STATE OF OHIO v. WARREN WADDY
CASE NO. 15AP-397
IN THE COURT OF APPEALS TENTH APPELLATE DISTRICT OF OHIO FRANKLIN COUNTY
June 21, 2016
[Cite as State v. Waddy, 2016-Ohio-4911.]
M. POWELL, P.J.
Ron O‘Brien, Franklin County Prosecuting Attorney, Steven L. Taylor, 373 South High Street, Columbus, Ohio 43215, for appellee
Vicki R.A. Werneke, Assistant Federal Public Defender, 1660 West Second Street, #750, Cleveland, Ohio 44113, for appellant
M. POWELL, P.J.
{1} Appellant, Warren Waddy, appeals a judgment of the Franklin County Court of Common Pleas denying his motion for leave to file a motion for new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} In 1987, appellant was sentenced to death following his conviction by a jury of aggravated murder and several other crimes. This court affirmed appellant‘s sentence and conviction on appeal. State v. Waddy, 10th Dist. Franklin Nos. 87AP-1159 and 87AP-1160, 1989 WL 133508 (Nov. 2, 1989) (Waddy I). Subsequently, the Ohio Supreme Court affirmed this court‘s decision. State v. Waddy, 63 Ohio St.3d 424 (1992) (Waddy II).
{3} On June 6, 1995, appellant filed a petition for post-conviction relief pursuant to
{4} Subsequently, the United States Supreme Court held that the execution of mentally retarded criminals violates the Eighth Amendment‘s ban on cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242 (2002). Atkins, however, did not establish procedures for determining whether a person is mentally retarded. Rather, the Supreme Court left it to the states to develop appropriate ways to implement Atkins. Consequently, in December 2002, the Ohio Supreme Court set forth the procedures Ohio now follows in adjudicating a capital defendant‘s Atkins claim. State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625.
{5} Lott set forth a three-prong test for determining a defendant‘s mental retardation claim under Atkins. Whether asserting the claim in a post-conviction context or during the original trial, a defendant must demonstrate “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication,
self-care, and self-direction, and (3) onset before the age of 18.” Lott at ¶ 12. The Ohio Supreme Court held that “[w]hile IQ tests are one of the many factors that need to be considered, they alone are not sufficient
{6} On May 30, 2003, appellant filed a second petition for post-conviction relief, alleging once again he was mentally retarded and thus, ineligible for the death penalty pursuant to Atkins and Lott. The trial court dismissed appellant‘s petition without an evidentiary hearing. On appeal, this court reversed and remanded, finding appellant was “entitled to an evidentiary hearing and funding for an expert to develop his Atkins claim.” State v. Waddy, 10th Dist. Franklin No. 05AP-866, 2006-Ohio-2828, ¶ 48 (Waddy IV). This court also noted that pursuant to Lott, a petition for post-conviction relief asserting an Atkins claim for the first time must be treated as a first petition for post-conviction relief pursuant to
{7} On remand, the trial court appointed two attorneys to represent appellant with regard to his Atkins claim. The trial court also approved funding for appellant‘s counsel to hire a firm to investigate appellant‘s Atkins claim, and for Dr. Daniel Grant to conduct a psychological evaluation of appellant. In January 2009, the trial court held a two-day evidentiary hearing (“2009 Atkins hearing“). The sole witness at the hearing was Dr. Jeffrey L. Smalldon, a psychologist called as a court‘s witness upon appellant‘s motion. Dr. Smalldon discussed IQ testing and scoring techniques as well as common indicators of mental retardation. Based upon his 1995 evaluation of appellant and a review of appellant‘s history of IQ testing, which included the full scale IQ of 83 Dr. Smalldon obtained from his own testing, Dr. Smalldon ultimately opined that although appellant functions at a sub-average level, he “is not mentally retarded.”
{8} On November 25, 2009, the trial court denied appellant‘s Atkins post-conviction relief petition (”Atkins PCR petition“), finding that appellant had failed to prove, by a preponderance of the evidence, that he was mentally retarded. On appeal, this court affirmed the trial court‘s decision. State v. Waddy, 10th Dist. Franklin No. 09AP-1197, 2011-Ohio-3154 (Waddy V). The Ohio Supreme Court declined jurisdiction. State v. Waddy, 133 Ohio St.3d 1422, 2012-Ohio-4902.
{9} On July 18, 2013, appellant filed a motion for leave to file a motion for a new trial under
{10} Appellant‘s
{11} In his affidavit, Dr. Smalldon generally stated he would not testify today in the same way he testified at the 2009 Atkins hearing. Dr. Smalldon noted he was not asked to and did not assess appellant for mental retardation during the 1995 evaluation, nor did he administer any adaptive behavior test to determine appellant‘s adaptive functioning skills. Dr. Smalldon stated that upon reviewing additional materials regarding appellant, including Dr. Hartung‘s report, and the evolving psychological study of mental retardation, especially since 2002, he agrees with Dr. Hartung that “the most weight should be given to” the full scale IQ of 73 resulting from the WAIS-IV because this test is considered superior to the older IQ tests. Dr. Smalldon further stated, “I would cite the strong likelihood that, all things considered, Mr. Waddy would have met” the three-prong test under Lott.
{12} In his affidavit, Dr. Grant indicates he administered two IQ tests to appellant, including the WAIS-IV, after he was retained by appellant‘s appointed Atkins counsel in preparation for the 2009 Atkins hearing. Both tests resulted in a full scale IQ of 76. The affidavits of appellant‘s four siblings detail the physical abuse suffered by appellant and his siblings as a result of their father‘s beatings. The affidavit of appellant‘s sister also indicates her suspicions their father may have attempted to molest her daughters during overnight visits.
{13} On March 13, 2015, the trial court denied appellant‘s
{14} Appellant appeals, raising one assignment of error:
{15} THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
II. ANALYSIS
{16} Appellant argues the trial court abused its discretion in denying his
A. Crim.R. 33(B); Preliminary Issues
{17}
within one hundred twenty days after the day upon which the verdict was rendered. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.
Because appellant‘s motion was filed well outside the 120-day period, he was required to obtain leave of court to file his motion for new trial. State v. Hoover-Moore, 10th Dist. Franklin No. 14AP-1049, 2015-Ohio-4863, ¶ 13.
{18} “To obtain such leave, the defendant must demonstrate by clear and convincing proof that he or she was unavoidably prevented from discovering the evidence within the 120 days.” Id. A party is “unavoidably prevented” from filing a motion for a new trial if the party had no knowledge of the existence of the ground supporting the motion and could not have learned of that existence within the time prescribed for filing the motion in the exercise of reasonable diligence. Id.; State v. Walden, 19 Ohio App.3d 141, 145-146 (10th Dist.1984).
{19} “Clear and convincing proof that the defendant was ‘unavoidably prevented’ from filing ‘requires more than a mere allegation that a defendant has been unavoidably prevented from discovering the evidence he seeks to introduce as support for a new trial.‘” State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 9. The requirement of clear and convincing evidence puts the burden on the defendant to prove he was unavoidably prevented from discovering the evidence in a timely manner. State v. Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-44, 2012-Ohio-5360, ¶ 11.
{20} An appellate court applies an abuse-of-discretion standard in reviewing a trial court‘s denial of a motion for leave to file a motion for new trial. State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 9. A trial court‘s decision whether to conduct an evidentiary hearing on a motion for leave to file a motion for new trial is also discretionary. Hoover-Moore, 2015-Ohio-4863 at ¶ 14.
1. Is Crim.R. 33(B) An Appropriate Remedy?
{21} As an initial matter, the state argues that
{22} In Lott, the Ohio Supreme Court recognized that a petition for post-conviction relief is the appropriate remedy within which to raise a first-time Atkins claim. Lott, 2002-Ohio-6625 at ¶ 13 (the procedures for postconviction relief outlined in
{23} In Reynolds, the Ohio Supreme Court held that “[w]here a criminal defendant, subsequent to [his] direct appeal, files a motion seeking vacation or correction of [his] sentence on the basis [his] constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{24} Notwithstanding
{25} In ruling upon appellant‘s
{26} Had the trial court treated appellant‘s
{27} Similarly, within the context of this case, proceedings under
{29} Because appellant‘s burden to establish unavoidable prevention is the same under
2. Did the Trial Court Apply the Proper Standard of Review in Denying Appellant‘s Crim.R. 33(B) Motion?
{30} Appellant initially argues the trial court abused its discretion in denying his
Before the Court may grant Defendant leave to file his Motion for New Trial, Defendant must establish by clear and convincing evidence that his counsel‘s representation at the [2009] hearing was constitutionally deficient.
{31} However, the foregoing quote omits the trial court‘s very next sentence which states, “Defendant must further establish that that deficiency precluded Defendant‘s discovery of relevant evidence until now.” Given the fact appellant claims he was unavoidably prevented from discovering the evidence precisely because of ineffective assistance of both his trial counsel and his appointed Atkins counsel, it would have been impossible for the trial court to consider appellant‘s claim of being “unavoidably prevented” without concurrently considering whether counsel was ineffective.
{32} Ultimately, the trial court denied appellant‘s
3. Was Appellant Entitled to a Hearing Upon His Crim.R. 33(B) Motion?
{33} Appellant also suggests he was entitled to a hearing on his
{34} In Alexander, the trial court denied the defendant‘s motion for leave to file a motion for new trial as untimely, and without holding a hearing to inquire into the circumstances of a state witness’ recantation. The Eleventh Appellate District held that, had the trial court‘s denial of the motion for leave not been harmless, the denial of the motion without a hearing “would have been an abuse of discretion [because] such a procedural requirement is necessary so that a genuine recantation that could be outcome determinative is not foreclosed only because the recanting witness decides to ‘do the right thing’ belatedly.” Alexander at ¶ 21.
{35} Contrary to appellant‘s suggestion, Dr. Smalldon‘s 2013 affidavit is not a recantation of his testimony at the 2009 Atkins hearing. “A witness recants *** by formally or publicly withdrawing or repudiating earlier testimony.” State v. Covender, 9th Dist. Lorain No. 07CA009228, 2008-Ohio-1453, ¶ 21 (Dickinson, J., concurring in part and dissenting in part), citing Black‘s Law Dictionary (7th Ed.1999) 1274. Dr. Smalldon testified at the 2009 Atkins hearing that appellant‘s full scale IQ was 83 based upon his 1995 IQ testing of appellant. Dr. Smalldon‘s 2013 affidavit does state he would now apply the Flynn effect which would result in a “lowering of the Full Scale IQ estimate from 83 to 79.”3 However, a full scale IQ of 79, even after applying an additional downward adjustment of five points reflecting the standard deviation, would result in a full scale IQ score of 74.4 Pursuant to Lott, a full scale IQ score of 74 raises a rebuttable presumption that appellant is not mentally retarded, consistent with Dr. Smalldon‘s ultimate conclusion in 2009.
{36} As opposed to a recantation, a review of Dr. Smalldon‘s 2013 affidavit simply
shows that based upon the evolving
B. Unavoidable Prevention As a Result of Ineffective Assistance of Counsel
{37} Appellant argues it was an abuse of discretion for the trial court to deny his
1. Was 1987 Trial Counsel Ineffective For Failing to Present Evidence of Appellant‘s Abusive Childhood At Trial?
{38} Appellant first argues he was unavoidably prevented from discovering and timely presenting evidence of his abusive childhood at his 1987 trial due to the ineffective assistance of trial counsel. As a result, the trial court abused its discretion in denying his
{39} The record shows that during the mitigation phase of appellant‘s 1987 trial, only one of appellant‘s siblings testified on behalf of appellant. The sibling testified regarding the circumstances under which appellant grew up, and stated that appellant and his siblings were punished for misbehaving by receiving beatings by their father. When appellant filed his
{40} The trial court denied appellant‘s
2. Was Appointed Atkins Counsel Ineffective at the 2009 Atkins Hearing?
{41} Appellant next argues he was unavoidably prevented from discovering and timely presenting evidence of his abusive childhood and mental retardation at the 2009 Atkins hearing due to the ineffective assistance of his appointed Atkins counsel.
a. The Right to Counsel in Post-Conviction Relief Proceedings
{42} The Sixth Amendment to the United States Constitution provides a right to the effective assistance of counsel in criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). However, the United States Supreme Court has held that there is no federal constitutional right to counsel in state post-conviction proceedings. Rather, “the right to appointed counsel extends to the first appeal of right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990 (1987). Subsequently, the Supreme Court held that because there is no constitutional right to an attorney in state post-conviction proceedings, there is no federal constitutional right to the effective assistance of counsel in such proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546 (1991) (“a petitioner cannot claim constitutionally ineffective assistance of counsel in [state post-conviction] proceedings“). That same year, the Ohio Supreme Court held that a post-conviction indigent petitioner has neither a state nor a federal constitutional right to counsel. State v. Crowder, 60 Ohio St.3d 151, 152 (1991).
{43} This court has generally held that the right to appointed counsel does not apply to post-conviction relief proceedings because such proceedings are civil in nature. State v. Scudder, 131 Ohio App.3d 470, 473-474 (10th Dist.1998). As this court explained in Scudder,
The right to appointed counsel extends to only the first appeal of right, and since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, *** he has no such right when attacking, in post-conviction proceedings, a conviction that has become final upon exhaustion of the appellate process.
Id. This court continued, “[e]xcept as noted above, a civil litigant does not have a right to the effective assistance of appointed counsel. Unlike a criminal defendant, a civil litigant has no constitutional right to the effective assistance of counsel.” (Internal citation omitted.) Id. at 474. “Accordingly, although the General Assembly felt it appropriate to grant indigent postconviction petitioners access to appointed counsel, it was not required to do so, nor was it required to guarantee the effective assistance of counsel.” Id. This court then held that because post-conviction relief proceedings in Ohio are civil in nature, a “defendant has no Sixth Amendment right to the effective assistance of” post-conviction counsel. Id.
{44} Other appellate courts have reached the same conclusion. See State v. Sheppard, 1st Dist. Hamilton No. C-000665, 2001 WL 331936 (Apr. 6, 2001) (a civil litigant in a post-conviction proceeding has no due-process right to the effective assistance of counsel, even in a death-penalty
{45} Although
{46} This court recognizes that while the decisions cited above involved petitions for post-conviction relief filed pursuant to
{47} In the case at bar, following this court‘s decision in Waddy IV, 2006-Ohio-2828, the trial court appointed two attorneys to represent appellant with regard to his Atkins claim. This was in accord with this court‘s decision in Burke where we held, “an indigent capital defendant raising an Atkins claim for the first time in a post-conviction proceeding is entitled to be represented by two certified attorneys.” Burke, 2005-Ohio-7020 at ¶ 46;
{48} Because appellant was provided with two certified attorneys to prosecute his
Atkins claim, and because we agree with the trial court that his appointed Atkins counsel was not ineffective, we find that the trial court did not err in denying his
b. Failure to Present Evidence of Appellant‘s Abusive Childhood at the 2009 Atkins Hearing
{49} On appeal, appellant ostensibly argues he was unavoidably prevented at the 2009 Atkins hearing from presenting evidence of his abusive childhood and mental retardation due to the ineffectiveness of his appointed Atkins counsel. However, in his
{50} In any event, assuming appellant argues on appeal that he was unavoidably prevented from discovering evidence of his abusive childhood and presenting such evidence at the 2009 Atkins hearing, we find appellant cannot demonstrate he was unavoidably prevented from discovering the evidence before the Atkins hearing or in a timely manner thereafter. Appellant cannot demonstrate under
{51} Furthermore, while appellant‘s Atkins PCR petition is considered a first and timely petition for post-conviction relief under
c. Failure to Present Atkins Evidence at the 2009 Atkins Hearing
{52} Appellant argues he was unavoidably prevented from discovering evidence of his mental retardation and presenting such evidence at the 2009 Atkins hearing because of the failure of his appointed Atkins counsel to call an expert such as Dr. Hartung. We agree with the trial court that appellant failed to establish that counsel‘s performance at the hearing was deficient. As the trial court properly found:
The Court appointed two knowledgeable and experienced attorneys to represent defendant at his 2009 evidentiary hearing. The Court approved counsel‘s request for expert funding for an investigator and for psychologist, Dr. Daniel Grant. At the evidentiary hearing, counsel confirmed that they were electing not to call Dr. Grant as a defense witness. Rather, counsel chose to rely on their cross-examination of Dr. Smalldon.
Defendant argues that counsel was ineffective for failing to call an expert willing to testify that Defendant suffers from MR [mental retardation]. Defendant submits Dr. Cynthia Hartung‘s * * * Report in support of his argument, wherein Dr. Hartung opines that Defendant suffers from a mild form of MR.
The Court finds that Defendant has failed to establish by clear and convincing evidence that counsel‘s performance at his 2009 evidentiary hearing was deficient. Defendant submitted an affidavit from Dr. Grant in support of his Motion for New Trial. In his affidavit, Dr. Grant concedes that he administered two IQ tests on Defendant which resulted in a full scale IQ of 76. As such, it was both reasonable and strategic for counsel to forego calling Dr. Grant to testify at the evidentiary hearing. Although Defendant has now located an expert who supports his position, there is no indication that his counsel acted unreasonably.
{53} Counsel‘s decision whether to call a witness generally falls within the rubric of trial strategy and will not be second-guessed by a reviewing court. See State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 222. In hiring experts, “[a]ttorneys need not pursue every conceivable avenue; they are entitled to be selective.” State v. Murphy, 91 Ohio St.3d 516, 542 (2001); State v. Drummond, 7th Dist. Mahoning No. 05 MA 197, 2006-Ohio-7078, ¶ 61. As the trial court properly found, “[e]ffectiveness standards do not mandate that counsel consult multiple experts until they find one who supports their conclusion.”
{54} We therefore find that the trial court did not err in denying appellant‘s
d. Applicability of Martinez v. Ryan, and Maples v. Thomas
{55} Appellant asserts, however, that the ability of his appointed Atkins counsel to discover evidence of appellant‘s abusive childhood and mental retardation and present it at the 2009 Atkins hearing cannot be held against him and does not preclude him from asserting he was unavoidably prevented from discovering such evidence because
{56} It is well-established that “[a] lawyer is an agent for his client and a party is deemed bound by the acts of his lawyer and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.‘” State v. Mayle, 10th Dist. Franklin No. 01AP-978, 2002 WL 756864, *2 (Apr. 30, 2002), quoting GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d 146, 152 (1976).
{57} Martinez involved a petition for habeas corpus and originated in Arizona where state law only permits ineffective assistance of counsel claims to be brought in state collateral proceedings rather than on direct appeal. Martinez‘s post-conviction counsel filed a direct appeal and initiated a state collateral proceeding, but failed to present a claim of ineffective assistance of trial counsel in the state collateral proceeding. On federal habeas review, Martinez argued he could overcome procedural default as he had cause for the default, to wit, his first post-conviction counsel was ineffective for failing to raise any claims in the first notice of post-conviction relief. Both the District Court for the District of Arizona and the Ninth Circuit Court of Appeals held that Martinez had not shown cause to excuse the procedural default because, under Coleman, 111 S.Ct. 2546, prisoners have no federal constitutional right to the effective assistance of counsel in post-conviction proceedings.
{58} In addressing Martinez‘s claim, the Supreme Court acknowledged its holding in Coleman that under well-settled principles of agency law, “[n]egligence on the part of a
prisoner‘s postconviction attorney does not qualify as ‘cause.‘” Martinez, 132 S.Ct. at 1316. The Supreme Court also acknowledged that in cases where the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner‘s direct appeal as to the ineffective-assistance claim and thus, the prisoner‘s “one and only appeal” as to the claim. Id. at 1315-1316. As a result, “when an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner‘s claim,” and since a procedural default would preclude any habeas claim, “no court will review the prisoner‘s claim.” Id. at 1314-1316.
{59} Consequently, the Supreme Court qualified its holding in Coleman and held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner‘s procedural default of a claim of ineffective assistance
{60} Appellant ostensibly parallels his case to Martinez‘s case in that “an incarcerated prisoner like [appellant] is in ‘no position’ to develop evidence in support of an ineffectiveness claim.” See Martinez, 132 S.Ct. at 1317 (“While confined to prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective assistance, which often turns on evidence outside the trial record“).
{61} Martinez, however, does not recognize a constitutional right to counsel or effective assistance of counsel in post-conviction proceedings. Nor does it find any particular state procedural or substantive rules akin to Ohio‘s post-conviction relief scheme to be unconstitutional. State v. Glover, 8th Dist. Cuyahoga Nos. 100330 and 100331, 2014-Ohio-3228, ¶ 28 (Martinez “does not provide a free-standing constitutional right to the appointment of counsel in postconviction proceedings“). Rather, Martinez simply “established an equitable doctrine for overcoming procedural default in certain limited circumstances.” Id. Indeed, the Supreme Court was careful to point out it was only recognizing a “narrow exception” to its holding in Coleman:
The rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State‘s appellate courts. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons.
(Internal citations omitted.) Martinez, 132 S.Ct. at 1320. That is, the Court made clear that Martinez applies only to cases where defendants have been denied the effective assistance of counsel at the “initial review” stage of the litigation. Id. at 1315. The Court expressly stated that its holding does not apply to successive collateral proceedings. Id. at 1320. Claims of newly discovered evidence may be brought, and often are brought, in successive collateral proceedings, which the Martinez court expressly excluded from its holding. Id.; Glover at ¶ 30.
{62} Appellant argues that in Martinez, the Supreme Court observed that incarcerated defendants claiming ineffective of counsel or denial of the right to counsel in initial-review collateral proceedings ““are generally ill equipped to represent themselves’ because they do not have a brief from counsel or an opinion of the court addressing their claim of error.” Martinez at 1317. Such was not the case here. The record shows there were substantial briefing and courts’ decisions regarding
{63} Appellant spends considerable effort likening the cause for procedural default aspect of Martinez to this case. Specifically, appellant claims that his 2009 Atkins hearing is an initial review collateral proceeding with regard to his Atkins claim, and that the alleged ineffectiveness of his appointed Atkins counsel at the hearing is cause to excuse procedural default at that hearing. This court finds that the exception to the application of the procedural default doctrine recognized in Martinez has no relevancy to our analysis of appellant‘s
{64} Appellant also cites the Supreme Court‘s decision in Maples in support of his claim he was abandoned by his prior counsels and thus cannot be bound by their ineffective assistance.
{65} Maples addressed whether an habeas corpus petitioner was bound by his post-conviction attorneys’ failure to timely file a notice of appeal or whether cause for a procedural default existed. The Supreme Court generally held that “under agency principles, a client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him.” Maples, 132 S.Ct. at 923.
{66} In reaching its holding, the Supreme Court explained that “[n]egligence on the part of a prisoner‘s postconviction attorney does not qualify as ‘cause’ * * * because the attorney is the prisoner‘s agent, and under ‘well-settled principles of agency law,’ the principal bears the risk of negligent conduct on the part of his agent.” (Internal citation omitted.) Id. at 922. “Thus, when a petitioner‘s postconviction attorney misses a filing deadline, the petitioner is bound by the oversight and cannot rely on it to establish cause. We do not disturb that general rule.” (Internal citation omitted). Id. “A markedly different situation is presented, however, when an attorney abandons his client without notice, and thereby occasions the default. Having severed the principal agent relationship, an attorney no longer acts, or fails to act, as the client‘s representative.” Id. at 922-923. As a result, the attorney‘s acts or omissions “cannot fairly be attributed to [the client].” Id. at 923. The Supreme Court further observed that there was an “essential difference between a claim of attorney error, however egregious, and a claim that an attorney ha[s] essentially abandoned his client.” Id.
{67} In Maples, the defendant‘s attorneys had failed to timely file a notice of appeal. In finding that Maples’ attorneys had abandoned their representation of him, as opposed to merely being negligent, the Supreme Court noted that two of the attorneys had left the law firm, taken jobs that precluded their further representation of Maples, and failed to file motions to withdraw, thus providing no notice to the court as to where notices, orders, and the like were to be directed. In addition, Maples’ third attorney never undertook to represent him, and was involved in the case only so that the other two attorneys could appear pro hac vice.
III. CONCLUSION
{69} In light of all of the foregoing, this court finds that the trial court did not abuse its discretion in denying appellant‘s
{70} Judgment affirmed.
HENDRICKSON and PIPER, JJ., concur.
M. Powell, P.J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Hendrickson, J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Piper, J., of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.