[Cite as State v. Jones, 2014-Ohio-3064.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

ELMER JONES, III : Case No. 14-COA-002 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

 Pleas, Case No. 12-CRI-045 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: July 11, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

PAUL T. LANGE MELISSA M. PRENDERGAST 

110 Cottage Street 250 East Broad Street 

Third Floor Suite 1400 

Ashland, OH 44805 Columbus, OH 43215 
Ashland County, Case No. 14-COA-002 2 

Farmer, J. 

{¶1} On April 27, 2012, the Ashland County Grand Jury indicted appellant, 

Elmer Jones, III, on three counts of rape in violation of R.C. 2907.02 and one count of 

gross sexual imposition in violation of R.C. 2907.05. Said charges arose from incidents 

involving a twelve year old child. 

{¶2} On May 23, 2012, defense counsel filed a motion for a psychological 

evaluation to determine appellant's mental capacity. A hearing was held on June 26, 

2012. During the course of the hearing, defense counsel modified the motion and 

requested a competency evaluation. By judgment entry filed June 27, 2012, the trial 

court ordered a competency evaluation to determine appellant's competency to stand 

trial. 

{¶3} On June 17, 2012, a pretrial was held wherein the trial court reviewed 

appellant's competency evaluation. By judgment entry filed same date, the trial court 

found appellant competent to stand trial and assist in his defense. 

{¶4} On July 20, 2012, appellant filed a motion to suppress, claiming an 

unlawful arrest, his right to counsel was violated, and any confessions were not 

voluntarily made. A hearing was held on August 9, 2012. By judgment entry filed 

September 9, 2012, the trial court denied the motion, finding the first two interviews of 

appellant (March 28, and April 24, 2012) did not constitute custodial interrogation 

requiring Miranda warnings, appellant was properly advised of his rights prior to the 

third interview on April 24, 2012 at the police department, appellant's statements to 

police were voluntary, and probable cause existed for the arrest. 
Ashland County, Case No. 14-COA-002 3 

{¶5} A jury trial commenced on October 23, 2012. The jury found appellant 

guilty as charged. By judgment entry filed January 16, 2013, the trial court sentenced 

appellant to an aggregate term of thirty years to life in prison. Appellant's conviction and 

sentence were affirmed on appeal. State v. Jones, 5th Dist. Ashland No. 13 COA 012, 

2014-Ohio-1716. 

{¶6} On November 27, 2013, appellant filed a petition for postconviction relief, 

claiming ineffective assistance of trial counsel for counsel's failure to pursue the issue of 

his intellectual disabilities. By judgment entry filed December 18, 2013, the trial court 

denied the petition without hearing, finding no ineffective assistance of trial counsel or 

prejudice to appellant. 

{¶7} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶8} "JOE JONES WAS DENIED HIS FEDERAL AND STATE 

CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL 

DURING HIS TRIAL COURT PROCEEDINGS, AND THE TRIAL COURT ABUSED ITS 

DISCRETION WHEN IT DENIED HIS PETITION FOR POSTCONVICTION RELIEF. 

SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION." 

II 

{¶9} "JOE JONES'S TRIAL COUNSEL FAILED TO INVESTIGATE JOE'S 

INTELLECTUAL DISABILITY TO SUPPORT THE MOTION TO SUPPRESS COUNSEL 

FILED. BECAUSE AMPLE EVIDENCE EXISTS TO SUPPORT THE ARGUMENT 
Ashland County, Case No. 14-COA-002 4 

THAT JOE IS UNABLE TO COMPREHEND THE IMPORT OF HIS WAIVER OF THE 

RIGHT AGAINST SELF-INCRIMINATION, TRIAL COUNSEL WAS INEFFECTIVE IN 

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO 

CONSTITUTION." 

I, II 

{¶10} Appellant claims the trial court erred in denying his petition for 

postconviction relief based on ineffective assistance of trial counsel, as the evidence 

presented dehors the record was sufficient to establish that his trial counsel was 

ineffective for failing to investigate and present evidence of his mental 

capacity/intellectual disabilities. We disagree. 

{¶11} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C) 

states the following in pertinent part: 

The court shall consider a petition that is timely filed under division 

(A)(2) of this section even if a direct appeal of the judgment is pending. 

Before granting a hearing on a petition filed under division (A) of this 

section, the court shall determine whether there are substantive grounds 

for relief. In making such a determination, the court shall consider, in 

addition to the petition, the supporting affidavits, and the documentary 

evidence, all the files and records pertaining to the proceedings against 

the petitioner, including, but not limited to, the indictment, the court's 
Ashland County, Case No. 14-COA-002 5 

journal entries, the journalized records of the clerk of the court, and the 

court reporter's transcript. 

{¶12} The standard of review on a denial of a postconviction relief petition is 

explained by our brethren from the Eighth District in State v. Hines, 8th Dist. Cuyahoga 

No. 89848, 2008-Ohio-1927, ¶ 8: 

"A postconviction proceeding is not an appeal of a criminal 

conviction, but, rather, a collateral civil attack on the judgment." State v. 

Steffen (1994), 70 Ohio St.3d 399, 410, 1994-Ohio-11. In postconviction 

cases, a trial court acts as a gatekeeper, determining whether a defendant 

will even receive a hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-

Ohio-6679. In State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, the 

Ohio Supreme Court held that the trial court's gatekeeping function in the 

postconviction relief process is entitled to deference, including the court's 

decision regarding the sufficiency of the facts set forth by the petitioner 

and the credibility of the affidavits submitted. Accordingly, we review 

appellant's postconviction claims brought pursuant to R.C. 2953.21 under 

an abuse-of-discretion standard. Id. An abuse of discretion is more than 

a mere error in judgment, it implies that a court's ruling is unreasonable, 

arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio 

St.3d 217, 219. 
Ashland County, Case No. 14-COA-002 6 

{¶13} The standard of ineffective assistance of trial counsel is set forth in State 

v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. 

Appellant must establish the following: 

2. Counsel's performance will not be deemed ineffective unless and 

until counsel's performance is proved to have fallen below an objective 

standard of reasonable representation and, in addition, prejudice arises 

from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 

O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.) 

3. To show that a defendant has been prejudiced by counsel's 

deficient performance, the defendant must prove that there exists a 

reasonable probability that, were it not for counsel's errors, the result of 

the trial would have been different. 

{¶14} Appellant summarized his reasons for postconviction relief in his 

November 27, 2013 petition as follows in part: 

2) Mr. Jones' convictions and sentences are void and/or voidable 

because he was denied the effective assistance of counsel at his trial to 

which he was entitled under the Sixth and Fourteenth Amendments to the 

United States Constitution. Strickland v. Washington, 466 U.S. 668, 104 

S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mr. Jones' trial counsel failed to 
Ashland County, Case No. 14-COA-002 7 

employ a competent expert to refute the findings of the Forensic 

Diagnostic Center that his full-scale I.Q. of 61 was questionable. (See 

July 17, 2012 Judgment Entry; July 19, 2012 Judgment Entry; and Aug. 

16, 2012 State's Closing Argument on Defendant's Motion to Suppress, at 

p. 3). Mr. Jones' trial counsel also failed to investigate his client's 

intellectual disability by seeking out appropriate documentary proof of that 

disability, including but not limited to medical records, educational records, 

and records of county, state, and federal agencies and boards who 

manage and administer government-provided disability benefits. 

7) Competent defense counsel would have realized the critical 

importance of the FDC's finding and suggestion of Mr. Jones' malingering. 

To rebut that finding and support Mr. Jones' meritorious motion to 

suppress, defense counsel would have had to investigate Mr. Jones' 

medical, educational, employment, and psychological history. Counsel 

would have had to obtain releases from Mr. Jones and request records 

from the Social Security Administration, local and state developmental 

disability boards, physicians, and schools, among others. Counsel did no 

investigation to support Mr. Jones' claims. In fact, counsel even withdrew 

his motion for expert funds, which may have provided the critical evidence 

needed to rebut the FDC's adverse findings. 

{¶15} Attached to the petition are the certified records from the Cuyahoga 

County Board of Developmental Disabilities, indicating the presence of a 
Ashland County, Case No. 14-COA-002 8 

"developmental handicap" (September 29, 1983), physical and mental impairments with 

substantial functional limitations in "receptive and expressive language," "self direction," 

and "economic self sufficiency," (January 11, 1995), and "mildly MR" (May 13, 1994). 

Appellant was born on February 14, 1969. 

{¶16} In its December 18, 2013 judgment entry denying the petition for 

postconviction relief, the trial court addressed in detail the issues raised by appellant in 

its Findings of Fact: 

3. Prior to trial, the Court referred the Defendant to the Forensic 

Diagnostic Center, Mansfield, Ohio for an assessment as to his 

competency to stand trial. Dr. Covey, who performed the assessment, 

rendered an opinion "with reasonable psychological certainty" that the 

Defendant "has the capacity to understand the nature and objectives of 

the proceedings against him and does currently have the capacity to 

assist in his defense." 

4. Dr. Covey, during his assessment, administered a Weschler 

Adult Intelligence Scale IV, and although Dr. Covey determined that the 

Defendant had not made a good effort on the test, the results were 

considered in his assessment. 

5. Dr. Covey, in his assessment, specifically found that the 

Defendant did not qualify for a diagnosis of mental retardation (cognitive 

disability). The only deficit of the Defendant was in adaptive functioning, 

an academic deficit. 
Ashland County, Case No. 14-COA-002 9 

6. While Defendant submits records that suggest he was 

intellectually disabled as a child, those records and findings do not, due to 

their age and the age of the Defendant at the time they were compiled, 

refute the findings of Dr. Covey in his assessment of the Defendant as an 

adult. 

7. Defendant fails to establish how prior counsel's failure to make 

additional inquiries, in light of Dr. Covey's assessment, would have 

necessitated a second forensic assessment. 

{¶17} Following its Conclusions of Law, the trial court decided the following: 

In the present case, the Court finds that Defendant fails in his 

burden to demonstrate a lack of competent counsel, and fails to 

demonstrate that the defense was prejudiced by any asserted 

ineffectiveness. There is no indication, based on any of the information or 

documentation presented by Defendant, that Defendant's motion to 

suppress would have had any additional potential for success. The issue 

at the suppression hearing was whether Defendant's statements of 

admission were voluntary. There is no evidence in the record to suggest 

they were not. The Court cannot see how the retention of an additional 

expert by prior defense counsel would have changed the facts and 

circumstances leading to the admissions the Court determined were 

admissible. 
Ashland County, Case No. 14-COA-002 10 

Based on the foregoing, the Court finds no grounds for granting the 

Defendant's petition for relief. The Court therefore DENIES Defendant's 

Post-Conviction Petition. 

{¶18} Some twenty-eight days after appellant's arraignment, on May 23, 2012, 

defense counsel filed a motion for psychological evaluation for the following reasons: 

The Defendant and his family have brought to counsel's attention 

that Defendant suffers from mental incapacity and receives Social Security 

Disability benefits as a result. A suppression motion is contemplated in 

this case challenging the voluntariness of certain statements made by the 

Defendant prior to charges being filed. Mental incapacity is a significant 

factor in determining whether or not a suspect's statements were 

voluntary, State of Ohio vs. Shawn Clemens, 2001 Ohio 3212; Ohio App. 

LEXIS 1405. A psychological evaluation is necessary to determine this 

Defendant's ability to voluntarily waive his Miranda rights and to make a 

voluntary statement. 

{¶19} A hearing on the motion was held on June 26, 2012 during which the 

following discussion was had: 

MR. SULLIVAN: Your Honor, it's my understanding that by consent, 

by agreement with the State, that Mr. Jones can be evaluated for the 
Ashland County, Case No. 14-COA-002 11 

purpose of a competency evaluation by the Forensic Center, and in the 

event that leads the professional to diagnose mental retardation, that 

would be addressed as well in accordance with however they do it 

professionally, and we would be in agreement with that. 

THE COURT: Mr. Lange? 

MR. LANGE: Your Honor, just for the Record, again, the State is 

opposed to a general psychological evaluation, however, Mr. Sullivan has 

indicated with the Court and the State that the Defendant has been of 

limited value in assisting in the preparation of this case, and the State is 

therefore not opposed to a general competency evaluation. Just so 

everyone is aware, it's my understanding based on the statute 2945.371 

that the Forensic Diagnostic Center will do the competency evaluation and 

they may give an opinion about whether or not the Defendant appears to 

be mentally retarded, if they find that he appears to be mentally retarded, 

it will come back to this Court and this Court will have to determine 

whether or not to send it to the Board of Developmental Disabled People 

for them to make a more thorough diagnosis of mental retardation. 

{¶20} In its June 27, 2012 judgment entry following the hearing, the trial court 

memorialized the following: 

Prior to the hearing the Court met briefly with the attorneys to 

discuss the matter before the Court. During the course of the hearing, the 
Ashland County, Case No. 14-COA-002 12 

Defendant modified his request and requested instead that the Court order 

a competency evaluation for the Defendant. The State of Ohio had no 

objection to the Court ordering a competency evaluation of the Defendant. 

By separate judgment entry, the Court does hereby ORDER that the 

Defendant be evaluated to determine his competency to stand trial. 

{¶21} In the July 20, 2012 motion to suppress, defense counsel argued 

appellant's confession was involuntary because of his mental incapacity, coupled with 

the "constant and lengthy suggestive interrogation." In an August 27, 2012 filing entitled 

"Defendant's Closing Arguments on Motion to Suppress," defense counsel argued the 

following: 

The claim in this case is not that the Defendant suffers from some 

"mental defect" as argued by the State. Rather, the Forensic Diagnostic 

Report, which was ordered by this Court, shows throughout that the 

Defendant is low functioning. This is true even if Dr. Covey's IQ test is not 

considered. Dr. Covey also reported a previous IQ score of 83 

established when the Defendant was 6 years seven months old based 

upon the Stanford Binet Intelligence Test. This score "is known to fall at 

the thirteenth percentile." See Collateral Information, page 5. Dr. Covey 

was certainly entitled to consider the Defendant's history just as a 

physician/patient examination would require. Further, it was established 

by Dr. Covey that the Defendant is unable to read or write. The Court can 
Ashland County, Case No. 14-COA-002 13 

give Dr. Covey's report whatever weight it merits but it is evident that this 

Defendant did not have the ability to resist Officer Mager's constant 

insistence that the Defendant did something wrong. The State's assertion 

that the Defendant inquired about the Flinders case because the 

Defendant had committed similar offenses is simply not supported by the 

evidence. It was Officer Mager who initiated the conversation about 

Flinders and who inquired about what the Defendant knew or did not know 

about the case. 

The Court has heard the entire recording of the three interviews. It 

is submitted that, under the totality of circumstances, Defendant's 

statements were not voluntary and should be suppressed. 

{¶22} After a full hearing on the motion to suppress, the trial court determined it 

would consider Dr. Covey's competency report. August 9, 2012 T. at 77-78. In its 

September 5, 2012 judgment entry denying the motion to suppress, the trial court 

referenced its consideration of the report: 

Defendant argues that his low IQ made him so susceptible to 

manipulation and improper influence, that his statements were rendered 

involuntary. The Court does not find that to be correct in this case. The 

Defendant freely discussed similar inappropriate sexual conduct by 

another adult, and clearly showed an understanding that such conduct 

was inappropriate and illegal. At no time during the interviews did 
Ashland County, Case No. 14-COA-002 14 

Defendant's mental faculties impair his ability to engage in rational 

conversation and thought. The report from the Forensic Diagnostic Center 

indicates that Defendant's only area of deficiency with regard to adaptive 

functioning, is academic. The Defendant does not qualify for a diagnosis 

of mental retardation. The Defendant's conversation showed a clear 

understanding of legal processes, both civil and criminal. 

{¶23} The record establishes that defense counsel consistently argued and was 

aware of appellant's limitations. The fact that the trial court denied extra funds cannot 

support any deficiency on the part of defense counsel. The trial court's 

acknowledgment of the report, as well as the report's own references to previous 

testing, establishes that defense counsel was not deficient.1

 

{¶24} Despite this finding, we also concur with the trial court's analysis of the 

second prong of an ineffective assistance of trial counsel claim, no showing of prejudice 

to appellant. During the suppression hearing, Ashland Police Officer Kim Mager 

testified to the three aforementioned interviews of appellant. During the first interview 

on March 28, 2012, appellant was clearly in charge of the scope of the interview. He 

was in his place of residence, he terminated the interview, and he invited the officer to 

interview him at the Kroc Center. August 9, 2012 T. at 10-11, 18-19. During the second 

interview on April 24, 2014 at the Kroc Center, appellant agreed to talk in Officer 

Mager's unmarked and unlocked car. Id. at 21-24. Appellant acknowledged to the 

 

1

The record does not contain Dr. Covey's report. We therefore presume the validity of 

the proceedings and rely on the trial court's analysis of the report. Knapp v. Edwards 

Laboratories, 61 Ohio St.2d 197 (1980). 
Ashland County, Case No. 14-COA-002 15 

officer that he believed he was not going to be arrested, otherwise he reasoned, he 

would have been arrested inside the Kroc Center. Id. at 26. Again, appellant 

terminated the interview by stating he had to get back to work and exiting the car. Id. at 

24, 31-32. Appellant was arrested at the Kroc Center later that day. Id. at 37. 

Appellant was taken to the police department and was given his Miranda warnings, and 

spoke to Officer Mager for forty minutes. Id. at 38, 47. Appellant was not new to the 

system, as had served some previous time in jail on a drug arrest. Id. at 40-41. During 

the interviews, appellant appeared coherent and stated he was comfortable. Id. at 41. 

Appellant told the officer his source of income was odd jobs and SSI. Id. at 68. 

{¶25} The presentation of the previous testing would have added nothing to the 

trial court's decision on the voluntariness of appellant's statements. Two of the 

interviews were recorded; therefore, the trial court had the ability to judge appellant's 

demeanor and ability to respond to the questions. Id. at 34, 38, 52-53, 71. 

{¶26} Given the testimony presented during the suppression hearing, we concur 

that any deficiency would not have impacted the trial court's decision on voluntariness. 

{¶27} Assignments of Error I and II are denied. 

 
Ashland County, Case No. 14-COA-002 16 

{¶28} The judgment of the Court of Common Pleas of Ashland County, Ohio is 

hereby affirmed. 

By Farmer, J. 

Gwin, P.J. and 

Baldwin, J. concur. 

 

 

 

 

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