[Cite as State v. Jackson,
2021-Ohio-3114.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29000
:
v. : Trial Court Case No. 2010-CR-1126
:
DENNIS DEVONE JACKSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 10th day of September, 2021.
...........
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
DENNIS DEVONE JACKSON, #A645-759, Southeastern Correctional Institution, 5900
B.I.S. Road, Lancaster, Ohio 43130
Defendant-Appellant, Pro Se
.............
DONOVAN, J.
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{¶ 1} Dennis Devone Jackson appeals pro se from an order of the Montgomery
County Court of Common Pleas, which overruled two motions: Jackson’s motion for the
trial court to reconsider its decision on his motion to dismiss, filed on December 26, 2017,
and Jackson’s motion for a new trial and renewed motion for acquittal, filed on January
11, 2018. We affirm the judgment of the trial court.
{¶ 2} Jackson was convicted in January 2011 of murder, aggravated burglary,
aggravated robbery, and a firearm specification. He was sentenced to an aggregate
term of 28 years to life in prison. We affirmed his conviction on direct appeal, overruling
11 assignments of error. State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-
2335. Since then, Jackson has pursued various avenues of relief. See State v.
Jackson, 2d Dist. Montgomery No. 27272, 2017-Ohio-1304, ¶ 3.
{¶ 3} On October 27, 2017, acting pro se, Jackson filed a motion to dismiss and a
notice of his intent to renew his “Motion for Acquittal; Motion to Dismiss.” The trial court
overruled the motions, noting that the relief sought by Jackson was similar to previous
motions before the court which had been overruled and that Jackson had presented no
new additional information for the court to consider.
{¶ 4} On December 26, 2017, Jackson filed a pro se motion asking the court to
reconsider its previous decision overruling his “renewed motion to dismiss” and to state
its findings on the record. The motion suggested that his speedy trial rights had been
violated. On January 9, 2018, Jackson filed a motion to dismiss the indictment, and on
January 11, 2018, he filed a motion for a new trial and a renewed motion for acquittal.
The January 11 motion included multiple attachments, including as Exhibit 01 an order
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from the Area One Court of Montgomery County, which was dated March 31, 2010, and
captioned “State of Ohio v. John Doe.” In the order, the Area One Court granted the
motion of the Trotwood Police Department for an order compelling Cincinnati Bell
Wireless to produce all phone records pertaining to certain phone numbers, finding that
the records were “relevant and material to an ongoing investigation of Aggravated
Murder.” Cincinnati Bell Wireless was specifically ordered to produce the records to
Detective Mike Pigman of the Trotwood Police Department.
{¶ 5} In his supporting memorandum, Jackson asserted that the State had failed
to obtain a search warrant before obtaining “his call detail records containing Cell Site
Location Information (“CSLI”)” and used the information from his phone records to obtain
his conviction. Citing the testimony of Detective Pigman at trial, Jackson asserted that
Exhibit 01 had not been “part of discovery” and that the exhibit established that “a search
and seizure ha[d] taken place.” According to Jackson, disclosure of the phone records
in discovery would have allowed trial counsel to review the phone records and to recall
witnesses “to challenge their credibility, as to their actual locations during this crime.”
Jackson argued that the State used these phone records to place him in the vicinity of the
crime, “which weighed heavily on the minds of the jurors.”
{¶ 6} Jackson also attached his own affidavit, in which he averred that the State
had conducted an illegal search and seizure of his Cincinnati Bell Wireless phone records
and had failed to provide documents related to that search (namely, the order requiring
Cincinnati Bell Wireless to provide the records to the Trotwood Police Department) in its
discovery. Jackson also averred that the State “conducted long term
monitoring/tracking” of him for more than 22 days and that it obtained the phone records
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without a warrant. Further, Jackson asserted in his affidavit that the State withheld the
phone records in violation of Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194,
10 L.Ed.2d
215 (1963). According to Jackson, the State’s disclosure of the phone records for the
first time on the last day of trial “present[ed] an irregularity of proceedings” and a “surprise
which ordinary prudence could not have guarded against,” and the State’s misconduct
required that the phone records be suppressed and a new trial ordered.
{¶ 7} On January 18, 2018, Jackson moved to supplement his motion to reconsider
and requested “Crim.R. 12(F) Findings.”
{¶ 8} On April 25, 2018, the court filed an order indicating its intention to decide
several pending matters and setting deadlines for the parties to file their responses and
replies. Jackson filed a reply to the court’s order in May 2018. In June 2018, the State
filed a memorandum contra Jackson’s motion for new trial and/or motion for acquittal,
arguing that the doctrine of res judicata barred Jackson’s motions.
{¶ 9} On April 16, 2020, Jackson filed a “Motion to Correct an Illegal/Void
Sentence,” and on May 26, 2020, Jackson filed a motion for leave to supplement that
motion.
{¶ 10} On June 8, 2020, Jackson filed a motion to supplement his January 11,
2018 motion for a new trial and a request for leave to file a delayed motion for a new trial.
In his attached affidavit, he asserted that the State had withheld the subpoena to
Cincinnati Bell Wireless “knowingly and purposefully,” knowing that it “was falsely
obtained without [an] affidavit,” and thereby prevented him during trial, on appeal, and
“during federal review” from presenting evidence of an illegal search and seizure, perjured
testimony, and a Brady violation. Jackson averred that an evidentiary hearing was
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required. Jackson also attached various correspondence to him from the Law Director
for the City of Trotwood, from his (Jackson’s) appellate counsel, from defense counsel at
trial, and from an Assistant State Public Defender.
{¶ 11} On December 11, 2020, the court denied Jackson’s April 16, 2020, “Motion
to Correct an Illegal/Void Sentence” and his May 26, 2020, motion for leave to supplement
that motion. The court treated the motions as seeking postconviction relief and
concluded that such relief was barred by res judicata. (The trial court’s judgment on
these matters is on appeal in a separate case, Montgomery App. No. 29001.) The same
day, the court overruled Jackson’s December 26, 2017, motion asking the court to
reconsider its previous decision overruling his “renewed motion to dismiss” and his
January 11, 2018, motion for a new trial and renewed motion for acquittal. The court
determined that the relief Jackson sought was similar to the relief sought in his previous
motions before the court, which had already been overruled, and that he had presented
no new or additional information for the court to consider.
{¶ 12} Jackson appeals pro se from the trial court’s order overruling his “Motion(s)
for New Trial/Acquittal and Motion(s) to Dismiss.” He raises two assignments of error,
which we will consider together:
JUDGE PARKER ABUSED HIS DISCRETION, AND ERRED WHEN
HE OVERRULED APPELLANT’S MOTION FOR NEW TRIAL, BEFORE
FINDING IF HE HAS PROVIDED CLEAR, AND CONVINCING PROOF
THAT HE WAS UNAVOIDABLY DELAYED IN SUBMITTING A TIMELY
MOTION.
DID JUDGE PARKER ABUSE HIS DISCRETION, HOLDING THAT
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APPELLANT HAD PRESENTED NO NEW ADDITIONAL EVIDENCE FOR
THE COURT TO CONSIDER?
{¶ 13} In his first assignment of error, Jackson asserts that the trial court
“erroneously ruled on his motion for a new trial” before addressing his “Motion for request
of leave” filed two years later. He asserts that the court failed to rule on his June 8, 2020
motion, which set forth the reasons for his delayed motion and the newly discovered
evidence obtained from a records request. Jackson asserts that the “trial court did not
in any way clarify by name of motion, or date of filing, that motion for leave had been
resolved and decided.” He argues that the court’s determination that the relief sought
was similar to previous motions and that no additional evidence had been presented had
been “properly rebutted” by his June 8, 2020 request for leave and the accompanying
documents.
{¶ 14} In his second assignment of error, Jackson points to Exhibit 01, the Area
One Court order which gave the Trotwood Police Department access to certain phone
records, to refute the trial court’s conclusion that he presented “no additional information”
for the court to consider. Jackson asserts that he had not had any knowledge of the
existence of Exhibit 01 and therefore had been prevented from asserting that the phone
records had been illegally searched and seized without a warrant, that he had been
tracked for more than 21 days without a warrant, and that he had been tracked
continuously, 24 hours a day, through cell site location information without a warrant.
Further, he argues that he was prevented from challenging whether the State’s actions
were proper under the Fourth Amendment to the U.S. Constitution and whether the
State’s failure to disclose information relevant to the case constituted a Brady violation.
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{¶ 15} The State responds that Jackson has litigated issues related to the
Cincinnati Bell Wireless records, and he raises nothing that was not already litigated or
that could not have been litigated; therefore, his motion was barred by res judicata.
According to the State, Jackson “appears to argue that he could not have previously
raised issues related to the order compelling production of records because he never
received it in discovery, and it was not entered on the journal of any court,” but the State
contends “that cannot be true, since Jackson already pressed his various claims” about
the phone records. The State directs our attention to State v. Jackson, 2d Dist.
Montgomery No. 27172, 2017-Ohio-1304, ¶ 5, and it asserts that Jackson is attempting
to circumvent the time limits for postconviction relief time by styling his motion as a motion
for a new trial.
{¶ 16} The State argues that Jackson’s attempt to challenge the admissibility of
phone record and tracking evidence was barred by res judicata. The State points out
that Jackson’s argument does not rely on United States v. Carpenter, __ U.S. __, 138
S.Ct. 2206,
201 L.Ed.2d 507 (2018), which was fairly recently decided, and that Jackson
“could have litigated any non-Carpenter claim on direct appeal.” Further, according to
the State, Jackson’s claim cannot be based on Carpenter, because he filed his motion
before the Supreme Court decided Carpenter; thus, if Jackson’s claim were to be
considered on the merits, it would fail because “the prevailing case law at the time
Jackson filed his motion was that police did not need a search warrant to obtain CSLI
[phone records].”
{¶ 17} The State further asserts that, even if Carpenter were considered,
Jackson’s claim would fail because: “(1) Carpenter does not apply retroactively to criminal
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judgments that are already final; (2) Jackson does not contend that the police obtained
his historical CSLI, only that they tracked him in real time; and (3) police obtained the
CSLI in good faith reliance on the prevailing case law at the time.” The State asserts
that Carpenter applies retroactively only to criminal judgments that are not final.
{¶ 18} In reply, Jackson asserts that the State has failed to show that Exhibit 01
did not represent newly discovered evidence that was previously undisclosed. He also
argues that the issues of unavoidable delay and entitlement to a new trial are “distinct”
and “may not be conflated.”
{¶ 19} The trial court addressed Jackson’s filings of December 26, 2017, and
January 11, 2018, in the order from which this appeal arose.
{¶ 20} This Court has previously stated:
“A trial court's decision on a Crim.R. 33 motion for a new trial will not
be reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist.
Montgomery No. 24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel,
55
Ohio St.3d 71,
564 N.E.2d 54 (1990), paragraph one of the syllabus; State
v. Matthews, 81 Ohio St.3d 375, 378,
691 N.E.2d 1041 (1998). “ ‘Abuse of
discretion’ has been defined as an attitude that is unreasonable, arbitrary or
unconscionable.” (Citation omitted.) AAAA Enterprises, Inc. v. River Place
Community Redevelopment Corp., 50 Ohio St.3d 157, 161,
553 N.E.2d 597
(1990).
State v. DeVaughns, 2d Dist. Montgomery No. 27727, 2018-Ohio-1421, ¶ 15.
{¶ 21} Pursuant to Crim.R. 33(A), “[a] new trial may be granted on motion of the
defendant for any of the following causes affecting materially his substantial rights: …
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(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. ….” “Motions
for new trial on account of newly discovered evidence shall be filed within one hundred
twenty days after the day upon which the verdict was rendered ….” Crim.R. 33(B).
While Jackson asserts that the court failed to initially address his June 8, 2020 motion,
which sought leave to file a motion for a new trial, that motion was improperly filed over
two years after he filed his motion for a new trial.
{¶ 22} This Court has further noted:
In order to file a motion for new trial after the expiration of the time
periods specified in Crim.R. 33(B), a defendant must first seek leave of the
trial court to file a delayed motion. State v. Lanier, 2d Dist. Clark No. 2009
CA 84, 2010-Ohio-2921, ¶ 15, citing State v. Warwick, 2d Dist. Champaign
No. 01CA33, 2002 WL 1585663, *2 (July 19, 2002); State v. Parker,
178
Ohio App.3d 574,
2008-Ohio-5178,
899 N.E.2d 183, ¶ 16 (2d Dist.). “To
obtain leave, defendant must demonstrate by clear and convincing
evidence that he or she was unavoidably prevented from timely filing the
motion for a new trial or discovering the new evidence within the time period
provided by Crim.R. 33(B).” (Citations omitted.) Warwick at *2. “A
defendant is entitled to a hearing on a motion for leave to seek a new trial if
he submits documents that on their face support his claim of being
unavoidably prevented from meeting Crim.R. 33's time requirement.”
State v. Hiler, 2d Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing
Lanier at ¶ 16.
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“ ‘[A] party is unavoidably prevented from filing a motion for new trial
if the party had no knowledge of the existence of the ground supporting the
motion for new trial and could not have learned of the existence of that
ground within the time prescribed for filing the motion for new trial in the
exercise of reasonable diligence.’ ” Parker at ¶ 16, quoting State v.
Walden, 19 Ohio App.3d 141, 145-146,
483 N.E.2d 859 (10th Dist.1984).
“[A] defendant fails to demonstrate that he or she was unavoidably
prevented from discovering new evidence when he would have discovered
that information earlier had he or she exercised due diligence and some
effort.” State v. Lenoir, 2d Dist. Montgomery No. 26846, 2016-Ohio-4981,
¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101, 2015-Ohio-
3507, ¶ 11, citing Warwick.
(Emphasis added.) DeVaughns at ¶ 18-19.
{¶ 23} Jackson failed to show by clear and convincing evidence that he was
unavoidably delayed in presenting a timely motion or prevented from discovering the “new
evidence” upon which he relies, namely Exhibit 01. In State v. Jackson, 2d Dist.
Montgomery No. 27272, 2017-Ohio-1304, ¶ 3, we noted that Jackson:
… filed a pro se document in the trial court on April 12, 2016
referencing the post-conviction relief statute, R.C. 2953.21, and requesting
a new trial. … The trial court construed the 42-page document as a
statutory petition for post-conviction relief. It concluded, however, that
Jackson had not timely filed the petition and had not demonstrated being
unavoidably prevented from discovering the facts upon which his five claims
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for relief depended so as to justify a later filing.
{¶ 24} This Court noted as follows:
… With regard to the “unavoidably prevented” issue, the trial court
concluded that Jackson's petition failed “to demonstrate he was unaware of
the facts supporting his post-conviction claims or that he was unable, in the
exercise of reasonable diligence, to discover such facts in a sufficiently
timely fashion to meet the R.C. 2953.21(A)(2) filing requirement.” …
More specifically, the trial court addressed each of Jackson's five claims
and reasoned as follows:
Though Mr. Jackson's asserted claims in support of post-
conviction relief are not particularly coherent, the first four claims
relate, in one fashion or another, to Mr. Jackson's assertion that
Cincinnati Bell cellular telephone records were obtained illegally,
were not timely disclosed, and that Michael Monta, Mr. Jackson's
trial attorney, was ineffective regarding the Cincinnati Bell records,
or that the Cricket Wireless cellular telephone records obtained by
the State were suppressed. The Cincinnati Bell records were an
issue at trial as reflected by the appellate decision resulting from Mr.
Jackson's appeal of his various convictions. State v. Jackson,
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2012-Ohio-2335, ¶¶ 69-75 (2d Dist.) 1 . Mr. Jackson, as such,
cannot credibly assert he was unaware of the facts relating to the
Cincinnati Bell records or was unavoidably precluded from
discovering the facts supporting his post-conviction claims which
rely, in one way or the other, upon the Cincinnati Bell records.
The Cricket Wireless records were not, to this writer's
recollection, a topic upon which trial testimony was received.
Nonetheless, the record produced by Mr. Jackson reflects that the
State, on June 29, 2010, provided the Cricket Wireless records to
Mike Monta, Mr. Jackson's trial attorney. (Ex. D-1 attached to
Dennis Jackson's Petition). This, of course, eliminates Mr.
Jackson's contention the Cricket Wireless records were
suppressed. Mr. Jackson, furthermore, does not explain how he,
in the exercise of reasonable diligence, was unavoidably prevented
from discovery of the Cricket Wireless records. In short, Mr.
Jackson, as it relates to his Cincinnati Bell and Cricket Wireless
assertions, has failed in his burden to establish that this court has
the jurisdictional ability to entertain his petition seeking post-
1
According to the 2012 Jackson opinion, Paula Papke testified that she “was a ‘security
analyst’ and ‘custodian of records’ with Cincinnati Bell and, in that capacity, she was
responsible for processing subpoenas and requests for records. She received such a
subpoena from Detective Pigman regarding the records for multiple telephone numbers
between March 10 and March 26, 2010.” Id. at ¶ 73. “The records were pertinent to the
State's case because they established that Jackson's cell phone signals were transmitted
by towers in the vicinity of Trotwood in the hours before and after the shooting; Jackson
told detectives that he had been in Kettering with the mother of one of his children at that
time.” Id. at ¶ 69.
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conviction relief.
…
(Footnote added.) Id. at ¶ 5.
{¶ 25} As noted by this Court:
… Res judicata “bars the assertion of claims against a valid, final
judgment of conviction that have been raised or could have been raised on
appeal.” State v. Ketterer, 126 Ohio St.3d 448,
2010-Ohio-3831,
935
N.E.2d 9, ¶ 59, citing State v. Perry,
10 Ohio St.2d 175,
226 N.E.2d 104
(1967), paragraph nine of the syllabus. In other words, “any issue that
could have been raised on direct appeal and was not is res judicata and not
subject to review in subsequent proceedings.” (Citations omitted.) State v.
Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245,
846 N.E.2d 824, ¶ 16.
State v. Sage, 2d Dist. Montgomery 28519,
2020-Ohio-3575, ¶ 14.
{¶ 26} The trial court properly determined that Jackson “presented no new
additional information” for the trial court to consider, since Jackson had previously argued
that the Cincinnati Bell cellular phone records had been obtained illegally and had not
been timely disclosed. As such, res judicata barred his arguments.
{¶ 27} Finally, we note that U.S. Supreme Court’s decision in Carpenter
“specifically addressed the government's ability to utilize cell phone data without a warrant
to ascertain a suspect's location and movement over a period of weeks, months, and
years” and concluded that “obtaining a CSLI without a warrant violates the Fourth
Amendment.” State v. Snowden, 2d Dist. Montgomery No. 28096, 2019-Ohio-3006,
¶ 29, 35. We further note that Snowden cited Griffith v. Kentucky,
479 U.S. 314, 328,
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107 S.Ct. 708,
93 L.Ed.2d 649 (1987), where the Supreme Court “held that new rules for
the conduct of criminal prosecutions must be ‘applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for cases in which the
new rule constitutes a ‘clear break’ with the past.’ ” (Emphasis added.) Snowden at
¶ 30. Jackson did not address Carpenter, and we agree with the State that it does not
apply here.
{¶ 28} For the foregoing reasons, Jackson’s assignments of error are overruled.
{¶ 29} The judgment of the trial court is affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
J. Joshua Rizzo
Dennis D. Jackson
Hon. Gerald Parker
