Court of Appeals of Ohio, Second District, Montgomery
(Criminal Appeal from Common Pleas Court) Trial Court Case
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for
KIMBERLY S. RIGBY, Attorneys for Defendant-Appellant
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
3} Accordingly, the judgment of the trial court is
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.  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
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
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
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
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
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,
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
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
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
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
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
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
MR. SHORT: Yes.
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
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?
MR. SHORT: Yes.
THE COURT: All right. Do you have any questions about any of
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,
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
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
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
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 ...