2017 Ohio 7750
Ohio Ct. App.2017Background
- Appellant Kevin D. Agee filed a motion to certify a conflict to the Ohio Supreme Court after this court denied his postconviction ineffective-assistance claims.
- Agee submitted an affidavit from attorney Kort Gatterdam asserting trial counsel were deficient for not obtaining a neuropsychologist/neurologist to evaluate alleged TBI/dementia and its effect on Miranda waivers and competence.
- The trial court and this court treated the Gatterdam affidavit as conclusory legal opinion (not operative facts) and therefore not evidence dehors the record sufficient to overcome res judicata.
- The record contained extensive interrogation and plea-colloquy material showing Agee understood the consequences of his statements and processed information during interrogation, undermining the claim that cognitive impairment affected his Miranda waiver.
- Agee argued the Seventh District’s ruling conflicted with decisions from the Tenth and Second Districts (Dumas, McDaniel, Hooks); the Seventh District analyzed those cases and found no conflict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a legal-expert affidavit can constitute evidence dehors the record to overcome res judicata in a postconviction ineffective-assistance claim | State: Affidavit lacking operative facts cannot overcome res judicata; it is legal argument, not new evidence | Agee: Gatterdam’s affidavit supplies new expert evidence showing counsel were deficient and prejudice likely, so it is evidence dehors the record | Court: Affidavits that are conclusory legal opinion and contain no operative facts do not constitute evidence dehors the record and cannot overcome res judicata; no conflict with other districts |
Key Cases Cited
- Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 613 N.E.2d 1032 (Ohio 1993) (sets requirements for certifying inter-district conflicts and explains conflict must be on point of law and dispositive)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (governing two-prong test for ineffective assistance of counsel)
- State v. Scudder, 131 Ohio App.3d 470, 722 N.E.2d 1054 (Ohio Ct. App. 1998) (attorney affidavits that merely reiterate legal conclusions do not constitute evidence dehors the record)
- State v. Lawson, 103 Ohio App.3d 307, 659 N.E.2d 362 (Ohio Ct. App. 1995) (similar holding that conclusory attorney affidavits are insufficient to overcome procedural bars)