[Cite as State v. Davis,
2012-Ohio-32.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vsCase No. 09-CA-0019
ROLAND DAVIS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Licking County, Ohio, Case No. 04-CR-464
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 4, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT JOSEPH E. WILHELM
LICKING COUNTY PROSECUTOR ASSISTANT STATE PUBLIC DEFENDER
250 E. Broad Street- Suite 1400
BY: KENNETH W. OSWALT Columbus, Ohio 43215
Licking County Prosecuting Attorney
20 S. Second Street
Fourth Floor
Newark Ohio 43055
Licking County, Case No. 09-CA-0019 2
Hoffman, P.J.
(¶1) Defendant-Appellant Roland Davis appeals the January 30, 2009
Judgment Entry entered by the Licking County Court of Common Pleas denying his
request for leave to file a motion for new trial. Plaintiff-Appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
(¶2) This appeal stems from the murder of 86-year-old Elizabeth Sheeler by an
intruder to her apartment. The intruder murdered Sheeler by stabbing her in the neck
and chest. The intruder stole money from the apartment and fled the scene. The murder
went unsolved for almost four years. In 2004, DNA testing identified Appellant as the
murderer of Sheeler.
(¶3) Appellant was indicted on one count of aggravated murder while
committing kidnapping, aggravated robbery, or aggravated burglary. Count One
contained four death-penalty specifications, to wit: murder for the purpose of escaping
detection, apprehension, trial, or punishment, in violation of R.C. 2929.04(A)(3); murder
while committing, attempting to commit, or fleeing after committing kidnapping, in
violation of R.C. 2929.04(A)(7); murder while committing, attempting to commit, or
fleeing after committing aggravated robbery, in violation of R.C. 2929.04(A)(7); and
murder while committing, attempting to commit, or fleeing after committing aggravated
burglary, in violation of R.C. 2929.04(A)(7).
(¶4) Appellant was indicted with four additional counts: Count Two charged
Appellant with murder, Count Three charged kidnapping, Count Four charged
aggravated robbery, and Count Five charged aggravated burglary. The jury found
Appellant guilty of all charges, and he was sentenced to death. For a complete
Licking County, Case No. 09-CA-0019 3
statement of the underlying facts see, State v. Davis, 116 Ohio St.3d 404,
880 N.E.2d
31,
2008-Ohio-2.
(¶5) On January 3, 2008, the Ohio Supreme Court upheld Appellant’s
convictions and his death sentence after independently reviewing his sentence as
required by R.C. 2929.05(A). Id. Appellant filed a petition for certiorari with the United
States Supreme Court, which was denied on October 6, 2008. Davis v. Ohio (2008),
___ U.S. ____,
129 S.Ct. 137.
(¶6) Appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21
on June 23, 2006. The State filed an Answer and Motion for Summary Judgment. On
July 20, 2006, Appellant filed a Motion for Leave to Amend Post-Conviction Petition, an
Amended Post-Conviction Petition, a Motion for DNA Testing, a Motion for Discovery
and Evidentiary Hearing, a Motion for Appropriation of Funds for Dr. Robert L. Smith,
Clinical Psychologist, and a Reply Opposing the State’s Motion for Summary Judgment.
The State opposed all of those pleadings. On November 8, 2007 the State filed a
Supplemental Motion for Summary Judgment addressing Appellant’s Fifteenth and
Sixteenth Grounds for Relief. On November 14, Appellant mailed his Response to the
State’s Supplemental Motion for Summary Judgment; however, on that day, the trial
court issued its findings of fact and conclusions of law. Appellant then filed a Motion for
New Trial under Civ.R. 59(A). The trial court re-considered its decision in light of
Appellant’s Response to the State’s Supplemental Motion for Summary Judgment and
issued its final entry on January 14, 2008, granting the State’s motion for summary
judgment, thereby dismissing Appellant’s post-conviction relief petition.
Licking County, Case No. 09-CA-0019 4
(¶7) Appellant timely appealed the decision to this Court. While that appeal
was pending, Appellant filed his motion for leave to file a new trial motion which is the
subject of the instant appeal.
(¶8) We affirmed the trial court’s dismissal of Appellant’s amended PCR
petition on December 23, 2008. State v. Davis, 2008-Ohio-6841. Thereafter the trial
court entered its judgment filed January 30, 2009, denying Appellant’s motion for leave
to file a new trial motion. The trial court specifically found Appellant was not
unavoidably prevented from discovering the new evidence he attached to his motion.
(¶9) It is from that judgment entry Appellant prosecutes this appeal, assigning
as error:
(¶10) “I. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS
RIGHTS WHEN IT DENIED HIS REQUEST FOR LEAVE TO FILE A NEW TRIAL
MOTION. U.S. CONST. AMEND. XIV.”
(¶11) Appellant maintains he was unavoidably prevented from discovery of
evidence attacking the State’s use of DNA evidence as required by Crim.R. 33(B)
because his trial counsel was ineffective in failing to properly challenge the same. As
such, Appellant argues he “…could not be expected to present evidence of their own
ineffectiveness.”1
(¶12) Appellant bases his argument upon the affidavit submitted by his DNA
expert, Dr. Lawrence Mueller. While we agree Dr. Mueller’s affidavit was “outside the
record”, as then comprised at the time of his two previous appeals, such fact does
1
Appellant’s Brief at pg. 7.
Licking County, Case No. 09-CA-0019 5
nothing to demonstrate Appellant was unavoidably prevented from discovering it within
the applicable time limits of Crim.R. 33.
(¶13) We note Appellant raised a claim of ineffective assistance of counsel as
his Sixteenth Ground for Relief in his previously filed PCR petition. Therein, Appellant
relied upon the opinion of Attorney Gregory Meyer regarding the deficiencies of the
State’s DNA evidence. This Court discounted Meyer’s affidavit because, although he
may have consulted with experts, his opinions as expressed in his affidavit were not
those of an expert witness.
(¶14) We agree Dr. Mueller may well qualify as an expert witness and his
affidavit is “outside the record” as to issues previously raised and addressed by this
Court in the two previous appeals. However, that does not bear upon, let alone
demonstrate, Appellant was unavoidably prevented from seeking or obtaining Dr.
Mueller’s testimony within the time parameters of Crim.R. 33.
(¶15) As accurately stated by the trial court in its entry, while Appellant’s trial
counsel’s ineffectiveness may or may not be grounds for a new trial, it does not
demonstrate Appellant was unavoidably prevented from procuring Dr. Mueller’s
testimony in the 120 days after the trial. Likewise, as noted by the trial court, the fact
Appellant could not raise his instant ineffective assistance claim based upon Dr.
Mueller’s affidavit in his previous motions and/or appeals, does not demonstrate he was
unavoidably prevented from timely discovering such evidence. As pointed out by the
trial court, Dr. Mueller’s affidavit shows most, if not all, of the sources and studies he
cites to support his statistical contentions were available at the time Appellant was
convicted.
Licking County, Case No. 09-CA-0019 6
(¶16) We find the trial court correctly determined Appellant’s motion for new trial
was untimely, and properly denied his request for a finding he was unavoidably
prevented from discovering the new evidence upon which he relies.
(¶17) Appellant’s assignment of error is overruled.
(¶18) The judgment of the trial court is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Licking County, Case No. 09-CA-0019 7
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ROLAND DAVIS :
:
Defendant-Appellant : Case No. 09-CA-0019
For the reasons set forth in our accompanying Opinion, the January 30, 2009
Judgment Entry entered by the Licking County Court of Common Pleas Court is
affirmed. Costs assessed to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
