[Cite as State v. Montgomery, 2020-Ohio-5594.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellant/ : 

 Cross-Appellee, 

 : No. 19AP-41 

v. (C.P.C. No. 10CR-7125) 

 : 

Caron E. Montgomery, (REGULAR CALENDAR) 

 : 

 Defendant-Appellee/ 

 Cross-Appellant. : 

 

D E C I S I O N 

Rendered on December 8, 2020 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L. 

Taylor, for appellant/cross-appellee State of Ohio. Argued: 

Steven L. Taylor. 

On brief: Timothy Young, Ohio Public Defender, Richard A. 

Cline, Kimberly S. Rigby, and Melissa Jackson, for 

appellee/cross-appellant Caron E. Montgomery. Argued: 

Melissa Jackson. 

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Plaintiff-appellant/cross-appellee, State of Ohio, appeals the December 31, 

2018 judgment of the Franklin County Court of Common Pleas granting in part and denying 

in part defendant-appellee/cross-appellant, Caron E. Montgomery's, petition and amended 

petition for postconviction relief ("Postconviction Decision"). For the reasons that follow, 

we affirm. 

{¶ 2} This case has previously been before the Supreme Court of Ohio. Affirming 

on direct appeal Montgomery's convictions and death sentences, the Supreme Court 

recited: 
No. 19AP-41 2 

On Thanksgiving Day 2010, appellant, Caron Montgomery, 

murdered his former girlfriend, Tia Hendricks; their twoyear-old son, Tyron Hendricks; and Tia's nine-year-old 

daughter, Tahlia Hendricks. Montgomery entered a guilty 

plea to charges of murder, domestic violence, and aggravated 

murder with capital specifications. In 2012, a three-judge 

panel [after hearing evidence and finding him guilty on the 

capital counts and specifications] unanimously sentenced him 

to death for the aggravated murders of Tyron and Tahlia and 

to 15 years to life in prison for Tia's murder. 

State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, ¶ 1, recon. granted in part, 

147 Ohio St.3d 1438, 2016-Ohio-7677. 

{¶ 3} The death penalty specifications were: (1) Montgomery had murdered each 

child as part of a course of conduct involving his purposeful killing of two or more persons, 

and (2) each child was under the age of 13 and Montgomery was the principal offender or 

committed the murder with prior calculation and design; with regard to Tia, Montgomery 

also pled guilty and was convicted of an additional specification that he committed the 

murder for the purpose of escaping detection, apprehension, trial, or punishment for the 

crime. 

{¶ 4} At the trial level, Montgomery waived a jury trial and presented his pleas of 

guilty to a three-judge panel (the "three-judge panel" or the "panel"). The three-judge panel 

accepted the pleas, held a hearing on mitigation, and ultimately sentenced Montgomery 

imposing the death penalty. In the interim, between his 2012 convictions and resolution of 

his direct appeal in 2016, Montgomery petitioned the common pleas court for 

postconviction relief. (Apr. 25, 2013 Am. Petition.) He argued he received ineffective 

assistance of counsel during both the trial and penalty phase. The trial court denied the 

petition without conducting an evidentiary hearing. Montgomery appealed and this court 

reversed and remanded to the trial court to conduct an evidentiary hearing on the petition 

for postconviction relief. State v. Montgomery, 10th Dist. No. 13AP-1091, 2014-Ohio-5756 

(Dorrian, J., concurring in part; dissenting in part; and concurring in judgment). 

{¶ 5} On remand, the trial judge, who had previously presided on the three-judge 

panel, held a hearing on the petition and agreed with Montgomery as to mitigation efforts, 

albeit not with regard to the convictions themselves. The trial court granted his petition in 

part and ordered a new mitigation/sentencing phase proceeding. The state appeals this 

ruling and assigns as error other perceived defects in the trial court's decision, while 
No. 19AP-41 3 

Montgomery's cross-appeal challenges the trial court's denial of his claim of ineffective 

assistance of counsel during trial and his claim that his sentence was disproportionate. 

I. Facts and Procedural History 

 A. Pleas, Sentencing, and Direct Appeal 

{¶ 6} The Supreme Court's summary from the direct appeal sketching the 

testimony of the state's only witness, Detective Dana Croom, provides some introductory 

background: 

On Thanksgiving morning, Columbus police received a 9-1-1 

call from a female caller. Croom testified at the plea hearing 

that the dispatcher "could hear [the female caller] yelling, 

'Caron, Caron.' " Police traced the call to Tia Hendricks's 

phone, and the dispatcher triangulated the call to * * * Rosslyn 

Avenue in Sharon Township. Croom explained that the 

Rosslyn Avenue address was "less than a hundred yards" from 

the apartment building where Tia resided, * * * 

Broadmeadows. However, officers were unable to locate the 

exact apartment from which the 9-1-1 call came. 

According to Croom, Tia's family contacted police on the day 

after Thanksgiving after becoming concerned that she and her 

children had not shown up for Thanksgiving dinner. Tia's 

coworkers were also concerned that she had not reported to 

work on Friday. 

Columbus police went to Tia's apartment. Although Croom 

was not one of the responding officers, he testified that police 

found no signs of forced entry. In fact, the door to Tia's 

apartment was locked from the inside with a chain lock, which 

officers cut with a bolt cutter. The chain part of the lock and 

the inside doorknob were smeared with what appeared to be 

blood. Officers discovered the bodies of Tia, Tahlia, and Tyron 

on the living-room floor. All three were pronounced dead at 

the scene. According to Croom, a police lieutenant who 

checked the condition of the bodies described them as "cold," 

meaning that "they had been dead for a while." 

Tia was lying on her back, arms outstretched, with her head 

and upper torso covered by an article of clothing. Her blue 

jeans were undone and pulled slightly down, exposing her 

underwear, and there were several credit and identification 

cards and an unopened condom package askew on the floor 

near her head. Tahlia and Tyron were lying face up near the 

couch, their heads each covered with a blood-stained pillow. 
No. 19AP-41 4 

Officers discovered Montgomery alive and lying on the bed in 

the master bedroom. He appeared to be injured. Officers 

could not tell the extent of his injuries, but could see "a little 

bit of blood." Croom testified that "when the officers * * * 

eventually turned him over, he had a knife * * * barely in his 

neck. When they rolled him over to try to put him on the 

stretcher, the knife fell off onto the bed." Montgomery was 

treated for superficial injuries to his neck, arms, hands, and 

the top of his head. Croom did not personally observe 

Montgomery's injuries, but he testified that the lieutenant 

who did opined that the injuries to his neck were "fresh." 

Croom testified that the police "had people who said that 

[Montgomery] had lived in [Tia's] apartment." And Tia's 

mother, Deborah Hendricks, told Croom that Tia and 

Montgomery had "argued a lot" during their off-and-on 

relationship. The state also introduced a Franklin County 

Municipal Court complaint charging Montgomery with 

domestic violence and assault against Tia and the related 

judgment entry indicating that in 2009, he had pleaded guilty 

to and was convicted of the domestic-violence charge. 

Croom also testified about the autopsies conducted by 

Franklin County Deputy Coroner Dr. Tae L. An on 

November 27 and 28, 2010. Tia's autopsy revealed 23 stab 

wounds to her neck, left flank, back, left shoulder, and right 

forearm. As described in the autopsy report, Dr. An concluded 

that Tia's death was caused by two stab wounds in particular, 

one that lacerated the left common carotid artery and one that 

lacerated the right internal jugular vein. In addition, Dr. An 

located more than 20 cutting wounds to the upper portion of 

Tia's body and found that these wounds contributed to her 

death. At the plea hearing, Croom opined that the wounds to 

Tia's hands and arms are "[c]ommonly referred to as 

defensive wounds." 

Tahlia's autopsy revealed five stab wounds around her neck 

and nine cutting wounds to her chin, right shoulder, and right 

arm that Croom identified as defensive wounds. The autopsy 

report indicated that stab wounds to the front of her neck 

severed the left and right common carotid arteries and the left 

internal jugular vein and caused her death. 

Tyron's autopsy revealed that "[o]ne large, widely gaping, 

incised wound" to the front of his neck lacerated the right 

internal jugular vein, trachea, and esophagus, causing his 

death. Croom testified that Dr. An found no defensive wounds 
No. 19AP-41 5 

and that the wound to Tyron's neck was actually created by 

two separate injuries. 

Officers from the crime-scene unit photographed and 

documented the scene in the apartment and collected 

evidence. From the master bedroom, officers collected the 

knife that fell out of Montgomery's neck, a bleach bottle that 

appeared to have blood on it, and a pair of men's pants with 

apparent blood stains. The knife was over 12 inches long, the 

blade accounting for just over half the total length, and it was 

bloody and bent. Subsequent DNA testing confirmed that the 

blood present on the knife, the bleach bottle, and the pants 

collected from the bedroom matched Montgomery. Croom 

opined that the presence of Montgomery's blood on the knife 

blade indicated that he had injured his hands when they 

slipped down the blade while he was stabbing and cutting the 

victims. 

Croom testified that crime-scene-unit officers also observed 

near the entrance to the apartment a pair of men's shoes that 

appeared to have blood on them. They also noted a bloody 

shoeprint nearby. Officers collected a blood swab from the top 

of a space heater found near the entrance to Tahlia's bedroom 

and a blood swab from the hallway wall just outside her 

bedroom. Results of DNA testing done on both blood swabs 

indicated that they were a match to Tia's DNA profile. 

Officers also collected evidence from Tia's car, which was 

found in a parking lot in front of a different building in the 

apartment complex. Family members told police that Tia 

usually parked her car near her own building. During a 

canvass of the area, officers spoke to a female witness * * * 

who told them that on Thanksgiving evening, she saw a black 

male exit the vehicle and proceed "southbound and then 

westbound behind her apartment, which was * * * 

Broadmeadows." [She] was unable to identify Montgomery as 

the person she saw get out of the car. Blood swabs collected 

from the steering wheel and gear shift knob of Tia's car 

matched Montgomery's DNA profile. 

(Emphasis sic.) Montgomery, 2016-Ohio-5487, at ¶ 5-16. 

{¶ 7} In the opening statement of the sentencing hearing, Montgomery's lawyer 

described him as having been raised by "a mother who consumed alcohol and drugs," 

abandoned by his father, and raised in a house where "[h]is step[dad] abused his mother 

physically, abused drugs, sold drugs, [and] was never a positive role model." (May 8, 2012 
No. 19AP-41 6 

Tr. Vol. VIII at 173-74.) As a child, Montgomery was "brutally raped by a gang of boys in 

the neighborhood. He never received adequate treatment for that rape." (May 8, 2012 Tr. 

Vol. VIII at 174.) In addition, he "was sexually abused by older females and older teenage 

girls. Again, he never received treatment for this sexual abuse." Eventually, his mother 

"signed him over to Children Services," and "the system failed him." (May 8, 2012 Tr. Vol. 

VIII at 174-75.) 

{¶ 8} Seven witnesses testified on mitigation. All were lay witnesses as 

Montgomery's attorneys had retained experts but decided against calling them. 

Montgomery's 17-year-old son, Kaelen Montgomery, testified his father, while only a 

sporadic presence, had been a positive influence in his life and encouraged him. When 

Kaelen would "get in trouble," Montgomery would "come around and just show me the 

right path and tell me stay out of trouble, listen to my mom more." (May 8, 2012 Tr. Vol. 

VIII at 181.) For Kaelen, it was important that his father live "[b]ecause he can still 

influence me [from] behind bars. We can still have our conversations as father and son." 

(May 8, 2012 Tr. Vol. VIII at 184.) 

{¶ 9} Caron Terrell Montgomery ("Terrell"), Montgomery's oldest son, also 

testified. He stated he was "real close" to Montgomery when growing up. "I still need him 

during my day-to-day life. I need him for advice. * * * I made some mistakes and he'd be 

there to still teach me." (May 8, 2012 Tr. Vol. VIII at 192.) When asked, Terrell stated he 

did not see his father abuse his mother while growing up, but knew that "it happened" 

because "you'd be able to see black eyes, all that afterwards." (May 8, 2012 Tr. Vol. VIII at 

195.) He stated the abuse "wouldn't be too often. I guess whenever they ha[d] a 

disagreement about something." (May 8, 2012 Tr. Vol. VIII at 196.) 

{¶ 10} Ryan Clark, Montgomery's younger brother, testified Montgomery had 

"treated [him] fair" and acted "like a big brother." (May 8, 2012 Tr. Vol. VIII at 200.) He 

stated Montgomery was "loving" with his own children, his life was worth saving, and he 

could "still be a positive influence." (May 8, 2012 Tr. Vol. VIII at 201.) Montgomery advised 

Clark not to use drugs, alcohol, or cigarettes, and helped him get a job. 

{¶ 11} Cyrill Montgomery, Montgomery's cousin, testified he had lived in 

Montgomery's house for five years when they were teenagers. He stated that Montgomery's 

mother had an alcohol problem and used crack cocaine. He believed Montgomery loved 

him like a brother and was a good person. Cyrill stated Montgomery always worked and 
No. 19AP-41 7 

supported his children "[a]s much as he could." (May 8, 2012 Tr. Vol. VIII at 221.) He 

recalled Montgomery's nickname was "poodle" and "we called him a gentle giant because, 

you know, he always ran from a fight to whereas we fought." (May 8, 2012 Tr. Vol. VIII at 

226.) 

{¶ 12} Tanika Montgomery, Cyrill's wife, also testified. She described Montgomery's 

family dynamic as "a cycle like of poverty and drug use and verbal abuse." "The cycle of 

nobody graduating from high school, people abusing drugs, cussing out your children, 

letting your children run wild. I just don't agree with that, those type of behaviors." (May 8, 

2012 Tr. Vol. VIII at 233.) She described marijuana and alcohol abuse in front of children, 

and children being allowed to smoke cigarettes. Tanika described Montgomery's mother 

as "disengaged." (May 8, 2012 Tr. Vol. VIII at 236.) Tanika stated she still believed 

Montgomery's life had value and that he was "a good person." (May 8, 2012 Tr. Vol. VIII 

at 237.) He "always showed love towards children." (May 8, 2012 Tr. Vol. VIII at 238.) 

{¶ 13} Roberta Thomas, who worked as a youth leader at Franklin County Children 

Services ("FCCS"), knew Montgomery when he was a juvenile at Franklin Village. At that 

time, he was "one of the youth in our cottage." (May 8, 2012 Tr. Vol. VIII at 244.) 

Montgomery was placed in the cottage with the older boys because he "was such a big guy 

at that age," a placement Thomas believed was inappropriate. (May 8, 2012 Tr. Vol. VIII at 

246.) She stated that "nobody" on the staff "really wanted to deal [with him]," and she 

believed he was placed there so "the older boys would * * * correct him, beat [his] behind, 

do whatever to get him in shape so he wouldn't be a problem in the younger kids' cottage." 

(May 8, 2012 Tr. Vol. VIII at 246-47.) At times, Montgomery would earn the right to go 

home for the weekend, but "he didn't get to go home because his mom didn't come and get 

him." (May 8, 2012 Tr. Vol. VIII at 249.) Thomas firmly believed that FCCS failed 

Montgomery. According to her, FCCS "was moving them through, getting them out. Not 

really giving them what they needed to become what they need[ed] to be in society." 

(May 8, 2012 Tr. Vol. VIII at 255.) She believed Montgomery was "taking responsibility for 

the actions that he caused. That's a real big step for a kid that never had to do that." She 

asked the court to "consider the source" and recognize there was "still value" in 

Montgomery. (May 8, 2012 Tr. Vol. VIII at 256.) 

{¶ 14} Timothy Brown was also an FCCS youth leader at Franklin Village when 

Montgomery was there as a juvenile. He described Montgomery as "a good kid in 
No. 19AP-41 8 

comparison to a lot of the kids that we had in and out [of] the system there." He was "a big 

old baby" and "was not a problem child" for Brown, who could not "remember ever having 

to have to deal with him on a discipline level." (May 8, 2012 Tr. Vol. VIII at 272.) Brown 

also testified that Montgomery's mother did not come and pick him up when he earned 

passes to go home. "Without a doubt," Brown believed that FCCS should have "done more" 

for Montgomery. Montgomery's situation was a major reason Brown "changed [his] whole 

view about [a] system" that, while designed to take care of children, he saw "turn around 

and do the total opposite, it just breaks you and breaks your heart." (May 8, 2012 Tr. Vol. 

VIII at 282.) Brown recalled the "treatment plan" presented to him by the FCCS caseworker 

and supervisor was to release Montgomery after a psychologist opined that he would hurt 

someone, believing "it would be better for him to be apprehended and be tried as an adult 

and be in the adult system instead of the juvenile system." (May 8, 2012 Tr. Vol. VIII at 

283.) Brown described Montgomery as having been "discarded" by his mother and by 

FCCS. (May 8, 2012 Tr. Vol. VIII at 285.) On cross-examination, Brown agreed there had 

been discipline issues involving Montgomery "sexually acting out." (May 8, 2012 Tr. Vol. 

VIII at 288.) 

{¶ 15} Montgomery addressed the panel, providing an unsworn statement. He 

apologized and stated: "I took my family. It's a selfish act. I hurt a lot of people, Tia's family, 

my family, everybody whoever knew me or cared about me." He asked the panel to "have 

mercy on [his] soul" and to "spare [his] life so [he] can at least be some type of dad from 

prison for" his children. He apologized to Tia's mother, stating: "[you] trusted me with 

[your] daughter and our kids. And I took them. I'm very sorry." (May 8, 2012 Tr. Vol. VIII 

at 300.) Montgomery also stated "it was just a couple times, you know, that I had domestic 

violence. I wasn't always violent." (May 8, 2012 Tr. Vol. VIII at 301.) 

{¶ 16} Records reflecting that Montgomery had been "sexually violated at the age of 

four by three other male children" were submitted to the panel as part of two joint exhibits 

containing Montgomery's FCCS records. (Joint Ex. 1 at 4.) The records also revealed his 

mother told a caseworker when Montgomery was 11 that "she would be locking Caron in 

the home while she attended school and went to work." (Joint Ex. 1 at 4.) After he "climbed 

through an upstairs window and went to his mother's place of employment, [she] then 

decided to lock [him] in her car * * * during her working hours." (Joint Ex. 1 at 4.) His 

mother also "state[d] that her marriage to [Montgomery's stepdad] would be a satisfying 
No. 19AP-41 9 

relationship if it were not for Caron." (Joint Ex. 1 at 4.) She "blam[ed] Caron and his 

behavior for all of the problems she is currently experiencing in her personal life." (Joint 

Ex. 1 at 5.) Montgomery's biological father was "allegedly using and selling drugs" and his 

stepdad was also "using and selling drugs." (Joint Ex. 1 at 5.) Also mentioned were 

behavioral issues such as sexually acting out and being "physically aggressive." (Joint Ex. 

1 at 6.) A doctor diagnosed him with "conduct disorder, an attention deficit and being under 

socialized," and "recommended that [Montgomery] receive long-term residential 

treatment." (Joint Ex. 1 at 6.) 

{¶ 17} The panel weighed the mitigating factors against the aggravating 

circumstances, concluded the latter outweighed the former beyond a reasonable doubt, and 

imposed the death penalty for the aggravated murders of Tahlia and Tyron. The panel set 

forth their reasoning in a separate sentencing opinion containing findings of fact and 

conclusions of law. (June 6, 2012 Sentencing Opinion ("Sentencing Opinion").) 

{¶ 18} The panel explicitly noted that although the defense objected to the 

" 'plethora of evidence' " offered by the state as inflammatory and unduly prejudicial, each 

of the judges "have had significant prior death penalty case experience" and "gave scant 

consideration to the photographs." (Sentencing Opinion at 3, fn.1.) 

{¶ 19} In describing the mitigation evidence presented by the defense, the panel led 

with the fact that Montgomery "was raped by older boys when he was four (4) years old." 

(Footnote omitted.) The panel further recited the testimony regarding Montgomery's 

deprived childhood with an absent father and a drug-abusing mother, and the testimony 

that "FCCS had let [Montgomery] down," in addition to the testimony about his positive 

attributes. They noted the defense's emphasis that Montgomery "took full responsibility 

for his actions," both through his plea and in his statement to the court. (Sentencing 

Opinion at 5.) They also noted the testimony that he "would be able to positively influence 

others while in prison," and his repeated expressions of remorse to the court. (Sentencing 

Opinion at 6.) 

{¶ 20} They gave "very significant weight to the aggravating factors regarding the 

killing of two children, aged nine and two, respectively. The murder of innocent children, 

especially a two year old, is one of the most extreme of any aggravating factors." The weight 

of the "aggravating factor of the purposeful killing of two or more persons" had "less 

independent weight, because it tie[d] in with the killing of the children, which is another 
No. 19AP-41 10 

specification"; the panel gave it independent weight "based on the third purposeful killing, 

the murder of Tia." The panel gave "some weight, but not a great deal of weight," to the last 

aggravating circumstance, "a purposeful killing to escape detection, apprehension, trial or 

punishment." (Sentencing Opinion at 6.) 

{¶ 21} "The most stressed mitigating factor by [Montgomery] was his background 

and upbringing." The panel discussed Montgomery having been "spurned by [his] 

biological father" and abused by his stepdad. The panel noted the FCCS records "present a 

very different record" from the testimony of Thomas and Brown and show "serious 

delinquent activity," with a history of lying, disrespect of others, and fighting. (Sentencing 

Opinion at 7.) On balance, however, the panel stated "the mitigating factor related to 

[Montgomery's] background is entitled to some weight." (Sentencing Opinion at 8.) 

{¶ 22} On the significant issue of whether Montgomery had taken full responsibility 

for his actions, the panel does not appear to have been swayed much by the defense's 

argument. "While this factor is not without some substance, the Panel's consideration of 

the weight to be given here is tempered by [Montgomery's] attempt to portray himself as a 

possible victim by inflicting some small cuts on himself prior to the arrival of the police. 

The timing is obviously different: [Montgomery's] taking full responsibility later in time has 

some merit to it, but all in all, the Panel found negligible weight to this offered mitigating 

factor." (Sentencing Opinion at 8.) 

{¶ 23} The panel noted several witnesses testified that Montgomery's "life has 

value"; but, nevertheless, the panel found "precious little, if anything, in the record—from 

the joint exhibits, to the in-court testimony, to the unsworn statement—that suggests that 

[Montgomery] actually is amenable to rehabilitation." The panel noted Montgomery had 

left his children (before Tyron) "when they were very young," and concluded that "his life 

was centered around himself" with "[m]ost relationships * * * formed in spite of 

[Montgomery], and not because of him." The panel found the offered mitigating factor of 

"[p]otential for [r]ehabilitation" to be "entitled to very little weight." (Sentencing Opinion 

at 9.) 

{¶ 24} The panel also considered Montgomery's assertions of remorse, but found it 

"difficult to gauge the overall authenticity of [Montgomery's] sentiments." (Sentencing 

Opinion at 9.) Finding that his "overall history belies a finding that his statement was a 

fundamentally honest one," the judges gave the mitigating factor of remorse "scant weight." 
No. 19AP-41 11 

Considering the totality of the mitigating evidence, the panel found that "none of the factors 

presented in mitigation had any significant weight." (Sentencing Opinion at 10.) 

{¶ 25} In its final weighing, the panel concluded: 

[T]he mitigation evidence paled in comparison to the 

aggravating circumstances. The purposeful killings of two 

children, both under the age of thirteen, are horrific 

aggravating circumstances. As a result, when the Panel voted 

after all discussion had been completed, each judge gave a 

summary of his opinion as to the weighing process, and each 

judge individually and independently concluded that in this 

case, the aggravating circumstances outweighed the 

mitigating factors beyond a reasonable doubt. 

(Sentencing Opinion at 10.) 

{¶ 26} On direct review, the Supreme Court conducted an independent review and 

weighing of the mitigating factors against the aggravating factors under R.C. 2929.05(A) 

and reached the same conclusion. Montgomery, 2016-Ohio-5487, at ¶ 156-88. Giving 

more weight than the panel had to the "unstable childhood that was apparently created in 

no small part by his unsupportive and reproachful mother," the Supreme Court believed 

that Montgomery had "presented mitigating evidence deserving of some weight," but, 

nevertheless, concluded that "however chaotic his background was, the evidence presented 

does not strongly mitigate the aggravating circumstances relative to Tahlia's murder or to 

Tyron's murder." Id. at ¶ 186-87. 

B. Initial Proceedings on Montgomery's Petition for Postconviction 

Relief and Appeal 

{¶ 27} On April 9, 2013, Montgomery filed his petition for postconviction relief 

alleging various claims of ineffective assistance of counsel. He filed an amended petition 

on April 25, 2013. The three-judge panel denied the petition without a hearing on 

December 2, 2013. This court reversed that ruling on December 30, 2014 for a number of 

reasons. Montgomery, 2014-Ohio-5756. First, the majority expressed a concern about 

whether Montgomery's counsel "was acting reasonably" when advising him to plead guilty 

to the murder of Tia where there was "a reasonable argument" that he could have been 

found guilty only of voluntary manslaughter for her death, based on having committed the 

act while "in a sudden fit of rage" under R.C. 2903.03(A). Id. at ¶ 10-13 (also expressing 

some sense that "an uncontrolled rage of Montgomery toward his live-in girlfriend might 
No. 19AP-41 12 

have explained how he happened to kill the children"). This issue, which was not litigated 

on remand and is not a subject of the current appeal, appears to have been abandoned. 

{¶ 28} The majority further sensed a "related problem" in the decision to proceed 

before a three-judge panel when "[j]uries in Franklin County have been very slow to render 

sentences of death," "[t]rial counsel should have an opportunity to explain at a hearing the 

decision about the guilty pleas and the decision to avoid a jury." Id. at ¶ 14. The decision 

stated "lead counsel stopped practicing law in central Ohio shortly after this case and moved 

out of the State. This presents some troubling potential explanations for the decision to 

shorten the proceedings." Id. at ¶ 22. 

{¶ 29} Finally, this court was concerned that "trial counsel did not present all of the 

mitigation evidence which was available," and found a hearing necessary for counsel "to 

explain the failure to fully develop the mitigation evidence more fully." Id. at ¶ 23. 

C. Proceedings on Remand on Montgomery's Petition for 

Postconviction Relief 

{¶ 30} On remand, the trial court conducted a four-day hearing to investigate these 

issues. Scott Weisman, Montgomery's lead trial counsel, testified about his representation 

and the preparation of the mitigation case. Isabella Dixon, who represented Montgomery 

as co-counsel, did not testify at the postconviction hearing. Weisman recalled the defense 

team employed the following experts: Kelly Heiby, a mitigation expert from the Ohio Public 

Defender's Office; Matt Sauer, an investigator; and Dr. Robert Stinson, a board certified 

forensic psychologist for mental health issues. Additionally, Dr. Howard Fradkin, a 

licensed psychologist who "would have been able to touch on [the] issue" of post-traumatic 

stress disorder ("PTSD") if necessary, was hired "as the case proceeded." (Aug. 21, 2017 Tr. 

at 32, 40.) The full team of attorneys, Heiby, and Dr. Stinson met "six to ten times." 

(Aug. 21, 2017 Tr. at 43.) Weisman estimated he met with Montgomery at least monthly 

during the representation and "more frequent than that" as the trial date approached; with 

jail personnel responsible for logging visits and bringing clients from their cells, "things 

aren't always recorded as far as the visits that occur." (Aug. 21, 2017 Tr. at 51, 53.) 

{¶ 31} Weisman testified there had been "[n]onstop" plea negotiations that 

"probably amounted to begging at some points" by the defense to take the death penalty off 

the table. (Aug. 21, 2017 Tr. at 68-69.) However, the state never wavered, offered nothing 
No. 19AP-41 13 

in exchange for the jury waiver, and rejected any proposed concession on limiting the 

evidence or for alternative sentencing. 

{¶ 32} Weisman described "an overwhelming sense of nervousness" among the 

defense team about advising Montgomery to waive his right to a jury in favor of a threejudge panel. (Aug. 21, 2017 Tr. at 71.) He listed several "factors" they considered when 

recommending the jury waiver: "The evidence, the nature of the crime, the victims involved, 

the photographic evidence that we knew the State would be presenting, and just the overall 

package that the State would be able to present as far as facts supporting a conviction in 

this case." (Aug. 21, 2017 Tr. at 70.) Because "the evidence was * * * just overwhelming[] 

and gruesome," Weisman felt that "anything we could do to limit the presentation of the 

evidence," or discussions about it, "the less the Court would see, the less a jury would see, 

the better chance we stood of saving [Montgomery's] life. And that's certainly what I 

thought before we made that decision" to waive the jury trial and plead guilty. (Aug. 21, 

2017 Tr. at 78.) Weisman had appeared before all three judges on the panel "for a 

significant amount of time," felt he understood their "judicial philosophy," and believed 

that at least two of them "would be responsive to the guilty plea." (Aug. 21, 2017 Tr. at 75.) 

{¶ 33} In hindsight and given the results, Weisman admitted that the decision to 

advise Montgomery to plead guilty and present mitigation to a three-judge panel was 

"[o]bviously, based on the outcome, * * * a terrible decision." (Aug. 21, 2017 Tr. at 152.) He 

did know of death penalty seminars instructing practitioners "never" to have a client enter 

a guilty plea unless "there is an agreed sentence worked out[,] and that it otherwise was 

strongly encouraged not to follow that path." (Aug. 21, 2017 Tr. at 111.) He also recalled a 

presentation stating that three-judge panels were statistically more likely than juries to 

return a death sentence, as well as continuing legal education courses emphasizing that 

"conveying those mental health issues required expert testimony." (Aug. 21, 2017 Tr. at 112, 

118.) 

{¶ 34} Nevertheless, Weisman also stated that, in hindsight, he really did not "see a 

different path" to the plea and panel approach. (Aug. 21, 2017 Tr. at 153.) Given the 

atrocious facts and the relatively limited nature of the mitigation evidence, he believed the 

"only way * * * to try to use his acceptance of responsibility as a mitigation tool" was to go 

before a three-judge panel rather than a jury. (Aug. 21, 2017 Tr. at 153-54.) A jury would 

also not have the experience of a panel of judges in seeing the "kind of gruesomeness" that 
No. 19AP-41 14 

the state's evidence would present. (Aug. 21, 2017 Tr. at 154.) Weisman spoke to "a number 

of attorneys who had experience in death penalty" representation who "[m]ost all were in 

agreement with [the] approach" to plead and go before the panel, even though there were 

"some voices of concern about why it may not work." (Aug. 21, 2017 Tr. at 154-55.) He also 

felt that a "shortened proceeding" before a three-judge panel, as opposed to a more drawn 

out proceeding before a jury, was "[a]bsolutely" a benefit and "part of the strategy." 

(Aug. 21, 2017 Tr. at 157.) 

{¶ 35} He acknowledged he "could have done a better job. I could have done some 

things differently. By the same token, * * * I sit here today thinking what I did was the right 

thing to do." (Aug. 21, 2017 Tr. at 158.) He believed that "the decisions we made, to waive 

jury and the other things[,] * * * I think were the right strategy." (Aug. 21, 2017 Tr. at 158.) 

However, Weisman did also feel that "[w]e should have done things differently" during the 

representation of Montgomery, including: "further investigation as to his mental health 

state at the time the plea was entered"; "more research" on what evidence the defense might 

have been able to have excluded that the state used to prove the guilty plea; and the 

introduction of "Dr. Stinson's testimony. Leaving that out and expecting the Court, because 

they are more educated than the jurors that appear in front of them, to recognize there were 

some issues was a bad decision by me, a terrible decision by me," he averred in retrospect. 

(Aug. 21, 2017 Tr. at 117.) 

{¶ 36} When asked, Weisman described the mitigation theme as "an allencompassing theme revolving around the fact that [Montgomery] entered a guilty plea 

and * * * many other issues that we were going to try to string together." (Aug. 21, 2017 Tr. 

at 85.) The defense team "discussed" whether to present substance abuse as a mitigation 

issue, but Weisman chose not to do so because "absent it being an overwhelming factor in 

the actual offense itself, I didn't think it was going to serve the path we were trying to take, 

that this is a saveable individual. And engaging in drug use of your own volition I didn't 

think was the picture I was trying to paint, at least in my mind." (Aug. 21, 2017 Tr. at 105.) 

{¶ 37} When asked about Dr. Stinson's presentation of his diagnosis of 

Montgomery's mental health issues, Weisman stated that although he could not recall the 

specific diagnosis, he did remember that "in my mind, in my view, it would not have been 

- - issues were not presented to me that I felt would have overwhelmingly assisted us in the 

mitigation, or my assessment of his necessity to testify would have been different than it 
No. 19AP-41 15 

was." (Aug. 21, 2017 Tr. at 128.) Weisman agreed he was "still considering" whether to call 

Dr. Stinson as a witness "even up to within a few days of the hearing," and elaborated that 

"[t]he decision not to call Dr. Stinson was probably made during the actual hearing itself." 

(Aug. 21, 2017 Tr. at 90.) 

{¶ 38} When he decided not to call Dr. Stinson, Wiseman was mindful that Dr. 

Stinson "was aware of * * * other violent acts by [Montgomery and] domestic violence 

allegations, et cetera." (Aug. 21, 2017 Tr. at 159.) Weisman "had some concern those things 

would have been brought up if Dr. Stinson testified that we could otherwise keep away from 

the three-judge panel and not hear about some of those past acts that, frankly, I was doing 

everything I could to keep anybody from hearing about." (Aug. 21, 2017 Tr. at 159.) In 

hindsight, he acknowledged he "was counting a lot on the Court. I guess I didn't feel that 

the psychological issues would have carried as much weight with a three-judge panel as it 

may have with some lay jurors." (Aug. 21, 2017 Tr. at 159.) 

{¶ 39} Rather than call Dr. Stinson, whose testimony he did not believe would 

"offset" the negative evidence, Weisman stated his intention was to have those 

psychological issues presented to the three-judge panel through other witnesses. "I was 

counting on trying to get some of that stuff across, I guess, through the fact that he had the 

issues when in the State's custody and some of the other issues that the Court heard about 

from the lay witnesses, that there were some psychological issues there and there was some 

scarring there." (Aug. 21, 2017 Tr. at 160.) He did not think it would be "as useful" to have 

expert testimony with the panel "whereas, if you have a lay juror, they may need the 

explanation a little bit more than the Court would." (Aug. 21, 2017 Tr. at 160.) "Using 

hindsight," Weisman admitted he should have presented a psychological expert to the 

panel. (Aug. 21, 2017 Tr. at 192.) 

{¶ 40} When asked if he had "shorten[ed]" the mitigation proceedings because he 

was going to be moving out of state, Weisman replied that he "was offended by the 

question." "No, I did nothing to shorten the proceedings. I'd never shortcut a client." 

(Aug. 21, 2017 Tr. at 132.) Weisman's moving date was not set in stone and he actually 

"continued the case twice over prosecution objection from the fall to late spring [in order 

to] get more information." (Aug. 21, 2017 Tr. at 132.) 

{¶ 41} Weisman was presented with summaries prepared by the mitigation 

investigator from interviews with past girlfriends recounting domestic abuse at 
No. 19AP-41 16 

Montgomery's hands; he had reviewed this information in "deciding what witnesses to call 

in the mitigation hearing." (Aug. 21, 2017 Tr. at 136.) One of Montgomery's former 

girlfriends, T.L., stated Montgomery "started hitting her after the third year they were 

together"; he "had abusive ways"; she called the police on him in 1994 or 1995 "because he 

was hitting her"; and "she stabbed him because he was strangling her," but she never 

pressed charges. (Aug. 21, 2017 Tr. at 134-35.) 

{¶ 42} T.L. also recalled an incident with Montgomery when their son was two years 

old in which Montgomery "had been drinking and pushed a coat rack through the wall." 

She told him to leave and he responded that "if he goes then they all go." Montgomery 

stated: "all bitches are alike -- are all alike" and "pulled out a gun and said he would kill the 

kids first and then her and himself." (Aug. 21, 2017 Tr. at 135.) Weisman agreed this 

incident would have been "very damning" to have presented during mitigation and stated 

this "was the reason that we didn't call [her] as [a] witness." (Aug. 21, 2017 Tr. at 136.) 

{¶ 43} Weisman was also presented with the summary obtained from interviewing 

another one of Montgomery's former girlfriends, C.D., who stated that when their son was 

three months old Montgomery "hit her for the first time. She recalled how [he] hit her in 

the head with a closed fist and knocked her to the floor. She felt her brain shake." On 

another day, Montgomery "slammed her to the floor and choked her until she passed out." 

When she "came to," C.D. saw Montgomery "pacing back and forth over her and talking to 

himself," and she realized "there was something wrong with him." C.D. "said she got daily 

beatings and went to work with bruises." (Aug. 21, 2017 Tr. at 137.) Another time, 

Montgomery "was so drunk and high that he was driving her Blazer with a flat tire." When 

she told him to leave, "he beat her to a pulp." Montgomery "slammed her to the floor and 

choked her until her daughter came down and jumped [on] his back and bit him in the ear." 

C.D.'s son called 9-1-1, "but it took about 45 minutes for the police to arrive," all while he 

"continued beating her." Montgomery "always made excuses. He never took responsibility." 

He "would blame her when he beat her." (Aug. 21, 2017 Tr. at 138.) Montgomery wrecked 

two of C.D.'s cars. One time he "started punching her while she was driving," and "he also 

smashed the windshield with a beer bottle while she was driving." (Aug. 21, 2017 Tr. at 

139.) When asked if this "serial domestic abuse" showed why he "wouldn't have wanted to 

call" C.D. as a witness, Weisman agreed stating "[t]hat's a correct statement." (Aug. 21, 

2017 Tr. at 140.) 
No. 19AP-41 17 

{¶ 44} Another girlfriend, L.H., reported that Montgomery "would sing while he was 

whopping" their son. He "wanted to use extension cords and switches to whip" the child, 

but "she didn't want this." Weisman agreed this would have been evidence of Montgomery's 

"willingness to commit domestic abuse against children" if he called L.H. to testify. 

(Aug. 21, 2017 Tr. at 141.) 

{¶ 45} Weisman stated they requested funds for Dr. Fradkin because they "were 

thinking about" PTSD as a mitigation topic, and "the effects that would have had on him, 

the trauma from sexual abuse as a child." (Aug. 21, 2017 Tr. at 104-05.) However, they 

decided not to "push that agenda." (Aug. 21, 2017 Tr. at 105.) He did concede that Dr. 

Fradkin's report would have helped support the theme that "the system [failed] to protect 

him" as a juvenile, and would have helped "explain to the finders of fact how" the sexual 

abuse he "suffered as a young boy influenced his later behavior." (Aug. 21, 2017 Tr. at 177, 

182.) 

{¶ 46} Weisman had Dr. Fradkin's report before going to mitigation, but a section 

of it recounting that Montgomery had "talked some about the day he committed the 

murders" provided reasons not to call him as a witness. "He said it 'just happened.' He was 

on probation, was doing good, had been going to domestic violence classes, and was not 

drinking or doing drugs. He said his girlfriend Tia was seeing other guys, and he told her 

he could leave. She said, 'How would the bills get paid?' She wanted to get married, but he 

felt she was misleading him with her selfish needs. He said, I told her, 'Don't fuck with 

me.' " Montgomery reported "that day everything from his past surfaced that he had 

blocked out. He said he was angry about life and angry how nobody else got in trouble but 

he did." (Aug. 21, 2017 Tr. at 149.) Dr. Fradkin's report continued: "He told me he was 

actually having sex with both Tia and [X.X.]. He said he had sex with [X.X.] to get revenge 

on Tia for the times she was having sex with other men. He felt she had done him dirty, so 

he felt justified to do her wrong. [X.X.] had written an anonymous letter to Tia, and 

[Montgomery] figured out it must have come from [X.X.] because she wanted them to break 

up. * * * He had also gone to [X.X.] numerous times when he felt hurt by Tia. Before he 

killed Tia, he told her he had anal sex with [X.X.]." (Aug. 21, 2017 Tr. at 150.) 

{¶ 47} Weisman agreed, in the words of the prosecutor on cross-examination, that 

these details "can be interpreted as indicating" that Montgomery "was seeking revenge in 

some way against Tia" and "that he taunted her about anal sex with [X.X.] before he killed 
No. 19AP-41 18 

her." (Aug. 21, 2017 Tr. at 151.) "Those would have been reasons not to call Dr. Fradkin," 

he conceded. "Like many of the other witnesses, I think they offered more negative -- there 

were more negatives than positives to put them on the stand. So, yes, [the details in the 

report] would be why." (Aug. 21, 2017 Tr. at 152.) 

{¶ 48} Dorian Hall, the supervisor of mitigation and fact investigation at the Ohio 

Public Defender's Office ("OPD"), offered her thoughts on the mitigation investigation and 

presentation. She reviewed Dr. Stinson's report and opined that although it "was very well 

laid out" and "hit all the key concepts," the defense did not adequately present the 

"psychology assessments" within it. (Aug. 21, 2017 Tr. at 229-30.) Although the sexual 

abuse was "mention[ed] in the opening" statement of the mitigation hearing, she contended 

the defense had "show[n] no documentation" of it nor called "an expert [to] talk about the 

significance of being sexually abused and particularly without getting any counseling." 

(Aug. 21, 2017 Tr. at 231.) 

{¶ 49} Likewise, the report's theme of "parental abandonment and neglect" was 

"touched upon" at the hearing, but the "details were not fully developed" and "there wasn't 

an expert [called] who could talk about the impact of abandonment and rejection and poor 

parenting." (Aug. 21, 2017 Tr. at 232.) Hall made the same criticism of the defense's 

presentation of the family history of substance abuse and stated: "it wasn't explained and 

talked about." (Aug. 21, 2017 Tr. at 233-34.) Based on "tidbits of information" from "family 

members and friends talking about how he behaved oddly and some of his behaviors and 

how he acted when he was consuming alcohol," Hall believed that dissociation "definitely" 

should have been investigated and presented. (Aug. 21, 2017 Tr. at 234.) It was also her 

opinion that PTSD "should have been investigated and developed." When asked, she 

agreed that substance abuse, dissociation, and PTSD all required "expert testimony to fully 

explain the impact of those things on Mr. Montgomery." (Aug. 21, 2017 Tr. at 235.) 

{¶ 50} Hall faulted the evidence presented at the mitigation hearing for its lack of 

detail, critiquing the presentation of "themes that weren't fully developed" and the lack of 

"experts that could explain the impact of those events and explain who Mr. Montgomery 

was." (Aug. 21, 2017 Tr. at 236.) Hall also noted that an expert could have testified about 

"the failure of the system" into which Montgomery was placed as a juvenile. (Aug. 21, 2017 

Tr. at 238.) Hall supervised Heiby, the OPD mitigation specialist and investigator who 
No. 19AP-41 19 

worked on Montgomery's case; Hall deemed Heiby's work "adequate." (Aug. 21, 2017 Tr. 

at 247-48.) 

{¶ 51} Dr. Fradkin specializes "in trauma and specifically in men's trauma." 

(Aug. 23, 2017 Tr. at 263.) He described a "shift" in his field that has recognized men as 

victims of trauma and placed increasing value over the last five to ten years on "traumainformed therapy." (Aug. 23, 2017 Tr. at 265-66.) Dr. Fradkin was retained by 

Montgomery's original defense team in 2011; he was asked to evaluate Montgomery "on the 

sexual trauma that he experienced," and to write a report on his findings. (Aug. 23, 2017 

Tr. at 266-67.) Initially, Dixon was the "only person" from the defense team who met with 

Dr. Fradkin who was not aware the team had a mitigation specialist. (Aug. 23, 2017 Tr. at 

268-69.) With Dixon present, he spent one and one-quarter hours interviewing 

Montgomery. He found Montgomery "forthcoming" and "willing to be vulnerable," but 

acknowledged that a "best practice would be" to interview Montgomery alone; he had 

believed at the time that the attorney's presence "was required" for a defendant in the jail. 

(Aug. 23, 2017 Tr. at 362; 272.) Since then, he has never met "just once" with a defendant 

because he believes it is not "appropriate" to broach the subject of sexual abuse during an 

initial interview: "I think it's necessary to establish a relationship with the client as is true 

for any trauma-informed kind of therapy." (Aug. 23, 2017 Tr. at 273.) After interviewing 

Montgomery and preparing a report, Dr. Stinson informed Dr. Fradkin that "he would 

incorporate the results of what [Dr. Fradkin] had written into his report" and that Dr. 

Fradkin would not be testifying. Dr. Fradkin received "no feedback" about his report from 

the defense attorneys. (Aug. 23, 2017 Tr. at 277.) 

{¶ 52} After Montgomery's conviction, Dr. Fradkin was again asked to evaluate him. 

He reviewed records from "the psychological evaluations and the limited treatment" 

Montgomery received while at Franklin Village, hospital records, and treatment notes from 

a sex offender treatment program, as well as reports prepared by Dr. Stinson and Dr. James 

Reardon, a defense expert who had been retained after the conviction. (Aug. 23, 2017 Tr. 

at 280.) Dr. Fradkin interviewed Montgomery once in 2013 and "a number of times in 

2017." (Aug. 23, 2017 Tr. at 281.) When interviewing him, Dr. Fradkin used the Forensic 

Experiential Trauma Interview ("FETI") technique, which was developed by a United States 

Army psychologist after the Ft. Hood shootings. (Aug. 23, 2017 Tr. at 282.) The FETI 

technique "asks questions about the sensory experiences of the experience" of trauma, such 
No. 19AP-41 20 

as "what did you see and what did you hear and what did you smell, what did you think," 

based on the recognition that the brain remembers trauma "in pieces rather than in a 

sequence." (Aug. 23, 2017 Tr. at 283.) Dr. Fradkin also used the Adverse Childhood 

Experience ("ACE") assessment, which was developed based on research showing that 

"when somebody experiences even one Adverse Childhood Experience it's likely to have a 

life-long impact on their ability to function as an adult." Childhood trauma "is likely to 

impact on their health. People with many traumas tend to die earlier, and they tend to have 

many problems with intimacy, with functioning, with work, [and with] school." The ACE 

had been "well established" before Montgomery's conviction in 2012. (Aug. 23, 2017 Tr. at 

284.) 

{¶ 53} Montgomery's ACE score was six out of a possible ten. The score was based 

on the following experiences: having "an older person at least five years older" engage in 

sexual contact with him; abandonment by a biological parent, his father; witnessing his 

stepdad physically abuse his mother; living with "a problem drinker or an alcoholic" or drug 

user before the age of 18 (identified as "his mother, his father and his stepdad"); having a 

household member (mother and stepdad) who were "both depressed, mentally ill"; and 

being the "victim of physical and emotional neglect." (Aug. 23, 2017 Tr. at 286.) According 

to Dr. Fradkin, an ACE score of six is "very high. Only 3.7 percent of the population have a 

score of four or more." A high ACE score correlates with "drug and alcohol addiction," being 

"more likely to engage in sex early" in life, being "more likely to be violent, more likely to 

use drugs, more work absences, and much more likely to grow up with shame." (Aug. 23, 

2017 Tr. at 287.) 

{¶ 54} Dr. Fradkin used the FETI technique to interview Montgomery regarding 

four instances of sexual trauma. The first, "was when he was 3 or 4 years old, and he was 

gang raped by four boys." (Aug. 23, 2017 Tr. at 289.) The incident made Montgomery feel 

"like trash," and his mother "had very little reaction" after he went home and reported it to 

her. His stepdad, however, was "furious," and "they went and chased [the perpetrators] 

down" before going to the police to report the incident. The police stated Montgomery "was 

too young to testify in court, * * * so nothing was done." When asked what was "the most 

difficult part of this experience," Montgomery answered "that nothing happened, that it just 

went away." (Aug. 23, 2017 Tr. at 290.) 
No. 19AP-41 21 

{¶ 55} The second incident occurred when Montgomery was "somewhere between 

7 and 9," and was initiated by his "uncle's girlfriend's twin daughter," who was between the 

ages of 13 and 15. She "told him that his uncle had told her to take him into her room." 

Montgomery reported remembering feeling that the activity "probably wasn't right. He 

said that he didn't feel good about it, that he didn't know what was going on." (Aug. 23, 

2017 Tr. at 292.) He "never told anyone until his girlfriend, [C.D.], decades later." The 

third incident occurred when he was 8 and "the girlfriend's daughter's sister," who was "12 

or 13," was babysitting him when he "invited her to play house." (Aug. 23, 2017 Tr. at 293-

94.) Dr. Fradkin interpreted the incident as indicative of Montgomery "basically learning 

that his value is to be a sex object," which was "a very problematic thing for an 8-year-old 

to be thinking." (Aug. 23, 2017 Tr. at 294-95.) The fourth incident occurred when 

Montgomery was "10 or 11," and the other person was a woman "in her forties." The woman 

"was drinking and was intoxicated." Although Montgomery "said, quote, unquote, we had 

sex," Dr. Fradkin cautioned that "this is something that male survivors tend to say about a 

sexual trauma. They describe it as sex even though she's in her forties; he's 10 or 11 years 

old. Clearly they're not having sex. She's sexually assaulting him." (Aug. 23, 2017 Tr. at 

295.) 

{¶ 56} Dr. Fradkin stated the postconviction interviews with Montgomery that 

employed the FETI technique resulted in "much more detail" than the pre-conviction 

interview. In 2012, he was "not aware of the FETI," because it had not yet been developed. 

(Aug. 23, 2017 Tr. at 296.) Dr. Fradkin emphasized the "extraordinarily shameful" feeling 

that male victims of sexual abuse experience and the fact that "on average men take 20 

years from the time that they've been violated as a child before they're able to talk about it." 

(Aug. 23, 2017 Tr. at 297.) He described certain "signs" of "self-defeating kinds of 

behaviors" in Montgomery's history that, in his experience, were indicative of unreported 

and untreated sexual abuse, including starting to drink at the age of 9 and "daily use of 

alcohol at age 17 or 18 [that] continued until he was imprisoned"; daily use of marijuana as 

a teenager; use of drugs such as ecstasy, Percocet, and cocaine; an eating disorder that 

manifested as "overeating tremendously," resulting in a weight of 200 pounds at the age of 

11 and bullying at school; bedwetting from age 4 or 5 until 12 or 13; "sexual acting out" with 

"a lot of boys and girls who were smaller, inferior, or less powerful than him," as well as 

"with female teachers, with staff." (Aug. 23, 2017 Tr. at 298-301.) Dr. Fradkin described 
No. 19AP-41 22 

these as "incidents of sexually reactive experiences rather than that he was a sexual 

perpetrator," disagreeing with Franklin Village records that presented Montgomery "as 

more predatory." (Aug. 23, 2017 Tr. at 302.) 

{¶ 57} According to Dr. Fradkin, Montgomery was offered "grossly inadequate 

treatment" for "both the sexual trauma as well as the other traumas" he experienced. 

(Aug. 23, 2017 Tr. at 309-10.) He was "misdiagnosed" with "Conduct Disorder," and "even 

when there were therapists who evaluated him and said that there was sexual trauma," 

there was no follow-up or treatment. As a juvenile, he was placed in a "sexual offenders 

group" in 1987 in which "sexual abuse was never talked about in any of" the 11 sessions 

Montgomery attended. (Aug. 23, 2017 Tr. at 309.) His mother "was generally resistant" to 

treatment, she "blamed him for a lot of her problems," and "actively encouraged him to not 

talk about the traumas that he experienced." (Aug. 23, 2017 Tr. at 313-14.) Dr. Fradkin 

opined that this "add[ed] to his trauma." Nevertheless, Montgomery told him "he felt like 

she was a pretty good mother," which Dr. Fradkin attributed to his observation "that 

survivors learn to be loyal to dysfunction." (Aug. 23, 2017 Tr. at 314.) 

{¶ 58} When Montgomery was released from Franklin Village it was recommended 

he be committed to the Department of Youth Services based on the diagnosis "that he had 

a Conduct Disorder and he was unruly and he needed a stricter environment to live in." 

(Aug. 23, 2017 Tr. at 316.) The records Dr. Fradkin reviewed indicated that the clinical 

director of a residential treatment facility that rejected him for placement believed 

commitment would result in "an increase in his anxiety level" that was intended to "increase 

his motivation for change" and make Montgomery "more responsive to treatment." 

(Aug. 23, 2017 Tr. at 317.) Dr. Fradkin opined that "from a trauma-informed perspective, 

that would be the worst thing you would want to do, * * * increasing anxiety is more likely 

to lead to disconnection." (Aug. 23, 2017 Tr. at 317-18.) 

{¶ 59} Dr. Fradkin described dissociation as "an experience in which a person is not 

fully in touch with what's going on in the current situation because of the trauma [and] a 

defense mechanism." In Montgomery's case, "one of the signs of dissociation was that he 

heard voices inside [of] his head." (Aug. 23, 2017 Tr. at 323.) In addition, "losing time, 

using a different voice, losing control over your body are all other examples of dissociative 

kinds of symptoms." (Aug. 23, 2017 Tr. at 323-24.) Dr. Fradkin attributed Montgomery's 

"compulsive sexual behavior" as a teenager and "problems with emotional avoidance that 
No. 19AP-41 23 

resulted in escalating conflicts with his partners [as the] result of the trauma that [he] 

suffered that he did not receive sufficient treatment for." (Aug. 23, 2017 Tr. at 324-25.) 

{¶ 60} Dr. Fradkin acknowledged he would not have been able to use the FETI 

interview technique for the original mitigation proceeding because it had not yet been 

developed. He "believe[d]" his "analysis and conclusions" might have been "different based 

upon not having FETI available." (Aug. 23, 2017 Tr. at 322.) He also acknowledged he did 

not "specifically" know the percentage of child victims of sexual abuse who grow up to 

commit murders, but that it was "relatively small." (Aug. 23, 2017 Tr. at 332.) Dr. Fradkin 

believed there was a "causal connection" between Montgomery's untreated trauma and his 

"self-defeating" and "violent behaviors in his case to deal with the feelings of being 

overwhelmed, * * * stressed [and] betrayed," such as the betrayal he felt when Tia had 

"affairs with other people, other men." (Aug. 23, 2017 Tr. at 333.) 

{¶ 61} Dr. Fradkin also acknowledged there was "ample evidence" of instances in 

the record of Montgomery "minimizing" and, in the words of the prosecutor, "lying over 

and over and over again," but he opined this is "very common with survivors of sexual 

trauma and other trauma," and "especially an African-American male who's brought up in 

a culture where he's supposed to be strong and powerful." (Aug. 23, 2017 Tr. at 252-53.) 

Dr. Fradkin believed at the time of his initial interview with Montgomery that it had been 

sufficient to investigate the sexual abuse and that Montgomery had been quite open with 

him, but in his postconviction testimony, Dr. Fradkin expressed different views and agreed 

he had been "inexperienced" in interviewing criminal defendants. (Aug. 23, 2017 Tr. at 

361.) At the time, he did not know that it would "be appropriate" to ask for Montgomery's 

records or request to interview him without his attorney present. (Aug. 23, 2017 Tr. at 361-

62.) 

{¶ 62} When read the definition of Antisocial Personality Disorder in the American 

Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Dr. 

Fradkin acknowledged that many of the factors applied to Montgomery and that his 

"antisocial behaviors" were "well documented in the psychological reports." However, he 

believed such behaviors were "a result of the untreated trauma and that it's a traumauninformed approach to slap that label on him because it doesn't take into account the 

experience he had and the lack of support he had and the lack of treatment he had." 

(Aug. 23, 2017 Tr. at 374.) 
No. 19AP-41 24 

{¶ 63} Dr. James Reardon is a psychologist with 33 years of experience in "PostTraumatic Stress and trauma-related disorders" and forensic psychology. (Aug. 23, 2017 

Tr. at 397.) He first examined Montgomery in 2013 after the conviction. Most of the 

records and investigative information he reviewed were provided by investigators at the 

OPD's office, but he did conduct a "face-to-face interview" with C.D. because she "had been 

in a relationship with Montgomery for a significant period of time [and] had a son with Mr. 

Montgomery." (Aug. 23, 2017 Tr. at 408-09.) He also prepared a supplemental report in 

2017 based on "additional records" and subsequent consultation with Montgomery. 

(Aug. 23, 2017 Tr. at 409.) 

{¶ 64} When asked if Montgomery had ever "received any sort of effective treatment 

focused on sexual abuse victims or being a sexual abuse survivor," Dr. Reardon stated he 

saw "no evidence" that "it ever was effectively addressed." He acknowledged "there were a 

number of people that treated him that meant well" and "in all fairness" Montgomery 

"didn't really want to talk about it. Most victims and survivors don't want to talk about it." 

(Aug. 23, 2017 Tr. at 417.) 

{¶ 65} Based on his review of Montgomery's juvenile and hospital records, Dr. 

Reardon believed he "had been physically abused and neglected through most of his 

childhood." Hospital records showed he had been "burned with an iron. He fell down 

stairs. He had a cut on his face." (Aug. 23, 2017 Tr. at 419.) Dr. Reardon believed 

Montgomery's mother "loved him, but I don't think she ever liked him," and she "blamed 

him for ruining her life." She "washed her hands of him and just gave him over to the 

juvenile system" when he was 12. (Aug. 23, 2017 Tr. at 420.) Dr. Reardon saw evidence 

that Montgomery's mother "drank every day reportedly throughout the time that he was 

being carried," indicating a "potential" for fetal alcohol syndrome. (Aug. 23, 2017 Tr. at 

420-21.) "Both his father and step[dad] sold drugs [and] did drugs." In addition to his 

mother's drinking, Montgomery "smoked his first blunt with his mom when he was around 

8 years old [and] he drank with her * * * from an early age on." (Aug. 23, 2017 Tr. at 421.) 

Montgomery "went to eight or ten different elementary schools before he even got past the 

eighth grade." (Aug. 23, 2017 Tr. at 421-22.) 

{¶ 66} Dr. Reardon diagnosed Montgomery with "Post-Traumatic Stress Disorder 

Reaction, undiagnosed, untreated, from the abuses that were perpetrated on him, 

beginning with the episode or the situation when the four boys sexually assaulted him when 
No. 19AP-41 25 

he was 4 years old and then moving forward from that point." (Aug. 23, 2017 Tr. at 422-

23.) Dr. Reardon opined that "ultimately people in the juvenile system largely ended up 

blaming" Montgomery and treating him "more as somebody who had been a perpetrator 

or a potential somebody who didn't know how to handle boundaries and limits and things 

like that rather than somebody who had this trauma exposure in his background." (Aug. 23, 

2017 Tr. at 440.) Dr. Reardon discussed a psychiatric record from 1986 prepared when 

Montgomery was 11 years old. The report described him as having "a long history of 

misconduct and borderline hyperactivity," "poor socialization skills, lack of discipline, poor 

motivation, total denial of problems," but had no indication that the psychiatrist was aware 

of "the sexual abuse events" Montgomery had experienced. (Aug. 23, 2017 Tr. at 443.) Dr. 

Reardon disagreed with the report's diagnosis of Conduct Disorder. Although he 

acknowledged "conduct difficulties," Dr. Reardon "would have diagnosed him with PostTraumatic Stress Disorder with Conduct Disorder Manifestation," based on "the 

connection between the trauma exposures and the trauma effects and the behavioral 

manifestations." (Aug. 23, 2017 Tr. at 447-48.) 

{¶ 67} Dr. Reardon believed that "an attempt to arrive at an Antisocial Personality 

Disorder diagnosis" of Montgomery was "flawed because of all the information that was 

there and available that was never presented" and because he did not think Montgomery 

"me[t] the criteria for that." (Aug. 23, 2017 Tr. at 450.) 

{¶ 68} Dr. Reardon opined the trauma Montgomery experienced resulted in him 

developing the following "coping mechanisms:" "[d]enial, minimization, avoidance, 

hyperreactivity, extreme difficulty in modulating emotional reactions, especially in 

situations where he feels abandoned," and substance abuse. (Aug. 23, 2017 Tr. at 452-53.) 

He agreed that dissociation was a coping mechanism, but clarified that "the catch with 

dissociation is it's not a consciously employed coping mechanism." (Aug. 23, 2017 Tr. at 

455.) It is "something that occurs, not something that a person consciously employs." 

(Aug. 23, 2017 Tr. at 456.) 

{¶ 69} Dr. Reardon diagnosed Montgomery with PTSD with dissociative episodes. 

He believed that on the day of the murders, Montgomery "was in a highly dissociated state." 

(Aug. 23, 2017 Tr. at 460.) Dr. Reardon "[a]bsolutely" believed Montgomery had 

"dissociated multiple times throughout his life." He described the relationship with C.D. as 

"independently corroborating" that Montgomery's dissociative "episodes had happened 
No. 19AP-41 26 

before." (Aug. 23, 2017 Tr. at 466.) According to Dr. Reardon, C.D. "described a number 

of episodes" during which Montgomery "went away, said his eyes glazed over, he went 

away, he got physical with her," and the "main one was the last one where she did file 

domestic violence charges against him." (Aug. 23, 2017 Tr. at 468.) She described two 

other episodes: one in which "she kind of came to after he had kind of choked her and then 

let go, and he was pacing back and forth and talking to himself like he was having a 

conversation," and another in which "he had actually bit her on the cheek, and when the 

blood trickled down her cheek, * * * she saw his eyes kind of focus on it, and he kind of 

snapped to and asked her, 'What happened? What happened? How did you get cut?' " 

(Aug. 23, 2017 Tr. at 469.) In both situations, Montgomery "[h]ad no memory" of having 

assaulted her. Dr. Reardon opined he did "not believe that in a non-dissociated state Caron 

Montgomery would have been psychologically capable" of murdering Tia, Tahlia, and 

Tyron. (Aug. 23, 2017 Tr. at 470.) 

{¶ 70} Montgomery reported to Dr. Reardon that he had "smoked some marijuana" 

that evening and "he was upset that Tia had left the two children there by themselves." 

(Sept. 5, 2017 Tr. at 1061-62.) These events were what Dr. Reardon described as the "bits 

and pieces" of what occurred that Montgomery reported remembering. (Sept. 5, 2017 Tr. 

at 1063-64.) Dr. Reardon stated it is "very difficult" to "parse out" a dissociated person's 

actual memories of events from "what they recall because somebody else has provided the 

information," as the "information just sort of blends." (Sept. 5, 2017 Tr. at 1065.) When 

informed that Montgomery "was using crack cocaine and alcohol along with marijuana," 

Dr. Reardon stated "the drugs played a fairly minimal role in any actions, any emotional 

reactions that Montgomery had." (Sept. 5, 2017 Tr. at 1067.) 

{¶ 71} Montgomery reported to Dr. Reardon that he "just went away," and the next 

thing he was able to recall "was that * * * he kind of came back," and everyone was dead. 

(Sept. 5, 2017 Tr. at 1068-69.) He stated "he looked at his hands. His hands were cut up. 

He said there was blood everywhere. * * * He just had no recall, period." (Sept. 5, 2017 Tr. 

at 1069.) After that, Montgomery "took a shower," then "took Tia's car, drove back out to 

the west side, got some more drugs, came back to the apartment [and] did the drugs." The 

"sound of the police" was the "next thing he really remembered, which in reality was 

recalled from his own experience." (Sept. 5, 2017 Tr. at 1070.) 
No. 19AP-41 27 

{¶ 72} Dr. Reardon emphasized that Montgomery "went back to the same 

apartment" instead of fleeing. "He could have gone anywhere. He didn't. * * * He didn't 

really have an explanation of why he did that." (Sept. 5, 2017 Tr. at 1070.) Dr. Reardon 

believed that Montgomery "couldn't leave them. Even though he knew they were dead, he 

was still connected to them." Dr. Reardon pointed out that "a rational murderer at that 

point would leave." There was "roughly a 30- to 35-hour span of time" between the murders 

until "the police came to the apartment [during which] he has no recollection of what he 

did." (Sept. 5, 2017 Tr. at 1071.) 

{¶ 73} Dr. Reardon described dissociation as "a way of escaping when there's no 

escape. The mind simply shuts down psychologically when there's no escape physically 

from the situation or the circumstances." (Sept. 5, 2017 Tr. at 1073.) He rejected the notion 

that it was "convenient" or the product of free will: "it's not something that you do. It's 

something that people experience." (Sept. 5, 2017 Tr. at 1072-73.) Dr. Reardon recounted 

other times that Montgomery's description of his experiences indicated dissociation, 

including the sexual assault at the age of four, and when he physically assaulted C.D. "with 

no recall of having gone into that state at the time." (Sept. 5, 2017 Tr. at 1073-74.) 

{¶ 74} Dr. Reardon acknowledged during cross-examination he had read the 

summary of the interview with T.L. recounting that Montgomery had threatened to kill her 

and her children. His reaction was that Montgomery probably was not "a strong candidate 

for father of the year." (Sept. 5, 2017 Tr. at 1084.) Dr. Reardon later conceded that 

Montgomery "engaged in, without question, * * * probably numerous situations where he 

lost to varying degrees control and engaged in very maladaptive and destructive behavior 

towards the women that he was involved with." (Sept. 5, 2017 Tr. at 1086.) He agreed with 

the characterization of Montgomery as "a repeated domestic abuser" and that the original 

mitigation investigator's summary reported that C.D. had stated Montgomery beat her 

daily, although she did not say that to Dr. Reardon. (Sept. 5, 2017 Tr. at 1086-87.) Dr. 

Reardon did not believe that Montgomery would "have been dissociated during all of these 

incidents of [domestic] abuse," as the phenomenon "typically comes into play in the most 

difficult emotional circumstances." (Sept. 5, 2017 Tr. at 1087.) 

{¶ 75} Significantly, Dr. Reardon's testimony elaborated on cross-examination with 

regard to what Montgomery recalled about the night in question: "What he said was, I was 

in and out a little bit in the hallway; stabbed Tia in the eye; none of it seemed real; felt like 
No. 19AP-41 28 

I just snapped and lost it." Asked "[s]o he did remember part of the killing," Dr. Reardon 

answered: "He reported it to me. I don't know that he remembered it or didn't. Like I said, 

in my opinion, it would be very unusual. People don't go from a dissociated state to a lucid 

state and back and forth." (Sept. 5, 2017 Tr. at 1109.) Asked again "[w]ell, he remember[ed] 

stabbing Tia in his first interview," Dr. Reardon again responded: "He reported that to me." 

(Sept. 5, 2017 Tr. at 1110.) 

{¶ 76} Dr. Reardon opined that the "gruesomeness" of Montgomery's "horrible" 

crimes was "relevant" because "either you had to be really, really cold-blooded to do 

something like that [and] had to know exactly what you were doing * * * or you had to be 

really gone, out of control." (Sept. 5, 2017 Tr. at 1118-19.) He considered C.D.'s opinion 

that "she could see [Montgomery] going off on Tia, but [could not] in a million years see 

him killing his own son in the way that his son was killed" as "either powerful evidence that 

he's got us all fooled, and he knew exactly what he was doing, * * * or that he was in a highly 

dissociated state, [and] completely lost control" emotionally. In Dr. Reardon's opinion, it 

was the latter: "To me, that's powerful evidence that weighs in favor of him being in an 

incredibly dissociated state." (Sept. 5, 2017 Tr. at 1119.) 

{¶ 77} Dr. Reardon found it unsurprising that Montgomery "covered the faces of his 

victims" after killing them because "he probably couldn't bear to see their faces." (Sept. 5, 

2017 Tr. at 1119-20.) When asked about the fact that Montgomery "hid" Tia's car by parking 

it "at some distance away from her apartment building" after the murders, Dr. Reardon 

responded that this fact did not change his opinion about Montgomery's mental state: "if 

he's going to hide the car away, why did he stay there? Again, that's not what a logical 

murderer does." (Sept. 5, 2017 Tr. at 1120.) 

{¶ 78} Dr. Stinson also testified at the postconviction hearing. He has served as a 

mitigation specialist in "a dozen or more" capital cases, including Montgomery's initial 

case. (Aug. 24, 2017 Tr. at 488.) He describes his role in a capital case as advising "the 

attorneys on psychological factors that can be of mitigating value should the case ultimately 

get to a mitigation phase." (Aug. 24, 2017 Tr. at 489.) Dr. Stinson met with Montgomery 

five times, with "eight hours of actual face-to-face time," in 2011 and 2012. (Aug. 24, 2017 

Tr. at 494-95.) After his first meeting with Montgomery, Dr. Stinson flagged his "sex abuse 

history" as "an important mitigating factor" and "passed it along to the attorneys" with a 

recommendation that "they should enlist an expert in that area." (Aug. 24, 2017 Tr. at 498.) 
No. 19AP-41 29 

After "researching who would be the most suitable expert," Dr. Stinson recommended Dr. 

Fradkin to the attorneys. (Aug. 24, 2017 Tr. at 499.) After speaking with Dr. Fradkin, Dr. 

Stinson believed the sexual abuse history "was significant" and "communicated * * * to both 

attorneys" that it was mitigating evidence that should be presented in court. (Aug. 24, 2017 

Tr. at 500-01.) He also recommended a substance abuse expert based on the "strong family 

history of substance abuse," but such an expert was not retained. (Aug. 24, 2017 Tr. at 501.) 

{¶ 79} At a strategy meeting with the attorneys and the mitigation specialist, Dr. 

Stinson suggested that "Dr. Fradkin would be an expert on the sex abuse issues" and their 

"impact on a person's development and behavior," and that a substance abuse expert "could 

talk about the impact of drugs on brain development and the impact on subsequent 

behaviors," and he would be "a kind of general mitigation psychologist who would kind of 

put it all together." (Aug. 24, 2017 Tr. at 503.) 

{¶ 80} Dr. Stinson reviewed the report he prepared in 2012 which discussed the 

following mitigation factors: the developmental effect "of being exposed to drugs and 

alcohol in utero"; a family history of alcohol and substance abuse; family history of mental 

problems, as the children of mothers with psychiatric conditions "are likely to have some 

adverse developmental experiences"; "inadequate parenting," resulting in difficulties with 

"internal self-control, and that gets manifested in behavior problems through childhood, 

adolescence, and into adulthood," and emphasizing Montgomery's mother's record of 

"ineffectiveness at supporting the interventions that were being offered" or "sabotaging the 

efforts that were being put in place"; a childhood history of "witnessing domestic violence," 

resulting in "emotional problems [that] manifest behaviorally"; physical abuse and neglect, 

which also adversely impacts "emotional development, which gets manifest behaviorally"; 

a history of sexual abuse, for which Dr. Stinson "strongly encouraged bringing Dr. Fradkin 

on" to investigate; a history of "mental health * * * disorders," including Montgomery's 

diagnosis of depressive disorder, which presents as "irritability, which will manifest as 

anger and behavioral dyscontrol"; substance abuse problems, which Dr. Stinson believed 

"were strong mitigating factors" because Montgomery was "genetically predisposed" to 

them, as well as being "socially predisposed because he saw family members using" and 

introducing him to substance abuse; a history of "multiple head injuries," that Dr. Stinson 

opined would "have an adverse impact on his emotions and behaviors"; "residential 

mobility" due to "moving around a lot as a child" and "school instability," which is "an 
No. 19AP-41 30 

increased risk factor for drug and alcohol use, for academic failure, for legal problems"; a 

relatively stable employment history, which Dr. Stinson believed showed that Montgomery 

had "the ability under the right circumstances * * * to be productive and to be effective"; 

Montgomery's relationship with his children, as Dr. Stinson believed it was important "to 

point out that he had, in fact, tried to provide for his children, and his children perceived 

that they needed him in their lives"; and Montgomery's positive "adjustment to a structured 

setting of incarceration," which Dr. Stinson believed was "a strong mitigating factor." 

(Aug. 24, 2017 Tr. at 509-23.) 

{¶ 81} Dr. Stinson described the report he prepares as disclosing only "the general 

content, kind of an outline of what the content" of testimony will be, "and then the 

testimony [will] provide the opportunity to really share my expertise as a psychologist." He 

opined the report alone, "absent testimony," will not convey "the full details and the full 

context." (Aug. 24, 2017 Tr. at 524.) After submitting his mitigation report to Montgomery's 

attorneys and subsequently meeting with them, he "anticipated that [he] would be 

testifying at mitigation." (Aug. 24, 2017 Tr. at 528.) By May 5, 2012, he was "getting ready 

for testimony" by preparing a PowerPoint exhibit and organizing his files. On May 14, 2012, 

Dr. Stinson was informed he "would not be called as a witness." (Aug. 24, 2017 Tr. at 529.) 

{¶ 82} At the request of the OPD, Dr. Stinson conducted postconviction 

investigations and prepared reports summarizing his findings. Although he discovered 

"greater detail" concerning Montgomery's incarceration, he did not "uncover brand-new 

topics of mitigation" or "anything significantly new" to report. (Aug. 24, 2017 Tr. at 535-

37.) 

{¶ 83} Dr. Stinson agreed that if he had been called to testify at Montgomery's 

original mitigation hearing, he "would * * * have been able to testify to mitigating evidence," 

and "[w]ould * * * have been able to cite to factual sources" and "psychological literature or 

medical literature" that supported his opinions. He also agreed that "it [is] necessary to 

present both psychological testimony and fact witnesses' testimony in order to present a 

coherent, compelling mitigation narrative." (Aug. 24, 2017 Tr. at 538.) Dr. Stinson opined 

that without both lay and expert testimony, "you don't get a complete picture." Fact 

testimony alone "just tells you, you know, what has happened, but it doesn't give you any 

explanation for what that means in terms of child and adolescent development, adult 

behavior." There is no "information" regarding the way the facts "impact on brain 
No. 19AP-41 31 

development" or "affect interpersonal relationships. * * * [W]ithout that extra scientific 

understanding of the impact of the factual information, I think you don't get the mitigating 

value. You just get, you know, facts and information." (Aug. 24, 2017 Tr. at 539.) 

{¶ 84} Gwendolyn Turner, an FCCS caseworker who was assigned to Montgomery's 

family's case in the 1980's, also testified. FCCS "became involved" with the Montgomery 

family "because the mother was employed at the time and was having issues with child care, 

and she was leaving him alone in the car when she would go to work." Eventually, "other 

allegations came out of a sexual abuse nature." (Aug. 24, 2017 Tr. at 585.) The allegations 

concerned "three male juveniles," and no police report was made or counseling received by 

the family. Montgomery's mother, Carol, reported to Turner that he "had actually been 

molested by an adult male that was not reported" and vowed to deny the accusation if 

Turner reported it to anyone. Carol's plan was to find a deceased person in the obituaries 

of the paper who "resembled the person that reportedly had molested" Montgomery so that 

she could "show him the picture and basically say, 'See? He got his. It's over. Your life can 

go on. He can't hurt you or anybody else.' " (Aug. 24, 2017 Tr. at 586.) 

{¶ 85} Turner believed that Carol "was attempting to provide housing and the basic 

needs for her child," but she "was really struggling." Turner "felt that she was a loving and 

caring mother but that they had secrets." (Aug. 24, 2017 Tr. at 587.) After the disclosure 

of the molestation, Turner recommended Montgomery "really need[s] to be in counseling" 

and be involved in "extracurricular activities" like sports to expose him to other children, 

but Carol was "resistive to all of that." (Aug. 24, 2017 Tr. at 588.) Carol "was not 

cooperative at all" with Turner's case plan, and the "lack of cooperation" and Montgomery 

"being left alone" resulted in his placement at Franklin Village as a juvenile. (Aug. 24, 2017 

Tr. at 588-89.) Carol "flip-flopped a lot" about admitting that Montgomery engaged in 

"negative behaviors," and would "always" blame the molestation for his behaviors but 

remain resistant to counseling. (Aug. 24, 2017 Tr. at 590.) After Montgomery was placed 

in Franklin Village, there were times he was eligible to come home for weekends or holidays 

but Carol would "frequently make up excuses as to why he couldn't come home" or would 

not pick him up. (Aug. 24, 2017 Tr. at 591.) 

{¶ 86} Turner received reports from Franklin Village that Montgomery "was very 

withdrawn, not interacting well with the rest of the kids," and engaged in "minor fights." 

(Aug. 24, 2017 Tr. at 599.) She was "somewhat surprised" when he was placed in the sex 
No. 19AP-41 32 

offender program there, as she "never had information that he had perpetrator tendencies"; 

she believed it was a result of "the unresolved sexual molestation that he never resolved in 

counseling." (Aug. 24, 2017 Tr. at 599-600.) The family's case was eventually closed "for 

lack of cooperation." (Aug. 24, 2017 Tr. at 601.) On cross, Turner acknowledged 

Montgomery's history of "serious behavioral problems" at Franklin Village, including 

sexually acting out, fighting, and running away. (Aug. 24, 2017 Tr. at 613-15.) 

{¶ 87} C.D.'s son, C.X.D., lived with Montgomery when the latter was dating his 

mother. During the years he lived with Montgomery, he considered him "a second father 

in a way." Montgomery helped him with homework and they would spend time together 

on the weekends "playing video games or just hanging out." (Aug. 24, 2017 Tr. at 634.) 

Montgomery treated C.X.D. like his own son, and C.X.D. agreed that he loved Montgomery 

like a father. (Aug. 24, 2017 Tr. at 636.) 

{¶ 88} C.X.D. witnessed his mother and Montgomery fighting, both physically and 

verbally. Whenever he would see "a situation escalating," he would "try not to be around" 

and "make sure that the [other] kids were not around, if that was to happen." (Aug. 24, 

2017 Tr. at 638.) C.X.D. saw Montgomery "acting violently" at times, precipitated by 

"verbal arguments" between his mother and Montgomery, who "would snap or just go * * * 

crazy" and "would lose it." He stated Montgomery drank on the weekends and smoked 

marijuana "[h]eavily." (Aug. 24, 2017 Tr. at 639.) 

{¶ 89} C.X.D. recalled "two really bad episodes." (Aug. 24, 2017 Tr. at 639.) The 

first occurred when he was "probably 12," when Montgomery arrived home in a vehicle with 

"a blown-out tire on the back right side," "came stumbling inside and then slammed the 

door," and "shortly after," C.X.D. heard arguing and the sound of "plates being tossed." He 

came downstairs and saw his mother and Montgomery "tangled up together" fighting, 

resulting in his mother having a "cut on her back side pretty bad." (Aug. 24, 2017 Tr. at 

641.) Montgomery was "sweating a lot" and "looked delusional." (Aug. 24, 2017 Tr. at 642.) 

{¶ 90} During the second incident, C.X.D. was in his room when the fight began. His 

mother "ended up putting [Montgomery] through a glass table," and she called police, who 

had to physically restrain Montgomery. (Aug. 24, 2017 Tr. at 642.) C.X.D. testified 

Montgomery never physically abused him or any of the children. (Aug. 24, 2017 Tr. at 643.) 

{¶ 91} C.D. testified she and Montgomery were together for seven or eight years. 

Montgomery used alcohol and smoked marijuana, and he did so with his mother. He 
No. 19AP-41 33 

physically abused C.D. "[m]aybe once, twice a month" during their relationship. During 

the "not-as-bad times," C.D. "would get shoved, you know, probably smacked down to the 

floor." She would "shove him back," but then try to stop if he would shove her harder. 

(Aug. 24, 2017 Tr. at 664.) 

{¶ 92} During their relationship, there were probably "four or five" incidents of 

extreme abuse. C.D. recounted Montgomery "would, like, choke me, like, really choke me." 

Montgomery's "whole head would just, you know, shake," and "his eyes would get big." She 

recounted that "one of his eyes would look [in] the other direction just a little bit, * * * like 

a little cockeyed" and "crazy looking." (Aug. 24, 2017 Tr. at 665.) She described it as "a 

whole transformation." During the abuse, C.D. would be "trying to fight to breathe" and 

"saying his name out, like, oh, my God. Let me go. It was the most scariest thing I had ever 

seen in my life." (Aug. 24, 2017 Tr. at 665-66.) "It was like the lights were on and nobody 

was home." Montgomery would not respond to his name, and it appeared that "just a 

different person * * * was emerging. It was so scary." (Aug. 24, 2017 Tr. at 666.) 

{¶ 93} The first time Montgomery choked C.D. she "passed out" and "was on the 

floor." While she "was waking up from being choked," she saw him standing over her, "and 

he was pacing, like, over back and forth on top" of her while "he was having a conversation 

with himself." (Aug. 24, 2017 Tr. at 666.) Montgomery "was talking to himself and 

answering his questions," each in "a different voice." (Aug. 24, 2017 Tr. at 667.) "He was 

going, 'I don't know why she made me do that. I don't know why she made me do that.' 

Then another voice came and said, 'She's crazy. You don't understand,' you know, doing 

some, like, crazy voices." C.D. stayed on the floor with her eyes closed out of fear that "he 

might choke [her] again." She peeked at Montgomery and saw that "[h]is face [was] doing 

all this distorted stuff" while "he was talking and answering questions back." (Aug. 24, 2017 

Tr. at 667.) One voice was "like a squeaky pitched voice. The other one was more of a 

deeper voice." (Aug. 24, 2017 Tr. at 668.) When she saw Montgomery the next day, he did 

not seem to know what had happened. C.D. told him what happened and he gave her "a 

puzzled look," then shook his head, held her, and apologized. (Aug. 24, 2017 Tr. at 669.) At 

that point, C.D. realized "there was something wrong with him." (Aug. 24, 2017 Tr. at 670.) 

{¶ 94} C.D. described another incident on a day that "was going good" until 

Montgomery had "an episode, like, out of nowhere." (Aug. 24, 2017 Tr. at 671.) 

Montgomery "snapped. He went into a rage." As C.D. tried "to get away," Montgomery 
No. 19AP-41 34 

grabbed her. She could "see that thing happening again. His head was trembling" and his 

eyes were "all over the place; they were big." She protested that she could not breathe, but 

he seemed not to hear her. "Then he slammed [her] down to the floor, and he started 

choking [her]." (Aug. 24, 2017 Tr. at 672.) C.D.'s eight-year-old daughter "flew down the 

stairs," then "jumped on his back, and she bit his ear," at which point he "snapped out of 

it." (Aug. 24, 2017 Tr. at 672-73.) 

{¶ 95} C.D. testified that Montgomery "was depressed," and "would talk to himself" 

using different voices. (Aug. 24, 2017 Tr. at 674.) She urged him to get help, but he did not, 

and "smoked weed" everyday instead. (Aug. 24, 2017 Tr. at 674, 676.) Montgomery told 

C.D. about two incidents of sexual abuse. She testified she would have told his trial 

attorneys or any experts about the sexual abuse if they had asked, and would also have 

testified. 

{¶ 96} C.D. had been interviewed before the trial date, apparently by mitigation 

specialist Heiby. C.D. reviewed a report of the interview prepared by Heiby and contested 

some of its contents. C.D. stated that Montgomery "did not beat [her] every day. Okay? 

That did not happen." (Aug. 24, 2017 Tr. at 683.) She also stated she never used "the words 

'higher than a kite' " or that Montgomery "didn't like [her] feeling empowered. I never said 

anything like that." (Aug. 24, 2017 Tr. at 684.) 

{¶ 97} When cross-examined, C.D. agreed that when Montgomery choked her, he 

had "strangled" her to the point of unconsciousness; that she was "lucky [to be] alive when 

the police took too long to get there"; and that in the most extreme four or five incidents of 

abuse, she had been "worried about [her] life." (Aug. 24, 2017 Tr. at 692.) During another 

incident when Montgomery "had that rage," he "broke the wall" with C.D.'s body. (Aug. 24, 

2017 Tr. at 693.) Montgomery hit her head "with a closed fist," knocked her "to the floor," 

and C.D. felt her "brain shake." (Aug. 24, 2017 Tr. at 700.) "[O]nce or twice," C.D. thought 

Montgomery might kill her. (Aug. 24, 2017 Tr. at 693.) She described as a "ballpark" figure 

Montgomery beating her once or twice a month. "There [were] times that he had that 

crazed look, and there were times that it was * * * just a regular, normal face." (Aug. 24, 

2017 Tr. at 699.) 

{¶ 98} Thomas, one of the Franklin Village employees who testified at 

Montgomery's original mitigation hearing, testified again during the postconviction 

hearing. She described meeting Montgomery's attorney after seeing the case on the news 
No. 19AP-41 35 

and contacting the attorney. Thomas did not have access to Montgomery's psychological 

records at Franklin Village, so she did not discuss those issues with Montgomery's attorney. 

{¶ 99} Brown, the other Franklin Village employee who had previously testified, also 

returned to testify at the postconviction hearing. Brown stated he had come forward to 

testify because he wanted the panel to hear how he remembered Montgomery as a juvenile, 

and that "[h]e was a great kid." (Sept. 5, 2017 Tr. at 1143.) When Brown worked there, he 

was not aware of Montgomery's history of sexual abuse, or any of the problems in his home 

life. Brown described several disturbing incidents at Franklin Village, including a child 

being sexually abused by an employee with no repercussions and "supervisors physically 

abusing kids." (Sept. 5, 2017 Tr. at 1150-52.) As at the original mitigation hearing, Brown 

had been "truly surprise[d]" to hear that Franklin Village records detailed Montgomery had 

discipline problems there. (Sept. 5, 2017 Tr. at 1165.) 

{¶ 100} Major Paul Bryant, who has worked for the Franklin County Sheriff's Office 

for 20 years, supervised the "control area" of the main jail for 18 and one-half years where 

visitors are "cleared to come in." (Aug. 25, 2017 Tr. at 724-26.) He testified the standard 

policy was to log professional visits "both in the computer system and in the handwritten 

sign-in logs." (Aug. 25, 2017 Tr. at 730-31.) Major Bryant reviewed the visitation record 

for Montgomery from 2010 to 2012, which he considered the most accurate record of the 

visits Montgomery received, and stated it was "impossible" that Montgomery received "a 

dozen or more" professional visits that were not reflected on the record. (Aug. 25, 2017 Tr. 

at 733.) 

{¶ 101} Donald Malarcik is a criminal defense attorney who is certified for death 

penalty representation and has pursued specialized training in that area since 1997. 

Malarcik considers the 2003 American Bar Association ("ABA"), guidelines for death 

penalty cases and the 2008 supplemental guidelines on mitigation to be "the prevailing 

standards and norms within the defense bar for capital litigants," and agreed that "any 

capital defense counsel would have read and been familiar" with both publications in 2011. 

(Aug. 25, 2017 Tr. at 754.) In his opinion, "these guidelines set the standard for the 

professional norms in capital representation." (Aug. 25, 2017 Tr. at 755.) 

{¶ 102} Having reviewed the record of materials concerning Montgomery's trial 

representation, Malarcik opined that "the representation that he received fell well below 

the professional norms expected of counsel in capital cases." (Aug. 25, 2017 Tr. at 761.) 
No. 19AP-41 36 

Malarcik faulted Montgomery's trial attorneys for not "developing a trust relationship" with 

their client, noting "there were large gaps of time where counsel did not see Mr. 

Montgomery." (Aug. 25, 2017 Tr. at 762-63.) He also criticized them for "not spend[ing] 

significant amounts of time necessary to develop a trust relationship with key mitigation 

witnesses," as indicated by Weisman's testimony that some of them met "for the first time 

the week before trial." (Aug. 25, 2017 Tr. at 763-64.) According to Malarcik, this led to a 

failure of witnesses to detail the family's problems with substance abuse and violence and 

an inaccurate portrayal of Montgomery's relationship with his mother. He considered this 

lapse "doubly damaging" because in addition to "not presenting key mitigation," what is 

presented instead is "a false picture." (Aug. 25, 2017 Tr. at 767.) Malarcik opined that the 

level of investigation and preparation did not satisfy the constitutional standards for the 

presentation of mitigating evidence set forth by the United States Supreme Court in 

Wiggins v. Smith, 539 U.S. 510 (2003), or Skipper v. S. Carolina, 476 U.S. 1 (1986). He 

stated his opinion was also based on trial counsel's failure to present jail records or 

testimony of correction officers to show that Montgomery had "adjusted well to 

incarcerated life," which he considered "compelling mitigation" evidence. (Aug. 25, 2017 

Tr. at 769.) 

{¶ 103} Malarcik contended that Montgomery's counsel was ineffective for not 

presenting the expert testimony of mental health experts during mitigation. He identified 

a number of "red flags" that he believed were indicative of the need for such testimony: 

Montgomery's report of "hearing voices," his anti-psychotic medication regimen, lay 

witnesses' reports of his "abnormal behavior," and his history of sexual abuse and substance 

abuse. (Aug. 25, 2017 Tr. at 776-78.) In Malarcik's opinion, expert testimony would "create 

a nexus between all of these acts, all of these facts, all of these activities and how they are 

and why they are compelling, strong mitigation." (Aug. 25, 2017 Tr. at 778.) 

{¶ 104} In addition, Malarcik believed that Montgomery's trial counsel was 

ineffective during the mitigation presentation itself. He faulted Weisman for not 

emphasizing "Montgomery's acceptance of responsibility in his pleading guilty" as a theme. 

(Aug. 25, 2017 Tr. at 779.) He also criticized the attorneys for only mentioning 

Montgomery's childhood sexual abuse "in opening statement" and "during closing 

argument," with no "witnesses to talk about this sexual assault" and no "expert witnesses 

to talk about the effects of untreated sexually abused victims." (Aug. 25, 2017 Tr. at 779-
No. 19AP-41 37 

80.) Malarcik found it "concerning and troubling" that "the only evidence of the sexual 

assault of Montgomery came in through Joint Exhibit 1 and 2" and that "trial counsel 

initially objected to the admissibility of those records." (Aug. 25, 2017 Tr. at 780.) Malarcik 

was also critical of questioning witnesses as to whether they believed Montgomery was "a 

good person" because it opened the door to the admission of evidence of prior bad acts.

(Aug. 25, 2017 Tr. at 784-85.) The defense had failed to file a motion in limine on that issue, 

and prosecutors were "able to question these witnesses about prior acts of physical violence 

* * * against women in his life and get into specific details of the facts of the Aggravated 

Murder." (Aug. 25, 2017 Tr. at 785.) 

{¶ 105} Malarcik criticized the decision to waive a jury and present the mitigation 

case to a three-judge panel. Calling it "a mistake," he stated he would have "talk[ed] to the 

jury in voir dire," been "open and honest with them" about mitigation, with the goal of 

"maximiz[ing] the impact of your client's acceptance of responsibility." (Aug. 25, 2017 Tr. 

at 788.) He emphasized the ABA guidelines counsel not to "waive the jury without an 

agreement," and noted "statistics" that he said show capital defendants more regularly get 

life sentences from juries than from three-judge panels. (Aug. 25, 2017 Tr. at 789-90.) 

{¶ 106} The defense also presented Dr. Clemens Bartollas, an expert in the juvenile 

justice system. By the late 1980's, the "pendulum had swung a hundred and eighty degrees 

from the rehabilitation [orientation] to [being] very punishment oriented." (Aug. 25, 2017 

Tr. at 856.) Dr. Bartollas worked at and did studies at the maximum security juvenile 

facility Training Institute of Central Ohio ("TICO"), and performed "assessments" of the 

Training Center for Youth ("TCY") where Montgomery was housed. (Aug. 25, 2017 Tr. at 

857-59.) Dr. Bartollas described an environment of dormitory housing where "younger 

kids were taken advantage of" by older children with inadequate oversight by staff. 

(Aug. 25, 2017 Tr. at 865-66.) From reports of residents, "TCY was as difficult as TICO." 

(Aug. 25, 2017 Tr. at 868.) 

{¶ 107} After reviewing Montgomery's juvenile records, Dr. Bartollas opined the 

Franklin Village employees who testified at Montgomery's trial, Thomas and Brown, were 

"individuals [who] cared for [him], and they formed a relationship with him, and he 

responded to that." With "more of that type of support his response could have been much 

different." (Aug. 25, 2017 Tr. at 868.) In TICO, where Dr. Bartollas worked, staff members 

"frequently were involved in victimization," and there was a "mentality" that "was 
No. 19AP-41 38 

particularly true of African-American staff with African-American inmates" that one had to 

"protect himself" and that "to be a man," one had to "stand up for yourself." (Aug. 25, 2017 

Tr. at 869.) 

{¶ 108} Dr. Bartollas opined that "the State did not do a good job" with Montgomery 

as a juvenile. (Aug. 25, 2017 Tr. at 870.) "In the late eighties, he would not have received 

effective treatment anywhere for being a sexual [abuse] victim. That was not considered at 

that time." (Aug. 25, 2017 Tr. at 872.) The sexual perpetrator programs in existence then 

would not have "effectively counseled" Montgomery, as they were just "starting to develop" 

and "were not sophisticated." (Aug. 25, 2017 Tr. at 873.) Dr. Bartollas disagreed with a 

request in the records prepared by FCCS asking to have Montgomery placed in a more 

secure juvenile facility in order to "increase * * * his anxiety level" to make him "more 

responsive to treatment." (Aug. 25, 2017 Tr. at 875-76.) According to Dr. Bartollas, with 

"the most-difficult-to-handle kids," increasing anxiety would "reduce their performance"; 

hence, the goal was "to reduce anxiety, not increase it." (Aug. 25, 2017 Tr. at 876.) In his 

opinion, Montgomery "needed support," not a "punishment-related system" like the one he 

was housed in. (Aug. 25, 2017 Tr. at 876-77.) 

{¶ 109} Montgomery also testified on his own behalf. He described the sexual 

assault he experienced when he was four, as well as the subsequent experiences. (Sept. 5, 

2017 Tr. at 962-64.) He also described his mother hitting him "with an extension cord or a 

switch" whenever he "got into trouble," which he said happened "once or twice a week." 

(Sept. 5, 2017 Tr. at 965.) He described being sent to Franklin Village by his mother, and 

how his mother introduced him to marijuana at the age of 12. 

{¶ 110} Montgomery stated he had been dropped off at his apartment the night of 

the killings after he finished selling crack for the evening. Initially when asked what he 

remembered about the night, he stated: "Just blacking out and, when I came to, everybody 

was dead." (Sept. 5, 2017 Tr. at 980.) He recalled, however, that in the apartment, while 

the children were asleep, he "started smoking marijuana[,] two blunts." Then, he stated he 

recalled being mad at Tia and remembered her arriving home, "[j]ust her getting in the door 

and me blacking out." (Sept. 5, 2017 Tr. at 982.); see also ("I just remember her getting in 

the door."). (Sept. 5, 2017 Tr. at 1041.) On cross-examination, he testified that when Tia 

entered the apartment, there "[w]asn't no argument." (Sept. 5, 2017 Tr. at 1043.) He 

repeated: "No argument." "Q. You just started stabbing her? A. I guess, yes," adding later 
No. 19AP-41 39 

he did not recall. (Sept. 5, 2017 Tr. at 1043-44.) Montgomery also testified that Dr. 

Fradkin's note that he stated "[b]efore he killed Tia, he told her he had * * * anal sex with 

[X.X.]" related not to the night of the killings but to "the week prior." (Sept. 5, 2017 Tr. at 

986.) Montgomery testified the voice on the 9-1-1 tape was that of Tia's daughter, Tahlia. 

He also stated he did not end that call. 

{¶ 111} Montgomery stated that on emerging from what he said was the blackout, 

he took a shower to rid himself of the "blood on my hands and everywhere." (Sept. 5, 2017 

Tr. at 988.) Then he took Tia's car to procure "more drugs" to numb himself because "I 

kn[e]w I had d[one] it." (Sept. 5, 2017 Tr. at 989.) Upon his return, he hid the car. He 

stated he remembers "trying to take my own life" just before the police came in. (Sept. 5, 

2017 Tr. at 991.) He had blacked out in the past, he admitted, with C.D. and T.L., as well as 

with Tia. Although he knew he had hurt people during the blackouts before, he did not 

think he "was capable" of killing anyone during a blackout. (Sept. 5, 2017 Tr. at 994.) 

{¶ 112} Montgomery asserted his trial attorneys never explained to him the 

ramifications of not pleading guilty, or going before a jury instead of a three-judge panel. 

He agreed he "trusted them" when he took their advice to waive the jury, but would not 

have gone to the three-judge panel had he understood the consequences then. (Sept. 5, 

2017 Tr. at 1003-04.) He stated, too, that he was not seeking at the postconviction hearing 

to contest his guilt or to avoid responsibility. He asserted that in his pretrial interview with 

Dr. Fradkin, he was "open," felt comfortable, and told the doctor everything he needed to 

know. (Sept. 5, 2017 Tr. at 1034-35.) 

D. Trial Court's Postconviction Decision 

{¶ 113} In a decision issued December 31, 2018, the trial court ruled Montgomery 

had received ineffective assistance of counsel during the mitigation phase and that he 

therefore is "entitled to a new mitigation/sentencing phase." (Postconviction Decision at 

70.) The trial court rejected Montgomery's argument that he received ineffective assistance 

of counsel during the trial itself. The state has appealed and Montgomery has crossappealed from those respective rulings. 

{¶ 114} "As a threshold matter," the trial court noted Montgomery's "jury waiver 

and guilty plea were the subject of his direct appeal to the Supreme Court of Ohio," and that 

"the Ohio Supreme Court specifically held, after reviewing the colloquies surrounding 

Defendant's jury waiver and guilty plea, that the same were voluntary, knowing and 
No. 19AP-41 40 

intelligent." (Postconviction Decision at 60.) Quoting from the Supreme Court, the trial 

court noted that Montgomery had "affirmed that his counsel had explained that by waiving 

a jury, he was electing not to have 12 people determine his guilt but was electing instead to 

have a panel of 3 judges decide his guilt and, if necessary, punishment." (Postconviction 

Decision at 60, quoting Montgomery, 2016-Ohio-5487, at ¶ 25.) Montgomery had 

"acknowledged that his attorneys had reviewed the written plea form with him before he 

signed it, had been 'diligent and effective' in representing him and in trying to act in his best 

interests, had informed him of his options, and had allowed him to make the decision as to 

whether to plead guilty or go to trial." (Postconviction Decision at 61, quoting 

Montgomery, 2016-Ohio-5487, at ¶ 39.) 

{¶ 115} Then, in any event, and applying Strickland v. Washington, 466 U.S. 668 

(1984), the trial court rejected Montgomery's postconviction claim that he received 

ineffective assistance of counsel during the trial phase when he accepted his counsel's 

recommendation to waive a jury trial and plead guilty. The trial court noted the ABA 

guidelines for death penalty representation are "merely guides and not determinative of the 

issues in this case," and found the strategic reasons given by Weisman "to follow a 'plead 

and panel' strategy," when taking into account "[t]he facts of this case," were not 

unreasonable. (Postconviction Decision at 62-63.) The trial court noted: 

The facts of this case are particularly gruesome. The evidence 

presented prior to the panel's acceptance of Defendant's guilty 

plea demonstrated that Defendant slit the throats of the 

victims with a knife, almost decapitating two-year-old Tyron. 

Hundreds of color photographs depicting the bloody crime 

scenes and victims were available to the State to present its 

case surrounding Defendant's guilt. In light of the same, it is 

not unreasonable for counsel to have advised a strategy 

whereby the prolonged presentation of such gruesome 

evidence would be avoided. It is also not unreasonable or 

outside the wide range of reasonable professional assistance 

to believe that experienced judges, who have presided over 

thousands of criminal cases over their respective careers, 

including other gruesome capital cases, would not be as 

swayed by such evidence as inexperienced jurors who may be 

much more easily guided by their emotions under the 

circumstances. Likewise, it is not unreasonable to believe that 

the judges would view a guilty plea as the Defendant taking 

responsibility and showing remorse, and that those factors 

would be considered and weighed against the death penalty in 

determining the appropriate sentence. 
No. 19AP-41 41 

(Postconviction Decision at 63.) 

{¶ 116} Moreover, the trial court found that even if that strategy was unreasonable, 

Montgomery's claim failed the prejudice prong of Strickland because "[g]iven the 

overwhelming evidence of his guilt," there was no probability that a plea of not guilty would 

have led to acquittal. (Postconviction Decision at 63-64.) 

{¶ 117} The trial court did, however, agree with Montgomery on his claim asserting 

ineffective assistance of counsel during the sentencing phase. Recognizing that "the 

aggravating factors were extreme," the trial court focused on the mitigation side and 

particularly on the fact that no expert witnesses had been called to testify. (Postconviction 

Decision at 66.) 

While trial counsel had retained two knowledgeable and 

capable psychologists who could have provided the expert 

testimony to help the fact finders understand the 

relationships between [Montgomery's] untreated childhood 

traumas and his actions as an adult, trial counsel chose not to 

present that expert testimony to the three-judge-panel. 

Notably, when those experts testified during the 

postconviction evidentiary hearing, they explained the basis 

for their observations and opinions, and provided a much 

more detailed picture of the trauma throughout 

[Montgomery's] childhood and how that impacted his adult 

life. 

(Postconviction Decision at 65.) 

{¶ 118} "The lay witness testimony presented to the three-judge-panel established, 

for the most part, what happened to [Montgomery]," the trial court found. (Postconviction 

Decision at 67.) Although then equivocating somewhat that "there was no lay witness 

testimony to establish [Montgomery's] childhood sex abuse trauma,"1 the decision 

concluded that "even if it were assumed that sufficient lay witness testimony was presented 

with respect to what happened to [Montgomery], there was no expert testimony—whether 

live or via video—to explain how what happ[en]ed to [Montgomery] as a child impacted 

him later in life." (Postconviction Decision at 67.) 

 

1 Compare June 6, 2012 Sentencing Opinion at 5 and fn. 6, detailing evidence of Montgomery having been 

raped at the age of 4. 
No. 19AP-41 42 

{¶ 119} The court found: "[T]he failure to present any such expert testimony in this 

case fell outside the wide range of reasonable professional assistance." (Emphasis sic.) 

(Postconviction Decision at 67.) The decision continued: 

The Court finds it was not reasonable, even when viewing the 

facts not with the benefit of hindsight but as of the time of 

counsel's conduct, to not present a single expert to testify 

about [Montgomery's] untreated childhood trauma–not only 

in terms of the sexual abuse but also the suffering and 

witnessing of physical abuse, the substance abuse, and the 

familial mental health problems–and explain how all of that 

impacted his brain development, his personal relationships 

and his adult life. Likewise, the Court finds it was not 

reasonable to further investigate into and provide a single 

expert witness to explain [Montgomery's] dissociation during 

a number of instances throughout his life, including possibly 

during the commission of the crimes. 

(Postconviction Decision at 67-68.) 

{¶ 120} Having thus found ineffective assistance of counsel in the failure to call even 

one expert witness, the trial court then analyzed whether Montgomery had made a 

sufficient showing of prejudice. The trial court determined it was "not convinced that the 

current mitigation presentation [from the postconviction hearing] would not have created 

a reasonable probability of a different outcome." (Postconviction Decision at 69.) 

{¶ 121} After observing again that "[t]he murders involved in this case were heinous 

and the aggravating circumstances most definitely weighed in favor of the death penalty," 

the trial court then stated regarding the prejudice prong: 

However, since the expert testimonies of at the very least 

Stinson and Fradkin were not presented, and since those 

testimonies would have connected the dots and explained the 

significance and impact of the trauma throughout Defendant's 

life on his mental health and conduct–and would have done 

so in a qualified and professional manner, unlike that of any 

of the other witnesses who testified and unlike that of the 

judges on the panel–the undersigned [judge] cannot 

conclusively state that there is no reasonable probability that 

the panel would have reached a different conclusion had the 

experts testified during mitigation. 

(Postconviction Decision at 69.) 

{¶ 122} The state has filed a timely notice of appeal and Montgomery has filed a 

cross-appeal. 
No. 19AP-41 43 

II. Assessment of the Assignments of Error 

{¶ 123} The state presents the following five assignments of error: 

[I.] THE TRIAL COURT ERRED IN FAILING TO PROVIDE 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

SPECIFICALLY RULING ON EACH POST-CONVICTION 

CLAIM. 

[II.] THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION IN FAILING TO SPECIFICALLY DENY CLAIM 

NO. 8. 

[III.] THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION UNDER THE FIRST PRONG OF THE 

INEFFECTIVENESS STANDARD AS A REASONABLE 

COUNSEL COULD DECIDE NOT TO PRESENT EVIDENCE 

FROM AN EXPERT THAT WOULD INCLUDE 

SUBSTANTIAL NEGATIVES ABOUT DEFENDANT. 

[IV.] THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION UNDER THE SECOND PRONG OF THE 

INEFFECTIVENESS STANDARD AS THE AGGRAVATING 

CIRCUMSTANCES WERE OVERWHELMING AND THE 

PROFFERED MITIGATION THEORIES CONTAIN 

DUBIOUS AND NOTABLE FLAWS. 

[V.] THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION UNDER THE SECOND PRONG OF THE 

INEFFECTIVENESS STANDARD BY EMPLOYING THE 

WRONG STANDARD. 

Montgomery's cross-assignments of error: 

[I.] THE TRIAL COURT ERRED IN DENYING 

MONTGOMERY'S CLAIM THAT TRIAL COUNSEL WERE 

INEFFECTIVE DURING THE TRIAL PHASE OF HIS 

CAPITAL PROCEEDINGS (NINTH GROUND FOR RELIEF). 

[II.] THE TRIAL COURT ERRED IN DENYING 

MONTGOMERY'S CLAIM THAT HIS RIGHTS TO DUE 

PROCESS AND EQUAL PROTECTION WERE VIOLATED 

BY HIS DISPROPORTIONATE SENTENCE (EIGHTH 

GROUND FOR RELIEF). 
No. 19AP-41 44 

III. ANALYSIS OF THE ASSIGNMENTS OF ERROR 

 A. The State's First Assignment of Error 

{¶ 124} The state argues in its first assignment of error: "The trial court erred in 

failing to provide findings of fact and conclusions of law specifically ruling on each postconviction claim." (State's Appellate Brief at vi.) The state argues the trial court failed to 

comply with R.C. 2953.21(H) by failing to rule individually on each of the 14 claims 

presented in Montgomery's petition. The state describes the trial court's decision as 

imprecise and "vague," resulting in a decision so deficient that it lacks the status of a final 

appealable order. (State's Appellate Brief at 3.) 

{¶ 125} The state correctly observes the trial court's decision "never itemized the 14 

claims and did not * * * specifically rule on each claim," but such organizational precision—

while may be desirable for clarity and in aid of review—is not necessarily required by the 

relevant portion of the governing statute so long as the grounds for the relief actually 

accorded are apparent along with the rationale for denying claims. (Emphasis sic.) (State's 

Appellate Brief at 5.) 

{¶ 126} R.C. 2953.21(H) recites: "If the petitioner has been sentenced to death, the 

findings of fact and conclusions of law [on a motion for postconviction relief] shall state 

specifically the reasons for the finding of grounds for granting the relief, with respect to 

each claim contained in the petition." The Supreme Court has instructed that "[a] trial court 

need not discuss every issue raised by [defendant] or engage in an elaborate and lengthy 

discussion in its findings of fact and conclusions of law. The findings need only be 

sufficiently comprehensive and pertinent to the issue to form a basis upon which the 

evidence supports the conclusion." State v. Calhoun, 86 Ohio St.3d 279, 291-92 (1999), 

citing State v. Clemmons, 58 Ohio App.3d 45, 46 (2d Dist.1989). Moreover, although "the 

trial court need not specifically designate parts of its decision as 'Findings of Fact' and 

'Conclusions of Law,' the underlying rationale for the trial court's decision must be 

sufficiently clear to allow for meaningful appellate review." State v. Davis, 10th Dist. No. 

08AP-679, 2009-Ohio-1666, ¶ 10. 

{¶ 127} In this case, the first 56 pages or so of the trial court's 70-page decision set 

out the salient facts as the trial court saw them, and the last 10 pages or so ruled on the two 

overarching assertions of ineffective assistance of counsel that Montgomery raised: one 

group of claims concerning his guilty plea and the other concerning his mitigation hearing. 
No. 19AP-41 45 

The trial court set forth its reasons for rejecting the former assertions and granting relief 

with regard to the latter. 

{¶ 128} As we have described, the trial court did make intelligible the basis for its 

ruling that Montgomery had been deprived of the effective assistance of counsel with regard 

to mitigation: counsels' performance was deficient because the lawyers should have 

adduced "the expert testimonies of at the very least Stinson and Fradkin," and the trial court 

found prejudice because it could not "conclusively state that there is no reasonable 

probability that the panel would have reached a different conclusion had the experts 

testified during mitigation." (Postconviction Decision at 69.) That recitation seems to us 

sufficiently detailed and clear "to allow for meaningful appellate review." Davis at ¶ 10. See 

also State v. Yates, 8th Dist. No. 91580, 2009-Ohio-609, ¶ 17 (a trial court's decision that 

"merged its discussion" of two "interrelated * * * claims of ineffective assistance of counsel" 

both "fully addressed those claims and plainly satisfied the requirements" of the 

postconviction statute). 

{¶ 129} The trial court did not explicitly address Montgomery's claim of 

disproportionate sentencing but, as explained below, that claim was subject to res judicata 

and we find no error under R.C. 2953.21(H) for what both parties agree was its denial; we 

need not send the case back to the trial court for resolution of this issue. In all other 

respects, while a more structured organizational approach to the trial court's decision 

probably would have been preferable to the form of the trial court's analysis, the trial court's 

decision is "sufficiently comprehensive and pertinent" to the claims raised by 

Montgomery's petition for our review. Calhoun at 291. 

{¶ 130} Montgomery argues the trial court's decision is "comprehensive, detailed, 

and pertinent to the issues presented," and submits that it enables us " 'to properly 

determine appeals.' " (Citation omitted.) (Montgomery's Cross-Appellate Response Brief 

at 25-26.) We agree the trial court's decision resolved the claims before it, and that the trial 

court did not err in failing to provide findings of fact and conclusions of law as claimed by 

the state. 

{¶ 131} Accordingly, we overrule the state's first assignment of error. 

 B. The State and Montgomery's Second Assignments of Error 

{¶ 132} We consider the parties' second assignments of error together as they both 

concern the trial court's handling of Montgomery's claim of disproportionate sentencing. 
No. 19AP-41 46 

The state argues in its second assignment of error the trial court erred and abused its 

discretion in failing to specifically deny the eighth claim for relief. Montgomery argues in 

his second assignment of error that the trial court erred in denying his claim that his rights 

to due process and equal protection were violated by his disproportionate sentence. 

{¶ 133} The parties agree the trial court effectively denied Montgomery's eighth 

claim for relief by failing to address it in its decision. 

{¶ 134} The claim, which asserted the death sentence violated Montgomery's due 

process and equal protection rights because it was disproportionate to sentences received 

by similarly situated capital defendants in Franklin County is without merit for several 

reasons. 

{¶ 135} First, Montgomery's argument that his due process rights were violated by 

the imposition of a disproportionate death sentence is barred by res judicata. "Under the 

doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was 

represented by counsel from raising and litigating in any proceeding, except an appeal from 

that judgment, any defense or any claimed lack of due process that was raised or could have 

been raised by the defendant at the trial, which resulted in that judgment of conviction, or 

on an appeal from that judgment." State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. Any 

constitutional argument concerning disproportionality in sentencing was required to have 

been raised in Montgomery's direct appeal. 

{¶ 136} Second, we note, and discuss further below, the Supreme Court did conduct 

a proportionality review of Montgomery's sentence during his direct appeal. Montgomery, 

2016-Ohio-5487, ¶ 189-91; R.C. 2929.05(A) ("In determining whether the sentence of 

death is appropriate, * * * the supreme court shall consider whether the sentence is 

excessive or disproportionate to the penalty imposed in similar cases."). 

{¶ 137} Montgomery argues his sentence was disproportionate to sentences 

imposed upon "similarly situated capital defendants in Franklin County, Ohio." 

Montgomery provides no explanation for why this argument could not have been raised 

during his direct appeal, as the data concerning capital defendants in Franklin County was 

a matter of public record at that time. See State v. Short, 2d Dist. No. 27399, 2018-Ohio2429, ¶ 111 (holding that petitioner's postconviction claim of a disproportionate death 

sentence compared with a life sentence imposed on a defendant in the same county was 
No. 19AP-41 47 

"barred by the doctrine of res judicata" because the "case was available for review" by the 

time the Supreme Court conducted the proportionality analysis during the direct appeal). 

{¶ 138} The Supreme Court held in Montgomery's direct appeal that "the death 

penalty is appropriate and proportionate for both children's murders when compared to 

death sentences approved in similar cases." Montgomery, 2016-Ohio-5487, at ¶ 189. The 

Supreme Court observed that it has "upheld death sentences for other child murders under 

R.C. 2929.04(A)(9) many times." (Citations omitted.) Id. at ¶ 190. "Moreover," continued 

the court, "we have previously upheld the imposition of death where the defendant was 

convicted of both the course-of-conduct specification under R.C. 2929.04(A)(5) and the 

escaping-detection specification under R.C. 2929.04(A)(3)." (Citations omitted.) 

11/09/2016 Case Announcements, 2016-Ohio-7677 (modifying ¶ 191 of Montgomery, 

2016-Ohio-5487). So Montgomery's point of contention here is not so much with the trial 

court as with the Supreme Court. Indeed, he specifically takes issue with the holding in 

State v. Steffen, 31 Ohio St.3d 111 (1987), paragraph one of the syllabus that "[t]he 

proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases 

already decided by the reviewing court in which the death penalty has been imposed." (See 

Montgomery's Cross-Appellate Brief at 19 (deeming Steffen unfair and irrational).) As an 

intermediate court, we are bound by the rulings of our Supreme Court.

{¶ 139} Finally, we note the state is not positioned to claim error arising from the 

trial court's failure to address Montgomery's proportionality claim, as the state suffers no 

prejudice on appeal by what all agree is the claim's effective denial. 

{¶ 140} Accordingly, we overrule the second assignments of error in the state's 

appeal and in Montgomery's cross-appeal. 

 C. The State's Third Assignment of Error 

{¶ 141} In its third assignment of error, the state argues the trial court erred and 

abused its discretion under the first prong of the ineffectiveness standard as reasonable 

counsel could decide not to present evidence from an expert that would include substantial 

negatives about the defendant. Citing the "immense negatives" that the defense's current 

preferred mitigation presentation would unavoidably present, the state argues that "[t]he 

mere existence of a 'mitigating' spin on defendant's history of murderous and violent 

behavior does not demonstrate that all reasonable counsel would have decided to pursue a 
No. 19AP-41 48 

wide-ranging presentation including a litany of counterproductive evidence, including 

years of domestic violence." (State's Cross-Appellee Brief at 14.) 

{¶ 142} When considering a claim of ineffective assistance of counsel, a trial court 

must apply the framework outlined in Strickland. Strickland requires satisfying a twoprong test: "Strickland requires that the defendant show, first, that his counsel's 

performance was deficient and, second, that his counsel's deficient performance prejudiced 

the defense so as to deprive the defendant of a fair trial. * * * In order to show deficient 

performance, defendant must prove that his counsel's performance fell below an objective 

level of reasonable representation. To show prejudice, defendant must show a reasonable 

probability that, but for his counsel's errors, the result of the proceeding would have been 

different." State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland. 

In reviewing a trial court's ruling regarding ineffective assistance of counsel during 

mitigation, an appellate court must accord deference to the trial court as follows: "[A] trial 

court's decision granting or denying a postconviction petition filed pursuant to R.C. 2953.21 

should be upheld absent an abuse of discretion; a reviewing court should not overrule the 

trial court's finding on a petition for postconviction relief that is supported by competent 

and credible evidence." State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58. 

{¶ 143} Here, we find competent and credible evidence to support the trial court's 

conclusion that the defense's "failure to present any such expert testimony" to explain how 

untreated trauma experienced by Montgomery as a child impacted him later in life fell 

outside the wide range of reasonable professional assistance. (Emphasis sic.) 

(Postconviction Decision at 67.) Therefore, as we discuss in more detail below, the trial 

court did not abuse its discretion in concluding the first prong of Strickland—that trial 

counsel was deficient in performance regarding mitigation—had been met. 

{¶ 144} The state argues the defense's determination to not present experts as 

witnesses was a strategic or tactical decision. Generally, "[s]trategic and tactical decisions 

of trial counsel cannot form the basis of a claim of ineffective assistance of counsel." State 

v. Thompson, 10th Dist. No. 18AP-211, 2019-Ohio-2525, ¶ 21, citing State v. GlennCoulverson, 10th Dist. No. 16AP-265, 2017-Ohio-2671, ¶ 56, citing Columbus v. Oppong, 

10th Dist. No. 15AP-1059, 2016-Ohio-5590. Furthermore, in State v. Turner, 10th Dist. 

No. 04AP-1143, 2006-Ohio-761, ¶ 28, we stated "[b]ecause appellant's trial counsel 
No. 19AP-41 49 

presented a meaningful concept of mitigation at trial, counsel was not ineffective simply 

because another possible theory of mitigation existed." 

{¶ 145} However, the Supreme Court has said in a capital case, "[a]n attorney's 

failure to reasonably investigate the defendant's background and present mitigating 

evidence to the jury at sentencing can constitute ineffective assistance of counsel." State v. 

Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 219, citing Wiggins at 521-22. " 'Defense 

counsel has a duty to investigate the circumstances of his client's case and explore all 

matters relevant to the merits of the case and the penalty, including the defendant's 

background, education, employment record, mental and emotional stability, and family 

relationships.' " Id., quoting Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.2011). 

{¶ 146} In evaluating the first prong of the ineffectiveness standard, the trial court 

observed the three theories and/or evidence Montgomery alleged should have been 

presented in mitigation: 

1.) the untreated PTSD and dissociation flowing from 

[Montgomery] having been sexually assaulted as a young child; 

2.) [Montgomery's] dysfunctional family history, consisting of 

alcohol and substance abuse (including while [Montgomery] 

was in utero, which affected his development), inadequate 

parenting, physical abuse, witnessing domestic violence at 

home, abandonment and mental health problems; and 3.) 

mitigating factors from [ Montgomery's] adult life, including 

his relationships with his children, stable employment history, 

and adjustment to prison life. 

(Postconviction Decision at 64.) 

{¶ 147} The trial court also observed "trial counsel had retained two knowledgeable 

and capable psychologists who could have provided the expert testimony to help the fact 

finders understand the relationships between [Montgomery's] untreated childhood 

traumas and his actions as an adult, [yet,] trial counsel chose not to present that expert 

testimony to the three-judge-panel." (Postconviction Decision at 65.) The trial court 

further noted that where the experts testified at the postconviction hearing, they "provided 

a much more detailed picture of the trauma throughout [Montgomery's] childhood and 

how that impacted his adult life." (Postconviction Decision at 65.) 

{¶ 148} The court answered in the affirmative the question of "whether in light of 

the facts of this particular case and when those facts are viewed as of the time of counsel's 

conduct, it was unreasonable or outside the wide range of reasonable professional 
No. 19AP-41 50 

assistance for counsel to not adequately investigate all of the mitigation evidence available 

at the time, and not present a single expert witness who could connect the dots between the 

untreated trauma that [Montgomery] suffered throughout his childhood and how that 

impacted his adult life." (Postconviction Decision at 66.) 

{¶ 149} In its analysis, the trial court focused on trial counsel's reliance on the threejudge panel's experience of having considered such cases. The court found: 

At the end of the day, while the judges on the panel have 

listened to countless experts testify over the years about various 

mental health issues and traumatic events, none of them had 

the specialized knowledge or education to professionally assess 

the untreated trauma in Defendant's childhood and how that 

impacted him later in life. Nor did they have the in-depth 

knowledge and insight related to the state of the juvenile justice 

system while [Montgomery] was institutionalized during his 

youth. 

The lay witness testimony presented to the three-judge-panel 

established, for the most part, what happened to Defendant. 

The Court notes, however, that other than references to 

Defendant having been sexually assault[ed] as a child, which 

references were made during opening statements and closing 

arguments, there was no lay witness testimony to establish 

Defendant's childhood sex abuse trauma. However, even if it 

were assumed that sufficient lay witness testimony was 

presented with respect to what happened to Defendant, there 

was not expert testimony – whether live or via video – to 

explain how what happened to Defendant as a child impacted 

him later in life. 

The Court finds the failure to present any such expert 

testimony in this case fell outside the wide range of reasonable 

professional assistance. While Stinson's report was included in 

the binders constituting Joint Exhibits 1 and 2, as Stinson 

himself noted during the post-conviction evidentiary hearing, 

live testimony provides richness of detail not found in a report. 

The Court agrees with Stinson's characterization that a written 

report is more of an outline, while the testimony really 

showcases the expertise of the psychologist, the research and 

literature that applies in the case, and provides a much fuller 

and better view of the situation than if a report is simply 

submitted along with the evidence. The Court finds it was not 

reasonable, even when viewing the facts not with the benefit of 

hindsight but as of the time of counsel's conduct, to not present 

a single expert to testify about [Montgomery's] untreated 

childhood trauma - not only in terms of the sexual abuse but 
No. 19AP-41 51 

also the suffering and witnessing of physical abuse, the 

substance abuse, and the familial mental health problems – 

and explain how all of that impacted his brain development, his 

personal relationships and his adult life. Likewise, the Court 

finds it was not reasonable to further investigate into and 

provide a single expert witness to explain [Montgomery's] 

dissociation during a number of instances throughout his life, 

including possibly during the commission of the crimes. 

(Emphasis sic.) (Postconviction Decision at 66-68.) 

{¶ 150} The trial court's analysis and conclusion is supported by competent and 

credible evidence. In particular, trial counsel Weisman's own testimony: 

Q: As you sit here today and think back on your representation 

of Mr. Montgomery, do you believe there are things that you 

should have done differently given the standards that were 

applicable to you during that time? 

* * * 

A. We should have done things differently. 

Q. What should you have done differently? 

A. * * * I should have offered Dr. Stinson's testimony. Leaving 

that out and expecting the Court, because they are more 

educated than the jurors that appear in front [of] them, to 

recognize there were some issues was a bad decision by me, a 

terrible decision by me. 

(Aug. 21, 2017 Tr. Vol. I at 116-17.) 

{¶ 151} Weisman testified to this fully aware of the immense "negatives" the 

presentation of such expert testimony could have revealed. 

{¶ 152} The trial court's analysis and conclusion is also supported by the testimony 

of Dorian Hall. As the mitigation supervisor at OPD, Hall had personal or supervisory 

experience of having investigated over 247 capital cases. She also was the supervisor to 

Heiby, the mitigation investigator on this case. Hall testified generally about the process of 

preparing mitigation and the significance of negative information about a client: 

Q: So sometimes even the negative information, prior bad acts 

or things that at first glance seem bad for the client, those can 

actually be helpful because they're helping to explain the 

situation. 
No. 19AP-41 52 

A: Correct. And those are information the psychologist and the 

experts may pick up on that help support their diagnosis or 

their assessment of the individual as well. 

(Aug. 21, 2017 Tr. Vol. I at 211.) Hall also testified specifically about mitigation for 

Montgomery: 

Q: And so those themes that I just asked you about, the 

substance abuse, dissociation, and Post-Traumatic Stress 

Disorder, are those themes that necessitate an expert 

testimony to fully explain the impact of those things on Mr. 

Montgomery? 

A. Yes. 

* * * 

Q. Did the way the evidence was presented at Mr. 

Montgomery's mitigation hearing present an accurate multidimensional picture of his life? 

A. No. There weren't the details and the information, and there 

were a lot of themes that weren't fully developed, and nor were 

there experts that could explain the impact of those events and 

explain who Mr. Montgomery was. 

(Aug. 21, 2017 Tr. Vol. I at 235-36.) Hall testified to this after having reviewed the affidavits 

of Drs. Stinson, Fradkin, and Reardon. 

{¶ 153} Finally, we note the testimony of criminal defense attorney Malarcik who, 

as noted above, is certified by the Supreme Court for capital case representation, has 

developed and taught many courses and seminars on capital defense skills, and has 

represented seven defendants charged with aggravated murder and death penalty 

specifications. Regarding trial counsels' mitigation presentation, Malarcik testified on 

direct: 

Q. After the consideration of the materials that you reviewed 

specifically for this case, do you have an opinion about whether 

Mr. Montgomery's trial counsel[s'] representation was 

reasonable under the prevailing professional norms expected 

of a trial counsel in a capital case that prevailed in 2011 and '12? 

A. I do. 

Q. What is that opinion? 
No. 19AP-41 53 

A. I believe that the representation he received fell well below 

the professional norms expected of counsel in capital cases. 

(Aug. 25, 2017 Tr. Vol. IV at 761.) 

{¶ 154} Malarcik referred to a 20172 United States Supreme Court habeas case, 

McWilliams v. Dunn, 137 S.Ct. 1790 (2017),3 and testified about the role of an expert in 

mitigation: 

Q. [W]hat is instructive in the Dunn case is the Supreme Court 

went to great lengths to talk about how important the role of an 

expert witness is in investigating, preparing, and presenting 

effective mitigation. The Supreme Court talked about what an 

expert's role is in mitigation. 

And their role is to take all these reports and to take all this data 

and to sit down with trial counsel and translate that data into 

some kind [of] effective legal strategy to help defense counsel 

to prepare a - - and present arguments that form the theme 

and theory of your mitigation. The expert witness can help the 

defense attorneys prepare for Direct and Cross-Examination 

consistent with these themes of mitigation and ultimately to 

testify at trial to provide the nexus between what the lay 

witnesses are telling the Judge or the jury your client has 

experienced and how this affects adult behavior and 

ultimately the nexus between the aggravating circumstances 

that make your client eligible for the death penalty. 

(Emphasis added.) (Aug. 25, 2017 Tr. Vol. IV at 774-75.) Malarcik continued: 

 

2 Malarcik noted that Dunn addressed whether trial counsel's conduct, that occurred before 2011 and 2012, 

violated clearly established Federal law which was in effect before 2011 and 2012. 

3 In Dunn, the United States Supreme Court reiterated that a capital defendant "must receive the assistance 

of a mental health expert who is sufficiently available to the defense and independent from the prosecution 

to effectively 'assist in evaluation, preparation, and presentation of the defense.' " Dunn at 1799, quoting 

Ake v. Oklahoma, 470 U.S. 68, 83 (1985). Dunn restated the United States Supreme Court's holding in Ake

in explaining that the state is required to provide the defense with access to "a mental health expert who is 

sufficiently available to the defense and independent from the prosecution to effectively [conduct an 

appropriate [1] examination and] 'assist in [2] evaluation, [3] preparation, and [4] presentation of the 

defense.' " Dunn at 1800, quoting Ake at 83. In Dunn, the United States Supreme Court concluded: "We 

are willing to assume that Alabama met the examination portion of this requirement by providing for Dr. 

Goff's examination of [defendant] McWilliams. * * * But what about the other three parts? Neither Dr. Goff 

nor any other expert helped the defense evaluate Goff's report or McWilliams' extensive medical records 

and translate these data into a legal strategy. Neither Dr. Goff nor any other expert helped the defense 

prepare and present arguments that might, for example, have explained that McWilliams' purported 

malingering was not necessarily inconsistent with mental illness (as an expert later testified in 

postconviction proceedings * * *). Neither Dr. Goff nor any other expert helped the defense prepare direct 

or cross-examination of any witnesses, or testified at the judicial sentencing hearing himself." (Emphasis 

sic.) Id. at 1800-01. 
No. 19AP-41 54 

Q. From your review of the materials in this case, did you find 

that there was significant mitigating evidence that trial counsel 

could have and should have presented but did not? 

* * * 

A. Yes. First and foremost, I believe that there were key expert 

witnesses that could have and should have been presented as 

compelling mitigation in Mr. Montgomery's case. Dr. Reardon, 

Dr. Fradkin, and Dr. Stinson should have been involved early 

and often and could have and should have done the things that 

the McWilliams case, the Dunn case talked about * * *. 

* * * 

You want to use these witnesses, expert witnesses, to tie it all 

together and to explain to the trier of fact how all these events 

that occurred in your client's life affect his or her adult choices 

and adult behavior and create a nexus between all these events 

that have occurred and what these records demonstrate and 

the activity that your client committed on the day that these 

individuals were killed. 

That should have been done here. It's available. It's compelling. 

And it wasn't done. 

(Aug. 25, 2017 Tr. Vol. IV at 810-12.) Concluding his testimony on direct examination, 

Malarcik opined: 

Q. Okay. Based on the materials you reviewed along with your 

education, training, and experience as a capital defender and 

one who teaches capital defense litigation, was there evidence 

to present a compelling mitigation story in this case? 

A. Yes. 

Q. Based on your -- on the materials that you reviewed, did the 

evidence of a compelling mitigation story exist at the time of 

trial in 2011 and '12? 

A. Yes. 

Q. Had trial counsel followed the professional norms that you 

have testified to here today, would trial counsel have 

discovered the evidence of a compelling mitigation story that 

you've described in your testimony? 

A. Yes. 
No. 19AP-41 55 

Q. In your professional opinion, based on the materials you 

reviewed and based on your education, training and 

experience, did trial counsels' performance in Mr. 

Montgomery's case meet the professional norms expected of a 

capital defense attorney? 

A. It did not. 

Q. And, as we've already talked about, this trial took place in 

2011, 2012. 

A. Right. 

Q. Does that fact change your answer? 

A. No. 

(Aug. 25, 2017 Tr. Vol. IV at 815-16.) 

{¶ 155} On cross-examination, the state questioned Malarcik generally about the 

downside of presenting the defense suggested by Montgomery and specifically about the 

downside of presenting the testimonies of Drs. Stinson and Fradkin and possibly opening 

the door to negative evidence including evidence of domestic violence reported by 

Montgomery's former partners, T.L. and C.D.: 

[Prosecuting Attorney] Q. Don't you think there are downsides 

to putting in all of these records, all of these witness summaries 

into the case in front of any fact-finder? 

A. I think whatever potential downsides were there were 

outweighed by the benefit of explaining how Caron 

Montgomery arrived at November 25, 2010. Sure, there's some 

risk and there's some downside there, but that's not the end of 

the analysis, obviously. 

* * * 

Q. And that summary [by Heiby of domestic abuse and 

Montgomery brandishing a gun, threatening to kill T.L. and her 

kids] was given to Dr. Stinson as part of his review, and so, if 

you put on Dr. Stinson, you're going to have to produce that 

summary, don't you think? 

* * * 
No. 19AP-41 56 

A. I'm sorry. What I was going to say is, again, the way to deal 

with this is through an aggressive pretrial practice, a motion in 

limine, and you bring this to the attention of the Judge. Look, 

Judge, what opens the door? Let's get some parameters here. 

And you lay it all out. And then you get an informed decision 

from the Court. And it's in limine, obviously, but that then 

allows you to make intelligent, informed decisions about how 

do we keep the door closed and do we want to put this witness 

on or not. And I think with a lot of effort, a skilled advocate 

could navigate that difficult tightrope. It's done in capital cases 

all the time. 

And what happened in here is the complete opposite. There 

was no motion in limine trying to keep out a non-aggravating 

factor. I think there's grounds that you could have argued that. 

And the opposite happened. They opened the door to all of this 

bad evidence coming in. 

* * * 

Q. Wouldn't that just be a brutal blow to the defense to put that 

[the summary of daily domestic abuse of C.D.] on in your 

mitigation case? 

A. Standing alone, yes, but that's not the only decision. 

When properly developed and when you follow McWilliams 

versus Dunn and you bring the expert in and say, what does 

this mean, and you develop a theme and a theory and you talk 

about disassociation [sic] and it ties into the facts of the 

aggravating circumstances, that's how you develop and 

potentially present key mitigation. That wasn't done. 

Q. Would you agree it's a downside to the put-in-all-therecords-and-experts strategy? 

A. Standing alone, I would never do it, never. 

Q. Never do what? 

A. Put all that into the record by itself without motions in 

limine, without attempting to mitigate, without the existence of 

an expert to explain how this happened. That's ineffective. 

Q. Right. And that's - - under the current approach that the 

defense is touting and you're espousing, all of that would have 

come in, right - - 
No. 19AP-41 57 

A. But not alone. 

Q. - - because all the records were used by the experts. 

A. Yeah. My point is it comes in but not by itself. It comes in as 

part of your mitigation theme and part of an overall education 

of the trier of fact with these expert witnesses. 

Q. I understand that it would come in with an explanation - - 

A. Right. 

Q. - - and in a context. I agree with that. And that's what you're 

contending. But it's still a downside, isn't it? 

A. Yes. 

Q. Is it a minor downside or a major downside - - 

A. Well, it depends on what your experts can say to put it into 

context. That's how you mitigate it. That's really the definition 

of mitigation is taking something that is a problem and 

attempting to lessen the moral culpability of those acts. And I 

think that can and that has been done here. So is it a downside? 

Yes. But, in the overall presentation of mitigation, would I have 

included that? Yes. 

* * * 

Q. [I]sn't it reasonable that counsel would not want Dr. 

Fradkin's report in front of the three-judge panel and in front 

of the prosecution? 

A. No, because, again, there's more to what Dr. Fradkin is 

saying, and his report is viewed in the overall context of where 

we are today with Dr. Stinson and with Dr. Reardon. And I 

think those are - - those all help explain and mitigate this 

abhorrent conduct that you're talking about. 

(Aug. 25, 2017 Tr. Vol. IV at 906-23.) 
No. 19AP-41 58 

{¶ 156} On redirect, Montgomery's counsel asked Malarcik about a passage from 

the direct appeal, Montgomery, 2016-Ohio-5487:4

Q. Counsel asked you about a passage from the Ohio Supreme 

Court - - I assume it was the direct appeal decision in this case 

- - talking about trial counsel's sound deliberation and 

judgment. Do you recall that passage? 

A. I do. 

Q. When you hear the phrase "sound deliberation and 

judgment" in the context of trial counsels' performance for 

professional norms, what does that imply to you? 

A. That implies to me that those professional norms were met 

or exceeded. 

Q. And in the context of this particular case - - 

A. That did not happen. 

Q. Thank you. 

But, in addition to that, in the context of this particular case, 

the trial direct appeal record did not include any of the evidence 

that has been presented at this hearing. Is that right? 

A. Correct. 

(Emphasis added.) (Aug. 25, 2017 Tr. Vol. IV at 931.) 

{¶ 157} Malarcik's testimony, summarized above, reveals that he carefully 

considered the substantial negatives highlighted by the state of presenting the expert 

 

4 We perceive that Montgomery's counsel is referring to the Supreme Court's recitation of the Strickland

standard that "[a] defendant alleging ineffective assistance of counsel must identify the acts or omissions 

of counsel that are alleged not to have been the result of reasonable professional judgment." (Emphasis 

added.) Montgomery, 2016-Ohio-5487, at ¶ 86. We perceive that counsel and Malarcik are referring to the 

Supreme Court's analysis of Montgomery's ineffective assistance claim, in the direct appeal, for failure to 

present expert testimony during mitigation. In particular, the Supreme Court's observation that its analysis 

was based on a silent record. The Supreme Court stated "[a] trial attorney's decision 'to forgo the 

presentation of additional mitigating evidence does not itself constitute proof of ineffective assistance of 

counsel.' " Id. at ¶ 120, quoting State v. Keith, 79 Ohio St.3d 514, 536 (1997). "We will not ' "infer a defense 

failure to investigate from a silent record." ' " (Emphasis added.) Id., quoting State v. Hunter, 131 Ohio 

St.3d 67, 2011-Ohio-6524, ¶ 65, quoting State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 244; see 

also State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 288 (defense counsel's decision not to present 

testimony of retained experts in mitigation was reasonable trial strategy because "[n]othing in the record

shows that this decision was the result of an inadequate investigation"). (Emphasis added.) Montgomery, 

2016-Ohio-5487, at ¶ 120 
No. 19AP-41 59 

testimonies of Drs. Stinson and Fradkin. Notwithstanding, Malarcik opined Montgomery's 

trial counsel was ineffective in failing to present the expert testimonies as mitigation. 

{¶ 158} Taking all this into consideration, in particular the testimony of Weisman, 

Hall, and Malarcik, we find the trial court's conclusion that Montgomery's trial counsel was 

deficient with regard to mitigation was supported by competent and credible evidence and, 

therefore, was not an abuse of discretion. 

{¶ 159} Accordingly, we overrule the state's third assignment of error. 

D. The State's Fourth and Fifth Assignments of Error 

{¶ 160} The state's fourth and fifth assignments of error challenge the trial court's 

ruling under the second Strickland prong. In the fifth assignment of error, the state asserts 

the trial court erred by applying the wrong standard in analyzing the second prong. In the 

fourth assignment of error, the state asserts the trial court abused its discretion in its 

ultimate determination under the second prong. We examine the fifth assignment of error 

first. 

{¶ 161} A defendant must satisfy both prongs of Strickland to demonstrate 

ineffective assistance of counsel; a failure to make one showing or another defeats the claim. 

See also State v. Bradley, 42 Ohio St.3d 136, 143 (1989). As noted above, having found 

trial/defense counsel to be deficient with its presentation of mitigation, regarding the 

second prong of Strickland, the trial court found: "since the expert testimonies of at the 

very least Stinson and Fradkin were not presented [the court] cannot conclusively state that 

there is no reasonable probability that the panel would have reached a different conclusion 

had the experts testified during mitigation." The trial court also stated: "[i]n the case at bar, 

given the totality of the evidence presented and arguments raised with respect to the failure 

to adequately investigate the mitigation evidence available at the time, and the failure to 

use expert witnesses to support the mitigation themes, the Court is not convinced that the 

current mitigation presentation would not have created a reasonable probability of a 

different outcome." (Postconviction Decision at 69.) 

{¶ 162} "On the issue of counsel's ineffectiveness, the petitioner has the burden of 

proof." Gondor at ¶ 62. "In order to show deficient performance, defendant must prove 

that his counsel's performance fell below an objective level of reasonable representation. 

To show prejudice, defendant must show a reasonable probability that, but for his counsel's 

errors, the result of the proceeding would have been different." Jackson at ¶ 133, citing 
No. 19AP-41 60 

Strickland and Bradley; see also State v. Pagan, 10th Dist. No. 19AP-216, 2019-Ohio-4954, 

¶ 18 (the accused must make both showings). Thus, "the petitioner must submit sufficient 

operative facts or evidentiary documents that demonstrate that the petitioner was 

prejudiced by the ineffective assistance." Gondor at ¶ 62. 

{¶ 163} The state argues the burden of proving ineffectiveness is on the defendant, 

and that the trial judge confusingly flipped the burden of proof. Further, the state argues it 

was not the state's burden to conclusively or convincingly negate such probability. 

{¶ 164} Notwithstanding the trial court's use of double negatives, and the terms 

"convinced" and "conclusively," we find the trial court did cite to and apply the correct 

standard. First, the court quoted R.C. 2953.21(A)(1)(a) which states that "[a]ny person who 

has * * * been convicted of a criminal offense and sentenced to death and who claims that 

there was a denial or infringement of the person's rights under [the Ohio Constitution or 

the Constitution of the United States] that creates a reasonable probability of an altered 

verdict * * * may file a petition in the court that imposed sentence, stating the grounds for 

relief relied upon, and asking the court to vacate or set aside the judgment or sentence or 

to grant other appropriate relief." (Emphasis added.) 

{¶ 165} Second, the court quoted Strickland regarding the second prong. The court 

quoted Strickland's direction that: " 'Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel's errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' " (Emphasis 

sic.) (Postconviction Decision at 57 quoting Strickland at 687.) The court also quoted 

Strickland's direction that to satisfy the second prong, the 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.' " (Postconviction Decision at 58, 

quoting Strickland at 694.) The court then quoted Strickland stating: 

The governing legal standard plays a critical role in defining the 

question to be asked in assessing the prejudice from counsel's 

errors. * * * When a defendant challenges a death sentence such 

as the one at issue in this case, the question is whether there is 

a reasonable probability that, absent the errors, the sentencer 

- - including an appellate court, to the extent it independently 

reweights the evidence - - would have concluded that the 

balance of aggravating and mitigating circumstances did not 

warrant death. 
No. 19AP-41 61 

(Postconviction Decision at 59, quoting Strickland at 695.) 

{¶ 166} Finally, before concluding that Montgomery received ineffective assistance 

of counsel, the trial court summarized the task before it: 

However, the task in front of the Court at this time is not to resentence Defendant. Rather, the Court is to determine whether 

defense counsel's failure to offer any expert testimony with 

respect to Defendant's childhood trauma and how that trauma 

affected his adult life, including factors such as those included 

in his ACES score, constituted ineffective assistance of counsel 

such that Defendant should be allowed to have another 

sentencing hearing. In other words, the question before the 

Court is, first, whether in light of the facts of this particular case 

and when those facts are viewed as of the time of counsel's 

conduct, it was unreasonable or outside the wide range of 

reasonable professional assistance for counsel to not 

adequately investigate all of the mitigation evidence available 

at the time, and not present a single expert witness who could 

connect the dots between the untreated trauma that Defendant 

suffered throughout his childhood and how that impacted his 

adult life. Second, the Court must answer whether there is a 

reasonable probability that, but for counsel's errors, the result 

of the proceeding would have been different. The Court 

answers both of those questions in the affirmative. 

(Emphasis added.) (Postconviction Decision at 66.) 

{¶ 167} Thus, the trial court did not apply the wrong standard or flip the burden in 

analyzing the second prong of the Strickland test. Therefore, the trial court did not err in 

this regard. 

{¶ 168} Accordingly, we overrule the state's fifth assignment of error. 

{¶ 169} In the fourth assignment of error, the state argues the trial court erred and 

abused its discretion in determining that the second prong of the Strickland test had been 

met because the aggravating circumstances were overwhelming and the proffered 

mitigation theories contain dubious and notable flaws. 

{¶ 170} Regarding the state's argument that the proffered mitigation theories 

contain dubious and notable flaws, we refer to the testimonies of Weisman, Hall, and 

Malarcik referenced above. Based on their testimonies, we reject the state's argument that 

the proffered mitigation theories contained dubious and notable flaws. 
No. 19AP-41 62 

{¶ 171} Regarding the state's argument that the aggravating circumstances were 

overwhelming, we note that in conducting its analysis, the trial court acknowledged the 

same. The court observed that the aggravating factors were extreme and that "[t]he 

purpose to kill, evident in the execution-style slitting of the throats of the victims, including 

the children, is an extreme aggravating factor. Likewise, the ages of the children, two and 

ten for Tyron and [Tahlia], respectively, weighed heavily in favor of the death penalty 

during the original mitigation presentation and still weigh heavily in favor of the death 

penalty at this time." (Postconviction Decision at 66.) The court also stated that in 

determining the second prong has been met, it was not "in any way minimizing the effect 

of the serious aggravating circumstances that were presented including the victim-under13 aggravator, since Tahlia was ten and Tyron was two, and the intent to kill aggravator, 

given that [Montgomery] slit the throats of these two young, innocent children (Tyron's all 

the way down to the trachea and esophagus), and that [Montgomery] had to overcome 

Tahlia's resistance in light of her defensive wounds. The murders involved in this case were 

heinous and the aggravating circumstances most definitely weighed in favor of the death 

penalty." (Postconviction Decision at 69.) 

{¶ 172} However, the court observed that resentencing Montgomery was not the 

task before it; rather, the question before the court was to "answer whether there is a 

reasonable probability that, but for counsel's errors, the result of the proceeding would have 

been different." (Postconviction Decision at 66.) The court answered that question in the 

affirmative. The court further noted: 

[S]ince the expert testimonies of at the very least Stinson and 

Fradkin were not presented, and since those testimonies would 

have connected the dots and explained the significance and 

impact of the trauma throughout Defendant's life on his mental 

health and conduct - and would have done so in a qualified and 

professional manner, unlike that of any of the other witnesses 

who testified and unlike that of the judges on the panel - the 

undersigned cannot conclusively state that there is no 

reasonable probability that the panel would have reached a 

different conclusion had the experts testified during 

mitigation. 

(Postconviction Decision at 69.) 

{¶ 173} The trial court was fully aware of the overwhelming nature of the 

aggravating circumstances and expressly acknowledged the same during its analysis of the 
No. 19AP-41 63 

second prong. Furthermore, the trial court judge who determined the second prong of 

Strickland was met was also the presiding judge of the original panel. Taking all this into 

consideration, we cannot find that the trial court abused its discretion in determining the 

second prong of Strickland had been met. 

{¶ 174} Accordingly, we overrule the fourth assignment of error. 

 E. Montgomery's First Assignment of Error 

{¶ 175} We turn last to Montgomery's first assignment of error in his cross-appeal, 

which contends: "The trial court erred in denying Montgomery's claim that trial counsel 

were ineffective during the trial phase of his capital proceedings (Ninth Ground for Relief)." 

(Merit Brief of Cross-Appellant at 7.) Under this assignment, Montgomery contends his 

trial counsel were ineffective "regarding the decision to waive his right to a jury trial, and to 

plead guilty to all charges without any concessions from the State." (Merit Brief of CrossAppellant at 7.) 

{¶ 176} In denying this claim, the trial court quoted extensively from the Supreme 

Court's decision on Montgomery's direct appeal discussing his acknowledgements at the 

time of the plea that he understood the significance of the jury waiver and that counsel had 

carefully reviewed the plea with him. We note that in that direct appeal and on the record 

as it stood then, the Supreme Court rejected arguments relating to the validity of the jury 

waiver and the guilty plea, and specifically rejected the assertion that "defense counsel were 

ineffective for advising him to plead guilty to the indictment without securing an agreement 

from the state not to pursue the death penalty." Montgomery, 2016-Ohio-5487, at ¶ 96. 

The court noted that advice to "pleading guilty to capital charges without a guaranteed life 

sentence is not per se ineffective assistance." Id. at ¶ 100, citing State v. Ketterer, 111 Ohio 

St.3d 70, 2006-Ohio-5283, ¶ 82, 85. The Supreme Court also observed that Montgomery's 

"defense counsel could have 'reasonably believed that a guilty plea could minimize the effect 

of gruesome facts and a brutal murder, especially before a three-judge panel,' " and that 

pleading guilty demonstrated an acceptance of responsibility as a mitigating factor. Id. at 

¶ 101, citing Ketterer at ¶ 86; see also id. at ¶ 102 (further observing that defense counsel 

had "engaged in significant adversarial testing of the state's case" while also mounting a 

mitigation case, and that remorse and a plea of guilty count toward mitigation). 

{¶ 177} Nonetheless, the trial court did not rest its decision here on grounds of res 

judicata but, instead, concluded that in light of the "particularly gruesome" facts of the case, 
No. 19AP-41 64 

it was not unreasonable for defense counsel to have sought to hold the introduction of 

bloody crime scene evidence to a minimum (through plea) and (through the panel election) 

to have preferred judges experienced in evaluating gory presentations over "jurors who may 

be much more easily guided by their emotions under the circumstances." (Postconviction 

Decision at 63.) Moreover, the court emphasized that it was not unreasonable for defense 

counsel to hope that the panel would find mitigation in "the Defendant taking responsibility 

and showing remorse." (Postconviction Decision at 63.) The trial court thus concluded 

that "trial counsel[s'] decision to advise their client to follow a 'plead and panel' strategy is 

not unreasonable and is not indicative of ineffective assistance of counsel." (Postconviction 

Decision at 63.) And the trial court found additionally and in any event that "[g]iven the 

overwhelming evidence of his guilt," Montgomery did not satisfy the prejudice prong of 

Strickland with regard to the plea and trial proceedings. (Postconviction Decision at 63.) 

{¶ 178} This part of the trial court's decision was reasoned and assessed relevant 

factors. And evidence from the postconviction hearing supports the trial court's conclusions 

as to defense counsels' thinking. The defense had engaged in "[n]onstop" efforts at plea 

negotiations. (Aug. 21, 2017 Tr. Vol. I at 68 (Weisman testimony).) And the plea and panel 

recommendation was calculated by the defense team with much "nervousness" and full 

knowledge of potential "negatives"; "[i]t was not a decision made quickly or lightly." 

(Aug. 21, 2017 Tr. Vol. I at 79.) Montgomery's lead trial counsel indeed believed that the 

three-judge panel would be more amenable to using "acceptance of responsibility as a 

mitigation tool" than would a jury. (Aug. 21, 2017 Tr. Vol. I at 154.) He "thought that [at 

least two of the three Judges] would be responsive to the guilty plea and some of the other 

things that we were going to be able to offer." (Aug. 21, 2017 Tr. Vol. I at 75-76.) He also 

believed that judges would be less swayed by the "gruesomeness" of the state's evidence 

based on their years of courtroom experience, and that it would be better to have a 

"shortened proceeding" before a panel. (Aug. 21, 2017 Tr. Vol. I at 154, 157.) Further, 

although Montgomery points to the testimony of Malarcik, who critiqued the decision to 

recommend a guilty plea, trial counsel testified that he spoke to "a number of attorneys who 

had experience in death penalty" representation who were "[m]ost all were in agreement 

with [the] approach" to plead and go before the panel. (Aug. 21, 2017 Tr. Vol. I at 154-55.) 

{¶ 179} Montgomery predicates his argument that he "would have opted for a jury 

trial, had counsel been effective," on the view that "there was certainly a better chance of 
No. 19AP-41 65 

success in avoiding a death sentence" by refusing the three-judge panel option. (Merit Brief 

of Cross-Appellant at 15.) That argument would not have established ineffective assistance 

of counsel even had it been substantiated; but even apart from the evidence that the threejudge panel recommendation was made pursuant to a considered strategic decision, the 

materials to which Montgomery points fail to support his operative thesis. 

{¶ 180} Montgomery presented to the trial court through counsel an affidavit from 

Terri L. Wilson of the OPD's office attaching a spreadsheet purporting to contain 

"information related to all Franklin County capital cases" from 1988 to 2013. (E-filed copy 

of hearing Exhibit 20, Admitted at Hearing, ¶ 6.) He cites that material to us as establishing 

that "between 2003 and the start of Montgomery's trial, there had not been a single death 

sentence imposed by a Franklin County jury." (Merit Brief of Cross-Appellant at 15.) True 

enough, according to the proffered spreadsheet. But the same data also purports to show 

that after two death sentences imposed by juries in 2002, the next capital sentence was 

Montgomery's. So just as there "had not been a single death sentence imposed by a 

Franklin County jury" from 2003 on, neither had there been such a sentence imposed by a 

three-judge panel (again, at least as shown in the exhibit given the trial court). (Merit Brief 

of Cross-Appellant at 15.) Moreover, the spreadsheet reflects that for the 2003-2012 

timeframe (by indictment) identified as significant by Montgomery's brief, three-judge 

panels had imposed life sentences in cases with capital specifications in at least 3 cases from 

2003, 2 from 2006, and 2 more from 2007. (Merit Brief of Cross-Appellant at 15.) Further 

still, of the 6 capital sentences reflected in Montgomery's spreadsheet as coming before his 

case, 5 are listed as having been imposed after a jury trial; and of the 14 three-judge panels 

listed, 13 are shown to have imposed life terms of one form or another. (Merit Brief of 

Cross-Appellant at 15.) 

{¶ 181} Different statistics would not make for a winning argument on a strategic 

call of this nature, but the numbers cited from exhibit 20 do not advance Montgomery's 

position at all. While Montgomery averred at his postconviction hearing that the Thorazine 

he was on made him feel "[c]alm," and, separately, that he decided to waive a jury on the 

advice of counsel whom he trusted, the trial court did not abuse its discretion in concluding 

that counsel was not deficient for not having advised Montgomery differently on exercising 

the panel option. (Sept. 5, 2017 Tr. Vol. V at 979, 1003.) 
No. 19AP-41 66 

{¶ 182} We find the trial court did not abuse its discretion when ruling that 

Montgomery did not receive ineffective assistance of counsel when he was advised to go 

before the panel and plead guilty. 

{¶ 183} Accordingly, we overrule Montgomery's first assignment of error. 

IV. CONCLUSION 

{¶ 184} Having overruled the state's five assignments of error, as well as 

Montgomery's two cross-assignments of error, we affirm the trial court's denial of 

Montgomery's postconviction claims regarding his assertions of ineffective assistance of 

counsel during the plea/trial phase and affirm the trial court's granting of Montgomery's 

postconviction claims regarding his assertions of ineffective assistance of counsel during 

the mitigation/sentencing phase. Accordingly, we remand this matter to the Franklin 

County Court of Common Pleas for action consistent with this decision. 

Judgment affirmed; cause remanded. 

 

BRUNNER, J., concurs. 

NELSON, J., concurs in part and dissents in part. 

NELSON, J., concurring in part and dissenting in part. 

{¶ 185} I make no brief for the death penalty. It is premised, perhaps, on a view of 

governmental infallibility that finds little basis in our general experience. And then, to 

hedge that bet, it necessarily requires seemingly unending procedural measures that exact 

significant costs not limited to time and money. 

{¶ 186} But capital punishment, or at least the formality of capital sentencing, 

remains envisioned by the law of our state. And here, the record shows no credible evidence 

that the defense decision not to call Doctors Fradkin and Stinson was anything other than 

a reasoned, indeed prudent, strategic determination taken in furtherance of a calculated 

mitigation presentation that their testimony could have undermined. On my understanding 

of the law and my reading of the record as well and carefully recounted by the majority, I 

am constrained to conclude that the trial court erred in setting aside the earlier sentence 

that had been affirmed on direct appeal. Very respectfully, and with a reluctance enhanced 

by the particular gravity of this context, I dissent to that extent as specified below. 

{¶ 187} Let's cut to the chase. The trial court found that defense counsel's 

calculated decisions not to call "at the very least Stinson and Fradkin" was deficient in a 
No. 19AP-41 67 

way that prejudiced Mr. Montgomery. Postconviction Decision at 69. One would have 

testified, among other things, that the supposedly "dissociated" Montgomery disclosed that 

before he stabbed Tia to death, he informed her that he had engaged in anal sex with her 

sister. (I imagine—as perhaps the three-judge panel would have—that the phrasing wasn't 

quite that.) The other would have been interrogated on Montgomery's brutal history of 

stomach-turning domestic violence and an earlier threat to kill another lover and her 

children. Such revelations, in the cause of further depicting the killer as himself a victim (a 

cause perhaps already in some tension with the selected 'he takes full responsibility' 

mitigation line), would indeed—as the majority is frank to concede—have carried "immense 

'negatives.' " See supra at ¶ 151. 

{¶ 188} The majority's only real support for the proposition that opting to avoid this 

sort of testimony was anything other than a strategic or tactical decision based on rational 

concerns is that a lawyer who was not part of the defense team at the trial stage now opines 

in retrospect that all this could have been sugar coated. " '[I]t depends on what your experts 

can say to put it into context. That's how you mitigate it.' " See supra at ¶ 155, quoting 

lawyer Malarcik, Aug. 25, 2017 Tr. Vol. IV at 917 (also acknowledging, after speculating 

about hypothetical motions in limine, that "it comes in"); see also id., quoting Tr. at 906 

(" 'Sure, there's some risk and there's some downside there, but that's not the end of the 

analysis, obviously' "); id. at ¶ 157 (Malarcik aware of "the substantial negatives * * * of 

presenting the expert testimonies of Drs. Stinson and Fradkin" but "[n]otwithstanding" 

those immense problems "opined Montgomery's trial counsel was ineffective" in not 

presenting them); Aug. 25, 2017 Tr. Vol. IV at 910 (Q. "So does this open the door?" 

A. "Yes."), 919 (Q. Doesn't Fradkin testimony "tend to weigh against dissociation because 

[Montgomery] is remembering several details of what happened?" A. "Yes."). 

{¶ 189} Respectfully, I do not find that critique or those somewhat cavalier 

assurances to be "credible evidence" that the defense trial team's calculation was irrational 

(or even mistaken). The calculus that informed the actual defense team at the time was that 

Stinson's testimony would not "offset" the negatives it would adduce, see supra at ¶ 39, 

citing Aug. 21, 2017 Tr. at 160, while defense counsel Weisman believes even after the fact 

that Fradkin's testimony would have brought "more negatives than positives," see supra at 

¶ 47, quoting Aug. 21, 2017 Tr. at 152. Hindsight may be, to use a phrase rather discredited 

this year, 20-20. But the result that the three-judge panel imposed does not itself establish 
No. 19AP-41 68 

that defense counsel's calculation to refrain from calling the witnesses was wrong, let alone 

that it could mark ineffective assistance. Nor does the testimony the majority cites of Public 

Defender's Office mitigation supervisor Hall at all negate the "immense" downside of the 

Fradkin/Stinson potential testimony. Compare supra at ¶ 158 (relying particularly on 

"testimony of Weisman, Hall, and Malarcik" to support trial court's finding of ineffective 

assistance of counsel). 

{¶ 190} Stepping back: " 'The defense decision to call or not call a mitigation 

witness is a matter of trial strategy. * * * Debatable trial tactics generally do not constitute 

ineffective assistance of counsel,' " even in the capital case context. Pickens, 2014-Ohio5445, at ¶ 222 (discussing lack of psychological testimony and quoting State v. Elmore, 111 

Ohio St.3d 515, 2006-Ohio-6207, ¶ 116). And as we have said, "[w]hen trial counsel 

presents a meaningful concept of mitigation, the existence of alternative or additional 

mitigation theories does not establish ineffective assistance of counsel." Turner, 2006-

Ohio-761, at ¶ 28. 

{¶ 191} As the majority notes, the trial court was obliged to apply the doublepronged analysis of Strickland to assess Montgomery's ineffective assistance claim. Supra 

at ¶ 142. The trial court properly recited that this standard means " '[f]irst, the defendant 

must show that counsel's performance was deficient. This requires showing that counsel 

made errors so serious that counsel was not functioning as the "counsel" guaranteed the 

defendant by the Sixth Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel's errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a 

defendant makes both showings, it cannot be said that the conviction or death sentence 

resulted from a breakdown in the adversary process that renders the result unreliable.' " 

Postconviction Decision at 57; see also, e.g., State v. Jackson, 107 Ohio St.3d 53, 2005-

Ohio-5981, ¶ 133 (capital case: "Reversal of a conviction or sentence based upon ineffective 

assistance of counsel requires satisfying the two-pronged test set forth in Strickland"). That 

is, the failure to make either one of the two required showings defeats a claim of ineffective 

assistance of counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989). 

{¶ 192} So we need to home in on the trial court's finding that the requisite 

prejudice resulted "since the expert testimonies of at the very least Stinson and Fradkin 

were not presented * * *." Postconviction Decision at 69 (adding that "since those 
No. 19AP-41 69 

testimonies would have connected the dots * * * the undersigned [judge] cannot 

conclusively state that there is no reasonable probability that the panel would have reached 

a different conclusion had the experts testified during mitigation"); see also, e.g., June 26, 

2019 Brief of Defendant/Cross-Appellant in Response to Appellant's Brief at 22 (citing the 

trial court's Stinson/Fradkin reasoning as the basis for its ineffective assistance of counsel 

finding that brief urges be affirmed). It is the potential testimony of defense-retained 

experts Stinson and Fradkin on which this issue turns, not the gauzy prospect of some 

other, idealized but untested hypothetical witness. Indeed, the reason the majority and I 

all find the trial court's postconviction decision "sufficiently detailed and clear 'to allow for 

meaningful appellate review' " is that "the trial court did make intelligible the basis for its 

ruling that Montgomery had been deprived of the effective assistance of counsel with regard 

to mitigation: counsels' performance was deficient because the lawyers should have 

adduced 'the expert testimonies of at the very least Stinson and Fradkin.' " Supra at ¶ 128. 

{¶ 193} But the trial court acknowledged that the election not to call those two 

experts was a conscious decision by trial counsel, not the result of forgetfulness or 

unthinking neglect: "[T]rial counsel had retained two knowledgeable and capable 

psychologists who could have provided the expert testimony to help the fact finders 

understand the relationships between [Montgomery's] untreated childhood traumas and 

his actions as an adult[.] [T]trial counsel chose not to present that expert testimony to the 

three-judge-panel." Postconviction Decision at 65. While the trial court had heard 

testimony (including from Montgomery's former defense counsel, "experienced and 

certified capital defense attorneys" who "the record demonstrates [had] * * * conducted an 

extensive mitigation investigation," Montgomery, 2016-Ohio-5487, at ¶ 51, 116) suggesting 

some of the reasons it would have been reasonable for counsel to abjure those experts and 

focus on Montgomery's direct claim of responsibility, the legal analysis section of its 

decision does not at all assess or account for such concerns. Compare, e.g., Postconviction 

Decision at 10-11 (counsel concluded during mitigation phase that Dr. Stinson's diagnosis 

would not "have outweighed the negative information the doctor knew, including 

information related to the domestic violence incidents in [Montgomery's] past"; "Dr. 

Fradkin's report contained damaging information about Defendant and how he was 

seeking revenge * * * * [T]he doctor also would have testified about [Montgomery's] 

difficulties with anger and rage. According to Weisman, Fradkin's testimony would have 
No. 19AP-41 70 

presented more negative factors than positive ones had he testified during the sentencing 

phase") with id. at 64-69 (analysis of "ineffective assistance of counsel during mitigation" 

outlines at some length potential defense benefits of expert testimony, but beyond one 

sentence at page 65 saying that "the State notes counsel had to be mindful of the possibility 

of opening the door to damaging evidence about Defendant by way of introducing * * * 

mitigating evidence," fails to balance, assess, or address particular such [necessary] 

considerations in any way). 

{¶ 194} On this record, and where, as the trial court recited, " 'a court must indulge 

a strong presumption that counsel's conduct falls within the wide range of reasonable 

professional assistance; that is, * * * the presumption that, under the circumstances, the 

challenged action "might be considered sound trial strategy," ' " Postconviction Decision at 

57, quoting Strickland, 466 U.S. at 689-90, quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955), I would find that the trial court abused its discretion by looking only to half of the 

equation in counsel's cost-benefit analysis as to whether to call Doctors Stinson and 

Fradkin. One cannot analyze whether counsel's cost-benefit analysis was unreasonable 

unless one considers the costs. And the trial court resolutely did not. 

{¶ 195} Lead defense counsel Weisman testified at length at the postconviction 

hearing about his strategic reasons for not calling the expert psychological witnesses that 

the defense had retained. And as he observed, he had "a significant amount of time" 

practicing before the three judges on the panel and felt that he understood their "judicial 

philosophy." Tr. at 75. The record confirms that strategic reasons for not calling these 

experts abounded, and that their testimony could have been at cross purposes with some 

of the themes chosen by the defense that Montgomery took full responsibility for his actions 

and that he demonstrated sincere remorse. Compare, e.g., Postconviction Tr. at 359 

(Fradkin says that Montgomery "doesn't know how to tell the truth sometimes because he 

doesn't want to take responsibility"); supra at ¶ 104 (Malarcik faults defense team for not 

emphasizing Montgomery's acceptance of responsibility more), ¶ 115 (quoting trial court 

acknowledgment that plea and showing of remorse could be factors "considered and 

weighed against the death penalty"). Again, I find no credible evidence that the choice not 

to call Fradkin or Stinson was anything but a legitimate strategic election. 

{¶ 196} Start with Fradkin. His April 2, 2012 report was not before the three-judge 

panel. Had he testified, presumably it would have been. In addition to providing 
No. 19AP-41 71 

potentially mitigating information, it reasonably could have been construed to report both 

that Montgomery did recall events surrounding the murder, and more specifically that he 

recalled having taunted his ex-girlfriend Tia before he killed her. "He talked some about 

the day he committed the murders. He said it 'just happened.' * * * * [Next paragraph] He 

reports that day everything from his past surfaced that he had blocked out. He said he was 

angry about life and angry how nobody else got in trouble, but he did. He said he wishes he 

could get that day back and that he would have just left. [Next paragraph.] He reported he 

had never told his girlfriend Tia about any of the abuse. * * * * He told me he was actually 

having sex with both Tia and her sister * * * * He said he had sex with [the sister] to get 

revenge on Tia for the times she was having sex with other men. * * * * Before he killed Tia, 

he told her he'd had anal sex with her sister." Postconviction Exhibit 25-B at 3. 

{¶ 197} The trial court did not discuss, at all, whether defense counsel might 

reasonably have concluded as a matter of mitigation strategy that it might be better not to 

have the sentencing court hear that "before Mr. Montgomery killed Tia, he told her he'd 

had anal sex with her sister." Nor does the trial court's decision assess whether defense 

counsel might reasonably have opted not to put Dr. Fradkin and his report before the threejudge panel to flag Mr. Montgomery's "difficulties with anger and rage," id. at 4, or how "he 

reacted with violence when he became overwhelmed with the feelings of betrayal," or how 

abuse "survivors" in his position, especially absent the benefit of therapeutic support, "often 

spend a lifetime trying to find a way to feel powerful and in control again," id. at 5. The 

report also mentioned Mr. Montgomery "going to Domestic violence classes," a subject that 

Mr. Weisman was intent on keeping away from the panel. Id. at 3; Tr. at 159. 

{¶ 198} The uncontested testimony at the postconviction hearing was that the 

defense made a considered decision not to call Dr. Fradkin because it concluded that his 

testimony, like that of some other potential witnesses, would have provided "more 

negatives than positives." Tr. at 152. And it was reasonably conceivable that the state would 

have probed these matters on cross-examination. Indeed, when Dr. Fradkin testified at the 

postconviction hearing, the prosecution pressed him along these lines: 

Q. He also told you that he was angry with her on that day. 

Isn't that correct? 

A. Yes. 

Q. And he also remembered telling Tia not to fuck with him. 
No. 19AP-41 72 

A. (Witness nodded head.) 

Q. And then we also see this discussion of him wanting 

revenge on Tia. 

A. Yes. 

Q. And then we see this discussion of before he killed Tia he 

told her he'd had anal sex with her sister. 

He's talking about the day of the killings. Isn't that right? 

A. I don't know. I didn't ask him specifically when he told her 

that. 

Q. Why else would you put in the qualifier 'before he killed 

Tia' if it wasn't talking about that day in a discussion talking 

about that day? 

A. It's a reasonable assumption it was that day. I just -- I don't 

know because this was many years ago, and that's what I 

wrote. 

Tr. at 367. 

{¶ 199} The defense decision not to call Dr. Stinson was made for similar and 

perhaps only somewhat less dramatic reasons. Mr. Weisman's postconviction hearing 

testimony described a long process of deliberation about whether to call Dr. Stinson that 

lasted even past the start of the hearing. Id. at 90. Mr. Weisman at the time of the mitigation 

hearing did not ascribe as much potential benefit to Dr. Stinson's testimony as he and the 

trial court later did; he felt that the presentation of Dr. Stinson's testimony and an 

explication of Mr. Montgomery's "psychological issues" would not be as effective with the 

judges as it might with jurors. Id. at 159 (Weisman testimony). On the other side of the 

equation, Mr. Wiseman observed: 

Dr. Stinson was aware of a number of the factors * * * as far as 

other violent acts by [Montgomery], domestic violence 

allegations, et cetera. And I had some concern those things 

would have been brought up if Dr. Stinson testified that we 

could otherwise keep away from the three-judge panel and not 

hear about some of those past acts that, frankly, I was doing 

everything I could to keep anybody from hearing about. 
No. 19AP-41 73 

Id. at 159; see also id. at 158 ("I had some concerns putting Dr. Stinson on. Some of the 

things that have popped up in [the postconviction hearing with regard to other potential 

witnesses] Dr. Stinson was aware of"). 

{¶ 200} The specific nature of that concern is demonstrated by Dr. Stinson's April 8, 

2012 report, which relied in part on mitigation investigator Kelly Heiby's summaries of 

interviews with potential mitigation witnesses C.D. and T.L. See Postconviction Hearing 

Ex. 27 at 2, fn. 12 (Stinson citation to C.D. interview), 4, fn. 20 (citation to T.L. interview). 

Among the items there that might reasonably be perceived as contrary to 

Mr. Montgomery's mitigation interests and to which Dr. Stinson was privy are C.D.'s 

statements as reported by Ms. Heiby that "[Montgomery] started hitting her after [their 

son] was born. * * * * She recalled how [Montgomery] hit her in the head with a closed fist 

and knocked her to the floor, she felt her brain shake. * * * * [She] said she got daily beatings 

and went to work with bruises. * * * * [She recalled one episode in which Montgomery] was 

so drunk and high that he was driving her Blazer with a flat tire. She told [Montgomery] he 

had to leave and he 'beat her to a pulp.' She said [Montgomery] slammed her to the floor 

and choked her until her daughter came down and jumped on his back and bit him in the 

ear. [It took police 45 minutes to arrive;] until then [Montgomery] continued beating her. 

* * * * She said he always made excuses, he never took responsibility. She said 

[Montgomery] would blame her when he beat her." Ex. 30-B-25. Ms. Heiby's summary of 

her interview with T.L., as also cited by Dr. Stinson's report, records along with points 

perhaps more useful for mitigation on psychological grounds that "in 1994 or 1995 she 

called the police on [Montgomery] because he was hitting her." Ex. 30-B-33 at 2. When 

their son was two years old, "[Montgomery] had been drinking and pushed a coat rack 

through the wall. She said she told [Montgomery] she wanted him gone then 

[Montgomery] said if he goes then they all go. [She] said [Montgomery] pulled out a gun 

and said he would kill the kids first and then her and himself." Id. Weisman 

understandably considered potential testimony about this episode "very damning." Supra 

at ¶ 42, citing Aug. 21, 2017 Tr. at 136. 

{¶ 201} Yet the trial court's analysis did not reflect this (cost) half of the equation 

evaluating these manifest concerns to determine whether the defense had made "a tactical, 

informed decision" when deciding not to put Fradkin and Stinson before the three-judge 

panel. Compare State v. Johnson, 24 Ohio St.3d 87, 91 (1986). That is, the trial court failed 
No. 19AP-41 74 

to factor into its analysis the severe potential negatives of this alternative mitigation 

strategy that could have operated further to undermine the more sympathetic portrayal of 

Mr. Montgomery that the defense sought to portray, compare, e.g., June 6, 2012 

Sentencing Opinion at 5 (pointing to documentation of Montgomery's sexual victimization 

at the age of four and to his argument that he took full responsibility for the killings). And 

the record contains no evidence that defense counsel's concerns were unreasonable or 

imaginary: quite the contrary. 

{¶ 202} By not engaging in that assessment and looking to potential costs as well as 

potential benefits, even when condemning a defense decision that ordinarily would be 

deemed "a matter of trial strategy," see Pickens, 2014-Ohio-5445, at ¶ 222, I think the trial 

court abused its discretion. Compare, e.g., State v. S.E.J., 8th Dist. No. 105883, 2018-

Ohio-2060, ¶ 10, 13, 14 (trial court abused its discretion by failing to undertake required 

weighing, which would have dictated different result); State v. Hamberg, 1st Dist. No. C140536, 2015-Ohio-5074, ¶ 30-33 (abuse of discretion not to consider required factors; 

citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14, as observing that a 

decision is " 'unreasonable' " if it " 'lacks a "sound reasoning process" ' "; further citation 

omitted). 

{¶ 203} Moreover, although I agree with the majority that at places the trial court 

recited the correct standard for measuring whether counsel deficiency has prejudiced a 

defendant, see supra at ¶ 165, I do not agree that the recitation shows that the trial court 

applied the correct standard. The thoughtful and experienced trial court judge, whose 

responsibilities in this matter I certainly do not envy, deserves to be taken at his word. And 

what he said—in re-defining counsel error and explaining why he reached his finding of 

prejudice—was that "since" Fradkin and Stinson "were not presented" to the three-judge 

panel, the trial court "cannot conclusively state that there is no reasonable probability that 

the panel would have reached a different conclusion had the experts testified during 

mitigation." Postconviction Decision at 69. 

{¶ 204} But (as I take it the majority agrees, see supra at ¶ 162) the question before 

the trial court was not whether the judge was left at least in equipoise, but whether 

Montgomery had carried his burden of proving prejudice from the claimed error. "On the 

issue of counsel's ineffectiveness, the petitioner has the burden of proof * * *." Gondor, 

2006-Ohio-6679, at ¶ 62. "In order to show deficient performance, defendant must prove 
No. 19AP-41 75 

that his counsel's performance fell below an objective level of reasonable representation. 

To show prejudice, defendant must show a reasonable probability that, but for his counsel's 

errors, the result of the proceeding would have been different." Jackson, 2005-Ohio-5981, 

at ¶ 133, citing Strickland; Bradley, 32 Ohio St.3d at 143; see also, e.g., State v. Pagan, 10th 

Dist. No. 19AP-216, 2019-Ohio-4954, ¶ 18 (the accused must make both showings). Thus, 

"the petitioner must submit sufficient operative facts or evidentiary documents that 

demonstrate that the petitioner was prejudiced by ineffective assistance." Gondor at ¶ 62. 

Because I do not read the trial court's finding that it "cannot conclusively state that there is 

no reasonable probability that the panel would have reached a different conclusion had the 

experts testified during mitigation," id., to equate with a finding that Mr. Montgomery had 

carried his burden of proof to establish a reasonable probability of actual prejudice, and 

because the trial court expressed that rationale for its conclusion immediately before 

finding that Mr. Montgomery's "ineffective assistance argument with respect to counsel's 

performance during the mitigation phase only is well taken and hereby GRANTED," id. at 

69-70 (emphasis in original), I would determine that the trial court strayed from the correct 

standard. 

{¶ 205} To me, however, the trial court's use of the convoluted and improper 

standard is secondary to the trial court's unexplained failure to credit or analyze why "trial 

counsel chose not to present that [Stinson and Fradkin] expert testimony." Compare

Postconviction Decision at 65. The trial court's failure to account for counsel's quite 

legitimate concerns about the very significant negatives those witnesses would have 

brought is, to my mind, error that we cannot wish away under the law that binds us. 

{¶ 206} I respectfully dissent from the majority in that I would sustain the state's 

third and fifth assignments of error and would find its fourth assignment moot. I agree 

with the majority in overruling the other assignments of error from the state and 

Mr. Montgomery. 

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