STATE OF OHIO v. CAMERON S. KYLES
CASE NO. CA2023-07-083
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/18/2024
[Cite as State v. Kyles, 2024-Ohio-998.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Cаse No. CR 2019 10 1671; CR 2019 06 0862
Yavitch & Palmer Co., L.P.A., and Stephen E. Palmer, for appellant.
S. POWELL, P.J.
{1} Appellant, Cameron S. Kyles, appeals the decision of the Butler County Court of Common Pleas summarily denying his petition for postconviction relief without a hearing following his convictions for a multitude of serious felony offenses that included, among others, participating in a criminal gang and aggravated murder. For the reasons
Facts and Procedural History
{2} On June 26, 2019, the Butler County Grand Jury returned a single-count indictment charging Kyles with one count of participating in a criminal gang. This indictment was prosecuted under Case No. CR2019-06-0862. Several months later, on October 18, 2019, the Butler County Grand Jury returned an additional eleven-count indictment charging Kyles with two counts each of aggravated murder, murder, aggravated robbery, aggravated burglary, and felonious assault, all of which were aсcompanied by firearm and gang specifications, and one count of having weapons while under disability. This indictment was prosecuted under Case No. CR2019-10-1671. The two cases were later consolidated and, after Kyles was found competent to stand trial and his motion to suppress the statements he made to police was denied, proceeded to a five-day jury trial that began on August 23, 2021.
{3} On August 27, 2021, the jury returned guilty verdicts on all counts and specifications set forth within both Case Nos. CR2019-06-0862 and CR2019-10-1671. On October 19, 2021, the trial court held a sentencing hearing where it sentenced Kyles to serve an aggregate, indefinite term of life imprisonment with the possibility of parole after 50 to 53 years, less 733 days of jail-time credit.1 Kyles directly appealed his conviction to this court and this court affirmed Kyles’ conviction in all respects on February 21, 2023. State v. Kyles, 12th Dist. Butler Nos. CA2021-11-141 and CA2021-11-142, 2023-Ohio-489. Kyles then appeаled this court‘s decision to the Ohio Supreme Court, which declined review on June 20, 2023. State v. Kyles, 170 Ohio St.3d 1450, 2023-Ohio-1979.
{5} On February 6, 2023, prior to this court issuing our decision affirming Kyles’ conviction on direct appeal, Kyles filed a petition for postconviction relief. Kyles filed his petition in accordance with
{6} Within his petition, Kyles stated three grounds for relief, all three of which were based on his trial counsel‘s alleged ineffective assistance. Those three stated grounds for relief were as follows:2
- ineffective assistance of counsel based upon his trial counsel‘s purported “failure to conduct and/or request [a] second competency evaluation” to determine whether he had the intellectual capacity to stand trial;
- ineffective assistance of counsel based upon his trial counsel‘s supposed failure to consider his “significant mental defect” and “obtain a psychological assessment” prior to the hearing on his motion to suppress to determine whether he had the intellectual capacity to make a knowing, intelligent, and voluntary waiver of his Miranda rights; and
- ineffective assistance of counsel based upon his trial counsel‘s failure to argue, as part of his motion to suppress, that his Sixth Amendment right to counsel had been violated.
{7} To support his first and second stated grounds for relief, Kyles attached to his postconviction relief petition an affidavit and psychological evaluation report from Dr. John L. Tilley, a clinical and forensic psychologist based out of Columbus, Ohio. Within those two documents, Dr. Tilley opined that Kyles has a significant “intellectual disability” that “likеly impaired” his ability to provide a knowing and intelligent waiver of his Miranda rights. Dr. Tilley noted that this included Kyles’ low IQ score of 57 and limited reading comprehension, which Dr. Tilley equated to that of a kindergartener. Dr. Tilley also opined that, had he been consulted prior to Kyles’ trial to conduct a “second opinion” on Kyles’ competency to stand trial, he “likely would have opined” that Kyles was not competent to
{8} To support his third stated ground for relief, Kyles attached to his postconviction relief petition the municipal court docket statement and related records that ultimately resulted in the Butler County Grand Jury issuing the 11-count indictment against him in Case No. CR2019-10-1671. Based upon those documents, Kyles argued that by Detective Winters interviewing him after he had been appointed counsel, “the police violated his Sixth Amendment Right to Counsel,” a violation “independent of the validity of his Miranda waivеr” as set forth in his second stated ground for relief. To support this argument, Kyles set forth the following timeline setting forth the various interviews Detective Winters had with him on October 13 and 14, 2019:
- October 13, 2019, 11:06 a.m. – First interview (Winters)
- October 13, 2019, 12:35 p.m. – Email from Dep. Smith to Winters
- October 14, 2019, 8:30 a.m. – Kyles in Middletown Municipal Court with Counsel
- October 14, 2019, 9:30 a.m. – Second Interview (Winters)
- October 14, 2019 9:30 a.m. – Second Interview (Winters and Hughs)
{10} On March 2, 2023, the state filed a motion to dismiss Kyles’ petition for postconviction relief based upon the doctrines of res judicata and the law of the case. The state additionally argued that, even if res judicata and the law of the case doctrines did not apply, Kyles’ petition could be denied on the merits because it failed to set forth sufficient operative facts to establish grounds for relief. A few months later, on June 20, 2023, the trial court issued a decision granting the state‘s motion to dismiss, thereby summarily denying Kyles’ petition for postconviction relief without a hearing. In so doing, the trial court initially noted that Kyles had “argued many of the same issues” in support of his postconviction reliеf petition that he had raised with this court as part of his direct appeal.
{11} Given the similarity between Kyles’ claims, the trial court determined that, in as much as Kyles was seeking to relitigate those same issues, particularly as it related to the question of whether Kyles had made a knowing, intelligent, and voluntary waiver of
Nothing presented in the latest filings overcomes the definitive ruling by the 12th District that Kyles knowingly, intelligently and voluntarily waived his Miranda rights. Likewise, nothing in the filings overcomes the requirements of Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, as held by the appellate court.
{12} The trial court did not stop there, however. Rather, “out [of] an overabundance of caution,” the trial court also reviewed Kyles’ petition on the merits and determined that Kyles had “fail[ed] to establish substantive grounds on any of his claims for relief in his petition and therefore a hearing is not needed.” In so doing, the trial court determined that Kyles’ claims that his trial counsel had “failed to fully investigate his alleged mental deficiency, failed to employ an expert witness, and failed to allow the expert to testify at his suppression hearing on the issue of understanding his [Miranda] rights,” were all “contrary to the record.” In reaching this decision, the trial court initially stated with respect to Kyles’ ineffective assistance of counsel claims:
The defendant relies solely upon a review and report of John L. Tilley, (Tilley), a psychologist retained by the defense, who posits Kyles’ intellectual ability precludes him from understanding the ramifications of his decision and competency to stand trial.
According to the record, Tilley conducted no face-to-face, or other interviews of Kyles, forming his opinions solely on the basis of the psychological reports contained in the record.3 Tilley, an explicitly selected defense expert, opines the defendant, “may have been impaired” and was “likely impaired” because of his poor reading skills. These conclusory claims summarily and conveniently dismiss the findings of two other experts that Kyles was a savvy 18-year-old. Even if Kyles was, as Tilley claims, weak in the ways of the academic world, the defendant was shrewd enough to recognize his precarious predicament and open negotiations with the enemy in an effort to improve his indefensible fortress of culpability.
{13} Continuing, the trial court then stated:
Kyles‘s petition for post-conviction relief further fails as to the claimed ineffective assistance as he does not delineate, beyond mere speculation and conclusory statements, how counsel‘s performance at trial fell below a reasonable standard or prejudiced him at trial. In fact, the claims are diametrically opposite of reality as evidenced by the recorded proceedings where the defense mounted a vigorous assault of dysfunctionаl deviance upon the prosecution. Defense counsel‘s efforts penetrated the prosecution‘s labors so effectively that The State requested, and received, a specific jury instruction on the question of diminished capacity that reads:
A contention of diminished capacity means that although the accused was not insane, due to emotional distress, physical condition or other factors he could not fully comprehend the nature of the criminal act he is accused of committing. Diminished capacity is not a recognized defense in Ohio. You should disregard any evidence presented during trial used to support a claim of diminished capacity. You may only consider evidence of mental capacity if it is demonstrated that it is being used for some purpose other than asserting the defense of diminished capacity.
{14} The trial court additionally stated that, in this case, Kyles’ trial counsel “specifically addressed questions of ‘diminished capacity’ throughout the trial, fought for,
The defense argues that once Kyles invoked his Fifth Amendment right in Middletown Municipal Court, the police were forever barred from speaking with the defendant without counsel. This argument is specious at best.
The Supreme Court of the United States held in Montejo v. Louisiana, 556 U.S. 778, 129 [S].Ct. 2079 (2009) that, as is the case here, a defendant can waive both his Fifth and Sixth Amendments rights even after invocation. Specifically, since Kyles initiated the subsequent request to speak with the police, he forfeited both upon being apprised of his rights pursuant to Miranda.
{15} The trial court thereafter concluded by finding Kyles’ petition for postconviction relief did nothing more than “construct[] a house of straw” and, in light of the overwhelming evidence of Kyles’ guilt, “the whirlwind of law and reason require that [Kyles] reap the wages of justice.” The trial court noted that this evidence included, even when taking Kyles’ statements to police out of consideration, “evidence from his GPS tracker, other witnesses and the victim‘s blood on the money recovered from him,” all of which the trial court found “would be sufficient for a reasonable jury to convict.”
Kyles’ Appeal and Two Assignments of Error for Review
{16} On July 19, 2023, Kyles filed a timely notice of appeal from the trial court‘s decision. Following briefing by both parties, oral argument was held before this court on February 12, 2024. Kyles’ appeal now properly before this court for decision, Kyles has raised two assignments of error for review. Those two assignments of error being:
Assignment of Error No. 1:
{17} THE TRIAL COURT ABUSED ITS DISCRETION, APPLIED INCORRECT
Assignment of Error No. 2:
{18} THE TRIAL COURT ERRORED BY DENYING KYLES’ PETITION FOR POST-CONVICTION RELIEF ON THE MERITS WITHOUT A HEARING, THEREBY DEPRIVING HIM OF HIS RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
{19} In both of his assignments of error, Kyles argues the trial court erred by summarily denying his petition for postconviction relief without holding a hearing; the first assignment of error challenges the trial court‘s application of the doctrines of res judicata and law of the case and the second assignment of error challenges the trial court‘s decision, albeit in the alternative, and “out [of] an overabundance of caution,” to deny his postconviction relief petition on the merits. To support his arguments, Kyles has raised four issues for this court‘s consideration. After setting forth the appropriate standard of review, we will address each of those four issues in turn.
Petition for Postconviction Relief Standard of Review
{20} “In Ohio, persons convicted of criminal offenses may petition a trial court for postconviction relief if they fit into one of four categories.” State v. Miller, Slip Opinion No. 2023-Ohio-3448, ¶ 19 (Kennedy, C.J., concurring in the judgment). Those four categories are set forth in
{21} “In determining whether the petition states a substantive ground for relief, the trial court must consider the entirety of the record from the trial proceedings as well as any evidence filed by the parties in postconviction proceedings.” State v. Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, ¶ 24, citing
{22} “A trial court‘s decision to summarily deny a postconviction petition without holding an evidentiary hearing will not be reversed absent an abuse of discretion.” State v. Harding, 2020-Ohio-1067, ¶ 6. “The standard is deferential, requiring the trial court to engage in more than mere error in law or judgment.” State v. Jones, 12th Dist. Butler No. CA2022-04-036, 2022-Ohio-3864, ¶ 9. To that end, for this court to find an abuse of discretion, “we must find that the trial court‘s ruling was unreasonable, arbitrary, or unconscionable.” State v. Payton, 12th Dist. Fayette No. CA2022-01-001, 2022-Ohio-2829, ¶ 7. “A decision is unreasonable where a sound reasoning process does not support it.” State v. Miller, 12th Dist. Butler No. CA2016-01-007, 2016-Ohio-7360, ¶ 7. “[A]n ‘arbitrary’ decision is one made ‘without consideration of or regard for facts [or] circumstances.‘” State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, ¶ 12, quoting Black‘s Law Dictionary 125 (10th Ed.2014). “An unconscionable decision may be defined as one that affronts the sense of justice, decency, or reasonableness.” State v. Wane, 12th Dist. Butler Nos. CA2020-01-010, CA2020-01-011, CA2020-01-014, and CA2020-01-015, 2020-Ohio-4874, ¶ 22.
Kyles’ First Issue and Analysis: The Misapplication of the Doctrine of Res Judicata
{23} In his first issue presented for review, Kyles argues the trial court erred by
{24} “It is well established that a trial court may dismiss a postconviction relief petition on the basis of the doctrine of res judicata.” State v. Davis, 12th Dist. Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 30. “The doctrine of res judicata precludes a convicted defendant ‘from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised’ at trial or on direct appeal.” Hatton, 2022-Ohio-3991 at ¶ 22, quoting State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. “So a court reviewing a postconviction-relief petition generally may not decide a claim that could have been presented at trial and raised on direct appeal.” Blanton, 2022-Ohio-3985 at ¶ 2, citing State v. Perry, 10 Ohio St.2d 175, 180 (1967). There‘s a twist, however, when it comes to petitions for postconviction relief that are based on the alleged ineffective assistance of counsel. Id.
{25} In those cases, “res judicata does not bar claims for postconviction relief, inter alia, when a petitioner ‘must rely on evidence outside the trial record to establish his
{26} In this case, Kyles brought forth evidence outside the record of ineffective assistance of counsel to avoid the entirety of his petition for postconviction relief being dismissed on the basis of res judicata. That being Dr. Tilley‘s affidavit and psychological evaluation indicating Kyles lacked the intellectual capacity to both stand trial and to make a knowing, intelligent, and voluntary waiver of his Mirandа rights. Therefore, given the principles set forth above, we must necessarily agree with Kyles’ argument that the trial court erred by misapplying the doctrine of res judicata to the case at bar to dismiss the entirety of Kyles’ petition for postconviction relief. The error, however, was harmless.
{27} ““[A]n error is harmless where there is no reasonable possibility that it contributed to an accused‘s conviction, such as where there is overwhelming evidence of the accused‘s guilt or some other indicia that the error did not contribute to the conviction.“” State v. Liming, 12th Dist. Clinton No. CA2022-01-001, 2023-Ohio-2817, ¶ 33, quoting State v. Cox, 12th Dist. Butler No. CA2003-05-113, 2004-Ohio-4977, ¶ 32. Such is the case here. This is because, contrary to Kyles’ claim, “merely providing evidence outside the record is not sufficient to entitle a petitioner to a hearing.” Johnson, 2023-Ohio-879 at ¶ 21. That is to say, “simply overcoming the res judicata bar through the introduction
{28} Rather, to be entitled to a hearing, “a petitioner ‘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 [petitioner].‘” (Brackets sic.) Id., quoting Cole, 2 Ohio St.3d at 114. “If the record on its face demonstrates that the petitioner is not entitled to relief, then the trial court must dismiss the petition.” State v. Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, ¶ 24, citing
{29} To support this portion of his ineffective assistance of counsel claim, Kyles relies on the affidavit and psychological evaluation report provided by Dr. Tilley. However, after a thorough review of the record, we find the opinions offered by Dr. Tilley within his affidavit and psychological evaluation report, together with the evidence contained within the trial court record, do not present substantive grounds that would entitle Kyles to relief.
{30} “The standard by which we review claims of ineffective assistance of counsel is well established.” State v. Carter, 72 Ohio St.3d 545, 557 (1995). To establish ineffective assistance, a defendant must show (1) that counsel‘s performance was deficient, and (2) that counsel‘s deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984). Courts determine deficient performance by asking whether counsel‘s conduct “fell below an objective standard of reasonableness.” Id. at 688. When making this determination, the reasonableness of counsel‘s conduct must be judged based on “the facts of the particular case, viewed as of the time of counsel‘s conduct.” Id. at 690. Only when counsel‘s errors were “so serious that counsel was not functioning as the ‘counsel’ guarantеed the defendant by the Sixth Amendment” has counsel engaged in deficient performance. Id. at 687. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. This requires the errors to be so significant as to “undermine confidence in the outcome.” Id. “A defendant‘s failure to make a sufficient
{31} Here, Kyles argues that his trial counsel‘s failure to consult with Dr. Tilley, or some other expert who would have provided him with substantially similar findings to that of Dr. Tilley, constituted deficient performance under the first prong of the Strickland inquiry. However, although Kyles’ petition for postconviction relief did not need to “definitively establish” either his trial counsel counsel‘s deficiency or whether he was prejudiced by it tо warrant the trial court holding a hearing on the matter, Bunch, 2022-Ohio-4723 at ¶ 27, the failure of Kyles’ trial counsel to seek out what would have amounted to a third competency evaluation, not a second like Kyles suggests, does not fall anywhere near what this court would consider deficient performance when viewed against an objective standard of reasonableness.
{32} We instead agree with the trial court‘s finding that, “as to the claimed ineffective assistance,” Kyles “does not delineate, beyond mere speculation and conclusory statements, how counsel‘s performance at trial fell below a reasonable standard or prejudiced him at trial.” This includes Kyles’ claim that, if his trial counsel had provided the trial court with a psychological evaluation report like that of Dr. Tilley‘s, he never would have been deemed competent tо stand trial, thus causing a delay in the proceedings “unless and until [his] competency was restored” in accordance with
{33} We also agree with the trial court‘s finding that Kyles’ ineffective assistance of counsel claims were “diametrically opposite of reality as evidenced by the recorded proceedings where the defense mounted a vigorous assault of dysfunctional deviance upon the prоsecution.” The record indicates that these efforts were so effective that, as the trial court stated within its decision, they “penetrated the prosecution‘s labors so effectively” that it necessitated the state requesting, and thereafter receiving, “a specific jury instruction on the question of diminished capacity.” This is in addition to the trial court‘s finding Kyles’ trial counsel had “specifically addressed questions of ‘diminished capacity’ throughout the trial, fought for, and received, two independent ‘in-person evaluations’ by trained experts, and made the tactical decision not to pursue live testimony as, from a purely speculative point of view, it may have done more harm to his client‘s defense than good.” Given the record in this case, we agree with the trial court‘s findings.
{34} Regardless, even if we were to assume Kyles’ petition was sufficient оn its face to raise an issue as to whether Kyles’ trial counsel was deficient for failing to seek out that third competency evaluation, which it was not, Kyles’ petition is wholly lacking as it relates to how that failure subjected him to any resulting prejudice as required by the second prong of the Strickland inquiry. This is because, even if Kyles’ trial counsel had obtained a report like that provided to him by Dr. Tilley, that would have done nothing more than created a battle of the experts on the issue of whether Kyles had the intellectual capacity to stand trial and to make a knowing, intelligent, and voluntary waiver of his
{35} This is significant when considering “even debatable strategic and trial tactics do not constitute ineffective assistance of counsel.” State v. Cox, 12th Dist. Butler No. CA2005-12-513, 2006-Ohio-6075, ¶ 29. This holds true “even if, in hindsight, it looks as if a better strategy had been available.” State v. Artis, 3d Dist. Logan No. 8-18-40, 2019-Ohio-2070, ¶ 39, citing State v. Cook, 65 Ohio St.3d 516, 524 (1992). This is a well-established principle given that this court must “strongly presume that defense counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” State v. Akladyous, 12th Dist. Butler No. CA2021-12-164, 2023-Ohio-3105, ¶ 61, for it is “all too tempting” to “second-guess counsel‘s assistance after conviction or adverse sentence * * *.” Strickland, 466 U.S. at 689. Therefore, for these reasons, Kyles’ second argument also lacks merit.
{36} What is more, and what simply cannot be ignored, is the fact that the state presented overwhelming evidence of Kyles’ guilt on all counts and specifications for which he was tried and convicted, a determination that this court made on three separate occasions in our decision denying Kyles’ direct appeal. See Kyles, 2023-Ohio-489 at ¶¶ 43, 51, and 58. This evidence included, as noted by the trial court, “evidence from his GPS tracker, other witnesses and the victim‘s blood on the money recovered from him,” all of which “would be sufficient for a reasonable jury to convict.” The trial court found this to be the case even when taking Kyles’ confession out of the equation. We agree. Therefore, given the overwhelming evidence of Kyles’ guilt presented at trial, any alleged deficiency in his trial counsel‘s performance for failing to seek out that third competency
{37} In so holding, we note that contrary to what Kyles’ would like this court to believe, Kyles was not convicted because of any alleged ineffective assistance provided to him by his trial counsel. Kyles was instead convicted based upon the overwhelming evidence establishing his guilt beyond a reasonable doubt. See, e.g., State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 62 (denying appellant‘s ineffective assistance of counsel claim where the record plainly indicated “trial counsel did fully investigate this case and zealously represent [appellant],” thereby leading to this court to find appellant “was not convicted based on ineffective assistance of counsel, but instead [appellant‘s] conviction was based on the overwhelming evidence presented at trial“). Aсcordingly, Kyles’ third argument likewise lacks merit.
{38} For the reasons outlined above, and although we agree with Kyles’ argument that the trial court erred by misapplying the doctrine of res judicata to the case at bar, such error was harmless. Being harmless error, this court need not reverse and remand with respect to Kyles’ claims alleging his trial counsel was ineffective for (1) failing “to conduct and/or request [a] second competency evaluation” to determine whether he had the intellectual capacity to stand trial; or (2) failing to consider his “significant mental defect” and “obtain a psychological assessment” prior to the hearing on his motion to suppress to determine whether he had the intellectual capacity to make a knowing, intelligent, and voluntary waiver of his Miranda rights. This is because, when applying the necessary two-part inquiry set forth above, the opinions offered by Dr. Tilley within his affidavit and psychological evaluation report, together with the evidence contained within
Kyles’ Second Issue and Analysis: The Law of the Case Doctrine
{39} In his second issue presented for review, like that of his first, Kyles argues the trial court erred by misapplying the law of the case doctrine when overruling his petition for postconviction relief without a hearing. However, given the resolution of Kyles’ first issue set forth above, this issue has now been renderеd moot. Pursuant to App.R. 12(A)(1)(c), “[u]nless an assignment of error is made moot by a ruling on another assignment of error,” a court of appeals shall “decide each assignment of error and give reasons in writing for its decision.” “[A]n assignment of error is moot when an appellant presents issues that are no longer live as a result of some other decision rendered by the appellate court.” State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, ¶ 26. Therefore, although presented as an issue for review rather than as a full-fledged assignment of error, Kyles’ second issue is nevertheless moot in accordance with App.R. 12(A)(1)(c) and need not be addressed by this court.
Kyles’ Third Issue and Analysis: The “But For” Standard of Prejudice
{40} In his third issue presented for review, Kyles argues the trial court erred by “expressly relying on an erroneously high ‘but for’ standard for prejudice” as it relates to the second prong—the prejudice prong—of the Strickland ineffective assistance of counsel inquiry. To support this claim, Kyles directs this court‘s attention to Bunch, 2022-Ohio-4723 at ¶ 26, wherein the Ohio Supreme Court stated that, “[r]egarding the prejudice prong, the defendant must prove that there is a ‘reasonable probability’ that counsel‘s
The defendant must show that thеre is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
(Emphasis added.)
{41} That the Ohio Supreme Court in Bunch paraphrased the United States Supreme Court‘s decision in Strickland rather than providing a direct, and more complete quote of the United Supreme Court‘s holding in that case, does not mean the standard in Ohio for establishing prejudice in an ineffective assistance of counsel claim was changed in Bunch. Had that been the case, the Ohio Supreme Court certainly would have made that clear given the sheer amount of times Strickland has been cited to for that proposition of law in Ohio.5 This includes over 70 times by the Ohio Supreme Court alone. That is to say nothing of the fact that, according to this court‘s research, every Ohio appellate court has continued to use the “but for” standard of prejudice when reviewing ineffectivе assistance of counsel claims after the Ohio Supreme Court‘s decision in Bunch was released. This includes over ten times by this court, the most recent being just over two
Kyles’ Fourth Issue and Analysis: The Sixth Amendment Right to Counsel
{42} In his fourth issue presented for review, Kyles argues the trial court erred by summarily denying his postconviction relief petition without a hearing on his claim that he received ineffective assistance of counsel based upon his trial counsel‘s failure to argue, as part of his motion to suppress, that his Sixth Amendment right to counsel had been violated. However, after a thorough review of the record, we agree with the trial court‘s decision finding Kyles’ argument that, once he invoked his Fifth Amendment right to counsel, the police were forever barred from speaking with the defendant without counsel, “specious at best.” This is because, as the trial court properly determined, “a defendant can waive both his Fifth and Sixth Amendments rights even after invocation” pursuant to the United States Supreme Court‘s decision in Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079 (2009), which held “the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent.” Id. at 786.
{43} Contrary to Kyles’ claim, “[n]othing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney.” Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176 (1990). Therefore, “[a]lthough a defendant may sometimes later regret his decision to speak with police, the Sixth Amendment does not disable a criminal defendant from exercising his free will.” Id. at 353. That is exactly what Kyles did here, thus negating any claim that Kyles received ineffеctive assistance based upon his trial counsel‘s failure to argue, as part of his motion to suppress, that his Sixth
Conclusion
{44} For the reasons outlined above, and finding no merit to any of the four issues raised by Kyles’ herein, Kyles’ two assignments of error challenging the trial court‘s decision summarily denying his petition for postconviction relief without a hearing lack merit and are overruled. Therefore, having now overruled the two assignments of error advanced by Kyles in support of his appeal, Kyles’ appeal frоm the trial court‘s decision summarily denying his postconviction relief petition without a hearing is denied.
{45} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.