State v. Bunch

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bunch, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 

              THE STATE OF OHIO, APPELLEE, v. BUNCH, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Bunch, Slip Opinion No. 

.]
Criminal      law—R.C.        2953.21—Postconviction-relief           petitions—Evidentiary
        hearing—Ineffective assistance of counsel—Eyewitness-identification
        expert testimony—When core of a defendant’s claim or defense turns on
        evidence that cannot be properly provided to jury without use of expert
        testimony, failure to engage experts can constitute deficient performance—
        Petitioner’s affidavit from eyewitness-identification expert provided
        sufficient operative facts to warrant evidentiary hearing regarding
        petitioner’s claim that he was prejudiced as a result of trial counsel’s
        deficient performance—Court of appeals’ judgment reversed and cause
        remanded to trial court for evidentiary hearing.
   (No. 2021-0579—Submitted April 12, 2022—Decided December 29, 2022.)
              APPEAL from the Court of Appeals for Mahoning County,
                           No. 18 MA 0022, 

.
                             SUPREME COURT OF OHIO




                               _________________
       DONNELLY, J.
       {¶ 1} In 2002, appellant, Chaz Bunch, was convicted of three counts of
rape, three counts of complicity to rape, aggravated robbery, kidnapping,
aggravated menacing, and several related firearm specifications. The key issue for
Bunch at trial was whether he was the person who committed these crimes. Bunch
maintained that he had been misidentified as the perpetrator.
       {¶ 2} Bunch filed a petition for postconviction relief in 2003, which he later
amended in 2017. Among his claims, Bunch asserted that his trial counsel had been
ineffective for failing to present expert testimony to help the jury understand the
unreliability of eyewitness identification, particularly under the circumstances in
which the victim, M.K., identified Bunch. The trial court rejected the claim without
holding a hearing, and the Seventh District Court of Appeals affirmed the trial
court’s judgment.
       {¶ 3} We conclude that Bunch’s ineffective-assistance claim presented an
issue that the trial court needed to examine at an evidentiary hearing before reaching
its decision. We therefore reverse the court of appeals’ judgment and remand the
cause to the trial court to conduct an evidentiary hearing on the eyewitness-
identification claim in Bunch’s petition for postconviction relief.
                                 BACKGROUND
       {¶ 4} On August 21, 2001, at 10:23 p.m., M.K. was about to go into her
workplace in Youngstown when she was kidnapped from off the street, robbed, and
repeatedly raped by a group of strangers. M.K. reported the crime immediately
afterward and provided the police with the license-plate number of the attackers’
car. At 11:30 p.m., a Youngstown police officer saw a car at a gas station with a
license-plate number that was nearly identical to the number reported. Video-
surveillance footage from the gas station showed that a young man with Bunch’s
features—a stocky build and dark complexion—was at the gas station at the same




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                                January Term, 2022




time as the suspicious car. Once the car exited the gas station, the officer began
following it and then awaited backup after the car parked in a residential driveway.
Police then apprehended three young men who were in the car: 15-year-old
Brandon Moore, 18-year-old Andre Bundy, and 21-year-old Jamar Callier. A
fourth person fled the vehicle on foot. Moore and Callier identified that person as
“Shorty Mack.”
       {¶ 5} Shortly before midnight, a police officer spotted a young man
hurrying down a nearby street, and the officer stopped the young man to speak with
him. The person gave the name “Chaz Bunch,” and he untruthfully claimed that he
was in the area because he had just stopped by his uncle’s house and was now on
his way to visit his cousin. The officer did not detain the young man and did not
write up any report that day regarding the interaction. Three days later, the officer
was informed that Chaz Bunch was suspected of being the person who had fled
from the police the night of the attack. The officer wrote a belated report about
their previous interaction.    The officer confirmed the young man’s identity
approximately one week later, when a detective showed him a picture of Bunch.
Bunch was arrested on August 27.
       {¶ 6} M.K. reviewed photo lineups of potential suspects on August 28. She
quickly and confidently identified Moore, Bundy, and Callier, but not the fourth
suspect. When reviewing the lineup that included Bunch’s picture, M.K. stated that
the photo of Bunch might be the fourth attacker, but she was not sure. She said that
she wanted to see a full-body photo, explaining that this attacker was in the backseat
and she “needed to see like his hands and roundness of his body.” Police did not,
however, provide M.K. with any additional photo lineups. On September 7, M.K.’s
boyfriend showed her a newspaper article that identified Bunch as a suspect. When
M.K. saw the picture of Bunch in the newspaper, she was certain that he was the
fourth attacker.
       {¶ 7} Of all the testing of fingerprints and DNA samples collected from




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                              SUPREME COURT OF OHIO




M.K., the car, and other items, none of the results were attributable to Bunch. Tests
of samples from a rape kit and M.K.’s clothing detected Moore’s DNA.
       {¶ 8} The state’s case against Bunch started in the juvenile court, as Bunch
was 16 years old at the time of the offenses. Because of Bunch’s age and the nature
of the offenses, he was subject to mandatory bindover to adult court without an
amenability hearing after the juvenile court made its probable-cause determination.
Bunch, Bundy, and Moore were tried jointly over their objections. Callier pleaded
guilty prior to trial and agreed to testify against his codefendants.
       {¶ 9} Bunch’s first attorney vigorously contested the validity of M.K.’s
identification of Bunch during the juvenile court’s probable-cause proceedings as
well as in a motion to suppress identification testimony and subsequent hearing at
the trial court. The first attorney also filed a motion for funds to hire an expert
witness regarding eyewitness identification; the trial court granted the motion.
However, that attorney withdrew from representation shortly after Bunch’s
suppression hearing because of a breakdown in the attorney-client relationship.
The trial court denied the suppression motion on April 17, 2002.
       {¶ 10} Despite the first attorney’s setting up the opportunity, the second
attorney appointed to defend Bunch did not engage any experts for trial. The
second attorney also trod lightly around the issue of Bunch’s identification at trial.
During defense counsel’s cross-examination of M.K., he hinted that by the time of
trial, her memory about the entire event might have faded similarly to the attorney’s
memory of vocabulary from Spanish class in high school. He pointed out that M.K.
had been uncertain at points about details such as the color and size of the guns that
some of the defendants had carried. He vaguely suggested that perhaps those
uncertainties arose because of the trauma she had suffered. He then asked M.K. to
confirm her observations about the fourth attacker’s physical attributes and
clothing. He asked her to confirm her process of identifying Bunch, her initial
uncertainty with the photo array, and her later certainty after seeing Bunch’s photo




                                           4
                               January Term, 2022




in the newspaper.
       {¶ 11} Callier confirmed Bunch’s identity in his testimony as a witness for
the state. Callier indicated that he knew who Bunch was because he had “seen
[him] around” for a few months. Callier acknowledged that he faced up to a 76-
year sentence for his participation in the offenses against M.K. and that he had
agreed to testify in exchange for the state’s reduction of charges and
recommendation of a seven-year prison term. The state also promised that it would
not prosecute Callier for additional crimes, including a robbery that occurred
approximately 30 minutes before M.K. was kidnapped.
       {¶ 12} In October 2002, a jury found Bunch guilty on most counts, and the
trial court imposed an aggregate prison term of 115 years. After the Seventh
District reversed and remanded Bunch’s sentence due to the failure to properly
merge the firearm specifications, the trial court resentenced Bunch to an aggregate
prison term of 89 years. In June 2003, Bunch filed a petition for postconviction
relief in which he alleged ineffective assistance of counsel. The state did not
respond to the petition, and it remained unresolved on the court’s docket for over a
decade. Bunch made additional attempts to challenge his sentence and reopen his
appeal, which proved unsuccessful.
       {¶ 13} In 2014, with the help of the Ohio Innocence Project, Bunch applied
for DNA testing on the rape kit and other items, including a blue cap that Bunch
allegedly wore that night, that had been preserved from the August 21, 2001
offenses. Bunch argued that current, more sophisticated DNA testing procedures
might achieve better results from the samples. Because Bunch was the only one
among the four codefendants who claimed that he was innocent based on
misidentification, he contended that the detection of a fifth, unidentified male DNA
profile would be exculpatory evidence that would have changed the outcome of his
trial. The trial court denied Bunch’s application, holding that DNA testing could
not be exculpatory because the DNA evidence at trial did not identify Bunch. The




                                         5
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Seventh District affirmed, State v. Bunch, 7th Dist. Mahoning No. 14 MA 168,

, ¶ 101, noting that there was other evidence to support Bunch’s
convictions and hypothesizing that a fifth profile could end up matching M.K.’s
boyfriend, id. at ¶ 78.
        {¶ 14} In 2017, Bunch filed an amended postconviction petition.1 The
amended petition asserted that Bunch had a right to be resentenced pursuant to a
recent decision of this court regarding one of his codefendants, see State v. Moore,

, 

, 

. It also claimed that Bunch’s
bindover proceedings were invalid under another recent decision, State v. Aalim,

, 

, 

 (“Aalim I”), vacated on
reconsideration, 

, 

, 

 (“Aalim II”).
And lastly, Bunch’s amended petition asserted that trial counsel had been
ineffective for failing to procure an eyewitness-identification expert to analyze
Bunch’s case and testify at trial. Bunch stated during briefing that his trial counsel
had since received a stayed suspension from the practice of law for neglecting a
criminal matter in 2003 and 2004—shortly after the attorney had represented Bunch
at trial. After being disciplined multiple times for neglecting cases and other
matters, the attorney was indefinitely suspended from the practice of law in 2016.
To support his ineffective-assistance claim, Bunch attached an affidavit from Dr.
Scott Gronlund, an expert in the field of eyewitness identification.
        {¶ 15} Gronlund averred that M.K.’s identification of Bunch was not likely
to be accurate. Gronlund explained that when a witness is first asked to identify a
perpetrator among a group of suspects, a high-confidence identification at that
initial test of memory is very likely to be accurate. But when a witness is not
confident about identification, any selection made at that time is far less likely to


1. Because the state did not file an answer or motion in response to Bunch’s 2003 petition, Bunch
was permitted by statute to “amend the petition with or without leave or prejudice to the
proceedings.” R.C. 2953.21(G)(2).




                                               6
                                 January Term, 2022




be accurate. Gronlund also explained that it has been well known for decades that
any identification of a perpetrator after an initial attempt tends to be unreliable:


       The very act of remembering changes memory, which is one reason
       why it is not possible to get an uncontaminated memory report from
       an eyewitness more than once. * * * Our memory system is not
       good at keeping track of WHY something is familiar. We typically
       only weakly encode the source of a memory (did I read about this
       event, see it myself, or did you tell me about it?) because the source
       is seldom important. Consequently, witnesses can have difficulty
       determining why a person or a photograph looks familiar.
       Eyewitnesses may not realize that an individual can look familiar
       due to a previous exposure (from a photo in the newspaper) rather
       than from having seen the individual commit the crime. This
       phenomenon is called unconscious transference * * *. The “flash of
       recognition” that occurred to the victim upon seeing the suspect’s
       photo in the newspaper did not represent an independent test of her
       memory for the rapist. Instead, it is likely that the victim matched
       her memory for the lineup photo of Bunch to the photo of Bunch in
       the newspaper, and not to her memory for the rapist. There is no
       doubt that the lineup photo and the newspaper photo are the same
       person; but, of course, that is not the relevant question. The relevant
       question is, was Bunch one of the rapists? As a result of the initial
       test, the lineup photo of Bunch has become the face of the rapist.


Gronlund concluded that M.K.’s inability to provide a confident identification of
the fourth perpetrator rendered her choice more likely to be inaccurate. He further
concluded that M.K.’s later identification of Bunch was “likely a product of




                                           7
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suggestion and inference, and therefore more prejudicial than probative.” Gronlund
explained that “[t]he identification of the suspect from the newspaper photo does
not represent an independent test of the victim’s memory, but rather likely arose
from unconscious transference. Research shows that the confidence reported in a
subsequent identification attempt is poorly diagnostic of accuracy.”
       {¶ 16} The state conceded that Bunch was entitled to a new sentencing
hearing under Moore but contested the remainder of Bunch’s petition. The state
filed what it styled a motion for judgment on the pleadings pursuant to Civ.R.
12(C), in which it requested dismissal under the standards governing
postconviction petitions in R.C. 2953.21. The state filed a proposed judgment entry
for its own motion, which the trial court adopted verbatim in an entry issued the
next business day.
       {¶ 17} The entry held that Bunch’s bindover claim under Aalim I was no
longer viable, as Aalim I had since been reconsidered and vacated in Aalim II, 

, 

, 

. The entry rejected Bunch’s
ineffective-assistance claim, holding that “an eyewitness identification expert
would not have altered the trial’s outcome,” because Callier’s testimony
corroborated M.K.’s identification of Bunch. The entry also held that an attorney’s
failure to use an expert witness and instead rely on cross-examination does not
constitute ineffective assistance of counsel as a matter of law.
       {¶ 18} Bunch filed a notice of appeal in the Seventh District, which
remanded the case in part for resentencing. A new trial judge presided over
Bunch’s third sentencing hearing and ultimately imposed an aggregate prison term
of 49 years. The trial court also classified Bunch as a sexual predator under the
standards of Megan’s Law. Bunch then amended his appeal to the Seventh District
to include arguments regarding the sentencing and sex-offender-classification
decisions. The Seventh District affirmed the trial court’s judgments in full. 2021-
Ohio-1244.




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                                January Term, 2022




       {¶ 19} In rejecting the claim of ineffective assistance of trial counsel, the
appellate court held Bunch to the standard established in Strickland v. Washington,

, 

, 

 (1984). The Seventh District
held that the decision to rebut eyewitness testimony through cross-examination
rather than an expert witness is a matter of trial strategy and does not constitute
ineffective assistance of counsel. 

 at ¶ 24. The court further held
that Bunch’s ineffectiveness claim failed because M.K.’s testimony was not the
sole evidence of Bunch’s identity. Id. at ¶ 25.
       {¶ 20} Bunch sought our discretionary review of the Seventh District’s
decision. We accepted the appeal on the following propositions of law:


               I. Trial courts should not deny a hearing on a postconviction
       petition based on a blanket rule that it is automatically a reasonable
       strategic decision to rely on cross-examination alone instead of
       consulting with and calling an expert witness.
               II. A child cannot be transferred to adult court without a
       finding that they are not amenable to treatment in juvenile court.
               III. When making a sexual predator finding, it is reversible
       error for the trial court to fail to state that it is holding the hearing
       pursuant to R.C. 2950.09(B).
               IV. The trial court erred when it sentenced Chaz Bunch
       because the findings supporting consecutive sentences are clearly
       and convincingly not supported by the record and the sentence is
       contrary to law.


See 

, 

, 

.                 Amici curiae
Innocence Project, Inc., and Ohio Innocence Project filed a brief in support of




                                          9
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Bunch’s first proposition of law. Numerous other amici curiae filed briefs in
support of or in opposition to Bunch’s second proposition of law.
       {¶ 21} We find merit to Bunch’s first proposition of law, and we reverse the
judgment of the court of appeals on those grounds. Based on our disposition, we
find it premature to address Bunch’s third and fourth propositions of law at this
time. If the arguments in the third and fourth propositions of law remain relevant
after the proceedings on remand, the parties may present those arguments to us in
any ensuing appeal. Finally, given the unique and protracted procedural history in
this case, we conclude that Bunch’s appeal is not a suitable vehicle for reviewing
procedures related to juvenile amenability.       We therefore decline to address
Bunch’s second proposition of law, and we dismiss the proposition as having been
improvidently accepted.
                                    ANALYSIS
       {¶ 22} We begin by emphasizing that Bunch’s first proposition of law
focuses on the standard for holding a hearing on a postconviction petition, not the
standard for ultimately granting relief on the petition. We are also mindful that
although the proceedings on Bunch’s amended postconviction petition took place
long after his conviction, his filing of the petition in 2003 was timely and therefore
subject to the standards of R.C. 2953.21 rather than to the stringent standards of
R.C. 2953.23 for untimely or successive petitions.
                                  Legal Standards
       {¶ 23} In order to grant a hearing on a timely postconviction petition, the
trial court must “determine whether there are substantive grounds for relief.” R.C.
2953.21(D). If the petition “is sufficient on its face to raise an issue that the
petitioner’s conviction is void or voidable on constitutional grounds, and the claim
is one which depends upon factual allegations that cannot be determined by
examination of the files and records of the case, the petition states a substantive
ground for relief.” State v. Milanovich, 

, 

 (1975),




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                                  January Term, 2022




paragraph one of the syllabus.
        {¶ 24} In determining whether the petition states a substantive ground for
relief, the trial court must consider the entirety of the record from the trial
proceedings as well as any evidence filed by the parties in postconviction
proceedings. R.C. 2953.21(D). If the record on its face demonstrates that the
petitioner is not entitled to relief, then the trial court must dismiss the petition. R.C.
2953.21(D) and (E). If the record does not on its face disprove the petitioner’s
claim, then the court is required to “proceed to a prompt hearing on the issues.”
R.C. 2953.21(F); see also State v. Hatton, ___ Ohio St.3d ___, 

,
___ N.E.3d ___, ¶ 28 (“The defendant is entitled to an evidentiary hearing when
the allegations in the motion demonstrate substantive grounds for relief”).
        {¶ 25} A trial court’s decision to grant or deny a petition for postconviction
relief after an evidentiary hearing is reviewed for an abuse of discretion. State v.
White, 

, 

, 

. Applying the
wrong legal standard in a postconviction proceeding is also reversible error under
an abuse-of-discretion standard. 

.
        {¶ 26} To establish that trial counsel was ineffective, a defendant must
show that counsel’s performance was deficient and that the deficient performance
prejudiced the defendant. Strickland, 

, 

, 

. Regarding the prejudice prong, the defendant must prove that there is a
“reasonable probability” that counsel’s deficiency affected the outcome of the
defendant’s proceedings. 

. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 

 “When a defendant
challenges a conviction, the question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.” 

.
        {¶ 27} In this matter, we examine Bunch’s ineffective-assistance claim as
it relates to a decision whether to grant a hearing on a postconviction petition rather




                                           11
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than as it affects a decision on the merits of an appeal or on the merits of the
postconviction petition.           Thus, Bunch’s postconviction petition need not
definitively establish counsel’s deficiency or whether Bunch was prejudiced by it.
Instead, the petition must be sufficient on its face to raise an issue whether Bunch
was deprived of the effective assistance of counsel, and Bunch’s claim depends on
factual allegations that cannot be determined by examining the record from his trial,
see Milanovich, 

, 

, at paragraph one of the syllabus;
see also State v. Cole, 

, 

 (1982) (to merit a
hearing on a postconviction ineffective-assistance claim, a petitioner must proffer
evidence outside the record that if true, would show that counsel was ineffective).
                   The Courts Below Employed Incorrect Standards
         {¶ 28} The trial court’s entry dismissing Bunch’s postconviction petition
made no mention of Bunch’s allegation that his trial counsel’s failure to use an
expert witness was unreasonable in the specific context of his case.2 Instead, it
concluded that counsel’s actions were not subject to a finding of ineffective
assistance according to this court’s reasoning in State v. Nicholas, 

, 

 (1993) and State v. Hartman, 

, 

 (2001). It further concluded that because Callier identified Bunch in his
testimony, the expert testimony “would not have altered the trial’s outcome.” The
appellate court, citing Nicholas, State v. Thompson, 

, 

 (1987), and State v. Foust, 

, 

, 

, likewise presumed that trial counsel’s decisions were strategic and not subject


2. The trial court’s verbatim adoption of the state’s proposed findings of fact and conclusions of
law, in an entry journalized the next business day after the state’s filing, is not in and of itself
erroneous. The timing and form of the entry does, however, make it appear less likely that the court
actually considered the entirety of the trial record and the matters filed by the parties pursuant to
R.C. 2953.21(D). The United States Supreme Court has criticized the practice of adopting a
prevailing party’s proposed findings of fact and conclusions of law verbatim, and it has implied that
the practice might be suspect in certain postconviction scenarios. Jefferson v. Upton, 

, 

, 

 (2010).




                                                 12
                                January Term, 2022




to a finding of ineffective assistance. The appellate court held Bunch to the
standard of proving that “the outcome of the proceedings would have been different
but for counsel’s deficient performance.” 

 at ¶ 23.
       {¶ 29} Both courts failed to apply the proper standard for reviewing whether
a hearing was required on Bunch’s postconviction ineffective-assistance claim and
instead treated Bunch’s claim as one on the merits in a direct appeal. Both courts
also erroneously relied on the standard regarding the presumption of sound trial
strategy articulated in Nicholas, Thompson, Hartman, and Foust. The factual
context and the procedural posture of each of these four decisions render them
inapposite, and thus they do not control the resolution of Bunch’s claim.
       {¶ 30} The defendant in Nicholas argued on direct appeal that his counsel
was ineffective for failing to have a DNA expert testify and failing to object to the
admission of DNA evidence at Nicholas’s rape trial. Trial counsel had hired a DNA
expert, but with Nicholas’s consent, counsel did not have the expert testify and
instead cross-examined the state’s DNA experts. This court noted its recent
decision holding that DNA evidence is scientifically reliable and therefore
admissible. Nicholas at 436-437, citing State v. Pierce, 

,

 (1992). It was clear from the record that trial counsel chose not to
call the DNA expert to testify as a matter of trial strategy. This court therefore held
that it could not second guess such strategy.
       {¶ 31} In the direct appeal following a conviction for aggravated murder
with a rape specification in a death-penalty proceeding, the defendant in Thompson
argued that his trial counsel were ineffective for failing to have an expert witness
testify to rebut the state’s expert testimony regarding the physical evidence of rape.
This court held that in light of the circumstances of the trial, Thompson did not
overcome the presumption that counsel used sound trial strategy and that he did not
identify any errors that were so serious that the result of his trial was rendered
unreliable. Thompson, 

, 

.




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       {¶ 32} The defendant in Hartman argued in his direct appeal from a death-
penalty conviction that his trial counsel was ineffective for failing to engage a DNA
expert to test semen samples taken from the victim. The state did not test the semen
because Hartman had admitted to having sex with the victim on the same day that
she was killed. This court held that counsel’s decision not to engage an expert
could be considered strategy because the potential results of separate DNA testing
were speculative and could have been inculpatory. Hartman, 

,

.
       {¶ 33} The defendant in Foust argued in his direct appeal from a death-
penalty conviction that his trial counsel was ineffective for failing to hire a DNA
expert to refute the reliability of the state’s DNA evidence. This court held that
defense counsel’s decision to cross-examine the state’s DNA expert instead of
calling his own expert was a legitimate tactical decision because the potential
results of separate testing were speculative and could have been inculpatory. Foust,

, 

, 

. Foust’s
argument also appeared meritless on its face. Foust asserted that expert testimony
was crucial to his claim that he did not hit the victim with a hammer, but he had
confessed to picking up “something” and hitting the victim with it, and the circular
fracture on the victim’s skull was consistent with being hit with a hammer. Id. at
¶ 95-96.
       {¶ 34} Each one of these cases involves a trial counsel’s choice between
eliciting expert testimony through the cross-examination of the state’s expert
witness or eliciting expert testimony by presenting a defense expert. Such a choice
was not available in Bunch’s case. The only way for Bunch’s counsel to present
expert testimony to the jury regarding the psychology behind eyewitness
identification would have been through an expert for the defense. Counsel’s cross-
examination of M.K. could not have elicited the kind of evidence that would come
from the direct or cross-examination of an expert witness.




                                         14
                                January Term, 2022




       {¶ 35} Moreover, each of the above four cases involved a direct appeal. We
have repeatedly held that direct appeals are not the appropriate place to consider
allegations of ineffective assistance of trial counsel that turn on information that is
outside the record. See Hartman, 

, 

; State v.
Madrigal, 

, 

 (2000); State v. Keith, 

, 

 (1997); State v. Kirkland, 

, 2014-
Ohio-1966, 

. Because we cannot consider information outside
the record in a direct appeal, we must often conclude that a defendant’s claims are
speculative. 

; 

. And speculation alone cannot
overcome “the ‘strong presumption’ that counsel’s performance constituted
reasonable assistance.” 

, quoting State v. Bradley, 

, 

 (1989).
       {¶ 36} The inability to consider evidence outside the record in a direct
appeal is what led to our holding that “the failure to call an expert and instead rely
on cross-examination does not constitute ineffective assistance of counsel,”
Nicholas, 

, 

; see also Foust, 

, 

, 

; 

. Our holding in
Nicholas and its ilk, though broadly worded, is not applicable to postconviction
claims of ineffective assistance of counsel, where courts have the ability to consider
evidence outside the record and are not limited to mere speculation. In the present
context of postconviction litigation, it is possible and appropriate to question
whether a trial counsel’s decisions were in fact deliberate and strategic and whether
strategic decisions were reasonable ones. Trial strategy is usually within the “wide
range of reasonable professional assistance,” Strickland, 

, 

, 

, but strategy is not synonymous with reasonableness.
                   Bunch’s Claim Must Be Tested at a Hearing
       {¶ 37} Under the ineffective-assistance standard in Strickland and the
postconviction-hearing standard articulated in Milanovich, Bunch was required to




                                          15
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raise in his petition a triable issue of fact, supported by evidence outside the record,
whether his trial counsel was deficient and whether that deficiency prejudiced him.
Bunch’s evidence, if true, must show that trial counsel’s actions were not
reasonable “under prevailing professional norms,” 

, and that “there
is a reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt,” 

; see also Hinton v. Alabama, 

, 

, 

 (2014).
        {¶ 38} Bunch asserts that because eyewitness identification was the core of
the state’s case against him, the use of an expert regarding eyewitness identification
was the only reasonable strategy to support his defense. He argues that Dr.
Gronlund’s proposed expert testimony regarding the shortcomings of human
memory in the context of suspect-identification processes, as well as his opinion
that M.K.’s identification of Bunch was unreliable and not likely to be accurate, is
adequate to establish a reasonable probability that the jury would have had a
reasonable doubt that Bunch was the fourth individual who participated in M.K.’s
kidnapping, robbery, and rape.
        {¶ 39} If counsel makes a strategic choice “after less than complete
investigation,” counsel’s choice is “reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland,

, 

, 

. Although rare, there are
some instances in criminal cases when “the only reasonable and available defense
strategy requires consultation with experts or introduction of expert evidence.”
Harrington v. Richter, 

, 

, 

 (2011).
        {¶ 40} When the core of the state’s case against a defendant involves
evidence that the jury cannot properly understand without the assistance of expert
testimony, the failure to engage a competent expert can constitute deficient




                                          16
                                January Term, 2022




performance. Hinton, 

, 

, 

. And when
the core of a defendant’s claim or defense turns on evidence that cannot be properly
provided to a jury without the use of expert testimony, the failure to engage experts
can also constitute deficient performance. State v. Herring, 

,

, 

.
       {¶ 41} The defendant in Hinton was arrested in 1985 in connection with
robberies at three restaurants. During two of the robberies, a manager was killed,
while a manager survived being shot at the third restaurant. Two .38 caliber bullets
were found at each restaurant. The surviving victim identified Hinton in a photo
lineup. When Hinton was arrested, a .38 caliber gun was found in the house where
he was living. Hinton was tried on two capital-murder charges. The state’s case
relied on expert testimony that the bullets found at the crime scenes were fired from
the gun found at Hinton’s house. Defense counsel hired the only firearm and
toolmark expert that he could afford with the funds provided by the court. That
expert was easily discredited by cross-examination at trial.
       {¶ 42} Hinton argued in a postconviction petition that his counsel was
ineffective for failing to seek additional funds to hire a competent expert. He
proffered the testimony of different experts who indicated that the state’s experts
were likely incorrect in their assessments. Because the forensic evidence of the
bullets was “the core of the prosecution’s case,” 

, and because it was
revealed at a hearing on the postconviction petition that trial counsel had failed to
understand that he could request additional funds for an expert, the court concluded
that counsel’s performance had been deficient. After a remand, the state ultimately
dismissed the case against Hinton.        Hinton v. State, 

(Ala.Crim.App.2014), Reporter’s Note.
       {¶ 43} In Herring, the defendant was convicted of complicity to commit
aggravated murder, attempted aggravated murder, and course-of-conduct death-
penalty specifications. All that defense counsel offered in mitigation was that




                                         17
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Herring had a good relationship with his mother and siblings, and that some of
Herring’s codefendants did not receive the death penalty. The state rebutted the
latter point with evidence that the codefendants were juveniles or otherwise
dissimilarly situated.
       {¶ 44} In a postconviction petition that included affidavits from two
psychologists, Herring argued that counsel was ineffective for failing to provide
adequate mitigation evidence to help the jury understand the psychological and
intellectual factors behind the petitioner’s actions that led to the death-penalty
conviction. The trial court summarily dismissed the petition, but the appellate court
reversed, holding that an evidentiary hearing was necessary to determine whether
counsel’s failure to act was due to ignorance or due to a conscious strategic choice.
Herring, 

, 

, 

. After
further proceedings and appeals, this court determined that Herring’s trial counsel’s
failure to gather adequate evidence, particularly the testimony of competent
specialists in mitigation, was a result of inattention rather than strategy. Id. at
¶ 104. Accordingly, we held that counsel’s performance was deficient. Id. at
¶ 111. This court further concluded that the evidence regarding Herring’s social,
psychological, and neurological history was significant enough that there was a
reasonable probability that the result of his proceedings would have been different
had the evidence been properly presented. Id. at ¶ 133-134.
       {¶ 45} We conclude that Bunch’s postconviction petition stated a
substantive ground for relief. Bunch provided evidence that, if true, set out a prima
facie case that he was deprived of his constitutional right to the effective assistance
of counsel.
       {¶ 46} If Bunch’s allegations are true, counsel’s failure to procure expert
testimony, even though Bunch’s previous counsel had obtained funds to do so, was
unreasonable. According to the expert-witness testimony proffered in Bunch’s
petition, it has long been well known in the field of eyewitness identification that




                                          18
                                January Term, 2022




any identification of a perpetrator after an initial attempt tends to be unreliable
because it often involves unconscious transference. In order for the jury to properly
understand the science and psychology behind eyewitness identification, including
the concept of unconscious transference, the jury would need the assistance of
expert testimony.
       {¶ 47} The state did not present an expert to testify regarding eyewitness
identification. Bunch’s trial counsel therefore could not use cross-examination to
elicit any relevant expert information about the subject. Nor could counsel cross-
examine M.K. to elicit such testimony, and thus cross-examination in this context
was not a reasonable substitute for presenting expert testimony during Bunch’s case
in chief. It was also a questionable choice for counsel to forgo using an unbiased
expert to present a neutral perspective on the inherent fallibility of the human mind
to rebut M.K.’s identification of Bunch and to instead attempt to delegitimize
M.K.’s account of her own horrifying experience through cross-examination.
Counsel’s efforts did not prove successful in undermining M.K.’s memory; in fact,
counsel’s efforts significantly weakened Bunch’s defense by giving M.K. the
opportunity to reiterate how certain she was about her identification of Bunch.
       {¶ 48} The only information that appears on the face of the record regarding
counsel’s decision-making process is that counsel failed to use an expert witness
even though prior counsel’s request for funds to pay for an expert had been granted.
That information does not disprove Bunch’s claim that counsel’s actions were
unreasonable. Considering the circumstances that led to evidentiary hearings on
the postconviction petitions in Hinton and Herring, we conclude that an evidentiary
hearing is necessary in this case to reach the merits regarding whether counsel’s
performance was deficient.
       {¶ 49} Next, the expert-witness testimony proffered in Bunch’s petition, if
true, would establish that M.K.’s identification of Bunch was likely inaccurate. Use
of the expert would have provided a reasonable opportunity to impeach the




                                         19
                             SUPREME COURT OF OHIO




eyewitness-identification testimony of M.K. and to offer a viable reason why,
despite M.K.’s honest and sincere belief, the identification was incorrect. Because
identity was the central issue to the state’s case against Bunch, and because M.K.’s
identification of Bunch was central to the identity issue, impeachment of her
testimony would give rise to a reasonable probability that a factfinder would have
a reasonable doubt about Bunch’s guilt. See Hinton, 

, 

, 

.
       {¶ 50} Callier’s testimony against Bunch in exchange for a significantly
reduced sentence is relevant to the assessment of whether Bunch was prejudiced by
his counsel’s alleged deficient performance, but it does not detract from the fact
that M.K.’s identification of Bunch was the core of the case against him. Callier’s
testimony does not disprove Bunch’s claim that he was prejudiced by the failure to
discredit   M.K.’s   eyewitness-identification   testimony    with    expert-witness
testimony. We conclude that Bunch provided sufficient operative facts to warrant
an evidentiary hearing regarding his claim that he was prejudiced as a result of
counsel’s deficient performance.
       {¶ 51} We express no opinion on whether Bunch’s claims might have merit
once they are aired out in an evidentiary hearing. Our focus in this decision is not
on the merits of Bunch’s claim; instead, it is on the adequacy of the process leading
up to a decision on Bunch’s claim. “[A]ssurance that the public is protected
because the actual offender is behind bars depends on the confidence of the
conviction,” State v. Scott, ___ Ohio St.3d ___, 

, ___ N.E.3d ___,
¶ 22, and thus the state should be just as interested as petitioners are in having
hearings on legitimate challenges. The postconviction-petition process ensures the
integrity of convictions that were correctly entered in addition to ferreting out
wrongful convictions. A wrongful conviction achieves justice for no one, and a
confirmation that a petitioner was rightfully convicted only adds to our confidence
in the system.




                                         20
                                January Term, 2022




                                    CONCLUSION
       {¶ 52} The trial court erred in failing to hold an evidentiary hearing before
ruling on the ineffective-assistance claim in Bunch’s postconviction petition, and
the appellate court erred in affirming the trial court’s judgment in that respect.
Accordingly, we reverse the judgment of the Seventh District Court of Appeals on
Bunch’s first proposition of law, and we remand the cause to the trial court to
proceed to an evidentiary hearing on Bunch’s claim of ineffective assistance of
counsel.   As stated above, we decline to address Bunch’s third and fourth
propositions of law at this time, and we dismiss Bunch’s second proposition of law
as having been improvidently accepted.
                                                                 Judgment reversed
                                              and cause remanded to the trial court.
       STEWART and BRUNNER, JJ., concur.
       BEATTY BLUNT, J., concurs and would adopt proposition of law No. II as
well as proposition of law No. I.
       O’CONNOR, C.J., dissents.
       KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
       LAUREL BEATTY BLUNT, J., of the Tenth District Court of Appeals, sitting
for FISCHER, J.
                               _________________
       KENNEDY, J., dissenting.
       {¶ 53} Appellant, Chaz Bunch, seeks postconviction relief. In the first stage
of a postconviction-relief case, the trial court must decide whether a defendant will
receive a hearing. In this gatekeeping role, a trial court can deny a petition for
postconviction relief without an evidentiary hearing when the record does not
demonstrate that the defendant has set forth “sufficient operative facts to establish
substantive grounds for relief.” State v. Calhoun, 

, 

 (1999), paragraph two of the syllabus.




                                         21
                               SUPREME COURT OF OHIO




          {¶ 54} Bunch alleges ineffective assistance of trial counsel as his
substantive grounds for relief. To prove ineffectiveness, Bunch must demonstrate
that the deficient performance of his defense counsel prejudiced him. Strickland v.
Washington, 

, 

, 

 (1984). To prove
prejudice, Bunch must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” 

.
          {¶ 55} Based on the record in this case, I would hold that the trial court did
not err in determining that Bunch is not entitled to a hearing with respect to his
claim of ineffective assistance of counsel. Therefore, I dissent.
          The supporting affidavit: Expert-eyewitness-identification testimony
          {¶ 56} Bunch argues that his counsel was ineffective because counsel
should have hired an expert on eyewitness identification to test the reliability of the
victim’s identification of him. In support of his petition for postconviction relief,
Bunch filed an affidavit from an expert on eyewitness identification, Dr. Scott D.
Gronlund.
          {¶ 57} Gronlund offers two premises regarding the quality of eyewitness
testimony.     First, a low-confidence initial identification by a witness signals
increased likelihood of an inaccurate identification. Second, tests of memory that
follow an initial test may be distorted by suggestion and inference and are therefore
far more prejudicial than they are probative.
          {¶ 58} In his evaluation of this case, Gronlund reviewed 5 pages of victim
testimony from the trial, 81 pages of the transcript from a suppression hearing, and
a document he referred to as “Report to the Ohio Court of Appeals.” Gronlund
concluded that M.K.’s initial identification of Bunch was a low-confidence
identification, which is more likely to be inaccurate than a high-confidence
identification. He also concluded that her second identification of Bunch, when she
saw his picture in the newspaper, was “likely a product of suggestion and inference,




                                            22
                                   January Term, 2022




and therefore more prejudicial than probative.” Gronlund opined that the second
identification likely arose from unconscious transference.           Therefore, in his
opinion, M.K.’s identification of Bunch was not reliable. “Research shows that the
confidence reported in a subsequent identification attempt is poorly diagnostic of
accuracy,” Gronlund wrote.
           {¶ 59} Despite Gronlund’s statement that research suggests that M.K.’s
confidence in her second identification of Bunch by the newspaper photo is a poor
metric of accuracy, his report does not demonstrate that the trial court erred in
denying Bunch’s petition for postconviction relief without a hearing. The trial court
can dismiss a petition for postconviction relief without a hearing “where the
petition, the supporting affidavits, the documentary evidence, the files, and the
records do not demonstrate that [the] petitioner set forth sufficient operative facts
to establish substantive grounds for relief.” Calhoun, 

, 

, at paragraph two of the syllabus. Therefore, the trial court was required
to consider the record, which includes M.K.’s eyewitness testimony, other
corroborating evidence, and the testimony of one of Bunch’s codefendants, Jamar
Callier.
                               M.K.’s eyewitness testimony
           {¶ 60} At trial, M.K. testified that when she looked at a police photo lineup
that included Bunch and five other individuals, she identified Bunch’s picture as
the one she was “drawn to.” She told the detective that “if I had to sign this one, I
would,” but she did not fully commit to the identification because, in her words, “I
wanted a body shot. I needed a body shot because he was in the back seat of the
car, and he was shorter, and he was like rounder, and I needed to see like his hands
and roundness of his body.” In other words, M.K. wanted to see a photo lineup
with fuller pictures. Police, however, were unable to put together a lineup with full-
body shots for M.K.’s review, because they could not find enough people with the
right body type.




                                            23
                             SUPREME COURT OF OHIO




       {¶ 61} Several days later, however, M.K. saw a fuller picture of Bunch in
the Youngstown Vindicator newspaper. She testified that she knew immediately
that he was the assailant. M.K. explained, “And I wouldn’t have been satisfied, and
that’s all—I kept asking Detective Shuster, ‘Can I please see a body shot? Can I
see a body shot?’ And then when I saw it, I knew. And you just—you never forget
a body when it’s on top of you and you are forced.”
       {¶ 62} The contact between M.K. and Bunch during the kidnapping and
rape was not brief. Bunch and one of his codefendants, Brandon Moore, got into
her car with her, and they rode to the location of the rape. During that time, Bunch
was issuing orders and threats to her. Upon arrival at the empty parking lot, Bunch
and Moore raped M.K. repeatedly, orally and vaginally, and Bunch stuck his gun
in her face and held it on her face near her mouth and threatened to kill her.
       {¶ 63} Despite all the trauma she endured, M.K. was able to memorize the
license-plate number of the other car involved in the attack and reported it to police.
That led to the quick arrest of three of the assailants. In my view, the quality of
M.K.’s testimony diminishes Gronlund’s conclusions. And confidence in the
accuracy of her identification increases significantly in light of the other
corroborating evidence and testimony.
                       Corroborating evidence and testimony
       {¶ 64} Roughly half an hour after the kidnapping and rape of M.K., a police
officer spotted a vehicle at a gas station in town with a license plate that closely
matched the number M.K. had provided. Bunch and one of his codefendants were
captured on video surveillance inside the gas station. The officer pursued the car
from the gas station until it stopped in the driveway of a house a short time later.
Within minutes, Bunch was seen by another police officer “trotting” in the
neighborhood where the driver had just parked the car and fled on foot, leaving the
other three assailants behind. Bunch then knocked on the door of a stranger and
asked the stranger to pretend that he was Bunch’s uncle because police were after




                                          24
                                January Term, 2022




him—supposedly for a curfew violation. Bunch then paid the man to use his phone
to call a girlfriend and to drive Bunch to another neighborhood.
       {¶ 65} M.K. testified that during the rape, Bunch argued with his
codefendants that they should kill her. But Callier argued against it. Callier ended
the attack when he pushed Bunch off M.K. Callier’s testimony corroborated
M.K.’s testimony, and Callier identified Bunch as one of the perpetrators who
kidnapped and raped M.K. that night. Therefore, there was a second eyewitness
who identified Bunch as the fourth assailant.
       {¶ 66} In addition to M.K.’s testimony, then, the trial court could consider
the eyewitness testimony of Callier, the evidence that Bunch was with the
codefendants at the gas station soon after the attack, and the testimony of the
stranger whom Bunch asked to lie to police, putting him in the neighborhood where
the assailants were found and taken into custody.
                               No proof of prejudice
       {¶ 67} In Calhoun, this court stated that “we have held that it is not
unreasonable to require the defendant to show in his petition for postconviction
relief that such errors resulted in prejudice before a hearing is scheduled.” 

, 

. As stated above, to satisfy the prejudice prong of an
ineffective-assistance-of-counsel claim, Bunch must demonstrate a reasonable
probability that but for counsel’s alleged errors—here, the failure to hire an
eyewitness-identification expert—the proceeding’s result would have been
different. See State v. Tench, 

, 

, 

. In my view, in light of all the evidence of Bunch’s involvement in the
kidnapping and rape of M.K., the trial court did not err in rejecting Bunch’s
ineffective-assistance argument. There is not a reasonable probability that Bunch’s
trial would have ended differently had his attorney hired an eyewitness-
identification expert. And “[a] defendant’s failure to satisfy one prong of the
Strickland test negates a court’s need to consider the other.” State v. Madrigal, 87




                                         25
                              SUPREME COURT OF OHIO




Ohio St.3d 378, 389, 

 (2000), citing Strickland, 

, 

, 

.
        {¶ 68} The petition, the supporting affidavits, the documentary evidence,
the files, and the records do not demonstrate that Bunch set forth sufficient
operative facts to establish substantive grounds for relief. Gronlund’s affidavit
effectively sets forth his theories about eyewitness testimony, but those theories do
not overcome the evidence before the trial court in this case.
                                    Conclusion
        {¶ 69} Bunch claims that his counsel was constitutionally ineffective
because of counsel’s failure to hire an expert on eyewitness identification to cast
doubt upon M.K.’s identification of Bunch as one of the two assailants who raped
her in August 2001. In my view, the trial court did not err in not holding a hearing
on his petition for postconviction relief. The victim’s testimony, the corroborating
evidence, the testimony of one of Bunch’s codefendants, and the record as a whole,
including the affidavit signed by Bunch’s expert, demonstrate that Bunch did not
support his petition with sufficient operative facts to establish substantive grounds
for relief.
        {¶ 70} Furthermore, since the first proposition of law is not dispositive, I
would address the remaining propositions of law. Therefore, I dissent.
        DEWINE, J., concurs in the foregoing opinion.
                               _________________
        Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera and Edward A. Czopur, Assistant Prosecuting Attorneys, for appellee.
        Timothy Young, Ohio Public Defender, and Stephen P. Hardwick and
Charlyn Bohland, Assistant Public Defenders, for appellant.
        Dave Yost, Attorney General, and Samuel C. Peterson, Deputy Solicitor
General, urging affirmance on behalf of amicus curiae Ohio Attorney General.




                                         26
                                 January Term, 2022




       Anton Robinson and Lauren Gottesman, urging reversal on behalf of
amicus curiae Innocence Project, Inc.
       Mark A. Godsey and Donald Caster, urging reversal on behalf of amicus
curiae Ohio Innocence Project.
       Marsha L. Levick, in support of appellant’s second proposition of law, for
amicus curiae Juvenile Law Center.
       Leah R. Winsberg, in support of appellant’s second proposition of law, for
amici curiae Children’s Law Center and Rutgers Center on Criminal Justice, Youth
Rights, and Race.
       Kristina Kersey and Amanda J. Powell, in support of appellant’s second
proposition of law, for amicus curiae National Juvenile Defender Center.
        Yeura Venters, Franklin County Public Defender, and Timothy E. Pierce,
Appellate Division Chief, in support of appellant’s second proposition of law, for
amicus curiae Franklin County Public Defender.
       H. Louis Sirkin, in support of appellant’s second proposition of law, for
amicus curiae Association for Public Defense.
       Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe,
Assistant Public Defender, in support of appellant’s second proposition of law, for
amicus curiae Cuyahoga County Public Defender.
       Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss,
Juvenile Appellate Trial Counsel, in support of appellant’s second proposition of
law, for amicus curiae Hamilton County Public Defender.
       Theresa Haire, Montgomery County Public Defender, and Kay Locke,
Assistant Public Defender, in support of appellant’s second proposition of law, for
amicus curiae Montgomery County Public Defender.
       Kimberly P. Jordan, in support of appellant’s second proposition of law, for
amicus curiae Justice for Children Project.
                               _________________




                                         27