[Cite as State v. Obermiller, 2019-Ohio-1234.]

Court of Appeals of Ohio 

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 101456 

 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

DENNY OBERMILLER

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-10-541010-A and CR-10-542119-A 

BEFORE: Blackmon, P.J., Laster Mays, J., and Jones, J. 

RELEASED AND JOURNALIZED: April 4, 2019 
ATTORNEYS FOR APPELLANT

Timothy Young 

Ohio Public Defender 

Shawn P. Welch 

Randall Porter 

Melissa Jackson 

Assistant State Public Defenders 

250 East Broad Street, Suite 1400 

Columbus, Ohio 43215 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Christopher D. Schroeder 

Saleh Awadallah 

Assistant County Prosecutors 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

PATRICIA ANN BLACKMON, P.J.: 

{¶1} Defendant-appellant, Denny Obermiller (“Obermiller”), appeals from the denial of 

his petition to vacate his capital murder convictions and other offenses. He assigns the errors 

designated in the appendix for our review. 

{¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial 

court. The apposite facts follow. 

{¶3} Following the rape and murder of Obermiller’s grandmother, Candace Schneider 

(“Candace”), and the murder of Obermiller’s grandfather, Donald Schneider (“Donald”), 

Obermiller was indicted for seven counts of aggravated murder, three counts of theft, two counts 
of kidnapping, two counts of aggravated robbery, and one count each of rape, aggravated 

burglary, tampering with evidence, attempted aggravated arson, and burglary, as well as notices 

of prior convictions and repeat offender specifications. On January 11, 2011, Obermiller 

appeared before a three-judge panel and waived his right to a jury trial. He pled guilty to the 

entire indictment, except the notices of prior convictions and repeat offender specifications, 

which the state then dismissed. During a hearing pursuant to R.C. 2945.06, the evidence 

established: 

Shortly before noon on Tuesday, August 10, 2010, Officer Michael Gazer was 

dispatched to the Schneiders’ house in Maple Heights, Ohio, in response to a theft 

complaint. Donald and Candace told Gazer that they suspected Obermiller of 

stealing rare coins from their home. 

* * * Candace Flagg, one of the Schneiders’ granddaughters, * * * 

contacted her cousin, Obermiller, who told her that he would try to check on the 

Schneiders and get back to her. Obermiller did not call her that evening. 

The next day, Flagg called Obermiller again. Obermiller initially told her that he 

had not yet stopped by the Schneiders’ house. But when Flagg said that she was 

going to ask some friends to check on the Schneiders, Obermiller changed his 

story and told her that their grandparents were fine and that he had checked on 

them. After calling several other people, Flagg contacted the Maple Heights 

Police Department and requested that an officer stop by her grandparents’ house. 

Flagg was subsequently informed that an officer had driven past the house and 

had seen Donald’s van parked in the driveway. 

[On August 14, 2010,] officers looked through a partially open window, saw a 

body lying on the floor, forced their way in through the side door, and smelled a 

strong odor of natural gas. A candle was burning on the mantle in the living 

room, and the unlit gas stove in the kitchen had been left on with the burners 

exposed. One of the officers threw the candle out the door and turned off the gas 

stove. 

Officers found Candace’s body in the first-floor bedroom. She was lying on her 

back on the floor with her arms above her head and her wrists handcuffed 

together. A power cord was wrapped around her neck, and a bed sheet partly 

covered her torso and completely covered her face. Police recovered condom 

wrappers and two used condoms in the same bedroom. 
Officers found Donald’s body on the bed in the second-floor bedroom. He was 

wearing only underwear and was lying on his right side with his feet at the head of 

the bed. * * *. 

An investigator observed that a television set was missing from above the mantle 

in the living room, as indicated by a dust outline and hanging cables. Flagg 

testified at the hearing that her grandparents owned a large, flat-screen television 

set, which they had mounted above the mantle in the living room. * * * 

Subsequent forensic testing of vaginal swabs, performed by an analyst with the 

DNA department of the Cuyahoga County Coroner’s Office, confirmed the 

presence of seminal material containing DNA that matched Obermiller’s DNA 

profile as a major contributor to a reasonable degree of scientific certainty. 

Obermiller also could not be excluded as the source of epithelial cells found in the 

two used condoms. 

Deputy Medical Examiner Joseph Felo, D.O., conducted Donald’s autopsy and 

concluded that the cause of Donald’s death was the same as Candace’s: “asphyxia 

by cervical compression (ligature strangulation”). * * * 

After the evidentiary hearing, the panel found him guilty of all counts and 

specifications. 

At the start of the mitigation phase, the state requested that the court merge a 

number of the counts and specifications, and Obermiller waived the presentation 

of mitigating evidence [and otherwise would not allow his attorneys to put on any 

mitigating evidence after the panel determined that Obermiller] was competent to 

do so. [The] panel merged many of the counts and declared that it would 

sentence Obermiller on the following charges: Count 1 with specifications for 

course of conduct and witness murder, Count 4 with specifications for course of 

conduct, witness murder, and felony murder predicated on rape, Count 12 (rape), 

Count 13 (aggravated burglary), Count 15 (theft), Count 16 (theft), Count 17 

(attempted aggravated arson), and Count 18 (burglary). 

Ultimately, the panel unanimously sentenced him to death on Counts 1 and 4 and 

to an aggregate sentence of 32.5 years on the remaining counts. 

* * * The record is replete with evidence that Obermiller’s objective was to plead 

guilty as charged and to offer no mitigation during sentencing. Obermiller 

instructed his counsel to refrain from objecting, cross-examining the state’s 

witnesses, offering opening statements and closing arguments during both phases, 

and offering any mitigating evidence. Had defense counsel ignored Obermiller’s 

instructions, cross-examination and other tools of advocacy might have interfered 

with Obermiller’s desire to present no defense. 
See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 4-21, 90-91 

(hereafter referred to as “Obermiller I”). 

{¶4} The panel subsequently sentenced Obermiller to death for the aggravated murders 

plus 32.5 years in prison for his noncapital offenses. On direct appeal to the Ohio Supreme Court, 

Obermiller raised ten propositions of law that challenged the voluntariness of his plea, the 

effectiveness of his trial counsel, prosecutorial misconduct, and other issues. The Ohio 

Supreme Court affirmed the convictions, and, after conducting an independent review, also 

affirmed the imposition of the death penalty. Id. 

{¶5} Obermiller filed a petition to vacate his conviction under R.C. 2953.21, asserting 

sixteen claims for relief. On January 29, 2014, the presiding judge of the three-judge panel 

denied the petition. 

Petition to Vacate Conviction

{¶6} In the assigned errors, Obermiller argues that the trial court erred in denying his 

petition for postconviction relief because he set forth meritorious claims that support the vacation 

of his convictions. We shall address each assigned error in turn and combine the claims where 

it is appropriate to do so. 

{¶7} We review a trial court’s decision on a petition for postconviction relief for an 

abuse of discretion. State v. White, 8th Dist. Cuyahoga No. 90544, 2008-Ohio-4228, ¶ 19, 

citing State v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-102, 714 N.E.2d 905. 

{¶8} Under R.C. 2953.21, a prisoner may obtain postconviction relief “only if the 

court can find that there was such a denial or infringement of the rights of the prisoner as to 

render the judgment void or voidable under the Ohio Constitution or the United States 

Constitution.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the 

syllabus. A postconviction petition does not provide a petitioner a second opportunity to litigate 
his or her conviction. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); State v. 

Smith, 8th Dist. Cuyahoga No. 93534, 2010-Ohio-1869, ¶ 11. Rather, it is a means to reach 

constitutional issues that would otherwise be impossible to reach because the evidence 

supporting those issues is not contained in the record. Id. at ¶ 12. 

{¶9} Pursuant to R.C. 2953.21(C), a trial court may deny a petition for postconviction 

relief without holding an evidentiary hearing where the petition, the supporting affidavits, the 

documentary evidence, the files, and the records do not demonstrate that petitioner set forth 

sufficient operative facts to establish substantive grounds for relief. Calhoun, 86 Ohio St.3d at 

281. 

{¶10} Res judicata is a proper basis upon which to dismiss a R.C. 2953.21 petition 

without a hearing. Smith, 2010-Ohio-1869 at ¶ 23, quoting State v. Banks, 10th Dist. Franklin 

No. 08AP-722, 2009-Ohio-1667, ¶ 10. As stated in Perry: 

Under the doctrine of res judicata, a final judgment of conviction bars the 

convicted defendant from raising and litigating in any proceeding, except an 

appeal from that judgment, any defense or any claimed lack of due process that 

was raised or could have been raised by the defendant at the trial which resulted in 

that judgment of conviction or on an appeal from that judgment. 

Id. at 180. A petition for postconviction relief may be denied on the basis of res judicata if the 

trial court “finds that the petitioner could have raised the issues in the petition at trial or on direct 

appeal without resorting to evidence beyond the scope of the record.” State v. Abdussatar, 8th 

Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 16, citing State v. Scudder, 131 Ohio App.3d 470, 

475, 722 N.E.2d 1054 (10th Dist.1998). 

R.C. 2953.21 and Meaningful Review

R.C. 2953.21 and Discovery

{¶11} In the first assigned error, Obermiller argues that R.C. 2953.21 fails to provide 

meaningful review because res judicata can be applied to bar claims that were not previously 
raised, and R.C. 2953.21 presents “little opportunity for factual development.” In the third 

assigned error, Obermiller also argues that because petitioners cannot conduct discovery, there is 

little opportunity for development of facts to support postconviction claims. Obermiller notes 

that the Death Penalty Task Force appointed by the Chief Justice of the Ohio Supreme Court and 

the Ohio State Bar Association issued a final report that includes recommendations on providing 

for depositions and subpoenas during discovery in postconviction relief, and after his conviction, 

these recommendations were adopted in the Revised Code. 

{¶12} As an initial matter, we note that state collateral review itself is not a constitutional 

right; rather, it is a civil attack on a judgment. Calhoun, 86 Ohio St.3d at 281. As such, the 

petitioner has only those rights granted by the statute. Id.; Steffen, 70 Ohio St.3d at id., 639 

N.E.2d 67 (“Postconviction review is a narrow remedy, since res judicata bars any claim that was 

or could have been raised at trial or on direct appeal.”). 

{¶13} As to the rule permitting application of res judicata to bar claims that were not 

raised, this rule is applicable where the claim could have been raised on direct appeal. Perry, 

10 Ohio St.2d 175, at paragraph four of the syllabus. We further note that R.C. 2953.21 has 

been held to be constitutional. See State v. Sklenar, 71 Ohio App.3d 444, 594 N.E.2d 88 (9th 

Dist.1991). In State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), the Ohio Supreme 

Court explained: 

Res judicata is applicable in all postconviction relief proceedings. Our holding 

today underscores the importance of finality of judgments of conviction. “Public 

policy dictates that there be an end of litigation; that those who have contested an 

issue shall be bound by the result of the contest, and that matters once tried shall 

be considered forever settled as between the parties.” [Citation omitted.] We 

have stressed that ‘[the] doctrine of res judicata is not a mere matter of practice or 

procedure inherited from a more technical time than ours. It is a rule of 

fundamental and substantial justice, “of public policy and of private peace,” which 

should be cordially regarded and enforced by the courts. * * * ” [Citation 

omitted.] Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 

S.Ct. 2424, 2429, 69 L.Ed.2d 103, 110-111. 
Id. at ¶ 95. 

{¶14} 1This court has recognized that the United States Court of Appeals for the Sixth 

Circuit has disapproved of the application of res judicata for claims that could have been raised 

but were not raised on direct appeal. State v. Lewis, 8th Dist. Cuyahoga No. 73736, 1998 Ohio 

App. LEXIS 5777, 9 (Dec. 3, 1998). However, the Lewis court stated: 

[T]he Sixth Circuit Court of Appeals’ dissatisfaction with Ohio’s postconviction 

relief process and the Perry decision does not require us to hold the 

postconviction relief process invalid. Perry remains good law in this State. 

Id. Accord State v. Zich, 6th Dist. Lucas No. L-15-1263, 2017-Ohio-414, ¶ 27 (“Notably, 

appellant does not assert that the Sixth Circuit actually deemed R.C. 2953.21 to be 

unconstitutional.”); State v. Goff, 12th Dist. Clinton No. CA2000-05-014, 2001-Ohio-4215; State 

v. La Mar, 4th Dist. Lawrence No. 98 CA 23, 2000 Ohio App. LEXIS 1211 (Mar. 17, 2000);

State v. Cassano, 5th Dist. Richland No. 12CA55, 2013-Ohio-1783, ¶ 32. 

{¶15} As to the discovery issue, in 2014 when Obermiller’s petition was ruled upon, the 

postconviction statutes did not contemplate discovery in the initial stages of a postconviction 

proceeding. State v. Hutton, 8th Dist. Cuyahoga No. 76348, 2004-Ohio-3731, ¶ 22. Rather, 

the petitioner was entitled to discovery to develop his claims, and to experts to aid in that 

discovery, only if the petition and its supporting evidentiary material demonstrate substantive 

grounds for relief. State ex rel. Love v. Cuyahoga Cty. Prosecutor’s Office, 87 Ohio St.3d 158, 

159, 1999-Ohio-314, 718 N.E.2d 426; State v. Leonard, 157 Ohio App.3d 653, 660, 

2004-Ohio-3323, 813 N.E.2d 50 (1st Dist.). This rule has passed constitutional scrutiny. State 

v. Hunter, 1st Dist. Hamilton No. C-090569, 2012-Ohio-2859, ¶ 65; State v. Jones, 1st Dist. 

Hamilton No. C-990813, 2000 Ohio App. LEXIS 6197 (Dec. 29, 2000). Similarly, in Hutton, 

this court rejected the claim that postconviction proceedings fail to provide meaningful review 
because they allow for little opportunity for factual development. Id. at ¶ 25-26. Accord State 

v. Hale, 8th Dist. Cuyahoga No. 103654, 2016-Ohio-5837, ¶ 57; State v. Jackson, 8th Dist. 

Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 87. 

{¶16} In 2017, R.C. 2953.21 was amended to authorize trial courts to grant 

postconviction petitioners in capital cases discovery for good cause shown, adopting the 

deposition and subpoena recommendations of the task force. We recognize that in State v. 

Ketterer, 2017-Ohio-4117, 92 N.E.3d 21 (12th Dist.), the court remanded a matter decided 

before this amendment in order “for the trial court to determine whether newly amended R.C. 

2953.21 applies to appellant’s [postconviction] petitions, and if so, whether appellant has shown 

good cause under the new statute and is entitled to discovery.” Id. at ¶ 47. 

{¶17} Here, however, we conclude that the trial court conducted a thorough analysis of 

each claim and provided Obermiller with a meaningful review of his petition, and under the 

circumstances of this case, the trial court did not err in denying discovery. 

{¶18} The first and third assigned errors lack merit. 

ReConvening the Original Three-Judge Panel

{¶19} Obermiller next argues that the trial court erred by ruling on the petition and denied 

it without reconvening the three-judge panel that determined his guilt and sentence. 

{¶20} This claim was rejected in Ketterer, 2017-Ohio-4117, 92 N.E.3d 21 (12th Dist.). 

The court explained: 

[The] language in R.C. 2945.06 above unambiguously indicates that the duties of 

a three-judge panel are restricted to the “trial” phase of a capital case and the 

issues “arising upon the trial.” Our research indicates that in capital murder 

cases, a single judge, and not a three-judge panel, has routinely ruled upon a 

capital defendant’s PCR petition. See, e.g., State v. Rojas, 1st Dist. Hamilton 

No. C-950091, 1995 Ohio App. LEXIS 5764 (Dec. 19, 1995). The one exception 

was a case from the Second Appellate District where a PCR petition was ruled 

upon by a three-judge panel. State v. Bays, 2d Dist. Greene No. 96-CA-118, 

1998 Ohio App. LEXIS 226 (Jan. 30, 1998). Whether R.C. 2945.06 and 2953.21 
require a three-judge panel to rule upon a PCR petition was not at issue in that 

case. We further note that the Ohio Supreme Court has denied the affidavit of a 

capital defendant seeking to disqualify a trial judge who had presided over the 

three-judge panel that sentenced the defendant to death from ruling upon the 

defendant’s PCR petition. In re Disqualification of Nastoff, 134 Ohio St.3d 

1232, 2012-Ohio-6339, 983 N.E.2d 354. The Supreme Court denied the 

affidavit of disqualification and then held, “The case may proceed before Judge 

Nastoff.” Id. at ¶ 12. 

Id. at ¶ 20. 

{¶21} The Ketterer court additionally rejected the argument that the Ohio Supreme Court 

has required reconvening the original panel in State v. Stumpf, 32 Ohio St.3d 95, 512 N.E.2d 598 

(1987), State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988), and State v. Filiaggi, 86 Ohio 

St.3d 230, 1999-Ohio-99, 714 N.E.2d 867. The Ketterer court found that these cases did not 

support Ketterer’s argument because they did not involve petitions for postconviction relief. 

{¶22} The second assigned error is without merit. 

Denial of Claims that the Death Penalty Violates the 

Constitution and International Law

{¶23} Obermiller next argues that the trial court erred in overruling his second claim for 

relief, that argues that the death penalty violates international law. In his fourth claim for relief, 

that the death penalty violates the Constitution of the United States and the Ohio Constitutions. 

{¶24} We note that in the direct appeal, the Ohio Supreme Court rejected Obermiller’s 

various constitutional challenges to the death penalty and rejected the argument that the death 

penalty violates international law. See Obermiller I, 147 Ohio St.3d 175, at ¶ 111. These 

claims, and any related claims, are now barred by res judicata. Perry, 10 Ohio St.2d at 181, 226 

N.E.2d 104. 

{¶25} Moreover, the Ohio Supreme Court has repeatedly rejected numerous 

constitutional challenges to Ohio’s death penalty process. See State v. Beasley, 153 Ohio St.3d 

497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 228, citing State v. Kirkland, 140 Ohio St.3d 73, 
2014-Ohio-1966, 15 N.E.3d 818, ¶ 106-120. In Kirkland, the court rejected claims that the 

Ohio death penalty statutes result in arbitrary and unequal punishment, leads to arbitrary 

imposition of the death penalty, utilizes unreliable sentencing procedures, burdens a defendant’s 

right to a jury trial, is imposed in a racially discriminatory manner, is unconstitutionally vague, 

and does not provide for meaningful proportionality and appropriateness reviews. Accord State 

v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 183. See also State v. 

Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 103 (rejecting arbitrariness 

challenge, and claims that death penalty is unconstitutional because it is neither the least 

restrictive punishment nor an effective deterrent, pursuant to State v. Jenkins, 15 Ohio St.3d 164, 

169, 473 N.E.2d 264 (1984)); State v. Waddy, 10th Dist. Franklin No. 96APA07-863, 1997 

Ohio App. LEXIS 2542 (June 10, 1997) (rejecting claim, based upon study by Professor Hans 

Zeisel, that capital jurors do not understand their responsibilities and apply inaccurate standards);

State v. Buell, 22 Ohio St.3d 124, 138, 489 N.E.2d 795 (1986) (rejecting the claim that R.C. 

2929.03(D)(1) improperly utilizes presentence investigations requested by a defendant); 

Mammone (rejecting the claim that R.C. 2929.03(D)(1) improperly utilizes presentence 

investigations requested by a defendant). 

{¶26} Additionally, Ohio courts have repeatedly held that Ohio’s death penalty does not 

violate international law. Beasley at ¶ 228; Mammone; State v. Short, 129 Ohio St.3d 360, 

2011-Ohio-3641, 952 N.E.2d 1121, ¶ 137-138; State v. Craig, 110 Ohio St.3d 306, 

2006-Ohio-4571, 853 N.E.2d 621, ¶ 127. 

{¶27} Therefore, the fourth assigned error lacks merit. 

Discovery and Relief on Challenge to Grand Jury Foreman
{¶28} Obermiller next argues that the trial court erred in overruling his fourth claim for 

relief in which he argues that the foreman of the grand jury that initially indicted him (issuing a 

13-count indictment alleging capital murder and other offenses) was African-American, but the 

foreman of the second grand jury that indicted him (in a 19-count indictment that alleged capital 

murder and other offenses) was Caucasian, and his conviction is based upon the second 

indictment. 

{¶29} Evidence as to the manner by which the grand jury foreperson was chosen could 

have been sought prior to Obermiller’s trial. State v. Jackson, 11th Dist. Trumbull No. 

2004-T-0089, 2006-Ohio- 2651, ¶ 68. 

{¶30} In any event, in State v. Hughbanks, 1st Dist. Hamilton No. C-010372, 

2003-Ohio-187, the court explained this challenge as follows: 

If a grand-jury foreperson is selected from within the ranks of a properly 

constituted grand jury, and the foreperson’s role is essentially ministerial, 

purposeful discrimination in the selection of a grand-jury foreperson will not 

provide a basis for reversing a conviction or dismissing an indictment. See 

Hobby v. United States (1984), 468 U.S. 339, 344, 104 S.Ct. 3093, 82 L.Ed.2d 

260. If, on the other hand, the foreperson is selected from outside the system 

used to compose the balance of the grand jury, but possesses the same voting 

power as the other grand jurors and takes on, by virtue of the status of foreperson, 

duties that are merely ministerial in nature, we must treat a claim of 

discrimination in the selection of the grand-jury foreperson as one alleging 

discrimination in the composition of the grand jury itself. See Campbell v. 

Louisiana (1998), 523 U.S. 392, 396-397, 118 S.Ct. 1419, 140 L.Ed.2d 551. 

To prove purposeful discrimination in the selection of grand jurors, the accused 

must demonstrate that the procedure employed to select the grand jurors resulted 

in “substantial underrepresentation” of an “identifiable group.” To show 

substantial underrepresentation, and thus establish a prima facie case of 

purposeful discrimination, the accused must (1) “establish that the group is one 

that is a recognizable, distinct class, singled out for different treatment under the 

laws, as written or as applied,” (2) prove “the degree of underrepresentation * * *, 

by comparing the proportion of the group in the total population to the proportion 

called to serve as grand jurors, over a significant period of time,” and (3) support 

“the presumption of discrimination raised by the statistical showing" with proof 

that “the selection procedure * * * is susceptible of abuse or is not racially 

neutral.” Once the defendant has established a prima facie case of 
discriminatory purpose, the burden shifts to the state to rebut that case. Id. at 

494-495, 97 S.Ct. 1272. 

Hughbanks offered in support of his petition evidence to show that 

African-American and female residents of the county were “seriously 

underrepresented” as grand-jury forepersons. The record is unclear, however, 

concerning the precise procedure employed by the county to select the foreperson 

for the grand jury that indicted him. And Hughbanks presented no evidence that 

that procedure, whatever its particulars, resulted in substantial underrepresentation 

of either African-Americans or women on his grand jury or on grand juries over a 

significant period of time. 

Thus, the evidence offered in support of the fourth claim failed to establish a 

prima facie case of purposeful discrimination in the selection of grand jurors. 

Id. at ¶ 35-39. 

{¶31} In this matter, the record is unclear as to how the grand jury foreman was selected, 

and there has been no evidence that the procedure employed by the county to select the 

foreperson resulted in substantial underrepresentation of either African-Americans or women on 

his grand jury or on grand juries over a significant period of time. Obermiller merely asserted 

that the first foreman, who presided over the grand jury that issued capital murder charges, was 

African-American, and the second foreman, who also presided over a grand jury that issued 

capital charges, was Caucasian. Accordingly, the trial court properly rejected this claim. 

{¶32} The fifth assigned error is without merit. 

Discovery and Relief on Brady Claim

{¶33} In his sixth assigned error, Obermiller asserts that the trial court erred in denying 

his sixth claim for relief that asserted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 

1194, 10 L.Ed.2d 215 (1963), and in denying discovery on this claim. In support of this 

assigned error, Obermiller argues that the prosecuting attorney’s office “has a history [of] 

suppressing material evidence,” and other courts have determined that the office “suppressed 
material evidence in other homicide investigations.” In opposition, the state asserts that this 

claim is speculative and that it provided Obermiller with “open file” discovery. 

{¶34} Under Brady, the suppression by prosecution of evidence favorable to an accused 

upon request violates due process where evidence is material either to guilt or to punishment, 

irrespective of good faith or bad faith of prosecution. Id. at 87. 

{¶35} However, “mere speculation is not sufficient to sustain a Brady claim.” Lang v. 

Bobby, N.D.Ohio No. 5:12-CV-2923, 2015 U.S. Dist. LEXIS (Mar. 27, 2015), citing 

Cunningham v. Wenatchee, 345 F.3d 802, 812 (9th Cir.2003). Further, the trial court was not 

required to examine the prosecutor’s file based on speculation that the prosecutor might have 

withheld exculpatory evidence. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 

N.E.2d 1263, ¶ 123, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 

1032, and State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678. 

{¶36} The sixth assigned error lacks merit. 

Discovery and Relief on Ineffective Assistance Claim

{¶37} In the seventh and tenth assigned errors, Obermiller asserts that the trial court erred 

in denying his claims that he was denied effective assistance of trial counsel during the pretrial, 

trial, and mitigation phases, and also erred in denying him factual development of these claims. 

{¶38} A claim of ineffective assistance of counsel was raised in Obermiller’s direct 

appeal. Obermiller I, 147 Ohio St.3d 175, at ¶ 82-92. In rejecting this claim, the Ohio 

Supreme Court noted that defense counsel filed approximately 30 pretrial motions (including a 

motion to suppress Obermiller’s statements),“hired a defense investigator, a mitigation expert, 

and a psychologist to evaluate Obermiller’s competency, and obtained numerous documents 

regarding Obermiller’s history.” The court held: 
Given all of the circumstances, Obermiller has not demonstrated that defense 

counsel’s performance was constitutionally deficient. The record is replete with 

evidence that Obermiller’s objective was to plead guilty as charged and to offer no 

mitigation during sentencing. Obermiller instructed his counsel to refrain from 

objecting, cross-examining the state’s witnesses, offering opening statements and 

closing arguments during both phases, and offering any mitigating evidence. 

Had defense counsel ignored Obermiller’s instructions, cross-examination and 

other tools of advocacy might have interfered with Obermiller’s desire to present 

no defense. 

Id. at ¶ 91. Therefore, res judicata bars these claims. 

{¶39} In any event, a “defense attorney’s failure to reasonably investigate a 

defendant’s background and present mitigating evidence * * * at sentencing can constitute 

ineffective assistance,” but a petitioner cannot establish prejudice resulting from counsel’s failure 

to conduct a thorough investigation when the petitioner refuses to allow the presentation of any 

mitigating evidence at the sentencing hearing. Henness v. Bagley, 644 F.3d 308, 323 (6th 

Cir.2011), citing Schriro v. Landrigan, 550 U.S. 465, 476-477, 127 S.Ct. 1933, 167 L.Ed.2d 836 

(2007). Accord Coleman v. Mitchell, 244 F.3d 533, 545 (6th Cir.2001) (“An attorney’s conduct 

is not deficient simply for following his client’s instructions.”). 

{¶40} Accordingly, this claim is without merit. 

{¶41} The seventh and tenth assigned errors lack merit. 

Discovery and Relief on Challenge to Guilty Plea

{¶42} In the eighth assigned error, Obermiller asserts that the trial court erred in denying 

his claim challenging the voluntariness of his guilty plea. He maintains that he suffered from 

mental illness so he could not understand the nature of his plea. He also complains that the trial 

court erred in denying him factual development of this claim. 

{¶43} In his direct appeal, Obermiller maintained that the trial court erred in denying his 

motion to suppress and that this ruling “tainted his decision to plead guilty to the charges against 

him.” Obermiller I, 147 Ohio St.3d 175, at ¶ 54. The Ohio Supreme Court specifically noted 
that “Obermiller has not challenged his guilty plea on appeal.” Id. at ¶ 56. Accordingly, this 

claim, although not explicitly raised in the direct appeal, could have been raised, and it is 

therefore barred by res judicata. Moreover, as noted by the trial court: 

[T]he transcript directly refutes [Obermiller’s] claims. The Court advised 

[Obermiller] of his rights and conducted an in-depth colloquy with [Obermiller] 

about any medications he was taking and the seriousness of his decision. * * * 

[On the morning of the plea, the Court asked Obermiller about any drugs that 

could alter his thinking. Obermiller] informed the Court that he was on 

Neurontin and Remeron * * * “for mental health reasons.” * * *[Obermiller] 

responded that he had not received any medication on the day of his plea. 

Furthermore [Obermiller] agreed that he had been on the medication long enough 

that his body had adjusted to it. Upon being asked by the Court to further 

consult with his attorneys regarding the decision that he was making, [Obermiller] 

responded, “We have been over this already. It’s not going to change my 

decision.” 

{¶44} Finally, we note that the trial court referred Obermiller to the Court Psychiatric 

Clinic for a competency evaluation and he was determined to be competent and able to 

understand the ramifications of his plea. 

{¶45} Accordingly, the eighth assigned error lacks merit. 

Failure to Grant Relief on the Claim that Obermiller Was Not Competent to Waive 

Mitigation

{¶46} Obermiller next asserts that the trial court erred in rejecting his claim that he lacked 

competence to waive a mitigation hearing. Specifically, he argues that he had been prescribed 

Lithium prior to the offenses, but at the time he waived mitigation, he was receiving different 

medications that impacted his mental state and caused him to waive the presentation of 

mitigating evidence at trial. 

{¶47} In State v. Ashworth, 85 Ohio St.3d 56, 1999-Ohio-204, 706 N.E.2d 1231, the 

Ohio Supreme Court held that a waiver of the presentation of mitigating evidence must be 
knowing and voluntary, and that to ensure this, the trial court must conduct an inquiry of the 

defendant on the record. Id. at paragraph one of the syllabus. The record must affirmatively 

demonstrate that (1) the court has informed the defendant of the right to present mitigating 

evidence, (2) the court has explained what mitigating evidence is, (3) the defendant understands 

the importance of mitigating evidence, (4) the defendant understands the use of mitigating 

evidence to offset the aggravating circumstances, (5) the defendant understands the effect of 

failing to present mitigating evidence, and (6) the defendant wishes to waive mitigation. Id. at 

62. 

{¶48} In the direct appeal of this case, the Ohio Supreme Court noted that the trial court 

conducted an Ashworth hearing prior to accepting Obermiller’s waiver of mitigation and 

“reasonably concluded that his decision to waive mitigation was knowing, intelligent, and 

voluntary.” Obermiller I, 147 Ohio St.3d 175, at fn. 3, ¶ 141. The court further noted that 

Obermiller was not challenging the Ashworth hearing on appeal. Id. at fn. 3. Accordingly, 

this claim is barred by res judicata. 

{¶49} In any event, the record indicates that the trial court fully complied with Ashworth. 

 Further, as explained by the trial court: 

[Obermiller] insisted repeatedly that his counsel not put forth any evidence in the 

mitigation phase. Furthermore, as previously stated, [Obermiller] was found 

competent to waive mitigation by the Court Psychiatric Clinic. 

{¶50} Moreover, our review of the record demonstrates that the state’s expert, Dr. Phillip 

Resnick, provided the court with a detailed report outlining Obermiller’s history of substance 

abuse and psychiatric history. Dr. Resnick also “systematically screened Mr. Obermiller for 

current symptoms of depression, mania * * *, psychosis * * *, posttraumatic stress disorder * * *, 

and anxiety disorders[.]” Additionally, Dr. Resnick determined that Obermiller had “insight 

into his current situation and [h]is judgment was fair based upon his response to hypothetical 
situations.” Obermiller did not have delusions or hallucinations. Dr. Resnick also remarked 

that Obermiller “never changed or regretted his decision to plead guilty,” his decision to waive 

mitigation was “firm,” and he has “never changed in his desire to receive a death sentence.” Dr. 

Resnick was fully qualified to evaluate whether Obermiller’s prescription medications would 

have affected his competency. Accord State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 

N.E.2d 1064, ¶ 30-34. Therefore, this assigned error lacks merit. 

Failure to Grant Relief on Claim of Cumulative Error

{¶51} In the eleventh assigned error, Obermiller argues that the trial court erred in 

refusing to grant him relief on his claim of cumulative error. 

{¶52} Under the doctrine of cumulative error, a conviction will be reversed when the 

cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial 

even though each of the errors does not individually constitute cause for reversal. State v. 

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 132; State v. Garner, 74 Ohio 

St.3d 49, 64, 1995-Ohio-168, 656 N.E.2d 623. However, the doctrine of cumulative error is 

inapplicable when the alleged errors are found to be harmless or nonexistent. Id.; State v. 

Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 48. 

{¶53} Inasmuch as we have determined that none of the individual claims of error are 

well taken, the claim of cumulative error must likewise fail. 

{¶54} The eleventh assigned error lacks merit. 

{¶55} Judgment is affirmed. 

It is ordered that appellee recover of and appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas 

court to carry this judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

 

PATRICIA ANN BLACKMON, PRESIDING JUDGE 

ANITA LASTER MAYS, J., and 

LARRY A. JONES, SR., J., CONCUR 

APPENDIX

Assignments of Error 

I. The presiding judge abused her discretion when she denied Obermiller relief 

on the first ground for relief. 

II. The presiding judge erred when she denied Obermiller’s motion to reconvene 

the three judge panel. 

III. The presiding judge abused her discretion when she denied Obermiller’s 

postconviction petition without affording him an opportunity to conduct 

discovery. 

IV. The presiding judge abused her discretion when she overruled the second 

and fifth grounds for relief. 

V. The presiding judge abused her discretion when she denied Obermiller 

factual development and relief on the fourth ground for relief. 

VI. The presiding judge abused her discretion when she denied Obermiller 

factual development and relief on the sixth ground for relief. 
VII. The presiding judge abused her discretion when she denied Obermiller 

factual development and relief on the eighth ground for relief. 

VIII. The presiding judge abused her discretion when she denied Obermiller 

factual development and relief on the ninth ground for relief. 

IX. The presiding judge abused her discretion when she denied Obermiller 

factual development and relief on the tenth and eleventh grounds for relief. 

X. The presiding judge erred when she denied Obermiller Factual development 

and relief on the twelfth, thirteenth, fourteenth and fifteenth grounds for relief. 

XI. The presiding judge abused her discretion when she denied Obermiller 

factual development and relief on the sixteenth ground for relief.