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State v. Short

Court of Appeals of Ohio, Second District, Montgomery

June 22, 2018

STATE OF OHIO Plaintiff-Appellee
DUANE ALLEN SHORT Defendant-Appellant

          (Criminal Appeal from Common Pleas Court) Trial Court Case No. 2004-CR-2635

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Plaintiff-Appellee

          KIMBERLY S. RIGBY, Attorneys for Defendant-Appellant


          TUCKER, J.

         {¶ 1} Defendant-appellant Duane Short appeals from a judgment of the Montgomery County Court of Common Pleas denying his petition for post-conviction relief. Short claims that the trial court erred by failing to conduct a hearing on, and by ultimately dismissing, his petition He further contends that the trial court erred in its application of the doctrine of res judicata as a bar to his claim for relief. Finally, Short contends that the trial court erred by overruling his post-conviction motions to conduct discovery and to provide funds to enable him to employ experts and to obtain expert testing.

         {¶ 2} We conclude that Short's petition, along with its supporting materials, does not set forth substantive grounds for relief, thus the trial court did not abuse its discretion in denying his petition without a hearing. We further find no prejudicial error in the trial court's application of res judicata as a bar to some of Short's claims. Finally, we conclude that the trial court did not abuse its discretion with regard to the denial of discovery, the appointment of experts, or the denial of his request for testing.

         {¶ 3} Accordingly, the judgment of the trial court is affirmed.

         I. Facts and Proceedings

         {¶ 4} Short was convicted of the shooting deaths of his estranged wife, Rhonda Short and of Donnie Sweeney. For a recitation of the facts in this case relevant to Short's direct appeal of his conviction, see State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121.

         {¶ 5} We also note the following facts relevant to Short's petition for post-conviction relief. Rhonda and Short resided in Butler County, Ohio along with their three children. On Thursday, July 15, 2004, Rhonda, leaving a note for Short behind, moved out of the marital home taking the two younger children with her. The oldest child, J., who was 14 at the time, elected to remain with his father. Rhonda and the two younger children then went to the home of her friend, Brenda Barion. [1] Rhonda and the children stayed in different hotels on the nights of July 15, 16, 17, 18 and 19. The rooms were paid for by Barion. Barion and Rhonda also hid Rhonda's car. On July 17, Barion located a home for Rhonda on Pepper Drive in Huber Heights that was available for rent. On July 19, Rhonda called Dayton Power & Light ("DP&L") seeking to obtain electric service for the home. She used her maiden name for the account. She and the two younger children moved into the home on July 20. Barion went to Rent-A-Center in an effort to procure furniture for the home. However, she decided against doing so in order to avoid giving out information regarding Rhonda.

         {¶ 6} According to J., when Short returned home from work on July 15, he read the note and seemed upset and angry. Short then took J. with him to drive around looking for Rhonda.

         {¶ 7} The following day, Short took J. to the home of Rhonda's friend, Leah Potter. Short informed Potter that Rhonda had left him. After the visit, Potter sent an email to the Monroe Police Department indicating that she thought Short was mentally unstable and suicidal. That evening, Monroe Police Officer Mike Rosenbalm received a dispatch to go to the Short residence. Upon his arrival there, he came into contact with Short. Rosenbalm observed that Short was "very emotional, crying." That night, Short was admitted to Middletown Regional Hospital with suicidal and homicidal thoughts. He was released the following day.

         {¶ 8} On July 18, Short went to Barion's home. Short asked her where Rhonda was, but Barion did not tell him. On July 19 or 20, one of Short's co-workers at a grocery store in Trenton, Ohio, noted that Short was tearful and run down. The co-worker stated that during the work day, Short repeatedly stated that he "just wanted to die."

         {¶ 9} On Wednesday, July 21, Short took J. to a church attended by Loren Taylor. Taylor and Short's father are cousins. Short approached Taylor in the church and asked to speak with him. Taylor did not recognize Short until Short reminded him of his name. Short informed Taylor that Rhonda had left him. Short also waved his fist in the air and stated that he "thought about going over there and killing him." Short did not identify the person to whom he was referring. Taylor told him not to speak that way in a church, and Short responded "I know, I understand. * * * God has been dealing with me. I don't want to think that way." Short then began to leave the church, but Taylor asked him to stay for the service.

         {¶ 10} According to J., he and his dad went to four different church services during the week they were looking for Rhonda. He also indicated that Short received several disturbing telephone calls during the week prior to the shootings. He described the calls as "music" or "someone played songs." J. indicated that the calls upset his father.

         {¶ 11} On July 22, at 3:39 p.m., Short telephoned DP&L and informed the customer service representative that he was calling because he and his wife had filed a bankruptcy action and he wanted to make sure their accounts noted the bankruptcy. He also claimed that he wanted to determine whether they had any outstanding accounts. The representative confirmed that Short's marital residence account contained the bankruptcy information. Short then provided the representative with Rhonda's social security number and asked her to check on the status of any other accounts. The representative informed Short of the account Rhonda had just opened and provided him with the address.

         {¶ 12} After obtaining the address, Short and J. drove 42 miles to Huber Heights where Short located a real estate office. He and J. entered the office, and Short told one of the realtors that he was from Miamisburg, did not know his way around Huber Heights, and was looking for the home of a friend who had just moved to the Pepper Drive area of Huber Heights. Short asked the realtor for a map of the area. The realtor informed him that they did not have any maps. However, the realtor then used his computer to generate a map of the Pepper Drive area which he gave to Short. Short and J. then returned home.

         {¶ 13} At 6:00 p.m., Brandon Fletcher, a friend of both Rhonda and Short, was visiting another friend who resided on the same street as Short. Short made J. go over to the home and ask Fletcher to come to their house. Once Fletcher arrived, Short told him that Rhonda was in Florida. He then asked whether Fletcher still had a shotgun to sell that he and Fletcher had previously discussed.

         {¶ 14} Fletcher, who attended the same church as the Shorts, was already aware that Rhonda had moved out of the home. Approximately two weeks prior, he had observed Rhonda and Sweeney hugging in the church basement. Fletcher had, at that time, informed Short of what he had seen and told Short that he thought the interaction did not look right and that he did not like what he saw. Fletcher further informed Short that he had observed Rhonda leave church first and that Sweeney would follow her a few minutes later. Fletcher thought that Short acted "upset by finding out that his wife was possibly involved with another guy." Based upon this knowledge, Fletcher decided not to sell the gun to Short.

         {¶ 15} At 6:30 p.m. that same day, Barion gave Sweeney a charcoal grill, cookware, silverware, glasses, paper plates and potting soil to take over to Rhonda's home. Around the same time, Short telephoned his boss and asked to borrow the company truck, citing the need to move some furniture. Upon receiving permission to use the truck, Short and J. drove to Trenton to get the white Ford pickup. Short left his vehicle at the store, and he and J. returned home. At 7:30 p.m., Short called Dick's Sporting Goods. Afterward, Short gathered a black raincoat, two hats, a green towel, gloves and shotgun ammunition.

         {¶ 16} Short and J. then drove approximately 20 miles to the Dick's Sporting Goods located in Miamisburg near the Dayton Mall, where Short purchased a 20-gauge shotgun at 8:46 p.m. They then drove two miles to Meijer where Short purchased beef jerky and a hacksaw. After leaving Meijer, Short drove approximately 17 miles to Huber Heights. He used the map from the realtor's office to find Pepper Drive. He made J. put on one of the hats, while he put on the other. Short told J. that Rhonda was living at 5035 Pepper Drive and that he did not want Rhonda to recognize them if she observed them in the truck. Short drove past the home slowly. He and J. observed Rhonda in the home and Sweeney's car parked at the home.

         {¶ 17} Short drove approximately three miles to a hotel where he paid for a room. He then took the shotgun and hacksaw into the room. Short placed the "do not disturb" sign on the door handle, closed the blinds, turned on the television and turned the volume to high. Short then began to saw off the shotgun barrel. At one point, he required J. to sit on the gun while he was sawing. J. asked Short whether he could talk to Sweeney or "just fight" him rather than shoot him. Short then stated that he wondered if he should remarry. He then said, "[n]o, I have to do this."

         {¶ 18} Short and J. returned to the vehicle and drove to Rhonda's home. They parked on a cul-de-sac street directly across from, and facing, Rhonda's home. Short then put on the black raincoat, exited the truck and walked to Rhonda's home. He went to the backyard of the home and then returned to the truck. At that point, Short put the shotgun shells in his pocket and placed the shotgun under the raincoat. He told J. to keep his head down so that he would not be harmed. Short then went to the home where he shot Sweeney, who was grilling in the backyard. He then entered the home, brushed past his two younger children, kicked open the bathroom door and shot Rhonda.

         {¶ 19} The two children ran to a neighbor's home. The neighbor called 9-1-1, and police were dispatched at 10:27 p.m. Short returned to the truck, placed the shotgun inside and told J. that he thought he had killed Rhonda and Sweeney. He then drove to a nearby UDF convenience store where he asked the clerk to call the police. Short then returned to Rhonda's home where he parked in the yard.

         {¶ 20} When Huber Heights Detective Charles Taylor and Officer Robbie Graham arrived at Rhonda's home, they observed the white pickup truck in the grass and Short leaning inside the open driver's door. Graham yelled at Short, who looked at him and then began to walk toward the back of the house. Graham and Taylor followed Short and repeatedly told him to stop. Short was arrested and transported to jail.

         {¶ 21} On September 20, 2004, Short was indicted on one count of breaking and entering, three counts of aggravated murder, one count of aggravated burglary and one count of unlawful possession of a dangerous ordnance. Each of the counts of aggravated murder carried capital specifications of multiple murder and felony murder. All of the indicted counts carried firearm specifications.

         {¶ 22} On September 21, 2004, attorneys Bobby Joe Cox and Michael Pentecost were appointed to represent Short. Counsel filed a demand for discovery, a motion for a bill of particulars, a motion to suppress, a motion seeking authority to hire a mental health practitioner, and a suggestion of incompetency and request for a competency evaluation.

         {¶ 23} Thereafter, Short was evaluated by Scott Kidd, Psy.D. A competency hearing was conducted on January 13, 2005, following which the trial court found Short competent to stand trial. During that hearing, the following colloquy took place:

THE COURT: * * * [W]e will proceed with setting his motion to suppress for hearing.
MR. COX: Your Honor, that's what we appear here today [sic] and Mr. Pentecost and I would like as his attorneys so we can aggressively and zealously represent his rights. However, our client is refusing to follow our advice. He wishes to address the Court and he is doing this against our will. My will as his attorney as well Mr. Pentecost, if the Court will permit him, he's got something he wants to read to the Court. Is that a correct statement, Mr. Short?
MR. SHORT: Yes, sir.
MR. COX: And, is that against the advice of both Mr. Pentecost and myself?
MR. SHORT: Yes, sir.
THE COURT: Mr. Short, before you say anything you understand that you have these two attorneys who are representing you and are looking after your best interest, do you understand that?
MR. SHORT: Yes, ma'am.
THE COURT: You further understand, sir, that if you say something here that could be used against you?
MR. SHORT: Yes, ma'am.
THE COURT: All right * * * go ahead, sir.
MR. SHORT: I have a letter here that I've proposed for you this morning. Your Honor, I wish to inform you today that I would like to withdraw the motion to suppress and enter a plea of guilty without any mitigation. Furthermore, having been informed by Mr. Cox and Mr. Pentecost of such a decision, being fully satisfied with both my counsel and having the utmost respect for them both, I have been - no way been influenced by either Mr. Cox or Mr. Pentecost to make this decision. It is solely my decision to do so, and I fully understand what I am doing as I am fully competent of making this decision. Also, I am requesting that no more motions be submitted by my attorneys in excessiveness that are not required by law that will prolong this case any longer as I wish to proceed towards waiving a jury trial and a plea date. Further, if my attorneys wish to continue to submit motions in except - in excessiveness against my will, I wish to dismiss them both on my behalf and represent myself, allowing my attorneys to stand silent by my side for any questions that I may have as I proceed. That is all I have, Your Honor, thank you.
THE COURT: And, I'll ask you a couple questions, Mr. Short, okay? You understand, sir, that these two gentlemen are here to represent your interests, do you understand that?
MR. SHORT: Yes, ma'am, I fully understand that.
THE COURT: You understand further that, sir, that if - that this is a death penalty case, sir, you understand that?
MR. SHORT: Yes, ma'am, I understand.
THE COURT: Okay. You talked to your family about this?
MR. SHORT: Yes, ma'am, I have.
THE COURT: You understand that the motions your attorneys have filed are not excessive. They are in an effort to protect your interests?
MR. SHORT: Yes, ma'am. What I meant by that is I don't want to be sitting here on a periodic six-week basis while they continue to file motions for my competency to make a plea or, you know, for my mental stability, because I am fully competent and I'm aware of what I'm doing completely.
MR. COX: He has been locked up approximately six months whence the incident occurred. Numerous, numerous hours I have spent with this gentleman as well as Mr. Pentecost. I've did [sic] everything. I've begged him, okay, to listen to us and let us do our job as lawyers. Mr. Pentecost and I talked to him yesterday for about two hours in the jail and we told him what we were going to do today, and that he will not listen to us. However, I would ask the Court and Mr. Pentecost is in total agreement with this that we do not feel that he's capable of making this decision, okay. This is against his will, but I'm doing this as an officer of the Court, and I would ask the Court to review the Ashworth decision by the Ohio Supreme Court and I would ask for a mental examination of my client. I further told him that, because he told me what he was gonna do today, and then I told him to think about it yet again and hold off and not do that this morning. But, when I got here he said he wasn't gonna listen to us anymore at all, and he's gonna do his thing and read that letter. So, I don't believe he's capable of making that decision and I would ask the Court not to permit him to withdraw his motion to suppress at this time, and to proceed to have him examined as mandated by the Ohio Supreme Court in this type of occasion. THE COURT: First of all, I am not going to permit the Defendant to withdraw his motion at this time. I would like to have a conference in chambers with counsel this afternoon at 2:30, if that's possible.

Tr. p. 11-14.

         {¶ 24} The next day, Short and counsel returned to the courtroom where the following colloquy occurred:

MR. SHORT: I haven't changed my mind, Your Honor, as to what I stated yesterday. I've been told and been prodded - it'd be in …
THE COURT: I'm sorry, I didn't hear?
MR. SHORT: I've been counseled this morning and pressured a lot to try to make a decision not to make this decision, but I can't honestly say that I've changed my mind from what I said yesterday, to be honest with you.
THE COURT: Do you want some more time to think about it? This obviously, sir, this is a very weighty decision, but it's also your decision. But you have the counsel of two very fine attorneys who are here to help you and to assist in your defense, and yesterday I tried to make the impression on you that it was very important for you to listen to their counsel and to make your decision based on that. After you've had an opportunity to talk with them this morning, do you intend to proceed as you discussed yesterday, which is to enter a plea which we will not be doing today as you know that, and then to proceed to not offer any mitigation evidence?
MR. SHORT: And, that would mean I would get to proceed and get my evaluation to see if I'm able to do that?
THE COURT: Correct. If - if that's - again, sir, that's your choice, but I ask you to exercise, you know, a great deal of caution in that. Your attorneys as I said before are here to help you and to counsel you, and they have counseled you differently, is that correct? That you should proceed with the motion to suppress?
MR. SHORT: Yes, ma'am.
THE COURT: All right. Based upon your discussions with them, sir, what do you want me to do today?
MR. SHORT: Like I said, Your Honor, I haven't changed my mind from what I said I wanted to do yesterday. I think that if it's hard to proceed with an evaluation because I changed my mind at the time of that evaluation. I have not changed my mind at this moment with what I said yesterday.
THE COURT: All right. Well, I want you to understand, sir, you have the right to change your mind, and if at any time during this process you decide that you want to proceed with the motion to proceed [sic], that if you want to withdraw your request to enter a plea and not offer any mitigation, you have that right at any time, do you understand that?
MR. SHORT: Yes, ma'am. I just don't want to be toying with the courts, if you will…
THE COURT: You're not.
MR. SHORT: …because the decision that I made yesterday I made - decided to make that decision, and I don't feel like just turning around and withdrawing that decision because I don't - that's not what I want to do right now.
THE COURT: I want you to understand a couple of things. You're not toying with anybody. This is very - a very weighty decision, and it is in - it is more important that you make a knowing, intelligent and voluntary decision. You are not inconveniencing me or anyone else. And, so if you change your mind, I don't want you to be afraid to tell anybody, because it's not an inconvenience. It - it - it should not - you should not consider it as like I said whether it's an inconvenience to anyone or is causing anybody any distress. These are your choices, but I want them to be voluntary on your part, all right?
MR. SHORT: Yes, ma'am.
THE COURT: All right. Your attorneys have explained to you, sir, that based upon your statements yesterday there are certain procedures that we have to follow, do you understand that?
MR. SHORT: Yes, ma'am.
THE COURT: One of those procedures, is, is that I am required to have you examined by a second professional to determine certain factors, do you understand that?
MR. SHORT: Yes, ma'am.
THE COURT: And, by doing that, sir, that's gonna take some time.
MR. SHORT: I understand that.
MR. COX: I explained that to him, Your Honor. I asked him earlier this morning because if he wants to go the way he wants to go, which is different than his lawyers that it takes time. The Supreme Court mandates a certain evaluation in - and so we have to follow that. It's something the Court has to do, but I asked him would he sign a [speedy trial] waiver and not be in such a rush to get this thing to a point that he wants it to so that we can all do our jobs. As lawyers we can do our job. The Court can do their job, and he just is not listening to me, Your Honor. Is that a fair statement?
THE COURT: All right, sir.
MR. COX: And, I explained that, Your Honor, and - and I explained to him that I'm the one that asks for the evaluation along with co-counsel here, Mr. Pentecost, and the reason we did that is because we feel the law needs to be followed as officers of the court, and based on the Ashworth decision, which we both have dealt with in other cases, this is a necessary procedure to protect my client's interest.
THE COURT: Do you understand further, sir, as Mr. Pentecost and Mr. Cox have told you the Supreme Court mandates certain procedures in a case such as yours where you are requesting to enter a plea and not to offer any mitigation. And, that I am required to comply with those procedures, do you understand that?
THE COURT: And, your attorneys went over the Ashworth case with you and advised you and discussed with you the requirements that are necessary in order to meet your request to enter a plea and not offer any mitigation?
THE COURT: All right. Do you have any questions about any of that, sir?
MR. SHORT: No, ma'am, I do not.

Tr. p. 18 - 23.

         {¶ 25} The trial court then appointed Dr. Kim Stookey from the Forensic Psychiatry Center to perform an evaluation. Following the evaluation and report by Dr. Stookey, the issue of Short's competency to enter a plea and waive mitigation was set for hearing on March 16, 2005. On that date, the hearing was postponed as the parties indicated to the court that a plea agreement was being negotiated. On March 23, 2005, the parties appeared in court and informed the court that Short had decided to proceed with the motion to suppress and trial. The suppression motion was set for hearing on June 6, 2005.

         {¶ 26} However, prior to the hearing on the motion to suppress, the parties did enter into a plea agreement. On May 19, 2005, the parties appeared in court at which time the trial court reviewed the charges and potential penalties, the terms of the written plea agreement, as well as Short's constitutional rights. The plea agreement provided that Short would enter a plea of guilty to each charge and specification in the indictment. In exchange for the plea, the State agreed that Short would be sentenced by a three-judge panel to an aggregate prison term of two consecutive life terms without the possibility of parole, plus seven years. The parties agreed to stipulate that the aggravating factors did not outweigh the mitigating factors. The plea before a three-judge panel was scheduled to occur on June 6 and 7, 2005.

         {¶ 27} On June 3, 2005, the parties appeared before the court at which time Short indicated that his father had retained attorney Patrick Mulligan to represent Short. Short further indicated that it was his desire to proceed with Mulligan as his attorney and that Cox and Pentecost withdraw as counsel. On that same date, Short entered a plea of not guilty by reason of insanity. The trial court ordered another evaluation at the Forensic Psychiatry Center. Subsequently, George Katchmer entered his appearance as co-counsel for Short. Defense counsel proceeded to file more than sixty motions.

         {¶ 28} During a pre-trial hearing conducted on March 31, 2006, the following exchange took place:

THE COURT: The Defendant was to turn over to the State by last Friday reports with regard to mitigation, and it's my understanding that that was not done * * * we have a trial date that's two weeks from Monday, and so I'm gonna go ahead and have Mr. Katchmer indicate what you wanted to talk about on the record, and then let the State follow up with any additional concerns.
MR. KATCHMER: Your Honor, as far as any reports, etcetera, we do not have them. We do not anticipate having any psychological reports, medical reports. I think that's the concern of the Prosecutor that he doesn't have to have a stack of medical or psychological reports he's gonna have to go through at the last minute. I can represent that that is not going to happen. And, in fact, I think the Court has an issue with Mr. Short concerning a mitigation expert. We have no intention of hiring a mitigation expert. We have discussed this with Mr. Short and explained what we intend to do for mitigation, and I believe if the Court wants to address him, he will affirm my conversation and his understanding of it without going into strategic detail. * * * I will represent to the Court that I am going to be going to Mr. Short's parents' home on Tuesday of next week. Mr. Daidone asked me whether I was going to turn up any family pictures or anything like that. And, to be honest with you, I am going down there and I am gonna look, and if I do, I'm certainly not gonna come back with a volume of psychological reports. But, if I do see anything like that that I would intend to use in mitigation, I will give it to Mr. Daidone promptly.
THE COURT: Mr. Short, I inquired of your counsel last week if they intended to hire a mitigation specialist, which is a person who would assist in the preparation of your mitigation evidence. It's my understanding in discussing in a pretrial with all the counsel that Mr. Katchmer and Mr. Mulligan have talked with you about a mitigation specialist, and I'm just gonna ask you to answer yes or no, or however you want to answer it. Don't talk about their strategy, okay? But they've discussed that with you, is that correct:
MR. SHORT: Yes, ma'am.
THE COURT: All right. And you're aware of what a mitigation specialist is?
MR. SHORT: Yes, ma'am.
THE COURT: And, they also talked with you about the possibility of hiring or seeking out experts to present evidence or testimony at mitigation, is that correct?
MR. SHORT: Yes, ma'am.
THE COURT: All right. And, based upon their discussions with you, are you satisfied with their advice in terms of not hiring a mitigation specialist?
MR. SHORT: Yes, ma'am.

Tr. p. 271-273.

         {¶ 29} A jury trial began on April 17, 2006, following which the jury found Short guilty of all charges in the indictment. The mitigation and sentencing phase of trial began on May 8, 2006. At that time, the following exchange took place:

THE COURT: Before we bring the jury in, there are a few issues that we need to consider on the record. The first one is, it's my understanding, Mr. Katchmer, that the Defendant does not intend to present any additional mitigating evidence other than that which was presented in the trial phase, is that correct?
MR. KATCHMER: That's correct, Your Honor.
THE COURT: All right. And, it's my understanding further that you discussed with Mr. * * * Short his right to present mitigation evidence and what ...

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