[Cite as State v. Padgett,
2011-Ohio-4547.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee :
C.A. CASE NO.
24345
v.
: T.C. NO. 10
CR 1531
JUSTIN L. PADGETT : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 9th day of September , 2011.
..........
LAURA M. WOODRUFF, Atty. Reg. No. 0084161, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CANDI S. RAMBO, Atty. Reg. No. 0076627, 15 W. Fourth Street, Suite 100, Dayton, Ohio
45402
Attorney for Defendant-Appellant
..........
FROELICH, J.
2
{¶ 1} Justin Padgett was found guilty by a jury of Receiving Stolen Property valued at
more than $500; he was sentenced to twelve months of imprisonment and ordered to pay
restitution in the amount of $541.73. Padgett appeals from his conviction, arguing that he
received ineffective assistance of counsel “post-trial” because his attorney did not file a
motion for new trial.
{¶ 2} On May 5, 2010, Jeff Heckart reported to the police that the wheels, rims, and
tires of his Chevy Malibu had been stolen during the previous night, while the car was parked
in his driveway. Heckart took the car to a dealership for repairs, and the dealership contacted
the Wheel Warehouse in Kettering to obtain new rims and tires for the car. The Wheel
Warehouse told the dealership that wheels and rims that were an exact match for Heckart’s
vehicle had just come into the store. The Wheel Warehouse contacted the Kettering Police
Department about this coincidence. Employees of the Wheel Warehouse provided the police
with descriptions of the individuals who sold the tires to the Wheel Warehouse and of their
vehicle, a white, early-model Chevy Blazer in poor condition.
{¶ 3} The next day, the Wheel Warehouse contacted the police again to report that the
men who had sold the Malibu rims and tires had returned to the store. The officer who
responded saw a white Blazer matching the description that had been provided the previous
day, and he stopped the vehicle. Frank Shadd, Justin Padgett, and Dwayne Heflin were
inside the Blazer, along with a hydraulic floor jack, gloves, a lug wrench, and a flash light.
{¶ 4} All three men were indicted for Receiving Stolen Property. Shadd was also
indicted for theft from an elderly person in excess of $5,000, related to a different incident.
Shadd pled guilty to the theft offense, in exchange for which the receiving stolen property
charge was dismissed, and he received community control sanctions. Heflin pled no contest
3
to receiving stolen property, and he was also sentenced to community control.1
{¶ 5} Padgett was tried by a jury, and Shadd testified against Padgett. 2 Heflin
appeared on the witness lists of both the State and Padgett, and he was subpoenaed, but he was
unavailable at trial.3 Padgett was found guilty and sentenced as described above.
{¶ 6} Padgett raises one assignment of error on appeal, claiming that “he received
ineffective assistance of counsel post-trial, in violation of [his] Sixth and Fourteenth
Amendment rights, as well as his rights under Section 10, Article 1, Ohio Constitution.” He
contends that trial counsel should have filed a motion for a new trial, pursuant to Crim.R.
33(A), when Dwayne Heflin became “available and willing to testify as a rebuttal witness to
Frank Shadd’s testimony.”
{¶ 7} We review alleged instances of ineffective assistance of trial counsel under the two prong analysis set forth in
Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v.
Bradley (1989),
42 Ohio St.3d 136. Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct
falls within the wide range of reasonable assistance. Strickland,
466 U.S. at 688. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness and that
his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been
different.
Id.
{¶ 8} Padgett relies on Criminal Rule 33(A)(6), which provides:
1
The dispositions of Shadd’s and Heflin’s case are not contained in the record before us, but these dispositions are a
matter of public record and are not disputed by the parties.
2
According to Shadd’s trial testimony, his plea agreement did not require
him to testify.
3
No specific explanation of Heflin’s unavailability is contained in the record, but it appears that his whereabouts were
unknown at the time of Padgett’s trial.
4
{¶ 9} “(A) A new trial may be granted on motion of the defendant for any of the following causes affecting materially his
substantial rights:
{¶ 10} “…
{¶ 11} “(6) When new evidence material to the defense is discovered, which the defendant could not with reasonable
diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered
evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such
evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing
of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.”
{¶ 12} “To warrant the granting of a motion for new trial in a criminal case, based on the ground of newly discovered
evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted,
(2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4)
is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former
evidence.” State v. Petro (1947), 148 Ohio St. 505, syllabus. Since the granting or denying of a motion for a new trial based on newly
discovered evidence is within the sound discretion of the trial court, this court will not reverse absent an abuse of discretion. State v.
Schiebel (1990),
55 Ohio St.3d 71, paragraph one of the syllabus. In order to find an abuse of discretion, we must determine that the
trial court’s decision was unreasonable, arbitrary, or unconscionable. State v. Adams (1980),
62 Ohio St.2d 151; Blakemore v.
Blakemore (1983),
50 Ohio St.3d 217, 219.
{¶ 13} Padgett does not provide any support for his claim that Heflin became
available to testify after the trial, was willing to testify, or that his testimony would have
helped Padgett. He has not produced an affidavit from Heflin – the source of the “newly discovered evidence” – as
required by Crim.R. 33(A)(6). Thus, even assuming that Heflin became available and was
willing to testify sometime after Padgett’s conviction, Padgett has presented no
evidence regarding the content of that testimony. Without such an affidavit by Heflin, we cannot
5
conclude that there was a “strong probability” that Heflin’s testimony would have changed the outcome of Padgett’s trial, if offered.
Nor can we conclude that Heflin’s testimony was not merely cumulative, or that it did not “merely impeach or contradict the former
evidence.” Petro, supra. Padgett also does not identify when Heflin became available to
testify, which would be relevant to determining whether trial counsel had any
continuing obligation to Padgett at that time. (Padgett is represented by a different
attorney on appeal.)
{¶ 14} We cannot conclude that counsel acted unreasonably when he failed to
file a motion for new trial or that Padgett was prejudiced by counsel’s failure to file a
motion for a new trial.
{¶ 15} The assignment of error is overruled.
{¶ 16} The judgment of the trial court will be affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Laura M. Woodruff
Candi S. Rambo
Hon. Mary Katherine Huffman
