IN THE SUPREME COURT OF OHIO Supreme Court Case Number o9-o739 STATE OF OHIO Appellee V. On Appeal from the Summit County Court of Common Pleas Case No. 08-03-0710 CAPITAL CASE HERSIE R. WESSON Appellant MEMORANDUM IN OPPOSITION TO APPELI.ANT'S APPLICATION FOR REOPENINC- SHERRI BEVAN WALSH Prosecuting Attorney RICHARD S. KASAY (Counsel of'.record) Assistant Prosecuting Attorney Appellate Division Summit County Safety Building 53 University Avenue, 6th Floor Akron, Ohio 443o8 (33o) 643-2800 Reg. No. 0013952 Counsel for Appellee, State Of Ohio ANGELA WILSON MILLER (Counsel of Record) 322 Leeward Drive Jupiter, Florida 33477 (561) 529-0545 Reg. No. oo64902 Counsel for Appellant, 14 O ' viji f^t.3^e uurkr E m E^<x^j^i^j ^f- is' f`s f APR 14 2014 CLERK OF COURT
MEMORANDUM IN OPPOSITION TO APPELLANT'S APPLICATION FOR REOPENING Appellant Wesson filed an Application for Reopening under S.Ct. Prac. Rule 1i.o6 on March 21, 2014. The issue is whether Wesson had ineffective assistance of appellate counsel in the appeal to this Court. Wesson has the burden of showing a genuine issue that he was deprived of the effective assistance of appellate counsel. Id. (E). This Court explained the test for ineffective assistance in the context of an application for reopening in a court of appeals under App.R. 26(B) in State v. Tenace, lo9 Ohio St.3d 461, 20o6-Ohzo-2987. There is no difference for an application filed in this Court. The test follows. The two-pronged analysis found in Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess whether Tenace has raised a"genui.ne issue" as to the ineffectiveness of appellate counsel in his request to reopen his appeal in the court of appeals under App.R. 26(B)(5). See State v. Spivey (1998), 84 Ohio St.3d 24, 25, 701 N.E.2d 696. To show ineffective assistance, Tenace must prove that his counsel were deficient for failing to raise the issues that he now presents and that there was a reasonable probability of success had they presented those claims on appeal. State v. Bradley (7.989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus. {11 6} Moreover, to justify reopening his appeal, Tenace "bears the burden of establishing that there was a`genuine issue' as to whether he has a`colorable claim' of ineffective assistance of counsel on appeal." Spivey, 84 Ohio St.3d at 25, 701 N.E.2d 696. {T 7} Strickland charges us to "appl[y] a heavy measure of deference to counsel's judgments," 466 U.S. at 691, 104 S.Ct. 2052, 8o L.Ed.2d 674, and to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. :zos2, 8o L.Ed.2d 674. Moreover, we must bear in mind that appellate counsel need not raise every possible issue in order to render constitutionally effective assistance. See Jones v. Barnes (1983), 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 2
987; State v. Sanders (2002), 94 Ohio St.3d 150, 151-152, 761 N.E.2d 18. FACTS This Court affirmed Wesson's convictions other than on one capital count and specification and the sentence of death in State v. Wesson, 137 Ohio St.3d 309, 2013- Ohio-4575. A motion for reconsideration and to stay the mandate was denied by Entry dated December 2013. Wesson filed a petition for writ of certiorari on March 31, 2014. Wesson filed a timely petition for post-conviction relief. The petition was denied and the denial affirmed on appeal. State v. Wesson, gth Dist. No. 25874, 2012-Ohio- 4495 Wesson filed an appeal, case number 2012-1go1, and that appeal remains pending. ARGUMENT In the first Proposition of Law Wesson says that trial counsel rendered ineffective assistance. Wesson supports the Proposition in five sub-parts. First, Wesson says that trial counsel failed to present a defense of voluntary intoxication. and that such defense should have been presented instead of self-defense. The facts shown in the record are that Wesson never claimed to be intoxicated when he murdered Emil Varhola and stabbed Mary Varhola. Wesson, 2013-Ohio-4576, 12, 129. Wesson did claim that he drank a fifth of wine and considerable beer throughout the day on February 25, 2008, the day of the crimes. Id. T37. Wesson did not say how much alcohol he consumed prior to, as opposed to after the crimes although he claimed to have stopped drinking by ii:oo pm. Id. 37. Wesson was last seen (other than by the v'arholas) at 8:oo pm. He was later seen at 10:oo pm. Id. Ti1g. Wesson's expert could not accurately determine Wesson's blood alcohol level on 3
February 25#h. Id. T136. Accordingly, the record does not support the notion that Wesson was intoxicated when he committed the offenses. That being so, trial counsel did not render deficient performance by not putting forth an intoxication defense at either phase of the trial. Second, Wesson says that trial counsel should have obtained an expert on Alzheimer's disease, apparently to show that Emil Varhola might have given Wesson reason to believe that Emil threatened Wesson with deadly force. Wesson's account was that he was accustomed to having sex with seventy-seven year old Mary Varhola and that on February 25t"^, Emil became agitated and threatening while watching Wesson having unprotected sex with Mary. Wesson, 2013-Ohio-4575, 12. There is no evidence that having Alzheimer's disease does, or might make a sufferer violent. In addition, according to Wesson's tale, the three-judge panel would have to credit Wesson's account of having sex with Mary before reaching any issue concerning Emil's reactions. Wesson gives no reason why that credibility determination would have been made more likely by the addition of an expert on Alzheimer's. This Court found the entire account unbelievable. Wesson, 2013-Ohio-4575,1i126 Third, Wesson says that the mitigation expert presented inaccurate and incomplete testimony. Wesson speculates that another expert could have confirmed brain damage. This speculation is not effective to show prejudice under Strickland. State v. Elntore,111 Ohio St.3d 515, 2oo6-Ohio-62o7, 121. Next, Wesson faults the expert for not exploring whether Wesson is mentally retarded. Wesson's IQ at the time of trial was 76. With a standard deviation of 5, the score could have been 71 or 81, both over the rebuttable threshold. State v. Lott 97 Ohio 4
St.3d 303, 2002-Ohio-66255. The other component of mental retardation testing is adaptive functioning. Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before the age of 18. AAMR Mental Retardation zoth Ed., 2002 at 23. Wesson is left with more speculation that an adaptive functioning test would have bolstered a mental retardation defense. Next, Wesson faults counsel for letting Wesson make a rambling and argumentative presentation at mitigation. There is no evidence but only speculation that anything Wesson said caused the jury to recommend death or the three-judge panel to accept the jury's recommendation or that counsel would have been able to make Wesson more tractable. Last, Wesson says that counsel should have made use of Wesson's alleged ability to adapt to prison life as a mitigating factor. Wesson made this claim in the petition for post-conviction relief and it was debunked by the court of appeals. That court noted that in Skipper v. South Carol-ina, 476 U.S. Y. (1986) the prosecution made predictions that the defendant would be dangerous in prison but that the State in Wesson's case made no such claim. Wesson, 2012-C)hin-4495p T43-T45 The court of appeals noted that Wesson was not the model prisoner he imagines himself to be. He was engaged in violent episodes including stabbing an inmate with scissors and various fights. Id. 50. Further, Wesson's prison records include a child endangering conviction where he apparently dropped a baby to the ground, and nine pages of prior convictions. 5
There was a record that Wesson's adjustment to prison was poor. Id. J{55. The court of appeals noted that there was no evidence that trial counsel did not consider his prison records. Id. 57. Trial counsel in effect made a strategic decision not to focus on the prison records yet managed to present positive mitigation evidence through the records. Id.T58. In the second Proposition, Wesson says he is mentally ill and his execution is unconstitutional. Wesson is not a juvenile and there is no evidence that he is mentally retarded. In fact, as noted above his IQ score indicates that he is not mentally retarded. In his third Proposition Wesson says that trial counsel did not ensure that all sidebar conferences were recorded and that the trial court did not record all sidebars. This is more speculation, that the sidebars concerned issues vital to appellate review". Prejudice is not presumed from the mere fact that sidebars were not recorded. State u. Drummond, 1rz Ohio St.3d 14, 2oo6-ahio-5o84, T135-TI36 6
CONCLUSION The State contends that Wesson fails to show a genuine issue that appellate counsel was ineffective. Accordingly, the State requests that this Court deny the application. Respectfiilly submitted, SHERRI BEVAN'WALSH Prosecuting Attorney ^ tv RICHARI) S. KAS A.ssistant Prosecutin A orney Appellate Division Summit County Safety Building 53 University Avenue, 6tll Floor Akron, Ohio 44308 (33o) 643-2800 Reg. No. 0013952 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing has been sent via regular U.S. mail to Attorney Angela Wilson Miller, 322 Leeward Drive, Jupiter, Florida 33477, Attorney for Appellant, on the zoth day of April, 2014. k --- - R][CHAKI) S. KA^S Y Assistant Prosecuting Atto ey Appellate Division 7