[Cite as State v. Cannon,
2019-Ohio-3941.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180474
TRIAL NO. B-9507633
Plaintiff-Appellee, :
vs. : O P I N I O N.
DEREK CANNON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 27, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ohio Innocence Project, Mallorie Thomas and Donald Caster, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Derek Cannon appeals the Hamilton County
Common Pleas Court’s judgment overruling his Crim.R. 33(B) motion for leave to file
a motion for a new trial. We reverse the judgment upon our determination that the
court abused its discretion in denying leave without an evidentiary hearing.
{¶2} In 1996, Cannon was convicted of aggravated murder for the death of
Darrell Depina, a fellow inmate at the Southern Ohio Correctional Facility in
Lucasville, Ohio (“Lucasville”), during the April 1993 riot there. Cannon
unsuccessfully challenged his conviction on direct appeal and in postconviction
motions filed in 1996, 1998, and 2009. See State v. Cannon, 1st Dist. Hamilton No.
C-950710, 1997 WL 78596 (Feb. 26, 1997), appeal not allowed,
81 Ohio St.3d 1523,
692 N.E.2d 1024 (1998); State v. Cannon, 1st Dist. Hamilton No. C-980389 (Mar.
10, 1999); State v. Cannon, 1st Dist. Hamilton No. C-090907 (Jan. 12, 2010).
{¶3} In 2018, Cannon moved under Crim.R. 33(B) for leave to file a Crim.R.
33(A)(6) motion for a new trial on the ground of newly discovered evidence. In this
appeal, he advances two assignments of error contending that the common pleas
court abused its discretion in denying leave without an evidentiary hearing. We
agree.
The Trial
{¶4} On the afternoon of April 11, 1993, Lucasville inmates seized control of
the facility’s cellblock “L” (“L-Block”), taking several correctional officers hostage
and locking inmates considered “snitches” into cells in the L-6 section of L-Block. A
“death squad” assembled by inmate Keith LaMar gathered bats, shovels, and weight
bars, and with their faces concealed in T-shirts, towels, and bandannas, they
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OHIO FIRST DISTRICT COURT OF APPEALS
proceeded to L-6, where they beat to death a number of inmates, including Darrell
Depina.
{¶5} An autopsy showed the cause of Depina’s death to be skull fractures
and brain injury from two “heavy injuries” to the head. According to the state’s
witnesses, when the riot began, Cannon was in the prison recreation yard and, with
fellow inmates LaMar and Louis Jones, entered L-Block to check on personal
belongings in his cell. When rioting inmates barred them from returning to the
recreation yard, LaMar successfully bartered for their return in exchange for killing
the “snitches” confined in L-6. LaMar, Jones, and Cannon then enlisted and armed
other inmates for the death squad and entered L-6. State’s witnesses placed Cannon
with the death squad in L-6, with a weapon or baseball bat in his hand. Other
witnesses testified to seeing Cannon beat Depina about the head and body. Jones
testified that he and Cannon had wanted nothing to do with killing “snitches,” but
that Cannon had later confessed to having struck someone in the head.
{¶6} Cannon took the stand and denied entering L-6. He testified that he
had gone alone into L-Block, proceeded to his cell, and changed his shoes. As he was
returning to the recreation yard, he walked toward L-6 in search of his friend LaMar,
but he continued on to the yard when he saw that the L-6 windows and doors were
taped shut. Defense witnesses who had been with Cannon in the recreation yard
confirmed that he had gone alone into L-Block to get his shoes and other personal
items from his cell and had returned alone ten to 15 minutes later with his shoes.
Witnesses who saw Cannon in L-Block testified that he had appeared to have armed
himself, as had other inmates in L-Block, with a small club, but that he had not been
masked and had not entered L-6 with the death squad. And a witness who was
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OHIO FIRST DISTRICT COURT OF APPEALS
confined in L-6 testified that Cannon had not been present when the “snitches” were
killed.
{¶7} Jailhouse informant Dwayne Buckley testified in the state’s case in
rebuttal. He stated that he had met Cannon in the Hamilton County Justice Center
while serving as a porter in Cannon’s pod, that they had discussed the Lucasville riot,
and that Cannon had confessed to being part of a group who had tortured and killed
“a guard” and shanked a “white guy” in another cell. Cannon, Buckley insisted,
declared that he would “beat” the charges and avenge himself on any “snitches” who
had implicated him. Buckley stated that he had reported Cannon’s confession
because he feared for his safety and the safety of others after an argument between
the two had escalated into threats by Cannon against Buckley and his family.
{¶8} In rebuttal, Cannon testified that any contact with Buckley had been in
the presence of two corrections officers. And Cannon denied threatening Buckley or
confessing to torturing and murdering a corrections officer.
The Motion
{¶9} In his April 2018 Crim.R. 33(B) motion, Cannon sought leave to file a
Crim.R. 33(A)(6) motion for a new trial on the ground of newly discovered evidence
or, in the alternative, an evidentiary hearing on his motion for leave. The motion for
leave was supported by Buckley’s April 2017 affidavit recanting his trial testimony.
Buckley averred that he and Cannon had discussed the riot, but that Cannon had not
confessed to killing the guard. Buckley stated that he had testified falsely at trial “to
get back at Cannon” after they had argued and to take advantage of an “offer[]” by
correctional officers at the jail of “some sort of minor incentive, maybe a few days off
of [his] sentence,” “in exchange for [his] statement.” Buckley asserted that he had
not intended to testify following his release from jail and had ignored a subpoena to
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OHIO FIRST DISTRICT COURT OF APPEALS
appear at Cannon’s trial. But he came to court after a police detective had come to
his place of work and told him that he “had to testify.” The details of that testimony,
Buckley insisted, were “made up,” and although he remained “angry [with] and
wanted to get back at Cannon,” he was providing his 2017 affidavit in an effort “to
make things right.”
{¶10} In opposition to the motion for leave, the state argued that the
proposed new-trial motion would not succeed on the merits and supported that
argument with an affidavit made by Buckley in May 2018, recanting his April 2017
affidavit. In his 2018 affidavit, Buckley averred that he had testified truthfully at
trial, and that his 2017 affidavit had been false and the product of threats against his
mother and against his nephew, who had been incarcerated with Cannon at the time.
{¶11} Cannon, in response, argued that the only issue presented by his
Crim.R. 33(B) motion was whether he was entitled to leave. He supported that
argument with a June 2018 affidavit made by Buckley’s brother, denying that he, his
son, or his mother had been threatened in connection with Cannon’s case, and with
an affidavit made by a private investigator, detailing her efforts from late 2016 to
April 2017 to secure Buckley’s 2017 affidavit. The investigator averred that the Ohio
Innocence Project had engaged her in late 2016 to locate and interview Buckley after
he had expressed to family members regret about his testimony at Cannon’s trial.
The investigator spoke with Buckley’s brother and then Buckley in early January
2017. Buckley told the investigator that a correctional officer had “coached” him on
his statement to police, that that statement had been prompted by “pressure on his
family that ‘turned into something else,’ ” and that his reward had been early release.
The investigator’s subsequent meetings with Buckley provided greater detail and
culminated in his April 2017 affidavit.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} The common pleas court declined to conduct an evidentiary hearing on
Cannon’s motion for leave and overruled the motion. The court also went on, “in an
abundance of caution,” to “consider[] … Cannon’s Motion for New Trial on the
merits,” to find that his “Motion for New Trial fail[ed] on the merits,” and to
“overrule[]” his “Motion for New Trial.”
Abuse of Discretion in Denying Leave without a Hearing
{¶13} Crim.R. 33(A)(6) permits a trial court to grant a new trial on the ground
that “new evidence material to the defense [has been] discovered, which the defendant
could not with reasonable diligence have discovered and produced at trial.” A Crim.R.
33(A)(6) motion must be filed either within 120 days of the return of the verdict or
within seven days after leave to file a new-trial motion has been granted.
{¶14} Crim.R. 33(B) provides that leave to file a Crim.R. 33(A)(6) motion for a
new trial out of time may be granted only upon “clear and convincing proof” that the
defendant had, within 120 days of the return of the verdict, been “unavoidably
prevented” from discovering, and from presenting in a new-trial motion, the
evidence upon which his proposed new-trial motion depends. See State v. Schiebel,
55 Ohio St.3d 71, 74,
564 N.E.2d 54 (1990); State v. Carusone, 1st Dist. Hamilton No.
C-130003,
2013-Ohio-5034, ¶ 32. A claim of unavoidable prevention must be
supported with evidence demonstrating that, within 120 days of the return of the
verdict, the movant did not know that the proposed ground for a new trial existed,
and that he could not, in the exercise of reasonable diligence, have learned of its
existence. State v. Mathis,
134 Ohio App.3d 77, 79,
730 N.E.2d 410 (1st Dist.1999),
rev’d in part on other grounds, State v. Condon,
157 Ohio App.3d 26, 2004-Ohio-
2031,
808 N.E.2d 912, ¶ 20 (1st Dist.). The court’s decision concerning leave may
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OHIO FIRST DISTRICT COURT OF APPEALS
not be overturned on appeal if it was supported by some competent and credible
evidence. Schiebel at 74;
Mathis at 79.
{¶15} Crim.R. 33(B) does not mandate an evidentiary hearing on a motion
for leave. But an evidentiary hearing is warranted when the motion for leave is
supported by evidentiary material that, on its face, demonstrates unavoidable
prevention. See Carusone at ¶ 33.
{¶16} We note at the outset that, under the bifurcated proceeding
contemplated by Crim.R. 33, the common pleas court erred when, “in an abundance
of caution,” it considered and overruled on the merits “Cannon’s Motion for New
Trial.” The rule required the court to decide only the motion before it—Cannon’s
Crim.R. 33(B) motion for leave to file a new-trial motion. And having overruled the
motion for leave, the court could not go on to decide on the merits a motion that was
not before it—a Crim.R. 33(A)(6) motion for a new trial on the ground proposed in
the motion for leave. See Carusone at ¶ 31.
{¶17} Moreover, we conclude that Cannon established an entitlement to an
evidentiary hearing on his motion for leave. Throughout his trial, in his direct
appeal, and in postconviction motions filed in 1996, 1998, and 2009, Cannon
consistently maintained that he had not murdered Delpino. His 2018 new-trial
proceedings were also predicated upon his claim of actual innocence. That claim was
advanced by the averments contained in Buckley’s affidavit, that a falling-out with
Cannon, along with law enforcement’s promise of early release, had caused him to
provide a statement to police and trial testimony that falsely incriminated Cannon in
Delpino’s death. And Cannon’s assertion in his motion for leave to move for a new
trial out of time, that he had been unavoidably prevented from timely discovering
that evidence and presenting it in a new-trial motion, was supported by the affidavit
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OHIO FIRST DISTRICT COURT OF APPEALS
of the Ohio Innocence Project’s investigator, describing her diligence in following
information provided in late 2016 by Buckley’s family to secure his 2017 affidavit
recanting his trial testimony. Thus, Cannon’s motion for leave, on its face, showed
that he had been unavoidably prevented from timely discovering, and from timely
presenting in a new-trial motion, that evidence of actual innocence. We, therefore,
conclude that Cannon demonstrated an entitlement to a hearing on the motion.
{¶18} Because Cannon was entitled to an evidentiary hearing on his Crim.R.
33(B) motion for leave to file a new-trial motion, the common pleas court’s judgment
overruling the motion for leave without such a hearing cannot be said to have been
based on a sound reasoning process. We, therefore, hold that the court abused its
discretion in overruling Cannon’s Crim.R. 33(B) motion. See State v. Hill, 12 Ohio
St.2d 88,
232 N.E.2d 394 (1967), paragraph two of the syllabus (holding that an
abuse of discretion is more than an error of law or judgment, but rather implies that
the court’s attitude was unreasonable, arbitrary, or unconscionable); State v. Morris,
132 Ohio St.3d 337,
2012-Ohio-2407,
972 N.E.2d 528, ¶ 14 (quoting AAAA Ents., Inc.
v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553
N.E.2d 597 [1990] to define an “unreasonable” decision as one that lacks a sound
reasoning process). Accordingly, we sustain the assignments of error, reverse the
court’s judgment, and remand this cause to the court below for further proceedings
consistent with law and this opinion.
Judgment reversed and cause remanded.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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