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Nrf .^^^ ^^t i-5-npr^inc C^;vurt vf 0)4iuSTATE OF OHIO

Appellee

V.

WARREN A. SPIVEY

Appellant

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Case RI°-

On Appeal from the IVtahoningCounty Court of Appeals,Seventh Appellate DistrictCase No. 2012 MA 75

APPELLANT WARREN A. SPIwY'SMEMORANDUM N SUPPORT OF CLAIMED JURISDICTIONT

1VIr. Ralph M. Rivera, Esq.Mahoning County Prosecutor's Office21 West Boardman St:reetYoungstown, Ohio 44503Telephone: (330) 740-2330Facsimile: 330- 740-2C)08COUNSEL FOR APPELLEE

JOHN B. jUIIASZ N° 00237777081 West Boulevard, Suite N° 4Youngstown, Ohio 44512-4362Telephone: 330.758-7700Facsimile: 330.758-7757E-mail: fturisdoc@ahoo.comCOUNSEL FOR APPELLANT

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TABLE OF CON7'ENT.S

Explanation of why a substantial constitutional question is involved, why the case is ofpubli.c or great general interest, and why leave to appeal should be granted .. 1

Combined Statement of Facts and Statement of the Case . . . . . . . . . . . . . . . . . . . o . , 2

Argument .... .,. ..... .................................... 5Proposition of Law N-Q 1: The Lott presumption that a person with an

IQ greater than. 70 is presumed not to be mentally retarded is discarded. Inits place, the test in Ohio for whether an individual who has been seritencedto death should be spared the d:eath sentence due to mental retardation isproof of the existence of (1) significantly subaverage intellectual functioning,(2) significant lima.tations in two or more adaptive skills, such ascommunication, self-care, and self-direction, and (3) onset before the age of18. .....e .................. .......,......,....,...,..... 5

Proposition of Law N° 2: The 70 IQ Presumption Violates Due Process. ...... 9Proposition of Law N° 3: Because a death sentence is a greater punishment than

the punish normally prescribed for aggravated murder, the existence of allfacts to warrant or abrogate the death sentence must be determined by ajury. ...... .... .......................... ....o...........13

Proposition of Law N° 4: When a person is incompetent to participate in theproceedings, post-convictions proceedings must be stayed until the personis competent to meaningfully participate . . . . . . . . . . . . . . . . . . . . . 14

Conclusion ...................e,...,.......... ....................... ,., 19

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Opinion of Court of Appeals . . . a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1

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EXPLAN,ATION OF wE IY A SUBSTAN'T'IA:T, CONSTITUTIONAL Qli ESTiOi\7IS IIv'V OLVED,WHY THE CASE IS OF PUBLIC OR GREAT GEi\1ERAL INTEREST, AND 4VHY LEAjI-E TOAPPEAL SHOULD BE GRANTED.

There is no more serious penalty in the law than capital punishment. There is no

principle more basic to the enforcement of the law and the continued vxtality of the legal

system than general respect of the public for the legal system. Put another way, our legal

system -wzll continue to have vitality only so long as the public for whose benefit the

system operates continues to have confzden.ce that the system operates in a way that

demonstrates that its results are reliably, objectively, and evenhandedly dete.rz^.̂ .-.ined.

This case asks the Court, with those principles in mind, to reconsider rules that the

Court has previously laid down. The first is the rebuttable presumption that a person

with an IQ greater than 70 is not retarded. This presrunption is not grou.nded in medical

science.lVforeover, as this case demonstrates, over-reliance on IQ scores has converted the

presumption from a truepresLunption to what many call an irrebuttable pres-cunption, but

which is really simply a rule of law.

This case also asks this Court to reconsider, in light of the Sixth Amendment, the

holding of the Court that the determination of mental retardation,. when asserted after

conviction, is to be determined by a judge and not a jury, Established Sixth Amendment

jurisprt:idence holds that factual determinations which elevates the penalty beyond the

penalty normally prescribed for a crime must be determined by a jury-unless that

factual determination involves the existence of a prior conviction.

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Finally, this case asks this Court to treat collateral proceedings such as

postconviction relief with the same level of deference as is accorded a crimznal trial.

Postconviction proceedzngs are the one and only avenue for asserting constitutional

claims, whose proof depends at least in part on matters outside the record. Put another

way, a legal vehicle for establishing a constitLitional deprivation should be treated with

the same level of care and concem regardless of the source of the proof of that

constitutional deprivation.

Members of the public, both inside and outside the legal system, have suggested

that the death penalty wili one day come to an end. That may or may not be, but so long

as we have death penalty, it must be adnunistered in a way that gives the public

confidence that the results of death pen.alty proceedings are determined objectively and

without regard to the admittedly often heinous facts that accompany such cases. This case

affords the Court, by addressing the questions of great general or public interest and

which involve substantial constitutional questions, to aright the ship.

COiVIBIIV-ED STATEMENT OF FACTS AND STATEMENT OF THE CASE

The Appellant, Warren A. Spivey, ("Spivey") was indicted by the Mahoning

County grand jury on January 18, 1989 for, inter alia, the aggravated murder of Veda

Eileen Vesper. On Jariuary 3, 1989, Ms. Vesper's residence in Youngstown, Ohio, was

burglarized and Ms. Vesper was attacked. She was cut, stabbed, and beaten to death.

Later that same night, Spivey was arrested by Youngstown Police.

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The State indicted Spivey for, inter alia, the purposeful kfflin.g of Ms. Vesper during

the corrumission of an aggravated robbery and/or aggravated buxglary: Attached was a

R.C. 2929.04(A)(7) death penalty specification alleging that the murder was committed

during the course of an aggravated robbery and/or aggravated burglary, and that Spa:v ey

was the principal offender. Spivey was al^so indicted on one count of aggravated robbery,

one coixnt of aggravated burglary, and one count of grand theft of a motor vehicle.

Spivey requested an order allowing a defense expert to conduct DNA testing of a

red sweatshirt and a black-and-white vest that had been seized by police during a search

of his home. The DNA analysis was not return.ed quickly. The trial record evinces a series

of maneuvers seemingly designed by Spivey's lawyers to buy more t%xne. Virtually every

motion that Spivey filed recited the fact that DNA analysis was not yet comple-te. But the

case trudged on toward the trial date. During voir dire, Spivey waived his right to trrial

by jury, and elected to be tried by a three-judge panel. The members of the three-judge

panel were designated, and a new trial was set. Spivey entered a no contest plea to the

charges and -to the capital specification.

Spivey then moved to withdraw his pleas of no contest on the basis of "newly

discovered evidence." Attached to the motion was a report from Ce1lmark Diagnostics

Laboratory, which said that the blood on the two articles of clothing referenced above did

izol, contain Ms. Vesper's blood. The government's evidence was the blood on the clothing

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was "consistent" with the blood of the victim. The motion to withdraw the pleas was

denied. Spivey was sentenced, to death.

The Seventh District Court of Appeals affirmed on direct appeal. See, State v.

Spivey, r Dist. N° 89 C.A. 172, 1997 Ohio App. LEXIS 71. This Court aLso affirmed on

dixectappeal, see, State v. Spivey, 81 Ohio St.3d 405, 6921V.E.2d 151 (1998), and the United

States Supreme Court denied certiorari. See, Spivei v. Ohio, 525 U.S. 898,119 S.Ct. 226,142

L.Ed.2d 186 (1.998). Spivey's petition for post-conviction relief was denied, and the

appellate courts affirmed.

On December 20, 2002, Spivey filed a Successive Petition to Vacate or Set Aside

Conviction and Sentence and Request for an Evidentiary Hearing. On September 22, 2004,

Spivey fil.ed a Motion for Jury Determanation of iVIentai Retard.ation and for Rejection of

.I'resumption of the IQ Level of 70 to Determ.ine Mental Retardation. On October 8, 2008,

Spivey filed a suggestion of incompetence, and a motion to stay the proceedings.

An evidentiary hearing was held. In addition to the items already in the trial

record, Spivey presented evidence from family m.embers that he suffers from

"significantly subaverage intellectual fLmctionang" and has literally since birth but

certainly prior to age 18; and that he experienced "significant limitations in two or more

adaptive skills, such as commtuucation, self-care, and self-direction," home living, social

skills, health and safety, functional academics, leisure, and work, all of which, again,

manifested themselves well prior to age 18. The trial court denzed all of Spivey's requests,

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and with regard to the Atkins claim, foiu-id that no evidence of intellectual inapairment had

been presented. An appeal to the Seventh District CoLi:rt of Appeals was denied, see, State

v. Spivetl, 7' Disto Nu 12 MA 75, 2014 Qhio 721, 2014 Ohio App. LEXIS 707, and Spivey

now asks this Court to accept jurisdiction.

ARGUMENT

Proposztion of Law N2 1: The Lott presumption that a person with anIQ greater than 70 is presumed not to be mentally retarded is discarded. Inits place, the test in Ohio for whether an individual who has been sentencedto death should be spared the death sentence due to mental retardation isproof of the existence of (1) sig.nificantlysubaverage intellectual functianing,(2) significant limitations in two or more adaptive skills, such ascommunication, self-care, and self-direction, and (3) onset before the age of18.

All of the evidencepresented concerning these elements was favorable to Spivey.

Yet, the trial judge denied the petition for postconviction relief solely because he found

that there was no evidence of intellectual impairment. The Lott presirxnption, see, State v,

Lott, 97 Ohio St.3d 303, 2002 Ohio 6625, 779 N.E.2d 1011, should be abandoned because

it has led. trial and appellate courts to confusion. Instead of creatin.g a rebuttable

presumption, such as was rebutted here by the evidence, the presumption has been

treated as cleficto conclusive. The Court of Appeals observed that the IQ scores establish

a presumption that Spivey is not "mentally retarded" as defined by Lott. Yet, the Court

acknowledged that "the record is replete with evidence that Spivey has had cognitive

lirYutations during his entire .life." The appellate cotirt quoted one of the evaluating

experts, who said that "[d]espite the fact that iV1r> Spiveyr s IQ estimates do not fall within

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5

the range that is usually associated with mental retardation, sti1:1 certain of hi.s responses

speak clearly to his cognitive limitations, for example his limited fund of general

information, his poor skffls at abstract concept formation, and his relatively impoverished

vocabulary." The record in this case, which the judge claimed to have reviewed,

contained ample evidence of ulteilectual im.,pairment. Thus, Spivey, the record shows,

functtions in the world of a fourth grader; cannot grasp concepts; cannot perform basic

math skills; could not play with other children because he couldn't zund.e.rstand the rules

of the games. Spivey never lived andependently, and could not cook or care forhimself.

In Atkins v. Virginia, 536 U.S. 304,122 S.Ct. 2242,153 L.Ed.2d 335 (2002), the United

States Supreme Court held that executuzg a mentally retarded offender violates t11e Eighth

Amendment's ban on. cruel and unusual punishment. See, Atkiris, 536 U.S., at 321. Because

Atkins was a state prosecution, the Stipreme Court obviously held that the Fourteenth

Amendment prohxbits states from executing mentally retarded. people. The Atkins Court

did not provide a definition for "mentai retardation." Rather, as the Supreme Court did

in the context of mental competence, it entrusted the states with the "task of developing

appropriate ways to enforce the constitutional restriction" upon the execution of thezr

sentences. 536 U.S. at 317, quoting Ford v. tiVainwright, 477 U.S. 399, 416-17, 106 S. Ct.

2595, 91 L. Ed. 2d 335 (1986).

This Court soon complied. Six months after Atkins, the Court ruled in State v. Lott,

that to establish an Atkins claim in Ohio, a capital defendant must prove that he: (1)

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stiffers from "si:gnificantly subaverage in.tellectual functioning," (2) experienced

"si_gni.ficant limitations in two or more adaptive skills, such as communication, self-care,

and self-direction," and (3) manifested "onset before the age of 18." See, State v. Lott, 97

Ohio St.3d, at 305. The Court observed that "[wjhile IQ tests are one of the mcrny factors that

need to be considered, they alone are not sufficient to make a final determination on this

issue." (Emphasis added.) This Court concluded "there is a rebuttable presumption that

a defendant is not mentally retarded if his or her IQ is above 70."

This case demonstrates that the presi.unption's -tim.e has come because it has been.

so often misapplied. The Court of Appeals noted there was testimony in the record that

Spi.vey started having convulsions /seizures when he was one and that continued through

his teenage years, and wa.s in and out of hospitals because of this. There was also

testimony from Spivey's mother and family members that intellecttially he developed

more slowly than other kids, that he had: learning problems, that he went to a school for

chi.ldren with learning and behavioral problems, and that he was always "childlike." His

hygiene was poor and he could not keep a job. He "could not make change (in fact they

would not send him to the store because he would not come back with change and would

not get everything he was told to get), and although he was given chores, he would not

always complete them.°" Court of Appeals Opinion, 124. All of th.is evidence related to

behaviors prior to the age of 18.

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The over-70 IQ scores deluded the trial and appellate courts in this case into

concluding that Spivey could not possibly be retarded, zf for no other reason than his test

scores. Theses courts appear to have ignored the penalty phase testimony from Dr. James

Eisenberg that, as to Spivey s adaptive level of fiznctioning, ""intellectually we are looking

at someone who is basically functioning much ljke a ten year old.°" Dr. Eisenberg also

testified at the penalty phase that Spivey has a full scale I.Q. of 74, which, according to

Eisenberg, indicated that Spivey was "`in the borderhn.e range of zn.telligence."

Atkins recognizes that we do not execute ten year olds in America, whether they

are ten years old physically or ten years old rnentcally. The Lott presumption's rehance on

scores led the appellate court to conclude, in a passage that stretches credutity, that

Spivey's inteflectual and adaptive functioning limitations were not "significant." ("The

testimony from his mother, family members, and the above statement from Dr. SmaIldon

tends to show lim_itations in adaptive skills, such as comrnurdcation, self-care, and

self.-di.rection that were apparent before the age of 18. These hnutations, however, may

not be classified as signifficant, as is required by Lott to meet the definition o"menlally

retarded."') Id.., at '125. When courts stretch the definition of "sigruficant" to achxeve a

pre-ordained result, this Court should abandon the Lott presiimption and focus simply

on the elements of mental retardation.. This would avoid a finding, such as that made and

upheld here, that "Spivey's IQ scores were simply too high to ever qualify for a"mentally

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retarded' diagnosis." Id., at 126. Under the Lott test as misapplied here, the pr.esi.unption

could never be overcome, no matter how much evidence of impaument was presented.

In. State v. Gienzn7.,169 Ohio App.3d 650, 2006 Ohio 6451, 864 IV.E.2c:i 133 (1sr Dist),

Gumm had significant deficits in the conceptual and the practical adaptive-skills

categories, such as an inability to read or write and fu:nctionallv ffliteracy. Gumm's IQ

scores before the age of 18 were 73, 70, 71, and 79. Later IQ tests revealed fu11-scale scores

of 70, 67, and 61. The appellate court in Gumm noted what Spivey asserts here: this Court

in Lott cautioned that an IQ test score is merely one measure of intellecii.ial functioning

that "alone jis] not sufficient to make a final determ3:nation on [the mental-retardation]

issue." State v. Lott, supra, at 'ff 1.2. 'The expert in Gamnz acknowledged the Lott

presi,imption, but criticized it as inconsistent with the state of the science in terms of

AAMR and Americaii. Psychiatric Association`s definitions. ':T'la.is Court musfabandon the

Lott presumption.

Proposition of Law Ng 2: The 70 IQ PresumptionViolates Due Process.

As discussed above, this Court in Lott, svtprc:, created a preszzmption that if the

defendant's IQ score is over 70, then the individual is not mentally retarded. Like any true

presumption, the Court did provide that the presump tion cotrld be rebutted by contrary

evidence. But the presumption must fail as it is both unworkable in practice and not

supported by medical knowledge.

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Tot v, Ltnited States,319 U.S. 463, 467,63 S.Cte 1241, 87 LaEdo 1519 (1943), held that

the Due Process Clause requires a "rational connection betw een the fact proved and the

ultimate fact presumedo" A pres-umpti®n, of course, involves a conclusion drawn from

the existence of a known fact in the absence of evidence to the contrary. TheLott

presumption does not ineet this test. The Due Process Clause of the Fourteenth

Amendment to the United States Constittrti:on, as well as the provisions of Ohio Const.,

art. I, §16, allow the governnrnent to create and apply a presumption if the presumption

is Yfltional. Leary v. UnitedStates, 395 U.S. 6,89 S.Ct.1532, 23 L.Ed.2d 57 (1969), explained

that an inference is ,<`irrational° or 'arbitrary,' and hence unconstitu-tzonal, unless it can

at least be said with substantial assurance that the preSLLmed fact is more likely than not

to flow from the proved fact on. which it is made to depe-nd.", 395 U.S., at 36. And in

Tiirner v. United States,396 U.S. 398,90 S.Ct. 642 24 L.Ed.2d 610 (1970), the Court held that

a presumption an inference with regard to heroin was valid, but that with xegard to

cocaine, the inference failed to satisfy even the deferential rnore-likely-than-not standard.

These contrasting conclusions were based uponrational thought applied to the common

experience of mankind. The Court concluded that the jury was wholly justified in

accepting the legislative judgment that possession of heroin is equivalent- to possessing

importedheroi.n, because',[w]e have no reasonable doubt that at the present time heroin

is not produced in this country and that therefore the heroin. Tu:rner had was smuggled

heroin." The Court said that the presumption regard^g cocaine was invalid, because

728

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"whi1e it is illegal to import cocaine, coca leaves, from which cocaine is prepared, are

legally imported for processin.g into cocaine to be used for medical purposes. There was

no evidence that sizable amounts of cocaine are either legally imported or smuggled.°` Id.,

at 418. The teachrn.g of these cases is that an inference or presumption is lixn.ited under to

the Due Process Clause to what is reasonable or rational.

Here, the testimony of the expert in Giimm, supra, higWights why the presumption

of Lott must fail. Dr. Ott acknowledged the presumption, but criticized it as "inconsistent

with the state of the science u1 terms of AA.'VLR and APA's definition[s]." The APA defines

the term "mild men.tal retardation" as one °'typically used. to describe people with an IQ

level of 50-55 to approximately 70." Dr. Ott testified that the AAMR and the APA require

that IQ scores be subjected to a standard error of ineasurement of plus or mhlus three to

five. Thus, he asserted, the AAIYrR and the APA pernutted a finding of subaverage

intellectual fun.ctioning in a person with an IQ score of 73, Dr. Ott concluded that

Gumm's IQ test scores from age eight to age 26 were, with the exception of the 1981 score,

"very consistent within the same range" and "consistent with mental retardation

when one takes into account the standard error of measurement."

The over-70 IQ presumption also places -L^ndue emphasis on the I.Q. score as the

determinative factor ia1 assessing whether an offender is mentally retarded. Both the

AAMR and APA definitions of mental retardation focus on three components. See, Whit

Edwards and Ruth A. Luckasson, :l'Iental Retardation: Definition, Classification, and Systems

27-/y^ J<AL>$.JLusz•^tirna^eYTY:nuoslwesTBJt'1.C5'.tAO..stTlE:iY^>u^usmrvv.O^nc34512 11

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of Szipports (9' ed.) (Washington. D.C.: America.n Association on Mental Retardation,

copyright o 1992), 5,; American Psychiatric Association, Diagnostic and Statistical Manual

of Mentctl Disorders (4' ed. 1994), 41. Moreover, the AAIDD specifically cautions against

over-reliance on IQ scores when diagnosing mental retardation: "I.Q. has typically

dominated and thus has been overeinphasized both in term:.s of professional decision

making and diagnosis.... This imbalance between intelligence and adaptive behavior does

not represent the current conceptua].ization of mental retardatione" See, Ruth Luckasson,

et ccl.,Merttal Retardation: Definition, Classification, and Systr.9rris o, f Stipports (Washington, DC:

American Association on Mental Retardation, copyright © 2002) (10^' ed.), S.

The presumption's reliance on IQ test scores flies in the face of expert recognition

that an offender's adaptive skills play an important role in assessing whether he is

mentally retarded. See, Diagnostic and Statistical Manual of Mental Disorders, 40 ("Mental

Retardation would not be diagnosed in an .individual with an IQ lower than 70 if there

are no significant deficits or impairments in adaptive fimctioninge") by the same token,

a deficit in adaptive skills can place an above 70 IQ person into the mentally retarded

range. Id., at 39-40. By contradicting medical standards with an arbitrarily legal

presumption, the Court imposed a constitutionally infirm framework for applyingli.tkins.

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Proposition of Law NQ 3: Because a death. sentence is a greaterpunishment than the punish normally prescribed for aggravated inLirder,the existence of all facts to warrant or abrogate the death sentence must bedeter.mined by a jury.

This Court in Lott recognized that a defendant who had been sentenced to death

before Lott was decided had not been afforded a full and fair opporhuiity to litigate his

claim of mental retardation as a complete bar to his death sentence. Lott, supra, at 120. The

decision flies in the face of the Apprendi-ftf.rtg-Blakely Iine of decisions concerru.ng the Sixth

Amendment right to a. jury trial. See, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,

147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556

(2002); Blakely v. V1lizshington, 542 U.S. 296, 124 S.O. 2531, 159 L.Ed.2d 403 (2004).

The Constitution requires a jury finding on any factLial issue which can involve

imposition of a penalty beyond the normal statutory mirtin^iurris. The existence of mental

retardation is a factual issue. The existence or non-existence of that fact must be proved

to a jury, for the existence or non-existence of that fact makes all the difference behveen

whether the government may impose a sentence beyond the normal statutory maximum,

or whether the govemment is flatly barred from doing so.

Under the Sixth Amendment, any fact other than a prior conviction that was

necessary to support tlie sentence exceeding the rnaxinmi.im authorized by the facts

established by a plea of gt.iz.lty or a jury verdict either had to be admitted by the defendant

or proved to a jury beyond a reasonable doubt. Governments cannot structure their laws

in a way as to defeat the Sixth Amendment gi;iarantees of trial by jury. This pruiczple h.as

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been upheld over and over again, going back to jury and grand jury selection and

discrima.nation cases, but one need .not look so far into the dusty volumes of the past. This

principle is the precise holding of Blakely (state government) and Booker (federal

government). See, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005).

Thi,s Court's decision in State v. Lott, szipra, assigned the task of determining mental

retardation to a trial court rather than to a jury. With due respect, this decision. is contrary

to the requirements of both the United States and Ohio Constitutions. The fact that mental

retardation is a "negative' of the death penalty specifications which otherwise make a

person eligible for a death sentence makes no constitutional difference whatsoever. A

finding of mental retardation renders a defendant ineligible for the death penalty. Thus,

just like the existence of one or more statLitory aggravating factors which determines

death penalty eligibility, the existence of mental retardation detennin.es death penalty

eligibility. Spivey has a right to have a jury determine this issue, unless he waives a jury

determination. He did not. In fact, he asked.for a jury, but was denied. Consistent with

the Sixth Amendment this case must be remanded to empanel a jury.

PProposition of Law Ng 4: When a person is incompetent toparticipate in th.e proceedings, post-con-urictions proceedings must be stayedu.ntil the person is competent to meaningfully participate.

The constitutional question posed here is one of competence in. collateral post-

conviction proceedings. The Due Process Clause of U.S. CONST., amend. XIV and OmO

2728 14T[[tTl >nai.330.7:itl.7700 • Fac.viui,ea i iU.75S :57 •^aLUL J4aa^Rlsooc^'.vnEloc;.u)St

Co,NST., art. l, §§1, 2, and 16 prohibit the conviction or pluushment of a person who is not

competent. See, e.g., Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966);

Drope v. Missouri, 420 U.S.162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Dusky v. United States,

362 U.S. 402,80 S.Ct. 788,4 L.Ed. 2d 824 (1960); Gocliiiez v. Moran, 509 U.S. 389,113 S.Ct.

2680,125 L.Ed.2d 321 (1993), and, Lagway v. Dallman, 806 F.Stxpp.1322 (N.D. Ohio 1992).

T1-te requirement of competence through all stages of trial has ancient historical

antecedents. Blackstone wrote that tryin^ an incompetent is unfair and invokes the law's

disapproval of trials in absentia, see, Drope v. Missouri, supra, 420 U.S., at 171.1VIoreover the

ugly spectacle of the trial of an ii-tcompetent defendant "diminishes society's respect for

the dignity of the criminal justice process." See, Benjamin. J. Vernia, Note, The Bzirden of

Proving Competence to Stand Trial: Due Process at the Limits of Adversarial Justice, 45 VA '̂va

L. REv. 199, 201 (1991), citing Freeman v. People, 4 Denio 9, at 20 (N.Y. Sup. Ct. 1847).

The requirement of competence is often aBuded to in connection with the right to

assist in one's own defense, a right as important to our notions of fairness and justice as

is the presumption of innocence. Lagway v. Dallnaan, supriz, 806 F.Supp., at 1331, citing

United States v. Helmsley, 733 F. Supp. 600, 605 (S.D.N.Y. 1989). Accordingly, the due

process clause of the Fourteenth Amendment demands tha-t at any stage of any criminal

proceeding the defendant nlust be competent.

This Cotu°t also has recognized that the Ohio Constitution is a document of

independent force. AYrcolcl v. Cleveland, 67 Ohio St.M 35, 616 N.E.2d 163 (1993). The trial

2 ! 6r4JJ {}( .l0}LVA.3L'- •ATIY18\".."YAT1.,.W•7(M3WEfTBOLi.tVAAD.9L'R54.Y01..'[:e'NtYV.Dti(O31Si2 15

Trzt+PnON. 830.75S.7700^ FACSIauIPw 530.756.7757 r g.,yy>(GTgIJVW59cx:C^^v1QO.COnI

court did not address, for example, how one can effectively defend life (in a capital

proceeding), even in a collateral proceeding designed for the very purpose of vindicating

constitutional rights, when one is not competent. Nor did the trial court address how one

who is not competent to understand and participate in the proceedings can have a

remedy in the courts "by due course of law" or have justice administered without denial.

See, Oxlo CONST., arto I, ;§1 and 16. The trial court should have ordered a stay of

proceedings t:intil Spivey was competent to participate in them xnea.n2ngfullyo

Even more recently, the ABA has issued a preliminary report on the death penalty

adrruxustration in Ohio. See, Evaluatinga Fairness and A.ccziracy in State Death Penalty Systenzs.°

the Ohio Death Penalty Assessnient RepoYt. An Analysis of Ohio's Death PenalftJ Laws,

Procedures, and Practices (American Bar Association, September 2007). The report has

found a number of areas of 0hio death penalty adrni.nistration to be inadequate and has

recommended a.moratorium on execution until Ohio comes into line with the

Constitution. For example, Recommendation 11 provides:

The jurisdiction should stay post-conviction proceedings where aprisoner under sentence of death. has a mental disorder or disability thatsignificantly impairs his or her capacity to understand or commtuiicatepertinent information, or otherwise to assist counsel, in connection with suchproceedings and the prisoner's participation is necessary for a fair resolutionof specific claims bearing on the validity of the conviction or death sentence.The jurisdiction should require that the prisoner's sentence be reduced to thesentence imposed in capital cases when. execution is not and to participate inpost-conviction proceedings in the foreseeable future.

The report goes on to recite the absurd spin that the courts have placed on Ohio

law, that post-convictxon relief is not a constitutional right, but instead a statutory right.

2728 Jo24' $. JLfLW =AT[Owu-t tnn • 7091 tVes2 S01:-D, 5t»E4 •Yo-aY(owv,Omn 44512 .! yt7Y.LICPIlCnk^ S:A.7.i8^.7:0U + PACSGmcFi 330.758.9757 1.• C.^uu^ Jxt:c^qLWpc(rvY,uK)o.C031 V

Accordingly, says the report and the courts of. Ohio, a post-conviction petitioner is

entitled only to the rights prescribed in the post-conviction statute. The report observes

that Ohio does not stay post-conviction proceedings where a death-row inmate's mental

disease or defect impairs the inmate's abil.ity or capacity to understand, communicate, or

otherwise assist counsel in connection with post-conviction proceedings; nor does the

State reduce a death-row inmate's sentence to a sentence available in capital cases when

execution is not an option and where there is no significant likelihood of restoring the

inm.ate's capacity to participate in post-con.v iction proceedings in the foreseeable future.

Therefore, the report concludes, the State of Ohio fails to meet the reqzurements of

Recommendation 11. The provisions of the Constitutions cited above compel this Court

to declare that post-conviction proceedings are on a par with other criminal proceedings.

In Rohan v. Woodford, 334 F.3d 803 (9th Czr. 2003), the United States Court of

Appeals for the Ninth Circuit was asked to decide whether a district court must stay

capital habeas proceedings during a petitioner's incompetence. The Ninth Circuit traced

the history of the doctrine of competence, going back to Sir Matthew Hale, Lord Chief

Justice of the Ka.ng's Bench, who noted in his Pleas of the Crown that the common law

prohibited trial and execution of incompetents. Competence allowed a defendant to

"make his defence" and a condemned to "'allege[ ] something in stay of judgment or

execution," 4'William Blackstone, Commey2ta-ries on the Laws of Etzglanti, 24-25 (1769).

Competence, the Ninth Circuit noted, was more than just the ability to lrn.derstand what

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was going on-it was the capacity to commuzucate exonerating information to others. The

right to competence does not moreover, expire with the return of the jury's verdict, a fact

implicitly recognized by the United States Supreme Court all the way back in 1966. See,

Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966).

At issue here, as in Rohan, is a question that falls somewhere between competence

to stand trial and competence to be executed: competence to pursue coJ.lateral review of

a conviction. Though courts and prosecutors like to observe that post-conviction and

habeas are "secondary and limited" coni.ponents of the criminal justice process, see,

Barefoot v. Estelle, 463 U.S. 880, 887, 1.03 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), one cannot

read the provisions of the Ohio Constitution that way. To do so renders the promises of

the ability to meaningfully defend life and liberty and to have meaningful access to the

courts both absolutely meaningless. See, Ohio Con.St., art. l, §§1 and 16^ A violation of

these provisions is ipso facto a denial of liberties sec-Lixed by Ohio Const., art. I, §2.` See,

State v. Lrcne, 60 Ohio St.2d 112, 397 N.E.2d 1338 (1979).

Finding that its own case law "all btit dictates the result" in Rohan, the Court

concluded that Gates had a federal statutory right to competence in his federal habeas

proceedings.

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CONCLUSION

The preszunption of Lott concerning IQs, with due respect, is not constitutional

because it is not grocunded in logic and experience, and the due process clause limits the

power of any branch of government, including the judicial branch, to create a

presturipti_on that is not rational.

No court in Ohio appears to have scluarely addressed the issue of constitutional,

as opposed to statcitory, competence to participate in collateral proceedings. The due

process clause prohibits prosecution and purushnient of a prisoner tivho is not competent.

To hold a proceeding and to invite the petitioner to attend even though he is not

competent is the same as not invitang him at all.

For these reasons, this Court should accept jurisd.ictio.n and order full briefing.

Respectfiilly submitted,

4! . ° 237777081 West Boulevard, Suite N° 4Youngstown, Ohio 44512-4362Telephone: 330. 758-7700Facsimmile: 330.758-7757E-mail: TbljurisdocGyahoo.comCOUNSEL FOR APPELLANr

CERTIFICATE OF SERVTCEI hereby certify that a true copy of the foregoing was: y regr^lar United

States Mail, postage prepaid; [^] hand delivered to counsel or counsel's office; [_.] sentby telecopier to Mr. Ralph M. Rivera, Es ., Coun..sel for Plaintiff, 21 West Boardman

Street, YoLmgstown, Ohio 44503 on Apr:` 2014.

JOF::\At<--feJSJ\Appeals\State\Ct Appeals\Spivey 2728VvIISJ ie4:wpd"Fri hrs)

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STATE OF OHIO, MAHONING COUNTY..__.. . ^^..:..^,..

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO,CASE NO. 12 MA 75

RESPONDENTaAPPELLEE,

VS. OPINION

WARREN SPIVEY,

PETiTIONER-APPELLA[VT;

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common PleasCourt, Case No. 89CR20.

JUDGMENT:

APPEARANCES:For Plaintiff-Appellee:

For Defendant-Appelfant:

JUDGES:Hon. Joseph J. VukovichHon. Cheryl L. WaiteHon. Mary DeGenaro

IIl1III11IIIli(II11i^^llllllllllill^l^^lllilflllilllllll^l^r ^7^0001E763986

Afl•:irrraed.

Attorney Paul GainsProsecuting AttorneyAttorney Ralph RiveraAssistant Prosecuting Attorney21 West Boardman Street, C{" FloorYoungstown, Ohio 44583

Attorney John Juhasz7081 West Boulevard, Suite 4Youngstown, Ohio 44512

Dated: February 21, 2014

A - 000()01

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VUKOVICH, J.

{11} Petitioner-appellant Warren Spivey appeals from the decision of the

Mahoning County Court of Common Pleas denying his December 20, 2002 petition

for postconviction relief. The issue in this appeal is whether the trial court abused its

discretion when it found that Spivey did not present evidence of intellectual

impairment that would classify him as "mentally retarded."' Spivey seeks a finding

that he is "mentally retarded" so that his death sentence can be reversed and a life

sentence can instead be imposed. For the reasons expressed below, the trial court

did not abuse its discretion when it denied Spivey's petition for postconviction relief.

The judgment of the trial court is hereby affirmed.

Statement of the Case

{12) On January 18, 1989, Spivey was indicted, among other charges, for

the aggravated murder of Veda Vesper, who was found murdered in Youngstown,

Ohio on January 3, 1989. Originally Spivey pled not guilty; however, on October 11,

1989, he entered a no contest plea to the charges. Following the plea's entrance, a

three judge panel found him guilty of all charges. A mitigation hearing was held on

November 13, 1989. One week later, the three judge panel imposed the death

sentence. 11/20/1989.

{13} A timely notice of appeal was filed from that decision and the conviction

and sentence were thereafter affirmed by this court. State v. Spivey, 7th Dist. No,

89CA172, 1997 WL 16196 (Jan. 13, 1997). Spivey appealed that decision to the

Ohio Supreme Court, which also affirmed the conviction and sentence. State v.

Spivey, 81 Ohio St.3d 405, 692 N.E.2d 151 (1998).

(14) On March 31, 1997, while the appeal of his 1989 conviction and

sentence was pending in the Ohio Supreme Court, Spivey filed a timely application to

reopen his appeal. We denied the motion. State v. Spivey, 7th Dist. No. 89CA172,

'We recognize that the term "mentally retarded" is not technically correct. However, it is theterm that is used by the Ohio Supreme Court in Lott and the United States Supreme Court in Atkins,both of which are controi;ing in this case. Furthermore, it is the term used by the trial court. Therefore,despite the insensitivity of the term, we continue to use it for the legal standard set forth in thosecases,

A - 000002

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1998 WL 78656 (Feb. 11, 1998), Spivey appealed that decision to the Ohio

Supreme Court, which affirmed our decision. State v. Spivey, 84 Ohio St.3d 24, 701

N.E.2d 696 (1998).

{15} On September 20, 1996, before we affirmed his conviction and

sentence, Spivey filed his first postconviction petition. An evidentiary hearing was

held on that petition in 1999. The trial court denied the petition in May 2000. That

decision was appealed to our court. In 2002, we affirmed the trial court's decision.

State v. Spivey, 7th Dist. No. OOCA106, 2002 VIdL 418373 (Mar. 15, 2002).

{16} Two months following the affirmance of the triai court's denial of

Spivey's postconviction petition, the United States Supreme Court ruled that the

execution of "mentally retarded" criminals violates the Eighth Amendment's ban on

cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242

(2002). However, the Atkins decision did not establish procedures for determining

whether an individual is "mentally retarded" for purposes of escaping execution.

Rather, it left fhat determination to the states; "we leave to the State[s) the task of

developing appropriate ways to enforce the constitutional restriction tJpon [their]

execution of sentences." Id. at 317 quoting Ford v. Wainwright, 477 U.S. 399, 405,

416-417, 106 S.Ct. 2595 (1986).

(¶7} Thereafter, the Ohio Supreme Court set forth the standards to be

employed in Ohio. State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d

1011. In rendering that decision, the Court explained that the procedures for

postconviction relief as set forth in "Ft.C. 2953.21 et seq. provide a suitable statutory

framework for reviewing" an Atkins claim. Id. at ¶ 13. R.C. 2953.23(A) specifically

indicates that a court may not entertain a successive petition unless one of the two

exceptions apply. Id. at ¶ 14. The Court found that the exception enumerated in

subsection (b) was applicable. Id. at ¶ 17. That subsection states a successive

petition can be entertained if the "United States Supreme Court has recognized a

new federal or state right that applies retroactively to persons in the petitioner's

situation, and the petition asserts a claim based on that right." R.C. 2953.23(A)(1)(b);

ld.at¶16.

(18) Following that reasoning, the Court explained:

A - 0000031

o3m

For all other defendants who have been sentenced to death, any

petition for postconviction relief specifically raising an Atkins claim must

be filed within 180 days from the date of the judgment in this case.

Petitions filed more than 1$0 days after this decision must meet the

statutory standards for untimely and successive petitions for

postconviction relief.

Id. at ¶ 24.

{19} On December 20, 2002, Spivey filed a successive petition for

pestconviction relief asserting an Atkins claim. Based on the advisements in Lott,

this petition was timely and could be entertained,

{110} Spivey then filed a Motion for Jury Determination of Mental Retardation

and for Rejection of Presumption of the IQ Level of 70 to Determine Mental

Retardation, which was denied. 09/22/04 Motion; 04/05/05 J.E.

{1111 In 2004, Spivey was evaluated by Dr. Jeffrey Smalldon to determine if

he was "mentally retarded." Dr. Smaildon determined that Spivey is not "mentally

retarded" as defined by either the Diagnostic and Statistical Manual of Mental

Disorders-IV-Text Revision or the American Associated of Mental Retardation's

Mental Retardation Manual.

{112} In 2008, Spivey asked for a competency determination and requested a

stay of the proceedings. The trial court granted the stay for purposes of allowing

Spivey to be evaluated by Dr. Thomas Gazley from the Forensic Center of Northeast

Uhioo Dr. Gazley determined that Spivey was competent to participate in the

postconviction proceedings.

(113) The trial court then ordered Dr. Gazley to evaluate Spivey for purposes

of determining if he is "mentally retarded" under Atkins and Lott. Dr. Gazley rendered

the opinion that Spivey is not "mentally retarded."

{114} An evidentiary hearing on whether Spivey met the definition of "mental

retardation" as set forth in Atkins and Lott was held on April 28, 2011 and June 14,

2011.

{115} In March of 2012 the trial court denied the successive postconviction

petition. 03/19/12 J.E. In doing so, it concluded:

A - 000004

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6. Clinical definitions of mental retardation, cited with approval in

Atkins, provide a standard for evaluating an individual's claim of mental

retardation. State v. Lott, at 307, Citing definitions from the American

Association of Mental Retardation and the American Psychiatric

Association, the stendard requires (1) significantly sub-average

intellectual functions, (2) significant limitations in two or more adaptive

skills, such as communication, self-care and self-direction, and (3)

onset before the age of 18.

7. In the instant case there is evidence that the Defendant had

limitations in some adaptive skills, such as self-care and self-direction

and those limitations were present before the age of 18,

8. There is no evidence that the Defendant had significantly sub-

average intellectual functioning.

9, According to Dr. Thomas Gazley, the Defendant could never

qualify for a diagnosis of mental retardation, based on the Defendant's

iQ scores of 84 and 87.

10. This Court finds that the Defendant did not establish that the

Defendant is mentally retarded.

03/19/12 J, E

(116) Spivey timely appeals from that decision.

First Assignment of Error

(1ff17) "The trial court erred in finding that Spivey's Atkins claim was not

proved by a preponderance of the evidence,"

(1118} in Lott, the Ohio Supreme Court explained that in order to be entitled to

relief, the petitioner must prove by a preponderance of the evidence that he is

"mentally retarded" as defined by Atkins and Lott. Lott at ¶ 17. In reviewing the trial

court's decision as to whether that standard was met, we employ an abuse of

discretion standard of review. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.Zd 77, 158, A trial court abuses its discretion when its judgment is

unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,

404 N. E.2d 144 (1980).

A - 0fl00(J5

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(¶°i9) As aforementioned in Atkins, the United States Supreme Court

determined that it was unconstitutional to execute a"mentally retarded" individual. In

Lott, the Ohio Supreme Court set forth the standards and guidelines to be used in

Ohio to determine mental retardation:

In the absence of a statutory framework to determine mental

retardation, Ohio courts should observe the following substantive

standards and procedural guidelines in determining whether convicted

defendants facing the death penalty are mentally retarded. * * *

Clinical definitions of mental retardation, cited with approval in

Atkins, provide a standard for evaluating an individual's claim of mental

retardation. Id. at fn. 3, citing definitions from the American Association

of Mental Retardation and the American Psychiatric Association, These

definitions require (1) significantly sub-average intellectual functioning,.

(2) significant limitations in two or more adaptive skills, such as

communication, self-care, and self-direction, and (3) onset before the

age of 18. Most state statutes prohibiting the execution of the mentally

retarded require evidence that the individual has an IQ of 70 or below.

See Ky.Rev.Stat. 532.130 and 532.140; Neb.Rev:Stat. 28-105.01(2);

N.[Ul.Stat. 31-20A-2,1; N.C.Stat. 15A-2005; S.D. Codified Laws 23A-

27A-26.2; Tenn.Code 39-13-203(b); and Wash.Rev.Code 10,95.030(2).

While IQ tests are one of the many factors that need to be considered,

they alone are not sufficient to make a final determination on this ►ssue.

Murphy v. State, 54 P.3d at 568, 2002 OK CR 32, at ¶ 29. We hold that

there is a rebuttable presumption that a defendant is not mentally

retarded if his or her IQ is above 70.

Lott at ¶ 11-12.

f120} In this case, there are reports from two different doctors as to whether

Spivey qualifies for a diagnosis of "mental retardation" under the Lott decision, The

first doctor, Dr. Smalidon, concluded in 2004 that Spivey would not qualify for a

"mental retardation" diagnosis. Dr. Smaiidon indicated that Spivey's full scale IQ on

A - 000006

w6-

the Wechsler Adult Intelligence Scale - Third Edition, was 82, which falls within the

range that is typically referred to as "low average." He further concluded:

[A]lthough [Spivey] has a long history of learning/behavioral

problems, as wll as some striking cognitive limitations, he is not

mentally retarded as that term is defined in either the Diagnostic and

Statistical Manual of Mental Disorders-l\f-Test Revision (DSM-IV-TR) or

the American Association of Mental Retardation's Mental Retardation

Manual.

His IQ scores are simply too high. * * * Although it's possible, for

a variety of different reasons, for a test subject to obtain IQ estimates

that underestimate his/her actual intellectual potential, it's not possible -

at least under any scenario that I can imagine - for him/her to obtain

scores that overestimate his/her intellectual capabilities.

Dr. Smaftdon Report pgs. 15-16.

{121} Dr. Gazley's testing and diagnosis that occurred in September 2010

reached a similar conclusion. Dr. Gazley administered two IQ testss Spivey's full

scale IQ results were 84 and 87. He indicated that these scores are "well beyond the

range which would be considered necessary for a diagnosis of mental retardation or

developmental disability." Dr. Gazley Atkins/L.otf Report pg. 8. Akin to Dr.

Smalidon's opinion, Dr. Gazley also indicated that the scores on the IQ test are too

high to support a diagnosis of "mental retardation." Dr, Gazley Atkins/Lott Report pg.

9.

{122} The results of the IQ tests administered by Drs. SmalRdon and Gazley

were consistent with previous iQ determinations that were administered on Spivey

when he was younger. At the death penalty mitigation hearing in 1989, Mary

Stewart, who was Spivey's probation officer, testified that Spivey's mental intelligence

was borderline. Mitigation Hrg. Tr. 936. Dr. Eisenberg testified that Spivey's full

scale IQ result was 74, which placed him in the borderline range of intelligence.

Mitigation Hrg. Tr. 1072-1073; 1163-1164. He further explained that the highest

Spivey ever scored was 89 and the lowest he scored was in the high 50s. Mitigation

Hrg. Tr, 1073. Dr. Eisenberg's ultimate opinion was that in 1989, when Spivey was

A m 000007I

m7_

20 years old, he was functioning like a ten year old. Mitigation Hrg. Tr. 1073. There

is no indication in any of the evidence that was submitted at the mitigation hearing

that Spivey was ever diagnosed as being "mentally retarded."

The IQ scores establish a presumption that Spivey is not "mentally

retarded" as defined by Loztf. That said, it is acknowledged that the record is

replete with evidence that Spivey has had cognitive limitations during his entire

life. Dr. Smalidon explained:

Despite the fact that Mr. Spivey's IQ estimates do not fa{l within

the range that is usually associated with mental retardation, still certain

of his responses speak clearly to his cognitive limitations, for example

his limited fund of general information, his poor skills at abstract ^

concept formation, and his relatively impoverished vocabulary.

Dr. Smalldon Report pg. 12.

{123} There was testimony at the mitigation hearing and at the AtkinslLott

hearing that Spivey started having convulsions/seizures when he was one and that

continued through his teenage years. He was in and out of hospitals because of this.

There was also testimony from his mother and family members that intellectually he

developed more slowly than other kids, that he had learning problems, and that he

went to a school for children with learning and behavioral problems. He was

described as "childlike" by one cousin. tt was also stated that his hygiene skills were

not good, he could not keep a job, that he could not make change (in fact they would

not send him to the store because he would not come back with change and would

not get everything he was told to get), and although he was given chores, he would

4 not always complete them, All of this testimony discussed behaviors prior to the age

of 18.

{124} The testimony from his mother, family members, and the above

statement from Dr. Smalidon tends to show limitations in adaptive skills, such as

communication, self-care, and self-direction that were apparent before the age of 18.

These limitations, however, may not be classified as significant, as is required by Loff

to meet the definition of "mentally retarded." For instance, the testimony from the

family members concerning hygiene was that he would wear the same pants over

e4 a 000008

.,8_

and over again. Having a favorite pair of pants is not a hygiene issue and it was

explained that he would change the pants when he was instructed to do so.

Furthermore, Dr. Gazley offered the opinion that although adaptive skills could not be

tested in the death row prison setting, that Spivey probably did not have significant

limitations in his adaptive skills. He explained that in meeting with Spivey, he showed

an interest in current events, utilized humor, demonstrated an ability to maintain

focus and concentration on task, and showed an ability to read. Dr. Gazley

AtkinsILott Report pg. 9.

{125} Regardless, even if the above testimony did amount to significant

limitations of adaptive skills, the problem is that even with that testimony the trial

court's conclusion that Spivey could not overcome the presumption that he was not

"merital}y retarded" because of his IQ scores was not an abuse of discretion. As

aforementioned, both Dr. Smalldon and Dr. Gazley concluded that Spivey's IQ scores

were simply too high to ever qualify for a "mentally retarded" diagnosis. Dr. Gazley

explained this best during his testimony at the AtkinsILott hearing. He stated that

there is no specific number beyond a score of 70 which automatically disqualified a

person from a diagnosis of mental retardation, but as the scores go up, "as defined

by the Diagnostic and Statistical Manual, you fall well above what they consider a

cutoff." Atkir?slLott Hrg, Tr. 172p174. He explained that when a score approaches 80

or is in the 80s, that is a different categorization of intelligence. AtkinsILott Hrg. Tro

173. He also explained that IQ scores do not typically go up in later life:

But it seems difficult for me to imagine a person scoring low

enough to qualify for a mental retardation diagnosis prior to the age of

18.and then later in life being evaluated and getting scores in the low

average range. That seems unlikely because intelligence is such a

stable construct given the lack of other, you know, injury, illness,

trauma, those kinds of things.

AtkinsILott H rg. Tra 177.

{126} The conclusion that Spivey's IQ scores are too high to be ever be

considered "mentally retarded" as defined by Lott, is not inapposite to the language

used in Lott. It is logical to conclude that at some point a score will be too high to

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qualify the person for a mental retardation diagnosis, even though the person may

show significant limitations in adaptive skills that were apparent before the age of 18.

Doctors are in the best position to make this determination.

(127) Spivey cites this court to a 2006 First Appellate District case, State v.

Gumm, to support its position that the evidence submitted at the Atkins/Lott hearing

overcame the presumption that he was not "mentally retarded" and that the trial court

abused its discretion in not granting the postconviction petition. Gumm, however, is

distinguishable from the case at hand.

{1281 In Gumm, the testimony established that before the age of 18 Gumm

would use grunts and not words to communicate, that he could not read or write and

did not learn to tie his shoes until he was a teenager. State V. Gumm, 169 Ohio

App.3d 650, 2006-Ohio-6461, 864 N.E.2d 133, ^ 6(1st Dist.). There also was

testimony from multiple people that Gumm exhibited poor hygiene skills. ld. He

likewise did not drive and could not keep a job. Based on the poor adaptive skills

and the fact that they occurred before 18 years of age, the doctor concluded that

even though Gumm scored 70, 71, 73 and 79 on IQ tests, he was "mentally

retarded," Id. at ¶ 9.

{129} In the case at hand, there is testimony that Spivey communicated

through talking, although he did not begin to talk as early as his siblings. Also, there

is evidence that he can read and write minimally. As to the hygiene skills, as

discussed above, there is no indication other than continuing to wear the same

clothing that as a child he failed to clean himself, would not brush his teeth, or take

care of himself. As to driving, while Spivey may not have had a driver's license, we

know that he drove a car because the victim's car was stolen and driven to a bar by

Spivey. Although there was testimony that Spivey could not keep a job, testimony

established that he did work for six months at a corner. store, 10118/99 First

Postconviction Relief Hrg. pg. 39. Moreover, the doctor in Gumm concluded that

Gumm is "mentally retarded." Here, two doctors concluded that. Spivey is not

"mentally retarded," It is difficult to conclude that the trial court abused its discretion

when it agreed with the opinion of two doctors that Spivey's scores were too high to

ever qualify him for a!"mentally retarded" diagnosis.

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{¶30} Considering all the above, we cannot find that the trial court's decision

was an abuse of discretion. This assignment of error is meritiess.

Second A.ssianment of Error

{131} "The trial court erred in failing to find that the 70 lQ presumption violates

due process."

{132} In this assignment of error, Spivey admits that the Ohio Supreme Court

in Lott established a rebuttable presumption that a defendant with an IQ score of over

70 is not "mentally retarded". Spivey acknowledges that the government is allowed

to create and apply a presumption if the presumption is rational. Spivey contends

that this presumption is not rational and thus, violates due process. Therefore, he

asserts that the trial court should have granted his motion that requested it to reject

the presumption. The essence of his argument is that the Ohio Supreme Court

created an unconstitutional rebuttable presumption in Lott.

{133} As an inferior court, we are bound to follow the Ohio Supreme Court's

directives and have no authority to overturn them. State v. Loyed, 8th Dist. No.

83075, 2004--Ohio-3961, ¶ 33. Furthermore, "it is unlikely the Ohio Supreme Court

would direct inferior courts to violate the constitution." State v. Gibson, 10th Dist. No.

06AP-509, 2006-flhio-6899, ¶ 15 (Appellant raised argument that the Ohio Supreme

Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470

violated due process. Appellate court concluded that it had to follow F oster because

it is an inferior court and it did not believe the Court would direct inferior courts to

violate the constitution) citing State v. Hildreth, 9th Dist. No. 06CA8879, 2006-Ohio-

5058, ¶ 10 (same). See also State v. Whiteside, 10th Dist. No. 08AP-602, 2009-

Ohio-1893, ¶ 54 (same); State v. Fuller, 12th Dist. No. CA2006-11-047, 2008-Ohio-

20, % 28 (same). Therefore, we will not address Spivey's argument that the rebuttable

presumption is unconstitutional because it violates due process other than to

conclude that this court and the trial court are bound by the Ohio Supreme Court's

decision in Lott.

{134} For those reasons, we do not find that the trial court erred when it did

not reject the rebuttable presumption. This assignment of error lacks merit.

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Third Assiqnment of Error

{135} "The trial court erred in refusing to require the existence of mental

retardation to be determined by a jury."

(136) The argument presented in this assignment of error has already been

addressed and rejected by the Ohio Supreme Court, Lott atT 18 ("We believe that

these matters should be decided by the court and do not represent a jury question.");

State v, Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N,E,2d 263. In Were, the

Court specifically explained:

Lott holds that the decision whether or not a defendant is

mentally retarded "should be decided by the court and do[es] not

represent a jury question. In this regard, a trial court's ruling on mental

retardation should be conducted in a manner comparable to a ruling on

competency (i.e., the judge, not the jury, decides the issue)." Lott, 97

Ohio St.3d 303, 2002-0hio-6625, 779 N.E.2d 1011, at ¶ 18. Were

invokes Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348,

147 L.Ed.2d 435; Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428,

153 L.Ed.2d 556; Blakely v. Washington (2004), 542 U.S. 296, 124

S.Ct. 2531, 159 L.Ed.2d 403; and United States v. Booker (2005), 543

U.S. 220, 125 S.Ct. 738, 160 L.Ed,2d 621, in arguing that a jury must

determine whether a capital defendant is mentally retarded.

Based on the Apprendi line of cases, Were claims that the

determination of whether a capital defendant is mentally retarded was a

factor that eliminated the possibility of a death sentence, and thus must

be decided by the jury. The fact that a capital defendant is not mentally

retarded, however, is not an aggravating circumstance that increases a

defendant's punishment. Rather, the failure to find mental retardation

simply means that the capital defendant remains eligible to be

sentenced to death. Such a finding can affect a sentence only by

mitigating it. Other jurisdictions that have considered this argument

have reached similar conclusions. See State v, Grefi (2006), 212 Ariz.

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516, 526, 135 P.3d 696 ("Ring does not require that a jury find the

absence of mental retardation"); State v. Laney (2006), 367 S.C. 639,

647-649, 627 S.E.2d 726 (same); Pruitt v. State (Ind.2005), 834 N.E.2d

90, 112-113 (same); Howell v. State (Tenn.2004), 151 S.W.3d 450,

466-467 (mental retardation not required to be proven by the state nor

found by a jury); Head v. Hill (2003), 277 Ga. 255, 258, 587 S.E.2d 613

(Ring and Atkins do not require a jury trial on the issue of mental

retardation); Russell v. State (Miss.2003), 849 So.2d 95, 148 (Ring has

no application to Atkins determination). We conclude that the trial

court, not the jury, determines whether a capital defendant is mentally

retarded. Nothing in the Apprendl line of cases requires otherwise.

Were at ¶ 184-186.

{137} Therefore, considering that the argument made in this assignment of

error has already been rejected by the Ohio Supreme Court and that we are an

inferior court that is bound by the pronouncements of the Ohio Supreme Court, we

find no merit with the argument. See State v. Waddy, 10th Dist. No. 09AP-1197,

2011-Ohio-3154, ¶ 53 (Appellate court bound by Were's decision that mental

retardation is not jury question); State v. Lawson, 12th Dist. No. CA2007-12-116,

2008-Ohio-6066, ¶ 7-9 (same); State v. Hill, 177 Ohio App. 3d 171, 187, 2008-Ohio-

3509, 894 N.E.2d 108, ¶ 65-69 ( 11th. Dist.2008) (same). This assignment of error

lacks merit.

Fourth Assignment of Error

{138} "The trial court erred in failing to find Spivey incompetent to participate

in the proceedings and stay the proceedings until Spivey is competent.,"

{139} Under this assignment of error Spivey formulates the question to be

decided as whether the United States and Ohio Constitutions require a "capital

postconviction petitioner to be competent in order to meaningfully participate in

collateral proceedings?" He then asserts that the trial court erred in failing to find

Spivey incompetent and in failing to stay the proceedings until competence was

restored.

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{¶40} The Ohio Supreme Court has held that a competency determination

must be made before a capital defendant may waive his right to seek postconviction

review of his conviction and sentence. State v. Berry, 80 Ohio St.3d 371, 382-383,

696 N.E,2d 1097 (1997). Or, in other words, a capital defendant must be deemed

competent before he can forego further legal proceedings and submit to his

executiono fd. This rule of law however has not been extended to require a

determination as to whether a capital defendant who chooses to seek postconviction

review is competent to proceed. Previously, we have held that a trial court does not

abuse its discretion when it does not grant a capital defendant a competency

evaluation to determine if the capital defendant is competent to assist in the

postconviction proceedings. State v. Eley, 7th Dist. No. 99CA109, 2001 WL. 1497095

(Nov. 6, 2001). See also State v. Cassano, 5th Dist. 12CA55, 2013-Oh'io-1783, ¶ 39-

42. We explained:

In a post-conviction relief proceeding, the petitioner's life is at

stake. Thus, it is tempting for this court to grant Eley the requested

competency hearing considering the nature of this case. However, we

must exercise judicial restraint and acknowledge that a petitioner

receives no more rights than those granted by the statute. State v:

Calhoun, (1999), 86 Ohio St.3d 279.

Consequently, we cannot find that a post-conviction proceeding

should be treated as a quasi-criminal proceeding where the petitioner

must be competent to participate: Inasmuch as the post-conviction

statute does not provide for a competency hearing at this stage, and

guided by Berr),^ we conclude the trial court did not abuse its discretion

by refusing a competency hearing. We specifically hold a capital

defendant is neither statutorily nor constitutionally entitled to a

competency hearing as a part of his or her post-conviction proceedings.

Id.

{141} Appellant has not persuaded us that the reasoning and conclusions of

the foregoing cases are flawed and we decline to overrule our prior precedent.

Accordingly, other than a competency hearing to ensure that a capital defendant is

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competent to make the decision to forego postconviction proceedings and submit to

his execution, a capital defendant is not entitled to a competency evaluation and

hearing to determine whether he is competent to assist in the postconviction

proceedings.

{742} Regardless, even if we are incorrect in.our determination; there is no

basis to find error with the trial court's actions in this instance. As aforementioned, in

2008 Spivey requested a competency evaluation. The trial court granted that and

stayed the proceedings for purposes of allowing Spivey to be evaluated by Dr.

Gazley from the Forensic Center of Northeast Ohio. A competency hearing was held

on August 26, 2010. Following that hearing, the trial court concluded that Spivey was

competent. Therefore, since the trial court ordered a competency evaluation, stayed

the proceeding until competency could be determined, and held a competency

hearing, any constitutional right that may exist for a competency determination for a

capital defendant during postconviction proceedings was met. Any argument to the

contrary lacks merit.

{143} Spivey's stated assignment indicates that the trial court erred when it

found him to be competent. However, he does not present an argument in the brief

that the trial court's conclusion is not supported by the record. .-Thus; without an

argument to support his position, the position fails.

{144} That said, even if we consider their position, it is not supported by the

record because it does not demonstrate that the trial court abused its discretion in

finding Spivey competent. State v. Clark, 71 Ohio St.3d 466, 469; 644 N.E.2d 331

(1994) (review competency determination under an abuse of discretion standard of

review). The only information in the record that is reviewable regarding what the trial

court's decision was based on when it found Spivey to be competent is Dr. Gazley's

report on competency and the trial court's ruling. The transcript of the competency

hearing was not filed of record. The report indicates that Spivey is competent to

proceed with the postconviction proceedings. When asked questions about his death

sentence and the appeals process, Spivey indicated that he was on death row, that

death is his sentence and that an appeal could change whether he dies or not. Dr.

Gazley 06122/10 Competency Report pg. 4. The report also states that Spivey does

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not suffer symptoms of mental iilness or defect and therefore those conditions do not

diminish his ability to communicate with counsel regarding the facts of the case. Dr.

Gaziey 06/22/10 Competency Report pg. 6. Rather, it is the passage of time and the

fact that he may have been high or intoxicated at the time of the offenses that affects

his communication with counsel regarding the facts of the crime. Dr. Gazley

06/22/10 Competency Report pg. 6, 8. Given that this report supports the conclusion

that Spivey is competent and since there is no filed transcript of the competency

hearing, we presume the regularity of that proceeding. State v. Stewart, 7th Dist, No.

11MA195, 2013pOhio-753, ¶ 16 quoting In re Sublett, 169 Ohio St. 19, 20, 1.57

N.E:2d 324 (1959) ("all reasonable presumptions consistent with the record will be

indulged in favor of the validity of the judgment under review and of the regularity and

legality of the proceeding below"). Therefore, even if we review the competency

determination it must be upheld; the record supports the conclusion that Spivey was

competent. This assignment of error lacks merit.

Cor7clusion

{146} For the foregoing reasons, all assignments of error lack merit. The

judgment of the trial court denying the timely successive postconviction petition is

hereby affirmed.

Waite, J:, concurs.DeGenaro, P.J., concurs.

APPROVED:

JO PH J. Vl1KOVICH, J!UDGE

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STATE OF OHIO

MAHONING COUNTY

STATE OF OHIO,

SS:

RESPONDENT-APPELLEE,

V&

WARREN SPIVEY,

PETITION ER-APPELE ANT

SEVENTH DISTRICT

CASE NO. 12 MA 75

JUDGMENT EN'FRY

For the reasons stated in the Opinion rendered herein, the assignments of

erTor are,3 wt^^out merit and are overruled. It is the final judgment and order of this

Court that the jiudgment of the Common Pleas Court, Mahoning County, Ohio, is

affirmed, Costs taxed against a.ppellant,

` ^ } ..

31'

JUD..fE a•

11111^^^^ ^^ ^ ^ 1M 20'32 tdFA*Mx5 a

RV

Jva(ENT

IN THE COURT OF APPEALS G;= OHIO

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