[Cite as State v. Elmore, 2014-Ohio-3674.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsPHILLIP L. ELMORE 

 Defendant-Appellant 

JUDGES: 

: Hon. W Scott Gwin, P.J. 

: Hon. Sheila G. Farmer, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 13-CA-84 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County 

Court of Common Pleas, Case No. 02-CR275 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 22, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH OSWALT WILLIAM LAZAROW 

Licking County Prosecutor 400 S. Fifth Street, Ste. 301 

20 S. Second Street Fourth Fl. Columbus, OH 43215 

Newark, OH 43055 

RANDALL L. PORTER KATHLEEN MCGARRY 

Assistant State Public Defender Box 310 

250 East Broad Street, Ste. 1400 Glorieta, New Mexico 87535 

Columbus, OH 43215-0708 
[Cite as State v. Elmore, 2014-Ohio-3674.]

Gwin, P.J. 

{¶1} Defendant-appellant Phillip L. Elmore appeals the August 30, 2013 

Judgment Entry of the Licking County Court of Common Pleas denying his motion for 

new trial after an evidentiary hearing. Plaintiff-appellee is the State of Ohio. 

Facts and Procedural History 

{¶2} On June 1, 2002, 47-year-old Pamela Annarino attended her son’s 

wedding ceremony and reception. While Annarino was attending these activities, 

Elmore broke into her Newark home and waited for her to return. Elmore and Annarino 

had previously had a personal relationship. 

{¶3} After she arrived home, Elmore murdered Annarino by strangling her and 

hitting her in the head with a pipe. Elmore then stole Annarino’s purse and fled in her 

car. Subsequently, Elmore was convicted of the aggravated murder of Annarino and 

sentenced to death. Among the seventeen propositions of law raised by Elmore on his 

direct appeal, two concerned ineffective assistance of trial counsel. Proposition of law 

XIII concerned counsel’s closing argument; in proposition of law X, Elmore argues that 

his counsel provided ineffective assistance during the penalty phase. The Ohio 

Supreme Court affirmed Elmore’s conviction and death sentence. State v. Elmore, 111 

Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547. [Hereinafter “Elmore I”].

{¶4} Elmore filed his petition for post-conviction relief on August 26, 2004. The 

petition raised seventeen grounds for relief supported by 50 exhibits numbering 673 

pages in length. On September 30, 2004, Elmore amended his petition for postconviction relief by adding two additional grounds for relief and two additional exhibits. 

State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, ¶7. [Hereinafter 
Licking County, Case No. 13-CA-84 3 

“Elmore II”]. Elmore raised numerous claims alleging ineffective assistance of trial 

counsel. Elmore II, ¶33; ¶39; ¶42; ¶53; ¶64; ¶74; ¶76; ¶99; ¶108; ¶117; and ¶126. This 

Court overruled each assignment of error and affirmed the trial court’s denial of 

Elmore’s petition for post-conviction relief. The Ohio Supreme Court decline to accept 

Elmore’s appeal. State v. Elmore, 111 Ohio St.3d 1492, 2006-Ohio-61712, 857 N.E.2d 

1230. 

{¶5} Elmore proceeded to file a Petition for Writ of Habeas by a Person in State 

Custody, 28 U.S.C. 2254. Elmore v. Bobby, S.D.Ohio No. 1:07-cv-776, 2012 WL 

4057245(Sept. 14, 2012). 

{¶6} On August 3, 2011, Elmore filed a Motion for Leave to File a Motion for 

New Trial Based on Newly Discovered Evidence (“Motion for Leave"). Elmore's Motion 

for Leave was based on information he obtained in his federal habeas corpus litigation. 

The gravamen of Elmore’s claim is that his trial attorney Andrew Sanderson convinced 

Elmore to reject a plea offer that he had previously agreed to and would have saved his 

life, solely because Sanderson needed to participate in two capital jury trials to qualify 

for first-chair status under Rule 20 of the Ohio Rules of Superintendence. Elmore v. 

Bobby, *1. 

{¶7} On October 6, 2011, upon the agreement of the parties, the trial court 

stayed the proceedings on Elmore's Motion for Leave pending decisions from the United 

States Supreme Court in Lafler v. Cooper, __ U.S.__, 131 S.Ct. 1376, 182 L.Ed.2d 

398(Oct. 21, 2012) [“Hereinafter Lafler”] and Missouri v Frye, __ U.S.__, 132 S.Ct. 

1399, 182 L.Ed.2d 379 (Mar. 21, 2012) [Hereinafter “Frye”]. The stay was lifted after 

those decisions were issued on March 21, 2012. 
Licking County, Case No. 13-CA-84 4 

{¶8} On July 19, 2012, the trial court granted Elmore's Motion for Leave to File 

a Motion for New Trial and scheduled an evidentiary hearing on the Motion for New 

Trial. The evidentiary hearing occurred on February 19-20, 2013. Thereafter, the Court 

granted the parties an opportunity to submit post-hearing briefs. The following facts 

were established at the evidentiary hearing on Elmore’s motion for a new trial and 

adopted by the trial court in its August 30, 2013, Judgment Entry overruling Elmore’s 

motion. 

A. The trial phase of Elmore’s case. 

{¶9} Because this was a capital case, the trial court appointed two attorneys to 

represent Elmore as required by Rule 20 of the Ohio Rules of Superintendence. J. 

Michael King was appointed as lead counsel and Andrew Sanderson was appointed as 

co-counsel. At the time, Sanderson had been certified as capital trial co-counsel, but not 

as lead counsel under Rule 20. The only requirement Sanderson needed to obtain in 

order to become lead counsel certified was to participate as co-counsel in two capital 

jury trials. King and Sanderson were appointed by the trial court on June 20, 2002, and 

June 21, 2002, respectively. 

{¶10} Elmore did not have a strong case. Evidence of his guilt was 

overwhelming, and the victim died a gruesome death. After a series of pre-trial 

conferences, the resolution of a motion to suppress evidence in the state's favor, and 

informal inquiries about the possibility of a negotiated plea, the lead prosecutor 

extended a plea offer to Elmore's lead counsel. In a letter dated January 22, 2003, the 

state offered life without parole on count one (aggravated murder) and [the state] “would 
Licking County, Case No. 13-CA-84 5 

agree not to seek the death penalty" [Def's Ex. 5]. In addition, the state would seek 

maximum consecutive sentences on the remaining counts. 

{¶11} On February 3, 2003, King met with Elmore at the Licking County Justice 

Center to discuss the offer. Sanderson was unable to attend this meeting. At the 

conclusion of that meeting, Elmore indicated that he wished to accept the offer and 

indicated his desire to do so by writing on the bottom of that letter. "O K 2-3-03 /s/ 

Phillip Elmore" [Def's Ex 5]. After this meeting, King advised the trial court that Elmore 

had accepted the state's offer and the case was scheduled for a change of plea and 

sentencing hearing before a three judge panel on February 13, 2003. Judge Jon R. 

Spahr1

 presided over Elmore’s trial. (2T. at 316).2 The two other judges would have 

been Judge Gregory Frost and Judge Robert Hoover. (2T. at 329). A three-judge panel 

was necessary because this was a capital case. (1T. at 165). 

{¶12} When King arrived at court that morning, he met Sanderson who had just 

spoken to Elmore. Sanderson told King that there was a problem with the case and that 

Elmore no longer wished to accept the plea offer. King then spoke with Elmore and 

confirmed that he did not wish to proceed with the plea. 

{¶13} On March 31, 2013, King filed a motion to withdraw from the case, which 

was granted the same day On April 26, 2003, Brian Rigg was appointed lead counsel as 

King's replacement. 

{¶14} Throughout the next several months, Rigg and Sanderson prepared 

Elmore’s case for trial. However, at various times, both Rigg and Sanderson 

approached Elmore about negotiating a plea agreement. 

 1

 Judge Spahr retired in 2009. 

2

 References to the transcript are to the Hearing on Elmore’s Motion for a New Trial, February 19, 

2013 [“1T.”] and February 20, 2013 [“2T.”], unless otherwise noted. 
Licking County, Case No. 13-CA-84 6 

{¶15} Sanderson wrote Elmore on March 11, 2003, outlining the steps he would 

take to reinitiate plea discussions if that was Elmore’s desire. According to Rigg, at 

times Elmore may have been close to reconsidering a life term if the prosecutor agreed, 

but in the end Elmore would not agree to a sentence that did not have at least the 

possibility of him becoming eligible for parole. 

{¶16} Elmore's case eventually proceeded to trial. During the mitigation phase, 

Elmore gave an unsworn statement to the jury during which he stated, "I'm truly sorry 

for what I have done. But I feel that I deserve the worst punishment that there is. That's 

one thing I agree with the prosecutor.” After the mitigation hearing, the jury 

recommended death and the Court sentenced him to death. 

B. Newly Discovered Evidence.

{¶17} Elmore's Motion for New Trial is based on evidence that came to light in 

early 2011 during his federal habeas corpus litigation. Elmore's attorneys took the 

deposition of the attorneys involved in Elmore's trial, including Shanda Behrens, a 

former associate of Sanderson's. 

{¶18} During Behrens deposition, she alleged that Sanderson felt compelled to 

persuade Elmore to reject the plea offer of life without parole because Sanderson 

needed the case to go to trial in order to become eligible for lead counsel certification 

under Rule 20. 

{¶19} Elmore's defense team also obtained an affidavit from Leigh Bayer, 

another former associate of Sanderson's, who assisted in the trial of a second capital 

case about a year after Elmore's. Bayer made similar allegations, i. e., that Sanderson 
Licking County, Case No. 13-CA-84 7 

was obsessed with having the case go to trial in order to complete his requirements to 

obtain lead counsel certification. 

{¶20} In light of these allegations, the court scheduled an evidentiary hearing on 

Elmore's Motion for New Trial This hearing occurred on February 19 - 20, 2013. 

C. Hearing on Motion for New Trial. 

1. Shanda Behrens – Law Clerk/Associate Attorney 

{¶21} Elmore's claim that Sanderson had a conflict of interest rests primarily on 

the testimony of Shanda Behrens. Behrens was working as an intern in Sanderson's 

office in June 2002, when Sanderson was appointed to represent Elmore. At the time, 

she had just graduated law school, sat for the bar exam, and was waiting on her results. 

She became licensed to practice law in November 2002, and continued to work there as 

an attorney. One of Behrens' assignments during that period was to assist Sanderson 

on the Elmore case. Typically, her duties included .

visiting Elmore at the jail and 

speaking with members of his family. She also provided other assistance in preparation 

for trial. 

{¶22} In early 2003, Behrens learned that the prosecutor’s office extended a 

plea offer to Elmore. After King received the written offer, both he and Sanderson were 

supposed to visit Elmore to discuss the offer. Sanderson was not able to attend so King 

met with Elmore alone. After the meeting, King advised Sanderson that Elmore 

indicated he would accept the offer. Behrens testified that after Sanderson became 

aware that Elmore had accepted the plea offer, Sanderson indicated that he wanted 

Elmore's case to go to trial. Specifically, she stated that Sanderson, 
Licking County, Case No. 13-CA-84 8 

 [W]anted to be eligible for his first chair certification and indicated 

that this would have been his first trial. You have to have two trials to get 

— to apply for your first chair certification and that he needed to have this 

trial in order to get on the road to doing that. [2T. at 207]. 

{¶23} Behrens testified that Sanderson was preoccupied with his desire to 

become lead counsel eligible under Rule 20 and that he mentioned it several times, 

 It was an ongoing discussion. We talked about the case all the 

time, of course I specifically recall him say to me, I need Mr. Elmore to 

have a trial in this matter. I need my first chair certification. [2T. at 209]. 

{¶24} However, Behren acknowledged that she never heard Sanderson talk 

Elmore out of the plea offer or even advise Elmore that he should proceed to trial in any 

of the conferences she attended between Sanderson and Elmore. She acknowledged 

that her primary function during her meetings with Elmore was to act as a liaison 

between Elmore and Sanderson and that most of her involvement in the case consisted 

of meeting with Elmore a few of times a week. She also acknowledged that Elmore 

might have indicated that he did not have anything to lose by going to trial, because he 

would die in prison anyway and that "if they want to kill me, I might as well have a trial” 

[2T. at 218-219]. 

2. Andrew Sanderson - Elmore’s trial co-counsel. 

{¶25} Sanderson testified that Elmore had consistently refused to consider 

pleading to anything that would result in a life sentence without the possibility of parole, 

(1T. at 79). Sanderson could not recall meeting with Elmore after he learned Elmore 

would take the offer, but according to Sanderson's billing records, Sanderson met with 
Licking County, Case No. 13-CA-84 9 

Elmore briefly on January 31, 2003, after the date the written offer was extended to 

King, but before, Elmore agreed to plead on February 3, 2003. Sanderson also 

acknowledged that his billing records showed he met with Elmore alone on February 11, 

2003, after Elmore said he would accept the offer, but before the scheduled court date 

of February 13, 2003. 

{¶26} After Elmore refused to plead on February 13, 2003, Sanderson testified 

that Elmore claimed that he accepted the offer to “get King off his back “[1T. at 80-81].

Sanderson did not dispute that he may have told Behrens he hoped the case went to 

trial. He testified that he enjoyed trial work. However, he claimed that he never talked 

Elmore out of the plea, 

Q. If Ms. Behrens were to come to court and say that you were 

interested in Mr. Elmore's case going to trial, would you have any reason 

to dispute that? 

A. Not a one. 

Q. And if Ms. Behrens were to come to court and say that you were 

interested in Mr. Elmore's case going to trial because it would ultimately 

lead to your first chair certification, would you have any reason to contest 

that? 

A. No, but it presents it in a vacuum. 

Q. Okay Would you — do you ever recall telling Ms. Behrens that you 

needed to talk Mr. Elmore out of pleading so that you could have the trial? 

A. I would never have said that to her. 

1T. at 98. Sanderson further testified, 
Licking County, Case No. 13-CA-84 10 

Q. On February 13, 2003, the day on which the three judge panel 

hearing was set, you and Michael King and Phillip Elmore met privately in 

Judge Spahr’s jury room. Is that correct? 

A. I believe so, yes. 

Q. At that time, Phillip Elmore made the decision not to accept the 

state’s proposed resolution. Is that correct? 

A. I would assume so, yes. 

Q. At that time, you did not make Phillip Elmore reject the State’s 

proposed resolution, did you? 

A. No, I did not. 

* * * 

Q. If Elmore gave you the authorization, you would have attempted to 

convince the prosecutor to return to the original deal, the life in prison, 

back on the table, correct? 

A. I would have, and I have every expectation I could have gotten it 

back on the table. 

Q. At no point thereafter did Elmore give you authorization to ask the 

prosecutor to reinstate the life without parole recommendation, correct? 

A. Not that I recall. 

1T. at 107-108. On March 11, 2003, Sanderson wrote a letter to Elmore stating, 

 I am writing in response to your letter, received by my office today, 

March 7, 20033

. Needless to say, I was disappointed in your words, 

thoughts and emotions. I am sorry you have reached this decision, but, as 

 3

 Elmore’s March 7, 2003 has not been recovered. 
Licking County, Case No. 13-CA-84 11 

I have told you in the past, I would respect the same and do what I could 

to bring your desires to fruition. That being said, I am unclear from your 

letter what it is exactly you want me to try and accomplish. You expressed 

in your letter that you wished to plead guilty to “all counts,” but did not 

elaborate on what you meant by that. Do you want me to try and convince 

the prosecutor to return the original deal, the life in prison, back to the 

table or are you representing that it is your desire to plead to all counts 

even if the specification is included and, in doing so, waive mitigation, 

effectively pleading to the death sentence? 

* * * 

 I have contacted the prosecutor’s office and provided them with a 

preliminary indication of your renewed desire to plead, but need more 

information from you before I may fully pursue this matter and attempt to 

carry out your wishes. 

3. J. Michael King – Elmore’s Lead Counsel. 

{¶27} J. Michael King indicated that on June 20, 2002, Judge Jon Spahr 

appointed him "lead counsel" pursuant to Rule 20, Rules of Superintendence for the 

Courts of Ohio, on Phillip Elmore's capital case. 

{¶28} King indicated that as a general rule Licking County does not engage in 

plea bargaining. (1T. at 127). Although he has no specific recollection, King was sure 

that either he or Sanderson nevertheless approached the prosecutor about a possible 

plea. 
Licking County, Case No. 13-CA-84 12 

{¶29} King received a letter dated January 22, 2003 from Assistant Prosecutor 

Glenn Rossi offering a resolution. Pursuant to the agreement, Elmore would have pled 

guilty before a three-judge panel to all charges. The state was offering life without 

parole on the aggravated murder charge and the state would agree not to seek the 

death penalty. The state further offered the maximum consecutive sentences on all 

other charges. The offer was expressly made contingent upon the acceptance of the 

terms by the trial court. 

{¶30} King conveyed the offer to Sanderson, who at King's request was able to 

get an extension of the cut-off date. (1T. at 132-33). Although King and Sanderson 

originally planned to visit Elmore together, King ultimately met with Elmore alone after 

receiving a phone message that Sanderson had gotten tied up in court. King conveyed 

this offer to Elmore who accepted the agreement, initialing and dating the written offer 

from the prosecutor to confirm his assent. The case was then set for a hearing before a 

three-judge panel at which time Elmore was to enter his guilty plea. 

{¶31} The morning of the hearing, King was met in the hall outside the 

courtroom by his co-counsel, Andrew Sanderson. (1 T. at 142). Sanderson informed 

King that Elmore had changed his mind, and would no longer accept the plea offer. King 

and Sanderson then met privately with Elmore in Judge Spahr’s jury room. King 

testified, 

Q. During this private conference with Elmore, you asked Elmore if he 

had changed his mind about the proposed resolution. Is that correct? 

A. Yes. 
Licking County, Case No. 13-CA-84 13 

Q. In response, Elmore acknowledged that he changed his mind. Is 

that correct? 

A. Yes. 

Q. Andrew Sanderson did not impair or restrict your dialogue with 

Elmore. Is that correct? 

A. At that point, yeah. He didn’t. I don’t recall Andrew saying anything 

at that point in time. 

Q. When you asked questions of Elmore, Elmore gave his own 

responses. Is that correct? 

A. Yes. 

* * * 

Q. You reminded Elmore that if his decision was to reject the proposed 

resolution, you would withdraw from the case. Is that correct? 

A. Correct. 

Q. You were satisfied that Elmore was cogent and lucid. Is that 

correct? 

A. Yeah, didn’t have any question about that. 

Q. Even though you disagreed with Elmore’s decision, you were 

satisfied that Elmore did not misunderstand the options before him. Is that 

correct? 

A. He should have. I mean, I don’t know what he understands, but we 

certainly explained the various penalties and options to him throughout 

this—certainly throughout my representation of him. 
Licking County, Case No. 13-CA-84 14 

Q. Were you then—were you then satisfied that Elmore did not 

misunderstand the options before him? 

A. It was my belief that my client at that time knew what the penalties 

were and what his options were. 

Q. Even though you disagreed with Elmore’s decision, you were 

satisfied that Elmore himself did not want to go through with the proposed 

deal. Is that correct? 

A. Correct. 

1T. at 148-149. 

4. Brian Rigg – Successor Lead Counsel 

{¶32} Brian Rigg testified that he was appointed lead counsel in Phillip Elmore's 

capital case on April 15, 2003 after Elmore withdrew his guilty plea and former lead 

counsel J. Michael King filed a motion to withdraw from the case. Rigg testified that 

because of the death specifications a plea before a single judge was not possible. [1T. 

at 165] A three-judge panel would be convened. At the time of Elmore’s trial, in a plea 

proceeding before a three-judge panel the state remained obligated to show the threejudge panel there was sufficient evidence to justify a guilty plea to aggravated murder 

and the death penalty specifications. [Id.] The defense would be required to present 

mitigation evidence. [1T. at 166] The ultimate sentence would be determined by the 

three-judge panel who would not be bound to follow any recommendation the state may 

have made. [1T. at 166-167] Rigg further testified, 

Q. In fact, a couple weeks before the trial started, just a few 

weeks before the trial started, Elmore gave you reason to believe that he 
Licking County, Case No. 13-CA-84 15 

was seriously considering taking a plea to resolve the case short of trial. 

Isn’t that correct? 

* * * 

A. Yes. I thought up until – yeah, maybe a few weeks before 

trial that we were getting close to maybe a plea. 

Q. In fact, Elmore told you after he – he would need to talk to 

his family by telephone and that he would let you know whether he was 

going to take that plea or at least give you authorization to approach the 

State. Is that correct? 

A. Yes, I remember that conversation, because his family lived 

out of state. 

Q. Now according to your deposition, a couple weeks before 

the trial started, you were, quote, a little bit taken aback that Elmore 

wanted to go forward with the trial, because you thought it was going to be 

a plea. Is that correct? 

A. Yeah, I thought we were getting close to –Mr. Elmore was 

getting close to wanting to take a plea, yes. 

Q. But it was Elmore’s decision to, ultimately, reject that plea 

even shortly before the trial—even the idea of approaching the State? 

A. It was his decision, yes. 

* * * 
Licking County, Case No. 13-CA-84 16 

Q. And in all you-although you may have disagreed with 

Elmore’s decision, you were of the belief Elmore was competent to make 

that decision. Isn’t that correct? 

A. Yes. 

Q. And if you thought Elmore was not competent to make that 

decision, you would advise Judge Spahr. Is that correct? 

A. Yes 

* * * 

Now if you thought Elmore was getting advice not to take a plea 

offer, do you believe Elmore would have told you that? 

A. Yeah, I’d hope so. Yeah. 

Q. And he never told you that, did he? 

A. Mr. Elmore, no. 

1T. at 169-172. 

5. Kenneth Oswalt - Trial Prosecutor. 

{¶33} Kenneth Oswalt testified that he was involved in almost all of the pretrial 

proceedings in Elmore's case, but was not one of the trial prosecutors because he had 

a conflict that week. Bob Becker, the elected prosecutor at the time of Elmore's trial, and 

Assistant Prosecutor Glenn Rossi, represented the State of Ohio at Elmore's jury trial. 

{¶34} Oswalt further testified that the policy of the Licking County Prosecutor's 

Office not to initiate plea negotiations in criminal cases. (2T. at 246-48). If the defense 

team indicates that a defendant is amenable to accepting a negotiated plea, the 

Prosecutor's Office will consider a possible plea. In a capital case, the Prosecutor's 
Licking County, Case No. 13-CA-84 17 

Office needs to talk to the victim's family before agreeing to a negotiated plea. Oswalt 

described the state’s proposed resolution in Elmore’s case, 

 It means that if you enter a plea to everything in this indictment 

including a specification -- actually four specifications any one of which 

technically makes you eligible for the death penalty, we would go on 

record and not -- and although it's not specifically spoken in here, 

represent to the Court not only are we not seeking the death penalty, that 

we are okay with life without parole, we represent that's also the position 

held by the victim's family if he pleads guilty. Okay? That is we are no 

longer insisting upon the death penalty if he pleads guilty, accepts 

responsibility, we'll be completely - accept because we get closure, we 

being the government, but more so the family, we get closure; we get a 

defendant acknowledging his guilt. 

1T. at 172. Oswalt then explained what steps would occur after the plea, 

Q. If Elmore would plead guilty to all the charges, who would 

make the final decision about the sentence, the prosecutor's office or the 

three judge panel? 

A. Three judge panel. 

Q. Why would that be? 

A. Because as any plea agreement case, plea bargained case, 

the judge always has -- the Court always has the ability to say, "No, I'm 

not bound by it," and here we had three judges, so we had a situation 

where three judges ultimately would be called upon to decide whether 
Licking County, Case No. 13-CA-84 18 

they would accept a recommendation presupposing they accepted the 

plea. If Mr. Elmore came in and waffled about what he wanted to do and 

ambivalent, the Court may have said, "I'm not even taking the plea," and 

we wouldn't have gotten to sentencing issue. 

Q. If Elmore would plead guilty to all the charges and the prosecutor's 

office agreed not to seek the death penalty, would it still be legally 

possible for Elmore to be sentenced to death by a three judge panel? 

A. Legally possible, yes. 

Q. And why is that? 

A. Because with a death penalty specification remaining on the 

indictment, with a finding of guilt to that specification, either by trial, or as 

we're talking here, by plea, an acceptance of that plea after hearing 

testimony, under Ohio law, that's an option. Period. Whether it's an option 

the Court chooses to follow or not is another story, but it is an option. 

Q. And turning back to that letter, the letter says, "This offer is 

contingent upon acceptance of the term -- these terms by the Court." What 

does that mean? 

A. Intention is if for some reason, one or more of the judges wanted to 

do something less than life without parole, 30 years to life, that we would 

have to have some assurance that the Court was not going to give some 

minimum sentence. If we got some indication the Court wasn't going to do 

life without parole, then we were going to move the offer off the table. 

2T. at 266-268. 
Licking County, Case No. 13-CA-84 19 

{¶35} Rossi subsequently advised Oswalt that Elmore had accepted the offer, 

and provided him with a copy of King's acceptance letter. (2T. at 269). A hearing was 

scheduled before a three-judge panel at which time Elmore was scheduled to formally 

enter his plea. (Id. at 273-74). Oswalt recalls that the three judges were ready to 

proceed that morning, but that no court hearing actually took place. They were "advised 

that Elmore had changed his mind." 2T. at 274. 

{¶36} Oswalt further testified that between February 13, 2003 (the date the 

three- judge panel hearing was set) until the time of trial, neither Andrew Sanderson nor 

Brian Rigg requested reinstatement of the resolution proposed in Rossi's letter to King. 

6. Glenn Rossi - Trial Prosecutor 

{¶37} Glenn Rossi testified that he was assigned as an assistant prosecuting 

attorney in Phillip Elmore's capital case, and that he and former Licking County 

Prosecutor Robert Becker represented the State of Ohio at Elmore's jury trial. [2T. at 

283] 

{¶38} Rossi further testified that he prepared and sent to Elmore's lead counsel, 

J. Michael King, a written plea offer. Rossi indicated that he was subsequently informed 

in writing by King that Elmore had accepted the offer. A hearing date was set before a 

three-judge panel at which time Elmore was scheduled to plead guilty and be 

sentenced. The morning of the scheduled hearing, Andrew Sanderson informed Rossi 

"his client was not going to proceed with the plea.” (2T. at 288). 

{¶39} Rossi indicated that he believed Sanderson contacted either Oswalt or 

him about a possible plea both before and after the February 13, 2003 three-judge 

panel hearing date. 2T. at 288-289. Rossi indicated that both Sanderson and Rigg had 
Licking County, Case No. 13-CA-84 20 

contacted him about renewing the plea offer. (Id. at 305). However, on crossexamination Rossi indicated that he was not sure if Sanderson and/or Rigg had talked 

to him, talked to Oswalt, or talked to Becker. He did, however, recall that overtures were 

made about renewing the plea offer. (2T. at 306-07). 

7. Jon Spahr - Trial Judge 

{¶40} Retired Licking County Common Pleas Judge Jon Spahr indicated that he 

was the presiding judge in Elmore's capital case. [2T. at 317] 53) In Elmore's case, 

Judge Spahr indicated that the case had been scheduled for a three- judge panel, 

meaning the parties had reached some sort of agreement on the case. Judge Spahr 

testified the two other judges would have been Judge Gregory Frost and Judge Robert 

Hoover. (2T. at 329). The hearing never took place because Elmore did not enter a jury 

waiver. (Id. at 330). He did not learn the reason that the plea hearing did not take place. 

(Id. at 334). 

{¶41} Judge Spahr further indicated that he has known Andrew Sanderson for 

more than ten years, and that he would see him weekly when he was sitting as a 

Common Pleas Judge. (2T. at 342). He also had contact with other attorneys who dealt 

with Sanderson on a professional basis. (Id. at 343). It was Judge Spahr's opinion that 

Sanderson has always been truthful and honest. (Id.). 

{¶42} Judge Spahr stated that he recalled a discussion about resolving Elmore's 

case without a trial, although he did not "recall the particulars." (2T. at 326). He further 

stated, 

 I know that a judge presiding over a death penalty case is always 

interested in whether or not there will be a plea to it, because death 
Licking County, Case No. 13-CA-84 21 

penalty cases are tough on everybody, and if it can be resolved by a plea, 

a judge is going to, you know, to explore that possibility. 

(Id.). He also indicated that "a judge [does not] want [] to go through a death penalty 

case if it can be avoided," and that he would personally give deference to any 

agreement the parties came up with, as long as the defendant also okayed it. (Id. at 

347). 

8. Intervenor Roland T. Davis 

{¶43} On February 19, 2013, the first day of the new trial hearing, attorney 

Randall Porter entered an appearance in the case on behalf of Sanderson's former 

client, and Porter’s current client, Roland Davis. Like Elmore, Davis had been found 

guilty by a Licking County jury and sentenced to death. Porter informed the court that he 

had recently learned that testimony might be elicited at the hearing about the Davis 

case, and he wanted the court to know that Davis had not waived his statutory attorneyclient, privilege or his right to confidentiality under Rule 1.6 of the Ohio Rules of 

Professional Conduct. 

{¶44} Elmore argued that the testimony of Leigh Bayer would have provided 

crucial support for Elmore's motion for new trial. She worked at Sanderson's office after 

Behrens left, and would have been able to provide an independent perspective 

regarding the office workings and Sanderson's widely known and overwhelming desire 

to become first chair eligible. She would also have been able to testify that Sanderson 

was finally able to achieve his coveted goal by co-counseling on the Davis case, an 

achievement that further supports Behrens' assertion that Sanderson expressed a 

willingness to do whatever was required to achieve his goal. 
Licking County, Case No. 13-CA-84 22 

{¶45} The trial court conducted a voir dire examination of the witness out of the 

hearing of either party and determined that Bayer's testimony in response to certain 

questions could violate the attorney client privilege and would not be admitted at the 

hearing.4

{¶46} After the conclusion of the evidentiary hearing, the parties submitted posthearing briefs. On August 30, 2013, the trial court filed a nunc pro tunc Judgment Entry 

denying Elmore’s motion for a new trial. 

D. The Trial Court’s Decision. 

{¶47} The trial court framed the issue, 

 The issue In this case is whether Elmore is entitled to a new trial 

because one of his lawyers operated under a conflict of interest that 

resulted in his failure to provide effective assistance of counsel during the 

pretrial plea negotiation phase of his trial it is not about whether Elmore's 

trial attorneys - any one or all of them - should have spent more time and 

effort urging him to accept the state's plea offer of life without parole. 

{¶48} The trial court found after reviewing the evidence, 

 The evidence is insufficient to establish an actual conflict of interest 

or that he was serving two masters. At best, the evidence suggested that 

Sanderson's desire to become Rule 20 certified constituted a theoretical 

division of loyalty, but it was not the driving force behind Elmore's case 

going to trial. While it is clear that Sanderson made statements indicating 

a desire or a hope that Elmore's case went to trial, the evidence offered at 

 4

 The transcript of Bayer’s in camera testimony was sealed and made part of the record on 

appeal. 
Licking County, Case No. 13-CA-84 23 

the hearing is insufficient to demonstrate Mr. Sanderson was actually 

representing, furthering, or serving interests different than from those of 

his client. 

 The court finds that the decision to go to trial was Elmore's. 

Although, he indicated a willingness to accept the State's offer early in 

2003, Elmore changed his mind when confronted with a very difficult 

decision to either (1) accept life in prison without the possibility -of parole 

and avoid the possibility of the death penalty; or (2) go to trial and have 

the possibility of receiving a sentence that included parole eligibility after 

25 or 30 years but also run the risk of receiving a death sentence. 

* * * 

Elmore presented no testimony at the hearing on his motion to 

suggest that Sanderson's advice to him somehow caused him to reject the 

plea offer that he apparently had accepted before. Elmore himself was 

completely silent on the matter, and in light of the other evidence 

presented at the hearing, Elmore's silence was deafening. 

* * * 

 Even if The Court were to assume that Sanderson were laboring 

under an impossible conflict of interest because of his desire to obtain first 

chair certification, there was no evidence that Sanderson counseled 

Elmore to reject the plea There is absolutely no evidence that Elmore 

based his decision to reject the plea offer on any advice or conduct 

undertaker by Sanderson. 
Licking County, Case No. 13-CA-84 24 

* * * 

 Here, Elmore presented no evidence that he would have accepted 

the plea offer but for Sanderson's advice. At most the evidence suggests 

that at some point during the litigation Elmore expressed an intent to 

accept the plea early on, but there was no evidence as to what or who 

motivated him to change his mind. The fact that Sanderson wanted the 

case to go to trial is insufficient to establish causation Elmore's claim that it 

was because of Sanderson's divided loyalties is simply too great of a leap 

to make based on the evidence presented to [sic.] at the hearing. 

{¶49} On January 13, 2014, this Court granted Roland T. Davis’ limited motion 

to intervene for the purpose of addressing Elmore’s claims concerning Bayer’s 

testimony. 

Assignments of Error 

{¶50} Elmore raises three assignments of error, 

{¶51} “I. TRIAL COUNSEL'S CONFLICT OF INTEREST DEPRIVED 

APPELLANT OF HIS RIGHT TO THE ASSISTANCE OF COUNSEL AND DUE 

PROCESS OF LAW IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND 

'FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 

{¶52} “II. PURSUANT TO LAFLER V. COOPER, 132 S.CT. 1376 (2012) AND 

MISSOURI Y. FRYE, 132 S.CT, 1399 (2012), APPELLANT ELMORE RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PLEA BARGAINING STAGE OF 

THE PROCEEDINGS AND THE TRIAL COURT'S REFUSAL TO ADDRESS THIS 

CLAIM WAS ERROR. 
Licking County, Case No. 13-CA-84 25 

{¶53} “III. THE TRIAL COURT ERRED IN ISSUING A BLANKET PROHIBITION 

AGAINST THE TESTIMONY OF DEFENSE WITNESS LEIGH BAYER IN VIOLATION 

OF APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH 

AMENDMENTS TO THE UNTIED STATES CONSTITUTION.” 

I. 

{¶54} In his first assignment of error, Elmore contends that one of his trial 

attorneys had a conflict of interest that deprived him of his right to the assistance of 

counsel. 

{¶55} We begin by noting that this appeal is from the denial of a motion for a 

new trial. 

A. Standard of Review – Motion for a New Trial 

{¶56} Crim.R.33, which provides the procedure for obtaining a new trial, states 

in part, 

(A) Grounds 

 A new trial may be granted on motion of the defendant for any of 

the following causes affecting materially his substantial rights: 

 (1) Irregularity in the proceedings, or in any order or ruling of the 

court, or abuse of discretion by the court, because of which the defendant 

was prevented from having a fair trial; 

 (2) Misconduct of the jury, prosecuting attorney, or the witnesses 

for the state; 

 (3) Accident or surprise which ordinary prudence could not have 

guarded against; 
Licking County, Case No. 13-CA-84 26 

 (4) That the verdict is not sustained by sufficient evidence or is 

contrary to law. If the evidence shows the defendant is not guilty of the 

degree of crime for which he was convicted, but guilty of a lesser degree 

thereof, or of a lesser crime included therein, the court may modify the 

verdict or finding accordingly, without granting or ordering a new trial, and 

shall pass sentence on such verdict or finding as modified; 

(5) Error of law occurring at the trial; 

 (6) When new evidence material to the defense is discovered which 

the defendant could not with reasonable diligence have discovered and 

produced at the trial. When a motion for a new trial is made upon the 

ground of newly discovered evidence, the defendant must produce at the 

hearing on the motion, in support thereof, the affidavits of the witnesses by 

whom such evidence is expected to be given, and if time is required by the 

defendant to procure such affidavits, the court may postpone the hearing 

of the motion for such length of time as is reasonable under all the 

circumstances of the case. The prosecuting attorney may produce 

affidavits or other evidence to impeach the affidavits of such witnesses. 

* * * 

{¶57} “To warrant the granting of a motion for a new trial on the ground of newly 

discovered evidence, it must be shown that the new evidence (1) discloses a strong 

probability that it will change the result of a new trial if granted; (2) has been discovered 

since the trial; (3) is such as could not in the exercise of due diligence have been 

discovered before the trial; (4) is material to the issues; (5) is not merely cumulative to 
Licking County, Case No. 13-CA-84 27 

former evidence; and (6) does not merely impeach or contradict the former evidence.” 

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370(1947), syllabus. Accord, State v. 

Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227(1993), syllabus; State v. LaMar, 95 

Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶85. 

{¶58} The decision whether to grant a new trial on grounds of newly discovered 

evidence falls within the sound discretion of the trial court. State v. Hawkins, 66 Ohio 

St.3d at 350, 612 N.E.2d 1227. We cannot reverse unless there has been a gross 

abuse of that discretion, and whether that discretion has been abused must be 

disclosed from the entire record. State v. Petro, 148 Ohio St. at 507- 508, 76 N.E.2d 

370, quoting State v. Lopa, 96 Ohio St. 410, 411, 117 N.E. 319(1917). 

B. Ineffective Assistance of Counsel - Conflict of Interest 

{¶59} The gravamen of Elmore’s claim is that his trial attorney Andrew 

Sanderson convinced Elmore to reject a plea offer that he had previously agreed to and 

would have saved his life, solely because Sanderson needed to participate in two 

capital jury trials to qualify for first-chair status under Rule 20 of the Ohio Rules of 

Superintendence. The newly discovered evidence in the case at bar is the testimony of 

Shanda Behrens, a former associate of Sanderson's. Behrens testified that after 

Sanderson became aware that Elmore had accepted the plea offer, Sanderson 

indicated that he wanted Elmore's case to go to trial because he needed to participate in 

two capital jury trials to qualify for first-chair status under Rule 20 of the Ohio Rules of 

Superintendence. 

{¶60} The instant case involves a specific type of ineffectiveness claim, that of 

conflict of interest, which is also examined under a slightly different standard from that 
Licking County, Case No. 13-CA-84 28 

used in a traditional ineffectiveness claim. Thomas v. Foltz, 818 F.2d 476,480(6th Cir 

1987). The Supreme Court set forth the standard for determining conflict of interest 

cases in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and 

summarized it again in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 

2064, 80 L.Ed.2d 674 (1984)as follows: 

 In Cuyler ... [we] held that prejudice is presumed when counsel is 

burdened by an actual conflict of interest. In those circumstances, counsel 

breaches the duty of loyalty, perhaps the most basic of counsel’s duties. 

Moreover, it is difficult to measure the precise effect on the defense of 

representation corrupted by conflicting interests. Given the obligation of 

counsel to avoid conflicts of interest and the ability of trial courts to make 

early inquiry in certain situations likely to give rise to conflicts ... it is 

reasonable for the criminal justice system to maintain a fairly rigid rule of 

presumed prejudice for conflicts of interest. Even so, the rule is not quite 

the per se rule of prejudice that exists for the Sixth Amendment claims 

mentioned above [actual or constructive denial of the assistance of 

counsel altogether]. Prejudice is presumed only if the defendant 

demonstrates that counsel “actively represented conflicting interests” and 

that “an actual conflict of interest adversely affected his lawyer’s 

performance.” 

Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (emphasis added) (quoting Cuyler, 446 

U.S. at 345-50, 100 S.Ct. at 1716-19); Thomas v. Foltz, 818 F.2d at 480. Accord, 

Mikens v. Taylor, 535 U.S. 162, 171-172, 122 S.Ct. 1237, 152 L.Ed.2d 291(2001). This 
Licking County, Case No. 13-CA-84 29 

standard has been adopted in Ohio. An appellant establishes a claim of ineffective 

assistance of counsel when he demonstrates that an “actual” conflict of interest 

adversely affected his counsel’s performance. State v. Keith, 79 Ohio St.3d 514, 535, 

684 N.E.2d 47, 1997–Ohio–367, citing Cuyler v. Sullivan), 446 U.S. 335, 348, 100 S.Ct. 

1708, 64 L.Ed.2d 333(1980); State v. Jones, 5th Dist. Stark Nos. 2007-CA-00041, 2007-

CA-00077, 2008-Ohio-1068, ¶76. 

{¶61} In Foltz, the United States Court of Appeals for the Sixth Circuit adopted 

the following test when a conflict of interest claim is raised, 

 The standard for determining whether an actual conflict of interest 

exists was set forth in United States v. Mers, 701 F.2d 1321 (11th Cir.), 

cert. denied, 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983), as 

follows: 

 We will not find an actual conflict unless appellants can point to 

“specific instances in the record to suggest an actual conflict or 

impairment of their interests...” Appellants must make a factual showing of 

inconsistent interests and must demonstrate that the attorney “made a 

choice between possible alternative courses of action, such as eliciting (or 

failing to elicit) evidence helpful to one client but harmful to the other. If he 

did not make such a choice, the conflict remained hypothetical.” * * * 

There is no violation where the conflict is “irrelevant or merely 

hypothetical”; there must be an “actual significant conflict.” Id. at 1328 

(citations omitted). 

618 F.2d at 481. 
Licking County, Case No. 13-CA-84 30 

{¶62} In his direct appeal and in his appeal from the denial of his petition for post 

conviction relief, Elmore raised numerous instances of alleged ineffective assistance of 

counsel. Elmore I; Elmore II. At no time during those proceedings did Elmore argue that 

his decision to go to trial was anything other than his own free will. If Elmore had been 

pressured, cajoled, coerced or mislead into rejecting the plea agreement he would 

certainly have been able to assert that claim because different counsel represented him 

in those proceedings. The only basis for asserting that he did not take the plea 

agreement at this late stage is his claim that he only recently discovered that Sanderson 

wanted to obtain first chair certification. An asserted desire to obtain lead counsel 

certification in death penalty cases would, in and of itself, be insufficient to demonstrate 

an actual conflict of interest. Otherwise, every attorney who is second chair qualified 

and who desires to obtain first chair certification would be laboring under a conflict of 

interest in each death penalty case in which he or she participated. 

{¶63} Elmore presents only the statement of Behrens and the fact that Elmore 

changed his plea after meeting with Sanderson on February 13, 2003 to establish an 

“actual conflict.” He then asks this Court to infer from those facts that Elmore’s change 

of heart was somehow brought about by Sanderson’s desire to obtain his first-chair 

status. The record does not contain any evidence that any statements or actions of 

Sanderson motivated Elmore’s decision to reject the plea bargain and proceed to a jury 

trial. 

{¶64} Elmore places emphasis exclusively upon Sanderson’s representation. 

However, Elmore was not left solely to the care of Sanderson. At all times, Elmore had 

the benefit of a second attorney. The record demonstrates that no less than three 
Licking County, Case No. 13-CA-84 31 

attorneys represented Elmore before the start of his jury trial. Two of those attorneys 

were certified as first chair counsel. Both King and Rigg testified at the hearing on 

Elmore’s motion for a new trial that Elmore understood the options available to him and 

the penalties he was facing. In fact, King informed Elmore that if he intended to reject 

the plea and insist on going to trial, King would resign. King did resign when Elmore 

rejected the plea offer. Rigg was then appointed to replace him. 

{¶65} Further, evidence supports the conclusion that no actual conflict existed. 

Sanderson clearly and unequivocally testified that he "did not make Phillip Elmore reject 

the State's proposed resolution." (1T. at 107) Sanderson took steps to counsel Elmore 

that a plea was still possible. In his letter of March 11, 2003, Sanderson told Elmore that 

he would pursue a plea if Elmore instructed him to do so. Sanderson also indicted it that 

letter that he would resign from the case if Elmore so desired. The record contains no 

evidence to suggest that Elmore instructed Sanderson to pursue a plea after February 

13, 2003, or why Elmore did not instruct him to do so. 

{¶66} Brian Rigg testifed that discussions of the suggested plea resolution were 

ongoing after February 13, 2003. Rigg testified that Elmore wanted to speak to family 

members and Elmore would let Rigg know whether he wanted to plead. The record 

contains no evidence to refute Rigg’s testimony that discussion with Elmore concerning 

the plea agreement continued after February 13, 2003. Rigg testified that he believed 

that it was Elmore’s decision to reject the plea. The record contains no evidence that 

Elmore’s decision to reject the plea agreement and proceed with a jury trial was 

motivated by any of his attorneys’ advice or action, acting alone or in concert. 
Licking County, Case No. 13-CA-84 32 

{¶67} Assistant prosecutor Rossi testified that he believed that Sanderson 

contacted the prosecutor’s office before February 13, 2003, about a possible plea. He 

further testified that overtures were made about renewing the plea offer after February 

13, 2003. 

{¶68} The record supports the fact that Elmore was presented with the 

opportunity to plead guilty and chose not to do so. Elmore has never stated that 

Sanderson advised him to reject the plea agreement and proceed with a jury trial. The 

record supports the trial court’s conclusion that Elmore weighed the advice of all three 

of his attorneys, and made the ultimate decision about whether to enter into the plea 

agreement. Elmore cannot eight years later claim ineffective assistance of counsel 

because he is dissatisfied with results of the choice he made. 

{¶69} We cannot find the trial court abused its discretion in overruling Elmore’s 

motion for a new trial. The record contains no evidence that Sanderson had an “actual 

conflict of interest.” Further, the record contains no evidence that Sanderson did 

anything that was motivated by his supposed personal interest in obtaining first-chair 

capital case certification that adversely affected his representation of Elmore. 

{¶70} Elmore’s first assignment of error is overruled. 

II. 

{¶71} Under his second assignment of error, Elmore begins by asserting that the 

trial court "would not review Elmore's claim of ineffective assistance of counsel received 

during the plea bargain stage of his case." (Brief of Appellant, p. 12.) This is an overly 

broad statement. When framing the issues, the trial court indicated that it would 

consider Elmore’s claim of ineffective assistance of counsel during the plea bargaining 
Licking County, Case No. 13-CA-84 33 

stage of the proceedings. What the trial court declined to consider was Elmore's claim 

that he suffered from the ineffective assistance of counsel predicated upon the factual 

allegation that his attorneys failed to present Elmore his options in "a unified voice,” and 

thus did not do enough to "persuade" or "convince" him to enter a plea. 

A. Failure to persuade Elmore to plead guilty 

{¶72} The claim that Elmore’s attorneys did not do enough to persuade him to 

accept the plea bargain was first advanced in writing in Elmore’s post-hearing 

memorandum. It was not presented in Elmore’s motion for leave to file a motion for a 

new trial. This theory was also not presented in Elmore’s motion for a new trial. Elmore 

did not seek leave of the trial court to supplement his motion for a new trial with this new 

theory. 

{¶73} Because Elmore’s “failure to persuade" claim was not asserted in his 

motion for new trial the state had no opportunity to prepare for an evidentiary hearing on 

that claim. More importantly, because this claim was not asserted in his motion for leave 

to file a motion for new trial, the trial court never had the opportunity to decide if 

Elmore’s “failure to persuade” claim was based upon new evidence that he could not 

with reasonable diligence have discovered and produced at trial. Crim R. 33(A)(6). 

{¶74} Crim R. 33 provides, 

(B) Motion for new trial; form, time

Application for a new trial shall be made by motion which, except 

for the cause of newly discovered evidence, shall be filed within fourteen 

days after the verdict was rendered, or the decision of the court where a 

trial by jury has been waived, unless it is made to appear by clear and 
Licking County, Case No. 13-CA-84 34 

convincing proof that the defendant was unavoidably prevented from filing 

his motion for a new trial, in which case the motion shall be filed within 

seven days from the order of the court finding that the defendant was 

unavoidably prevented from filing such motion within the time provided 

herein. 

 Motions for new trial on account of newly discovered evidence shall 

be filed within one hundred twenty days after the day upon which the 

verdict was rendered, or the decision of the court where trial by jury has 

been waived. If it is made to appear by clear and convincing proof that the 

defendant was unavoidably prevented from the discovery of the evidence 

upon which he must rely, such motion shall be filed within seven days 

from an order of the court finding that he was unavoidably prevented from 

discovering the evidence within the one hundred twenty day period. 

{¶75} Thus, an argument could be made that whether his attorneys did or did 

not do enough to persuade Elmore to plead guilty would be based upon actions 

occurring in 2003 at the time of Elmore’s trial. That evidence would have been within 

Elmore’s own knowledge because he was a part of the discussions. As the actions 

occurred in 2003 and would have been known to Elmore it could be argued that it is not 

newly discovered evidence. Elmore would need to have established by clear and 

convincing evidence that he was unavoidably prevented from the discovery of the 

evidence upon which he must rely before Elmore could raise it as a ground for obtaining 

a new trial. 
Licking County, Case No. 13-CA-84 35 

{¶76} A trial court abuses its discretion in granting a defendant a new trial 

without first finding by clear and convincing evidence that the defendant was 

unavoidably prevented from discovering the evidence within the one hundred twenty 

day time frame established by Crim.R. 33(B). State v. Georgekopoulos, 9th Dist. 

Summit No. C.A. 21952, 2004-Ohio-5197, ¶8. 

{¶77} Thus, we find no abuse of discretion in the trial court’s decision not to 

review Elmore’s failure to persuade argument. 

B. Ineffective Assistance of counsel during the plea bargaining stage 

{¶78} Elmore further contends that the trial court failed to apply the U.S. 

Supreme Court’s decisions in Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 182 L.Ed.2d 

379 (2012) and Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed. 398 (2012). 

{¶79} In Frye and Lafler, the Supreme Court set forth a new standard to 

determine prejudice in context of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984) as it applies to plea offers and plea negotiations. 

{¶80} In Frye, defense counsel allowed a plea offer to expire without 

communicating the offer to the defendant resulting in the defendant accepting a later 

offer that was less favorable. Frye, at 1404. The Court held that “defense counsel has 

the duty to communicate formal offers from the prosecution to accept a plea....” 132 

S.Ct. at 1408. Given this duty, the Court emphasized that the right to effective 

assistance of counsel extends to the negotiation and consideration of plea offers that 

have been rejected or have lapsed. Id. at 1407–08. 

{¶81} In Lafler, a favorable plea offer was reported to the client and rejected on 

the advice of counsel, who advised the defendant that the state could not prove intent 
Licking County, Case No. 13-CA-84 36 

because the victim was shot below the waist, even though the defendant shot the victim 

three times and missed her head once. The defendant took the case to trial and was 

convicted, after which he received a sentence more than three times higher than the 

plea offer. Notably, in an earlier communication with the trial court, the defendant had 

admitted guilt and expressed a willingness to accept the plea offer. 

{¶82} In Lafler, the Court reiterated that the Sixth Amendment requires effective 

assistance not just at trial but at all critical stages of a criminal proceeding, including 

plea bargaining. 132 S.Ct. at 1384. In order to prevail on a claim of ineffective 

assistance of counsel when counsel’s ineffective advice led to the rejection of a plea 

offer, the Court held that “a defendant must show that but for the ineffective advice, 

there is a reasonable probability that [1] the plea offer would have been presented to the 

court ...; [2] the court would have accepted [the plea];” and (3) the defendant was 

convicted of more serious offense or received a less favorable sentence than he would 

have received under the terms of the offer. Id. at 1385. 

{¶83} However, defense counsel’s deficient performance was stipulated in 

Lafler. Id. at 1383, 1391. The issue of deficient performance was not before the Court 

and was specifically not addressed. Id. at 1384, 1391. In fact, the Court declared, “an 

erroneous strategic prediction about the outcome of a trial is not necessarily deficient 

performance.” Id. at 1391. 

{¶84} In the case at bar, there is no stipulation that any of Elmore’s attorneys 

ever counseled him to reject the plea bargain. Rather, as we addressed in our 

disposition of Elmore’s First Assignment of Error, the record established that plea 

negotiations were ongoing until the eve of trial. The record further confirms that Elmore 
Licking County, Case No. 13-CA-84 37 

was aware of what the penalties he was facing and what options were available to him.

Lafler is further distinguishable as it arose from a post-conviction proceeding where the 

defendant stated that he would have pled guilty but for counsel’s advice. Elmore did not 

testify at the hearing on the motion for a new trial. The record contains no evidence that 

Elmore has ever stated he would have plead guilty but for Sanderson or anyone else’s 

advice. Thus, Lafler is in fact distinguishable from the case before us. State v. Marsh, 

7th Dist. Mahoning No. 12 MA 40, 2013-Ohio-757, ¶25. 

{¶85} In any event, the record makes clear that Elmore was advised prior to trial 

that his case was not strong and that acceptance of the plea was advisable. Attorney 

King even went so far in his attempt to convince Elmore to accept the plea that he told 

Elmore he would quit if Elmore insisted upon going to trial. Attorney King testified that 

he was satisfied Elmore did not want to go through with the plea bargain so he withdrew 

from the case. 

{¶86} In Florida v. Nixon, the United State Supreme Court made the following 

observation, 

 A defendant, this Court affirmed, has “the ultimate authority” to 

determine “whether to plead guilty, waive a jury, testify in his or her own 

behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 

3308, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 

97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C. J., concurring). 

Concerning those decisions, an attorney must both consult with the 

defendant and obtain consent to the recommended course of action. 

* * * 
Licking County, Case No. 13-CA-84 38 

 While a guilty plea may be tactically advantageous for the 

defendant, [Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 

274 (1969)], at 240, 89 S.Ct. 1709, the plea is not simply a strategic 

choice; it is “itself a conviction,” id., at 242, 89 S.Ct. 1709, and the high 

stakes for the defendant require “the utmost solicitude,” id., at 243, 89 

S.Ct. 1709. Accordingly, counsel lacks authority to consent to a guilty plea 

on a client’s behalf, Brookhart v. Janis, 384 U.S. 1, 6-7, 86 S.Ct. 1245, 16 

L.Ed.2d 314 (1966); moreover, a defendant’s tacit acquiescence in the 

decision to plead is insufficient to render the plea valid, Boykin, 395 U.S., 

at 242, 89 S.Ct. 1709. 

534 U.S. 175, 187-188, 125 S.Ct. 551, 160 L.Ed.2d 565(2004). 

{¶87} In the case at bar, the record establishes that counsel communicated the 

state’s plea offer to Elmore in conformity with Frye. In addition, Elmore makes no 

argument that defense counsel advised him to reject the plea offer, nor does the record 

permit the conclusion that defense counsel gave any advice to reject the plea offer in 

violation of Lafler. State v. Hills, 8th Dist. Cuyahoga No. 98848, 2013-Ohio-2902, ¶20. 

{¶88} Accordingly, the record contains no credible evidence to prove that 

Sanderson, King, or Rigg was constitutionally ineffective in his representation of Elmore 

during the plea negotiation process. 

{¶89} Elmore’s second assignment of error is overruled. 

III. 

{¶90} In his third assignment of error, Elmore argues the trial court erred in 

issuing a blanket prohibition against the testimony of defense witness Leigh Bayer. 
Licking County, Case No. 13-CA-84 39 

Specifically, Elmore contends the trial court should have allowed Bayer to be called as a 

witness, and directed Davis' counsel to raise objections to individual questions as they 

were made. The court could then have addressed each privilege claim individually, 

rather than lumping them together under a general Rule 1.6 objection. [Appellant’s Brief 

at 28]. 

A. The Trial Court’s Ruling 

{¶91} Roland Davis' current attorney appeared at the hearing on Elmore’s 

motion for a new trial and argued that Bayer's testimony would violate Mr. Davis' 

attorney client privilege. The trial court conducted a voir dire examination of the witness 

out of the hearing of either party and determined that, 

THE COURT: Okay, we're back on the record in the Elmore case, 

and the Court has conducted an in camera evaluation of Ms. Bayer's 

testimony in light of the privilege issues that were asserted by Mr. Davis, 

and based on that in camera evaluation, I have determined that based on 

Rule 1.6 of the Ohio Rules of Professional Conduct that Ms. Bayer would 

not be permitted to reveal any information relating to the rep - Mr. 

Sanderson's representation of Mr. Davis and that the information she 

would provide in response to certain questions regarding statements she 

might attribute to Mr. Sanderson during that representation would, in my 

view, violate the privilege, the attorney-client privilege, and potentially 

reveal confidential information in violation of Rule 1.6. So that ruling is 

based on my in camera evaluation and the arguments advanced by Mr. 

Davis' counsel. 
Licking County, Case No. 13-CA-84 40 

 I’ve communicated this ruling before now to the attorneys, and Mr. 

Lazarow [Elmore’s attorney], do you intend to call Ms. Bayer or have we 

worked out some sort of procedure by which you might proffer her 

expected testimony?

MR. LAZAROW: Yes, Your Honor, we – the parties have agree to –as 

a proffer, to submit a copy of the affidavit of Leigh Ann Bayer that was 

previously filed in the motion - - I believe in the Motion for New Trial. 

THE COURT: Correct. According to the file, it was Exhibit C to the 

Defendant’s Motion for New Trial filed on July 25, 2012. 

MR. LAZAROW: Yes, and agree that if she were called to testify today, 

she would testify to the substance contained in the affidavit. 

2T. at 229(emphasis added). 

1. No blanket prohibition 

{¶92} Thus, while the trial court limited the testimony of Ms. Bayer, it did not 

issue a blanket prohibition against her testimony. 

{¶93} Under the doctrine of “invited error,” it is well settled that “a party will not 

be permitted to take advantage of an error which he himself invited or induced the trial 

court to make.” State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 1995-Ohio-40, 

646 N.E.2d 1115(1995) citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 

359,1994-Ohio-302, 626 N.E.2d 950(1994). See, also, Lester v. Leuck, 142 Ohio St. 91, 

50 N.E.2d 145(1943) paragraph one of the syllabus. As the Ohio Supreme Court has 

stated, 
Licking County, Case No. 13-CA-84 41 

[t]he law imposes upon every litigant the duty of vigilance in the trial of a 

case, and even where the trial court commits an error to his prejudice, he 

is required then and there to challenge the attention of the court to that 

error, by excepting thereto, and upon failure of the court to correct the 

same to cause his exceptions to be noted. It follows, therefore, that, for 

much graver reasons, a litigant cannot be permitted, either intentionally or 

unintentionally, to induce or mislead a court into the commission of an 

error and then procure a reversal of the judgment for an error for which he 

was actively responsible. 

Lester at 92-93, quoting State v. Kollar (1915), 93 Ohio St. 89, 91, 112 N.E. 196. 

{¶94} In the case at bar, Elmore could have called Bayer to the stand. Instead, 

Elmore chose to stipulate to her affidavit and agree that if she were called to testify, she 

would testify to the substance contained in the affidavit. Elmore had possession of that 

affidavit and had previously filed it in this case. 

2. Elmore consented to the in-camera hearing 

{¶95} Elmore consented to the trial court conducting the in camera hearing in 

question: 

THE COURT: All right. We've - - we're back on the record here with 

the Elmore case. We've had a chance to discuss an issue in chambers 

regarding some privilege issues with regard to Ms. Bayer's anticipated 

testimony, and we've discussed procedurally how best to handle those 

issues, and I think we've agreed or at least no one objects to the Court 

handling the matter in the following manner. 
Licking County, Case No. 13-CA-84 42 

* * * 

[THE COURT:] I'll conduct an in camera evaluation and then make 

the rulings on whether or not the State's [sic] objections to her testimony 

will be sustained or overruled and then also rule on the extent of whether 

she's permitted to testify and the parameters of the testimony. Does that 

sum it up pretty much? 

MR. MAHER: Your Honor, that is yes accurate from the State's side, 

Your Honor. 

MR. LAZAROW: And accurate from Mr. Elmore's. 

2T. at 226-227. 

{¶96} Elmore's failure to object to the ex parte procedure employed by the trial 

court waived the issue for purposes of this appeal. In the Matter of: J.E.D., 5th Dist. 

Richland No. 12-CA-107, 2013-Ohio-2186, ¶17; State v. Riley, 5th Dist. Muskingum No. 

CT2012-0022, 2013-Ohio-1332, ¶52. Further, Elmore invited the procedure that he 

now claims is error. It is well established that "a party will not be permitted to take 

advantage of an error which he himself invited or induced the trial court to make." State 

ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 646 N.E.2d 1115 (1995) citing State 

ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 626 N.E.2d 950 (1994). 

3. Harmless Error – Bayer’s testimony 

{¶97} In addition, even if error occurred in the exclusion of the Bayer’s 

testimony, it was harmless. We note that any error will be deemed harmless if it did not 

affect the accused's “substantial rights.” Before constitutional error can be considered 

harmless, we must be able to “declare a belief that it was harmless beyond a 
Licking County, Case No. 13-CA-84 43 

reasonable doubt.” United States v. Chapman, 386 U.S. 18, 24, 87 S.Ct. 824, 17 

L.Ed.2d 705(1967). Where there is no reasonable possibility that unlawful testimony 

contributed to a conviction, the error is harmless and therefore will not be grounds for 

reversal. State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of 

the syllabus, vacated on other grounds in (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 

L.Ed.2d 1154(1978). See also, State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 

N.E.2d 948, ¶177. 

{¶98} The substance of Bayer’s affidavit, which is unsealed and attached the 

Elmore’s motion for a new trial, is that Sanderson appeared pleased that Mr. Davis 

desired a trial and that Sanderson would now be eligible to obtain first chair status 

under Rule 20 of the Ohio Supreme Court Rules of Superintendence. We have likewise 

reviewed Bayer’s sealed testimony given during the in-camera hearing. 

{¶99} We find any error in the exclusion of Ms. Bayer’s testimony to be harmless 

beyond a reasonable doubt because: 1). Elmore was aware of the substance and 

nature of Bayer’s testimony by virtue of her affidavit; 2).Bayer’s testimony does not in 

any manner address or concern Sanderson representation of Elmore; 2). Bayer’s 

testimony does not provide any evidence that Sanderson did anything that was 

motivated by his supposed personal interest in obtaining first-chair capital case 

certification that adversely affected his representation of Elmore, as we have previously 

discussed in Elmore’s First and Second Assignments of Error. 

{¶100} Elmore’s third assignment of error is overruled. 
Licking County, Case No. 13-CA-84 44 

{¶101} Accordingly, the August 30, 2013 Judgment Entry of the Licking County 

Court of Common Pleas denying Elmore's motion for a new trial claiming newly 

discovered evidence is affirmed. 

By Gwin, P.J., 

Farmer, J., and 

Baldwin, J., concur