[Cite as State v. Group, 2011-Ohio-6422.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

STATE OF OHIO, ) 

 ) CASE NO. 10 MA 21 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) OPINION 

 ) 

SCOTT A. GROUP, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

Court, Case No. 97 CR 66. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Paul J. Gains 

Prosecuting Attorney 

Attorney Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 W. Boardman St., 6th Floor 

Youngstown, OH 44503 

For Defendant-Appellant: Attorney John B. Juhasz 

7081 West Blvd., Suite 4 

Youngstown, OH 44512 

Attorney John P. Laczko 

3685 Stutz Drive, Suite 100 

Canfield, OH 44406 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Dated: December 8, 2011 
[Cite as State v. Group, 2011-Ohio-6422.]

DeGenaro, J. 

{¶1} Defendant-Appellant, Scott A. Group, appeals the December 31, 2009 

decision of the Mahoning County Court of Common Pleas denying his petition for postconviction relief in this capital case. On appeal Group argues that the court erred by 

dismissing each of the 13 grounds for relief he raised in his petition. Group also argues 

that the trial court erred by failing to permit him to conduct discovery and by failing to 

conduct an evidentiary hearing. 

{¶2} Upon review, all of Group's arguments are meritless. A petitioner has no 

right to discovery during post-conviction proceedings. And the trial court properly 

dismissed each of Group's claims without holding a hearing. The majority of his claims 

are barred by res judicata as they are not supported by cogent evidence de hors the 

record. With regard to the few remaining claims which have some support outside the 

record, they fail to demonstrate substantive grounds for relief. Accordingly, the judgment 

of the trial court is affirmed. 

Facts 

{¶3} In Group's direct appeal from his capital convictions, the Supreme Court of 

Ohio described the facts of the offense: 

{¶4} "On January 18, 1997, the appellant, Scott A. Group, shot Robert Lozier to 

death during a robbery. * * * 

{¶5} "Robert Lozier's wife, Sandra Lozier, owned the Downtown Bar in 

Youngstown, Ohio. In late September 1996, the Loziers began buying wine and other 

merchandise from Ohio Wine Imports Company. Group, who was then employed as a 

deliveryman for Ohio Wine, made weekly deliveries to the Downtown Bar. Group never 

asked the Loziers to sign or initial a copy of the invoice when they took delivery, a practice 

Mrs. Lozier characterized as unusual. 

{¶6} "On December 12, 1996, Group brought his cash receipts to the Ohio Wine 

warehouse manager's office to be counted and compared against his invoices. Group's 

cash receipts were approximately $1,300 short. Although the police were notified, Group 

was never charged with stealing the missing money. 

{¶7} "About a week before Robert Lozier's murder, Group went to the Downtown 
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Bar and asked Mrs. Lozier to show him the bar's copies of invoices from Ohio Wine. 

{¶8} "Less than a week before Robert Lozier's murder, two Ohio Wine 

employees saw Group with a revolver at work. They told him to take the gun out of the 

building, since possessing a firearm in the warehouse was illegal. 

{¶9} "The day before the murder, Group quit his job at Ohio Wine. That night, 

two witnesses saw Group at the Downtown Bar. One of them, Robert Genuske, who 

worked at the bar, recalled that a few weeks earlier, Group had come to the bar looking 

for Mr. or Mrs. Lozier because he wanted to talk to them about an invoice. 

{¶10} "The next day, January 18, the Loziers arrived at the Downtown Bar around 

10:00 a.m. It was a cold day and Robert Lozier went upstairs to see whether the pipes 

had frozen. Sandra Lozier went to an office, opened a safe, removed five bags 

containing approximately $1,200 to $1,300 in cash, and set them on her desk. 

{¶11} "As she counted the cash, Mrs. Lozier heard a knock at the bar's front door. 

She went to the door, looked through the peephole, and saw Group. Mrs. Lozier 

recognized Group and let him in. She noted that he was wearing tennis shoes, jeans, a 

dark blue sweatshirt, and an undershirt. She particularly noticed that he wore both a 

sweatshirt and an undershirt because Group 'never dressed that warmly.' 

{¶12} "Group told Mrs. Lozier that he wanted to check the invoices again. Mrs. 

Lozier led him to the office. As Mrs. Lozier and Group searched through the invoices, 

Robert Lozier came into the office, sat at the desk, and took over counting the money. As 

Mrs. Lozier later testified, '[Group] just kept going through [the invoices], and it was like he 

just kept staring at them.' 

{¶13} "Asking to use the restroom, Group left the office briefly. When he returned, 

he had a gun. Group ordered the Loziers to put their hands up and get into the restroom. 

Mrs. Lozier told Group to take the money, but Group replied, 'This isn't about money.' He 

forced the Loziers into the restroom at gunpoint and made them put their hands against 

the wall. 

{¶14} "Group stated that 'he was the brother of the girl that was missing.' Mrs. 

Lozier interpreted this as a reference to Charity Agee, a murder victim who had last been 
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seen at the Downtown Bar on New Year's Eve. The Loziers turned around, but Group 

ordered them to face the wall. Then he shot them both. He shot Robert Lozier once in 

the head. He shot Sandra Lozier twice: once in the back of the neck and once near her 

temple. 

{¶15} "Mrs. Lozier lost consciousness. She woke to find her husband dead on the 

floor. Mrs. Lozier thought she was dying, so she tried to write 'Ohio Wine' on the floor in 

her own blood as a clue for the police. At the time, she did not know Group's name. She 

then crawled to the office, where she managed to dial 911. She told the operator that 'the 

delivery man from Ohio Wine' had shot and robbed her and her husband. The 911 call 

was recorded; a voice timestamp on the tape established that the call was received at 

11:05 a.m. 

{¶16} "The first Youngstown police officer to arrive at the crime scene was 

Detective Sergeant Joseph Datko. Mrs. Lozier told Datko: 'The Ohio Wine man shot me. 

 The Ohio Wine man. Our delivery man shot us.' The money the Loziers had been 

counting before the shootings was gone and so was the box of invoices that Group had 

been looking through. 

{¶17} "At trial, Group, his family, and a family friend gave a different account of 

Group's whereabouts. Group testified that, after driving his foster son to work around 

7:30 a.m., he went back to his apartment, gathered some dirty laundry, and went to his 

mother's house to wash it, arriving around 9:00 or 9:30 a.m. He testified that he did not 

know what time he had left his mother's house. Group's mother, grandmother, and sister 

were at Group's mother's house that morning, along with Francisco Morales, a friend of 

the Group family. The accounts given by these witnesses generally indicated that Group 

had arrived at his mother's house by 9:00 a.m. and had left between 11:30 and 11:40 

a.m. 

{¶18} "According to Group, after leaving his mother's house, he drove to the 

Diamond Tavern in Campbell, Ohio. Group testified that he did not know how long he 

was at the tavern but that he had left at noon. 

{¶19} "There were about eight customers at the Diamond Tavern. Group bought 
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at least two rounds of drinks for all of the customers. A fellow patron thanked Group and 

said, 'I'll see you,' but Group replied, 'You aren't going to see me anymore.' He had a 

similar exchange with the bartender, Bonnie Donatelli. 

{¶20} "Group then drove to the VFW post, which took about five minutes. The 

manager, Maria Dutton, was a friend of Group's. According to Dutton, Group arrived 

slightly after noon and left at 12:55 p.m. While there, Group bought a round of drinks for 

everyone. 

{¶21} "Group then drove to a grocery store and telephoned his mother. According 

to his mother, she received the call between 1:00 and 1:30 p.m. Mrs. Group told her son 

that Youngstown police were looking for him in connection with a shooting downtown. 

According to Group, he knew that he had not been downtown, so he surmised that his 

mother misunderstood the situation and that the police were actually looking for him 

because of some unpaid parking tickets. Group told his mother that he would go to the 

police station. Group's mother and sister intercepted him en route and went to the station 

with him. 

{¶22} "When Group arrived at the police station, he spoke with Captain Robert 

Kane, chief of detectives, and Detective Sergeant Daryl Martin. Kane and Martin noticed 

what looked like blood on one of Group's tennis shoes. When questioned about it, Group 

told Kane that he had cut his finger. He showed Kane the finger, and there was a cut on 

it, but it 'looked like a superficial old cut' to Kane. 

{¶23} "After brief questioning, Sergeant Martin arrested Group. Group said, 'You 

better check out Sam Vona,' a former driver for Ohio Wine. But Mrs. Lozier did not 

recognize Vona's picture when Martin later showed it to her. 

{¶24} "Group's shoe was sent to Cellmark Diagnostics for DNA testing. An expert 

from Cellmark testified that the DNA pattern of the blood on the shoe matched the DNA 

pattern of a known sample of Robert Lozier's blood. She further testified that the same 

DNA pattern occurs in approximately 1 in 220,000 Caucasians, 1 in 81 million AfricanAmericans, and 1 in 1.8 million Hispanics. The testing also revealed that Group was 

excluded as the source of the blood. 
- 5 - 

{¶25} "Lisa Modarelli, an Ohio Wine sales representative, was a friend of Group's. 

According to Modarelli, Group confided to her that police had swabbed his hands to test 

for gunshot residue and that he was concerned that the test might be positive because he 

had been shooting a gun the day before the murder with 'a friend.' Later, Group told 

Modarelli that he had been shooting with his foster son, but Group's foster son denied 

that he had gone shooting with Group. 

{¶26} "Group contacted Bonnie Donatelli from jail and asked her to contact Darryl 

Olenick for him. Olenick was a regular at the Diamond Tavern; his hobbies were gun 

collecting and target shooting. Group told Donatelli that the police had found gunshot 

residue on his hands and asked Donatelli to get Olenick to tell police that he and Group 

had been target shooting together the day before the murder. In fact, Olenick and Group 

did not associate outside the tavern and had never gone shooting together. Donatelli 

promised to 'see what [she] could do,' but instead, she told Sergeant Martin about 

Group's request. 

{¶27} "Robert Clark was an inmate at the Mahoning County Jail with Group. Clark 

mentioned to Group that he 'was familiar with the people in the [Downtown] [B]ar.' Group 

asked Clark whether he would 'be willing to help [Group] out.' Group then made up a 

story for Clark to tell police. Clark was to say that he had been near the Downtown Bar 

on the morning of the murder and had seen a man leave the bar carrying a large beer 

bottle box. In return, Group promised to help Clark 'any way he could.' Clark later 

received an anonymous $50 contribution to his commissary account. 

{¶28} "Adam Perry was another Mahoning County Jail inmate at the time of 

Group's pretrial incarceration. Awaiting trial on pending charges, Perry was incarcerated 

with Group from December 1997 to May 1998. Perry was released on bond in May 1998. 

{¶29} "In a letter postmarked March 20, 1998, before Perry's release, Group 

begged for Perry's help with his case: 

{¶30} " 'If you do bond out, let me know. There's something you may be able to 

do to help me with concerning my case. And I'm telling you, I need all the help I can get. 

* * * But seriously man, and this is no joke, I need your help with something if you get out. 
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Please don't leave me hanging? We've known each other a long time and if anyone in 

your family needs help, you know I'll be there.' 

{¶31} "Before Perry was released, Group asked him to firebomb Mrs. Lozier's 

house. Group assured Perry that Mrs. Lozier no longer lived there. However, he told 

Perry that '[h]e didn't want Sandy Lozier to testify against him,' and he wanted Perry to 

'firebomb the lady's house to either scare her from testifying or to lead the police into 

investigating others.' 

{¶32} "Group told Perry that he had $300,000 hidden away. He offered Perry half 

of it in exchange for his help. Group also offered to dissuade a witness from testifying in 

Perry's trial. 

{¶33} "Group explained to Perry how to make a firebomb by mixing gasoline with 

dish soap in a bottle, with a rag in the neck for a fuse. He instructed Perry to light the rag 

and throw it through the front window and then to drop a key chain with the name 'Charity' 

on it on the front lawn. '[W]hat he wanted to do,' Perry explained, 'was to mislead the 

police into thinking that the firebomb and the murder [sic] was all involved as far as 

Charity's abduction and murder.' 

{¶34} "In a letter postmarked May 6, 1998, Group wrote to Perry: 'So I need to 

know on everything if that party is still on where your sister lived. The party has to 

happen and happen the way we last talked. I've got to know bro, so I can figure some 

other things out in the next few weeks.' Perry understood 'the party' to refer to the 

planned firebombing of Mrs. Lozier's house. 

{¶35} "Group also corresponded with Perry after Perry's release. State's Exhibit 

37, a letter from Group to Perry, contains the following passage: '[Y]ou said you would 

take care of that flat tire for me and now that your [sic] out, I hope you do because it's a 

matter of life or death (mine)[.]' In the next sentence, Mrs. Lozier's address appears next 

to the name 'Agee.' 

{¶36} "Group then wrote: 'If you take care of the flat, please take care of it with 

that two step plan we talked about. * * * Theres [sic] $300,000.00 in a wall of a certain 

house * * *. Half goes to you to do what you like.' 
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{¶37} "The second page of State's Exhibit 37 contains Mrs. Lozier's address and 

describes the house as ranch-style. It also lists the following items: 'Cheap key chain or 

ID bracelet-name (Charity)' and '3 liter wine jug-mix gas & dish soap.' 

{¶38} "In June 1998, Perry knocked on Mrs. Lozier's door. When she answered, 

he asked her whether a 'Maria something lived there.' Mrs. Lozier said no, and Perry left. 

 Perry testified that he did not want to hurt Mrs. Lozier and so, after finding her at home, 

he took no further action. Perry later told the prosecutor about Group's plan. 

{¶39} "Group was indicted for the aggravated murder of Robert Lozier under R.C. 

2903.01(B). The aggravated-murder count had two death specifications: R.C. 

2929.04(A)(5) (purposeful attempt to kill two persons) and R.C. 2929.04(A)(7) (murder 

during aggravated robbery). The indictment also contained a count charging Group with 

the attempted aggravated murder of Mrs. Lozier on January 18, 1997, and a count 

charging aggravated robbery, R.C. 2911.01(A)(1). Each count had a firearm 

specification, R.C. 2941.145(A). 

{¶40} "After Perry told the prosecutor about the firebombing plan, a superseding 

indictment was filed, containing the above counts plus two new ones: (1) the attempted 

aggravated murder of Mrs. Lozier 'on or about or between April 1, 1998 and June 5, 

1998,' and (2) one count of intimidating a witness-Mrs. Lozier-'on or about or between 

December 1, 1997 and June 5, 1998.' 

{¶41} "Group was convicted on all counts and specifications. After a penalty 

hearing, he was sentenced to death." State v. Group, 98 Ohio St.3d 248, 2002-Ohio7247, 781 N.E.2d 980, at ¶1-38. 

Procedural History 

{¶42} The Ohio Supreme Court affirmed Group's convictions and sentence on 

December 2, 2002. Id. While his direct appeal was pending, Group filed a timely petition 

for post-conviction relief with the Mahoning County Court of Common Pleas on March 30, 

1999. 

{¶43} Notably, there was a substantial delay in appointing counsel for Group's 

post-conviction matter. The transcript of proceedings of Group's direct appeal to the Ohio 
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Supreme Court was filed on September 22, 1999, thus triggering the beginning of the 

180-day time period within which to file a petition for post-conviction relief. On December 

9, 1999, Group filed a pro-se motion for appointment of counsel which the trial court 

overruled on December 15, 1999. This was an error by the original judge (Cronin) on the 

case as R.C. 2953.21(I)(1) provides: 

{¶44} "If a person sentenced to death intends to file a petition under this section, 

the court shall appoint counsel to represent the person upon a finding that the person is 

indigent and that the person either accepts the appointment of counsel or is unable to 

make a competent decision whether to accept or reject the appointment of counsel. The 

court may decline to appoint counsel for the person only upon a finding, after a hearing if 

necessary, that the person rejects the appointment of counsel and understands the legal 

consequences of that decision or upon a finding that the person is not indigent." 

{¶45} Group refiled his pro-se motion for appointment of counsel on December 

22, 1999, and it was again overruled by Judge Cronin. Attorney Renee Green was 

eventually contacted by the Ohio Public Defender Commission and filed the postconviction petition on Group's behalf. Because of the delay in appointing counsel, 

Attorney Green had less than 60 days to prepare the petition. 

{¶46} After filing the petition, Attorney Green was permitted to withdraw as 

counsel on February 27, 2002 and substitute counsel was appointed by the trial court. 

On October 18, 2002, the State filed a motion for summary judgment. 

{¶47} On February 26, 2003, the Ohio Supreme Court ordered Group's death 

sentence stayed pending the exhaustion of all proceedings for post-conviction relief 

before courts of this state, including appeals. 

{¶48} The case then lingered in the trial court for many years. Group filed several 

motions to amend or supplement his petition, but did not immediately do so. Finally, on 

June 7, 2007, Group filed a brief in opposition to the State's motion for summary 

judgment. On June 13, 2007, the State filed a proposed entry granting its summary 

judgment motion. Just three days before her retirement from the bench, Judge Cronin 

signed the proposed entry granting summary judgment, which was time-stamped July 3, 
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2007. Notably, however, that entry contained no findings of fact or conclusions of law. 

{¶49} Group made several requests for findings of fact and conclusions of law 

which were unresolved by the trial court. Group filed a motion to have the case 

reassigned to a new judge on March 3, 2008. 

{¶50} On November 12, 2008, visiting Judge Curran was appointed by the Chief 

Justice of the Ohio Supreme Court to preside over the case. Group filed a pro-se motion 

for dismissal of his post-conviction counsel (Attorney John Laczko), and for appointment 

of new counsel. Instead of dismissing Attorney Laczko, the trial court added Attorney 

John Juhasz as co-counsel. 

{¶51} On February 2, 2009, Group filed a motion to vacate the trial court's earlier 

grant of summary judgment and motion for leave to amend his petition. 

{¶52} The court held a status conference on February 5, 2009, which was 

attended by Group, his attorneys, and the prosecutor. The court ultimately granted 

Group's motion to amend his petition, and thus set aside its previous July 3, 2007 order 

granting summary judgment. 

{¶53} In his amended petition, filed on June 19, 2009, Group asserted 13 grounds 

for relief, 12 of which alleged ineffective assistance of trial counsel. Attached to the 

amended petition were various exhibits, including affidavits from Group, his mother, Ruth, 

and one of his appellate attorneys, Annette Powers. He also attached several other 

documents including: delivery invoices from the Ohio Wine Company; DVDs with 

television and news stories; newspaper articles, gunshot residue and other tests result 

reports by BCI, and several unauthenticated documents and photographs, including 

photographs of his shoes, which were purportedly taken by post-conviction counsel years 

after trial. The State filed a motion for summary judgment. Group filed a brief in 

opposition, and moved the trial court to conduct discovery, or in the alternative for an 

appointment of an expert witness. 

{¶54} On December 31, 2009, the trial court issued an Opinion and Judgment 

Entry granting summary judgment in favor of the State and against Group on his petition 

for post-conviction relief, and, in the alternative, dismissing the petition without a hearing. 
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This opinion included detailed findings of fact and conclusions of law, and the trial court 

decided to treat the amended petition as an original petition for post-conviction relief, not 

a successor, since Group's timeline for filing the original petition was cut short due to the 

delay in appointing counsel. In that entry, the court also overruled Group's request to 

conduct discovery and for appointment of an expert. Group filed a timely notice of appeal 

from that judgment on January 29, 2010. 

Failure to Permit Discovery 

{¶55} In his second of two assignments of error, which are discussed in reverse 

order for ease of analysis, Group asserts: 

{¶56} "The Trial Court Erred and Abused its Discretion in Denying the Petition 

Without Conducting an Evidentiary Hearing or Permitting Discovery, thus depriving 

Appellant of liberties secured by U.S. CONST. amend. XIV, and OHIO CONST. art. I §§1, 2, 

10, and 16, including meaningful access to the courts of this State.". 

{¶57} "The long-standing rule in Ohio is that a convicted criminal defendant has 

no right to additional or new discovery, whether under Crim.R. 16 or any other rule, during 

postconviction relief proceedings." State v. West, 7th Dist. No. 07 JE 26, 2009-Ohio3347, at ¶15, citing State ex rel. Love v. Cuyahoga Cty. Prosecutor's Office (1999), 87 

Ohio St.3d 158, 159, 718 N.E.2d 426 (per curiam) certiorari denied (2000), 529 U.S. 

1116, 120 S.Ct. 1977, 146 L.Ed.2d 806; and State v. Gulertekin (June 8, 2000), 10th Dist. 

No. 99AP-900 (there is no right to discovery of evidence outside the record in 

postconviction proceedings). See, also, State v. Ahmed, 7th Dist. No. 05-BE-15, 2006-

Ohio-7069, at ¶38; State v. Twyford (March 19, 2001), 7th Dist. No. 98-JE-56 (both 

reaching the same conclusion.) The civil rules governing discovery likewise do not apply 

in a post-conviction relief proceeding. West at ¶16. 

{¶58} Group maintains, however, that discovery is necessary in a post-conviction 

matter to allow for any meaningful review. He insists that discovery is especially essential 

for post-conviction petitions that raise ineffective assistance of trial counsel claims, since 

it is unlikely that trial counsel would willingly provide an affidavit admitting his or her 

ineffectiveness. Similarly, he claims it is obtuse to expect that a physician would search 
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through and provide old records absent a court order to do so. 

{¶59} In support of his argument regarding discovery, Group cites to a recent 

concurrence by Judge Belfance of the Ninth District in State v. Craig, 9th Dist. No. 24580, 

2010-Ohio-1169: 

{¶60} "In this case, this Court has properly cited to precedent holding that a 

person has no right to discovery in post-conviction proceedings and has no right to funds 

for an expert witness. However, the fact that a person convicted of a crime may not have 

a constitutional right to these remedies begs the question. There may be some cases 

where access to such remedies is compelling and indeed can implicate other 

constitutional concerns. I am troubled by the sweeping language of judicial decisions that 

suggest that these remedies are foreclosed as a possibility in every case. The simple fact 

that there are recent examples of wrongful convictions throughout this state suggests not 

only the necessity for postconviction relief but the need for access to the means of 

pursuing such relief. The precedent cited by this Court's opinion broadly pronounces that 

a criminal defendant has no rights and by implication no access whatsoever to these 

remedies. Thus, relief in the exceptional case may be precluded, notwithstanding the 

presence of clearly compelling and meritorious reasons to grant access to discovery or an 

expert. 

{¶61} "I concur with the result reached by the Court in this case. I understand that 

the interests in finality of judgments and protecting scarce judicial resources are central 

concerns in considering postconviction relief. However, I hope we do not lose sight of the 

important rights that should be protected in the postconviction relief process." Id. at ¶47-

48 (Belfance, J., concurring.) 

{¶62} We agree with the sentiments expressed in this concurrence and hold that 

discovery should be permitted in certain exceptional post-conviction cases. Although a 

post-conviction matter is a collateral civil proceeding, we must take care not to view the 

process so myopically as to completely lose sight of a defendant’s rights. We find 

support for this conclusion from legal trends in other areas of Ohio law concerning this 

civil-criminal dichotomy; for example, within the evolution of Supreme Court jurisprudence 
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regarding sex offender notification and registration (SORN) laws. See State v. Williams, 

129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶16 (breaking from prior case 

law to conclude that the SORN statutory scheme had lost its civil/remedial character and 

become exclusively criminal/punitive in nature.) 

{¶63} That said, we are constrained, as an intermediate court, from straying from 

established binding precedent cited above. We do not shirk our Constitutional role as the 

guardians of citizens’ constitutional rights, even those who have been convicted of the 

most heinous crimes, and reject any statutory provision which, on its face or as applied, 

violates constitutional rights. But the separate powers of the judicial branch are tempered 

by the fact that the Constitution has delegated the separate power of primary policy 

making and crafting statutes to the legislative branch. Thus, any sweeping changes to 

Ohio's post-conviction system must be left to the legislature, not the courts. 

{¶64} The situation before us does not present “the exceptional case” that 

warrants discovery. For example, although Group maintains that discovery was 

necessary to obtain medical records, Group had other avenues available to him to pursue 

those documents, as discussed in more detail below in the context of Group’s fourth 

ground for relief, which alleges ineffective assistance of counsel for failing to present 

medical testimony about Group’s alleged inability to use his right hand. First, Group could 

have executed a medical authorization directing his physicians, one of whom did not have 

his medical license at the time of trial, to provide current post-conviction counsel with his 

medical records. Second, Group’s mother alleged in her affidavits that she had given trial 

counsel those records. Thus, Group had two ways to obtain his medical records, which 

could have been attached to his post-conviction petition, along with an affidavit from any 

physician, who could opine on whether or not the damage to Group’s right hand would 

affect his ability to fire a weapon with both hands. 

{¶65} Further, although Group contends it is unlikely that trial counsel would 

willingly provide an affidavit admitting his or her ineffectiveness, this is not outside the 

realm of possibility. See, e.g., State v. Jackson (1980), 64 Ohio St.2d 107, 110, 18 

O.O.3d 348, 413 N.E.2d 819 (where trial counsel filed affidavit claiming he had 
- 13 - 

insufficient time to provide the defendant effective counsel.) Moreover, in order to be 

entitled to use discovery tools to obtain information from trial counsel, a petitioner must, at 

minimum, provide more than conclusory allegations regarding trial counsel’s 

ineffectiveness, which Group has not done here. 

{¶66} Accordingly, for all of the above reasons Group's discovery argument is 

meritless. 

Denial of Post-Conviction Relief 

{¶67} In his first assignment of error, Group asserts: 

{¶68} "The Trial Court Erred and Abused its Discretion by Granting Summary 

Judgment to the State, and Dismissing Appellant's Petition for Post-Conviction Relief." 

{¶69} Pursuant to R.C. 2953.21(A)(1)(a), a person convicted of a criminal offense 

who asserts a violation of his or her constitutional rights may petition the court that 

imposed the sentence for appropriate relief. A post-conviction petition is not an appeal of 

the underlying matter; instead, it is a civil action that collaterally attacks a criminal 

judgment. State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67. State postconviction review is not a constitutionally protected right, even in capital cases, thus, the 

petitioner only receives those rights established by statute. Id. 

{¶70} To prevail on a claim for post-conviction relief, the petitioner must 

demonstrate a denial or infringement of his rights in the proceedings resulting in his 

conviction that rendered the conviction void or voidable under the Ohio or United States 

Constitutions.R.C. 2953.21(A)(1). A post-conviction petitioner bears the initial burden of 

demonstrating, via the petition, any supporting affidavits, and the trial record, that there 

are "substantive grounds for relief." R.C. 2953.21(C), State v. Jackson (1980), 64 Ohio 

St.2d 107, 111, 413 N.E.2d 819. A post-conviction claim is subject to dismissal without a 

hearing if the petitioner fails to support the claim with evidentiary material setting forth 

sufficient operative facts to demonstrate substantive grounds for relief. R.C. 2953.21(C) 

and (E). Hence, a criminal defendant challenging his conviction via a petition for postconviction relief is not automatically entitled to a hearing. Id., see, also, State v. Cole

(1982), 2 Ohio St.3d 112, 113, 443 N.E.2d 169. 
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{¶71} The purpose of the post-conviction relief statute is to provide criminal 

defendants with a clearly defined method by which they may raise claims of denial of 

federal rights. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d 905, citing 

Young v. Ragen (1949), 337 U.S. 235, 239, 69 S.Ct. 1073, 1074, 93 L.Ed. 1333. 

Conversely, a post-conviction petition is not a forum to relitigate issues that could have 

been raised on direct appeal. See Steffen, 70 Ohio St.3d at 410; Cole, 2 Ohio St.3d at 

113. Accordingly, many claims are barred by res judicata. 

{¶72} "Under the doctrine of res judicata, a final judgment of conviction bars a 

convicted defendant who was represented by counsel from raising or resurrecting issues 

in collateral review that could have been raised and fully litigated on direct appeal. State 

v. Reynolds (1997), 79 Ohio St.3d 158, 161, 679 N.E.2d 1131; State v. Perry (1967), 10 

Ohio St.2d 175, 226 N.E.2d 104, O.O.2d 189, 10 Ohio St.2d 175, 226 N.E.2d 104, 

paragraph nine of the syllabus. Where, however, an alleged constitutional error is 

supported by evidence that is de hors the record, res judicata will not bar the claim 

because it would have been impossible to fully litigate the claim on direct appeal. State v. 

Smith (1985), 125 Ohio App.3d 342, 348, 708 N.E.2d 739." State v. Green, 7th Dist. No. 

02 CA 35, 2003-Ohio-5142, at ¶21. 

{¶73} “Evidence outside the record by itself, however, will not guarantee a right to 

an evidentiary hearing. To overcome the res judicata bar, the evidence must show that 

the petitioner could not have appealed the constitutional claim based on the information in 

the original trial record." State v. Combs (1994), 100 Ohio App.3d 90, 98, 652 N.E.2d 

205, citing Cole, 2 Ohio St.3d at syllabus. 

{¶74} Further, evidence de hors the record must meet a minimum level of cogency 

in support of the claim so as to require a hearing. Combs at 98, citing Cole, 3 Ohio St.3d 

at 115. Accordingly, although in "reviewing a petition for postconviction relief * * *, a trial 

court should give due deference to affidavits sworn to under oath and filed in support of 

the petition, [it] may, in the sound exercise of discretion, judge the credibility of the 

affidavits in determining whether to accept the affidavits as true statements of fact." State 

v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905, syllabus. Thus, "[t]he trial court 
- 15 - 

may, under appropriate circumstances in postconviction relief proceedings, deem affidavit 

testimony to lack credibility without first observing or examining the affiant. That 

conclusion is supported by common sense, the interests of eliminating delay and 

unnecessary expense, and furthering the expeditious administration of justice." Id. at 

284. 

{¶75} In assessing the credibility of such affidavits, the trial court should consider 

all relevant factors including: "(1) whether the judge reviewing the postconviction 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. 

{¶76} "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 should be within the discretion of the trial court." 

Id. at 284-285. 

{¶77} And even when "the evidence passes this minimum threshold of showing a 

constitutional claim that could not have been raised on direct appeal, the court may still 

deny a hearing if it finds that based on all the files and records, there are no substantive 

grounds for relief. R.C. 2953.21(C). For example, a person other than the petitioner may 

submit an affidavit raising a claim of ineffective assistance of trial counsel based on 

evidence not presented at trial. If, however, that evidence is cumulative of, or alternative 

to, material presented at trial, the court may properly deny a hearing." Combs, at 98, 

citing State v. Powell (1993), 90 Ohio App.3d 260, 270, 629 N.E.2d 13; State v. Post

(1987), 32 Ohio St.3d 380, 387-389, 513 N.E.2d 754. 

{¶78} Here, Group's post-conviction petition is largely based upon claims of 
- 16 - 

ineffective assistance of trial counsel. In order to demonstrate ineffective assistance of 

counsel, a defendant must show that counsel's performance was deficient and that the 

deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. 

Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; 

State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. 

{¶79} The petitioner bears the burden of proof in proving ineffectiveness because 

in Ohio, a properly licensed attorney is presumed competent. Calhoun, 86 Ohio St.3d at 

289. The ABA Guidelines for the Appointment and Performance of Defense Counsel in 

Death Penalty Cases are "only guides" with regard to counsel's effectiveness. Bobby v. 

Van Hook (2009), 130 S.Ct. 13, 17, 175 L.Ed.2d 255. "* * * The Federal Constitution 

imposes one general requirement: that counsel make objectively reasonable choices.'" 

Id., quoting, Roe v. Flores-Ortega (2000), 528 U.S. 470, 479, 120 S.Ct. 1029, 145 

L.Ed.2d 985. 

{¶80} In order to overcome the presumption of counsel's competence, the 

petitioner must submit sufficient operative facts or evidentiary documents demonstrating 

that the petitioner was prejudiced by the ineffective assistance. State v. Davis (1999), 

133 Ohio App.3d 511, 516, 728 N.E.2d 1111. To demonstrate 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. A reasonable probability is 

a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 

694. It is not unreasonable to require that a petitioner demonstrate prejudice before an 

evidentiary hearing is granted. Calhoun, 86 Ohio St.3d at 283. 

{¶81} With regard to the proper standard of review that a court should apply when 

reviewing a trial court's dismissal of a post-conviction petition without a hearing. we 

recognize there is a split among Ohio appellate districts. See State v. Hicks, 4th Dist. No. 

09CA15, 2010-Ohio-89, at ¶9-11 (citing cases.) Following our own precedent, which is in 

line with the majority of Ohio’s appellate districts, we will apply an abuse of discretion 

standard of review. West, supra, at ¶22, 28. 

First Ground for Relief 
- 17 - 

{¶82} In his first ground for relief, Group alleges that trial counsel was ineffective 

for failing to properly prepare for a pretrial hearing on a motion to disqualify the Mahoning 

County prosecutor's office. The basis of the motion was the prosecutor's interception of 

Group's outgoing mail from Mahoning County Jail while he awaited trial. The trial court 

concluded that this claim is barred by res judicata, or in the alternative, that Group failed 

to demonstrate actual prejudice from the alleged error. We agree. Group's claim is 

based in large part on the record; he cites to several pages of the trial transcript to 

support his argument that counsel was not properly prepared and was admonished by the 

court for that lack of preparation. Group lists the following as de hors the record support 

for this claim: (1) an affidavit of attorney-expert Annette Powers; (2) his own affidavit. 

{¶83} However, Group's affidavit, which is offered in support of other claims as 

well, offers little, if anything, to support this particular claim. At paragraph 47, Group 

avers: "During the pretrial preparation portion of the case, my defense lawyers told me 

that they did not want to vigorously litigate pretrial motions for fear of angering the judge 

and the prosecutors." Even ignoring the fact that Group's statement is based upon 

hearsay, and obviously self-serving, it lends no additional outside support to his claim that 

trial counsel was ineffective for failing to adequately prepare and argue a motion to 

disqualify the prosecutor's office. Similarly, Group's statement at paragraph 59 of his 

affidavit: that "[t]he trial record reflects [trial counsel Andrew Love's] lack of preparedness 

to vigorously defend my case," offers no de hors the record support. 

{¶84} In Attorney Powers' affidavit, she presents a comprehensive recitation of 

death penalty law in Ohio. She then concludes that Group's trial attorneys were 

ineffective, stating broadly: 

{¶85} "Upon review of the facts of the Scott Group case, it is my opinion that Mr. 

Group's counsel provided ineffective assistance of counsel during voir dire and at the trial 

and penalty phases of Group's capital trial. As a result of his counsel's ineffectiveness, 

Mr. Group was prejudiced." 

{¶86} Notably, nothing in Attorney Powers' affidavit provides any specific criticism 

regarding trial counsel's performance during the pretrial hearing at issue in the first 
- 18 - 

ground for relief. Moreover, a number of Ohio appellate districts have concluded that an 

affidavit by a legal expert does not constitute cogent evidence de hors the record so as to 

overcome res judicata. State v. Hill (Nov. 21, 1997), 1st Dist. No. C961052 ("Attorney's 

affidavits explaining prevailing norms do not constitute evidence dehors the record and 

are akin to a notarized legal argument."); State v. Davis, 5th Dist. No. 2008-CA-16, 2008-

Ohio-6841, at ¶161-162 (quoting Hill and advocating that instead of a countervailing 

attorney opinion, a more objective test for attorney ineffectiveness is that set forth in 

Strickland); State v. Franklin, 2d Dist No. 19041, 2002-Ohio-2370, at ¶12 ("the affidavit of 

an attorney giving an opinion based on facts in the record does not constitute evidence 

outside the record, but merely legal argument[.]"). Accord State v. Jones, 11th Dist. No. 

2000-A-0083, 2002-Ohio-2074; State v. Scudder (1998), 131 Ohio App.3d 470, 722 

N.E.2d 1054 (Tenth District); State v. Lawson (1995), 103 Ohio App.3d 307, 659 N.E.2d 

362. 

{¶87} And even if Powers' affidavit could be construed as cogent evidence de hors 

the record, its contents do not demonstrate why trial counsel's perceived deficient 

performance could not have been brought as an ineffective assistance of counsel claim 

on direct appeal. See Combs, supra, at 99-100. In fact, Powers was one of Group's 

attorneys for his direct appeal to the Ohio Supreme Court. 

{¶88} And finally, even assuming arguendo that this claim is not barred by res 

judicata, Group cannot show prejudice. Group cannot show—even assuming counsel 

was ineffective—that there is a reasonable probability that the outcome of the guilt phase 

of trial would have been any different. As the court below aptly noted: "[t]he evidence of 

the guilt of Scott Group is overwhelmingly persuasive—a constellation of both direct and 

circumstantial evidence pointing convincingly and powerfully to Scott Group as the 

perpetrator, one who shot his victims in cold blood, and then later—from his jail cell—

attempted to hire a hit man in order to eliminate and thereby silence the sole survivor." 

This evidence includes: Mrs. Lozier's eyewitness identification of Group, which was 

reliable considering that Group, as her wine deliveryman, was no stranger to her; blood 

on Group's shoe that matched the DNA of Mr. Lozier, the murder victim; the fact that, 
- 19 - 

while in prison, Group tried to enlist several others to falsify evidence and to eliminate or 

intimidate Mrs. Lozier; and the fact that the box of Ohio Wine invoices was missing from 

the Downtown Bar after the shootings. 

{¶89} Accordingly, for all of the above reasons, the trial court correctly dismissed 

Group's first claim without holding a hearing. 

Second Ground for Relief 

{¶90} In his second ground for relief, Group alleges that trial counsel was 

ineffective for failing to properly argue a pretrial motion for a gag order. He notes that trial 

counsel failed to watch a news reel video before presenting it to the court in support of 

the motion, and that the trial court admonished counsel for the lack of preparation. Group 

cites directly to the trial court record in support of this claim, and also relies on Powers' 

affidavit. 

{¶91} The trial court correctly concluded that the affidavit supplied no apparent 

outside evidence in support of this claim and that it is therefore barred by res judicata. 

And moreover, as discussed, even if it were not res judicata, Group cannot demonstrate 

prejudice, especially considering that the trial court ultimately granted the defense's 

motion for a gag order. Accordingly, the trial court correctly dismissed Group's second 

claim without holding a hearing. 

Third Ground for Relief

{¶92} In his third ground for relief, Group argues that trial counsel was ineffective 

for “misleading” the jury, during opening statements, into believing that defense would 

present a DNA expert at trial. Group specifically asserts: "The failure to provide the 

promised DNA expert caused the defense to lose all credibility because the DNA results 

were material and outcome determinative. The State's DNA results, if scientifically valid, 

place Petitioner at the scene of Mr. Lozier's murder." Again, Group cites directly to the 

record in support of this claim. He also cites to Powers' affidavit. For all of the 

aforementioned reasons, the trial court correctly concluded this claim is barred by res 

judicata. And moreover, as discussed, even if it were not res judicata, Group cannot 

demonstrate prejudice. Accordingly, the trial court correctly dismissed Group's third claim 
- 20 - 

without holding a hearing. 

Fourth Ground for Relief 

{¶93} In his fourth ground for relief, Group asserts that trial counsel was ineffective 

for failing to obtain and present an expert witness regarding the alleged physical 

impairment of Group's right hand. Group's trial counsel did raise the issue of Group's 

injury to his right hand and the corresponding defense that Group was physically unable 

to fire a gun with that hand. Group testified that he had been shot in the right hand during 

the 1980's, suffered nerve damage, underwent several surgeries and lost function in that 

hand. Group's defense team did not present any experts or documentary evidence to 

support this, however, which is the crux of this ineffective assistance of counsel claim. 

{¶94} In support of this claim, Group presented the affidavit of his mother, Ruth 

Group, in which she asserted that Group's trial defense team was informed that as a 

result of the past injuries Group was allegedly unable to hold a gun and fire it. Ruth 

further stated that her son's right hand "could be used for 'helping' to hold and lift things, 

but he had no strength in that hand for gripping" because of the injury. Ruth claimed she 

delivered Group's medical records to trial counsel but that they were not presented to the 

jury. She also stated that one of her son's former physicians was subpoenaed by the 

defense, but did not end up testifying, because, as the defense team told her, the man no 

longer held a medical license. 

{¶95} The trial court concluded that this claim was barred by res judicata, or 

alternatively, that Group could not show prejudice. The court could have reasonably 

concluded that Ruth Group was not credible, and that the claim was therefore barred by 

res judicata. More importantly, Group cannot demonstrate prejudice. Even if the defense 

team had presented an expert who opined that Group could not have fired a weapon with 

his right hand, there is no reasonable probability that the outcome would have been any 

different, for the reasons outlined above, and additionally considering that Mrs. Lozier 

testified that Group held the gun with both hands: 

{¶96} "Q. Would you describe or demonstrate again how the assailant held the 

gun? 
- 21 - 

{¶97} "A. I know it was with both hands. 

{¶98} "Q. Constantly? 

{¶99} "A. Yes, from what I can remember." 

{¶100} Accordingly, the trial court correctly dismissed Group's fourth claim without 

holding a hearing. 

Fifth Ground for Relief 

{¶101} In his fifth ground for relief, Group challenges the trial court's use of an 

anonymous jury system. The trial court concluded that this claim was barred by res 

judicata, and that regardless it was meritless. This claim is barred by res judicata: it is 

based entirely on the record and could have been raised as an issue on direct appeal but 

was not. The only evidence presented in support of this claim was the Powers Affidavit, 

which, as discussed, does not constitute cogent evidence de hors the record. 

{¶102} Further, it is unclear from the record whether the identities of the 

venirepersons were truly kept from defense counsel. During trial the court did state to the 

jury: 

{¶103} "Ladies and gentleman, as I've indicated, we are going to be referring to 

you not by name, but as a number. Please do not take that personally, but it will be 

easier for us to follow along in responding to you." 

{¶104} However, the record reflects that, after trial, on May 18, 2000, Group, via 

Attorney Renee Green filed a motion to unseal the list of juror names. The State 

responded that it had no objection to the unsealing of the juror's names. It asserted, 

however, that both defense (trial) counsel and the State had possession of the lists 

containing the names and addresses of the jurors and that both sides were permitted to 

inspect the verdict forms signed by all twelve jurors. The State claimed the lists were kept 

only from the public, and reasonably so, considering that Group had attempted to have 

the sole identification witness killed. 

{¶105} The very next entry in the docket, dated September 28, 2000, seems to 

resolve the issue. It states: 

{¶106} "PER SUPREME COURT OF OHIO, COPIES OF SEALED DOCUMENTS 
- 22 - 

SENT TO ATTORNEY RENEE GREEN [RM]" 

{¶107} From this entry we conclude that the juror names and addresses were 

provided to Group's first post-conviction attorney. But regardless, even if there had been 

a truly anonymous jury, this claim could have been raised on direct appeal and is res 

judicata. Accordingly, the trial court correctly dismissed Group's fifth claim without holding 

a hearing. 

Sixth Ground for Relief

{¶108} In his sixth ground for relief, Group asserts that trial counsel was 

ineffective for failing to adequately prepare Group for cross-examination, which resulted in 

Group opening the door to impeachment by the State when he falsely denied a past 

robbery conviction. In support of this claim, Group cites to the trial record itself and 

Powers' affidavit. For all of the reasons previously discussed, the trial court correctly 

concluded this claim was not supported by evidence de hors the record and was therefore 

barred by res judicata. And moreover, as discussed, even if it were not res judicata, 

Group cannot demonstrate prejudice. Accordingly, the trial court correctly dismissed 

Group's sixth claim without holding a hearing. 

Seventh Ground for Relief 

{¶109} In his seventh ground for relief, Group assets that trial counsel was 

ineffective for opening the door to Group's testimony about the letters to Adam Perry, the 

jail-mate Group solicited to firebomb Mrs. Lozier's house. In this claim, Group also 

asserts that trial counsel was ineffective for failing to object when the prosecutor 

questioned Group about his incriminating letters to Adam Perry. The trial court correctly 

concluded that this claim was barred by res judicata. In support of this claim, Group cites 

to the trial record itself and Powers' affidavit. And moreover, as discussed, even if it were 

not res judicata, Group cannot demonstrate prejudice. Accordingly, the trial court 

correctly dismissed Group's seventh claim without holding a hearing. 

Eighth Ground for Relief 

{¶110} In his eighth ground for relief, Group asserts that trial counsel was 

ineffective during the penalty phase of trial; he contends that mitigation was incongruent, 
- 23 - 

inconsistent and incomplete. This claim is also barred by res judicata. The only de hors 

the record evidence presented by Group in support of this claim is Powers' affidavit. And 

as the trial court noted, Group's heavy reliance on the ABA Standards is misplaced as 

those standards are not dispositive indicators of constitutionally effective assistance of 

counsel. See Bobby, supra, 130 S.Ct. at 17. Accordingly, the trial court correctly 

dismissed Group's eighth claim without holding a hearing. 

Ninth Ground for Relief 

{¶111} In his ninth ground for relief, Group asserts that trial counsel was 

ineffective for failing to voir dire the jury effectively regarding mitigating factors and for 

failing to rehabilitate jurors. Again, Group cites extensively to the record, and presents 

only Powers' affidavit as support outside the record. The trial court correctly concluded 

that this claim is barred by res judicata. Accordingly, the trial court correctly dismissed 

Group's ninth claim without holding a hearing. 

Tenth Ground for Relief 

{¶112} In his tenth ground for relief, Group asserts that trial counsel was 

ineffective for failing to file a motion for change of venue and to voir dire the jury 

effectively regarding pretrial publicity. In support of this claim Group attached several 

exhibits in support of this claim, namely two DVD's of news reports and several 

newspaper articles. 

{¶113} The State argues that many of the news accounts occurred during the 

course of trial, not before, and thus are irrelevant to Group's claim that trial counsel was 

ineffective for failing to file a pretrial change of venue motion. With regard to the written 

news articles, the State is correct. One very brief article notes Group's arrest and another 

discusses the interception of his mail while he was jailed pending trial. Two articles 

concern actual trial coverage, and the remaining two concern police investigations about 

whether Group was connected to a separate murder case. With regard to the DVD's, 

although the State discusses their content in its brief, our examination of the discs 

contained in the trial court record reveals they have no data written on them. 

{¶114} Looking then to the exhibits that we can review on appeal, i.e., the written 
- 24 - 

news articles, Group cannot demonstrate prejudice. 

{¶115} A motion for change of venue is governed by Crim.R. 18(B), and is left to 

the discretion of the trial court. Crim.R. 18(B) provides: 

{¶116} "Upon the motion of any party or upon its own motion the court may 

transfer an action to any court having jurisdiction of the subject matter outside the county 

in which trial would otherwise be held, when it appears that a fair and impartial trial cannot 

be held in the court in which the action is pending." 

{¶117} "The mere existence of pretrial publicity is not a basis for granting a 

change of venue. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 

1168, at ¶117. By itself, even pervasive adverse pretrial publicity "does not inevitably 

lead to an unfair trial." State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 

N.E.2d 242, at ¶58, quoting Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554, 

96 S.Ct. 2791, 49 L.Ed.2d 683. Rather, a defendant must show an atmosphere that is 

completely corrupted by press coverage. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 

86 S.Ct. 1507, 16 L.Ed.2d 600. The exhibits presented do not reflect such an 

atmosphere and thus Group has not demonstrated how trial counsel's failure to file a 

change of motion venue prejudiced him. 

{¶118} Moreover, the Ohio Supreme Court has repeatedly held that a "careful and 

searching voir dire provides the best test of whether prejudicial pretrial publicity has 

prevented obtaining a fair and impartial jury from the locality." State v. Yarbrough, 104 

Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845 at ¶61, quoting State v. Landrum (1990), 

53 Ohio St.3d 107, 117, 559 N.E.2d 710. Counsel's voir dire of the jury in this case is 

clearly within the record, and any deficiency therein should have been raised on direct 

appeal. Accordingly, the trial court correctly dismissed Group's tenth claim without 

holding a hearing. 

Eleventh Ground for Relief 

{¶119} In his eleventh ground for relief, Group asserts that trial counsel was 

ineffective for failing to adequately cross-examine several witnesses. He claims that 

counsel failed to highlight inconsistencies in Mrs. Lozier's testimony and the medical 
- 25 - 

records regarding whether she lost consciousness during the crime. In his petition, Group 

states that Mrs. Lozier's medical records would be filed separately, under seal, in support 

of this claim. However, the docket reveals no such records were ever filed. Group also 

attached several unauthenticated photographs of Group, along with a police report 

containing the description of the assailant that Mrs. Lozier gave to the police from the 

hospital in an apparent attempt to demonstrate that Mrs. Lozier's description of Group did 

not match his actual appearance and that counsel was ineffective for failing to highlight 

this inconsistency. The photographs do not constitute cogent evidence, and even if they 

did, Group cannot show how counsel's performance prejudiced him. Even if counsel had 

highlighted the perceived inconsistencies, Mrs. Lozier was positive in her identification of 

Group. 

{¶120} Under this ground for relief, Group also claims trial counsel was ineffective 

because she was unprepared to cross-examine the State's DNA expert. In support of this 

claim, Group offered Powers' affidavit and the affidavit of Group's mother, Ruth. As 

discussed, Powers' affidavit does not constitute cogent evidence de hors the record. And 

Ruth Group's affidavit offers little, if any, support for this claim. 

{¶121} Specifically, Mrs. Group averred: 

{¶122} "During my son's trial, the night before Ms. Yost, one of my son's trial 

lawyer's, was to cross-examine the State's DNA expert at trial, I was on the telephone 

with her. 

{¶123} "During that call, Ms. Yost told me she had to excuse herself and get off 

the telephone so that she could read a book to prepare to cross-examine the DNA expert 

witness and evidence." 

{¶124} Based on the factors espoused by the Ohio Supreme Court in Calhoun, 

supra, the trial court reasonably determined that Ruth Group lacked credibility, i.e., the 

affidavit relies on hearsay, and Mrs. Group clearly has an interest in the outcome of the 

case. Further, even taking these statements as true, they do not support a conclusion 

that trial counsel was ineffective. If anything, they demonstrate that counsel took 

reasonable efforts to prepare for trial. That is what the Ohio Supreme Court concluded 
- 26 - 

when it disposed of an identical ineffective assistance of counsel claim on direct appeal: 

{¶125} "Group also suggests that his counsel did not prepare adequately before 

cross-examining the state's DNA expert witness. However, the record indicates that 

defense counsel researched the subject of DNA thoroughly before cross-examining the 

Cellmark expert. Group does not identify any mistakes made by defense counsel as a 

result of allegedly inadequate preparation." Group, supra at ¶145. 

{¶126} The trial court correctly concluded this issue was barred by res judicata. 

Accordingly, the trial court correctly dismissed Group's eleventh claim without holding a 

hearing. 

Twelfth Ground for Relief

{¶127} In his twelfth ground for relief, Group asserts that trial counsel was 

ineffective for failing to properly present witness testimony regarding the negative gunshot 

residue tests. The trial court concluded that this claim was barred by res judicata. 

{¶128} Indeed in its Opinion, the Ohio Supreme Court addressed this claim: 

{¶129} "Group further contends that counsel did not employ ‘a scientific 

investigation unit’ to show that Group did not fire a gun on January 18, 1997. But Group 

fails to show either prejudice or deficient performance. As to prejudice, there is no way 

for us to tell whether the results of such testing would have helped Group's case. As to 

performance, counsel's performance cannot be characterized as deficient, because the 

record indicates that no valid test was possible. 

{¶130} "Officer Lou Ciavarella testified that he performed a gunshot residue test 

on Group's hands on the afternoon of January 18, 1997. However, Ciavarella's test took 

place at 3:25 p.m., more than four hours after the shooting. According to Ciavarella's 

unchallenged testimony, the Bureau of Criminal Identification and Investigation 

recommends that any gunshot residue test be done within two hours after a gun is fired 

because the residue tends to rub off a person's hands over time. Thus, a negative test 

would have been devoid of probative value.” Group at ¶136-137. 

{¶131} In support of this claim, Group did supply a report from BCI indicating that 

gunshot residue tests performed on Group were negative, and another which revealed 
- 27 - 

that no blood was found on Group's clothing. However, this evidence is immaterial; it was 

available at the time of trial and does not lend any new support to the claim that counsel 

was ineffective. Thus, the trial court correctly concluded this claim was barred by res 

judicata and correctly dismissed it without holding a hearing. 

Thirteenth Ground for Relief

{¶132} Finally, in his thirteenth ground for relief, Group asserts that trial counsel 

was ineffective for failing to prepare alibi witnesses, and by failing to argue that another 

person was responsible for the crimes. With regard to the first assertion, Group presents 

his mother's affidavit, in which she states: 

{¶133} "The witness preparation sessions were more like social gatherings than 

trial preparation sessions. Neither I nor any of the witnesses whom I was able to observe 

were prepared by sitting us down and asking us questions that we might expect from my 

son's lawyers and also from the prosecutors. Instead, there was a general group 

discussion with refreshments being served." 

{¶134} The trial court reasonably concluded that this did not constitute cogent 

evidence de hors the record. Further, the trial court noted that the alibi defense was 

addressed by the Supreme Court on direct appeal, and that the Court concluded that 

such defense did not present an exceptional case to outweigh the evidence of guilt. 

Group at ¶86. Thus, even assuming that trial counsel's preparation of the alibi witnesses 

for trial was somehow lacking, Group cannot demonstrate prejudice. 

{¶135} With regard to Group's claim that trial counsel was constitutionally 

ineffective for failing to argue at trial that another person was responsible for the crime, 

this claim is barred by res judicata as it is unsupported by evidence de hors the record 

and could have been raised on direct appeal. Moreover, this falls squarely into trial 

tactics, something that even a reviewing court on direct appeal will not generally secondguess. See State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶213. 

Accordingly, the trial court properly dismissed Group's thirteenth claim without holding a 

hearing. 

Conclusion 
- 28 - 

{¶136} In sum, Group's assignments of error are meritless. Discovery is not 

automatically afforded in post-conviction relief cases. The trial court properly dismissed 

each claim without a hearing. Accordingly, the judgment of the trial court is affirmed. 

Waite, P.J., concurs in judgment only. 

Vukovich, J., concurs.