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STATE OF OHIO,

Plaintiff-Appellee,

V.

Adam Eggers,

On Appeal from the ClarkCounty Court of Appeals, SecondAppellate District

Defendant-Appellant. C.A. Case No. 12-CA-0033

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT ADAM EGGERS

Adam Eggers, #610-525Lebanon Correctional IrlstitutionP.O. Box 56(513) 208-6458

DEFENDANT-APPELLANT, PRO SE

Lisa M. Fannin (0082337)Clark County Assn't. Prosecution Attorney50 E. Columbia St., 4i'' FloorP.O. Box 1608Springfield, OH 45501(937) 521-1770

COUNSEL FOR PLAINTIFF-APPELLEE, STATE OF OHIO

^^^^' i 2 2013

CLE-F^^ OF COURTREME GOUR't-QF 0MIO

IN THE SUPREME COURT OF OHIO

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Case No.

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WERK 0+ COURT^S^^^^^^^^^^ ^OU ,3^ T OF 0n'110

IN THE SUPREME COURT OF OHIO

TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC

OR GREAT GENERA INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTION ..................................................................... 1

STATEMENT OF THE CASE AND FACTS ..............................;,......,............. .. 2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAVV............................. 4

PROPOSITION OF LAW NO. I: The trial court abused its discretionby failing to hold an evidentiary hearing, failing to review the entire recordde novo, and in failing to make findings of fact and conclusions of lawto enable proper appellate review ...................................................................... 4

PROPOSTION OF LAW NO IL• Petitioner presented sufficient operativefacts to demonstrate ineffective assistance of counsel and the trial court'sdenial of the Petition without an evidentiary hearing was contrary to DueProcess......... ....... ........ .. . .. ..... .. .. . .. .. .. . . . . . .. .... ... .... . .. .. .... . ....... ..... .. ..... .. ..... ....... . .. 6

A. Appellant's Post-conviction Petition Grounds for Relief

Ineffective Assistance of Counsel -The Strickland Standard ................ 7

B. Attorney's Failure to File Suppression Motions ................................ 8

C. Attorney's Failure to Investigate and Interview Vital Witness(es).. 12

CONCLUSION ............ .. . .. ... .: ... .. . .. .. .. . .. .. . .... ......... .. ... ... . .. . ... . ...... ... .... . ... .. ...... ....... .. .... . 15

CERTIFICATE OF SER4'ICE ................................................................................... 15

APPENDIX Appx. Page

Opinion of the Clark County Court of Apeeals(Aug. 2,2013) ................................................................................................ . 1

Judgment Entry of the Clark County Court of Appeals(Aug. 2, 2013) .. . . . . . . . . . .. . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 19

Explanation of Why This Case Is a Case of

Public or Great General Interest and

Involves a Substantial Constitutional Question

This case involves the trial Court and the Court of Appeals denying a post-conviction petition

and affirming Eggers conviction and sentence. This appeal raises substantial constitutional questions,

involves a felony conviction, and raises issues of public and of great general interest.

The decision of the trial court and the court of appeals threatens the reliability and public

confidence in the willingness of trial judges to undertake judicial and public duty of which they are

elected to undertake. This is a mandatory duty, not a discretionary one. The failure to discharge that

duty constitutes a clear disregard of the public interest in the administration of justice. The failure of

the trial court to znake the requisite findings prevented any meaningful judicial review, for it is the

findings and the conclusions which an appellate court must review for error. The Petitioner's right to

seek appellate review of the trial court's dismissal of his petition for his post-conviction petition relief

cannot be fulfilled unless the trial court rendered proper findings of fact and conclusion of law and in

the instant case the trial court clear made no such findings. As a result, the court of appeals was unable

to properly review the issues raised by the Appellant.

Ohio has created a statutory post-conviction process to provide defendants convicted of crimes

an avenue to challenge the validity of their convictions and sentences. This process protects the rights

of convicted defendants only if the trial court complies with the statutory mandates. In his post-

conviction petition, Appellant asserted various claims challenging the constitutional validity of his

conviction and sentence due to the ineffectiveness of his trial counsel. Examples of these violations

include: (1) counsel's failure to investigate the case; (2) counsel's failure to file a motion to suppress a

gun shot residue (GSR) test; (3) counsel's failure to file a motion to suppress the Defendant's May 16,

2010 police interview; (4) counsel's failure to hire expert witnesses after he told the Defendant they

were necessary and he was paid additional funds to hire the expert; (5) counsel failed to interview vital

witness(es) material to any defense; (6) his failure to cross examine and failure to go to trial, as he was

retained to do. This has completely violated many State and Federal Constitutional rights, prejudiced

Eggers, denied Eggers his right to have a fair trial and proves Eggers trial counsel to be ineffective and

incompetent. Appellant's guilty plea was a direct result of his counsel's failure to perform his duties in

preparation for trial and counsel. failed to act as the counsel required by the Sixth and Fourteenth

Amendments to the United States Constitution, and Section 10, Article I of the Ohi.o Constitution.

The decision of the court of appeals, as discussed more fully below, violated various

constitutional rights and the fundamental principle of fairness required under Ohio and United States

Constitutions. The Defen.dant was deprived of his right to effective assistance of trial counsel and the

Second District Court of Appeals, as well as the trial court, erred in dismissing Egger's post-conviction

petition for the following reasons: (1) Appellant raised violations of his constittitional rights that

warranted relief; and (2) the post-convictioti petition contained sufficient operative facts that would

warrant relief. These facts were supported by sworn affidavits that did not contradict the evidence on

the record. As a result, the post-conviction petition established claims that merited reversal of the

conviction, or at the very least, warranted an evidentiary hearing to fully develop the factual issues.

This Court should accept jurisdiction to review the constitutional issues raised in the post-

conviction and appeal and to enforce the prior precedents of this Court which the court of appeals failed

to apply.

STATEMENT OF THE CASE AND FACTS

On May 16, 2010, shots were fired into a residence in Springfield, Ohio, One of the shots went

through a wall and struck Julie Snyder, killing her instantly. At approx. 2:30am on May 16, 2010,

Defendant Eggers and Brad Locher were pulled over, at gun point, by the Springfield City Police

a

officers, detained, cuffed and taken to the police station. Once at the police station, both, the Defendant

and Locher underwent police interrogations. In Egger's initial police interrogation, the Defendant was

given DI^7A and GSR tests, without a search warrant and without signing a waiver of rights. Shortly

thereafter, Eggers was again interrogated by two Detectives of the police force where he finally signed a

waiver of Miranda rights. After many hours of interrogation, Eggers invoked his right to counsel and at

that time questioning ceased. Eggers was released and no charges were filed at this time.

On January 14, 2011, Eggers was arrested for Murder. Outside of the presence of his counsel,

he was interrogated for several hours by police detectives. On January 24, 201.1 Eggers was indicted on

one count of Aggravated Murder, two counts of Felony Murder, one count of Felonious Assault each

with. a firearm specification, as well as one count of Improperly Discharging a Firearm at or into a

Habitation, and one count of Improper Handling of Firearms in a Motor Vehicle. On January 27, 2011,

Eggers was arraigned on said charge and was represented by retained counsel, Adam Nemann.

On June 6, 2011, Defendant was indicted for weapons under disability (Case No. 11-CR-379).

Also on June 6, 2011, Egger's trial attorney filed a motion to suppress the January 14, 2011 police

interview. Dkt 18. On. June 9, 2011, Eggers appeared in court under the guise of a scheduled indictment

hearing, but was persuaded by his attorney to enter a plea of guilty. Appellant then plead guilty to

Felony Murder, even though Egger's continued to assert his innocence during the plea hearing. Egger's

attorney then withdrew the niotion to suppress statements.

Eggers moved to withdraw his guilty plea on June 20, 2011, contending that he had made his

plea under duress and coercion by his trial counsel. The court overruled the motion, the court

concluded that there was no evidence that Eggers did not make his plea knowingly, voluntarily, and

intelligently.

On February 10, 2012, Eggers filed a":Viotion for Evidentiary and Exculpatory Evidence" in

fS

which he requested the trial court to order the State to provide additional evidence to be used in the

anticipated petition for post-conviction relief. Six days later on February 16, 2012, Appellant filed his

petition for post-conviction relief, alleging that he received ineffective assistance of trial counsel. The

motion for exculpatory evidence and the petition for post-conviction relief are the subject of this appeal.

The trial court, without holding a hearing, claimed to have reviewed the record and overruled

Eggers's motion for exculpatory evidence and his petition for post-conviction relief. Specifically, the

court found, in part:

The defendant has not submitted sufficient evidentiary docuznents containing sufficientoperative facts to show that he is entitled to any relief. From the record of the pleaagreement, and the transcript of the plea hearing, it is clear that the defendant knew andunderstood he was entering a guilty plea for felony murder; that the Court complied withCrim. R. 11(C)(2) and that the defendant was under no coercion when he entered theplea knowingly, voluntarily and intelligently. Dkt. 41.

Appellant appealed to the Second District Court of Appeals which denied the appeal on August

2, 2013. It is from this decision that Appellant appeals and asks this Court to accept jurisdiction.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. I: The trial court abused its discretion by failing to hold anevidentiary hearing, failing to review the entire record de novo, and in failing to make findingsof fact and conclusiorzs of law to enable proper appellate review.

In denying Appellant's petition, the trial court identified those materials reviewed and

considered in rendering its decision. At the time of the Judge's Entry (4/20/12), the relevant trial court

record was not yet transcribed and attached to the trial court Judgment Entry, which state's in relevant

part:

The defendant has not submitted sufficient evidentiary documents containing sufficientoperative facts to show that he is entitled to any relief. Ineffective assistance of counselis an issue for appeal. From the record of the plea agreement, and the transcript of theplea hearing, it is clear that the defendant knew and understood he was entering a guiltyplea to felony murder; that the Court complied with Criminal Rule l1(C)(2) and that the

Ct

defendant was under no coercion when he entered the plea knowingly, voluntarily andintelligently. THEREFORE, defendaxlt's petition is hereby OVERRULED withouthearing.

An appellate court reviews a trial court's decision granting or denying a post-conviction petition

under R.C. 2953.21 under an abuse of discretion standard. State v, Gondor, 112 Ohio St.3d 377, 2006

Ohio 6679, 860 N.E.2d 77, 158. The term "abuse of discretion" has been defined as a decision that is

unreasonable, arbitrary, or unconscionable. Blakenaore v. Blakemore (1.983), 5 Ohio St. 3d 217, 219.

The Judgment Entry of the Clark County Court of Common pleas indicates that the trial court

reviewed "the transcript of the gt2ilty plea hearing." However, this is unlikely to be true since the record

reflects that no transcript of the plea was ordered, prepared, or filed. A trial judge must review the

transcript, and cannot rely on personal memory of the prior proceedings, before determining that there

are no substantive grounds for relief that require an evidentiary hearing. State v. Mattox (1966), 8 Ohio

App. 2d 65, 67. As this Court has stated in interpreting the statutory conirn.and of § 2953.21(C):

To "consider, in addition to the petition, the supporting affidavits, and the documentaryevidence, all the files and records pertaining to the proceedings against the petitioner,including, but not limited to, the indictnlent the court's journal entries, the journalizedrecords of the clerk of the court, and the court reporter's transcript." Because the trialcourt failed to follow the statutory requirements, reversal and remand for a new trial and!or proper review is mandated. State v. Ishrnail, 54 Ohio St.2d 402 (1978); See also: Statev. Mapson, I Ohio St. 3d 217 (1982); State v. Hill, 90 Ohio St. 3d 571 (2001).

In order to preserve the integrity of Ohio's post-conviction scheme, this Court should grant

review. The trial court cannot adequately determine whether the petition for post-conviction relief can

be decided without a hearing until the trial court considers the issues raised in the petition in the

context of the entire record of this case. The trial court in this matter was undeniably unable to do so

before the transcript was even transcribed. In addition, the act of ruling on a petition without a hearing

after failing to review the transcript cannot be allowed to stand as it has "a substantial adverse impact

on the integrity of and public confidence in judicial proceedings." State v. Cruf't (1977), 52 Ohio App.

5'

2d 1, 7.

For these reasons this Court should accept jurisdiction over this matter and find that the

judgment of the trial and appellate court was improper and the matter must be reversed and remanded

for further proceedings consistent with Ohio law.

PROPOSTION OF LAW NO II: Petitioner presented sufficient operative facts todemonstrate ineffective assistance of counsel and the trial court's denial of the Petition withoutan evidentiary hearing was contrary to Due Process.

Ohio Revised Code § 2953.21 gives defendants who have been convicted of criminal offenses

the right to seek post-conviction relief for violations of their constitutional rights. 'Io receive an

evidentiary hearing on post-conviction claims, a petitioner must meet certain pleading standards. This

Court has held that before a hearing may be granted, the petitioner bears the initial burden of

submitting evidentiary documents containing sufficient operative facts that support alleged violations

of constitutional rights. When ineffective assistance of counsel is alleged, broad assertions, without

further demonstrating prejudice do not warrant a hearing for post-conviction petitions. General,

conclusory allegations of ineffective assistance of counsel are inadequate as a matter of law to require

the granting of an evidentiary hearing. State v. Jackson, 64 Ohio St. 2d 107, 111, 413 N.E.2d 819, 822

(1980); State v. Kapper, 5 Ohio St. 3d 36, 38, 448 N.E.2d 823, 826 (1983).

Unlike the petitioners in Jackson and Kapper, however, Appellant pled sufficient operative facts

to warrant a hearing. In all of Appellant's claims, he specifically pled the deprivation of his

constitutional rights and submitted documentary evidence that contained sufficient operative facts to

establish ineffective assistance. Appellant attached 42 exhibits, and six (6) sworn affidavit's

demonstrating the harm through evidence outside the record. Moreover, Eggers supporting affidavits

were neither contradicted by evidence in the record nor internally inconsistent. State v. Callioun, 86

(9

Ohio St. 3d 279, 285, 714 N.E.2d 905, 912 (1999). The evidence offered in support of Eggers claims

presented sufficient operative facts to support hi.s grounds for relief. In State v. Cole, 2 Ohio St. 3d 112,

114, 443 N.E.2d 169, 171 (1982), this court stated that in order for a defendant in post-conviction

litigation "to secure a hearing on his petition, [he] must proffer evidence which, if believed, would

establish not only that his trial counsel had substantially violated at least one of a defense attorney's

essential duties to his client, but also that said violation was prejudicial to the defendant."

Ohio has a two-step post-conviction process. The initial step is the filing of the petition and

supporting documentation, O.R. C. § 2953.21(A). Then, if the petition contains properly litigated and

supported claims, the petitioner must be granted aii evidentiary hearing under O.R. C. § 29.53.2I(E). It is

at the evidentiary hearing that the petitioner must prove his claims of constitutional violations and

establish the attendant prejudice to gain relief. The petitioner is not required to prove his claims and

prejudice based solely on the petition. Adopting such a position simply renders the evidentiary hearing

superfluous to the statute arid creates a standard that no petitioner could possibly meet. In the case at

hand, when the trial court disniissed Eggers petition, it did just that. This decision denied Appellant

due process and prohibited the adjudication of State and Federal Constitutional issues that cannot be

raised in another forum.

A. Appellant's Post-conviction Petition Grounds for Relief

Ineffective Assistance of Counsel -The Strickland Standard

Eggers raised trial counsel's ineffectiveness as the constitutiona.l basis for granting post-

conviction relief in his seven grounds for relief. As a basis for denying Eggers claims of his counsel's

incompetence, the trial and appeals courts stated that Eggers petition failed to contain sufficient

operative facts to demonstrate ineffective assistance of counsel, and prove that his guilty plea was less

than knowing, intelligent, and voluntary.

`1

However, in evaluating such claims, a court must first determine if counsel's performance was

deficient (or unprofessional). The proper measure of an attorney's performance is simply

reasonableness under prevailing professional norms. Strickland v. Washingtoaa, 466 U.S. 668, 688

(1984). A court must then determine if the defendant was prejudiced because the outcome of the trial

cannot be relied on as just; or the defendant was deprived of a trial whose result was reliable; or there is

a reasonable probability that counsel's deficient performance undermines the confidence in the trial's

result. Id. at 687. The essei2ce of this prong is not whether counsel's performance affected the outcome

of the trial. In fact, the Strickland Court rejected the strict outcome-determinative test employed by

some courts:

[W]e believe that a defendant need nat show that counsel's deficient conduct more likelythan not altered the outcome in the case.... The result of a proceeding can be renderedunreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot beshown by a preponderance of the evidence to have determined the outcome. Id. at693-94. (emphasis added)

The second prong requires only that the trial outcome be shown to be unreliable (not that it

would have been different). See also State v. White, 85 Ohio St. 3d 433, 450, 709 N.E.2d 140, 157

(1999). The ultimate focus must be on the reliability of the result being challenged in order to prevent a

breakdown of the adversarial process that our system colints on to produce justice. Dillon v. Daickworth,

751 F.2d 895, 898 (7th Cir. 1984).

B. Attorney's Failure to File Suppression Motions

Defendant points out to this Court that the appellate court's decision misinterpreted many of the

appellants argurnents and that as a result, the court made an unreasonable determination of the facts in

light of the evidence presented to the trial court. As a result, the court of appeals reached inaccurate

legal conclusions.

For instance, Appellant argued that counsel was ineffective for failing to move to suppress

statements made to the police prior to rendering of Miranda warnings, as well as the Pre-Miranda GSR

test. The court of appeals simply noted that a motion to suppress had been filed and dismissed the

claim without further examination. While it is apparent from the record that defendants trial attorney

did in fact file a motion to suppress, he only moved to suppress one of two recorded police

interrogations of the defendant. Trial counsel attacked the latter police interrogation on January 14,

2011, but failed to address the adrrzinistering of the GSR test or the earlier May 16, 2010 police

interrogation which were the basis for Appellant's post-conviction claims. There, Appellant invoked his

right to counsel. Additionally, trial counsel withdrew his motion to suppress prior to a hearing even

though it would have likely been granted due to violations of Miranda v. Arizona (1996), 384 U. S. 436

and Edwards v. Arizona (1981), 451 U.S. 477. In doing so, counsel provide inaccurate legal advice

about the likelihood that the motions to suppress would have been granted and thus coerced Appellant

into pleading guilty. The defendant's trial attorney failed to attack the illegal administering of the GSR

test and the police interrogation both of which were eonducted on May 16, 2010, by means of

suppression andlor hiring a GSR expert, as he was retained to do. Thus, the defendant has met the two

prong test set forth in Strickland. The appellate court failed to observe that the motion to suppress did

not address the issues that were the basis of the Appellant's post-conviction petition.

The defendant was never read his constitutional rights prior to any questioning or testing as he

was placed in a custodial environment without counsel, and therefore a suppression motion was vital

and if filed, would have likely been granted. Trial counsel was highly ineffective in this matter.

Appellant's post conviction petition and the accompanying documentary evidence provide sufficient

operative facts showing substantive grounds for relief. Appellant submitted evidence that a motion to

suppress the gun-shot residue test and the May 16, 2010 police interrogation would likely have been

4

successful. Also, a chain of custody is part of authentication & identification, which are mandates set

forth in Evid. R. 901. See also, State v. Barazacchini (1994), 96 Ohio App. 3d 440, 457-458; Uaited

States v. Jackson, 649 F.2d 967 (3rd Cir. 1981).

In order to prevail on an argument that the failure to file a motion to suppress evidence violated

his right to effective assistance of counsel, the Appellant must show: (1) a basis for the motion to be

suppressed; (2) that the motion had a reasonable probability of success; and (3) a reasonable probability

that the suppression of the challenged evidence would have changed the out come at trial. Kimmelynan

v. Morrison (1986), 477 U. S. 365, Id. at k4.

It has been well established that the accused are entitled to the full protection of the United

States Constitution. As the Supreme Court of the United States indicated in Miranda v. Arizona (1996),

384 U. S. 436, "an interrogation must reflect a measure of compulsion above and beyond that inherent

in custody itself before it will be considered a 'custodial interrogation'; Rhode Island v. Innis (1980),

466 U. S. 291, 300. The Defendant's May 16, 2010 police interrogation and GSR test came after an

arrest and detention at gun point, followed by the police forcefully detaining defendant and placing him

in a police cruiser, transporting him to the police station, and then interrogating him. The GSR testing

then followed without Appellant's consent. These coercive and intimidating acts by the police, created

ati atmosphere that compelled the statements in violation of Miianda and its progeny. The exclusionary

rule bars admission not only of the evidence which is the direct result of such a violation, btit also

derivative evidence or "fruits of the poisonous tree." Wong Sun v. U. S. (1963), 371 U. S. 471; See also,

State v. Myers (1977), 119 Ohio App. 3d 376, 382. Evidence of this nature must be suppressed.

It is apparent, obvious, and undisputed that the Defendant's trial attorney had this tainted and

nonfactual GSR evidence in his possession and was well aware that this was the only thing that could

possibly tie the defendant to this case. 1'rial counsel could not have been adequately prepared for trial

to

without investigating the validity and the reliability of the governments GSR tests. Counsels' failure to

investigate and prepare for trial violated Appellant's right to effective assistance of counsel. Counsel

clearly knew that the GSR was critical to the state's case and investigating the GSR evidence was part

of counsels' duty to "make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary;" Strickland, 466 U.S. at 691; Glenn v. Tate, 71 F.3d 1204,

1209-11 (6th Cir. 1995); Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997); See also, ABA Guiclelines

10.7. Counsel was ineffective for failing to investigate and because of that failure, counsel was in no

position to determine that hiring a GSR expert would not have helped. Nor was he properly prepared to

rely on cross-examined the State's witness(es). In order to make an informed, tactical decision about

what information wotild be helpful to the case, counsel is required to conduct a full investigation.

Strickland, 466 U.S. at 691. As explained in Appellant's post-conviction petition, his defense attorney

made a determination that a GSR expert was necessary to defend the case and sought and received

additional funds for the retention of GSR expert; however, he failed to proceed with the hiring of the

expert witness. It is the failure to retain the expert witness after determining that one was necessary

that supports the claim of the ineffective assistance for failure to iYivestigate.

Appellant recognizes that Ohio case law holds that a properly licensed attorney is presumed to

e:xecute his duties in an "ethical & competent manner." Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299;

State v. Willianas (1969), 19 Ohio App. 2d 234. However, Appellant asserts that this presumption is a

rebuttable presumption that he has overcome. Appellant has submitted sufficient operative facts and

evidence which, if proven, would show that the Defendant was prejudiced by counsel's ineffective acts.

State v. Perry (1967) 10 Ohio St. 2d 175. Th.ose actions, or lack thereof, by Appellant's trial counsel has

changed the outcome of the proceedings by convincing his client to plead guilty.

Even during plea negotiations defendants are entitled to the effective assistance of competent

lt

counsel." Lafler v. Cooper•, 132 S. Ct. 1376, 1384 (2012) (quoting McMann v. Richardson, 397 U.S.

759, 771, (1970)). Although "[tjhe decision to plead guilty-first, last, and always-rests with the

defendant, not his lawyer, that court has nonetheless maintained that the attorney has a clear obligation

to fully inform his/her client of the available options." Titlow v. Burt, 680 F.3d 577, 587 (6th Cir. 2012).

Counsel in this case clearly failed to act in a nianner consistent with these principles.

C. Attorney's Failure to Investigate and Interview Vital Witness(es)

Appellant also submitted a num:ber of affidavits of credible and material witnesses to the events

surrounding the murder in this matter. Those affidavits include, but are not limited to, Mr. And Ms.

Dugan's, Mr. and Ms. Bucks. These affidavits were credible and did not contradict the evidence.

Together they demonstrate sufficient operative facts that trial counsel was incompetent and ineffective

and that the outcom.e would have been different but for his errors. Additionally, the testimony of Nicole

Bowers, David Hall Jr., Shante' Shirk, and Cory Hesson should have been pursued by trial counsel. The

failure to do so resulted in ineffective assistance of counsel. Further, counsel misrepresented to the

Appellant that Nicole Bowers (the sister of Brad Locher) and David Hall Jr. (Bower's fiance) recanted

their statements and were unwilling to come to court and testify against Brad Locher. Appellant later

learned that this was a misrepresentation and that these material witnesses had not recanted their

previous statements and they were willing to come testify against Locher. If an evidentiary hearing had

been provided in this matter, they both would have testified that they were never contacted by the

Defendant's trial attorney. Bowers and Hall are able to refute the statements of Brad Lochers, which

were the sole basis for the state's case against the Appellant.

Melissa Dugan had many interaction's with Eggers trial attorney and gives factual and non

contradictory statements about Appellant's attorney and the poor representation he provided Appellant.

1a

Ms. Dugan has been in the legal field since 1989 and has knowledge of law and the ethical duty's

attorney's have to their client and some examples of her sworn testimony against Eggers trial attorney

states the following: (1) Nenrann's failure to pursue the statement she gave to him about her husband's

testimony in regards to the night in question; (2) Nemann's failure to turn the discovery packet over to

Eggers; (3) Nemann's failure to schedule the proper visit and he failed to go through the proper

channels to arrange what Eggers needed, as he promised he would; (4) Nemann's failure to be ready for

trial and treat Eggers case as a priority; (5) Neinann's failed to abide by his duty of Attorney/client

confidentiality.

Joseph Dugan's affidavit, not only gives eye witness testiniony the night in question, but it also

establishes that Brad Locher (the guilty party) had possession and control of the firearm just before the

shooting. Also, an evidentiary hearing would have established that the alibi given by Locher was in

fact, lacking any support. Locher falsely stated to the police in a recorded police interrogation, that he

was at Egger's mother's house. Dugan alternatively establishes that it is Locher he saw with the

firearm, not the Appellant, during the time Locher claimed to be elsewhere. Notable, there is not one

single eye witness that states they saw Eggers leaving the scene of the crime or in possession of a

firearm or shooting a firearm the night of the shooting. Dugan's affidavit establishes that he was a

material defense witness and it was trial counsel's duty to pursue the matter when he became aware of

the nature of Dugan's statements. Dugan's affidavit is credible anci it provides sufficient operative facts

to demonstrate that trial counsel was ineffective for failing to investigate and interview this, and other,

witnesses.

The overall picture of counsel's performance is one of an attorney who did not perform the

services he was retained to perform. Nemann was retained to investigate the credibility of the state's

witnesses and to produce the defense witnesses for trial. He was even paid to hire an investigator for

i'^

this and yet, these services were not rendered and Nemann told lies about the work that was preformed.

Nemann has been unable to provide any work product (See; Nemann's bill attached to the post-

conviction petition) or any evidence that Bowers and Hall recanted their statements and were unwilliiig

to come to court to testify against Locher as Nemann previously claimed. Appellant presented

sufficient evidence that Bowers and Hall have always been willing to come to court and testify on

Appellant's behalf and are, to this day, willing to give sworn testimony that Nemann never contacted

them or even tried to contact them and there whereabouts were always known to Nemann. Locher's

own sister, Nicole Bowers and her fiance, David Hall Jr., both, informed the police how Locher was

going to come to the police and tell the detectives that the Appellant, came to Locher's house, and that

Locher was going to have his girlfriend (Shante Shirk) back his lie and state that Eggers confessed to

the shooting and killing of Snyder. The most important issue here was both Bowers and Hall were told

by Locher himself that he was making this story up and was going to have his girlfriend, Shirk, lie for

him. This admission that he would commit the crime of perjury, tampering with evidence, and

obstruction of justice, all to blame the Appellant for a crime he did not commit to get himself off the

hook, for the shooting and l-ulling of Snyder, for which Locher was a prime suspect. The petition and

supporting affidavits also establish the following: (1) Locher's comments about getting away with

murder and of the police believing every lie he tells them; (2) Locher's statements around other people

such as Corey Hesson, who heard Locher, brag about the shooting and death of Julie Snyder and his

abilities to kill in cold blood and kill whoever he wished; (3) Ms. Buck statements that she was an eye

witness in the night in question of Brad Locher's actions and lies after the shooting happened. Notable,

Locher attempted to use her as an alibi, yet once again, she was never questioned by any Detectives or

police to verify Locher's alibi and in fact disputes his alibi. Trial counsel completely ignored these

material witnesses and deliberately and/or negligently failed to question them at all or subpoena them to

4^-E

court. There was no plausible reason, if Nemann was a competent attorney, not to bring these witnesses

into court. Trial counsel di.d not conduct the reasonable investigation required before determin.ing that

further investigation is unnecessary. "Strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the limitations on

investigation." Strickland, 466 U.S. at 690-631.

CONCLUSION

For the above reasons, Appellant prays this honorable court accepts jurisdiction over his case

and review all the evidence that is outside the trial record and reverse the appellate court's decision and

remand the case for further instructions consistent with this courts order.

Respectfiilly submitted,

Adam Eggers, #610-525Lebanon Correctional InstitutionP.O. Box 56Lebanon, OH 45036

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Memorandum in Support ofJurisdiction was mailed by regular U.S. Mail, postage pre-paid, to counsel for the State of Ohio LisaM. Fannin, Assistant Clark County Prosecutor, 50 E. Columbia St., 4"' Floor, P.O. Box 1.60$,Springfield, Ohio 45501 on this q+kt day of September, 2013.

r,^`^t'^^` ^'^^'3^ ^

Adam Eggers (610-525)

65

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case No.

Plaintiff-Appellee,

On Appeal from the ClarkV. County Court of Appeals, Second

Appellate DistrictAdam Eggers,

Defendant-Appellant. C.A. Case No. 12-CA-0033

APPENDIXTO

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT ADAM EGGERS

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CLARK COUNTY

STATE OF OHIO

Plaintiff-Appellee Appellate Case No. 2012-CA-33

V.

ADAM EGGERS

Defendant-Appeliant

Trial Court Case No. 11-CR-40

(Criminal Appeal fromCommon Pleas Court)

OPINi®N

Rendered on the 2nd day of August, 2013.

LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor's Office, 50 EastColumbia Street, 4t" Floor, Post Office Box 1608, Springfield, Ohio 45501

Attorney for Plaintiff-Appellee

ADAM EGGERS, #610-525, Lebanon Correctional Institution, Post Office Box 56,Lebanon, Ohio 45036

Defendant-Appellant, pro se

FAIN, P.J.

{¶ 11 Defendant-appellant Adam Eggers appeals from an order overruling his

petition for post-conviction relief and his motion for additional discovery. Eggers contends

that the trial court abused its discretion in overruling his petition for post-conviction relief

THE GOURT ©I' APPEALS OF OHIOSECOND APP F LLf1TE. DESTRdCT

-2-

without holding an evidentiary hearing. Eggers further contends that the trial court erred

in failing to grant his post-conviction request for additional discovery.

(12) We conclude that the trial court did not abuse its discretion in overruling

Eggers's petition without holding an evidentiary hearing, because Eggers failed to submit

evidentiary documents containing sufficient operative facts to demonstrate ineffective

assistance of trial counsel. We further conclude that the trial court did not err in overruling

Eggers's post-conviction motion for additional discovery. Accordingly, the judgment of the

trial court is Affirmed.

1. Course of the Proceedings

{¶ 3) In May 2010, Adam Eggers fired four shots into a residence in Springfield,

Ohio, with the intention of killing Dustin Bryant: One of the shots went through a wall and

struck Julie Snyder, killing her instantly. Eggers was indicted on one count of Aggravated

Murder, R.C. 2903.01(A), with a firearm specification, two counts of Felony Murder, R.C.

2903.02(B), each with a firearm specification, one count of Felonious Assault, R.C.

2903.11(A)(2), with a firearm specification, one count of Improperly Discharging a Firearm

at or into a Habitation, R.C. 2923.161(A)(1), and one count of Improper Handling of

Firearms in a Motor Vehicle, R.C. 2923.16(B). Dkt. 1.

{¶ 4) Pursuant to a negotiated plea agreement, with a motion to suppress

statements pending, Eggers pled guilty to Felony Murder, as charged in count three of the

indictment, causing the death of another as a proximate result of improperly discharging

a firearm at or into a habitation, in violation of R.C. 2903.02(B) and 2923.161(A)(1). In

exchange for Eggers's guilty plea, the State dismissed the firearm specification attached

THE C.OG'RT OF APPEALS OF 0HI0

SECOND APPE LL<ATE DISTRICT

to count three and the remaining charges and specifications. The parties agreed that

Eggers's sentence would be fifteen years to life.

(15) The trial court sentenced Eggers to life imprisonment with parole eligibility after

fifteen years. The trial court also sentenced Eggers to a rnandatory five-year term of post-

release control. Dkt. 23. Eggers appealed from his conviction and sentence. On appeal,

he contended that his plea was not knowingly, intelligently, and voluntarily made and that

the trial court erred by including a term of post-release control in his sentence. We

concluded that Eggers's plea was knowing, intelligent, and voluntary. We vacated the

portion of the sentence imposing post-release control and affirmed the judgment and

sentence in all other respects. State v. Eggers, 2d Dist. Clark No. 2011-CA-48, 2013-Ohio-

3174.

(16) Eggers moved to withdraw his guilty plea, contending that he had made his

plea under duress and coercion by his counsef. He stated that his trial counsel was

ineffective in representing him and he had been denied his constitutional rights. The court

overruled the motion, noting that Eggers was represented by experienced counsel,

Eggers's rights had been carefully and completely explained to him, Eggers did not express

any doubt that he understood his rights and that he wanted to give them up, and Eggers

stated at the hearing that he was freely and voluntarily entering his guilty plea. The court

concluded that there was no evidence that Eggers did not make his plea knowingly,

voluntarily, and intelligently. Dkt. 31. Eggers did not appeal from the trial court's order

denying his motion to withdraw his guilty plea.

{¶ 7) On February 10, 2012, Eggers filed a "Motion for Evidentiary and Exculpatory

Evidence" in which he requested the trial court to order the State to provide additional

Tl-t£ COURT OF APPEALS OF Oi{IOSEC°ONI3 APPELLATE DISTRICT

evidence to be used in Eggers's anticipated petition for post-conviction relief. Six days

later, Eggers filed his petition for post-conviction relief, alleging that he received ineffective

assistance of trial counsel when his trial counsel failed to adequately prepare for trial and

that he was coerced into entering a guilty plea by his trial counsel. The motion for

exculpatory evidence and the petition for post-conviction relief are the subject of this

appeal.

(18) The trial court, without holding a hearing, reviewed the record and overruled

Eggers's motion for exculpatory evidence and his petition for post-conviction relief.

Specifically, the court found, in part:

The defendant has not submitted sufficient evidentiary documents

containing sufficient operative facts to show that he is entitled to any relief.

From the record of the plea agreement, and the transcript of the plea

hearing, it is clear that the defendant knew and understood he was entering

a guilty plea for felony murder; that the Court complied with Crim. R. 11(C)(2)

and that the defendant was under no coercion when he entered the plea

knowingly, voluntarily and intelligently. Dkt. 41.

(19) From the order overruling his motions, Eggers appeals.

H. The Trial Court Did Not Abuse its Discretion

by Not Holding an Evidentiary Hearing

{¶ 10} Six of the seven assignments of error set forth by Eggers concern the trial

court's failure to hold an evidentiary hearing prior to denying Eggers's petition for post-

conviction relief.

THE COUIt'I'OF APPEALS OF UHI(?

SECOND APPELLATE DISTRICT

{¶ 11} Eggers's First, Second, Third, Fourth, Fifth, and Sixth Assignments of Error

state:

THE TRIAL COURT ERRED BY DISMISSING THE APPELLANT'S

POST-CONVICTION PETITION WITHOUT HOLDING AN EVIDENTIARY

HEARING,THUSABUSING IT'S [SIC] DISCRETION, THUS PREJUDICING

THE APPELLANT & VIOLATING HIS 1ST, 5TH, 6TH, 8TH & 14TH U.S.

CONST. AMEND.S [SIC] AND ARTICLE I, SECTIONS 1, 9, 10 & 16 OF THE

OHIO CONST.

THE TRIAL COURT COMMITTED PLAIN ERROR Wt-IEN IT DENIED

THE APPELLANT'S PETITION WHEN RULING THAT INEFFECTIVE

ASSISTANCE OF COUNSEL IS TO BE RAISED ON APPEAL WHEN THE

EVIDENCE ATTACHED IS EVIDENCE THAT DEHORS THE RECORD,

DUE TO NO TRIAL RECORD, THUS VIOLATING THE APPELLANT'S 1 ST,

5TH, 6TH, 8TH & 14TH U.S. CONST. AMEND.S [SIC] AND ARTICLE I,

SEC.S [SIC] 1, 9, 10 & 16 OHIO CONST.

TRIAL COURTABUSED IT'S [SIC] DISCRETION WHEN IT DID NOT

HOLD AN EVIDENTIARY HEARING AND RESPOND TO THE VARIOUS

SWORN AFFIDAVIT'S [SIC]ATTACHED TO THEAPPELLANT'S PETITION

FOR RELIEF, THUS VIOLATING THE APPELLANT'S 1ST; 5TH, 6TH, 8TH

& 14TH U.S. CONST. AMEND.S [SIC] AND ARTICLE I, SEC.S [SIC] 1, 9,

10 & 16 OF THE OHIO CONST.

THE TRIAL COURT ERRED WHEN IT DID NOT HOLD AN

EVIDENTIARY HEARING RELATING TO THE SEVEN GROUNDS FOR

TI3E COURT OF APPEALS OF OHIOSECOND t1.PPE LLAI'E DISTRICT

RELIEF PERTAINING TO INEFFECTIVE ASSISTANCE OF COUNSEL,

THUS VIOLATING THE APPELLANT'S 1 ST, 4TH, 5TH, 6TH, 8TH & 14TH

U.S. CONST. AMEND.S [SIC] AND ARTICLE I, SEC.S [SIC] 1, 9, 10, 14 &

16 OF THE OHIO CONST.

THE TRIAL COURT ERRED WHEN IT DID NOT RELATE TO,

REVfEWAND HOLD AN EVIDENTIARY HEARING FOR THE I.A.C. ISSUE

FOR TRIAL COUNSELS [SIC] FAILURE TO FILE AN APPROPRIATE,

MEANINGFUL AND EFFECTIVE MOTION TO SUPPRESS EVIDENCE OF

THE GUN SHOT RESIDUE ALLEGED AGAINST THE APPELLANT AT

TRIAL. SUCH ACT'S [SIC] BY TRIAL COUNSELS [SIC]

INEFFECTIVENESS AND TRIAL COURTS [SIC] JUDICIAL MISCONDUCT

VIOLATED THE APPELLANT'S 1ST, 4TH, 5TH, 6TH, 8TH & 14 U.S.

CONST. AMEND.S [SIC] AND ARTICLE i, SEC.S [SIC] 1, 9, 10, 14 & 16

OHIO CONST.

TRIAL COUNSEL WAS INEFFECTIVE BELOW THE REQUIRED

STANDARD FOR FAILING TO INVESTIGATE THE APPELLANT'S CASE;

FOR FAILING TO SUBJECT THE PROSECUTIONS [SIC] CASE TO A

MEANINGFUL ADVERSARIAL TESTING AND: MORE AND THE TRIAL

COURT ERRED BY NOT RELATING TO THESE GROUNDS FOR RELIEF

AND ABUSED IT'S [SIC] DISCRETION WHEN NOT HOLDING AN

EVIDENTIARY HEARING, THUS, BOTH VIOLATED THE APPELLANT'S

1ST, 4TH, 5TH, 6TH, 8TH AND 14TH U.S. CONST. AMEND.S [SIC] AND

ARTICLE l, SEC.S [SIC] 1, 9, 10, 14 & 16 OHIO CONST. RIGHTS.

1':FIE COUI2T OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

{¶ 12) Eggers contends in these six assignments of error that the 42 exhibits

attached to his petition for post-conviction relief establish that he received ineffective

assistance of trial counsel and that he was coerced into entering his guilty plea. According

to Eggers, these exhibits demonstrate that his counsel provided ineffective assistance in

the following ways: failing to move to suppress the gun-shot-residue test and the

statements he made to the police; failing to interview vital witnesses; failing to have Brad

Locher undergo a second polygraph examination; and giving his mother bad advice

regarding whether Eggers should agree to the plea deal offered by the State. Eggers

contends that these exhibits are sufficient to demonstrate ineffective assistance of trial

counsel or, at a minimum, are sufficient to require the trial court to hold an evidentiary

hearing prior to overruling his petition for post-conviction relief. We do not agree.

A. Eggers Had the Burden of Submitting Evidentiary Documents Containing

Sufficient Operative Facts to Demonstrate the Lack of Competent Counsel

and that the Defense Was Prejudiced by Dounsel"s Ineffectiveness

{¶ 13) Petitions for post-conviction relief are governed by R.C. 2953.21(A)(1)(a),

which provides, in pertinent part:

Any person who has been convicted of a criminal offense * * * and

who claims that there was such a denial or infringement of the person's rights

as to render the judgment void or voidable under the Ohio Constitution or the

Constitution of the United States, * * * may file a petition in the court that

imposed sentence, stating the grounds for relief relied upon, and asking the

THE COURTOP APPEALS OF OHIO

SECOND APPELLATE DISTRICT

court to vacate or set aside the judgment or sentence or to grant other

appropriate relief. The petitioner may file a supporting affidavit and other

documentary evidence in support of the claim for relief.

{¶ 14} An appellate court reviews a trial court's decision granting or denying a post-

conviction petition under R.C. 2953.21 under an abuse of discretion standard. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, T 58. The term "abuse of

discretion" has been defined as a decision that is unreasonable, arbitrary, or

unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248

(1985).

{¶ 15} "[I]n a petition for post-conviction relief, which asserts ineffective assistance

of counsel, the petitioner bears the initial burden to submit evidentiary documents

containing sufficient operative facts to demonstrate the lack of competent counsel and that

the defense was prejudiced by counsel's ineffectiveness." State v. Jackson, 64 Ohio St.2d

107, 111, 413 N.E.2d 819 (1980).

{¶ 16) "A hearing is not automatically required whenever a petition for post-

conviction relief is filed. The test is whether there are substantive grounds for relief that

would warrant a hearing based upon the petition, the supporting affidavits and the files and

records in the case." State v. Strutton, 62 Ohio App.3d 248, 251, 575 N.E.2d 466 (2d

Dist.1988), citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). A

court may overrule the petition "without a hearing when the record, including the dialogue

conducted between the court and the defendant pursuant to Crim. R. 11, indicates that the

petitioner is not entitied to relief and that the petitioner failed to submit evidentiary

documents containing sufficient operative facts to demonstrate that the gui{ty plea was

T'1IE COURT OF APPEALS OF 01110

SECOND APPELLATE I)ISTRICT

-9-

coerced or induced by false promises." State v. Kapper, 5 Ohio St. 3d 36, 38, 448 N.E.2d

823 (1983).

B. The Affidavits Submitted with Eggers's Petition Do Not Contain Sufficient

Operative Facts to Establish ineffective Assistance of Counsel

(117) Affidavits may be submitted in support of post-conviction relief motions. R.C.

2953.21. "However, not all affidavits accompanying a postconviction relief petition

demonstrate entitlement to an evidentiary hearing, even assuming the truthfulness of their

contents." State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999). "[W[here a

petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief,

and the information in the affidavit, even if true, does not rise to the level of demonstrating

a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential."

Id.

{I 18} The evidentiary documents submitted with Eggers's petition include six sworn

affidavits by friends and family of Eggers. Exhibit 11 to Eggers's petition for post-conviction

relief is an affidavit from a personal friend of Eggers, Joseph Dugan. The affidavit states,

in pertinent part:

On the night of May 15, 2010, 1 walked up to [Eggers's] car, Brac!

[Locher] was in the passenger seat. He was the only one in the car. He was

handling a small semi-auto handgun. I asked him "VVhat the hell are you

doing?" He said not to worry, it was not loaded. I told him he was stupid and

to put the gun away. I walked away at that point, got in my truck and left.

THE COUIZT OF APPEALS OF OHIOSECOND APPF:I.[,A'rE DISTRICT

* * * I feel from Brad's response to me asking him "what the hell are

you doing" and his response being "not to worry, it was not loaded" is as if

Brad was in possession/control of the gun he was handling.

{¶ 19} Eggers contends throughout his petition for post-conviction relief and his

appellate brief that Brad Locher is a liar who framed Eggers for the murder of Snyder.

However, assuming the truthfulness of the averments in Dugan's affidavit, at most the

affidavit establishes that Locher had a gun in his hands at some point during the evening

that Julie Snyder was murdered. We conclude that Dugan's affidavit does not contain

sufficient operative facts to demonstrate the lack of competent counsel and that the

defense was prejudiced by counsel°s ineffectiveness, or that Eggers's guilty plea was

coerced or less than knowingly, voluntarily, and intelligently made.

{¶ 20) Exhibit 23 to Eggers's petition is a February 15, 2012 affidavitof Robert Buck,

Eggers's stepil"ather. Buck averred that Eggers's trial counsel, Adam Nemann, was initially

paid $6,000 as a retainer fee on January 17, 2011, and Nemann visited Eggers in jail on

that same day. In the latter portion of January 2011, Nemann was paid another $14,000

by Eggers's family. Buck avers that this additional payment was made despite the fact that

"Mr. Nemann had done nothing to this date in Adams [sic] defense." Buck also averred

that he and his wife met with and were interviewed by Nemann in February 2011.

According to Buck, Nemann explained to him that Brad Locher had stated to police that

Eggers had committed the murder and that Buck had assisted in hiding the murder

weapon.

(121) Buck's affidavit consists primarily of general allegations of deficiericies in

Nemann's representation of Eggers and some contradictory statements regarding this

THE COURT OF APPEALS OF 01110SECOND APPELLATE DISTRICT

.:,,-

representation. Furthermore, although Buck averred that Nemann "had done nothing to

this date" in the defense of Eggers, the date referred to by Buck was only a couple of

weeks into Nemann's representation of Eggers. Indeed, Buck stated in his affidavit that

Nemann had visited Eggers in jail on January 17, 2011, and interviewed Buck and his wife

in early February 2011.

ۦ 22} Assuming the truthfulness of the averments in Buck's affidavit, we conclude

that the affidavit does not contain sufficient operative facts to demonstrate the lack of

competent counsel and that the defense was prejudiced by counsel's ineffectiveness, or

that Eggers's guilty plea was coerced or less than knowingly, voluntarily, and intelligently

made.

(123) Attached as Exhibits 16, 24, and 36 to Eggers's petition are three affidavits

of Paula Buck, Eggers's mother. In Exhibit 16, Ms. Buck described the events as she

recalled them from the evening of May 15, 2010. She explained that she heard her son's

car pull up into her garage after midnight and she then heard Eggers and Brad Locher

arguing. Eggers informed her that Julie Snyder had been in a shooting. Eggers and

Locher then left the house, and Ms. Buck subsequently left the house to go purchase

cigarettes at a gas station. On her way there, she saw that the police had pulled over the

vehicle in which Eggers was riding. The police subsequently obtained a search warrant to

search Ms. Buck's residence, and Eggers was identified as a suspect in the murder of

Snyder and taken to the police station for questioning.

{¶ 241 In Exhibit 24, Ms. Buck addressed the retention of Adam Nemann as

Eggers's trial counsel. Nemann visited Eggers in jail on the same day that Ms. Buck

retained him as trial counsel. According to Ms. Buck, on February 2, 2011, she and her

'I'H1=`. COURT OF APPEALS OF OIiIOSECOND APPELLATE DISTRICT

-12-

husband drove to Nemann's office to be interviewed. During this interview, Ms. Buck was

provided with several police interviews of Brad Locher. Ms. Buck stated that she could

refute all of Locher's lies about her and her son. Nemann explained to Ms. Buck that he

was aware of Locher's chronic lying and that he planned to have Locher undergo another

polygraph test, despite the fact that Locher had already passed a polygraph. According

to Ms. Buck, Nemann also alerted her that Eggers's gun shot residue test came back

positive for gun-shot residue, but that Nemann "would file the appropriate motion attacking

the test and its results." Nemann also requested another $10,000 to hire an independent

investigator.

{¶ 25} In her third and final affidavit, Exhibit 36, Ms. Buck described her interactions

with Nemann leading up to her son's guilty plea. According to Ms. Buck, Nemann

consistently claimed that the case would proceed to trial and that he was filing the proper

motions in defense of Eggers. Ms. Buck stated that she had "many interactions" with

Nemann over the phone and in person. However, she averred that it eventually became

more difficult to get in contact with Nemann. On June 1, 2011, Nemann visited Eggers in

jail. Nemann subsequently called Ms. Buck and told her that he had recently reviewed new

evidence that showed Eggers's guilt in the death of Julie Snyder. Nemann told Ms. Buck

that he had worked out a plea with the State and that he wanted her help in talking to

Eggers about accepting the plea deal. Ms. Buck then stated that:

Mr. Nemann told me that he could get [Eggers] a 15 year to life

sentence with an early parole and if Adam did not take this plea and lost at

trial that Judge Rastatter has made it clear that he (Rastatter) would give my

son the maximum sentence and Mr. Nemann told me how corrupt and bad

THE COURT OF APPEALS OF C?I{1O

SECOND APPELLATE I7IS"I"RIC7'

Judge Rastatter was and that Adam had to take the plea, and for me not to

forget the New Indictment, which was bad too.

{¶ 26) On June 9, 2011, Ms. Buck asked Nemann in person about the new evidence

that led to his advice that Eggers take the plea deal. According to Ms. Buck:

Mr. Nemann said that he spoke to B.C.I. and had found out the G.S.R.

Test was administered properly and the Polygraph administered to Locher

was performed adequately and Locher was quetioned [sic] properly and that

Locher's latest police interview incriminated [Eggers] and my Husband and

it may lead to other arrest and that he had the investigator question Nicole

Bowers and David Hall Jr. and both retracted their statements and was

refusing to come to trial against [Locher].

{¶ 27) When Eggers arrived at the courtroom on June 9th, Nemann explained to

Eggers the evidence against him and urged Eggers to take the plea deal. Ms. Buck also

told Eggers to take the plea deal. Ms. Buck concluded her affidavit by stating that Nemann

had deceived her and her son and had essentially played on her love for her son to steal

$25,000 from her in attorney fees

(128) Eggers contends that the affidavits of Ms. Buck demonstrate that he received

ineffective assistance of trial counsel and was coerced into entering a guilty plea. For

example, Eggers points out that his counsel failed to file a motion to suppress the

statements he made to the police and the results of a gun-shot-residue test. However,

Eggers's counsel did in fact file a motion to suppress the statements Eggers made to the

police. Dkt. 18. Furthermore, Eggers has not submitted any evidence that a motion to

suppress the gun-shot residue test would likely have been successful. Also, it could have

TFIF COURT OF APPEALS OF OI-IIOSECOND APPELLATE DISTRICT

-I4-

been trial strategy for Eggers's trial counsel to wait to challenge the findings on cross-

examination at trial. Of course, Eggers's decision to plead guilty prevented a trial from

taking place.

(1291 Eggers also points to the allegations in Ms. Buck's affidavits that trial counsel

had informed Eggers and herself that the trial judge was corrupt and that Eggers would

lose at trial and receive a maximum sentence. A lawyer's sincere assessment of the likely

outcome of a defendant's decision to reject a plea offer and go to trial does not constitute

ineffective assistance of counsel unless it is so clearly unwarranted that no reasonable

attorney would offer that. assessment. There is no evidence here that Nemann's

assessment was either insincere or unwarranted.

{¶ 30} Furthermore, let us assume, for purposes of analysis, that Nemann actually

made the comment about the trial judge that Ms. Buck attributes to him. Although a lawyer

may have contrasting duties as an officer of the court, the lawyer's duty to his client is not

breached when the lawyer offers his sincere opinion concerning the character of the trial

judge, even when that opinion is an unflattering one.

{¶ 31} Assuming the truthfulness of the contents of Ms. Buck's affidavits, we

conclude that the affidavits do not contain sufficient operative facts to demonstrate the lack

of competent counsel and that the defense was prejudiced by counsel's ineffectiveness or

that Eggers's guilty plea was coerced or less than knowingly, voluntarily, and intelligently

made.

{¶ 32} Attached as Exhibit 37 to Eggers's petition is an affidavit of Melissa Dugan,

a close friend of Eggers and his family. Dugan avers that she has worked in the legal field

in Clark County since 1989. Dugan accompanied Eggers's motherto Eggers's arraignment

'['HB C©URT' OF APPEALS OF O}{IOSECOND A4'PI;LLATE DIS"TRIC'T

-15-

on January 27, 2011. At the arraignment, Dugan offered her assistance to Eggers's trial

counsel. Nemann subsequently contacted Dugan and asked her to copy documents out

of Eggers's court case files and fax them to him, which she did. On June 3, 2011, Dugan

received information from her husband about the night of the murder that she believed

could prove to be beneficial to Eggers. She presented this information to Nemann, but

Dugan did not identify in her affidavit what this information was. Dugan believed that

Nemann did not give Eggers the necessary priority and opined that Nemann should have

conducted additional discovery and filed additional motions.

{¶ 33) Dugan does not aver that she has personal knowledge of all the work

performed by Nemann in preparation for Eggers's trial. Furthermore, her vague allegations

that her husband had key information to use in the defense of Eggers, which Nemann

ignored at the last hour, are insufficient to demonstrate ineffective assistance of counsel.

Assuming the truthfulness of the contents of Dugan's affidavit, we conclude that the

affidavit does not contain sufficient operative facts to demonstrate the lack of competent

counsel and that the defense was prejudiced by counsel's ineffectiveness, or that Eggers's

guilty plea was coerced or less than knowingly, voluntarily, and intelligently made.

(1341 Overall, the affidavit evidence submitted with Eggers's petition for post-

conviction relief is largely conclusory and often self-contradictory. Moreover, many of the

statements in the affidavits are based on opinions rather than objective facts gleaned from

personal knowledge. We conclude that even if we assume the truthfulness of the

allegations contained in the affidavits, Eggers has failed to satisfy his burden pursuant to

R.G. 2953.21.

THE C'OL,'RT OF APPEALS OF OHIO

SECONI) APPELLATE I7ISTRICT

-1

C. The Non-Affidavit Documents Submitted with Eggers's

Petition Do Not Contain Sufficient Operative Facts

to Demonstrate Ineffective Assistance of Counsel

{¶ 35) Eggers submitted numerous other exhibits with his petition for post-conviction

relief. These exhibits consisted of text messages; phone records; pictures; letters from his

trial counsel; the transcripts from police interviews with Eggers, Brad Locher, and other

potential witnesses; a report from a polygraph of Locher; property receipts from the

Springfield Police Department; Locher's criminal history; a gun-shot-residue test showing

gun-shot residue on samples from Eggers; an inmate visitor log report; legal invoices from

his trial counsel; and articles from the internet relating to gun-shot residue.

(136) We have reviewed all of the exhibits attached to Eggers's petition for post-

conviction relief. Many of the exhibits contain information that would be damaging to

Eggers's defense. It is clear that Nemann relayed the damaging nature of this evidence

to Eggers. We are unpersuaded by Eggers's contentions that the exhibits he submitted

with his petition for post-conviction relief establish his innocence, demonstrate ineffective

assistance of counsel, and prove that his guilty plea was less than knowing, intelligent, and

voluntary. Eggers's petition fails to contain sufficient operative facts to demonstrate

ineffective assistance of counsel or require the trial court to hold an evidentiary hearing.

(137) Eggers's First, Second, Third, Fourth, Fifth, and Sixth Assignments of Error

are overruled.

IIl. The Trial Court Did Not Err in Denying Eggers's

Post-Conviction Motion for Additional Discovery

THE COURT OF APPEEILSOP OHIOSECnNI) APPI:; LLATE I> ISTKILT

{¶ 38) Eggers's Seventh Assignment of Error states:

TRIAL COUNSEL WAS INEFFECTIVE BELOW A REASONABLE

STANDARD FOR FAILING TO FILEASECOND DEMAND OF DISCOVERY

FOR EXCULPATORY EVIDENCE DURING THE TRIAL PROCESS AND

THE TRIAL COURT ABUSED IT'S [SIC] DISCRETION FOR DENYING

APPELLANT'S MOTION FOR EVIDENTIARY AND EXCULPATORY

EVIDENCE TO SUPPORT HIS POST-CONVICTION RELIEF. BOTH TRIAL

COUNSEL AND TRIAL COURTS [SIC] ACT'S [SIC] VIOLATED BRADY

VIOLATIONS, DUE PRC?CESSAND EQUAL PROTECTION OF LAW, THUS

VIOLATING APPELLANT'S 1 ST, 4TH, 5TH, 6TH, 8TH & 14TH U.S. CONST.

ADMEND.S [SIC] AND ARTICLE I, SEC.S [SIC] 1, 9, 10, 14 & 15 OHIO

CONST.

(139) In this assignment of error, Eggers contends that the trial court erred in

denying his post-conviction request for additional discovery. Eggers further contends that

his trial counsel was ineffective for not obtaining this additional discovery, which led Eggers

to become scared and enter into a guilty plea.

{¶ 40) The evidence sought by Eggers appears to be evidence relating to the lie-

detector test of Brad Locher, transcripts of police interviews with Brad Locher, and the gun

shot residue test performed on Eggers. Evidence relating to these subjects are attached

to Eggers's petition for post-conviction relief and the affidavits attached to his petition

consistently state that Eggers's counsel discussed these matters with Eggers. According

to Eggers and his mother, Nemann explained to them that this evidence would result in a

guilty verdict against Eggers if he chose to go to trial. Based on our review of the evidence

THE COURT OF APPEALS OF OHIOSECOND APPELIaATE I)ISTRICT

attached to Eggers's petition for post-conviction relief, we conclude that Nemann's advice

regarding Eggers's chances at trial was not completely unwarranted. We further conclude

that the trial court did not err in overruling Eggers's post-conviction motion for additional

discovery.

(141) Eggers's Seventh Assignment of Error is overruled.

IV. Conclusion

(142) All of Eggers's assignments of error having been overruled, the judgment of

the trial court is Affirmed.

FROELICH and HALL, JJ., concur.

Copies mailed to:

Lisa M. FanninAdam EggersHon. Douglas M. Rastatter

THE COURT OFAPPFALS OF QHIp

SE.COND APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

V.

ADAM EGGERS

Defendant-Appellant

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CLARK COUNTY

Appellate Case No. 2012-CA-33

Trial Court Case No. 11 -CR-40

(Criminal Appeal fromCommon Pleas C Cfl^ppP^

FINAL ENTRY cou^AuG %ZOi3

F11'Eq T CLEFtK

'F#UtlAL® E' \ "r.

Pursuant to the opinion of this court rendered on the 2nd day

of August , 2013, the judgment of the trial court is Affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the Clark County

Court of Appeals shall immediately serve notice of this judgment upon all parties and make

a ncte in the docket of the mailing.

r

MIKE FAIN, Presiding Judge

THE COURT OF APPEALS OF 01110SECOND APPELLATE DISTRICT

.2.

/y

JEFF% . F POELICH, Judge

MlCHA L T. HALL, Judge

Copies mailed to:

Lisa M. FanninClark County Prosecutor's Office50 E. Columbia Street, 4`h FloorP.O. Box 1608Springfield, OH 45501

Adam Eggers #610-525Lebanon Correctional InstitutionP.O. Box 56Lebanon, OH 45036

Hon. Douglas M. RastatterClark County Common Pleas CourtCourthouse, 101 N. LimestoneSpringfield, OH 45502-1120

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT