[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Drain , Slip Opinion No. 2022-Ohio-3697.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2022-O HIO -3697
T HE S TATE OF O HIO , A PPELLEE , v . D RAIN , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State v. Drain , Slip Opinion No. 2022-Ohio-3697.] Criminal law—Aggravated murder—Findi ngs of guilt and death sentence affirmed. (No. 2020-0652 —Submitted Marc h 8, 2022—Decided October 19, 202 2.)
A PPEAL from the Court of Common P leas of Warren County, No. 19 CR 358 70.

______________ K ENNEDY , J. {¶ 1} This is a death-penalt y appeal as of right. {¶ 2} On April 13, 2019, appellant, Victoria Michelle Drain 1 assaulted Christopher M. Richardson, a fello w inmate in the Residential T reatment Unit (“RTU”) at the Warren Correctional Institution (“WCI”). Two da ys later, Richardson died from his injuri es. Drain was indicted for aggr avated murder with death specifications. She pleaded no contest to all counts and specifications, was found guilty, and sentenced to death.

1. During the pendency of this appeal, appellant obtained a le gal name change from “Joel M. Drain.”S UPREME C OURT OF O HIO

2 {¶ 3} In this appeal, Drain raise s 16 propositions of law. We reject each of
them. We conclude that alt hough significant mitigating factors exist, the aggravating circumstances outweigh the mitigating factors beyon d a reasonable
doubt. We further conclude that the death sentence is appropri ate and proportionate. Accordingly, we affi rm Drain’s death sentence.
I. FACTS AND PROCEDURAL HISTORY A. The Investigation {¶ 4} On April 13, 2019, State Trooper Na than Stanfield was assigned to investigate an assault on Richardson, an inmate at WCI. When T rooper Stanfield arrived at the prison, WCI’s inve stigator told him that a corre ctional officer had seen drops of blood and bloody foot prints on the stairs leading up to Unit 1-C and
had followed the blood tra il to Drain’s cell. {¶ 5} In Drain’s cell, officers found Richardson on the floor. Richa rdson was unconscious and there was “a large amount of blood inside t he cell.”
Richardson was taken to the hos pital. Drain surrendered and wa s removed from
the cellblock. 1. Drain’s First Confession {¶ 6} After viewing the crime scene, T rooper Stanfield interviewed Dr ain. Trooper Stanfield administered the warnings as set forth in Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Drain a cknowledged that she understood the warnings. Dur ing an interrogation lasting a bout half an hour, Drain expressly admitted that she had intended to kill Richards on and explained how and why she ha d assaulted him. {¶ 7} On the previous day, April 12, Dr ain had decided to kill a part icular inmate (whom she did not identify) because that inmate was a ch ild molester. On April 13, Drain began preparing t o kill the unidentified inmate

. {¶ 8} Drain initially planned to stab the unidentified inmate with a homemade knife, but decided it was taking too long to fashion a nd hone the knife.January Term, 2022

3 Instead, Drain decided to hit the unidentified inmate with a mo tor from a large electric fan and then strangle him. {¶ 9} Drain and Richardson were only casually acquainted. Drain possessed a quantity of a smoka ble drug known as K-2. Knowing that Richardson liked to get high, Drain invited Richardson to her cell to smok e some K-2. Drain
then returned to her cell to wait for Richardson. {¶ 10} Drain told Trooper Stanfield that her “adrenaline was just runn ing” in anticipation of killing the targeted inmate. By the time Ri chardson arrived, Drain was “going crazy inside.” Drai n was “ready to go” and “just wa nted to do something to somebody.” {¶ 11} Drain invited Richardson to sit. By this time, Drain was think ing that it would be easy to kill Richardson when he was not expect ing an attack. Drain had the fan motor concealed in her pocket. Holding it by the c ord, she pulled it out
and hit Richardson in the head with it. {¶ 12} Richardson went down on one knee and Drain continued to batter
Richardson’s head with the motor , even after the cord broke off . Drain then shoved a pencil into Richardson’s eye and used her foot to drive it in to his head. By then, Richardson was unconscious. Drain proceeded to strangle Richar dson with the cord. When the cord broke for the second time, Drain used a ca ble from a television antenna and kept strangling Ric hardson until he stopped moving, which took three
to four minutes. {¶ 13} Drain was now angry because she could not use the motor to kill her originally intended victim, and she stomped on Richardson’s thr oat about ten times. {¶ 14} By this time, Drain was covered in Richardson’s blood. She put on a hooded sweater to hide the bl ood and left the cell. Encounte ring another inmate, Drain told that inmate that she had “just smoked some K-2 and [ that she was] fucked up and just acted like a dumbass.” (Drain had not, in fact, smoked any K2.)S UPREME C OURT OF O HIO

4 2. Drain’s Second Confession {¶ 15} On June 1, 2019, Drain gave an unsolicited written statement ab out Richardson’s murder to Lieutenant Joseph J. Santha Jr., a corre ctional officer at the Ohio State Penitentiary, where Drain was then housed. This con fession differed from the story that Drain told Trooper Stanfield on April 13. Drain wrote that the April 13 version was a “vague a ccount of the murder,” while the new version was
“the whole account.” (Underlining sic.) {¶ 16} Drain wrote that from the time she arrived at WCI, she had plan ned to kill an inmate whom she believed to be a child molester. (D rain admitted to having made several such attempts while she was in other prison s.) The inmate
that Drain had selected to kill was housed in a cell near Richa rdson’s. Drain asked Richardson to coax the chosen victim into Richardson’s cell, wh ere Drain would “confront him.” Richardson was hesitant, but ultimately agreed . Drain enlisted Richardson’s help because Drain believed that Richardson was ea sy to manipulate. {¶ 17} However, the next time that Drain had raised the subject, Richa rdson refused to get involved, explaini ng to Drain that he did not ju dge people and was trying to stay out of trouble. Drain began to worry that Richa rdson might report her plan to the pris on authorities. Drain t herefore decided to kill Richardson. {¶ 18} Drain prepared the fan motor and cord and moved the contents of her cell “into positions that [would] keep Richardson from usin g them * * * to make noise, or defend himself.” Drain also set out three freshly sh arpened pencils, which she seemingly planned to insert into Richardson’s anus to “show him why all crimes are NOT the same.” (Capitalizati on sic.) Drain then offered t o share a “joint” with
Richardson after dinner. {¶ 19} When Richardson entered Drain’s cell, Drain ordered him to knee l. Drain then hit him in the head with the fan motor, knocking him over. Drain asked Richardson why he would save a p edophile and then struck him ag ain. Then Drain picked up a pencil, pulled Richar dson’s pants down, and threate ned to “fuck him”January Term, 2022

5 with it. But instead, Drain jammed the pencil into Richardson’ s eye and “stomp[ed] it all the way in.” Drain resumed beating Richardson in the he ad with the fan motor until the makeshift handle broke. Drain then proceeded to stom p on Richardson’s throat and strangle him with a cable until the guards began the ir rounds. 3. The Autopsy {¶ 20} On April 15, 2019, Richardson died from the injuries Drain had inflicted. Dr. Mary E. Goolsby, a forensic pathologist and dep uty Montgomery County coroner, performed an autopsy. {¶ 21} Dr. Goolsby found numerous blunt- and sharp-force injuries to Richardson’s head and neck, including a fractured skull, a stab wound going through Richardson’s nose into hi s left eye socket and his brai n, five puncture wounds to the head, and one punc ture wound to the neck. She fo und hemorrhaging
and contusions to Richardson’s br ain, from which she recovered a splintered piece of a pencil. She also found evidence of strangulation. Dr. Go olsby concluded that Richardson died from “[m]ultiple blunt force injuries and sharp force injuries of the
head and neck.”
B. Trial-Court Proceedings {¶ 22} Drain was indicted on two counts of aggravated murder. Count 1 charged Drain with the aggravated murder of Richardson with pri or calculation and design, in violation of R.C. 2903.01(A). Count 2 charged Drain with the aggravated
murder of Richardson while Drain was under detention for a felo ny, in violation of R.C. 2903.01(D). Both counts included two death specifications . Specification 1 charged that Drain committed the murder while under detention, in violation of R.C. 2929.04(A)(4). Specification 2 charged that Drain had pre viously been convicted of the purposeful killi ng of or attempt to kill anoth er, in violation of R.C. 2929.04(A)(5). Counts 1 and 2 also included a repeat-violent-o ffender (“RVO”) specification, in violation of R.C. 2941.149(A). Count 3 charg ed Drain with possessing a deadly weapon while under detention for having com mitted the crimeS UPREME C OURT OF O HIO

6 of aggravated murder, in violation of R.C. 2923.131(B) and (C)( 2)(a). Drain initially pleaded not guilty. {¶ 23} Drain subsequently waived a jury trial, and a three-judge panel was selected to hear the case. Before the panel, Drain pleaded no contest to all the counts and specifications in the indictment. After taking this plea, the panel held an evidentiary hearing as required by R.C. 2945.06 and a plea h earing as required by Crim.R. 11(C)(3). See also State v. Green , 81 Ohio St.3d 100, 101, 689 N.E.2d 556 (1998). In advance of the hea ring, the parties stipulated to the admissibility of various items of evidence and agreed that “the rules of evidenc e will not bar the admission of testimony and/or documen tary evidence.” At trial, Trooper Stanfield was the lone prosecution witness, recounting what he had learne d in his investigation. Drain’s confessi ons, Dr. Goolsby’s autopsy repo rt, and other documentary evidence and recordings were also admitted into evi dence. {¶ 24} The panel found Drain guilty of all counts and specifications. Counts 1 and 2 were merged for sentencing, and the state electe d to have Drain
sentenced on Count 1. {¶ 25} The panel then conducted a senten cing hearing and Drain present ed some mitigating evidence. Her cousin Miranda Shoemaker and Dra in’s life-long family friend, Andrea Stanfield, each testified. Drain also ma de an unsworn statement. However, Drain woul d not allow defense counsel to p resent testimony from her 14-year-old daughter. D rain also instructed defense c ounsel not to present the mitigating evidence containe d in defendant’s exhibit A. {¶ 26} The panel sentenced Drain to deat h for the aggravated murder of Richardson. The panel also sent enced Drain to 11 years in pris on on Count 3 (possessing a deadly weapon while under detention for having co mmitted the crime of aggravated murder), to be served concurrently to Count 1, an d 10 years in prison on the RVO specification, to be ser ved consecutively to all oth er sentences.January Term, 2022

7 II. VALIDITY OF JURY WAIVER AND NO-CONTEST PLEA A. Knowing, Voluntary, and Intellig ent Character of Waiver and Plea {¶ 27} In her ninth proposition of law, Drain contends that neither he r jury waiver nor her subsequent pleas of no contest were made knowing ly, voluntarily, and intelligently because, due to defense counsel’s alleged fai lure to investigate,
Drain “did not have all the rele vant information concerning the available mitigation
* * * and how it could be cohesivel y presented to a jury.” 1. The Jury Waiver {¶ 28} A jury waiver must be voluntary, knowing, and intelligent. E.g. , State v. Ruppert , 54 Ohio St.2d 263, 271, 375 N.E.2d 1250 (1978). “The purpose of the ‘knowing and voluntary’ inquiry * * * is to determine wh ether the defendant actually does understand the significance and c onsequences of a particular d ecision
and whether the decision is uncoerced.” (Emphasis sic.) Godinez v. Moran , 509 U.S. 389, 401, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), fn. 12. {¶ 29} Waiver may not be presumed from a silent record; however, if th e record shows that a jury waiver was executed, the verdict will not be set aside except on a plain showing that t he waiver was not freely and in telligently made.
Adams v. United States ex rel. McCann , 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Moreover, a written waiver is presumptively volunt ary, knowing, and intelligent. United States v. Sammons , 918 F.2d 592, 597 (6th Cir.1990); see generally State v. Bays , 87 Ohio St.3d 15, 19, 716 N.E.2d 1126 (1999); State v.
Lawson , 165 Ohio St.3d 445, 2021-Ohio-3566, 179 N.E.3d 1216, ¶ 74. {¶ 30} Drain executed and filed a written jury waiver. The waiver acknowledged that Drain had been advised that she had a right t o a trial by a jury of 12, that she had a right to participate in the selection of the 12 jurors, and that for her to be convicted, the verdict of the jury would have to be u nanimous. The waiver also stated Drain’s understanding that if she waived a jury, a three-judge panel would hear the matter. The waiver stated that no threats or pr omises had been madeS UPREME C OURT OF O HIO

8 to secure the waiver, that Drain had discussed the waiver with defense counsel, and
that Drain was satisfied wit h her counsels’ representation.
2. The No-Contest Plea {¶ 31} “Because a no-contest or guilty plea involves a waiver of constitutional rights, a defendant’s decision to enter [such] a plea must be knowing, intelligent, and voluntary.” State v. Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10. {¶ 32} “Prior to accepting a guilty plea from a criminal defendant, th e trial
court must inform the defendant t hat he is waiving his privileg e against compulsory self-incrimination, his right to jury trial, his right to confr ont his accusers, and his right of compulsory process of witnesses.” State v. Ballard , 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the syllabus, following Boykin v.
Alabama , 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court
must further inform the defendant that his or her plea waives t he right “to require the state to prove the defendant’s guilt beyond a reasonable do ubt at a trial at which the defendant cannot be compelled to testify against himself or herself.” Crim.R. 11(C)(2)(c). {¶ 33} In this case, the trial court complied with Ballard and Crim.R. 11(C)(2)(c) by informing Drain in open court that her no-contes t plea waived her constitutional rights to a jury trial, to a unanimous jury verd ict, to a trial at which the state would be required to prove Drain’s guilt beyond a rea sonable doubt, to confront the state’s witnesses, to compel the attendance of def ense witnesses, and to remain silent. And Drain stated in open court that she unde rstood each of the rights she was giving up. {¶ 34} Drain initiated the decision to plead no contest. Indeed, she “insisted upon it against advice of counsel, and held to it through a len gthy plea colloquy,” State v. Fitzpatrick , 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 40.January Term, 2022

9 In Fitzpatrick , we concluded on similar facts that a capital defendant’s deci sion to plead guilty was clearly voluntary. Id

. 3. Inadequate Investigation {¶ 35} Nevertheless, Drain contends tha t her jury waiver and no-contes t plea were not voluntary, knowing, and intelligent, because defe nse counsel rendered ineffective assistance by failing to perform an adequa te pretrial investigation. Drain argues that counsel lacked “adequate know ledge of the relevant facts concerning the c rime” and did not “understand th e underlying psychological factors that led to the offense.” Therefore, at the time of her waiver and plea, Drain asserts, she “di d not have all the relevant inf ormation concerning the available mitigation in her case and how it could be cohesi vely presented to a jury.” {¶ 36} To establish ineffective assistance, Drain must show (1) that counsel’s performance was deficie nt, i.e., that counsel’s perfo rmance fell below an objective standard of reasonable representation, and (2) that c ounsel’s deficient performance prejudiced the defenda nt, i.e., that there is a rea sonable probability that, but for counsel’s errors, the proceeding’s result would h ave been different. Strickland v. Washington , 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 142-143, 538 N.E.2d 373 (1989). {¶ 37} Ineffective assistance of counsel can affect the voluntariness of a guilty or no-contest plea when “a defendant is represented by c ounsel during the plea process and enters his plea upon the advice of counsel .” (Emphasis added.)
Hill v. Lockhart , 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In th at situation, “the voluntariness of the plea depends on whether co unsel’s advice ‘was within the range of competence demanded of attorneys in crimina l cases.’ ” Id ., quoting McMann v. Richardson , 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).S UPREME C OURT OF O HIO

10 {¶ 38} “[W]hen a defendant claims that his counsel’s deficient perform ance deprived him of a trial by causing him to accept a plea, the de fendant can show prejudice by demonstrating a ‘reas onable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on goi ng to trial.’ ” Lee
v. United States , ___ U.S. ___, ___, 137 S.Ct. 1958, 1965, 198 L.Ed.2d 476 (201 7), quoting Hill at 59. And “where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence , the determination whether the error ‘prejudiced’ the defe ndant by causing him to plead gu ilty rather than go to trial will depend on the likelihood that discovery of the ev idence would have led counsel to change his recommenda tion as to the plea.” (Emphasi s added.) Hill at 59. {¶ 39} Neither Hill nor Lee is helpful to Drain. Drain did not plead no
contest on the advice of counsel— on the contrary, in pleading n o contest, Drain rejected counsel’s advice. Nor is there any likelihood that further in vestigation would have led counsel to change their recommendation as to the plea—counsel had already advised Drain against pleading no contest. {¶ 40} Nor does the record demonstrate a reasonable probability that D rain would have pleaded not guilty but for counsel’s alleged errors. Rather, the record shows Drain’s longstanding deter mination to plead no contest an d to have the proceedings over as quickly as possible. {¶ 41} Drain’s resolve to plead no cont est was consistent; she indicat ed her intent on January 2, 2020, at the latest, and so far as the rec ord shows, she did not waver thereafter. On January 2, Drain wrote a letter to the tr ial judge stating that she wanted to plead no contest. {¶ 42} At a hearing on February 19, 2020, Drain discussed her intent w ith the presiding trial judge. The judge noted his receipt of Drai n’s January 2 letter, and Drain acknowledged writing it. This exchange followed:January Term, 2022

11 THE COURT: And, you want to enter a plea of no contest to these charges? DRAIN: Yes, I do. THE COURT: And, you want to waive the presentation of any mitigating evidence, right? DRAIN: Aside from an unsworn statement from myself, yes,
I do.

(Capitalization sic.) Drain resisted the idea of an additional mental-health evaluation: “By no means am I inc ompetent to make this decision and [Dr. Jenny O’Donnell, the defense psychologi st] will say the same thing.” During the February 19 hearing, the judge also stated: “If you want to cho ose this course of action * * * I am not going to stop you.” Drain replied: “You are stopping me * * * I just want to plea[d] out.” Drain insisted that she understoo d the law, the charges, and the consequences of her actions. She accused the trial cou rt of prolonging the proceedings because the court “like[d] the circus down here.” Drain also stated: “I told [defense counsel] a month ago on January 15th that this wa s how I wanted to proceed.” {¶ 43} Finally, after the February 19 hearing, the trial court receive d yet another letter from Drain. In this letter, Drain stated that s he was “simply agreeing to the truth of the facts in [her] indictment and leaving the r est up to the 3 judge panel.” Drain also protested further against the trial court’s “delaying [her] case’s resolution” and questioning her co mpetence to make decisions. {¶ 44} Finally, the record shows that the defense did perform a substa ntial investigation. Counsel obtained reports from a psychologist an d a mitigation specialist, who interviewed Drain’s mother, brother, cousin, ex -wife, and two
children. The defense obtained approximately 1,900 pages of pr ison, youth services, educational, and cour t records pertaining to Drain.S UPREME C OURT OF O HIO

12 {¶ 45} In Henness v. Bagley , 644 F.3d 308 (6th Cir.2011), the United States Court of Appeals for the Sixth Circuit described a similar inve stigation as “a thorough investigation into pot ential mitigating factors.” Id . at 323. Defense
counsel in Henness

obtained Henness’s school records, police records, and prison records. He spoke with Henness’s mother and sisters on multipl e occasions. He also discussed with Henness’s wife, father, stepmother, and other individuals the possibility of testifying during the mitigation stage. Counsel also retained a psychologist, wh o evaluated Henness and was available to testify.

Id

. {¶ 46} For the foregoing reasons, we hol d that Drain’s decisions to wa ive a jury trial and enter a plea of no contest were voluntary, knowi ng, and intelligent. Drain’s ninth proposition of law is therefore rejected. B. Holding Court Pro ceedings During the COVID-19 Pandemic {¶ 47} Drain’s eighth proposition of law c ontends that the trial court violated the Fifth, Sixth, and Fourteenth Amendments to the Uni ted States Constitution by going forward wit h proceedings in this case dur ing the COVID-19 pandemic. {¶ 48} As Drain points out, the governor declared a state of emergency on March 9, 2020. The Ohio Department of Health issued a statewid e stay-at-home order on March 22, 2020, effectiv e from March 23 through April 6, 2020. Director’s Stay At Home Order, chrome-extension ://ieepebpjnkhaiioojkepfniodjmjjihl/ data/pdf.js/web/viewer.html ?file=https%3A% 2F%2Fcoronavirus.ohio.gov%2Fstatic %2Fpublicorders%2FDirectorsOr derStayA tHome.pdf (accessed Apr. 28, 2022). The stay-at-home order was later extendedJanuary Term, 2022

13 until May 1, 2020. Amended Director’s Stay At Home Order, chro meextension://ieepebpjnkhaiioojkepf niodjmjjihl/data/pdf.js/web/vi ewer.html?file=htt ps%3A%2F%2Fcoronavirus.ohio.gov%2F static%2Fpublicorders%2FDirec torsStay-At-Home-Order-Amended-04- 02-20.pdf (accessed Apr. 28, 2022 ). On March 27, 2020, the governor signed Am.S ub.H.B. No. 197, which tolled all statutes of limitations that were set to expire between March 9 and July 30 , 2020. On the same date, this court issued an administrative order tolling all tim e requirements “imposed by the rules of the Cour t and set to expire during the term of this order.” In re Tolling of Time Requirements Impos ed by Rules Promulgated by the Supreme Court & Use of Technology , 158 Ohio St.3d 1447, 2020-Ohio-1166, 141 N.E.3d
974. {¶ 49} The trial court held proceedings in this case on April 16 and M ay 18, 2020. On April 16, Drain reiterate d her previously stated desi re to waive a jury trial and to plead no contest. On May 18, Drain entered her no -contest plea. The state presented its evidence, a nd the three-judge panel found D rain guilty. The penalty phase of the proceeding was then held, and at its concl usion, the panel
sentenced Drain to death. {¶ 50} Drain contends that the ci rcumstances of the pandemic unconstitutionally forced her to c hoose between two fundamental rights—i.e., the right to a speedy trial and the right to an impartial jury. Du ring a global pandemic, Drain argues, it is impossibl e to provide both at the same time

. {¶ 51} However, Drain has forfeited this claim. The defense did not r aise
this issue in the trial court. A trial court is “under no obli gation to grant a continuance sua sponte.” State v. Gumm , 73 Ohio St.3d 413, 428, 653 N.E.2d 253 (1995). And a defendant’s failure to raise an issue at trial f orfeits all but plain error
on review. See, e.g. , State v. Issa , 93 Ohio St.3d 49, 56, 752 N.E.2d 904 (2001). {¶ 52} To demonstrate plain error, an a ppellant must show (1) that the re was an error, (2) that the error was “plain,” i.e., obvious, an d (3) that the errorS UPREME C OURT OF O HIO

14 affected the appellant’s “substantial rights.” State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). To show that an error affected an appe llant’s substantial rights, he or she must show “a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffecti ve assistance of counsel claims.” (Emphasis sic.) State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio2459, 38 N.E.3d 860, ¶ 22. Therefore, the appellant must show “that the probability
of a different result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” United States v. Dominguez Benitez , 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. Here, Drain fails to show plain error. {¶ 53} Drain argues that had she elected a jury trial, the potential j urors would have been “reasonably likel y to be concerned about their risk of exposure to the virus.” This concern, Drai n argues, had the potential to “ impair the jury’s ability to remain fair and impartial” because jurors would want to comp lete deliberations as quickly as possible to minimize their risk of infection; thi s temptation would interfere with their ability to “properly consider and delibera te on the evidence.” Drain also suggests that jury pools summoned during a pandemic would not represent a fair cross-section of the community. As a result, Drain contends, her ability to make “informed” choi ces about waiving a jury trial, pleading no contest, and declining to present mitigating evidence was “hampered.” T hese conjectures fall far short of establishing plain error. {¶ 54} Moreover, the logic of Drain’s ar gument seems to require that a ll criminal proceedings be suspended until either the pandemic is over or perhaps until its severity has lessened to a time in which social-distancing protocols are unnecessary. But to the contrar y, the chief justice has stated that trial judges have the authority to grant continuances “ on a case-by-case basis without violating speedy-trial requirement s.” (Emphasis added.) In re Disqualification of Fleegle , 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, ¶ 7. Also , “[t]he grant orJanuary Term, 2022

15 denial of a continuance is a ma tter which is entrusted to the b road, sound discretion of the trial judge.” State v. Unger , 67 Ohio St.2d 65, 425 N.E.2d 1078 (1981), syllabus. Drain makes no showing that the trial court abused i ts discretion by proceeding under the circu mstances of this case. {¶ 55} Finally, the record does not dem onstrate prejudice. Nothing in the record suggests the existence of a reasonable probability that Drain’s decisions to waive a jury trial, plead no contest, and partially forgo mitig ating evidence were affected by the exist ence of the pandemic. {¶ 56} Drain emphatically expressed her wish to plead no contest as ea rly as January 2, 2020, long before t he governor’s proclamation. S he told her defense counsel of her decision on January 15, 2020. During the Februa ry 19 hearing, Drain expressly stated in open court th at she wanted to plead no cont est and waive all mitigation, with the exception of providing an unsworn statemen t. {¶ 57} Therefore, the record shows that Drain’s initial decisions to f orgo a jury trial, plead no contest, and waive much of her mitigation predated—and hence
could not have been affected by—the governor’s March 9, 2020 em ergency order. Nor does anything in the record suggest that the ongoing pandem ic affected any of Drain’s subsequent decisions. T herefore, Drain fails to show t hat she was prejudiced by the trial court’s proceeding with the plea, evide ntiary hearing, and sentencing during the pandemic. D rain’s eighth proposition of law is rejected.
III. EVIDENTIARY ISSUES

A. Inadmissible Evidence {¶ 58} Drain’s fifth proposition of law c ontends that the trial court improperly permitted the state to introduce inadmissible eviden ce—specifically, hearsay and improper opinion—as a basis for the court’s determi nation of guilt under Crim.R. 11(C)(3). {¶ 59} During the hearing, the state adduced the testimony of Trooper Stanfield, who had investigated R ichardson’s murder. Having al ready stipulatedS UPREME C OURT OF O HIO

16 that “the rules of evidence [would] not bar the admission of te stimony and/or documentary evidence,” the defe nse did not object to Trooper St anfield’s testimony at any point. {¶ 60} Trooper Stanfield was the only liv e witness at the evidentiary hearing, and his testimony relate d various facts that he had le arned from others. For instance, he repeated the conclusions of the deputy coroner who had performed the autopsy on Richardson. He also testified that he had seen blood in various places in the unit, such as on the stairs and in Drain’s cell. Drain argues that this testimony was improper because no foundation was laid for Troop er Stanfield’s ability to identify blood. But see State v. Stout , 42 Ohio App.3d 38, 41-42, 536 N.E.2d 42 (12th Dist.1987) (a poli ce officer’s lay opinion that a stain in a photograph appeared to be blood wa s admissible; the officer’s o pinion was based on his perception and was helpful to the determin ation of a fac t in issue). {¶ 61} When a defendant pleads guilty or no contest to aggravated murd er in a capital case, the three-judge panel is nevertheless requir ed to examine witnesses and to hear any other evidence that is properly presented by th e state to make a Crim.R. 11(C)(3) determination beyond a reasonable doubt as to the defendant’s guilt. State v. Green , 81 Ohio St.3d 100, 104-105, 689 N.E.2d 556 (1998); State v.
Post , 32 Ohio St.3d 380, 392, 513 N.E.2d 754 (1987), overruled in part on other grounds by State v. McDermott , 72 Ohio St.3d 570, 651 N.E.2d 985 (1995), syllabus. See also R.C. 2945.06 (when a defendant pleads guilty to aggravated murder, the three-judge panel “sh all examine the witnesses [and ] determine whether the accused is guilty of a ggravated murder or any other offense”). {¶ 62} Citing R.C. 2945.06, Drain contends that when a three-judge pan el examines witnesses, t he state’s presentati on of evidence must c onform to the Ohio Rules of Evidence. Therefore, D rain argues that the trial cour t erred by “determining that the rules of evidence were not required at Dr ain’s plea hearing” and by “adopting a procedure in whi ch the rules of evidence did not apply at all.”January Term, 2022

17 {¶ 63} But Drain’s argument utterly i gnores the fact that she stipulat ed to the admissibility of the state’s evidence. Nothing in the Ohio Rules of Evidence precludes the parties in a criminal case from stipulating to th e admissibility of otherwise inadmissible evidence. Indeed, we have held that sti pulations made by the accused or by defense counsel in the presence of the accuse d are binding. State
v. Turner , 105 Ohio St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 41, quo ting
Post at 393. The trial court did not err by applying a stipulation that had been agreed to by the parties. Accord ingly, we reject Drain’s fifth proposition of law.
B. Prosecutorial Misconduct {¶ 64} Drain’s seventh proposition of law contends that the prosecutor committed misconduct by introducing state’s exhibit Nos. 37, 38 , and 40. State’s
exhibit No. 37 is a letter written by Drain on May 27, 2019, to the Warren County prosecuting attorney. State’s exhibit No. 38 is an incident re port from the Ohio State Penitentiary tha t recounts the statements that were made by Drain to a
correctional officer. State’s exhibit No. 40 is a DVD of witne ss interviews conducted by Trooper S tanfield and another state trooper. {¶ 65} Drain contends that these exhi bits contained irrelevant and prejudicial information about Dra in’s character, including prio r crimes, “bad acts,” and pejorative descriptions of Drain’s character, such as “anim alistic,” dangerous, and calculating. Although the defense failed to object to any of these exhibits in whole or in part, and in fact s tipulated to their admissibility , Drain contends that their admission was plain error. {¶ 66} The plain-error rule does not appl y here. “Agreements, waivers and stipulations made by the accused, or by the accused’s counsel i n his presence, during the course of a criminal t rial are binding and enforceab le.” Post , 32 Ohio St.3d at 393, 513 N.E.2d 754. Moreover, a party may not “ ‘tak e advantage of an
error which he himself invited or induced.’ ” State v. Campbell , 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000), quoting Hal Artz Lincoln-Mercury, Inc. v. FordS UPREME C OURT OF O HIO

18 Motor Co ., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of th e syllabus. By stipulating to the admissibility of the exhibits, Drain invi ted the error she now alleges. See State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 86;
State v. Totarella , 11th Dist. Lake App. No. 2002-L-147, 2004-Ohio-1175, ¶ 38;
State v. Abercrombie , 12th Dist. Clermont App. No. CA2001-06-057, 2002-Ohio2414, ¶ 27-28. Drain may not now argue that the error she invi ted was plain error. State v. Rohrbaugh , 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10. We therefore reject Drain ’s seventh proposition of law.
IV. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS A. Presumed Prejudice {¶ 67} Drain’s second and third propositi ons of law contend that defen se counsel rendered ineffective a ssistance. To establish ineffect ive assistance, Drain must show (1) that counsel’s perfo rmance was deficient, i.e., t hat counsel’s performance fell below an objectiv e standard of reasonable repr esentation, and (2) that counsel’s deficient perform ance prejudiced the defendant, i.e., that there is a reasonable probability that but for counsel’s errors, the proce eding’s result would
have been different. Strickland , 466 U.S.at 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; Bradley , 42 Ohio St.3d at 142-143, 538 N.E.2d 373. {¶ 68} However, before addressing thos e propositions, we must address Drain’s fourth proposition of law , which contends that no showi ng of prejudice is needed to establish ineffective assistance in this case. Quoti ng United States v.
Cronic , 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), Dra in asks us to presume prejudice because “ ‘counsel entirely fail[ed] to su bject the prosecution’s case to meaningful adversarial testing.’ ” Among other claims, Drain
contends that defense counsel “a llowed” her to plead no contest , failed to conduct a “full and complete” mitigation investigation, did not develop “rapport” with Drain, waived her right to be physically present in court durin g some proceedings, failed to present what mitigating evidence they possessed, fail ed to ensure that theJanuary Term, 2022

19 Rules of Evidence were enforced in the Crim.R. 11(C)(3) plea he aring, and did not object to the imposition of a sentence for the RVO specificatio n. With all these alleged failures, D rain claims, “it was as if [she] had no coun sel at all.” {¶ 69} But to trigger Cronic ’s presumption of prejudice, “the attorney’s failure must be complete.” Bell v. Cone , 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). See also State v. Montgomery , 148 Ohio St.3d 347, 2016- Ohio-5487, 71 N.E.3d 180, ¶ 100. The record must show that def ense counsel “failed to oppose the prosecuti on throughout [a particular] pro ceeding as a whole,” not merely that they “failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic , this difference is not of degree but of kind.” Bell at 697. {¶ 70} Certainly, defense counsel did not completely fail to test the state’s case. Far from “allowing” Drain to plead no contest, they advi sed her against it. Given that Drain was intent on doing so, and given the strength of the state’s evidence—including two detailed c onfessions and the fact that R ichardson was found beaten and strangled in Dra in’s bloodstained cell—counsel could do little to test the prosecution’s case for guilt on the aggravated-murder charges. {¶ 71} As for sentencing, defense c ounsel did perform a mitigation investigation, as we have already discusse d in relation to Drai n’s ninth proposition of law. They obtained a mental -health evaluation, procured int erviews with members of Drain’s family, and acquired approximately 1,900 pag es of information about Drain’s life. They did not introduce this material durin g the penalty phase, because Drain had instructed them not to. They did, however, c all two witnesses
who testified to Drain’s redee ming qualities, and they made a c losing argument. {¶ 72} Defense counsel’s efforts did not amount to a complete failure to subject the state’s case to adversarial testing. We therefore reject Drain’s fourth proposition of law and apply Strickland ’s prejudice prong, id ., 466 U.S.at 687-688,S UPREME C OURT OF O HIO

20 694, 104 S.Ct. 2052, 80 L.Ed.2d 674, to Drain’s second and thir d propositions of
law.
B. Failure to Present Mitigating Evidence {¶ 73} Drain’s second proposition of law contends that defense counsel rendered ineffective assistance as to the penalty phase of the proceeding. Principally, Drain contends tha t defense counsel were constitut ionally ineffective because they failed to present t he available mitigating evidenc e contained in
defendant’s exhibit A during the penalty phase. {¶ 74} After the defense presented its p enalty-phase evidence and Drai n made her unsworn statement, defe nse counsel informed the trial court that they had more evidence, which Drain had forbidden them to use. They ask ed that this evidence be placed in the record under seal:

[Defense counsel]: Your Honor, as [Drain] indicated in this unsworn statement, there is other information that we believe w ould be mitigation on [her] behalf. We * * * have what we would mar k as Defendant’s Exhibit A, that we would ask to be admitted to t he
record under seal. THE COURT: But not for the purpose of considering the
sentence—I’m a little unclear on what it is you’re asking. [Defense counsel]: [Ms.] Drain has indicated * * * that [she] does not want it presented, as [she] referenced in [her] statem ent. It’s our desire that we would like to have it admitted into the record under seal, just as an exhibit. Certainly would be nothing tha t would be deliberated by the Court, but at least it’s made part of the record.

(Capitalization sic.) The trial court agreed to accept the exh ibit under seal.January Term, 2022

21 {¶ 75} Drain argues that because she did not completely waive mitigation, she had no right to control counsel’s decisions regarding what mitigation to present. Therefore, she contends, counsel were obliged to present the mi tigating evidence that their investigati on had developed. However, this is incor rect. “[T]he Constitution does not prohibit a competent capital defendant fr om waiving the presentation of mitigation evidence.” Tyler v. Mitchell , 416 F.3d 500, 504 (6th Cir.2005). Hence, “[a]n attorney does not render ineffective a ssistance by declining, in deference to a client’s wishes, to present mitiga ting evidence.” State
v. Monroe , 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 100. {¶ 76} Drain also contends that she want ed only certain evidence withh eld: evidence concerning her “dysfunc tional childhood” and the testi mony of her daughter. Hence, she argues, defense counsel were at least obl iged to introduce anything in defendant’s exhibit A that did not pertain to her d ysfunctional
childhood. {¶ 77} Drain’s assertion that she wanted to withhold only her daughter’s testimony and her dysfunctional childhood is inconsistent with the record. To begin with, defense counsel specifically represented to the court tha t Drain had instructed them not to present defendant’s exhibit A: “[Drain] has indicat ed * * * that [she] does not want it presented , as [she] referenced in [her] statement.” (Emphasis added.) {¶ 78} Significantly, Drain did not prot est or contradict counsel’s st atement in any way. Dr. O’Donnell’s competency report remarks on Drain ’s insistence on “control[ling] what information wa s presented” during the penal ty phase. It is
difficult to believe that Drain would have let counsel’s statem ent pass without
comment if it did not refl ect Drain’s desires. {¶ 79} Yet Drain argues that her unsworn statement specifically mentio ned only her daughter and her “dysf unctional childhood” as matters that she wanted withheld from the pe nalty-phase hearing. I n her unsworn statem ent, Drain said:S UPREME C OURT OF O HIO

22 My defense team has tirelessly tried to convince me to allow my fourteen year old daughter t o testify during these mitigatio n proceedings, but I’ve elected to block these attempts because I ’d
rather be sentenced to death than to use the only part of me th at’s truly innocent and good to elic it anyone’s empathy or sympathy. My daughter has absolutely nothing to do with my criminal behavior, my faults or my shortcomings and I refuse to allow he r to be used as a human shiel d or a way to humanize me. I’ve also decided to not allow my defense team to present testimony or evidence of my dys functional childhood or upbringi ng. I see no true relevance in rehashing the traumas I went through as a child, so many years after the fact. * * * I feel the issues o f my life lessons hold very little, if no weight at all in my present sit uation.

{¶ 80} She asks us to infer that these items were the only matters she wanted to withhold—leaving defense couns el free to introduce any other mitigating
evidence. {¶ 81} Of course, the fact that Drain me ntioned two specific types of mitigation as being withheld does not contradict counsel’s repr esentation to the trial
court that Drain wanted all of d efendant’s exhibit A withheld. Therefore, if Drain’s argument were based on a fair reading of her unsworn statement, we would still find this argument to be a weak one. {¶ 82} But Drain’s argument is based on a selective reading of the uns worn statement. Drain ignores what she said near the end of her sta tement: “I’m not offering up some fake hypothetical or far-fetched medical mental health excuses

. I’ve not attempted to justify my behavior or pretend of [sic] any mental defects .” (Emphasis added.) This refutes Drain’s contention that counsel were “preventedJanuary Term, 2022

23 only from presenting testimony by Drain’s daughter and evidence of Drain’s childhood.” On the contrary, Drain made a specific point of—in deed, seems to have taken pride in—her refusa l to present any “medical mental health excuses.” {¶ 83} And this refusal was wholly consistent with the central theme o f Drain’s unsworn statement: her complete acceptance of personal responsibility and refusal to ask for sympathy. C onsider how her statement began:

[T]his is the time most people in similar circumstances may off er up some type of empty apology or make a pathetic plea for forgiven ess while trying to capture the Court’s sympathy by presenting all the troubles of my childhood and past troubles . I * * * have decided to spare everyone involved of [si c] those fake formalities * * *. First and foremost, I stand before you today accepting full responsibility. Not only for the murder of Christopher Richard son, but for everything I’ve done in the past or will do in the futu re, good or bad. I myself am responsible for all of my words, actions, successes[,] and failures. I bla me nothing on no one for who I am and the things that I’ve done.

(Emphasis added.) We find in Dra in’s unsworn statement no basi s to question counsel’s express representation that Drain had instructed them not to introduce
defendant’s exhibit A. {¶ 84} In addition, the record contains several references to Drain’s desire of withholding mitigating evidence—before both the penalty-phas e hearing and before Drain had decided to plead no contest. On November 14, 2019, defense
counsel informed the court that he had discussed mitigation wit h Drain, including counsels’ “work with a mitigation specialist and an investigato r,” and that Drain had refused—against counsel’s a dvice—to authorize the release o f information toS UPREME C OURT OF O HIO

24 the mitigation specialist. Drain confirmed this. Drain later agreed to sign the
release forms. {¶ 85} In Drain’s January 2, 2020 handw ritten letter to the trial cour t, she
stated: “After this court has de termined I am fully capable, I’ d respectfully ask this court to allow my plea of no contest, and waiver of mitigation to be well taken, and we can move forward accordingly with the 3 judge panel.” (Emph asis added.) In a subsequent letter, Drain state d that she was not “trying to f orce a death or a life

sentence ,” but was “simply agreeing to the truth of the facts in [her] indictment,
and leaving the rest up to the 3 judge panel . No more, no less.” (Emphasis added.) {¶ 86} At the February 19 hearing, Drai n discussed her request with th e presiding trial judge. The j udge noted receiving Drain’s Janua ry 2 letter, and Drain acknowledged writing t he letter. The fo llowing exchange then o ccurred:

THE COURT: And, you want to enter a plea of no contest to these charges? [DRAIN]: Yes, I do. THE COURT: And, you want to waive the presentation of

any mitigating evidence, right? [DRAIN]: Aside from an unsworn statement from myself, yes, I do

.

(Emphasis added and ca pitalization sic.) This is difficult to square with Drain’s
current assertion that she left defense counsel free to introdu ce any mitigation as long as that mitigating evidence did not touch on her childhood or require testimony from her daughter.January Term, 2022

25 C. Other Ineffective-Assistance Claims {¶ 87} In the remainder of her second proposition of law and in her th ird proposition of law, Drain offers s everal other ineffective-assi stance claims. None
has merit. 1. Delay in Starting Investigation {¶ 88} Drain contends that counsel we re ineffective because they faile d to begin the mitigation investigation within “a reasonable time,” “as soon as they were appointed to the case, ” or “immediately.” {¶ 89} Counsel were appointed on August 30, 2019. On September 20, 2019, they filed a moti on requesting funds f or a defense mitiga tion specialist. The trial court granted the motion on September 27, 2019. It appea rs that the mitigation specialist began interviewing m embers of Drain’s family on Janu ary 18, 2020. {¶ 90} Drain fails to cite anything in t he record to show that it woul d have been possible for the mitigation specialist to begin the interv iews any sooner than she did. Drain simply asserts that “the delay * * * is unexpla ined in the record.”
But the burden is on the defendant to establish the elements of a Strickland claim. “When a convicted defendant compl ains of the ineffectiveness of counsel’s assistance, the defendant must s how that counsel’s representati on fell below an objective standard of reasonableness.” Strickland , 466 U.S. at 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674. Pointing to m atters that are “unexplaine d in the record” does
not meet Drain’s burden to est ablish deficient performance. {¶ 91} Nor does Drain show prejudice. D rain claims that delay in begi nning the investigation prejudiced her because as early as January 2, 2020, before the family’s interviews began, Drain “had already given up” and dec ided to waive a jury trial and plead no contest. Therefore, Drain alleges, she made these decisions without the benefit of knowing what mitigating evidence the inv estigation might
disclose.S UPREME C OURT OF O HIO

26 {¶ 92} However, Drain’s January 2 decisi on to waive a jury trial was n ot irrevocable. On April 16, 2020, th e trial court explained to D rain: “[Y]ou have the right to withdraw this jury waiver at any time before the trial begins.” If Drain’s decisions were affected by a lack of information concerning ava ilable mitigation, she could have changed her mind upon learning what mitigation w as available. {¶ 93} In fact, the record does not sugge st that Drain’s decisions on waiver and pleading were affected by a ny lack of information about mit igating evidence. At the mitigation hearing, Drain indicated that—although by the n she knew what
evidence defense counsel had uncovered—she still did not wish t o present mitigating evidence beyond her own unsworn statement and the te stimony of two witnesses. Drain’s unsworn statement disclaimed any desire to “capture the Court’s sympathy by presenting all the troubles of my childhood and pas t troubles.” Drain
continued:

I’ve also decided to not allow my defense counsel to present testimony or evidence of my dys functional childhood or upbringi ng. I see no true relevance in raising the traumas I went through a s a child, so many years after the fact. * * * I feel the issues o f my life lessons hold very little * * * weight * * * in my present situa tion.

Defense counsel affirmed that Dra in had “indicated [she] [did] not want [mitigating evidence] presented, as [she] ref erenced in [her] statement.” Therefore, Drain has not shown that she was prejudice d by any delay in the investiga tion. 2. Insufficient Investigation {¶ 94} Next, Drain argues that defense counsel failed to investigate mitigating evidence identified in Dr. O’Donnell’s report and th e records counsel
had obtained before the Crim.R. 11(C)(3) hearing. The records contain references
to childhood sexual abuse of Dra in, to Drain’s gender dysphoria and other mental-January Term, 2022

27 health diagnoses, to Drain’s history of substance abuse, and to Drain’s troubled childhood. Even though the defens e had amassed some 1,900 page s of material,
Drain contends that this should have been but the starting poin t of counsel’s investigation. However, as we said in discussing Drain’s ninth proposition of law,
defense counsel conducted “a thor ough investigation into potent ial mitigating factors,” Henness , 644 F.3d at 323. {¶ 95} Moreover, Drain’s claim that the investigation was inadequate i s based on the lack of evidence that counsel investigated further. But Strickland , 466 U.S. at 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674, allocates the burden of showing ineffective assistance to the defendant; we “ ‘cannot infer a d efense failure to investigate from a silent record,’ ” State v. Perez , 124 Ohio St.3d 122, 2009-Ohio6179, 920 N.E.2d 104, ¶ 226, quoting State v. Were , 118 Ohio St.3d 448, 2008- Ohio-2762, 890 N.E.2d 263, ¶ 244. Ultimately, then, Drain’s fa ilure-to-investigate claim rests on speculation. {¶ 96} Finally, even if counsel’s inves tigation were deficient, a defe ndant who “prevented counsel from presenting the mitigating evidence available to them” may not claim prejudice. Henness at 323. Drain “would not allow [defense counsel] to introduce the mitigati ng evidence they discovered” and hence “cannot establish prejudice” from their a lleged failure to investigate further. Id

. 3. Failure to Build Rapport with Client {¶ 97} Drain contends that defense couns el failed to “build a sufficie nt rapport” with her. However, “[t] he Sixth Amendment does not gu arantee ‘rapport’ or a ‘meaningful relationship’ between client and counsel.” State v. Henness , 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997), quoting Morris v. Slappy , 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). {¶ 98} Drain contends that counsel, a lthough aware of Drain’s gender dysphoria, showed disrespect for her by using male pronouns, re ferring to her as “Mr. Drain,” and failing to prote st when the trial court and op posing counsel didS UPREME C OURT OF O HIO

28 likewise. But Drain overlooks that (as reflected in Dr. O’Donn ell’s evaluation) she
asked Dr. O’Donnell and the defe nse team to use “masculine pron ouns and naming
conventions.”
4. Failure to Obtain Medications {¶ 99} Drain contends that her counsel made no attempt to obtain antianxiety medications for her. The record shows that Drain h as a history of refusing to take such medications as prescribed, but she told D r. O’Donnell “if [she] could get something for anxiet y and not feel that it caused [he r] to be vulnerable to others, [she] would consider tak ing it.” Notably, Drain does n ot state what
medications counsel should have obtained or how counsel were to obtain them. Furthermore, nothing in the record shows that Drain would have taken a different
medication if one had been obtai ned; she told Dr. O’Donnell onl y that she “would consider” taking one. Drain’s a rgument fails to establish eith er deficient performance or prejudice. 5. Failure to Ameliorate Conditions of Confinement {¶ 100} Drain also contends that counsel did nothing to ameliorate the conditions of her confinement. Drain complained that the restr aints and security procedures involved with being tr ansported from the state penit entiary to Warren County for court appearances were uncomfortable. During a pret rial conference, defense counsel brought Drain’s com plaints to the trial court’s attention and asked whether Drain could be permitted to attend such conferences rem otely to minimize the number of trips required. T he court determined that Drain could appear remotely, if she wished, at pr etrial sessions involving nonsubs tantive matters. Drain exercised this option tw ice. During these sessions, one of Drain’s two attorneys was with Drain at the penitentiary, wh ile the other w as in court. {¶ 101} Drain contends that attending these sessions remotely was prejudicial because she could not communicate privately during the hearings with the defense attorney in the courtroom. Instead of arranging fo r remote appearances,January Term, 2022

29 Drain argues, counsel should have asked the trial court to orde r that Drain either be confined locally or “be provided some sort of accommodation” as to security procedures. {¶ 102} However, both pretrials at which Drain appeared remotely were brief status conferences in which defense counsel simply update d the court on such matters as discovery, trial preparation, and motions. No evide nce was presented on either occasion. And no prejudice can be gleaned from the reco rd. {¶ 103} Drain contends that her counsel w ere ineffective for allowing h er to waive a jury trial and plead no c ontest without a “complete” investigation of the case, especially as to mitigation. However, as we discussed in the section above in relation to Drain’s ninth propos ition of law, counsel did inves tigate mitigation, and nothing in the record shows that t heir investigation was less t han adequate or that any more evidence existed. 6. Failure to Plea-Bargain {¶ 104} Drain contends that defense c ounsel should have tried to pleabargain with the state “for a sentence less than death.” Again , Drain cites nothing
in the record to show that her counsel did not try to plea-bargain. Drain says only that “there is no indication in the record that there were any plea negotiations at all.” Drain’s argument again mis allocates the burden of persua sion: in a Strickland claim, the defendant has the burden of showing that counsel per formed deficiently.
Strickland , 466 U.S. at 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674. 7. Failure to Seek a Stay {¶ 105} Drain contends that counsel we re ineffective for failing to see k an indefinite stay of the proceedings due to the ongoing COVID-19 pandemic. However, Drain fails to show a reasonable probability that ther e would have been
a different result had counsel r equested a stay. Drain contend s that there is a reasonable probability that she would have changed her mind and opted to go to
trial had counsel obtained a st ay. This is highly speculative, however, especially asS UPREME C OURT OF O HIO

30 Drain initially decided to plead no contest before the governor ’s emergency declaration. ( See discussion of Drain’s ei ghth proposition of law.) 8. Stipulations {¶ 106} Drain contends that defense couns el “stipulated to irrelevant a nd prejudicial information and failed to make a clear and adequate record of what they were stipulating to.” On the contrary, the record is clear. O n April 17, 2020, the trial court put on an entry and order setting the case for tria l. This order
memorialized the sti pulations as follows:

The parties agreed to the admissibility, subject to objections for relevance, of the following evidence without further founda tion: 1) The police report and investigatory reports of the Ohio State [Highway] Patrol; 2) Witness statements; 3) The recorded audio/vide o statement of [Drain]; 4) Letters and correspondence from [Drain]; 5) Investigative documents from the Ohio Department of Rehabilitation and Corrections [(“DRC”)], including administrat ive reports or Rules Infrac tion Board proceedings; 6) Crime scene photogr aphs and/or video; 7) The coroner’s re port and autopsy photos; 8) Laboratory reports regarding scientific testing of items, including tangible evidence re covered from the scene; 9) Tangible evidence recovered from the scene; 10) Medical records of the alleged victim; 11) Pleadings from the Hanc ock County case involving [Drain], including but not limited to the indictment, plea or v erdict entry and judgment entry of sentence;January Term, 2022

31 12) Pleadings from the Flor ida case involving [Drain], including but not limited to the indictment, plea or verdict en try and judgment entry of sentence. The parties also stipulat ed to the following facts: 13) On or about April 13, 2019, [Drain] was under detention. 14) On or about April 13, 2019 and previously to this allegation, [Drain] was convicted of an offense an essential el ement of which was the purposeful k illing of or attempt to kill anoth er. 15) [Drain] is the person referenced in the pleading in the Hancock County and the Florida cases. 16) To the qualifications of Dr. Jenny O’Donnell and the fact that she is qualified to render an expert onion on those matter s within her field of experience.
* * * For planning purposes only, the State of Ohio shall be prepared to go forward with the pr esentation of evidence at the trial phase with the expectation that this evidence will not be chall enged
and the rules of evidence will not bar the admission of testimo ny and/or documentary evidence.

{¶ 107} Drain complains that the stipulations are set forth in terms of “general categories.” But s he offers no explanation of why tha t matters. She cites no authority to support her theory that defense counsel are req uired to “put on the record * * * what exactly the s tipulations entailed beyond mere broad categories.” Nor does she suggest any criteria by which a court could determ ine whether a stipulation is overly broad. {¶ 108} Drain notes that state’s exhibit No. 38, Lieutenant Santha’s in cident report from the state penitentiary, was admitted pursuant to th e stipulations. ThisS UPREME C OURT OF O HIO

32 document contained Drain’s J une 1, 2019 written confession to R ichardson’s murder. According to Drain, state’s exhibit No. 38 “exemplifie s the problem”
because it is unclear whether t he incident report was admitted as a State Highway Patrol investigatory report under stipulation No. 1 or as a DRC investigative document under stipulation No. 5. {¶ 109} Drain does not explain how a repor t from the state penitentiary could possibly be an investigator y report from the State Highwa y Patrol. And even if the report may have been ad missible under two of the stipula tions, Drain does not explain how that circumstance would affect its admissibilit y or what conceivable prejudice c ould have resulted. {¶ 110} Drain also complains that th e scope of the term “witness statements,” as used in the stipulations, is unclear because it could include “written statements signed by the witnesses, investigative write-ups of witness interviews with police, [or] audio- or vide otaped oral statements of evide nce.” But again, Drain fails to show why these di stinctions matter, especially i n the context of a nocontest plea. {¶ 111} Finally, Drain contends that de fense counsel were ineffective because they failed to “challenge the State’s case.” This argu ment is based on counsel’s stipulation to the admissibility of the state’s evide nce through the testimony of Trooper Stanfield. {¶ 112} Drain points out that Trooper Stanfield testified to facts he h ad learned from the witnesses he interviewed, such as how correcti onal staff discovered Richardson, what the f irst responders saw at the cri me scene, and what Drain said to correctional staff at the time. Coming from Troo per Stanfield, as Drain notes, this testimony was h earsay. Trooper Stanfield als o testified as to the
results of DNA tests on certain items and the conclusions of th e autopsy as to Richardson’s cause of death; not only was this hearsay, it also involved matters that would normally requi re expert testimony.January Term, 2022

33 {¶ 113} Of course, this was a no-contest plea, and such a plea constitu tes an admission of the facts contai ned in the indictment. See Crim.R. 11(B)(2). However, when a defendant pleads no contest in a capital case, the state must still adduce evidence of guilt and the trial court must still determi ne whether the defendant is guilty of a ggravated murder and of the specificati ons. {¶ 114} Nevertheless, Drain has not established that her counsel’s stipulating to the admissibility was deficient performance or t hat she was prejudiced thereby. Trooper Stanfield’s testimony was supported by abunda nt evidence, including crime-scene photographs , DNA reports, the autopsy rep ort of Dr. Goolsby, and two separate deta iled confessions by Drain, one ta ken by Trooper
Stanfield himself. Defense couns el had received all this mater ial in pretrial discovery. {¶ 115} To be sure, defense counsel could have declined to stipulate to the admissibility of the state’s evidence and could have objected t o much of the
evidence that had been testified to by Trooper Stanfield. But in the settin g of a nocontest plea, what purpose would that have served? Drain’s con fession to Troper
Stanfield would have been admitted no matter what: it was recor ded on DVD, and Trooper Stanfield himself was in court to authenticate the reco rding. The state
would have been forced to call Dr . Goolsby, Lieutenant Santha, DNA analysts, and other witnesses, rather than p resenting their reports and Troop er Stanfield’s testimony. But those witnesses w ould presumably have testified to the same things they told Trooper Stanfield or wrote in their reports. Certain ly nothing in the record suggests otherwise. {¶ 116} So the same facts would have com e before the panel in any event

. The evidence would still have overwhelmingly supported a findin g that Drain was guilty as charged of aggravated murder with two death specifica tions. Indeed, elsewhere in her brief, Drain concedes that “[t]here was no dou bt about culpability in this case.” Hence, the record affords us no basis to find a reasonable probabilityS UPREME C OURT OF O HIO

34 that the result would have been different had defense counsel o bjected to Trooper Stanfield’s testimony. {¶ 117} Drain stresses the importance and the constitutional status of the right to confront witnesses. However, the constitutional right to confrontation is irrelevant to this analysis: Drain’s plea of no contest waived it. Boykin , 395 U.S. at 243, 89 S.Ct. 1709, 23 L.Ed.2d 274; Krauter v. Maxwell , 3 Ohio St.2d 142, 144, 209 N.E.2d 571 (1965); State ex rel. Stern v. Mascio , 75 Ohio St.3d 422, 424, 662 N.E.2d 370 (1996). {¶ 118} Drain also contends tha t her counsel were ineffective because t hey stipulated to the admissibility o f “irrelevant” and “unduly pre judicial” information.
Drain contends that some of the evidence contained information about Drain’s prior crimes and “bad acts” and pejorative descriptions of Drain’s ch aracter by fellow inmates. Specifically, Drain c ites state’s exhibit No. 40, a C D containing audiorecorded Highway Patrol interviews of inmates at the prison. D rain also cites state’s exhibit Nos. 37 (a letter from Drain to the Warren Coun ty prosecutor) and 38 (Drain’s confession to Lieuten ant Santha) but fails to ident ify any specific objectionable material in either exhibit. {¶ 119} Two of the inmate interviews cont ained in state’s exhibit No. 4 0 referred to past incidents in which Drain had stabbed other inm ates. However, Drain was in prison for aggravated murder when she killed Richa rdson, and the panel was well aware of that be cause it was the basis for one o f the death specifications. {¶ 120} In light of Drain’s prior aggrav ated-murder conviction, we thin k it most unlikely that the past sta bbing incidents affected the pan el’s determination of either guilt or sentence. After all, a defendant’s commission of two murders is “the most powerful imaginable aggravating evidence.” Wong v. Belmontes , 558 U.S. 15, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009). Moreover, a three-j udge panel is presumed to consider only releva nt, material, and competent evi dence in itsJanuary Term, 2022

35 deliberations. See, e.g. , State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 138; Fitzpatrick , 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶ 66. Hence, Drain f ails to show prejudice. {¶ 121} Drain’s second and third propos itions of law are rejected.
V. SENTENCING ISSUES
A. The Trial Court’s Sentencing Opinion {¶ 122} Drain’s 12th proposition of law cont ends that errors in the pan el’s sentencing opinion denied her a f air and reliable sentencing an d require that her
death sentence be vacated and th at this case be remanded to the trial court for resentencing. Contrary to Drain’ s claims, however, the sentenc ing opinion does not contain serious deficiencies. And even if it did, this cou rt’s independent reweighing would rectify any error. See generally State v. Lott , 51 Ohio St.3d 160, 170, 555 N.E.2d 293 (1990); State v. Fox , 69 Ohio St.3d 183, 191-192, 631 N.E.2d 124 (1994). {¶ 123} Drain notes that the sentenci ng opinion does not expressly ment ion mitigating factors such as Drain’s mental health and her histor y, character, and background. However, “[w]hile a sentencing court must consider all evidence of mitigation, it need not discuss ea ch factor individually.” State v. Phillips , 74 Ohio St.3d 72, 102, 656 N.E.2d 643 (1995). A trial court’s failure to discuss each mitigating factor in its sentencing opinion does not give rise to an automatic inference that the factors absent from the opinion were not con sidered. State v.
Roberts , 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 54. {¶ 124} Next, Drain argues that the tri al court did not give a “detaile d explanation of how it determined the weight of each [mitigating ] factor it considered.” No such explanation is required. See State v. Thomas , 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 81, quoting State v. Filiaggi , 86 Ohio St.3d 230, 245, 714 N.E.2d 867 (1999) (“ ‘[t]he weight, if any, given to a mitigatingS UPREME C OURT OF O HIO

36 factor is a matter for the disc retion of the individual decisio nmaker’ ” [brackets
added in Thomas ]). {¶ 125} Next, Drain claims that the trial court improperly treated the nature and circumstances of the offense as an aggravating circumstance . Drain makes this inference from the following pa ssage of the sentencing opinion:

The Court has carefully considered the nature and circumstances of the offense to determine if there is any mitig ating
value. There is not. The crime itself was violent, intensely personal
and carried out in a brutal fas hion. Therefore, the Court find s no mitigating value in the nature and circumstances of the offense and therefore gives this potential mitigating factor no weight in i ts decision.

{¶ 126} We reject Drain’s argument. As Drain concedes, the panel expressly said it had not “considered the nature and circumstances and/or the aggravated murder itself as aggr avating circumstances.” The pa nel examined the
nature and circumstances of the a ggravated murder solely to det ermine whether they had any “mitigating value,” as it was required to do. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 128. {¶ 127} Finally, Drain contends that th e trial court failed to consider the cumulative weight of the mitigating factors. However, she cite s, and we find, no language in the opinion indicati ng any such error on the part o f the trial court. {¶ 128} Drain’s 12th proposition of law is rejected.
B. Constitutionalit y of the R.C. 2929.04(A)(4 ) Aggravating Circ umstance {¶ 129} Drain’s indictment included a death specification under R.C. 2929.04(A)(4), accusing Drain of murdering Richardson “while [D rain] was under detention.” Drain pleaded no cont est to this specification (al ong with the rest ofJanuary Term, 2022

37 the indictment) and the panel found her guilty of the specifica tion and weighed it in sentencing her to death. Drain’s 11th proposition of law ar gues that R.C. 2929.04(A)(4) is unconstitutional. {¶ 130} First, Drain asserts that R.C. 2929.04(A)(4) “fails to provide adequate safeguards to narrow the class of offenders to whom th e death penalty can be applied.” But Drain makes no attempt to provide even a rudi mentary explanation for this assertion. {¶ 131} In fact, R.C. 2929.04(A)(4) does narrow the class of aggravated murderers eligible for the deat h penalty. The specification re quires proof of “an additional fact, independent of t he elements of aggravated murd er * * * before an offender is eligible for capital punishment.” State v. Barnes , 25 Ohio St.3d 203, 207, 495 N.E.2d 922 (1986). Therefore, it “applies to a narrow er group” than the group of persons convicted of aggravated murder. Fitzpatrick , 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶ 75. {¶ 132} Second, Drain argues that the specification under R.C. 2929.04(A)(4) is unconstitutional because it “arbitrarily assig ns a higher value to human life in this class of victims over others.” According to Drain, the specification is “arbitrary and capricious” because “there is n o legitimate reason to classify these murders committe d while ‘under detention’ as cat egories worthy of special protection.” {¶ 133} A statutory classification that is rationally related to a legi timate government purpose is not unconstitutional. State v. Thompson , 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13. Drain’s argument lacks m erit, because a
rational basis exists for more severe treatment of murders comm itted by persons
under detention. As the trial c ourt noted in its sentencing op inion, the state “has a compelling interest in maintaining discipline and order” in Ohi o’s prisons and detention facilities. Murders committed by inmates impede the state’s ability to safely house, guard, and provide services to inmates. The Gene ral Assembly couldS UPREME C OURT OF O HIO

38 rationally determine that the prospect of capital punishment ma kes a valuable contribution to deterring inmate s from committing aggravated mu rder. Hence, the R.C. 2929.04(A)(4) aggravating circ umstance may not be characte rized as arbitrary. We reject Drain’s argument and her 11th proposition of law. C. Repeat-Violent-Offender Specification {¶ 134} Drain’s tenth proposition of law c ontends that th e trial court erred by sentencing her on an RVO specifi cation attached to the same aggravated-murder
count on which the trial cour t sentenced her to death. {¶ 135} A “repeat violent offender,” as defined by R.C. 2929.01(CC), is a person who is sentenced for one of the offenses listed in R.C. 2929.01(CC)(1)(a), which includes aggravated murder, and who was previously convic ted of one of the
offenses listed in that subsection. {¶ 136} In this case, an RVO specification was attached to the aggravat edmurder counts. Drain pleaded no contest to, and was found guil ty of, all counts and specifications, including the RVO specifications. The trial co urt found Drain to be an RVO and, pursuant to that finding, imposed an additional pri son term of ten years—in addition to the death pe nalty—for the aggravated murde r of Richardson. {¶ 137} Under R.C. 2929.14(B)(2)(a), a trial court may impose “an additional definite prison term” on a person found guilty of an RVO specification. However, R.C. 2929.14(B)(2)(a) authorizes an RVO enhancement on ly if the case
meets “all of the * * * criteri a” set forth in R.C. 2929.14(B)( 2)(a)(i) through (v). In aggravated-murder cases, one of these criteria is that “ the court does not impose a sentence of death or life imprisonment without par ole” for the aggravated murder

. R.C. 2929.14(B)(2)(a)(ii). (Emphasi s added.) Likewise, R.C. 2 929.14(B)(2)(b) authorizes an enhancement only if the case meets all the criter ia set forth in R.C. 2929.14(B)(2)(b)(i) through (iii), in cluding the criteria that the court does not impose a sentence of death or life without parole. R.C. 2929.1 4(B)(2)(b)(iii).January Term, 2022

39 {¶ 138} Drain contends that because she was sentenced to death for the aggravated murder of Richardson, her case does not meet all the criteria of either R.C. 2929.14(B)(2)(a) or (b), and therefore the statute did not authorize the trial court to impose an RVO enhancemen t for the aggravated-murder co unt. {¶ 139} However, as the state points out, we have held that similar sentencing claims by capital de fendants are moot. Capital defe ndants have frequently asserted that a trial court may not impose prison se ntences “consecutive to” a death sentence. And we have just as frequently overruled such claims, because “the prison sentence is rendered moot by the execution of the defendant’s
death sentence.” State v. Scott , 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, ¶ 50. See also State v. Lynch , 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 142; State v. Moore , 81 Ohio St.3d 22, 38, 689 N.E.2d 1 (1998);
State v. Bies , 74 Ohio St.3d 320, 325, 658 N.E.2d 754 (1996); State v. Campbell , 69 Ohio St.3d 38, 52, 630 N.E.2d 339 (1994). The RVO enhanceme nt in this case
will likewise be rendered moot by the execution of Drain’s deat h sentence. {¶ 140} Drain counters that her death se ntence may be vacated sometime in the future, in which case the legality of the ten-year RVO enha ncement would not be moot. But this argument is doubly speculative. First, the argument assumes that
Drain’s death sentence will be vacated. Second, it assumes tha t the RVO enhancement would be improper even if Drain were to be resenten ced to life, which may or may not be true. See R.C. 2929.14(B)(2)(a)(ii) (enhancement criterion
satisfied if “the court does not impose a sentence of death or life imprisonment without parole ” [emphasis added]) and R .C. 2929.14(B)(2)(b)(iii) (same). {¶ 141} Drain also attempts to distinguish the cases cited by the state , arguing that those cases “had to do with the effect * * * of a lawfully imposed consecutive sentence when * * * a death sentence was also [impo sed] upon the defendant.” (Emphasis added.) Dr ain’s description of these ca ses is incorrect. In each case, an appellant argued—just as Drain argues here—that a consecutiveS UPREME C OURT OF O HIO

40 sentence was imposed unlawfully , in that “the trial court lacked the authority to impose prison sentences consecutive to [a] death sentence.” Scott at ¶ 50. See also Lynch at ¶ 142; Moore at 38; Bies at 325; Campbell at 52. {¶ 142} Because the RVO enhancement will be rendered moot by the execution of Drain’s death sentence, we reject Drain’s tenth pr oposition of law. For the same reason, we reject the a ssertion in Drain’s fourth prop osition of law that
her counsel rendered ineffectiv e assistance by failing to objec t to the RVO
enhancement. D. Lethal Injection {¶ 143} Drain’s 14th proposition of law c ontends that lethal injection as administered by the state of Ohio violates the Eighth Amendment to the United
States Constitution’s stricture against cruel and unusual punis hment. Drain argues that Ohio’s current execution prot ocol creates a sure or likely risk of inflicting severe pain and suffering. Drain f urther asserts that the stat e’s “history of botched
executions” means that Ohio “cannot , and never will” be able to carry out an execution “in a constitutional manner.” These claims rely on f acts outside the record and are therefore not appropriately considered on direct appeal. State v.
Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 71, citi ng State v. Madrigal , 87 Ohio St.3d 378, 391, 721 N.E.2d 52 (2000). Drain’s 14th p roposition of law is rejected.
VI. FAILURE TO ENSURE “COMPLETE RECORD” {¶ 144} Part one of Drain’s sixth propos ition of law contends that “[t] he trial court failed to ensure a full and complete record.” But Drain fails to support
this assertion. {¶ 145} As Drain notes, “in capital cases, R.C. 2929.03(G) requires tha t ‘the entire record’ be transmitted for purposes of appellate review. ” State v. Watson , 61 Ohio St.3d 1, 14, 572 N.E.2d 97 (1991), abrogated on other grounds by State v.
McGuire , 80 Ohio St.3d 390, 402-403, 686 N.E.2d 1112 (1997). However, in thisJanuary Term, 2022

41 proposition of law, Drain does not assert that the trial court failed to transmit any portion of the record to this court; she merely repeats the cla im from her third proposition of law that the stipulations were unclear. We have already rejected this claim. Moreover, an unclear record is not the same thing as an incomplete record, and only an incomplete record violates R.C. 2929.03(G). Drain fails to show that anything is missing from the record. Hence, we reject this par t of Drain’s sixth proposition of law.
VII. CONSIDERING EVIDENCE OUTSIDE THE RECORD {¶ 146} Part two of Drain’s sixth proposition of law contends that the trial court considered facts not in evidence in determining Drain’s d eath sentence. However, nothing in the record indi cates that the trial court d id any such thing. {¶ 147} Drain argues that because the sentencing opinion lists “all 16 stipulations entered into by Drai n,” the trial court must have considered all of them. And, Drain reasons, since the st ate did not introduce evidence from all 16 categories of stipulations, the trial court must have considered evidence outside the record.
While Drain describes this as a “logical conclusion,” it is, in fact, mere conjecture. Part two of Drain’s sixth p roposition of law lacks merit.
VIII. SETTLED ISSUES {¶ 148} Drain’s 13th proposition of law attempts to revive several arguments we rejected in Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d
319. {¶ 149} “Ohio law does not permit a jury to sentence a capital defendan t if
the defendant has elected to e nter a plea of guilty or no conte st to capital charges.”
Id . at ¶ 54. Drain contends that this rule denies a capital defe ndant’s right to present a defense, to present mitigating evidence to a jury, and to hav e a jury determine the facts that make the defendant eligible to be sentenced to death . In Belton , we rejected each of these arguments. Id . at ¶ 55-61, 65-68.S UPREME C OURT OF O HIO

42 {¶ 150} Drain further contends that Crim.R. 11(C)(3) is unconstitutiona l because it permits a three-judge p anel to dismiss death specifi cations in the interest of justice. We have long rejected similar claims. See Belton at ¶ 62-64. We reject Drain’s 13th proposition of law. {¶ 151} Drain’s 15th proposition of law r aises several oft-rejected arguments against the constitutionality of the death penalty an d the statutes governing its imposition in Ohio. See generally State v. Kirkland , 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 106, 109-120; State v. Ferguson , 108 Ohio St.3d 451, 2006-Ohio-1502, 844 N.E.2d 806, ¶ 85-90. This propo sition of law is summarily rejected. See State v. Poindexter , 36 Ohio St.3d 1, 520 N.E.2d 568 (1988), syllabus; State v. Spisak , 36 Ohio St.3d 80, 81-83, 521 N.E.2d 800 (1988).
IX. CUMULATIVE ERROR {¶ 152} In her 16th proposition, Drain claims that the cumulative effec t of the alleged errors in this case rendered the proceeding unfair. Under the cumulative-error doctrine, “a c onviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair tria l even though each of the
numerous instances of trial-c ourt error does not individually c onstitute cause for
reversal.” State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. However, “[a]s [Drain] offers no further analysis, this proposition lacks
substance.” State v. Sapp , 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103. See also State v. Bethel , 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 197. Drain’s 16th proposition of law is rejected.
X. INDEPENDENT SENTENCE REVIEW {¶ 153} In her first proposition of law, Drain contends that the death sentence imposed in this case is inappropriate and that we shou ld reverse it upon our independent review. This p roposition of law invokes our du ty to independently
review Drain’s death sentence under R.C. 2929.05. R.C. 2929.05 (A) requires that we determine (1) whether the ev idence supports the trier of fac t’s finding ofJanuary Term, 2022

43 aggravating circumstances, (2) w hether the aggravating circumst ances of which the defendant was found guilty outwei gh the mitigating factors beyo nd a reasonable doubt, and (3) whether the death sentence is proportionate to t hose affirmed in
similar cases. A. Aggravating Circumstances {¶ 154} The panel found Drain guilty of tw o aggravating circumstances: R.C. 2929.04(A)(4), committing the crime of aggravated murder w hile being under detention, and R.C. 2929.04(A)(5 ), committing the crime of aggr avated murder after having a previous convic tion for the purposeful killing o f another. {¶ 155} The evidence supports the panel’s findings on both aggravating circumstances. As to the specification under R.C. 2929.04(A)(5 ), the state introduced a certified copy of a j udgment entry from the Hancoc k County Court of Common Pleas showing that on July 11, 2016, Drain was convicted of aggravated murder, R.C. 2903.01(A) (prior calculation and design). In the instant case, Drain stipulated that she “is the pe rson referenced” in the Hancock C ounty case. {¶ 156} As to the specification under R.C. 2929.04(A)(4), Drain stipula ted that “[o]n or about April 13, 2019, [she] was under detention.” Moreover, the
evidence showed that Drain was an inmate at the Warren Correcti onal Institution
at the time of Richardson’s murder. B. Mitigating Factors {¶ 157} Drain contends that in conducti ng its independent review, this court must consider defendant’s exhibit A, even though the defense ex pressly declined to place it into evidence during the penalty phase. We decline to consider it, on the authority of State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 250-254. {¶ 158} In Clinton , the defendant had made an unsworn statement but introduced no other evidence in mitigation. Defense counsel su bmitted under seal information showing that defen se investigators had thoroughly i nvestigatedS UPREME C OURT OF O HIO

44 Clinton’s background. The materia l gathered included interview s with Clinton’s family and friends, his mental-health records, and other record s. Clinton at ¶ 250.
The trial court did not con sider this material. {¶ 159} On appeal, Clinton argued that thi s court was required to consi der the sealed material, id . at ¶ 251, as “ ‘facts and other evidence disclosed in the record,’ ” id. at ¶ 253, quoting R.C. 2929.05(A). We rejected that argument, in part because “Clinton deliberately chose to present only his unsworn statement in mitigation after being fully advised of his rights to present m itigating evidence in
his behalf.” Id . at ¶ 254. {¶ 160} Drain tries to distinguish Clinton by arguing that in that case, the defense presented no mitigating evidence except Clinton’s unswo rn statement. Here, defense counsel presented t wo penalty-phase witnesses in addition to Drain’s unsworn statement. Therefore, Drain argues, “unlike in Clinton , [153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1,] Drain did not waive mitigat ion.” {¶ 161} Drain’s argument misdescribes the facts of Clinton . Clinton did not simply “waive mitigation.” He made an unsworn statement, w hich is mitigating evidence. Nevertheless, Clinton chose to withhold the mitigati ng evidence about his background, and thereby waived his right to have this court consider that mitigating evidence on direct appeal. Clinton at ¶ 253-254. Drain made the same choice—not to waive all mitigation, but to waive the specific m itigating evidence
at issue here—and the sam e result must follow. {¶ 162} Drain also argues that we “diverge[d] from Clinton ” in State v.
Madison , 160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867. Drain ar gues that
in Madison , defense counsel made a proffer of evidence that the trial cou rt had excluded from the penalty phase, “yet th[is] court did not dist inguish that mitigating evidence when conducting its sentencing evaluation.” While Dra in’s point is not clear, she seems to contend that in Madison , this court considered the excluded evidence on independent review. But Madison did not involve mitigating evidenceJanuary Term, 2022

45 that the defendant had deliberately refused to introduce. Ther efore, Madison is fully consonant with Clinton

. {¶ 163} For the foregoing reasons, we decline to consider defendant’s exhibit A in our independent review. {¶ 164} However, the record also contai ns a report by Dr. O’Donnell as to Drain’s competence to stand tri al. This report was not sealed. In Clinton , we held that a similar report s hould be considered:

Dr. Askenazi’s competency report is a different matter. It is part of the record and was not filed under seal. Defense couns el submitted this report to demonstrate Clinton’s competency to wa ive mitigation. This report reviews C linton’s family, educational, occupational, medical, substance- abuse, psychiatric/psychologic al, and legal history. We have considered similar evaluations in o ther

cases. See State v. Mink , 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064 (competency evaluations considered during independent sentence evaluation); State v. Obermiller , 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93 (same). Accordingly, i t is appropriate to consider Dr. Ask enazi’s competency report and the mitigating evidence contained therein, during our independent
sentence evaluation.

Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.2d 1, at ¶ 255. Likewise,
we will consider Dr. O’Donnell’s co mpetency report in this case

. 1. Statutory Mitigating Factors, R.C. 2929.04(B)(1) through (6) {¶ 165} The evidence does not support the existence of any of the facto rs set forth in R.C. 2929.04(B)(1) through (6). Richardson, the v ictim, did not induce
or facilitate the offense. R.C. 2929.04(B)(1). There was no e vidence that DrainS UPREME C OURT OF O HIO

46 “was under duress, coercion, or strong provocation.” R.C. 2929 .04(B)(2). Dr. O’Donnell’s competency report does not support a finding that D rain, “because of a mental disease or defect, lack ed substantial capacity to appr eciate the criminality of [her] conduct or to conform [h er] conduct to t he requirement s of the law.” R.C. 2929.04(B)(3). {¶ 166} Youth of the offender, R.C. 2929.04(B)(4), is not a factor. Dr ain was born on June 24, 1985, and was 33 years old when she commit ted this aggravated murder. Compare State v. Tench , 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 305 (youth inapplicable to 27-year-old defend ant); State v.
Martin , 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 146 (you th inapplicable to 28-year-old defendant). {¶ 167} Lack of a significant criminal history, R.C. 2929.04(B)(5), is not a factor. And degree of particip ation, R.C. 2929.04(B)(6), is no t a factor, as Drain was the principal offender. 2. Nature and Circumstances of the Offense {¶ 168} Nothing mitigating appears in the nature and circumstances of t he offense. In her second confession, Drain admitted planning Ric hardson’s death in advance, luring him to the cell by deceit, and killing him beca use he backed out of a plot to kill another inmate. T he killing itself was extraord inarily brutal.
3. History, Character, Backgr ound, and “Other Factors” {¶ 169} Evidence in the record raises the following mitigating factors:
a. Troubled Childhood {¶ 170} In an unsworn statement, Drain mentioned having suffered “traumas * * * as a child,” but r efused to “rehash” them. Drai n claimed to have been subjected to 20 hours a day of solitary confinement as a 1 3-year-old juvenile offender. Therefore, she conti nued, “your system” had “contrib ut[ed] to those experiences * * * which molded me in my perceptions,” and this “in itself is my choice form of mitigation.”January Term, 2022

47 b. Substance Abuse {¶ 171} Drain was raised with family members who were substance
abusers. Drain told Dr. O’Donnell that her substance use start ed with alcohol and marijuana at age 14, but Departme nt of Youth Services (“DYS”) r ecords reviewed by O’Donnell indicated that Drain began drinking at age nine. Drain’s problem quickly escalated and expanded to other substances. According to a 1997 DYS assessment, Drain met the crite ria for addiction beginning at a ge 13.
c. Mental Health {¶ 172} Even though the evidence does not support the lack-of-substanti alcapacity mitigating factor, R.C. 2929.04(B)(3), evidence concer ning a capital defendant’s mental health may be considered as an “other factor ” under R.C. 2929.04(B)(7). See , e.g ., State v. Seiber , 56 Ohio St.3d 4, 9, 564 N.E.2d 408 (1990); State v. Reynolds , 80 Ohio St.3d 670, 686, 687 N.E.2d 1358 (1998). {¶ 173} Drain has a history of being diagnosed with severe mental illne ss and receiving mental-health servi ces. Drain was once diagnosed with schizophrenia and was hospitalized in a psychiatric ward. Pris on records reviewed by Dr. O’Donnell indicated that prison staff diagnosed Drain wi th gender dysphoria, posttraumatic stress disorder, borderline personalit y disorder, and antisocial personality disorder. A prison doctor described Dra in as “primarily struggling with issues related t o the gender dysphoria” and ind icated that Drain engages in self-cutting as a way of dealing with gender dysphor ia. {¶ 174} On the other hand, during interv iews with Dr. O’Donnell, Drain stated that she had been malingering at the time of those diagn oses. Regarding her psychiatric hospitalization, Drai n told Dr. O’Donnell that she had been “manipulating ‘the syst em’ to receive benefits. {¶ 175} Drain also denied to Dr. O’Donnell that she had ever seriously considered changing genders. How ever, Kyle Taylor, an inmate w ho has known Drain for years, told a state trooper during the investigation that Drain had tried toS UPREME C OURT OF O HIO

48 castrate herself at her previous institution and had been assig ned to the RTU at WCI because of gender dysphoria. {¶ 176} Dr. O’Donnell concluded that Drain did not suffer from a severe mental illness or an intellectual disability at the time of the evaluation. Dr. O’Donnell found “no active symptoms present” during the three i nterviews she conducted with Drain for her compe tency report. Nor did she fi nd any symptoms documented in the most recent 12 months of prison records cover ing March 2019 to February 25, 2020 (a period that includes the time of the mu rder). This was true even though Drain “ha[d] not been taking psychiatric medication * * * for several months.” Dr. O’Donnell found Drain fully oriented and free of bizarre or obviously delusional thoughts. Drain exhib ited no obvious symptoms of ma nia or depression, seemed emotionally stable, and de nied suicidal ideation. Drain did report anxiety, chronic depression, and a n inability to feel joy. {¶ 177} We conclude that Drain’s mental-health history is entitled to s ome weight as a mitigating factor. We assess this history, however , in the context of Drain’s admission of malingering. d. Physical Health {¶ 178} Drain has suffered from signifi cant medical problems—a benign pituitary tumor, testicular can cer, and HIV. Dr. O’Donnell rep orted that Drain “said [she] has been ‘cleared’ after four cycles of chemotherap y and is no longer being treated” for the first two conditions. Drain contends th at these problems deserve weight in mitigation, as t hey are “outside of her contr ol” and “part of her life story.” We agree that a def endant’s physical-health probl ems can constitute mitigating evidence, but here we give them “minimal significanc e.” Seiber , 56 Ohio St.3d at 9, 564 N.E.2d 408. e. Drain’s Relationships {¶ 179} Drain has a son and a daughter. As we discussed above, Drain refused to call her daughter as a penalty-phase witness, explai ning: “I’d rather beJanuary Term, 2022

49 sentenced to death than to use the only part of me that’s truly innocent and good to elicit anyone’s empathy or mercy.” Two other witnesses testifi ed on Drain’s behalf, however. Both ask ed the panel to spare Drain’s life. {¶ 180} The first of these was Shoemaker, Drain’s cousin. They have be en close since Shoemaker was 11 or 12 years old and have spoken to each other almost daily for years. Shoemaker testified that Drain has a close re lationship with Shoemaker’s nine-year-old daught er. Shoemaker looked up to Dra in and regarded Drain (who is about ten years Shoemaker’s senior) as an older s ibling who advised
her and instilled self-confidence in her. Shoemaker testified that if Drain were sentenced to death, not only woul d she be “a mess,” but her dau ghter would be
affected as well. {¶ 181} Drain’s other mitigation witness was Andrea Stanfield. Andrea testified that she grew up with D rain and has known Drain her w hole life; their
mothers were best friends. Andrea also considers Drain to be l ike a sibling. She spoke to Drain once a week, some times more. She testified that Drain is “not a monster” but a “good” and “amazing” person. She described Drai n as someone who “would help anybody” and would do “anything for anybody.” She said that Drain was the only person who had ever helped her and that she would readily leave
her children in Drain’s care. f. Cooperation and Acceptance of Responsibility {¶ 182} Drain pleaded no contest, a course of action traditionally give n substantial weight in sentencing. State v. Obermiller , 147 Ohio St.3d 175, 2016- Ohio-1594, 63 N.E.3d 93, ¶ 158, citing State v. Ashworth , 85 Ohio St.3d 56, 72, 706 N.E.2d 1231 (1999). Drain als o cooperated w ith authorities by confessing to the murder, and her unsworn statement features an express accep tance of responsibility:S UPREME C OURT OF O HIO

50 First and foremost, I stand before you today accepting full responsibility. Not only for the murder of Christopher Richard son but for everything I’ve done in the past or will do in the futu re, good or bad. I myself am responsible for all of my words, actions, successes and failures. I blame nothing on no one for who I am and the things that I’ve done.

On the other hand, Drain also appe ared to lay some blame on the justice system, in particular the juvenile judge who incarcerated her at age 13. Nonetheless, Drain’s no-contest plea and acceptan ce of responsibilit y are entitled t o substantial weight. g. Remorse {¶ 183} Drain contends that her pleadi ng no contest also showed remorse on her part. And indeed, a guilty or no-contest plea often doe s indicate remorse.
See Obermiller at ¶ 158. However, the tone of Drain’s unsworn statement leav es us in considerable doubt a bout Drain’s remorse. {¶ 184} While accepting responsibility, Drain repeatedly refused to apologize for her deeds and in f act stated that she stood behin d them. Drain said:

Your Honors, this is the time mos t people in similar circumstan ces may offer up some type of empty apology or make a pathetic plea for forgiveness * * *. I personally have decided to spare ever yone involved of those fake formalities and myself, the lack of inte grity
* * *.

Evidently, Drain felt that an a pology would be a mere “formalit [y]”—“empty,” “fake,” and devoid of “integrit y.” Drain added: “I stand behin d the decisions I’ve made in my life and make no apologies for it.” (Emphasis added.) She proclaimed:
“I’m * * * accountable to myself only .” (Emphasis added.) And she concluded:January Term, 2022

51 “The killer in me is the same one inside of you and if there’s a hell, I’ll see you
there.” These sentiments hardly bespeak remorse. C. Weighing Aggravation against Mitigation {¶ 185} “Killing another while an inmate and having previously been convicted of aggravated murder ar e grave aggravating circumstan ces.” State v.
Cassano , 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 129. Drai n’s conduct “has demonstrated that [she] is a menace to the life, h ealth, and safety of others, even when [sh e] is in prison,” id

. {¶ 186} Taken as a whole, Drain’s mitigation deserves significant weigh t. But the aggravating circumstances in this case are so grave tha t they outweigh the mitigating factors beyon d a reasonable doubt. D. Proportionality Review {¶ 187} We have approved death sentences in several other cases in whic h the defendant was convicted of sp ecifications under both R.C. 2 929.04(A)(4) and (A)(5). See Cassano , 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81; State v. Hanna , 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678; State v. Carter , 64 Ohio St.3d 218, 594 N.E.2d 595 (1992); Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373. Drain’s death sentence is proportionate to the death sent ences approved in
those cases.
XI. CONCLUSION {¶ 188} We affirm the judgments of convic tion and the sentence of death

. Judgment affirmed.
O’C ONNOR , C.J., and F ISCHER , D E W INE , D ONNELLY , and S TEWART , JJ.,

concur. B RUNNER , J., concurs in part and disse nts in part, with an opinion.

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52 B RUNNER , J., concurring in part and dissenting in part. {¶ 189} I agree that appellant Victoria Michelle Drain’s 2 convictions should be affirmed. I dissent, however, from the majority’s decision to reject Drain’s
claims of ineffective assistan ce of counsel and to affirm her d eath sentence. Drain’s attorneys provided ineffective assistance during the mitigation phase due to their failure to investigate and present mitigating evidence. I woul d therefore remand this case for a new mitigation h earing. Alternatively, at the very least, this court should defer ruling on Drain’s in effective-assistance-of-counse l claims until a postconviction petition has been f iled, which would give this c ourt the benefit of being able to review any eviden ce outside the appellate record that would support
those claims. {¶ 190} Drain argues that there was significant mitigating evidence available to her attorneys. She notes in her merit brief to th is court that she experienced significant traum a throughout her life. Among othe r hurdles, she has been diagnosed with gender dysphoria , and in the past, she has engaged in selfharm as a way of coping with the distress associated with that condition. She has also been diagnosed with numerous serious mental-health illness es, including borderline personality disorder, antisocial personality disorde r, schizophrenia, and posttraumatic-stress disorder. She argues that her attorneys’ mitigation investigation fell below profe ssional norms, in part because co unsel failed to investigate certain mitigating ma tters “that were readily appar ent.” {¶ 191} Drain also argues that her attorneys unreasonably failed to pre sent mitigating evidence that was in their possession. On this poin t, she notes that she did not waive the presentation of all mitigating evidence. T o the contrary, she and her attorneys both presented such evidence. Drain gave an unsw orn statement, and her attorneys elicite d testimony from her cousin and from a lif e-long family friend.

2. During the pendency of this appeal, Drain obtained a legal name change from “Joel M. Drain.”January Term, 2022

53 Both Drain’s cousin and Drain’s life-long friend testified abou t positive aspects of Drain’s personality and history and asked the panel not to impo se a death sentence. She also acknowledges, however, that she placed several restric tions on the mitigating evidence that her attorneys could present. She did not want her attorneys to present evidence concerning her “dysfunctional” childhood or any testimony from her daughter. Drain argues that these restrictions left h er attorneys free to present other mitigating evidence, some of which was in their possession, as
reflected in defendant’s exhibit A. If her attorneys had prese nted that evidence and if they had conducted an adequa te investigation for additional evidence, there is a
reasonable likelihood that she woul d have been spared a death s entence. See Strickland v. Washington , 466 U.S. 668, 669, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). {¶ 192} The majority rejects Drain’s in effective-assistance-of-counsel arguments on the ground that Drain chose to prevent her attorne ys from presenting any mitigating evidence beyond her statement and the two witnes ses, meaning she may not claim prejudice from the lack of additional mitigating evidence now. According to the majority, “Drain ’s assertion that she wanted t o withhold only her daughter’s testimony and her dys functional childhood is inconsi stent with the record [emphasis sic],” major ity opinion, ¶ 77, because, in her unsworn statement, Drain stated that she did not want to “offer[] up some fake hyp othetical or farfetched medical mental health e xcuses.” The majority opinion a lso relies on positions Drain took earlier in the case regarding mitigating e vidence. On November 14, 2019, Drain “refused—against counsel’s advice—to a uthorize the release of information to the mitigation specialist.” Id. at ¶ 84. On January 2, 2020, she indicated that she wanted to waive the presentation of all mitigating evidence. Finally, on February 19, 2020, she indicated that she wanted to waive the presentation of all mitigating evidence except an unsworn statement . According to the majority, these positions are indicative of “Drain’s desire of withholdingS UPREME C OURT OF O HIO

54 mitigating evidence,” id. at ¶ 84, and are “difficult to square with Drain’s current assertion that she left defense counsel free to introduce any m itigation as long as that mitigating evidence did not touch on her childhood or requ ire testimony from her daughter,” id. at ¶ 86. {¶ 193} I disagree with the majority’s reading of the record. As an in itial matter, it is not “difficult to s quare” Drain’s November 14, 20 19, refusal to authorize the release of information to the mitigation speciali st with her current argument: as the majority acknowledges, “Drain later agreed to sign the release forms,” id. at ¶ 84. A similar change of position can be seen between her January 2 and February 19 statements. In January, she wanted to waive all mitigating evidence, but by February 19, she had decided to present at lea st an unsworn statement. Overall, these change s indicate that Drain’s views on the presentation of mitigating evidence were evolving and becoming more permissi ve. Drain’s prior statements are perfectly consistent with her current position—s he wanted only to prevent her attorneys from presenting evidence pertaining to he r “dysfunctional” childhood and from presenting any t estimony from her daughter. {¶ 194} I also do not agree with the way in which the majority relies o n Drain’s statements that she would not be “offering up some fake hypothetical or
far-fetched medical mental health excuses” and that she had “no t attempted to justify [her] behavior or pretend of [sic] any mental defects.” These statements do not establish that Drain instructed her attorneys not to presen t evidence of actual mental-health diagnoses made by mental-health professionals, mu ch less that she instructed her attorneys not to present any mitigating evidence except testimony
from her cousin and childhood friend. {¶ 195} There was also significant mitigating evidence available to Dra in’s attorneys, including evidence concerning her gender dysphoria, her mental-health issues and diagnosed disorders, her history of substance abuse, her medical history
and the effect that it has had on her mental health and decisio n-making, and herJanuary Term, 2022

55 time spent in juvenile facilities and other facilities. This e vidence also identified additional significant matters t hat her attorneys failed to inv estigate. For example, Drain points out that her attorn eys never investigated the conn ection between her gender dysphoria and her mental h ealth and acts of self-harm as a coping
mechanism for the distress associated with that condition. Cou nsel also failed to conduct a further investigation in to Drain’s serious mental-hea lth diagnoses and the effect her substance abuse and history of incarceration had on her decision-making. {¶ 196} Finally, it is clear that the approximately 1,900 pages of miti gation evidence Drain’s attorneys compiled and submitted to the trial court as defendant’s exhibit A is not as substantial as the page count might make it seem. Two of the main documents that are pertinen t to this appeal—a competency r eport and a psychological evaluation—were alr eady in the record. Drain’s p rison records took only one public-records request t o obtain. Other information—s uch as Drain’s court records—was publicly ava ilable. And although defendant’s exhibit A
contains six interviews conduc ted by a mitigation specialist, t hey consisted of two interviews with Drain’s mother, one with her brother, one with her cousin, one with her ex-wife, and one joint interview with her ex-wife and their two children. Given that Drain was facing a death sen tence, more was required. {¶ 197} If the mitigating evidence discussed above had been presented, its cumulative impact would have been significant and Drain likely would not have
received a death sentence. She is not what is sometimes referr ed to as “the worst
of the worst.” And a full and co mplete investigation into the matters discussed above would only have c onfirmed that fact. Overall, I would co nclude that the performance of Drain’s attorneys was deficient due to their fai lure to investigate and present mitigating evidence. And given the significance th at this mitigating evidence could have had in this case, there is a reasonable pro bability that, but for counsel’s deficient performance, Drain would have been spared t he death penalty.
I would therefore remand this case for a new mitigation hearing

.S UPREME C OURT OF O HIO

56 {¶ 198} To the extent there is any ambiguity or uncertainty about Drain ’s ineffective-assistance-of-counsel claims, that ambiguity or unc ertainty could be illuminated by evidence outside the record. As a result, at th e very least, the majority should refrain from addr essing Drain’s ineffective-ass istance-of-counsel claims until those claims may be explored in a postconviction p roceeding, which
allows for evidence outside the appellate record to be consider ed. See State v. Madrigal , 87 Ohio St.3d 378, 390-391, 721 N.E.2d 52 (2000). {¶ 199} For these reasons, I concur in part and dissent in part.

_________________ David P. Fornshell, Warren Count y Prosecuting Attorney, and Kir sten A. Brandt, Assistant Prosecu ting Attorney, for appellee. Timothy Young, Ohio Public Defender, and Kim Rigby, Michelle U maña, and Natalie Presler, Assistant P ublic Defenders, for appellant.

_________________