[Cite as State v. Barker,
2025-Ohio-5251.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240408
TRIAL NO. B-1107595-C
Plaintiff-Appellant, :
vs. :
TYSHAWN BARKER, : JUDGMENT ENTRY
Defendant-Appellee. :
This cause was heard upon the appeal, the record, the briefs, and arguments.
For the reasons set forth in the Opinion filed this date, the judgment of the trial
court is affirmed in part and reversed in part, and the cause is remanded.
Further, the court holds that there were reasonable grounds for this appeal,
allows no penalty, and orders that costs be taxed 50% to appellant and 50% to appellee.
The court further orders that (1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial
court for execution under App.R. 27.
To the clerk:
Enter upon the journal of the court on 11/21/2025 per order of the court.
By:_______________________
Administrative Judge
[Cite as State v. Barker, 2025-Ohio-5251.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240408
TRIAL NO. B-1107595-C
Plaintiff-Appellant, :
vs. : OPINION
TYSHAWN BARKER, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: November 21, 2025
Connie Pillich, Hamilton County Prosecuting Attorney, and Ronald W. Springman,
Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Arenstein & Gallagher, Elizabeth Conkin and William R. Gallagher, for Defendant-Appellee.
[Cite as State v. Barker, 2025-Ohio-5251.]
MOORE, Judge.
{¶1} Plaintiff-appellant, the State of Ohio, appeals the judgment of the
Hamilton County Court of Common Pleas granting defendant-appellee Tyshawn
Barker’s petition for postconviction relief. In his petition, Barker sought to vacate his
convictions for two counts of aggravated murder, three counts of tampering with
evidence, and two counts of aggravated robbery because his trial counsel had been
constitutionally ineffective regarding Barker’s motion to suppress his statements to
police. While we hold that the lower court did not abuse its discretion in determining
that Barker’s trial counsel’s performance was deficient, the common pleas court failed
to engage in the appropriate analysis to determine whether Barker had been
prejudiced by counsel’s deficient performance. We also hold that the common pleas
court did not abuse its discretion by vacating the dismissal of Barker’s January 2014
petition. Accordingly, we reverse the trial court’s judgment in part and remand the
cause for the common pleas court to apply the appropriate prejudice analysis. The
lower court’s judgment is affirmed in all other respects.
I. Factual and Procedural History
{¶2} This is the fourth time that this case has been before this court. We
briefly summarized the details of the offenses in a previous decision as follows:
Mr. Barker, Dequantez Nixon, Brendan Washington and Carrielle Conn
went to an apartment intending to kill one man but murdered a different
man who had the bad luck to answer the door. Ms. Conn was the shooter
in the first murder. Worried that Conn might snitch, her three
companions lured her into the woods and killed her two days later.
State v. Barker, 2016-Ohio-7059, ¶ 3 (1st Dist.).
{¶3} Shortly before midnight, the day after Conn was murdered, 15-year-old
OHIO FIRST DISTRICT COURT OF APPEALS
Barker was questioned about the shootings at police headquarters by Cincinnati Police
Detectives Kurt Ballman and Terry McGuffey. Another suspect in the shootings,
Nixon, had implicated Barker during questioning earlier in the evening, and Barker
was found at Nixon’s apartment when police were executing a search warrant.
{¶4} The detectives began Barker’s questioning by asking Barker’s name,
address, phone number, age, mother’s name, and where he went to school, whether he
could read and write, and whether he had consumed any alcohol or drugs. Detective
Ballman then read the Miranda warnings to Barker—that he had the right to remain
silent, that anything he said could be used as evidence against him, and that he had
the right to the presence of an attorney, either retained or appointed if he could not
afford one. Barker told the detectives that he understood his rights, but when asked if
he had heard of Miranda warnings before, he replied that this was his “first time.”
When questioned further, Barker stated that he had previously heard Miranda
warnings read on television.
{¶5} The detectives then continued their interrogation without asking Barker
whether he wanted to continue or speak with an attorney, and Barker made statements
implicating himself in the shootings.
{¶6} The next day, the two detectives visited Barker at the juvenile detention
facility. After Detective Ballman informed Barker that he was going to read the
Miranda warnings to him again, Barker stated, “I’ve seen an attorney – whatever that
is.” This time Barker was asked whether he wanted to continue speaking with police
or talk to his attorney, and Barker chose to continue. He then identified Washington
from a picture and the interview ended.
A. Juvenile Court
{¶7} Barker was eventually charged in juvenile court with various offenses
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OHIO FIRST DISTRICT COURT OF APPEALS
related to the shootings. After the juvenile court determined that there was probable
cause that Barker had participated in the charged offenses, Barker was evaluated by
Dr. Paul Deardorff, a court-appointed psychologist, who offered an opinion on
whether Barker was amenable to rehabilitation in the juvenile court system. In his
report, he stated that there were several factors that indicated that Barker should not
be bound over to adult court, including:
his age, lack of prior history of involvement with the mental health
system, minimal involvement with the Juvenile Court system, minimal
attempts to treat or rehabilitate, a strong relationship with his mother,
exposure to abuse, the deaths of many relatives and one friend, his
special education background which includes an IEP, an apparent
history of ridicule, and his limited intellect.
{¶8} Dr. Deardorff described Barker’s intellect as borderline or “mildly
mentally retarded.” Despite the factors indicating that Barker should not be
transferred to adult court, Dr. Deardorff explained in the report that he thought the
court needed to balance those factors with the “very serious nature” of the charges.
{¶9} Following the amenability hearing, at which Dr. Deardorff did not
testify but his report was considered, the juvenile court determined that Barker was
not amenable to rehabilitation in the juvenile court system and transferred his case to
adult court.
B. Adult-Court Proceedings
{¶10} After being transferred to adult court, Barker and his codefendants,
Nixon and Washington, were each charged with four counts of aggravated murder, two
counts of conspiracy, two counts of aggravated robbery, and three counts of tampering
with evidence, all with gun and witness specifications. Barker filed a motion to
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OHIO FIRST DISTRICT COURT OF APPEALS
suppress his statements to police, arguing that he did not knowingly, intelligently, or
voluntarily waive his Miranda rights. Nixon and Washington also filed motions to
suppress their individual statements, and a joint hearing was held on the motions. At
the hearing, Detective Ballman testified as to how each defendant was developed as a
suspect. On cross-examination by Barker’s counsel, Detective Ballman conceded he
did not ask Barker detailed questions about his intellect, such as whether he was in
any specialized educational program, but testified that he had no reason to believe that
Barker did not understand the questions or the ongoing conversation during Barker’s
police interview. Video and audio recordings of the police interrogation of each suspect
were admitted into evidence.
{¶11} A few days after the hearing, the trial court denied the motions to
suppress from the bench, but the entry denying Barker’s motion was never entered on
the docket. Additionally, the entry setting Barker’s motion for a hearing was also not
docketed.
{¶12} In February 2013, Barker entered into an agreement with the State
where the State agreed to dismiss the two conspiracy counts and several of the
specifications to other counts in exchange for Barker entering a no-contest plea to each
of the remaining offenses. At the plea hearing, the State read into the record the
offenses against Barker as set forth in the indictment. Barker pled no-contest to each
offense and was found guilty. The following month, a joint sentencing hearing was
held for all three defendants. Barker was sentenced to an aggregate prison term of 25
years to life.
C. Direct Appeal
{¶13} We affirmed Barker’s convictions on direct appeal, overruling
assignments of error challenging (1) his transfer to adult court, (2) the denial of his
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motion to suppress, and (3) counsel’s ineffectiveness at the amenability and motion-
to-suppress hearings. State v. Barker, 2014-Ohio-3245 (1st Dist.). We briefly note that
Barker’s assignment of error as to his motion to suppress was raised after Barker’s
appellate counsel sought leave of court to raise an additional assignment of error,
explaining that she had been unaware that a suppression hearing had occurred and
that Barker’s suppression motion had been denied because there were no entries on
the docket.
{¶14} The Ohio Supreme Court reversed our judgment in Barker’s direct
appeal because, in determining that Barker had knowingly waived his Miranda rights,
we referenced an Ohio statute, R.C. 2933.81(B), which creates a presumption that
electronically-recorded statements by suspects of certain crimes are voluntary. The
Court held that that statute was unconstitutional as applied to juveniles and remanded
the case to us to consider the Miranda waiver. State v. Barker, 2016-Ohio-2708.
{¶15} On remand, we considered the totality of the circumstances
surrounding Barker’s waiver of his Miranda rights, including his age, and held that he
had voluntarily, intelligently, and knowingly waived his Miranda rights. State v.
Barker, 2016-Ohio-7059 (1st Dist.), appeal not accepted for review,
2017-Ohio-4038.
In reaching our holding, we also noted, with respect to Barker’s argument that he was
unable to understand his rights because of his low intelligence, that Dr. Deardorff’s
amenability report, which noted Barker’s low intelligence, was not introduced into
evidence at the suppression hearing, but even if it had been, “nothing in the report
indicated that Barker was incapable of understanding the Miranda rights as they were
read to him.” Id. ¶ 22.
D. Postconviction Proceedings
{¶16} In January 2014, while his direct appeal was pending, Barker filed a
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OHIO FIRST DISTRICT COURT OF APPEALS
petition to vacate or set aside his convictions under R.C. 2953.21. In his petition,
Barker asserted that his trial counsel was ineffective for failing “to investigate and
prepare a case to establish that [Barker] was amenable to rehabilitation in the juvenile
justice system.” Specifically, Barker claimed that his trial counsel should have called
Dr. Deardorff as a witness at the amenability hearing and should have had Barker
evaluated by defense’s own expert to show that his age and cognitive impairment
limited his culpability. Within the petition, Barker indicated that he intended to
amend the petition with the report and affidavit of an independent forensic
psychologist and was in the process of securing those services.
{¶17} Four months later, Barker filed a pleading entitled “Information to
Court Regarding Amended Petition to Vacate or Set Aside Conviction under R.C.
2953.21” (“the Notice”). In the Notice, postconviction counsel informed the court that
Dr. Daniel L. Davis, board certified in forensic psychology and specializing in
juveniles, had evaluated and prepared a report regarding Barker’s amenability to
rehabilitation in juvenile court. However, postconviction counsel explained that she
had just recently discovered that a motion to suppress had been filed (and denied
following a hearing) in Barker’s case. Counsel explained that because an entry denying
the motion to suppress had never been docketed, she was unaware of those
proceedings. Consequently, postconviction counsel notified the court that Dr. Davis
was now also going to evaluate Barker as to whether he had the ability to effectively
waive his Miranda rights given his low-cognitive functioning. Postconviction counsel
stated that the amended petition would be filed, which would include an additional
ineffective-assistance-of-counsel claim related to Barker’s motion to suppress his
statements, after both reports had been received from Dr. Davis.
{¶18} Two weeks later, on May 30, 2014, the State filed a memorandum in
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OHIO FIRST DISTRICT COURT OF APPEALS
opposition to Barker’s petition, arguing that Barker had not presented substantive
grounds for relief. Specifically, the State noted that there was no evidence attached to
the petition to demonstrate trial counsel had failed to investigate Barker’s amenability
to rehabilitation nor was there a report by an expert demonstrating that Barker’s
cognitive limitations and age made him amenable to rehabilitation. Two weeks after
the State’s filing, the common pleas court dismissed Barker’s petition.
{¶19} We affirmed the dismissal1 of Barker’s petition on appeal, holding that
there was no evidence attached to Barker’s petition to “demonstrate an outcome-
determinative deficiency in his counsel’s performance at the [amenability] hearing.”
State v. Barker, 2016-Ohio-8476, ¶ 19 (1st Dist.). We also held that the common pleas
court did not abuse its discretion in denying Barker’s petition where Barker failed to
amend the petition with the promised reports or request a stay. Id. at ¶ 24.
{¶20} In November 2014, Barker filed two pleadings: a petition for
postconviction relief and a Civ.R. 60(B) motion to vacate the common pleas court’s
June 2014 dismissal of his January 2014 petition for postconviction relief.
{¶21} In his November 2014 petition, Barker sets forth one claim: his trial
counsel was constitutionally ineffective in failing to investigate and present evidence
of his low intelligence and cognitive delays at the suppression hearing and, specifically,
for failing to have Barker evaluated by a forensic psychologist with the Miranda Rights
Comprehension Instrument and presenting those test results at the suppression
hearing. In support of his petition, Barker attached Dr. Davis’s curriculum vitae and
his evaluation report, which indicated that Barker has a full-scale IQ score of 70, which
1 Although the common pleas court’s entry indicates that it is “dismissing” Barker’s January 2014
petition, in the direct appeal from that judgment, this court referred to the lower court’s judgment
as “denying” the petition.
9
OHIO FIRST DISTRICT COURT OF APPEALS
is in the second percentile, indicating an intellectual disability, and a reading and
comprehension level of a third grader. In his report, Dr. Davis concludes:
Based upon my evaluation, it is my opinion, within reasonable scientific
certainty, that Mr. Barker’s understanding and appreciation of an
important component of his Miranda Rights, specifically that [] his
appreciation of his right to an attorney, his right to remain silent, and
his ability to apply this right to an interrogation or court situation was
compromised when he was interrogated by police on 10.17.11.
{¶22} Also attached to Barker’s petition was his postconviction counsel’s
affidavit in which she attests that she had not learned of the existence of the
suppression hearing until May 8, 2014. She then reviewed the transcript and consulted
with Dr. Davis on May 22, 2014. She attests that because the State had not yet filed a
response, she chose to wait to file the amended petition after she had received Dr.
Davis’s report.
{¶23} In his Civ.R. 60(B) motion to vacate the dismissal of his first
postconviction petition, Barker argued that the failure to amend his January 2014
petition with a second ineffective-assistance-of-counsel claim regarding the
suppression hearing, as well as Dr. Davis’s reports, was due to excusable neglect. He
contended that his postconviction counsel acted in good faith by informing the
common pleas court that the January 2014 petition would be amended to add a claim
challenging trial counsel’s effectiveness at the suppression hearing and that an
amended petition would be filed as soon as the additional report from Dr. Davis was
received. Further, postconviction counsel appears to argue that, because she filed the
Notice, she did not believe it was necessary to request a stay of the petition while
awaiting Dr. Davis’s additional report.
10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} These two pleadings—the motion to vacate and the November 2014
petition—remained pending before the common pleas court for seven years. In June
2021, the State filed responses to both. With respect to Barker’s November 2014
petition for postconviction relief, the State asked the court to dismiss the petition,
arguing that it was untimely and the petition did not meet the jurisdictional
requirements for a late or successive filing. See R.C. 2953.23(A). Regarding the motion
to vacate, the State argued that Barker was merely trying to circumvent the filing
requirements for a petition for postconviction relief and that his failure to amend the
January 2014 petition to add the second claim and attach Dr. Davis’s reports was not
excusable neglect, because Barker could have requested a stay but did not do so.
{¶25} In March 2023, following oral argument on both pleadings, the
common pleas court granted Barker’s Civ.R. 60(B) motion and vacated the court’s
entry, which had dismissed Barker’s January 2014 petition for postconviction relief
without an evidentiary hearing.2 The court then granted an “evidentiary hearing on
[Barker’s] post conviction motion.”
{¶26} The evidentiary hearing was held in the fall of 2023, and Barker’s only
argument at the hearing concerned his claim raised in his November 2014 petition
that his trial counsel was ineffective with respect to his suppression hearing. At the
hearing, Barker presented the testimony of Dr. Davis, who testified that in preparing
to evaluate Barker’s ability to effectively waive his Miranda rights, he reviewed Dr.
Deardorff’s amenability report, the videotape and transcript of Barker’s interrogation,
and all the material he had from his own “reverse bindover evaluation” of Barker,
2 The State appealed the lower court’s judgment vacating the dismissal of Barker’s January 2014
petition, but this court dismissed the appeal for lack of a final, appealable order by entry dated May
25, 2023.
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OHIO FIRST DISTRICT COURT OF APPEALS
where he had reviewed Barker’s school records and had interviewed Barker’s mother
and grandmother. Dr. Davis then evaluated Barker with the Weschler Adult
Intelligence Scale Test (the “Weschler IQ test”) and the Miranda Rights
Comprehension Instrument (the “MRCI”). The Weschler IQ test confirmed Dr.
Deardorff’s testing that Barker’s general intelligence level was in the second percentile,
and that Barker had a reading comprehension level of a third grader. The MRCI
demonstrated that although Barker, in a formal test setting, had adequate
understanding of “Miranda vocabulary words,” testing demonstrated that he did not
know how to apply the rights (or the meaning of those words) in an interrogation
setting. For example, Dr. Davis specifically noted that Barker could not appreciate his
right to remain silent, as Barker consistently stated that he “had to talk to the judge
and the police” and tell the truth. Dr. Davis also noted that Barker did not appreciate
his right to have an attorney present, as reflected in his comments to the detectives
during the second interrogation, that “he saw an attorney – whatever that is.”
Ultimately, Dr. Davis opined that Barker’s ability to appreciate his Miranda rights and
understand the consequences of waiving them was compromised by his intellectual
disability.
{¶27} Following the evidentiary hearing, the common pleas court granted
Barker’s petition for postconviction relief, vacating his convictions and ordering a new
trial, including a new suppression hearing. In its findings of fact and conclusions of
law, the lower court found that Barker’s trial counsel was defective in failing to attempt
to challenge Barker’s waiver of his Miranda rights, especially since trial counsel had
access to Dr. Deardorff’s amenability report, which indicated Barker’s low-cognitive
functioning, and could have introduced that report at the suppression hearing.
Further, the court found, given the report, it was deficient performance for trial
12
OHIO FIRST DISTRICT COURT OF APPEALS
counsel not to investigate Barker’s ability to competently waive his Miranda rights and
have him expertly evaluated using the MCRI and presenting those results at the
suppression hearing. Finally, the court found that given trial counsel’s defective
performance at the suppression hearing, “the Court’s confidence in the outcome of the
suppression hearing is undermined” and concluded that Barker had received
ineffective assistance of trial counsel at his suppression hearing.
{¶28} The State now appeals, bringing forth two assignments of error
challenging the court’s decision to vacate the judgment dismissing the January 2014
petition and granting the petition for postconviction relief.
II. Analysis
A. Civ.R. 60(B) Motion to Vacate
{¶29} In its first assignment of error, the State contends the common pleas
court erred by granting Barker’s Civ.R. 60(B) motion to vacate the lower court’s entry
dismissing Barker’s January 2014 petition for postconviction relief without an
evidentiary hearing.3 We disagree.
{¶30} Before addressing the merits of the motion to vacate, we first consider
the State’s argument that the common pleas court lacked authority to vacate the
dismissal of Barker’s petition, where this court had already affirmed that dismissal on
direct appeal. See Barker, 2016-Ohio-8476 (1st Dist.). In that appeal, we held that
because Barker had neither amended his petition to include Dr. Davis’s reports nor
requested a stay to permit such an amendment, the common pleas court did not abuse
its discretion in dismissing the petition for postconviction relief, which had been
pending for six months. However, in reaching that holding, we did not specifically
3 In its appeal, the State does not contest the applicability of Civ.R. 60(B) to vacate a judgment
denying a petition for postconviction relief.
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OHIO FIRST DISTRICT COURT OF APPEALS
address whether the Notice, together with postconviction counsel’s affidavit
describing efforts to obtain a second report from Dr. Davis concerning Barker’s
competency to waive his right against self-incrimination, constituted excusable
neglect because the question of excusable neglect was not an issue in that case.
Accordingly, in ruling on the motion to vacate, the lower court was not revisiting an
issue already decided by this court. We therefore proceed to the merits of the motion
to vacate.
{¶31} In order to prevail on a motion to vacate a judgment pursuant to Civ.R.
60(B), the movant must demonstrate that (1) the party has a meritorious claim or
defense to present if relief is granted, (2) the party is entitled to relief under one of the
grounds stated in Civ.R. 60(B)(1) through (5), and (3) the motion is made within a
reasonable time, and where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not
more than one year after the judgment. GTE Automatic Elec. Co., Inc. v. ARC
Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. We review
the grant of a Civ.R. 60(B) motion for abuse of discretion.
Id. at 148.
{¶32} Civ.R. 60(B)(1) provides that a party may be relieved from a final
judgment for “mistake, inadvertence, surprise, or excusable neglect.” On appeal, the
State takes issue with the lower court’s finding that Barker had demonstrated he was
entitled to relief on the ground of “excusable neglect,” which was postconviction
counsel’s failure to either attach Dr. Davis’s reports to the January 2014 petition prior
to its dismissal or request a stay or leave to amend his petition after the State had
responded to Barker’s petition.
{¶33} Excusable neglect is often explained by what it is not. For example, “a
party’s inaction is not excusable neglect when it shows ‘a complete disregard for the
judicial system’ or when the party’s conduct falls substantially below what is
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OHIO FIRST DISTRICT COURT OF APPEALS
reasonable under the circumstances.” Kidz Bop LLC v. Broadhead, 2015-Ohio-3744,
¶ 11 (1st Dist.), citing State ex rel. Jackson v. Ohio Adult Parole Auth., 2014-Ohio-
2353, ¶ 23-25, and Heard v. Dubose,
2007-Ohio-551, ¶ 19 (1st Dist.). After reviewing
the record in this case, we cannot say that Barker’s postconviction counsel showed a
“complete disregard for the judicial system” or that counsel’s conduct fell substantially
below what was reasonable under the circumstances. The suppression hearing and the
denial of the suppression motion were never docketed in the court’s journal, however,
as soon as postconviction counsel learned about the hearing, she immediately
consulted with Dr. Davis, and then filed the Notice, informing the court and the State
that the petition was going to be amended to add an additional claim. The Notice also
explained that postconviction counsel was in the process of securing an additional
evaluation and report from Dr. Davis as to whether Barker had competently waived
his Miranda rights. Filing the Notice instead of requesting a stay was not unreasonable
given that the State had not yet answered the petition, even though the petition had
been filed and served on the State five months earlier. Finally, given that counsel,
albeit erroneously, believed that the Notice was sufficient to apprise the court that the
report would be filed shortly, we cannot say counsel’s failure to then request a stay
after the State filed its answer fell substantially below reasonable conduct.
Accordingly, we hold that the trial court did not abuse its discretion in concluding that
Barker demonstrated that he was entitled to relief based on excusable neglect.
{¶34} The State does not challenge the other two elements of the Civ.R.
60(B) motion, and we conclude that they were met. Barker filed his motion within five
months of the court’s judgment dismissing his January 2014 postconviction petition,
well within the one-year time period, and he had a meritorious claim to present:
ineffective assistance of counsel at his suppression hearing.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} Accordingly, we hold that the common pleas court did not err in
granting Barker’s Civ.R. 60(B) motion to vacate the court’s entry dismissing his
January 2014 petition for postconviction relief. The State’s first assignment of error
is overruled.
B. Petition for Postconviction Relief
{¶36} In its second and final assignment of error, the State contends the court
abused its discretion by granting Barker’s petition for postconviction relief because the
court lacked jurisdiction to consider the petition or because Barker failed to present
substantive grounds for relief. To prevail on a postconviction claim, the petitioner
must demonstrate a denial or infringement of his rights in the proceedings resulting
in his conviction that rendered the conviction void or voidable under the state or
federal constitution. R.C. 2953.21(A)(1).
{¶37} The State first argues the court lacked jurisdiction to consider the
petition because it was untimely. At the time Barker filed his November 2014 petition
for postconviction relief, former R.C. 2953.21(H) required a petitioner to file a petition
within 180 days from the date the transcript of proceedings was filed in the petitioner’s
direct appeal. Here, Barker filed the final transcript on May 27, 2014, making
November 24, 2014, the deadline. Because Barker filed his petition on November 21,
2014, it was timely.
{¶38} Next, the State argues that even if Barker’s petition was timely, it
constituted a successive petition and, because it failed to meet the jurisdictional
requirements of R.C. 2953.23(A), the lower court lacked jurisdiction to consider it. We
disagree. Barker was not required to satisfy R.C. 2953.23(A)’s jurisdictional
requirements because the common pleas court had already granted his Civ.R. 60(B)
motion to vacate the dismissal of his January 2014 petition, which was once again
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OHIO FIRST DISTRICT COURT OF APPEALS
pending before the court. The common pleas court properly treated Barker’s “second”
petition as an amendment to his original January 2014 petition; therefore, it was not
a successive petition. The amended petition was set for an evidentiary hearing, during
which the record reflects that Barker abandoned his claim that trial counsel was
ineffective at the amenability hearing and proceeded solely on his claim of ineffective
assistance at the suppression hearing. We now turn to the common pleas court’s
consideration of that claim on the merits.
{¶39} A common pleas court’s decision granting a petition for postconviction
relief will be upheld absent an abuse of discretion. State v. Gondor, 2006-Ohio-6679,
¶ 58. “A reviewing court should not overrule the trial court’s finding on a petition for
postconviction relief that is supported by competent, credible evidence.”
Id.
{¶40} The State argues that Barker did not present substantive grounds for
relief with respect to his postconviction claim challenging the effectiveness of his trial
counsel at his motion to suppress. To prevail on a claim of ineffective assistance of trial
counsel under the Sixth Amendment to the United States Constitution, a
postconviction petitioner must demonstrate (1) that counsel’s performance fell below
an objective standard of reasonableness, and (2) that counsel’s deficient performance
prejudiced him. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
{¶41} Turning to the first prong of the Strickland test, the trial court found
that trial counsel’s failure to investigate whether Barker could properly waive his
Miranda rights given his intellectual disability, including consulting with an expert,
and counsel’s failure to, at the very least, submit Dr. Deardorff’s amenability report
demonstrating Barker’s intellectual disability, fell below an objective standard of
reasonableness. We agree. Trial counsel had Dr. Deardorff’s amenability report
indicating Barker’s borderline intelligence and third-grade reading level. Despite
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OHIO FIRST DISTRICT COURT OF APPEALS
having information that Barker may not have been able to intelligently waive his
Miranda rights, trial counsel failed to investigate the matter further and hire defense’s
own expert to determine whether Barker could effectively waive his rights.
{¶42} The State contends that trial counsel’s performance was not deficient
because Barker’s eventual testing with the MRCI reflected average scores in each
section. However, Dr. Davis explained that although the MRCI results showed Barker
had an adequate understanding of Miranda vocabulary in a formal testing
environment, they also demonstrated that he lacked the ability to apply those terms—
or to exercise his rights appropriately—during an actual interrogation. Dr. Davis
further opined that Barker’s intellectual disability impaired his ability to appreciate
his Miranda rights and understand the consequences of waiving them. Accordingly,
given the expert testimony, competent, credible evidence supports the common pleas
court’s finding that trial counsel’s failure to investigate Barker’s capacity to knowingly
and intelligently waive his Miranda rights constituted deficient performance.
{¶43} Next, the common pleas court found, with respect to the prejudice
prong of Strickland, that its confidence in the outcome of the suppression hearing was
undermined. Although the State did not address prejudice in its appellate brief, relying
instead on its argument that trial counsel’s performance was not deficient, we must
nonetheless consider prejudice in determining whether the common pleas court
properly granted the petition.
{¶44} Under an ineffective-assistance-of-counsel analysis, “[p]rejudice from
defective representation sufficient to justify a reversal exists only where the result of
the proceedings was unreliable or fundamentally unfair because of counsel’s
performance.” State v. Ross, 2024-Ohio-3117, ¶ 37, citing Lockhart v. Fretwell,
506
U.S. 364 (1993), and State v. Carter,
1995-Ohio-104. In cases where trial counsel is
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OHIO FIRST DISTRICT COURT OF APPEALS
alleged to have been deficient for failing to file a motion to suppress or raise a
meritorious argument in support of suppression, the court must determine if the
motion to suppress would have probably been granted. State v. Rosemond, 2019-
Ohio-5356, ¶ 34 (1st Dist.).
{¶45} In the context of a plea-bargain case, the United States Supreme Court
held that the prejudice inquiry under Strickland requires a defendant to “show that
there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985). As the United States Supreme Court explained in Premo v. Moore,
562
U.S. 115, 129, 131-132 (2011), citing Hill, and as the Ohio Supreme Court recognized in
State v. Bird,
81 Ohio St.3d 582, 585 (1998), a defendant who pleads guilty or no
contest must demonstrate a reasonable probability that, but for counsel’s errors, he
would not have entered his plea and insisted on going to trial. Thus, the prejudice
inquiry in this case must also focus on whether trial counsel’s constitutionally-
deficient performance at the suppression hearing affected the outcome of the plea
process—specifically, whether Barker has shown a reasonable probability that, but for
counsel’s errors at the suppression hearing, his motion to suppress would have been
granted and he would not have entered no-contest pleas and would have elected to go
to trial.
{¶46} Determining whether Barker would have not entered his pleas and
insisted on going to trial requires consideration of the other evidence, aside from
Barker’s inculpatory statements, that could demonstrate his commission of the
charged offenses. For example, if there is DNA evidence connecting Barker to the
crimes, he might still have opted to enter no-contest or guilty pleas. Conversely, if the
only evidence consisted of witness testimony connecting Barker to the offenses, he
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OHIO FIRST DISTRICT COURT OF APPEALS
may have been more likely to take the risk of proceeding to trial.
{¶47} Here, the common pleas court did not apply the correct prejudice
analysis in determining that Barker had received ineffective assistance at his
suppression hearing. Accordingly, we remand the cause to the trial court to conduct
the appropriate prejudice inquiry and determine whether trial counsel’s deficient
performance at the suppression hearing prejudiced Barker. The lower court’s prior
finding that its confidence in the suppression hearing was undermined was
insufficient because the court failed to consider whether Barker, if the suppression
motion had been granted, would have declined to enter no-contest pleas and insisted
on proceeding to trial. Because the court did not engage in the correct prejudice
analysis, we reverse the judgment granting Barker’s petition and remand the cause for
further proceedings. On remand, the court may review the record or hold an additional
evidentiary hearing to determine whether Barker would have entered his pleas given
the other evidence the State would have presented to support the charged offenses.
{¶48} Having determined that the common pleas court had jurisdiction to
consider Barker’s amended petition for postconviction relief and that the court did not
abuse its discretion in finding that trial counsel’s performance at the suppression
hearing was deficient, we overrule the State’s second assignment of error in part. We
sustain the second assignment, however, to the extent that the common pleas court
failed to apply the proper prejudice analysis. Accordingly, we remand the cause to the
common pleas court to consider the prejudice prong of Strickland as it relates to
Barker’s claim that his trial counsel’s deficient performance at the suppression hearing
prejudiced him, considering whether, if Barker’s statements had been suppressed,
Barker would have declined to enter pleas and insisted on going to trial.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶49} Based on the foregoing, we reverse the trial court’s judgment granting
Barker’s postconviction petition, and we remand the cause to the common pleas court
to consider the prejudice inquiry under Strickland consistent with this opinion and
the law. We affirm the common pleas court’s judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
CROUSE, P.J., and NESTOR, J., concur.
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