State v. Deloney

[Cite as State v. Deloney, 2023-Ohio-1013.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220433
TRIAL NO. B-1303726
Plaintiff-Appellant, :
: O P I N I O N.
VS.
:
JOHN DELONEY, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 29, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Faulkner & Tepe, LLP, A. Norman Aubin and Richard G. Wendel II, for Defendant-
Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Charged with aggravated murder with death penalty specifications,
defendant-appellee John Deloney has sat in the Hamilton County Justice Center,
waiting for trial, for a decade. Following a hearing in 2022, the trial court determined
that Mr. Deloney is intellectually disabled and thus constitutionally ineligible for the
death penalty. The state appealed, generally asserting that the trial court somehow
erred in making this determination. But the state fails to address, or even mention,
any of the findings made by the trial court in its 13-page decision. For the reasons
explained below, the state’s appeal is meritless, and we affirm the trial court’s
judgment.
I.
{¶2} After a man was shot to death inside his own pizza restaurant, Mr.
Deloney was indicted in June 2013 for one count of aggravated murder with death
penalty and firearm specifications and one count of aggravated robbery with a firearm
specification. The facts underlying Mr. Deloney’s charges are not relevant to our
analysis, as the state appeals only the trial court’s decision to preclude the death
penalty in his case after finding him intellectually disabled.
{¶3} In December 2013, following the indictment, Mr. Deloney filed a
“Motion for Suggestion of Mental Retardation,” citing to a psychological evaluation in
which he obtained a full-scale IQ score of 63. In August 2015, the trial court conducted
an Atkins hearing on the motion during which both sides presented expert testimony
and submitted exhibits. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002). A central theme of this hearing was Mr. Deloney’s refusal to
cooperate with the experts or his attorneys. In September 2015, the trial court issued
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OHIO FIRST DISTRICT COURT OF APPEALS
a 22-page entry finding, “by a preponderance of the evidence, that Defendant suffers
from intellectual disability. Accordingly, * * * Defendant John Deloney is excluded
from facing a possible death sentence herein.”
{¶4} The state appealed that decision to this court, and in State v. Deloney,
1st Dist. Hamilton No. C-150619, 2017-Ohio-9282, this court reversed the trial court’s
decision and remanded the cause for further proceedings. We held that the trial court
erred in its determination of an intellectual disability under the governing case law of
Atkins, and State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011,
because Mr. Deloney failed to establish through expert testimony a sufficient causal
link between his intellectual disability and any significant adaptive limitations.
{¶5} A couple of years after our decision, in late 2019, the Ohio Supreme
Court issued its decision in State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140
N.E.3d 616, which restructured the framework for consideration of an intellectual
disability under Atkins in Ohio. Both sides agreed that Mr. Deloney’s potential
intellectual disability needed to be re-examined in light of the new legal standard, and
the trial court accordingly convened a second Atkins hearing in March 2022. The same
experts testified at this second hearing, and Mr. Deloney continued to refuse
psychological testing, cooperate with counsel, or cooperate with the experts. But the
experts had access to more details about Mr. Deloney’s employment history, a
deposition taken of his partner, and further information regarding his adulthood
academic and intellectual performance, including his records from Cincinnati State
Technical and Community College, indicating that he needed to take certain
developmental classes before qualifying for admission (which he never took). The
experts also had the opportunity to interact with Mr. Deloney over a greater time
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OHIO FIRST DISTRICT COURT OF APPEALS
period and accounted for the changed legal standard in rendering their analyses at this
second hearing. In August 2022, the trial court found that Mr. Deloney satisfied the
new standard set forth in Ford, thus rendering him ineligible for the death penalty.
{¶6} In October 2022, this court granted the state leave to appeal. In its sole
assignment of error, the state asserts that the trial court erred as a matter of law in
finding Mr. Deloney to be intellectually disabled.
II.
{¶7} We must begin our analysis by noting that the state fails, anywhere in
its brief, to identify any error committed by the trial court. In Ford, the Ohio Supreme
Court required trial courts to make express findings reflective of their analyses. Ford
at ¶ 100 (“The trial court shall make written findings and set forth its rationale for
finding the defendant intellectually disabled or not intellectually disabled.”). The
reason for this directive is to facilitate appellate review in these very serious cases,
where a person’s life hangs in the balance.
{¶8} The trial court here followed that mandate, issuing 13 pages of detailed
findings assessing the evidentiary record. The state does not address any of those
findings in its appellate brief, nor does it address the relevant standard of review,
violating various provisions of App.R. 16 and 1st Dist. Loc.R. 16.1 See App.R. 16(A)(3);
1st Dist. Loc.R. 16.1(A)(4)(c)-(d).
1As best we can tell, the state merely cut and pasted the analysis it submitted to the trial court for
a post-hearing (pre-decision) brief into the analysis section of its brief on appeal, which would
explain the absence of references to the trial court’s decision, the failure to discuss the standard of
review, and the like.
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{¶9} We accordingly begin where the state’s brief should have, with the
standard of review. It is well-established that “[t]he trial court’s decision on a
postconviction Atkins claim should be upheld absent an abuse of discretion.” State v.
Williams, 2021-Ohio-241, 167 N.E.3d 527, ¶ 33 (11th Dist.), citing State v. White, 118
Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 45. Because pretrial and
postconviction Atkins claims are governed by the same authorities, we see no reason
to depart from the standard of review for postconviction Atkins claims when reviewing
a pretrial claim. And upon being questioned at oral argument, the state agreed with
this position. We therefore review a trial court’s decision on a pretrial Atkins claim for
an abuse of discretion. And we will not overturn a trial court’s findings that are
supported by some competent, credible evidence. See Williams at ¶ 33 (“A reviewing
court should not overrule the trial court’s finding [on an Atkins claim] that is
supported by competent and credible evidence.”); State v. Hill, 1st Dist. Hamilton No.
C-100554, 2011-Ohio-3920, ¶ 29 (“The determination that a defendant is not * * *
mentally retarded will not be disturbed on appeal if it was supported by some
competent and credible evidence.”); Deloney, 1st Dist. Hamilton No. C-150619, 2017-
Ohio-9282, at ¶ 29 (Where the court reversed the trial court’s decision to grant
defendant’s Atkins motion because it was “not supported by competent, credible
evidence.”).
{¶10} In Atkins, 536 U.S. at 321, 122 S.Ct. 2242, 153 L.Ed.2d 335, the United
States Supreme Court held that the execution of intellectually disabled individuals
violates the ban on cruel and unusual punishment found in the Eighth Amendment to
the United States Constitution. The Court provided some guidance for determining
whether an individual suffers from an intellectual disability, id. at 308, fn. 3, but
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OHIO FIRST DISTRICT COURT OF APPEALS
ultimately it designated “the task of developing appropriate ways to enforce” the
Atkins holding to the states. Id. at 317.
{¶11} Mr. Deloney’s first Atkins hearing, in 2015, was governed by the
standard established by the Ohio Supreme Court in Lott, 97 Ohio St.3d 303, 2002-
Ohio-6625, 779 N.E.2d 1011. Lott relied on the guidance provided by Atkins, and
required a finding of: “(1) significantly subaverage 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.” (Emphasis added.) Id. at
¶ 12. Lott also held that there is a “rebuttable presumption” that a defendant with an
IQ score above 70 is not intellectually disabled. Id.
{¶12} In 2019, the Ohio Supreme Court in Ford, 158 Ohio St.3d 139, 2019-
Ohio-4539, 140 N.E.3d 616, at ¶ 100, rejected this approach as outdated, overruling
Lott and setting forth a new standard for determining whether a defendant suffers
from an intellectual disability. The Ford test requires a court to consider three core
elements: “(1) intellectual-functioning deficits (indicated by an IQ score
approximately two standard deviations below the mean—i.e., a score of roughly 70 or
lower when adjusted for the standard error of measurement[)], (2) significant adaptive
deficits in any of the three adaptive-skill sets (conceptual, social, and practical), and
(3) the onset of these deficits while defendant was a minor.” Id. In making an
intellectual disability determination, “[t]he trial court may consider expert testimony
and * * * shall make written findings and set forth its rationale for finding the
defendant intellectually disabled or not intellectually disabled.” Id. At the outset, we
note that the trial court began its analysis by explaining that defense expert Dr. Smith
testified to a reasonable degree of psychological certainty that Mr. Deloney is
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OHIO FIRST DISTRICT COURT OF APPEALS
intellectually disabled under Ford, and that prosecution expert Dr. Dreyer was unable
to conclude whether he suffered from an intellectual disability due to his refusal to
cooperate.
{¶13} At the beginning of the March 2022 Atkins hearing, the state asserted
that it contested all three of the Ford criteria. But as the hearing unfolded, it became
apparent that the state’s only concrete arguments aimed at the second prong. We will
nevertheless discuss all three prongs.
{¶14} Under the first prong of the Ford test, which considers whether the
defendant suffers from intellectual-functioning deficits (indicated by an IQ score
approximately two standard deviations below the mean; or, in other words, a score of
roughly 70 or lower when adjusted for the standard error of measurement), the trial
court concluded that Mr. Deloney’s childhood standardized intelligence tests satisfied
this requirement. He achieved a composite IQ score of 63 and a Vineland composite
score of 68, confirmed by both Dr. Dreyer and Dr. Smith. His low academic
achievement scores remained consistent upon subsequent evaluation at 19 years old.
The trial court noted that both Dr. Dreyer and Dr. Smith testified, consistent with the
records before the court, that Mr. Deloney was assessed to have extremely low IQ
scores. The trial court also found, based on the report of a second defense expert, Dr.
Schmidtgoessling, and the testimony of Dr. Smith, that the administered tests were
valid and reliable. And the trial court relied on the consensus among the testing
psychologists that IQ scores remain stable throughout an individual’s life from
childhood into adulthood. Therefore, it does not appear disputed that Mr. Deloney
satisfied the first part of the Ford test.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Next, with respect to the second prong of the Ford calculus, which
requires the court to find that the defendant demonstrates significant deficits in one
of three adaptive skillsets (intellectual, social, or practical), the trial court concluded
that Mr. Deloney demonstrated significant adaptive deficits in all three categories.
The court emphasized Mr. Deloney’s 1998 Vineland ABS, which is a standardized test
that specifically assesses for adaptive deficits. The trial court found that Mr. Deloney’s
extremely low composite score of 68 demonstrates his significant deficits with respect
to various adaptive skillsets. And the trial court referenced Dr. Smith’s testimony that
Mr. Deloney suffered significant adaptive deficits in all three areas: social,
intellectual/conceptual, and practical.
{¶16} With respect to the social realm, the trial court viewed Mr. Deloney’s
failure to cooperate with his attorneys and with the experts as a reflection of his
significant deficits in this domain. And the court observed that Mr. Deloney’s
paranoia—demonstrated by his motions for new counsel and accusations against his
attorneys and the court—reflects significant social deficits in adaptive functioning.
The trial court had ample opportunity to observe Mr. Deloney’s conduct in this respect
over the course of several hearings and court appearances.
{¶17} In determining whether Mr. Deloney suffered from a significant deficit
in the intellectual or conceptual domain, the trial court noted that his syntax and
semantics are stunted, and his academic records indicate that he received low
academic achievement scores and otherwise struggled throughout his academic
career: “Deloney’s academic record indicates low academic achievement scores and an
overall record of academic struggle.” The court found that Mr. Deloney reads and
writes at about a fifth or sixth grade level. And his placement tests at Cincinnati State,
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OHIO FIRST DISTRICT COURT OF APPEALS
administered when he was 25 years old, confirm significant ongoing intellectual
deficits.
{¶18} As to the practical domain, the trial court found that Mr. Deloney never
held any stable job, as he was fired from the only two places he ever worked—at
Frisch’s and Long John Silver’s—after between one and three months. The court
emphasized that Mr. Deloney was fired from Long John Silver’s for “failure to
perform.” The trial court also made findings that Mr. Deloney has never had a driver’s
license, and his partner paid his bills, purchased items for the household, and filed
taxes for the household. He also gave his partner power of attorney to manage his
finances. Accordingly, copious evidence supported the trial court’s determination that
Mr. Deloney suffers from significant adaptive deficits in all three domains, satisfying
the second prong of Ford.
{¶19} Finally, when analyzing the third prong of the Ford test—whether the
onset of these deficits occurred while the defendant was a minor—the trial court found
that Mr. Deloney demonstrated significant subaverage intellectual functioning before
he reached the age of 18. To reach this conclusion, the trial court referenced Mr.
Deloney’s childhood IQ test results—the validity and reliability of which were
confirmed by Dr. Smith and Dr. Schmidtgoessling—as well as the continued academic
intervention throughout his schooling. The court noted that, in Dr.
Schmidtgoessling’s report, she also concluded that Mr. Deloney suffered from a “mild
intellectual disability” before the age of 18. Moreover, the court found that Mr.
Deloney was qualified for special education classes throughout high school and was
denied admission to Cincinnati State until he completed certain developmental
courses (which, as mentioned earlier, he never took). And the court relied on Dr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Smith’s testimony that his review of Mr. Deloney’s records and history established the
necessary basis to find that he exhibited significant adaptive deficits prior to age 18. It
is clear that sufficient evidence supported the trial court’s finding that the onset of Mr.
Deloney’s intellectual deficits occurred when he was a minor.
{¶20} Against this backdrop, the state’s brief does not identify any factual
findings by the trial court that are not supported by competent, credible evidence. The
state’s assignment of error indicates that the “trial court erred as a matter of law by
finding Deloney intellectually disabled.” But its brief contains no argument or analysis
to explain how any error “as a matter of law” occurred. Indeed, the trial court here
applied the correct legal standard from Ford and analyzed the facts in light of that
standard.
{¶21} The requirements for precision in identifying and explaining arguments
on appeal exist for a reason—a party must explain to us why it believes the trial court
erred in order for us to conduct the appropriate analysis. And these rules assume even
greater significance in cases like this one, where the Supreme Court mandated that a
trial court make particularized findings. Nor is this a case where we can glean the
state’s position from the substance of its brief. Since it does not address any of the
trial court’s findings, we do not understand how the state believes the trial court
abused its discretion or which of the findings it believes lacked evidentiary support.
And we do not think it our task to conjure up arguments that the state fails to identify:
“An appellate court is not obliged to construct or develop arguments to support [an]
assignment of error and ‘will not guess at undeveloped claims on appeal.’ ” State v.
Debose, 8th Dist. Cuyahoga No. 109531, 2022-Ohio-837, ¶ 16, quoting State v. Jacinto,
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OHIO FIRST DISTRICT COURT OF APPEALS
2020-Ohio-3722, 155 N.E.3d 1056, ¶ 56 (8th Dist.), and State v. Piatt, 2020-Ohio-
1177, 153 N.E.3d 573, ¶ 39 (9th Dist.).
{¶22} Rather than identifying errors on the part of the trial court, the
substance of the state’s brief attacks the credibility and reliability of Dr. Smith and
advocates instead for reliance on the testimony of Dr. Dreyer. The state expresses
concern that Dr. Smith, unlike Dr. Dreyer, is not a forensic psychologist, and that he
changed his opinion regarding whether Mr. Deloney is intellectually disabled since the
first Atkins hearing. But the trial court conducted an exhaustive review of the record,
and based its findings on a number of facts, including school records, intelligence tests,
basic life skills, the testimony and reports of three experts, and interactions with
counsel, experts, and the court. Dr. Smith’s testimony was just one of many
evidentiary considerations discussed by the trial court in rendering its decision, and
notably, his testimony comported with much of the other evidence in the record. The
trial court also acknowledged Dr. Dreyer’s concessions in support of its conclusion that
Mr. Deloney is intellectually disabled—that Mr. Deloney had educational deficits as a
child, was consistently tested as below average, and tested in the “extremely low range”
on IQ tests and the Vineland Adaptive test. Although the trial court noted that Dr.
Dreyer was “unable to express an opinion that Deloney met the requirements of Ford,”
the court did acknowledge that Dr. Dreyer’s “testimony and reports [aided] the Court
in its understanding of intellectual disability and the difference between a
psychological conclusion and a court’s finding of intellectual disability.” Thus, the
record reflects that the trial court utilized the testimony of both experts and does not
reveal any sort of unwarranted reliance on Dr. Smith’s conclusions.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Moreover, Dr. Smith’s qualifications as a psychologist are not contested
by the state, and his most recent opinion can be attributed to years of additional
interactions with Mr. Deloney as well as the promulgation of the Ford standard in the
interim between the two Atkins hearings. As explained in great detail above, the trial
court made the proper and thorough findings under the applicable law based on a
variety of sources, and its choice to credit Dr. Smith’s testimony fell well within its
discretion. See Pallone v. Pallone, 10th Dist. Franklin No. 17AP-409, 2017-Ohio-9324,
¶ 26, quoting Jackson v. Jackson, 5th Dist. Guernsey No. 03-CA-17, 2004-Ohio-816,
¶ 21, and citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967) (“ ‘[The]
court is free to accept or reject, in whole or in part, the testimony or opinions of any
witness, whether accepted as an expert or not and determine the weight and credibility
to be given thereto.’ ”).
{¶24} Based on our review of the record, the trial court applied the correct law
and its findings appear to be both within the exercise of its discretion and supported
by the evidentiary record. We certainly have no basis for concluding otherwise in light
of the state’s failure to point out any deficiencies in the trial court’s findings to us.
{¶25} During oral argument, the state requested that we create a new legal
standard requiring courts to find that any defendant who refuses to cooperate in
connection with Atkins hearing proceedings is not intellectually disabled. But it never
developed this argument in its brief, nor did it provide any case law to support it. The
bright-line rule it advocates strikes us as incompatible with both Ford and earlier
Supreme Court authority. See State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762,
890 N.E.2d 263, ¶ 163-180 (considering, on the merits, the Atkins claim of an
“uncooperative” defendant who alleged that he suffered from an intellectual
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OHIO FIRST DISTRICT COURT OF APPEALS
disability). The Ford test requires the trial court to make findings, and in many cases,
if a defendant refuses to cooperate, that might doom his effort to avail himself of Ford.
Given the state’s failure to develop this argument in its brief and its failure to identify
any authority supporting it, we reject the invitation to create a novel rule of law from
whole cloth.
* * *
{¶26} In light of the foregoing analysis, we overrule the state’s sole assignment
of error and affirm the trial court’s judgment.
Judgment affirmed.
CROUSE, P.J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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