[Cite as State v. Gray,
2021-Ohio-2446.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110099
v. :
RICARDO GRAY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 15, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-98-369837-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Janna R. Lifford, Assistant Prosecuting
Attorney, for appellee.
Ricardo Gray, pro se.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Ricardo Gray, appeals the trial court’s decision
denying his petition for postconviction relief. Finding no merit to the appeal, we
affirm.
In 1999, Gray was sentenced to 23 years to life in prison for murder,
felonious assault, and a firearm specification. In Gray’s direct appeal, this court
upheld his convictions and sentence. State v. Gray, 8th Dist. Cuyahoga No. 96170,
2000 Ohio App. LEXIS 3371 (July 27, 2000) (“Gray I”). Gray has since filed a litany
of motions, appeals, and original actions, each alleging that his convictions should
be overturned because trial witnesses have since recanted, the state withheld
evidence, and his trial counsel rendered ineffective assistance.1
In 2010, this court considered Gray’s eighth appeal seeking to overturn
his convictions. State v. Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11 (“Gray
VIII”). In that case, this court affirmed the trial court’s denial of a motion for new
trial, which was based on affidavits from Mixon, Michael Steele, and Kenneth Bell,
who each averred that Bennie Kern shot and killed the victim.
In 2016, Gray filed another petition for postconviction relief. He
supported his petition with purported newly discovered evidence obtained from a
1 State v. Gray, 8th Dist. Cuyahoga No. 76170, 2001 Ohio App. LEXIS 4234 (Sept.
17, 2001) (“Gray II”) (application to reopen granted because appellate counsel failed to
raise issue regarding consecutive sentences); State v. Gray, 8th Dist. Cuyahoga No.
76170,
2002-Ohio-1093 (“Gray III”) (sentence reversed and remanded because trial court
failed to make the requisite findings prior to imposing consecutive sentences); State v.
Gray, 8th Dist. Cuyahoga No. 81474,
2003-Ohio-436 (“Gray IV”) (sentence reversed
because trial court failed to conduct a new sentencing hearing as ordered); State v. Gray,
8th Dist. Cuyahoga No. 82841,
2003-Ohio-6643 (“Gray V”) (affirmed trial court’s denial
of motion for new trial and postconviction relief based on the trial court’s failure to hold
a hearing, affidavits from Anthony Mixon and Arthur Jackson recanting their trial
testimony, and merger of felonious assault and attempted murder); State v. Gray, 8th
Dist. Cuyahoga No. 83926,
2004-Ohio-5861(“Gray VI”) (affirmed imposition of
consecutive sentences); State v. Gray, 8th Dist. Cuyahoga No. 84677,
2004-Ohio-7030
(“Gray VII”) (affirmed trial court’s denial of motion for new trial based on affidavits from
Mixon and Jackson recanting their trial testimony).
2015 public records request by the Ohio Innocence Project. Specifically, he attached
a page of a police report that contained Edward McDowell’s police interview
summary, and Detective Michael Cipo’s “Original Investigation” report wherein he
described and sketched the crime scene. According to Gray, the state suppressed
this evidence, which contained exculpatory information that supported his trial
defense that the gunshots were fired during the fight, not after the fight dispersed as
argued by the state at trial. The trial court summarily denied the petition. Gray did
not appeal.
In April 2020, Gray filed yet another petition for postconviction relief,
contending that he obtained exculpatory evidence from a 2015 public records
request by the Ohio Innocence Project, and an affidavit in the mail. The evidence
Gray relied on was Detective Cipo’s police report and crime scene sketch, Edward
McDowell’s police interview summary, Gary Blanchard’s police interview summary,
and an affidavit from Derrick James. According to Gray, the state suppressed this
evidence, which contained exculpatory information that supported his trial defense
that the gunshots were fired during the fight, and that Bennie Kern shot and killed
the victim. He further maintained that this new evidence revealed that he did not
receive effective assistance of trial counsel. The trial court denied Gray’s petition as
untimely.
Gray now appeals, raising the following three assignments of error:
I. The trial court abused its discretion when it denied [Gray’s]
untimely postconviction petition without making a
determination as to whether [he] met the criteria under [R.C.]
2953.23 in violation of [his rights under the] 5th, 6th, and 14th
Amendment[s] to the United States and Ohio Constitution[s].
II. [Gray] was denied his 5th, 6th, and 14th due process rights, and
the right to a fair trial when the state suppressed evidence
favorable to [Gray] and allowed false testimony to go
uncorrected to obtain a conviction thereby render [his]
conviction and sentence void.
III. [Gray] was denied his constitutional right to effective assistance
of trial counsel thereby rendering his conviction and sentence
void.
Finding that all three assignments of error raise arguments that are intertwined, we
will address them together.
I. Standard of Review
R.C. 2953.21 provides:
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 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 claims for relief.
A petition for postconviction relief is a collateral civil attack on a
criminal judgment, not an appeal of the judgment. State v. Bell, 8th Dist. Cuyahoga
No. 105000, 2017-Ohio-7168, ¶ 10. It is a means to resolve constitutional claims
that cannot be addressed on direct appeal because the evidence supporting the
claims is outside the record. State v. Milanovich,
42 Ohio St.2d 46,
325 N.E.2d 540
(1975).
A trial court’s decision denying a postconviction petition should be
upheld absent an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-
Ohio-6679,
860 N.E.2d 77, ¶ 58. The trial court does not abuse its discretion in
dismissing a petition without a hearing if (1) the petitioner fails to set out sufficient
operative facts to establish substantive grounds for relief, or (2) the operation of res
judicata prohibits the claims made in the petition. State v. Abdussatar, 8th Dist.
Cuyahoga No. 92439,
2009-Ohio-5232, ¶ 15.
II. Untimely and Successive Petition
Gray filed this petition for postconviction relief approximately 20
years after the trial transcript in his direct appeal was filed in the court of appeals;
his petition is therefore obviously untimely — a fact that Gray does not dispute. See
R.C. 2953.21(A)(2). Moreover, Gray has previously filed multiple petitions for
postconviction relief in this case. R.C. 2953.23(A) precludes the trial court from
entertaining an untimely or successive petition for postconviction relief unless it
meets two conditions. First, the petitioner must show either that he was
unavoidably prevented from discovering the facts upon which he relies in the
petition, or that the United States Supreme Court has, since his last petition,
recognized a new federal or state right that applies retroactively to the petitioner.
Second, the petitioner must show by clear and convincing evidence that a reasonable
factfinder would not have found him guilty but for constitutional error at trial. See
R.C. 2953.23(A)(1). A person is unavoidably prevented from discovering facts when
he is unaware of those facts and was unable to discover them through reasonable
diligence. State v. Short, 8th Dist. Cuyahoga No. 84524, 2004-Ohio-7024, ¶ 15.
In this case, Gray contends that he was unavoidably prevented from
discovering the evidence supporting his petition because it was either suppressed by
the state in violation of Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194,
10 L.Ed.2d
215 (1963), or his trial counsel failed to investigate known witnesses or sufficiently
review the state’s discovery prior to trial. Specifically, he claims that he did not
discover that his trial counsel rendered ineffective assistance until December 2015,
when he received documentary evidence obtained by the Ohio Innocence Project’s
investigation and public records request, and in 2019, when he received an affidavit
from Derrick James in the mail. According to Gray, the discovery of these
documents reveals that his constitutional rights were violated and no reasonable
factfinder would have found him guilty. Gray’s arguments are without merit.
In support of his petition, Gray relies on Detective Cipo’s police report
and crime scene sketch, McDowell’s police interview summary, Blanchard’s police
interview summary, and an affidavit from James. According to Gray, Detective
Cipo’s report and McDowell’s summary support his trial defense that the gunshots
were fired during the fight, not after, as the state maintained at trial. He further
contends that Blanchard’s description of the potential shooter in his 1998 police
interview summary corroborated another trial witness’s testimony describing
Bennie as the shooter. He contends that his counsel failed to review this report, if
actually provided in discovery, because Blanchard’s description was contrary to his
testimony that he did not see who shot the victim. Finally, Gray contends that his
trial counsel failed to investigate the state’s evidence and contact James as a witness
for trial. James provided an affidavit stating that counsel never contacted him and
that Bennie Kern shot and killed the victim.
We find that Gray was not unavoidably prevented from discovering
Detective Cipo’s original investigation crime scene report and sketch and the police
summaries of their interviews with McDowell and Blanchard because these
documents were available to Gray in 2015 and he relied on Detective Cipo’s report
and McDowell’s summary in his 2016 petition to vacate his conviction. Moreover,
we note that Blanchard testified at trial and was subject to cross examination. Any
defect in trial counsel’s performance in cross-examining Blanchard could have been
raised on direct appeal or, perhaps, in Gray’s 2016 petition to vacate his conviction.
Regarding James’s 2019 affidavit, Gray again fails to establish that he
was unavoidably prevented from discovering James’s statement. He admits that he
identified James as a potential witness for trial but that counsel advised him that
James did not wish to testify. Accordingly, he knew of James at the time of trial and,
thus, on direct appeal. He now contends that his counsel was ineffective based on
James’s affidavit, which avers that Gray’s trial counsel never contacted him to testify
and that he saw Bennie Kern shoot the victim in the back. James’s refusal to
cooperate at the time of trial does not demonstrate that Gray was unavoidably
prevented from obtaining his statement earlier or that counsel was ineffective.
Gray cannot now seek to overturn his conviction based solely on trial
counsel’s failure to call certain witnesses or ask certain questions on cross-
examination. Trial counsel called three witnesses who all testified that “Bennie” was
the shooter. See generally Gray II. Bennie’s last name was purportedly discovered
in 2008, and the allegation that Bennie shot the victim has been raised repeatedly
in Gray’s petitions for postconviction relief. See Gray VIII at ¶ 7-8. His presentation
of additional witnesses who merely confirm Bennie’s identity or belief that he was
the shooter is cumulative and not sufficient to constitute newly discovered evidence.
Finally, even if Gray was unavoidably prevented from discovering this
documentary evidence, we find no constitutional violation based on the information
contained in the documents. Accordingly, Gray has failed to show by clear and
convincing evidence that no reasonable factfinder would have found him guilty
based on the information contained in the documents.
In light of on the foregoing, Gray has failed to satisfy both criteria of
R.C. 2953.23 that would have allowed the trial court to entertain his untimely and
successive petition for postconviction relief. And Gray’s challenge that the trial court
failed to make a threshold determination whether he satisfied the criteria under R.C.
2953.23 is without merit. A trial court is not required to issue findings of fact and
conclusions of law when it dismisses an untimely or successive petition for
postconviction relief. See State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116,
2002-Ohio-7042,
781 N.E.2d 155, ¶ 6; State ex rel. Carroll v. Corrigan,
84 Ohio
St.3d 529, 530,
705 N.E.2d 1226 (1999). Accordingly, the assignments of error are
overruled.
III. Res Judicata
Moreover, res judicata bars the arguments Gray raises because the
claims and documentary evidence upon which he relies have been raised or could
have been raised in his direct appeal or in his prior petitions. State v. Davis, 119
Ohio St.3d 422,
2008-Ohio-4608,
894 N.E.2d 1221 (the doctrine of res judicata bars
the further litigation of issues that were or could have been raised previously in a
direct appeal). The doctrine of res judicata can also bar successive petitions for
postconviction relief. State v. Apanovitch,
107 Ohio App.3d 82,
667 N.E.2d 1041
(8th Dist.1995). “While Ohio law may permit the filing of multiple petitions, a
petitioner does not have carte blanche to file successive petitions endlessly.” State
v. Cotton, 8th Dist. Cuyahoga Nos. 71234 and 71235,
1997 Ohio App. LEXIS 1882, 8
(May 8, 1997), citing State v. Steffen,
70 Ohio St.3d 399, 410,
639 N.E.2d 67 (1994).
“‘Trial courts are not required to entertain successive petitions which alleged the
same grounds as an earlier petition. … [A] [d]efendant should generally be
prepared, after thorough investigation, to present all relevant evidence to support
the particular grounds before broaching the subject.’” Cotton at 8, quoting State v.
Williams, 8th Dist. Cuyahoga No. 68613,
1996 Ohio App. LEXIS 100, 3 (Jan. 18,
1996).
In this case, Gray supports his petition with the same claims that he
has been raising for 20 years — shots were fired during the fight, and Bennie Kern
shot and killed the victim. And he primarily supports his petition with the same
documentary evidence and claims as those that he raised in his unsuccessful 2016
petition. Accordingly, res judicata would also bar Gray’s petition for relief, and we
find no abuse of discretion by the trial court in denying the petition.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
