct?

MR. SHORT: Yes.

THE COURT: Did she answer any questions you had about mitigation or the need or the right that you have to present that?

MR. SHORT: Yes, she fully explained everything to me and I also read her report and if my recollection is correct her report stated that the way that I viewed things was pretty much reasonable, the way I was lookin' at things, and she put that I was of sound mind to do so.

THE COURT: Do you agree with that?

MR. SHORT. Yes, I do.

THE COURT: Do you feel that since you were interviewed by Dr. Stookey that your status or your mental health has changed in any way?

MR. SHORT: No - no, I do not.

THE COURT: All right. Sir, during the trial phase and during even this

discussion today have you fully understood everything that I have said or during the trial what the prosecutor said or your attorneys said?

MR. SHORT: I fully understand everything that I've heard from the prosecution, from my defense lawyers, and also from your instructions.

THE COURT: Sir, have you had an adequate opportunity to consider this decision not to present any additional mitigating evidence, including discussing that matter with your attorneys, your family, any spiritual guidance that you've sought, do you feel that you've had an adequate opportunity to do that?

MR. SHORT: Yes, I have had adequate opportunity to do that prior before obtaining Mr. Mulligan when I had Mr. Cox, I gave it a lot of thought then and the last day that we were in court and you told me that, you know, that it was my choice to do that again and since the weekend has passed, I've dwelled and thought upon it very seriously and I still have come thinking this is the course and it's the route that I would like to go.

THE COURT: All right. Had you been considering that issue, sir, even before this weekend, before the jury's verdict? Had you been giving it thought before this weekend?

MR. SHORT: Yes, I had given it thought * * * but * * * I don't know what I'm wanting to say, if I should say it, you know, in front of everyone.

THE COURT: Why don't you say it - tell Mr. Mulligan first since he's next to you and then you can consider that first, sir?

* * *

MR. SHORT: Mr. Mulligan suggested I should just reserve that comment.

THE COURT: All right. And, you had an opportunity to talk with your counsel about this matter and he answered any question that you have today, correct?

MR. SHORT: Yes.

THE COURT: And Mr. Short, have you had an opportunity to review the report of Dr. Scott Kidd, and you indicated you reviewed Dr. Stookey's report, correct?

MR. SHORT: Yes, I did both of them Scott Kidd and Dr. Kim Stookey and also Dr. Barbara Bergman if I'm not mistaken.

THE COURT: And Dr. Bergman's report, however, went to your not guilty by reason of insanity defense, do you understand that?

MR. SHORT: Right. But, I guess if I'm not mistaken, I had two interviews with Dr. Kidd.

THE COURT: Correct. Sir, do you have any questions about those reports or what was contained in those reports?

MR. SHORT: No, I fully sat down and read thoroughly through them and I understand everything that was, you know, she actually stated about this position.

THE COURT: And, have you had an opportunity to thoroughly review those matters with your counsel now either Mr. Mulligan and Mr. Katchmer, and your previous counsel Mr. Pentecost and Mr. Cox?

MR. SHORT: Yes, I have. Both counsels.

THE COURT: And, have your attorneys answered all of the questions you have, sir, regarding those reports?

MR. SHORT: Yes.

THE COURT: Have they answered all of your questions and satisfied any concerns you have about the presentation of mitigation?

MR. SHORT. Yes.

THE COURT: Have your attorneys stressed to you, sir, that it is important to present mitigation?

MR. SHORT: Yes, they have.

THE COURT: And they tried to convince you to present mitigation, correct?

MR. SHORT: They have stressed their views and their point about putting on mitigation to me, and it's a decision that I would - I'd like to do without mitigation.

THE COURT: Despite your attorneys' advice, sir, you've made the decision yourself to not present any additional mitigation evidence, is that correct?

MR. SHORT: Yes, I have for certain reasons.

THE COURT: And, sir, you don't have to tell me what those reasons are, but for your own reasons, is that your choice?

MR. SHORT: Yes, that is my own choice.

THE COURT: And, is that your voluntary act indeed? Nobody is forcing you to do this or compelling you to do this?

MR. SHORT: No.

Tr. p. 2465 - 2474.

{¶ 30} Thereafter, the mitigation/sentencing phase of trial began. Both the State and Short waived the presentation of any further evidence and the matter was submitted to the jury. Following deliberations, the jury returned a verdict finding that the aggravating factors presented by the State outweighed the mitigating factors presented by Short and that a sentence of death should be imposed. Sentencing was set for May 24, 2006.

{¶ 31} On May 23, 2006, Short filed a motion for continuance. Thereafter, on May 24, the parties appeared before the trial court at which time defense counsel argued that Short was entitled to an additional sentencing hearing as provided for by R.C. 2929.19(A)(1). Following arguments by both sides, the trial court took the matter under submission.

{¶ 32} The parties returned to court on May 30. At that time, the trial court overruled the motion for additional hearing. Short then made an unsworn statement to the court. Of particular note, he stated:

One thing I would like to make known in open court today is on Monday, May 8, 2006, my court was in session, the jurors were not present, but on the record with the prosecution and myself and my counsel present, you Judge Huffman asked me Mr. Short, is there any particular reason why you don't want to put on mitigation?

My response to you, was yes, but I don't know if I should say it on the record. So, you Judge Huffman asked me to console [sic] with my

counsel before I said anything. After consoling [sic] with my counsel, I said nothing in response at that time. But today, in this courtroom I would like to make known what I said to my counsel and the reason I personally didn't want to put on mitigation, and the reason was that I felt like what little mitigation I had was insignificant compared to the aggravating circumstances and it would not bear much weight for the consideration of the jurors' recommendation for sentencing. And, I - I just want everything to be over with.

My counsel on the other hand had already previously advised me that putting on mitigation would not be part of their strategy anyway. But, when these issues arise during court and you Judge Huffman ask me directly why there is a particular reason for going a certain direction, I try my best to answer you to the way I feel towards the issue and not the way my counsel views or suggests a certain strategy or direction they advise me I should go.

Tr. p. 2570 - 2571.

{¶ 33} Thereafter, a sentencing opinion was filed sentencing Short to death. The convictions and sentence were upheld on direct appeal to the Ohio Supreme Court. See Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121.

{¶ 34} On June 11, 2007, while his direct appeal was pending, Short filed a petition for post-conviction relief. He also filed a Motion for Appropriation of Funds for an Advanced Magnetic Resonance Imaging Procedure and a Positron Emission Tomography Scan, as well as a motion for Funding for a Neuropsychologist. On November 30, 2011, he filed a Motion for Discovery and a Motion for Funding for a Substance Abuse Expert. The State filed a motion for summary judgment on the petition. The trial court, without conducting a hearing, determined that Short was not entitled to relief. A decision and entry denying the petition was filed on December 6, 2016. The trial court also overruled his pending motions.

{¶ 35} Short appeals.

II. Analysis of Petition for Post-Conviction Relief

{¶ 36} Short's first assignment of error states as follows:

THE TRIAL COURT ERRED IN DISMISSING SHORT'S POST-CONVICTION PETITION WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS TO MERIT RELIEF OR, AT A MINIMUM, AN EVIDENTIARY HEARING.

{¶ 37} Short contends that the trial court erred in dismissing his post-conviction petition and/or granting the State's motion for summary judgment because he presented sufficient operative facts demonstrating that his constitutional rights had been violated thus meriting relief, or, at least, discovery and an evidentiary hearing.

{¶ 38} Although designed to address claimed constitutional violations, post-conviction relief constitutes a collateral attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). "It is a means to reach constitutional issues which would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction." State v. Murphy, 10th Dist. Franklin No. 00AP-233, 2000 WL 1877526, * 2 (Dec. 26, 2000). A post-conviction proceeding is a civil proceeding and is controlled by R.C. 2953.21. The statute does not mandate an automatic hearing for every post-conviction relief petition filed with the trial court. State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). A post-conviction relief petition may be disposed of by summary judgment, and no hearing is necessary, if the petition and its supporting evidentiary documents do not contain operative facts that would, if proven, establish a substantive ground for relief. State v. Armstrong, 56 Ohio App.3d 105, 108, 564 N.E.2d 1070 (1988). This court reviews the decision of the trial court under an abuse of discretion standard. State v. Quinn, 2017-Ohio-8107, ___N.E.3d___, ¶ 20 (2d Dist.), citing State v. Perkins, 2d Dist. Montgomery No. 25808, 2014-Ohio-1863, ¶ 27. A trial court abuses its discretion when its decision evidences an attitude that is arbitrary, capricious or unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

A. Ineffective Assistance of Counsel

{¶ 39} Most of the grounds for relief alleged in Short's petition involve claims of ineffective assistance of counsel. When a convicted defendant alleges that he has been denied the effective assistance of counsel, he must demonstrate that counsel's performance was so deficient that he was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution, and that counsel's errors prejudiced him so as to deprive him of a reliable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In assessing counsel's performance, "an objective review of counsel's performance must be conducted in light of professional norms prevailing when the representation took place." State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d 1217, ¶ 68, citing Bobby v. Van Hook, 558 U.S. 4, 7, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009); Strickland, 466 U.S. at 688. "Under the deficient-performance prong, the court should 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " Herring at ¶ 68, quoting Strickland at 689. In the context of a petition for post-conviction relief, "the defendant, in order to secure a hearing on his petition, must proffer evidence which, if believed, would establish not only that his trial counsel had substantially violated at least one of a defense attorney's essential duties to his client but also that said violation was prejudicial to the defendant." State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982).

i. Failure to Properly Investigate Mitigation Evidence

{¶ 40} Short first contends that his attorneys were ineffective because they failed to conduct an appropriate investigation into mitigation evidence.

{¶ 41} "[M]itigating factors are facts about the defendant's character, background, or record, or the circumstances of the offense, that may call for a penalty less than death." State v. White, 85 Ohio St.3d 433, 448, 709 N.E.2d 140 (1999). R.C. 2929.04(B) requires that the trial court, when weighing the aggravating factors against the mitigating factors, consider "the nature and circumstances of the offense, the history, character, and background of the offender" as well as all of the following factors:

(1) Whether the victim of the offense induced or facilitated it;

(2) Whether it is unlikely that the offense would have been committed, but

for the fact that the offender was under duress, coercion, or strong provocation;

(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of the offender's conduct or to conform the offender's conduct to the requirements of the law;

(4) The youth of the offender;

(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications;

(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim;

(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.

{¶ 42} In a capital case, "[d]efense counsel has a duty to investigate the circumstances of his client's case and explore all matters relevant to the merits of the case and the penalty, including the defendant's background, education, employment record, mental and emotional stability, and family relationships." Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir. 2011). Counsel's "investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.' " Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989). "An attorney's failure to reasonably investigate the defendant's background and present mitigating evidence to the jury at sentencing can constitute ineffective assistance of counsel." State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 219, citing Wiggins at 521-522. The burden of demonstrating that counsel rendered ineffective assistance by failing to conduct an adequate investigation is placed on the petitioner. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 104, citing Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶ 43} Short's affidavit is devoid of any claim that counsel failed to properly investigate mitigating evidence. Further, the affidavit of Short's sister, Tracy Watson, avers that "[m]ost of the members of my family were interviewed by Duane's attorneys, Mr. Katchmer and Mr. Mulligan as possible witnesses to testify at the mitigation stage of Duane's case. Duane's attorneys wanted to find out who could help Duane the most with information leading up to the crimes." The affidavit of Short's sister, Tina Cornette, avers that she remembers counsel spoke with the family regarding mitigation testimony, but that a few weeks prior to trial, counsel decided against having the family testify. The affidavit of Short's father, Sam Short, also indicates that counsel spoke to Short's family regarding mitigation evidence. We also note that, contrary to Short's claim, the record shows that Mulligan and Katchmer did obtain copies of the files generated by Cox which contained some mitigation evidence, including Short's medical records. Further, as the medical records relevant to the petition for post-conviction relief were available to, and referenced by, the examining psychologists, it can be assumed that counsel was aware of the various issues Short had with regard to his claims of head injuries, substance abuse and other mental health issues. Thus, we agree with the trial court that this record does not set forth any evidence to support a claim that counsel failed to properly investigate mitigating evidence.

ii. Failure to Present Mitigation Evidence

{¶ 44} Short also claims that counsel acted deficiently by failing to present mitigation evidence.

{¶ 45} We first note, as did the Supreme Court of Ohio, that counsel did not fail to present mitigating evidence during the penalty phase of the trial. As set forth by the Court, counsel presented mitigating evidence during the guilt phase of trial and then "used that evidence in the penalty phase to argue that Short did not deserve death." Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 71. We further note that counsel presented a meaningful and cogent mitigation defense, i.e., that Short was overcome by strong provocation when Rhonda left him and that he "was 'not a cold-blooded person,' but was 'a mess,' was 'torn apart,' and had 'lost the battle with his demons when he killed Rhonda and Sweeney.' " Id. at ¶ 68. Thus, the only issue to be decided is whether counsel was deficient for failing to present additional mitigating evidence during the penalty phase.

{¶ 46} Short contends that counsel should have presented the testimony of numerous individuals who would have given the jury insight into his upbringing, medical history, and background.

{¶ 47} The decision of what mitigating evidence to present during the penalty phase of a capital trial is a matter of trial strategy. State v. Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47 (1997). "In State v. Johnson, 24 Ohio St.3d 87, 91, 24 OBR 282, 286, 494 N.E.2d 1061, 1065 (1986), [the Supreme Court of Ohio] made clear that 'the mere failure to present mitigating evidence at the penalty phase of a capital trial does not itself constitute proof of ineffective assistance of counsel or deprivation of the accused's right to a fair trial. It is conceivable that the omission of such evidence in an appropriate case could be in response to the demands of the accused or the result of a tactical, informed decision by counsel, completely consonant with his duties to represent the accused effectively.' " Id. Further, "out-of-record evidence that is merely cumulative of, or alternative to, other mitigation evidence defense counsel presented does not provide substantive grounds for a claim of ineffective assistance of counsel at mitigation." State v. Campbell, 10th Dist. Franklin No. 03AP-147, 2003-Ohio-6305, ¶ 37. "[D]ecisions regarding what witnesses to call falls within the purview of trial strategy and, absent prejudice, generally will not constitute ineffective assistance of counsel." Id. at ¶ 38. "A reviewing court may not second-guess every aspect of defense counsel's presentation of the mitigation evidence at the penalty phase of the trial." State v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321, ¶ 42, citing State v. Yarbrough, 3rd Dist. Shelby No. 17-2000-10, 2001 WL 454683 (Apr. 30, 2001).

{¶ 48} First, Short claims that counsel should have presented the testimony of his sisters, father, aunt and cousin, all of whom would have testified to the fact that Short's mother was unkind, even abusive, to him. They also would have testified that Short never felt like he fit in with his peers because he was not allowed to engage in any extracurricular activities due to his mother's strict religious beliefs. They would have provided testimony regarding his head injuries which they claimed caused his personality to change. Short further claims that he wanted to testify but counsel would not permit him to do so. He claims he would have testified regarding what caused him to believe Rhonda was engaged in an affair with Sweeney, as well as his poor mental status during the week she left him.

{¶ 49} Again, as noted above, counsel chose to proceed with the strategy of showing that Short was overcome with such strong emotion and provocation after Rhonda left him that he was unable to control his actions. We find this strategy reasonable, especially given that permitting Short or his family to testify would have opened the door to potentially damaging evidence, including evidence that Short committed adultery while married to Rhonda, that he was controlling with regard to Rhonda, that he had been arrested for domestic violence against his first wife, and that Rhonda had obtained a protection order against him because he threatened to kill her.²

2 In State v. Clark, 38 Ohio St.3d 252, 255, 527 N.E.2d 844 (1988), the Ohio Supreme Court noted that when a defendant raises "the issue of history, character and background" during the mitigation phase of a capital trial he "open[s] the door to all relevant evidence."

{¶ 50} Further, this evidence would have shown that despite his mother's faults, Short was surrounded by a father, grandmother and sisters who were very loving and had close relationships with him. The evidence would also have shown that both his family and Rhonda's family stayed at his side offering their care and support after Rhonda left him. This evidence could have dispelled any attempt to show the jury that his purportedly bad childhood or lack of strong relationships contributed to the crimes. Thus, counsel could have reasonably determined that the dangers of opening the door to character evidence outweighed any associated benefit, and we will not second guess this strategy.

{¶ 51} Short also complains that counsel failed to interview and present the testimony of his children during the penalty phase. He contends that the children would have testified that they had good relationships with him and that they loved him.

{¶ 52} The record demonstrates that counsel did attempt to interview the children. However, they were unable to do so as the guardians of the children refused to permit the interviews. Counsel filed a motion seeking to compel access to the children, but following a hearing on the matter, the motion was denied. Given that counsel was not able to gain access to the children in order to interview them, we cannot say that counsel was deficient for failing to call them to testify during the penalty phase of trial. It is entirely possible that the children, aged 15, 14 and 11 at the time of trial, would have provided damaging testimony.

{¶ 53} Next Short contends that counsel should have presented the testimony of his neighbor Kaye Pace. However, we note that in her affidavit attached to Short's petition, Pace averred that she personally observed Short's controlling behavior of which Rhonda had complained. Additionally, in a newspaper article covering the shootings and trial, Pace indicated that Rhonda appeared to be afraid of Short. This negative information could reasonably have led counsel to forego any testimony by Pace.

{¶ 54} Short also claims that counsel should have presented the testimony of his pastor, Vester Smith, who would have testified that Short was "a good Christian and practiced his faith." Smith would also have testified that he was called to Short's residence by Rhonda's sister after Rhonda moved out. Smith would have testified that when he arrived, Short had a shot gun in his coat, but that Short indicated he would lock the firearm in his truck. Smith would have further testified that Short came to his home in order to pray after Rhonda left him. Finally, Smith would have testified that Short appeared remorseful following the shootings.

{¶ 55} We note that Short questioned Smith regarding Rhonda and Sweeney prior to the shooting, and that Short did not want Smith to provide any counseling following Rhonda's departure. Smith also averred that Short came to a church function in order to search for Rhonda. We agree with the trial court that Smith's averments regarding the shotgun are cumulative of testimony provided at trial by J. and Officer Rosenbalm. Further, Smith's testimony could have corroborated the State's claim that Short was methodical in his attempts to track down Rhonda in the week prior to the murders.

{¶ 56} Short next claims that Montgomery County Jail Chaplain Russ Comer and Montgomery County Jail Licensed Social Worker Veronique Dell should have been called to testify as to Short's behavior in jail, e.g., that he was remorseful, suicidal, depressed and that he was a Christian who modeled good behavior to other inmates. Again, the character evidence could have opened the door to potentially damaging evidence. Further, Dell also indicated in her affidavit that, while Short was in jail, another inmate accused him of attempting to hire someone to kill "the mother of the male victim." While Dell averred that she did not believe the allegation, the jury may well have decided differently.

{¶ 57} Short also claims that counsel should have presented the testimony of a co-worker, his pharmacist and an inmate with whom he shared a cell following the crimes. We note that the co-worker's affidavit attached to the petition for relief indicated that while she believed Short loved his family, he was also moody and was unpleasant to be around when his moods changed. She also averred that Short told her he wanted Rhonda to be at home when he got off work, which the jury could perceive as corroboration of Short's controlling nature. Since this testimony could be perceived as more harmful than helpful, we cannot say that counsel was ineffective for not presenting the co-worker.

{¶ 58} The affidavit executed by the pharmacist avers that the pharmacist found Short to be nice and pleasant and that the pharmacist believed Short cared about his family. The affidavit also states that Short indicated he had trouble sleeping and that he was interested in the possible effects of the medications he was taking. Finally, the pharmacist averred that Short was more upset than angry when Rhonda left him. The affidavit of the inmate indicates that Short was likeable, humble, non-violent, faithful and caring. The affidavit also avers that he discussed suicide on several occasions. Finally, the affidavit avers that the inmate never saw or heard Short offer money in exchange for killing the mother of the male inmate.

{¶ 59} Again, the testimony of the co-worker, pharmacist and inmate would have opened the door to other testimony concerning Short's character. Counsel may have made a strategic decision not to permit potentially damaging character evidence to be introduced. Further, as to all of the proposed witnesses, it cannot be concluded, given the benign nature of the indicated testimony, that the failure to present the suggested testimony was prejudicial.

{¶ 60} Short next claims that counsel was ineffective for failing to present medical records and evidence regarding his previous head injuries as well as his history of substance abuse, depression and anxiety. We have reviewed the medical records provided by Short. They do indicate that he has had an ongoing issue with depression and anxiety, and that he has been prescribed medications for those issues. There further is evidence that, at one point, he self-medicated with marijuana. However, we find nothing in his medical records to support a claim that he was abusing drugs, illicit or prescribed, near the time he committed the offenses.

{¶ 61} With regard to the head injuries, the records show that when Short was 17, he went to the doctor after claiming he ran into a steel beam at school. Short reported that he lost consciousness. The report indicated that upon examination, Short was "neurologically * * * 100% intact[,]" and that he had "probably [suffered] a mild concussion." There is also a medical record indicating that at age 21, Short was in jail when he fell out of his bunk bed. The record indicates that upon examination the physician found no evidence of trauma to Short's head and no neurologic disease. Finally, at age 29, Short had an accident while riding his motorcycle. According to the record of the emergency services team that responded to the scene, Short provided a history of having hit his head on the pavement and losing consciousness. However, that record further states that at all times Short was observed, including while being transported to the hospital, he was alert. While the petition also contains a record of a billing statement code from Sycamore Hospital indicating a diagnosis of "brain injury with brief coma," there is no medical documentation to corroborate the diagnosis. Further, Short indicated to one of the evaluating psychologists that he "may have been drinking" at the time of the accident.

{¶ 62} Given the lack of medical records demonstrating significant head trauma, and the fact that three separate licensed psychologists who examined Short pursuant to court orders did not note any significant problems related thereto, we cannot say that counsel was ineffective for failing to present this claimed mitigation to the jury. Additionally, one of the records indicates that Short was in jail at the time of his fall out of a bunk bed. The record regarding the motorcycle accident, which did not involve any other vehicles, indicates that it may have been caused by drinking. Counsel may not have wanted that evidence to be presented to the jury. Further, the medical records regarding the head injuries, anxiety and depression were known to the psychologists, and thus, to counsel. However, counsel elected to proceed with a different theory of mitigation, and we cannot second guess that strategy.

{¶ 63} Further, after reviewing the transcript of the proceedings, we agree with the trial court that Short affirmatively, knowingly and voluntarily waived the presentation of additional mitigating evidence thereby rendering his claim of ineffective assistance of counsel baseless. In contrast, Short's post-conviction affidavit avers that he did not want to waive mitigation. He further avers that Mulligan and Katchmer improperly advised him not to present mitigating evidence to the jury, but, instead, to present it to the judge. He further avers that when the trial court questioned him regarding his decision to waive, he "told her what my attorneys told me to say to her. At one point in my trial, the judge asked me about my reasons for not putting on mitigation. I did not know whether I should mention that it was my attorneys' strategy. The judge asked me to ask Mr. Mulligan. I did, but he told me not to say anything about the attorney strategy, so I didn't." He further contends that the fact that his attorneys erroneously attempted to seek an additional mitigation hearing under the authority of R.C. 2929.19(A) demonstrates his veracity with regard to this issue. Thus, Short's affidavit attempts to set forth a claim that he did not want to waive, that counsel erroneously advised him to waive presentation to the jury, and that he lied, upon advice of counsel, to the court about his reasons for waiving.

{¶ 64} Generally, self-serving affidavits submitted by a defendant in support of his claim for post-conviction relief are, without more, insufficient to trigger the right to a hearing or to justify granting the petition. State v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983); State v. Perkins, 2d Dist. Montgomery No. 24397, 2011-Ohio-5070, ¶ 15. "Though we recognize that every affidavit submitted by a post-conviction relief petitioner is to some degree or another 'self-serving,' such affidavits should not lightly be deemed false as they are by definition a statement that the affiant has sworn to be truthful and made under penalty of perjury." State v. Padgett, 2d Dist. Montgomery No. 17658, 1999 WL 1127398, *3 (Dec. 10, 1999), citing State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999). Nevertheless, "the trial court may, under appropriate circumstances in post-conviction relief proceedings, deem affidavit testimony to lack credibility without first observing or examining the affiant." Calhoun at 284.

{¶ 65} In assessing the credibility of affidavits, the Supreme Court provided the following relevant factors to be considered:

(1) whether the judge reviewing the post-conviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by evidence in the record by the

same witness, or to be internally inconsistent, thereby weakening the credibility of that testimony.

Calhoun at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-756, 651 N.E.2d 1319 (1st Dist.1994).

{¶ 66} "Depending on the entire record, one or more of these or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility. Such a decision is within the discretion of the trial court. Id. at 285. However, "[a] trial court that discounts the credibility of sworn affidavits should include an explanation of its basis for doing so in its findings of fact and conclusions of law, in order that meaningful appellate review may occur." Id.

{¶ 67} In this case, the record demonstrates that Short first sought to waive mitigation on January 13, 2005, while he was still represented by Cox and Pentecost. On that date, Cox indicated that Short refused to follow his advice and that, contrary to the advice of counsel, Short wished to address the court. Short then indicated that he wanted to enter a plea of guilty to all the charges and to waive any mitigation. The trial court did not render any decision on that day. The following day, Short appeared with counsel at which time he informed the trial court that he still wanted to enter a plea without any mitigation. Thereafter, the trial court entered an order for a psychological evaluation. The record demonstrates that prior to the appearance by Mulligan and Katchmer, the trial court and Short engaged in an in-depth conversation regarding the function, importance and necessity of presenting mitigating evidence. Short indicated his understanding thereof.

{¶ 68} After the guilt phase of trial was concluded, but prior to the start of the penalty phase, Katchmer informed the trial court that Short did not intend to present additional mitigating evidence, and that he would rely on the evidence already presented during the guilt phase. Since Short did not waive all mitigation evidence, but merely waived the presentation of any mitigation evidence in addition to that already presented to the jury during the guilt phase, the trial court was not required to conduct an examination in accord with State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231 (1999). Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, at ¶ 72. Nonetheless, the trial court did so, and the record demonstrates that the trial court fully met the specific requirements set forth in Ashworth. Further, the psychological evaluation report concluded that Short was competent to make such a waiver. Short again indicated his understanding of the purpose and importance of mitigation. Short indicated that he had discussed mitigation with both sets of counsel as well as the evaluating psychologist. He noted that he had read, understood and agreed with the psychologist's report finding him competent to waive mitigation.

{¶ 69} In rejecting Short's affidavit as it pertains to waiver, the trial court stated:

More important, however, it was Short, himself, by his own admissions that are replete throughout the record, not his defense counsel, who chose not to present additional mitigation evidence. * * * The court further notes that [Short's] affidavit conflicts with his prior statements which * * * are woven through the entire record of the trial proceedings, wherein he repeatedly acknowledged that it was his personal decision to forego additional mitigation evidence, despite the recommendations of his counsel. The judge reviewing [Short's] post-conviction petition is the same judge who

presided at trial. As such, the judge has the ability to observe [Short], as well as his attorneys, and is able to ascertain the credibility of [Short's] original statements and those of his affidavit offered in support of his post-conviction petition. [Short's] request for relief and his supporting affidavit has the effect of asking the court to now believe that [his] prior statements were false, an act that "should be subject to the closest scrutiny." * * * [Short's] claim that his attorney told him not to answer the judge honestly forces the court to determine which version of [his] story is truthful. The court finds that [Short's] affidavit filed in support of his post-conviction petition is not credible, but instead is made in hindsight, with the knowledge of the jury and court's sentencing determinations, and that [Short's] numerous statements, when represented by Mr. Cox and Mr. Pentecost, and later reaffirmed when represented by Mr. Katchmer and Mr. Mulligan, reflected his knowing, intelligent and voluntary decision to waive additional mitigation * * *.

{¶ 70} After reviewing the record, we cannot say that the trial court abused its discretion in determining that Short's affidavit lacked credibility on this issue. We would further, and specifically, note Short's unsworn statement made to the trial court at sentencing on May 30, 2006. This statement, made at the end of the trial, articulates Short's rationale for his decision to waive further mitigation, with this statement being in sharp contrast to his post-conviction affidavit.

{¶ 71} Based upon the record and the evidence set forth in the petition for relief, we cannot say that counsel was ineffective with regard to either the investigation, or presentation of, mitigation evidence at trial.

iii. Qualifications

{¶ 72} Short claims that his counsel were ineffective because they were not qualified to defend death penalty cases. Specifically, he argues that neither Mulligan nor Katchmer was certified in accordance with former Sup.R. 20.³ He further argues that the record demonstrates that counsel lacked knowledge of the death penalty statutes.

3 Sup.R. 20 was repealed effective February 1, 2015 and replaced on the same date with the Rules for Appointment of Counsel in Capital Cases. --------

{¶ 73} Sup.R. 20 provided for appointment of counsel for indigent defendants "charged with or convicted of an offense for which the death penalty" was a possible sentence. Sup.R. 20(A). Under those circumstances, the court was required to appoint two attorneys certified pursuant to the rule. Sup.R. 20(C). However, the rule, by its own terms, is not applicable to this case. Instead, it applies only to indigent defendants and not to counsel that was "privately retained by or for the defendant." Sup.R. 20(B). More importantly, nothing in the petition for relief establishes that either Katchmer or Mulligan lacked the qualifications set forth in Sup.R. 20 for death-penalty certification. Thus, we find this argument lacks merit.

{¶ 74} Short also contends that his counsel demonstrated a complete lack of knowledge regarding "even the most basic tenets of Ohio's death penalty statute." In this regard, he argues that counsel advised him the "best route to take" was to forego presenting mitigating evidence to the jury, and to instead present the mitigating evidence to the trial court. Short claims that counsel's attempt to present additional mitigation evidence to the trial court via R.C. 2929.19(A)(1), after the jury recommended a death sentence, supports this argument. We note that the fact that counsel did present mitigation evidence to the jury belies this claim. Also, Short's statements on the record reveal that he decided to forego presenting additional mitigation evidence to the jury. Further, though unsuccessful, counsel's argument to the trial court regarding R.C. 2929.19(A)(1) could have been a last-ditch effort to overcome Short's decision.

{¶ 75} We agree with the trial court that this argument lacks merit.

iv. Family Barred From Courtroom

{¶ 76} Short next contends that he was denied his right to due process and to a public trial because the State's witness list named his family members as potential witnesses, thereby barring them from the courtroom during trial. He claims that the jury was thus precluded from seeing that he had a supportive family. He further claims that this prevented his family from aiding him during trial by providing their observations and insights. He contends that counsel was ineffective for failing to object to their exclusion.

{¶ 77} First, we note that only those members of Short's family included on the State's witness list were excluded from the courtroom during trial. A review of the record does not reveal that the State included those family members for any nefarious reasons. Instead, it appears that the family members on the list had knowledge of the events leading up to the crime. Further, there is no showing that all family members were excluded from the courtroom. Neither Short's aunt nor his niece, both of whom executed affidavits in support of his petition for relief, were on the State's list, and neither claimed to have been barred from the courtroom. Additionally, the trial court, over the objection of the State, permitted all family members to be in the courtroom during the closing arguments. Finally, this argument could have been raised on direct appeal as it is apparent from the record that members of Short's family were on the State's witness list, that an order of witness separation had been issued, and that counsel raised no objection. Thus, this claim is barred by the doctrine of res judicata.

v. Failure to Cross-Examine Arresting Officers

{¶ 78} Short contends that his counsel were ineffective during trial because they did not effectively cross-examine, through the use of available documents, Detective Charles Taylor and Officer Bradley Reaman. Short takes exception to the testimony of Taylor indicating that Short was calm after the shootings, and to Reaman's testimony that Short was "very calm" while being transported to jail.

{¶ 79} The documents to which Short refers include a Booking Information Sheet and an Offense Report. In the Booking Information document, there are notations that Short presented a "hazard." The document classifies the hazards as suicidal and mentally ill. The other document is Reaman's Offense Report in which he notes that he transported Short to jail, and that while in a holding cell, Short was pacing and nervous. Short contends that this information conflicts with the testimony of Taylor and Reaman.

{¶ 80} The Booking Information Sheet was not generated until 3:00 a.m., almost four hours after Short arrived at the jail. Thus, we find no conflict between the testimony and the cited documents. Short's behavior hours after his first encounter with Taylor and Reaman does not negate the behavior observed at the time the officers were initially with him. Further, at trial Reaman testified that Short began pacing once he was placed in the holding cell. Thus, we find no conflict between his testimony and his Offense Report.

{¶ 81} We conclude that the trial court did not err in finding that Short failed to demonstrate ineffective assistance regarding this claim.

vi. Failure to Seek Appropriate Separation of Witnesses

{¶ 82} Short argues that he was denied effective assistance of counsel because counsel failed to request a more specific separation of witnesses order barring witnesses from discussing their testimony outside the courtroom. In support of this argument, he relies upon a book written by Barion in which she recounts events during the trial. Short claims the book demonstrates that Barion related her trial testimony to other witnesses and that witnesses were discussing their testimony in the courthouse. We disagree.

{¶ 83} In her book, Barion does state that she sent out an e-mail to "everyone listed in my mailbox and included some information relating to my testimony [and that she] also mentioned the photos and how it had been impossible to recognize Rhonda." However, she also indicates that she did this during the evening after the fourth day of trial. A review of the record reveals that the State rested its case at the close of that day. Thus, all the potential witnesses had already testified and those witnesses were not recalled to the stand. Further, her book does state that a few individuals had conversations around her after they completed their testimony. However, there is nothing to indicate that they discussed their testimony. Instead, it appears that they merely discussed how difficult the experience of testifying had been. Thus, even if counsel were deficient for failing to request a more specific separation of witnesses, Short has failed to demonstrate any prejudice arising therefrom.

vii. Plea Agreement

{¶ 84} Short contends that he did not receive effective assistance of counsel because he rejected the plea agreement negotiated between the State and his initial counsel based upon Mulligan's promise that he could obtain a better result.

{¶ 85} We agree with the trial court that this argument lacks merit. Short's affidavit in support of his petition does not mention the rejection of the plea agreement let alone that the rejection was the result of promises made by Mulligan. In other words, there are no operative facts in the petition that would permit a finding that Short rejected the plea agreement because Mulligan promised that he would obtain a better outcome.

viii. Voluntary Manslaughter Instruction

{¶ 86} Short argues that counsel was ineffective for failing to offer evidence sufficient to warrant his requested instruction on voluntary manslaughter.

{¶ 87} A criminal defendant is entitled to have a jury consider an offense that is an inferior degree of the indicted offense. State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1989), paragraph one of the syllabus. "An offense is an 'inferior degree' of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements." Id. at paragraph two of the syllabus. Voluntary manslaughter is an inferior degree of murder. State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992); State v. Davis, 2d Dist. Montgomery No. 21904, 2007-Ohio-6680, ¶ 21. In order to include an instruction for the inferior degree offense of voluntary manslaughter, the evidence presented at trial must "reasonably support both an acquittal on the charged crime of murder and a conviction for voluntary manslaughter." Shane at 632.

{¶ 88} As charged in this case, aggravated murder is defined as purposely causing the death of another with prior calculation and design, R.C. 2903.01(A), or purposely causing the death of another while committing or attempting to commit aggravated burglary, R.C. 2903.01(B). In contrast, voluntary manslaughter is defined as knowingly causing the death of another "while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force." R.C. 2903.03(A).

{¶ 89} Thus, in order to obtain an instruction on voluntary manslaughter, the defendant must demonstrate the mitigating circumstance of provocation by the victim that was reasonably sufficient to incite the defendant into using deadly force. Shane at 634. In determining what constitutes reasonably sufficient provocation, a trial court must use a two-part analysis involving both an objective and a subjective determination. Id. Objectively, "in order for the provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control." Id. at 635. Subjectively, the court must determine whether the provocation by the victim was sufficient to provoke the use of deadly force in a particular case, and "the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time." Id.

{¶ 90} We agree with the finding of the trial court, as set forth below, that the timing of the events in this case undercuts Short's claim that he was subject to a "sudden fit" of passion or rage:

The intricate planning Short engaged in belies any claim of sudden passion or sudden fit of rage. Approximately a week after Rhonda Short left him, and he learned what he believed was information that Rhonda had a boyfriend, Short called DP&L and, through subterfuge, learned where she was residing. Short then drove to Huber Heights to find the home. He then drove back to his home * * * and attempted to purchase a weapon. Later in the evening Short called his employer and arranged to borrow his employer's truck, leaving his truck at his place of employment. Short obtained gloves, a hat, and a trench coat and put them in his employer's truck. Short and his son, [J.], then drove from [their home] to Miamisburg, Ohio, where Short purchased a rifle. He then drove down the road to a Meijer store and purchased a hacksawn [sic]. Short and [J.] then drove to a hotel in Huber Heights where Short checked into the hotel and, in his rented room, after having turned up the volume on the television, told [J.] to sit on the gun while Short sawed off the barrel. Short then drove to Rhonda's home where, after scouting the area, he got out of the vehicle with the gun, wearing the hat and coat, and walked into the backyard of the residence, shot Donnie Sweeney, went into the house past his children, kicked open the bathroom door, and shot Rhonda Short.

{¶ 91} Short, however, argues that counsel failed to present certain evidence that would have supported an instruction on voluntary manslaughter. First, Short claims that counsel should have explored evidence that Rhonda was having an affair with Sweeney, including information from Rhonda's new neighbors regarding how often they had observed Sweeney or his car at her residence. He next asserts that counsel should have had his sister testify regarding his receipt of taunting telephone calls during which country music songs were played "lamenting the loss of a loved one." He also claims that counsel should have called Rhonda's friend, Leah Potter, as a witness to testify to her belief that Short was distraught and suicidal when Rhonda moved out. He further contends that counsel failed to effectively utilize a document, made available during discovery, when conducting the cross-examination of State's witness Loren Taylor regarding Taylor's recollection of statements made by Short the night before the shootings. Finally, he claims in his affidavit that he wanted to testify at trial, but that counsel "told [him] not to do so."

{¶ 92} We note first that evidence was introduced alluding to the claim that Rhonda and Sweeney were possibly involved with each other. Specifically, Brandon Fletcher testified he had informed Short that he had observed Rhonda and Sweeney embracing. However, there is nothing else in the trial record or the post-conviction record to support a claim that they were romantically involved. Thus, we find no merit to this argument.

{¶ 93} Short also claims that Rhonda's new neighbors should have been interviewed to provide insight as to how often Sweeney was observed at her home. The record shows that Rhonda moved into her new home just two days prior to the shootings. Short was not aware of where she was living until the day of the shootings. More importantly, there is no evidence that any of Rhonda's neighbors informed Short that Sweeney had been observed at the home. Thus, any testimony by the neighbors that Sweeney was present would have no bearing on provocation.

{¶ 94} Next, Short contends that he received taunting telephone calls the week before the shootings and that such evidence would support a finding of provocation. His petition for relief describes the calls as country music songs that "lament" the loss of a loved one. He claims that counsel's notes indicate counsel knew that his sister could have testified she heard the calls.

{¶ 95} The notes which Short claims show his attorneys were aware that his sister heard the telephone calls consist of one page of handwriting. The page is not authenticated and has no identifying information on it. Further, the two affidavits submitted by Short's sister make no mention of such telephone calls. However, evidence of the calls was presented to the jury during J.'s testimony. Thus, we find that this claim of ineffective assistance is not supported by competent evidence nor by the record.

{¶ 96} We have reviewed Leah Potter's email to the Monroe Police Department as well as her statement to the Huber Heights Police. While her email and statement both expressed her concern for Short and indicate that she was concerned for his mental health, she also noted that she believed that Short was "hunting" Rhonda and that he would harm her. Thus, it is reasonable that counsel did not want to present a witness who would testify that Short started "hunting" his wife a week prior to killing her. Since excluding Potter can be deemed a sound strategic decision, we cannot say that it constitutes ineffective assistance.

{¶ 97} Short further claims that counsel was ineffective for failing to pursue inconsistencies between the trial testimony of Loren Taylor and a written statement counsel obtained in discovery and attached to Short's petition. At trial, Taylor testified that the night before the shootings, Short came to church where he made a statement about killing someone. Attached to Short's petition for relief is a handwritten note purporting to be signed by Taylor and dated August 4, 2004. There is no authentication of the note in the record. The note indicates that during the encounter between Short and Taylor, Short indicated that "God touched him [and] he wasn't going to think that way." Even if this note constituted competent evidence, it does not create an inconsistency with Taylor's trial testimony as Taylor testified to essentially the exact same statement by Short.

{¶ 98} We turn next to Short's claim that counsel prevented him from testifying. The transcript demonstrates that the trial court thoroughly informed Short of his rights regarding testifying. The court specifically informed him that the choice was his, and not his attorneys'. Short indicated that he understood his rights and that he, after consulting with counsel, decided not to testify. Further, as set out earlier, Short waived his right to present any mitigating evidence which would include the testimony he now avers he could have provided. More importantly, we note that the record contains evidence that Short had been unfaithful to Rhonda, that he had a past criminal record that included stalking and domestic violence regarding his ex-wife, and that Rhonda had obtained a civil protection order. If Short had testified, he would have been subject to cross-examination on these matters which might have harmed his defense. Thus, we conclude that counsel would have had a strategic purpose for advising him against testifying and that such advice did not amount to ineffective assistance.

{¶ 99} Finally, Short claims that counsel improperly failed to object to the testimony of Amy Spurlock, who testified that Short had threatened Rhonda in the past. Spurlock, a friend of Rhonda's, testified that she observed Short threaten Rhonda approximately one or two months prior to the shootings. Short contends that counsel was ineffective for failing to object to this testimony because it tended to negate his claim of provocation. We conclude the trial court rightly ruled that this claim is barred by res judicata as it could have been raised on direct appeal.

{¶ 100} We conclude that even had counsel put on the evidence Short recites above, and had counsel objected to Spurlock's testimony, Short could not have met either the objective or subjective standard for demonstrating provocation and the court could not have instructed the jury on voluntary manslaughter. Therefore, we find that he has failed to demonstrate ineffective assistance of counsel.

ix. Remorse and Attempt to Help

{¶ 101} Short contends that counsel was ineffective for failing to demonstrate that he attempted to get help for Rhonda after the shooting, and that he was instantly remorseful for his actions. He also claims that records depicting his behavior while in jail were relevant to the issue of remorse. Short also claims that counsel should have played the 911 telephone call made from the nearby UDF and that counsel should have presented the testimony of Huber Heights Officer Robbie Graham. He contends that this information would have informed the jury that he attempted to save Rhonda. He further contends that Graham would have testified that when he arrived at the scene of the shooting, he encountered Short who motioned to him with his arm and stated words such as "this way," or "back here," and that he led the officers to Rhonda.

{¶ 102} A review of the record indicates that immediately after the shooting, Short drove away from the scene. He then stopped at a UDF store where he told the clerk to call 911. The transcript of the 911 call placed by the clerk merely states that a man came into the store and told the clerk to call 911 and have them respond to 5035 Brandt Pike rather than the correct address of Pepper Drive. When questioned by the 911 dispatcher about the address, the clerk twice repeated Brandt Pike. The conversation then ended.

{¶ 103} Also, Short is correct regarding Graham's testimony as it was related by Graham during the suppression hearing. Further, there is evidence in the materials attached to the petition indicating that Short expressed regret for his actions.

{¶ 104} However, we fail to discern how counsel was ineffective in failing to present this information. While it may have informed the jury that Short regretted his actions and that he did seek to get help for Rhonda, that evidence would only have been relevant at the mitigation phase for which Short waived the presentation of additional evidence.

x. Failure to Engage a Psychologist, Substance Abuse Expert,

Neuropsychologist, MRI or PET Testing

{¶ 105} Short's petition contends that trial counsel was ineffective for failing to utilize a psychologist, neuropsychologist and substance abuse expert, and for failing to seek MRI or PET testing of his brain. These contentions are supported by the affidavit testimony of Bob Stinson, a psychologist with death penalty mitigation experience.

{¶ 106} We found no evidence in the records presented to indicate that Short was abusing drugs. Instead, the record indicates that he was non-compliant with taking his prescribed depression and anxiety medications. Further, other than the fact that he had, in the past, smoked marijuana in order to relax, we find no indication that he abused any illegal substances. In short, there is no evidence that he abused any type of drugs after 1999. Nor is there any evidence of deficits caused by past drug usage. Further, it is completely speculative that such testimony would have been helpful to Short's defense.

{¶ 107} Stinson's affidavit avers that had he been involved in Short's defense at trial, he would have fully developed Short's background and history for the jury. This argument again ignores the fact that counsel could have reasonably determined that opening the door to Short's character was not sound strategy. Short also contends that counsel should have engaged a neuropsychologist and that counsel should have arranged for him to undergo an MRI and PET. As previously stated, Short was examined by three different psychologists, with none of the generated reports suggesting that Short was suffering from any serious mental or psychological problem. Thus, it cannot be concluded that counsel was ineffective for not utilizing the suggested efforts or having Short undergo the suggested testing. Further, there is no evidence to indicate that these omissions were prejudicial. Thus, we conclude that this argument lacks merit.

xi. Mitigation Specialist

{¶ 108} Short contends that counsel was ineffective for failing to hire a mitigation specialist. However, we note that he declined this right on the record. Further, as stated, we find that counsel did investigate mitigating evidence and the evidence contained in Short's petition does not support his claim that counsel was ineffective. Thus, we agree with the trial court that Short has failed to demonstrate that counsel's failure to retain a mitigation specialist constituted ineffective assistance or that it was prejudicial.

xii. Cumulative Error

{¶ 109} Finally, Short contends that he was deprived of a fair trial by virtue of the cumulative error doctrine.

{¶ 110} Under the doctrine of cumulative error, "[s]eparately harmless errors may violate a defendant's right to a fair trial when the errors are considered together. * * * In order to find cumulative error, we first must find that multiple errors were committed at trial." State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 40. "A conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial-court error does not individually constitute cause for reversal." State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. "Cumulative error asserting ineffective assistance of counsel would require a determination that while no single act by trial counsel meets the Strickland standard, the cumulative effect of counsel's conduct meets the Strickland standard." State v. Jordan, 2d Dist. Montgomery No. 27208, 2017-Ohio-7342, ¶ 55. We conclude that Short has failed to meet this standard.

B. Miscellaneous Claims

i. Proportional Sentence

{¶ 111} Short contends that his death sentence penalty is disproportionate to that imposed in State v. Tucker, 2d Dist. Montgomery No. 22089, 2008-Ohio-2386, wherein a defendant convicted of aggravated murder, kidnapping, aggravated robbery and having weapons under disability received a sentence of 43 years to life in prison. We note first that the Supreme Court of Ohio, in Short's direct appeal, determined that his sentence is "proportionate to sentences approved in similar cases[,]" noting that the court has "affirmed death sentences in other cases conjoining the murder of two victims with felony murder." Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 164. Second, the Tucker case was available for review in May 2008, prior to the Supreme Court's disposition of Short's appeal. Thus, the claim is barred by the doctrine of res judicata.

ii. Conflict of Interest

{¶ 112} Short also contends that Mulligan and Katchmer had an inherent conflict of interest because his father, Sam Short, who retained and paid for their services, would have to be portrayed to the jury in an unfavorable light in order to submit mitigating evidence of Short's dysfunctional childhood as a contributing factor to his development. Thus, he implies that counsel did not present such mitigating evidence because their fees were dependent upon Sam Short's good will.

{¶ 113} The Sixth Amendment right to the effective assistance of counsel affords a criminal defendant both the right to competent counsel and counsel that is free from any conflict of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). In order to demonstrate that he was denied his right to conflict-free counsel, a defendant must show an actual conflict adversely affecting counsel's performance and not "a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).

{¶ 114} Here, there is no demonstration of an actual conflict. There is no claim that Sam Short ever indicated an aversion to presenting the suggested mitigating evidence. Nor is there any demonstration that Sam Short had any interest other than aiding his son's defense. Mulligan and Katchmer owed no duty to Sam Short and the record is devoid of any evidence indicating that the payment of fees by Sam Short resulted in a disregard by counsel of the duty owed to Short.

iii. Lack of Rapport

{¶ 115} Finally, Short contends that Mulligan violated ABA Guideline 1.1 because he failed to "consciously work to establish the special rapport necessary for a productive professional relationship over an extended period of stress." In support, he cites the affidavits of his sister and father who aver that during one of their meetings with counsel, Mulligan referred to Short as a "bastard," a "son of a bitch," and an "asshole." The affidavit of Short's sister also avers that Mulligan stated he did not care if Short received the death penalty.

{¶ 116} It appears that the alleged behavior occurred on one occasion and was precipitated by the receipt and review of evidence unfavorable to the defense. We note that neither of the cited affidavits claim that Mulligan's references about Short were conveyed to Short by either Mulligan or his family. Nor does Short's affidavit indicate an awareness of the alleged name-calling. Thus, we cannot conclude that this evidence demonstrates a violation of the ABA Guidelines or that the one-time occurrence affected the defense.

C. Denial of Petition Not an Abuse of Discretion

{¶ 117} From our review of the record, we cannot say that the trial court abused its discretion in denying the petition for post-conviction relief without a hearing. Accordingly, the first assignment of error is overruled.

III. Res Judicata

{¶ 118} The second assignment of error asserted by Short states:

THE TRIAL COURT ERRED IN APPLYING THE DOCTRINE OF RES JUDICATA TO BAR CONSIDERATION OF SHORT'S POST-CONVICTION CLAIMS.

{¶ 119} Short contends that the trial court erred in its application of the doctrine of res judicata. He specifically objects to the trial court's finding that his claims regarding Loren Taylor and Amy Spurlock were barred by res judicata. He then claims that the judgment entry is unclear as to which of his specific grounds for relief were barred by res judicata.

{¶ 120} The doctrine of res judicata requires that the evidence presented in support of the petition come from outside the record. In State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), the Ohio Supreme Court explained that "[u]nder the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment." Id. at 113.

{¶ 121} As noted previously, Short claimed that counsel was ineffective for failing to object to the testimony of Amy Spurlock and for failing to explore inconsistencies between Loren Taylor's trial testimony and a hand-written note he provided to counsel in support of the petition for post-conviction relief. Also, as previously noted, we agree with the trial court that the testimony of Amy Spurlock to which Short now objects is apparent on the record as is counsel's failure to object thereto. Thus, we agree that the matter is barred by res judicata. With regard to the testimony of Taylor, we previously noted that his testimony was not significantly different from the unauthenticated handwritten note purportedly executed by Taylor. Thus, even though the trial court did err in finding this claim barred by res judicata, we find no prejudice.

{¶ 122} Finally, we disagree with the claim that the judgment entry is not clear regarding which arguments the trial court concluded were barred by the application of res judicata. We note that the only other portion of the judgment entry that refers to the doctrine pertains to the fact that that counsel attempted to utilize R.C. 2929.19(A)(1) as a vehicle for providing additional mitigation evidence. As the Supreme Court of Ohio addressed the issue in its disposition of Short's direct appeal, we conclude that the trial court did not err in finding any legal argument pertaining thereto barred. Short, 129 Ohio St.3d 360, 2011-Ohio-360, 952 N.E.2d 1121, ¶ 82.

{¶ 123} The second assignment of error is overruled.

IV. Discovery

{¶ 124} Short's third assignment of error states:

THE TRIAL COURT ERRED WHEN IT OVERRULED SHORT'S MOTION FOR LEAVE TO CONDUCT DISCOVERY.

{¶ 125} Short argues that the trial court erred in denying his petition for post-conviction relief without first allowing him to conduct discovery.

{¶ 126} Post-conviction review, which is not a constitutional right but is a collateral civil attack on a judgment, is governed solely by R.C. 2953.21. State v. Jackson, 3d Dist. Allen No. 1-04-31, 2004-Ohio-5350, ¶ 23. Thus, "a petitioner receives no more rights than those granted by the statute." Id., citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Previously, Ohio law interpreting the statute held that discovery is not available in the initial stages of post-conviction proceedings. State v. Byrd, 145 Ohio App.3d 318, 332-333, 762 N.E.2d 1043 (1st Dist. 2001). However, prior case law noted that permitting discovery may be proper when a petition for relief sets forth operative facts outside the record that are indicative of a constitutional error. State v. McKelton, 2016-Ohio-3216, 55 N.E.3d 26, ¶ 22 - 23 (12th Dist.); State v. Leonard, 157 Ohio App.3d 653, 2004-Ohio-3323, 813 N.E.2d 50, ¶ 10 (1st Dist.).

{¶ 127} Additionally, the Ohio Legislature has recently amended R.C. 2953.21. The new version of the statute, which became effective on April 6, 2017, makes substantial changes regarding post-conviction petitions in death-penalty cases, and now permits capital petitioners to obtain discovery in aid of their petition if good cause is shown.

{¶ 128} Since we agree with the trial court that neither Short's petition, along with its supporting evidentiary material, nor the motion for discovery demonstrate substantive grounds or good cause for relief, we find no abuse of discretion in the decision denying the request for discovery.

{¶ 129} Accordingly, we overrule Short's third assignment of error.

V. Expert Funding

{¶ 130} For his fourth assignment of error, Short alleges:

THE TRIAL COURT ERRED WHEN IT OVERRULED SHORT'S MOTION FOR FUNDS TO EMPLOY EXPERTS AND TO CONDUCT EXPERT TESTING.

{¶ 131} Short contends that the trial court should have granted his motions to hire and fund a substance abuse expert and a neuropsychologist. He further contends that the trial court erred by denying his motion for an MRI and a PET scan.

{¶ 132} For the reasons set forth in Part II.A.x., above, we find this argument lacks merit. We further note that the petition and its supporting materials do not set forth a basis for relief, thus, they do not support the request for experts and testing.

{¶ 133} The fourth assignment of error is overruled.

VI. Conclusion

{¶ 134} All of Short's assignments of error being overruled, the judgment of the trial court is affirmed. HALL, J. and BALDWIN, J., concur. (Hon. Craig R. Baldwin, Fifth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.) Copies mailed to: Mathias H. Heck, Jr.
Andrew T. French
Kimberly S. Rigby
Erika M. LaHote
Hon. Mary Katherine Huffman