State v. Deloney

[Cite as State v. Deloney, 2017-Ohio-9282.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150619
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: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 29, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Faulkner & Tepe, LLP, A. Norman Aubin and Wilkes R. Ellsworth, for Defendant-
Appellee.
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M OCK , Presiding Judge.
{¶1} On June 21, 2013, defendant-appellee John Deloney was indicted on
one count of aggravated murder with a death-penalty specification and one count of
aggravated robbery with a gun specification. The case proceeded for nearly two years
while the trial court attempted to determine if Deloney was eligible for the death
penalty because of the claim asserted by counsel that he was mentally retarded. The
trial court determined that subjecting Deloney to the death penalty would constitute
cruel and unusual punishment. See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242,
153 L. Ed. 2d 335 (2002); State v. Lott, 97 Ohio St. 3d 303, 2002-Ohio-6625, 779
N.E.2d 1011. The state now appeals, asserting one assignment of error.
{¶2} From the time that counsel for Deloney filed the motion pursuant to
Atkins and Lott claiming that Deloney was not eligible for the death penalty, Deloney
and his family refused to cooperate in the prosecution of the motion. In its entry, the
trial court spent several pages examining in detail the struggles of numerous
attorneys and medical professionals, and its own efforts, to convince Deloney to
submit to the required testing. In total, Deloney refused to submit to evaluations by
medical professionals during 12 different sessions, six with Dr. Carla Dreyer and six
with Dr. David Smith. Additionally, his family members refused to cooperate with
the experts in their evaluations Deloney’s refusal to comply became such an
obstruction that, at one point, Deloney was sent to Summit Behavioral Healthcare for
an extended period to determine his competence to stand trial. After doctors
determined that he was competent to stand trial, the trial court set a hearing on the
Atkins motion, deciding to use what evidence the parties had been able to muster
without his cooperation.
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The Hearing
{¶3} On August 17, 2015, the trial court conducted a hearing on Deloney’s
motion. Drs. Smith and Dreyer both submitted reports. In Smith’s report, he noted
that he had reviewed some school records, and reports prepared by other medical
professionals involved in the case. But, because of Deloney’s failure to cooperate
with the evaluation, Smith could not reach a conclusion about whether Deloney had
significant limitations in two or more adaptive skills. Smith wrote that
The clearest conclusion to be drawn is that under the current
circumstances I am unable to give a definitive appraisal about whether
Mr. John Deloney has Mental Retardation or Intellectual Disability at
this time. Thus, it is likely that the court will need to proceed
regarding his charges. Should Mr. Deloney be found guilty, then the
question might be better answered should he comply with
standardized testing, and if at least one other informant is found to
give reports of his adaptive functioning.
Dreyer, faced with the same obstacles, reached similar conclusions. She wrote that
As the Court is aware, multiple attempts have been made to formally
assess the defendant’s intellectual and adaptive functioning to
determine if he suffers from mental retardation (also known as an
intellectual disability). While he has not cooperated with various
assessments, including the undersigned’s current assessment attempt,
available records were reviewed in relationship to the referral
questions. A discussion of this information is being provided to the
Court to assist in determining if the defendant is mentally retarded.
However, given the defendant’s lack of cooperation with the evaluation
and the absence of current intelligence testing and collateral
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information from the family related to his childhood functioning, I am
unable to state, to a reasonable degree of psychological certainty, if the
defendant suffers from mental retardation that would allow the United
States Constitution to bar him from receiving the death penalty.
{¶4} In addition to the reports, both doctors testified at the hearing.
Smith, testifying for Deloney, said that he had explained to Deloney that he was there
to evaluate him to see if he qualified under Atkins as mentally retarded. He said that
Deloney seemed to understand, but refused to cooperate with him. Smith also
testified that the team at Summit Behavioral Healthcare had reported that, within
that structured environment, Deloney did not exhibit any deficient functioning,
either in navigating the rules or being able to occupy his time in different areas. But
Smith said that standing out in such a structured environment would have been
“pretty hard to do.”
{¶5} Smith also reviewed Deloney’s records from Cincinnati State
Technical and Community College, noting that he had not done well and had needed
developmental classes. But in discussing Deloney’s experience at Cincinnati State,
Smith admitted that he looked at only a single sheet of paper, and that it appeared to
be “a snapshot of someone who apparently crashed and burned.” But Smith also
admitted that he did not know what the requirements of the program were when he
made his evaluation of Deloney’s performance.
{¶6} Smith also reviewed Deloney’s employment records from Frisch’s and
Long John Silver’s. Deloney had worked at the two restaurants for a period of a few
months each. But the records from his employment there were very sparse,
containing no information about his job duties or his work performance. Smith
noted that the Frisch’s records did not give a reason for his termination, and that the
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Long John Silver’s records indicated only that he was let go because he was “not able
to keep up.” All he could say about Deloney’s work history was that
[w]ell, he was not able to keep up with the job expectations. They
looked like positions within the kitchen. They looked like manual
labor positions that many individuals with mild intellectual disability
can do quite well. And he was not keeping up was all it said. It didn’t
have an extensive rationale for it, or what was going on. But that
would show the possibility that, again, he’s not showing independent
functioning in a vocational setting.
But, on cross-examination, Smith further conceded that his failure to perform at
work could also have been because he was simply unwilling to do the work assigned.
{¶7} Smith spoke at length about the refusal of Deloney to cooperate with
the Atkins evaluations. Smith agreed with defense counsel that Deloney’s
unwillingness to cooperate “could mean that he’s not fully comprehending from a
conceptual basis what the charges are and what I guess more importantly the reason
his cooperation may be beneficial to him.” But he also noted that it “could be he’s
just being oppositional or he’s just trying to comply with other things that have been
told to him.” He said, “I do feel to some extend that there’s certainly the hypothesis
that him not understanding that, if you fail to cooperate, you have negative outcomes
potentially that could have been avoided.” When asked if someone who stigmatizes
the word “retarded” would try to fight being labeled as such, Smith agreed, stating,
“[t]hat’s not uncommon for them for sure * * * however, if someone would have the
sense that that’s not valid, they would probably go ahead and show that that’s not
true by proceeding with an appraisal.” He also speculated that “whatever motive he
might be coming at, I just got the impression that he felt that if he could come up
with some way to find a loophole, that became his biggest hope. That became, even
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up to the last moment when I thought at Summit he was going to comply, he still
held out as, that’s my ticket to freedom.”
{¶8} In his conclusions, however, Smith got no closer to being able to give
an opinion based on a reasonable degree of psychological certainty, saying only that
the supporting evidence “shows a strong suspicion that he does have intellectual
disabilities.” He said that “we don’t have sufficient evidence especially on the
standardized, I can’t definitely say” whether Deloney meets the Atkins criteria.
{¶9} Dreyer testified for the state. Dreyer’s opinions during her testimony
did not vary from her report. She related that Deloney had repeatedly but politely
declined to participate with her attempts to evaluate him. Dreyer said that the team
at Summit had completed an adaptive behavior assessment and concluded that
Deloney was in the average range. Dreyer also testified that Deloney had tested
highly for malingering. Smith had questioned the validity of the test, stating that
individuals with intellectual disabilities will oftentimes score incorrectly on those
tests. But Dreyer said that Deloney’s test results were so low that the results could
only have been the result of actively trying to miss as many questions as Deloney did.
Dreyer concluded that “[w]ith the information which I had available from the
transcripts and testing that was completed at Summit, it was my opinion that his
adaptive functioning was not consistent with that of individuals with intellectual
disability.” Dreyer further found that there was “[n]o indication that he has
significant limitations in adaptive functioning in at least two areas.”
The Trial Court’s Decision
{¶10} In the trial court’s lengthy decision, it began with a discussion of the
procedural history of the case, the reports and testimony of the doctors, and the
standards under Atkins and Lott. The court noted that Deloney must demonstrate,
by a preponderance of the evidence, “1) significant sub-average intellectual
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functioning, 2) significant limitations in two or more adaptive skills, and 3) onset
before the age 18.” The court then determined that the Deloney had demonstrated
significant subaverage intellectual functioning based on his low intelligence testing
scores when he was 13, and that it had begun before he had turned 18 years old.
{¶11} The court then went on to determine whether Deloney had
demonstrated significant limitations in two or more adaptive skills. The court noted
that such determinations are made through adaptive behavior tests using
“informants,” who are individuals who know the defendant and are able to report his
or her ability to perform a number of rudimentary life skills. But, “given the lack of
cooperation from family members, there is very little information regarding
Defendant’s current adaptive behavior skills.” The court then went on to say that
[w]hile lacking in current psychometric testing results, under the
DSM-5, current SIB-R results are not required for a finding of
intellectual disability. Moreover, the record is replete with evidence of
Defendant’s significant limitations in adaptive functioning. Adaptive
functioning testing prior to age 18 yielded a Composite score within
the range of intellectual disability. Likewise, there is substantial
evidence of the significant limitations in Defendant’s adaptive skills.
Defendant has little to no independent living skills as there is no
evidence that he has ever lived on his own. Defendant has a virtually
nonexistent employment record, failing to keep up with the demands
of even the most basic manual labor positions. His attempt to enroll in
college level courses at Cincinnati State Technical and Community
College was unsuccessful given his need for developmental classes.
Most telling is Defendant’s willingness to face the possible imposition
of a death sentence rather than be labeled as intellectually disabled.
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As noted by Smith, Defendant’s continued refusal to cooperate with
counsel and submit to psychological testing is indicative of
Defendant’s inability to think cognitively or to process information
necessary to make important decisions, demonstrating a deficit in the
area of communication. For these reasons, the Court finds sufficient
evidence demonstrating that Defendant is significantly limited in two
or more adaptive skills, namely communication, home living, self-care,
functional academics, and work.
The trial court then granted Deloney’s motion, concluding that “Defendant John
Deloney is excluded from facing a possible death sentence in this case.” The state
has appealed that determination.
The Atkins-Lott Test
{¶12} In June 2002, the United States Supreme Court ruled that executing a
mentally retarded offender violates the proscription against cruel and unusual
punishment contained in the Eighth Amendment to the United States Constitution.
See Atkins, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335. The Atkins court left to
the states the task of establishing procedures and substantive standards for
adjudicating an Atkins claim. Id. at 317. In December of that year, the Ohio
Supreme Court established procedures and substantive standards for adjudicating a
death-eligible defendant’s claim of mental retardation. See Lott, 97 Ohio St. 3d 303,
2002-Ohio-6625, 779 N.E.2d 1011.
{¶13} The Lott court determined that clinical definitions of mental
retardation require a showing 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. Id. at ¶ 12. These
criteria were taken from the clinical definitions of mental retardation provided in
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1992 by the American Association of Mental Retardation and in 2002 by the
American Psychiatric Association, and cited with approval by the United States
Supreme Court in Atkins. Id.
{¶14} The determination of whether a capital defendant is, by the Lott
court’s definition, mentally retarded presents a factual issue for the trial court. State
v. Gumm, 169 Ohio App. 3d 650, 2006-Ohio-6451, 864 N.E.2d 133, ¶ 25 (1st Dist.),
citing Lott at ¶ 12. And an appellate court may not reverse the trial court’s
determination if it was supported by reliable, credible evidence. Id., citing State v.
Were, 1st Dist. Hamilton No. C-030485, 2005-Ohio-376, ¶ 78. In making the
determination, the trial court “should rely on professional evaluations of [the
defendant’s] mental status, and consider expert testimony, appointing experts if
necessary, in deciding this matter.” Lott at ¶ 18.
Atkins-Lott and the Importance
of Expert Opinions
{¶15} It is not enough for a defendant to demonstrate significant
limitations in adaptive skills; the limitations must be tied to purported mental
retardation. The Tenth Appellate District addressed the argument that functioning
need not be tied to mental retardation in State v. Burke, 10th Dist. Franklin No.
04AP-1234, 2005-Ohio-7020, stating
Defendant suggests mental retardation has many different origins and
the inquiry is whether a real world impact results from the intellectual
impairment. Defendant states, “[t]he fact that there is a possibility of
an alternative source for one or more of the adaptive limitations does
not preclude a mental retardation diagnosis.” While defendant’s
suggestion is legitimate, it does not follow that every individual who
exhibits some limitations in adaptive skills is mentally retarded.
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Mental retardation, even mild retardation, is not a common
occurrence. Atkins, supra (noting only one to three percent of the
population is so limited as to be classified as such). Defendant still
must prove that significant adaptive limitations more likely than not
result from mental retardation. Atkins; Lott, supra.
Burke at ¶ 39.
{¶16} So, the issue is not merely the demonstration of limitation in
demonstrated adaptive skills, but that there is a causal connection between these
limitations and mental retardation. Causal connections must be established by
expert testimony, unless the question of cause and effect is so apparent as to be a
matter of common knowledge. See Darnell v. Eastman, 23 Ohio St. 2d 13, 261
N.E.2d 114 (1970), syllabus; Evid.R. 702. As with an injury and its causal
relationship to a physical disability, proving the causal connection between mental
retardation and significant limitations in adaptive skills “involves a scientific inquiry
and must be established by the opinion of medical witnesses competent to express
such opinion.” Terry v. Caputo, 115 Ohio St. 3d 351, 2007-Ohio-5023, 875 N.E.2d
72, ¶ 16.
{¶17} The determination as to whether an individual is mentally retarded,
and suffers from limitations caused by that condition, is not something within the
common knowledge of lay people. Smith testified in this case that you “can’t judge a
book by its cover.” He said that individuals with mild mental retardation “lose their
sense of label” and that they learn behaviors to mask or compensate for their
deficiencies, calling it the “cloak of confidence.” As the Ohio Supreme Court noted,
“they may look relatively normal in some areas and have certain significant
limitations in other areas.” State v. White, 118 Ohio St. 3d 12, 2008-Ohio-1623, 885
N.E.2d 905, ¶ 65. The White court concluded that the trial court had abused its
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discretion when it disregarded the uncontradicted opinions of two expert witnesses
who opined that White was mildly mentally retarded, relying in part on the lay
testimony of family and friends who did not think he suffered from deficiencies. See
id. at ¶ 73.
While the trial court is the trier of fact, it may not disregard credible
evidence and uncontradicted expert testimony in favor of either the
perceptions of lay witnesses or of the court’s own expectations of how a
mentally retarded person would behave. Doing so shows an arbitrary,
unreasonable attitude toward the evidence before the court and
constitutes an abuse of discretion.
Id.
{¶18} Without expert testimony to link perceived deficiencies in adaptive
skills, the trial court would be left with only “its own expectations of how a mentally
retarded person would behave.” In a case in which the Ohio Supreme Court
considered whether trial counsel was ineffective for failing to make an Atkins claim,
the court noted that while the record contained evidence that could indicate “his
limitations in adaptive skills,” neither of the two experts who examined him “found
that Frazier has significant limitations in adaptive functioning in at least two * * *
skill areas as Atkins requires.” (Quotations omitted.) (Emphasis added.) State v.
Frazier, 115 Ohio St. 3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 159. The court
thereby emphasized not just the importance of showing that a defendant fails to
perform certain functions, but also the requirement that an expert tie this failure to
an intellectual deficit.
{¶19} This conclusion is further supported by the line of jurisprudence in
Ohio that has held that, in spite of significant evidence of mental retardation
developed in a death-penalty trial during the penalty phase, a defendant is still
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entitled to the appointment of an expert in a postconviction proceeding premised on
Atkins and Lott. See State v. Hughbanks, 159 Ohio App. 3d 257, 2004-Ohio-6429,
823 N.E.2d 544 (1st Dist.); State v. Bays, 159 Ohio App. 3d 469, 2005-Ohio-47, 824
N.E.2d 167 (2d Dist.); State v. Waddy, 10th Dist. Franklin No. 05AP-566, 2005-
Ohio-2828; State v. Lorraine, 11th Dist. Trumbull No. 2003-T-0159, 2005-Ohio-
2529. Experts are necessary because
the penalty-phase evidence was offered to probe the issue of whether
his mental illness mitigated against the imposition of the death
penalty. It was not intended to probe the issue, posed by his Atkins
claim, of whether he fell within the range of mentally retarded
offenders whose execution the Eighth Amendment prohibited.
Hughbanks at ¶ 12. These experts were necessary even though “[the evidence
presented at] Hughbanks’s trial could inform the common pleas court’s
postconviction inquiry into his Atkins claim.” Id. If experts were not necessary to tie
deficits to alleged mental retardation, the trial court could simply examine the
psychological evidence presented at the penalty phase and reach its own conclusions
on the factors set forth in Lott.
No Linkage between Significant Limitations
in Adaptive Skills and Purported Mental Retardation
{¶20} The problem with the lack of an expert opinion to support his claim is
highlighted further when examining the trial court’s decision to grant Deloney’s
motion. The trial court listed four areas in which it found that Deloney had
demonstrated a significant limitation in adaptive skills. But none of these limitations
were tied through expert testimony to Deloney’s purported mental retardation.
{¶21} The trial court first stated that Deloney had shown significant
limitations in home-living and self-care because he had “little to no independent
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living skills as there is no evidence that he has ever lived alone.” But the lack of
evidence of engaging in a behavior is not the same as evidence of the inability to
engage in that behavior. The fact that he had lived the majority of his life either with
his parents or his girlfriend does not demonstrate that he was incapable of living on
his own, only that he had not actually done so. Neither expert testified that they had
seen evidence of his inability to live on his own and that this inability was tied to
mental retardation. Without such testimony, there was no competent, credible
evidence to support the trial court’s conclusion that Deloney had significant
limitations in the areas of home-living and self-care.
{¶22} The trial court next found that Deloney had shown significant
limitations in the area of work, noting that he had “a virtually nonexistent
employment record, failing to keep up with the demands of even the most basic
manual labor positions.” But, again, there was no expert testimony linking his
employment record to his purported mental retardation. The experts had very
limited documentation regarding Deloney’s employment history. They were given no
reason why his employment was terminated by Frisch’s. And as to his termination
from Long John Silver’s, the record only indicated that he was “not able to keep up.”
While Smith said that this could “show the possibility” that he was not showing
independent functioning in a vocational setting, he also conceded that it could have
shown that he was simply unwilling to do the work. Smith was unable to opine that
Deloney had failed at even this single instance of employment due to his purported
mental retardation, opining only that it would show “the possibility that, again, he’s
not showing independent functioning in a vocational setting.” The trial court lacked
competent, credible evidence to support its finding in this area.
{¶23} The third area of significant limitation that the trial court found was
in the area of functional academics, stating that “his attempt to enroll in college level
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courses at Cincinnati State Technical and Community College was unsuccessful given
his need for developmental classes.” Smith had reviewed only a one-page summary
of Deloney’s academic record at Cincinnati State. While he stated that it was “a
snapshot of someone who had apparently crashed and burned,” he had no further
insight into Deloney’s experience there, including such fundamental information as
the requirements of the program in which he had been enrolled. The record is
devoid of any explanation of why he did not do well in the courses, which could be
explained by any number of reasons not related to intellectual disability.
Additionally, nothing in this record supports the conclusion that the need to enroll in
“remedial courses” demonstrates a significant limitation in the area of functional
academics caused by mental retardation. According to the Ohio Department of
Higher Education, 26,334 of the 81,684 students enrolling in an Ohio public college
for the first time enrolled in remedial coursework. That represents 32 percent of
first-time attendees. Ohio Dept. of Higher Edn., 2016 Ohio Remediation Report,
https://www.ohiohighered.org/sites/ohiohighered.org/files/uploads/Link/2016
-Remediation-Report.PDF (accessed Oct. 26, 2017). This number would indicate
that such enrollment has explanations other than mental retardation. And without
an expert opinion to link them, the trial court lacked competent, credible evidence to
support its finding.
{¶24} Finally, the trial court concluded that Deloney had proven significant
limitations in the area of communication due to his continuing to refuse to cooperate
with his Atkins evaluations. The court claimed that Smith had opined that his
“continued refusal to cooperate with counsel and submit to psychological testing is
indicative of Defendant’s inability to think cognitively or to process information
necessary to make important decisions, demonstrating a deficit in the area of
communication.” But when asked whether his failure to cooperate “related back to
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his MR,” the best that Smith could say was that “it very likely could.” Smith
concluded that the information he had was “supporting evidence that shows a strong
suspicion that he does have an intellectual disability.” But this evidence, standing
alone, is not competent, credible evidence that Deloney was deficient in the area of
communication due to his mental retardation.
Deloney’s Failure to Cooperate
Main Reason for Failure of Proof
{¶25} His failure to produce proof to support his claim rests entirely with
Deloney himself. As early as March 2014, Deloney appeared before the trial court
and informed the court that he had no intention of cooperating either with counsel or
with the Atkins assessment. Defense counsel also indicated that the family members
had refused to speak to them or their mitigation specialist. This occurred repeatedly,
with Deloney not only refusing to cooperate with the experts, but also repeatedly
informing the trial court that he did not wish to pursue an Atkins claim.
{¶26} Deloney had the burden of proof to establish his claim under Atkins
and Lott by a preponderance of the evidence. Lott, 97 Ohio St. 3d 303, 2002-Ohio-
6625, 779 N.E.2d 1011, at ¶ 14. The “burden of proof” is a composite burden that
“encompasses two different aspects of proof: the burden of going forward with
evidence (or burden of production) and the burden of persuasion.” Chari v. Vore, 91
Ohio St. 3d 323, 326, 744 N.E.2d 763 (2001). In this context,
[t]he party having this burden on any given issue will lose on that
issue as a matter of law if evidence sufficient to make out a case for
the trier of fact is not produced. Similarly, if a party has the burden
of going forward with evidence of a fact and fails to do so, the judge
and the jury must assume the non-existence of the alleged fact.
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State v. Robinson, 47 Ohio St. 2d 103, 107, 351 N.E.2d 88 (1976). Because of the
refusal of Deloney and his family to cooperate with the expert witnesses in this case,
the experts were unable to form professional opinions as to whether he suffered from
significant deficits in two or more areas of adaptive functioning.
{¶27} Smith referenced his failure to cooperate as an indication that
Deloney might not understand the significance of what was happening and the
importance of his cooperation. But none of the experts were able to provide an
opinion that Deloney’s refusal to cooperate was a product of an intellectual disability.
And Deloney had repeatedly been found competent to stand trial. In 2013, Dr. Julia
King had found that he exhibited “a reasonably thorough factual understanding of
the legal proceedings against him,” that he was “capable of understanding the
charges against him, his plea options and the roles and functions of key courtroom
personnel,” and that he was capable of “comprehending instructions, evaluating legal
advice, and of making decisions in his own best interests.” These determinations
were confirmed by reviews by Drs. Charles Lee and Neal W. Dunsieth, conducted at
the same time. Dr. Annette Reynolds, who evaluated Deloney’s competence during
the period of his refusal to cooperate with the Atkins evaluations, also found him
competent, stating
Mr. Deloney understood the purpose and nature of the Atkins
evaluations and how it could affect his case. Despite previous refusals,
he said he had decided to participate in the evaluation on the advice of
his attorney. He provided understandable reasons related to
childhood abuse about why he would not want to undergo the
evaluation, but he also understood that an evaluation could help his
case, and he said he would try his best on the evaluation. This showed
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that he had a rational understanding of the Atkins evaluation and
could make an informed decision about whether to participate.
{¶28} The measurement of adaptive skills is traditionally completed by
conducting the Scales of Independent Behavior-Revised battery. White, 118 Ohio
St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, at ¶ 14. The test is administered to
people who know the subject, who provide information about the subject’s abilities.
Id. at ¶ 15. While it is preferred that informants be used, the subject may also be
used to perform the test. Id. at ¶ 53. While Smith testified that use of the test is not
the only way to make the determination, experts must have some source of data.
Without the cooperation of Deloney or his family in the assessment of his ability to
engage in the adaptive behavior to be evaluated, there was no practical way for the
experts to render a professional opinion upon which the trial court could base its
findings.
Trial Court’s Decision Not Supported
by Competent, Credible Evidence
{¶29} The trial court listed four areas in which it found no evidence of
Deloney’s adaptive functioning. But in none of these areas—communication, home-
living and self-care, education, or work—was there any testimony that Deloney’s
demonstrated failure to engage effectively in the areas was the result of an
intellectual disability. At most, the record demonstrated that Deloney had not
maintained gainful employment, had spent most of his life living with others rather
than on his own, had failed classes at Cincinnati State, and had refused to cooperate
with counsel and doctors in the process of preparing for the Atkins hearing. But
without connecting these facts to an intellectual disability, they do not represent
proof of significant limitations in adaptive functioning. Therefore, the decision of the
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trial court to grant Deloney’s motion was not supported by competent, credible
evidence.
Conclusion
{¶30} We hold that Deloney failed to meet his burden to show that he is
mentally retarded. We sustain the state’s sole assignment of error, reverse the
judgment of the trial court, and remand the cause to the trial court for further
proceedings consistent with law and this opinion.
Judgment reversed and cause remanded.
DETERS, J., concurs.
ZAYAS, J., concurs in judgment only.
ZAYAS, J., concurring in judgment only.
{¶31} I agree that the trial court erred in finding there was competent,
credible evidence to show that Deloney is mentally retarded pursuant to Atkins.
However, I would conclude that Deloney failed to prove that he currently exhibits
significant adaptive limitations.
{¶32} To succeed on an Atkins claim, Deloney was required to prove, by a
preponderance of the evidence, that he “(1) suffers from significantly subaverage
intellectual functioning, (2) experienced significant limitations in two or more
adaptive skills, such as communication, self-care, and self-direction, and (3)
manifested onset before the age of 18.” Frazier, 115 Ohio St. 3d 139, 2007-Ohio-
5048, 873 N.E.2d 1263, at ¶ 154, quoting Lott, 97 Ohio St. 3d 303, 2002-Ohio-6625,
779 N.E.2d 1011, at ¶ 12. In formulating this standard, the Ohio Supreme Court
concluded that the clinical definitions of mental retardation, cited with approval in
Atkins, and promulgated by the American Association on Mental Retardation
(“AAMR”) and the American Psychiatric Association (“APA”) govern a claim of
mental retardation. Lott at ¶ 12.
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{¶33} The AAMR defines mental retardation as “ ‘characterized by
significantly subaverage intellectual functioning, existing concurrently with related
limitations in two or more of the following applicable adaptive skill areas:
communication, self-care, home living, social skills, community use, self-direction,
health and safety, functional academics, leisure, and work. Mental retardation
manifests before age 18.’ ” Atkins, 536 U.S. 304, 308, 122 S. Ct. 2242, 153 L. Ed. 2d
335, at fn. 3, quoting Mental Retardation: Definition, Classification, and Systems of
Supports 5 (9th Ed.1992).
{¶34} The APA’s definition is similar: “ ‘The essential feature of Mental
Retardation is significantly subaverage general intellectual functioning * * * that is
accompanied by significant limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety * * *. The onset must occur before age 18 years * * *.
“Mild” mental retardation is typically used to describe people with an IQ level of 50
to 55 to approximately 70.’ ” Id., quoting Diagnostic and Statistical Manual of
Mental Disorders 41-43 (4th Ed.2000).
{¶35} Under both definitions, mental retardation is proven by a significantly
subaverage intellectual functioning existing concurrently with, or accompanied by
significant limitations in adaptive functioning, with the onset before the age of 18.
Thus under Lott, an Atkins claim requires the defendant to prove that the adaptive
limitations coexist with or are accompanied by the intellectual limitations.
{¶36} Accordingly, I cannot agree with the majority that there is an
additional requirement of expert testimony to tie or link the adaptive limitations to
mental retardation in all Atkins cases. The majority relies on State v. Burke, but in
that case, the defendant failed to prove subaverage intellectual functioning because
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his full scale IQ was 78. Burke, 10th Dist. Franklin No. 04AP-1234, 2005-Ohio-
7020, at ¶ 12. Moreover, the defendant’s expert agreed that the defendant’s
limitations in adaptive skills could have been caused by the defendant’s alcoholism
and significant antisocial traits. See id. at ¶ 34-37. In cases like Burke, where the
evidence demonstrated an alternative explanation for the adaptive limitations,
expert testimony may be necessary to link the adaptive limitations to mental
retardation.
{¶37} In this case, Deloney’s school records show that he was tested by the
school psychologist when he was 13 years old and obtained a full-scale IQ score of 63,
placing him within the mild range of mental retardation. As part of this evaluation,
the school psychologist also administered the Vineland Adaptive Behavior Scale
(“VABS”), which tested for adaptive limitations to ensure the low IQ test was a result
of mild mental retardation and not a result of poor test-taking skills. Deloney
obtained a score of 68 on the VABS, again placing him in the mild range of mental
retardation. Therefore, as Dr. Smith explained, Deloney exhibited concurrent
deficits in intellectual functioning and adaptive limitations prior to the age of 18.
{¶38} Following this evaluation, Deloney was given an Indivdualized
Education Plan and continued to qualify for special education up to age 19. School
records indicate that Deloney was classified with a mild mental disability and was
not able to participate in any general academic classes. He was also enrolled in a
“Life Skills” class in high school to address his adaptive deficiencies. While reviewing
Deloney’s educational progress, the school psychologist administered another IQ test
when he was 19 years old. This IQ score was consistent with the first and placed him
within the mild range of mental retardation.
{¶39} After reviewing Deloney’s school records, Smith testified to a
reasonable degree of psychological certainty that Deloney suffered from significantly
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subaverage intellectual functioning concurrent with significant adaptive limitations
prior to age 18. Smith further testified that Deloney’s IQ scores, placing him in the
range of mild mental retardation at the ages of 13 and 19, would not change
significantly throughout his adulthood absent a brain injury or illness.
{¶40} This record supports the trial court’s determination that Deloney
suffers from significantly subaverage intellectual functioning with an onset prior to
18. The record also supports the finding that Deloney experienced significant
adaptive limitations prior to the age of 18.
{¶41} However, the record does not support a finding that Deloney currently
experiences significant adaptive limitations. Although Dr. Smith strongly suspected
that Deloney was significantly limited in two or more adaptive skills, without
additional evidence of those limitations, Deloney failed to meet his burden of proof.
That additional evidence could have come from more extensive records of his work
history and educational history at Cincinnati State or from the cooperation of
Deloney, his family, or his girlfriend.
{¶42} Because Deloney was unable to prove that he is currently
experiencing significant adaptive limitations, I would sustain the assignment of
error, reverse the judgment of the trial court, and remand the cause to the trial court
for further proceedings.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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