State v. Dowell

[Cite as State v. Dowell, 

.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                              No. 110629
                 v.                               :

JAMES DOWELL,                                     :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 3, 2022


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                               Case No. CR-03-435225-ZA


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory Ochocki, Assistant Prosecuting
                 Attorney, for appellee.

                 James A. Dowell, pro se.

MARY J. BOYLE, J.:

                   Defendant-appellant, James Dowell (“Dowell”), pro se, appeals from

the trial court’s judgment denying his motion for leave to file a motion for a new

trial. Dowell raises three assignments of error for review:
      (1) The trial court erred when it failed to satisfy Criminal Rule 25,
      allowing Judge McGinty to entertain the collateral pleading filed by
      appellant.

      (2) The trial court abused its discretion when it determined the
      appellant was not prevented from filing a timely motion for new trial
      within fourteen days after the jury verdict.

      (3) The trial court abused its discretion when it denied appellant’s
      motion for leave to file a new trial motion under Crim.R. 33(B), without
      holding a hearing to determine the threshold issue of whether appellant
      was unavoidably prevented from discovering his evidence within
      fourteen days of the trial verdict.

              For the reasons set forth below, we affirm the trial court’s judgment.

I.    Procedural History and Factual Background

              In March 2003, Dowell was charged with murder in violation of

R.C. 2903.02, with a three-year firearm specification (Count 1), and having a

weapon while under disability in violation of R.C. 2923.13 (Count 2). The matter

proceeded to trial in early September 2003. Count 1 was tried before the jury, and

Count 2 was tried before court. After the conclusion of trial, the jury found Dowell

guilty of Count 1, and the court found Dowell guilty of Count 2.

              The trial court sentenced Dowell to three years in prison on the

firearm specification in Count 1, to be served prior to and consecutive to 15 years to

life on the underlying charge in Count 1, and nine months on Count 2, to be served

concurrent to the sentences imposed on Count 1.

              Dowell timely appealed the convictions to this court, arguing that

there was insufficient evidence to support his convictions, his convictions were

against the manifest weight of the evidence, and the trial court erred when
instructing the jury. State v. Dowell, 8th Dist. Cuyahoga No. 83575, 2004-Ohio-

3870. This court found that the following facts were established at trial:

      On the morning of March 6, 2003, Chester Bright was fatally shot once
      in the chest by [Dowell].

      Prior to the shooting, [Dowell] and Chester knew each other from
      working odd jobs at local bars. Both [Dowell] and Chester were
      characterized as “mentally disabled.”

      In the early morning hours of March 6, 2003, Chester came to
      [Dowell’s] house to help him with some house and yard work. [Dowell]
      was a coin collector and noticed that some of his coins were missing.
      [Dowell] questioned Chester about the missing coins and a fight
      ensued. [Dowell] reached for a gun and shot Chester once in the chest.
      [Dowell] then put the gun in the basement. Approximately 50 minutes
      after the shooting, [Dowell] made a 911 telephone call to the Cleveland
      Police Department.

      On March 20, 2003, [Dowell] was indicted on two charges: One count
      of murder, in violation of R.C. 2903.02 with a firearm specification and
      one count of having a weapon while under disability, in violation of
      R.C. 2923.13. [Dowell] entered a plea of not guilty at his arraignment
      and his case proceeded to a jury/bench trial.

      At trial, the State alleged that [Dowell] purposely caused the death of
      Chester after getting into an argument with him about the missing
      coins. [Dowell] asserted that he was fighting with Chester and did not
      intend to kill him.

      The State first presented the testimony of John Gigante, a dispatcher
      with the Cleveland Police Department. He testified that he received a
      911 call from [Dowell] at approximately 8:57 a.m. on the morning of
      March 6, 2003.

      The State then called Officer Robert Miles of the Cleveland Police
      Department. He testified that he responded to the 911 call made by
      [Dowell] and emergency personnel attempting to revive Chester. He
      testified that he saw a large number of coins surrounding Chester’s
      body. He testified that [Dowell]told him that he had gotten into a fight
      with Chester over money. He testified that [Dowell]did not tell him
      that Chester had been shot until after Chester had been transported to
      the hospital. He testified that [Dowell] admitted, after repeated
questioning, that the gun used to shoot Chester was in the basement.
Finally, Officer Miles testified that once he obtained the weapon from
the basement, [Dowell] stated that he and Chester were struggling with
the gun when they both fell over and the gun went off.

Richard Gregg was a friend of both [Dowell] and Chester. He testified
that Chester lived at his workshop and had a collection of coins.

Anne Medley, Chester’s sister, testified that Chester collected coins and
often kept them on his person.

Renee Brain, a bartender at Lido Lounge where [Dowell]and Chester
frequented, testified that the night before the shooting, [Dowell]was
looking for Chester to help him with some work around his house. She
also testified that Chester collected coins.

Deputy County Coroner Erica Armstrong testified that Chester Bright
died of a close-range gun shot [sic] wound to the left chest area. She
testified that Chester had numerous injuries to his face, neck, and scalp
as well. Finally, she testified that Chester was legally intoxicated at the
time of the shooting.

Timothy Nock of the Coroner’s Office Trace Evidence Department
testified that he did not have any evidence that Chester ever held the
gun that killed him. He also testified that the gunshot residue on
Chester’s clothing matched the residue of [Dowell’s]gun.

Detective Melvin Smith of the Cleveland Police Department testified
that he was the head investigating officer assigned to the case. He
testified that there were numerous coins surrounding Chester’s body
and that Chester only had 25 cents on his person.

Detective Nathan Wilson of the Cleveland Police Department testified
that the bullet retrieved from Chester’s body came from [Dowell’s] gun.

For the defense, [Dowell] presented two witnesses, Manuel Corchado
and Constance Perez, who testified that [Dowell] had a coin collection.
In addition, [Dowell] testified on his own behalf. [Dowell] concedes
that he got into an argument with the victim and that they were rolling
around on the floor. [Dowell] claims, however, that Chester was drunk
and attacked him. [Dowell] claims that a struggle ensued and Chester
found a gun that was concealed under the cushion of the couch.
[Dowell] testified that both parties struggled with the gun and it just
went off. [Dowell] states that he was in shock and put the gun in the
       basement so that nothing else would occur. [Dowell] testified that he
       called 911.

Id. at ¶ 2-16.

                 On July 22, 2004, this court affirmed Dowell’s convictions. Dowell,

supra. Dowell subsequently filed a discretionary appeal, pro se, which the Ohio

Supreme Court dismissed on March 2, 2005. State v. Dowell, 

,

, 

.

                 On October 21, 2004, Dowell filed an application to reopen his appeal,

arguing that appellate counsel was ineffective in failing to appeal on grounds of

ineffective assistance of trial counsel. State v. Dowell, 8th Dist. Cuyahoga No.

83575, 

. This court denied Dowell’s application to reopen his

appeal based on res judicata, finding that Dowell raised or could have raised his

ineffective-assistance claim in his appeal to the Ohio Supreme Court. 

 appeal

not accepted, 

, 

, 

.

                 On April 14, 2014, Dowell filed a petition for postconviction relief

pursuant to R.C. 2953.21, arguing ineffective assistance of trial counsel for

inadequately investigating the case and examining a defense witness, failing to file a

motion to suppress Dowell’s oral statements, and failing to move to dismiss on a

speedy-trial violation. On April 27, 2004, the trial court denied Dowell’s petition

and on March 23, 2005, issued its finding of facts and conclusions of law. This court

affirmed denial of the petition, finding that the evidence Dowell proffered to support
the petition was available to him at trial and on direct appeal and therefore barred

by res judicata. State v. Dowell, 8th Dist. Cuyahoga No. 86232, 

.

               On December 29, 2008, Dowell filed a motion for leave to file a

delayed motion for a new trial, which included over 100 exhibits. On January 6,

2008, the trial court denied the motion. On March 12, 2009, Dowell filed a motion

for leave to file a delayed appeal, appealing the trial court’s denial of his motion for

leave for a new trial. On April 6, 2009, this court denied Dowell’s motion and

dismissed the appeal.

               On February 28, 2014, Dowell requested an order for public records

pursuant to R.C. 149.43(B)(8), seeking the production of trial exhibits.            On

December 5, 2014, the trial court denied the request. On December 24, 2014, Dowell

appealed this denial in State v. Dowell, 8th Dist. Cuyahoga No. 102408, 2015-Ohio-

3237. This court affirmed the trial court’s denial, finding that Dowell had not

established a justiciable claim or pending proceeding for which the requested

information would be material. 

               Then, more than six years later, on February 18, 2021, Dowell filed a

motion for leave to file a motion for a new trial and requested an oral hearing on the

motion. On April 9, 2021, the trial court denied his motion. On July 1, 2021, Dowell

filed a motion for leave to file a delayed appeal, which this court granted the

following day, explaining that

      a petition for postconviction relief is civil in nature [and generally]
      there is no right to a delayed appeal under App.R.5(A). However,
      because appellant was never served with the trial court’s ruling on the
      petition for postconviction relief, the appeal has been timely filed and
      shall proceed as an appeal of right. This court has held that the notice
      provision in Civ.R. 58 and the tolling provision in App.R. 4(A) apply to
      petitions for postconviction relief because they are civil in nature. State
      v. Tucker, 8th Dist. No. 95556, 

; State v. Harris,
      8th Dist. No. 94186, 

, ¶ 7 & 8. See also, State v.
      Williams, 10th Dist. No. 06AP-842, 

, ¶ 7-8. The trial
      court never directed the clerk of court to serve the appellant with notice
      of the judgment per Civ.R. 58, therefore, the time to file the appeal has
      been tolled and appellant’s appeal is timely filed. The record is due on
      or before August 30, 2021.

              This appeal followed.

II.   Law and Analysis

      A.   Crim.R. 25(B)

              In his first assignment of error, Dowell argues that the trial court’s

administrative judge violated Crim.R. 25(B) by not issuing an order assigning a

subsequent judge to preside over Dowell’s motion for leave to file a motion for a new

trial. Dowell maintains that the subsequent judge was not authorized to rule on the

motion and that the judge’s ruling is voidable. We disagree.

              Crim.R. 25(B) provides that

      [i]f for any reason the judge before whom the defendant has been tried
      is unable to perform the duties of the court after a verdict or finding of
      guilt, another judge designated by the administrative judge … may
      perform those duties. If such other judge is satisfied that he cannot
      perform those duties because he did not preside at the trial, he may in
      his discretion grant a new trial.

Crim.R. 25(B) does not prohibit another judge from presiding over postconviction

proceedings if the original judge is unable to perform those duties for any reason.

State v. Green, 

, 

 (12th Dist.1997), citing

Beatty v. Alston, 

, 

 (1975), cert. denied, 

, 96 St.Ct. 432, 

 (1975). It is “entirely proper” under Crim.R.

25(B) for a substitute judge to preside over postconviction proceedings when the

judge who presided over the defendant’s trial no longer sits on the bench. See State

v. Roberts, 

, 

, 

 (trial judge

retired); 

 (same). “An appellate court may take judicial notice of the

identity and status of those acting as judges of lower tribunals in the same state.”

Squire v. Bates, 

, 

 (1936); State ex rel. Morgan v.

Arshinkoff, 

, 

 (9th Dist.1984).

              Here, one judge presided at Dowell’s trial and was replaced by a

second judge, the trial judge’s duly-elected successor, who presided over Dowell’s

early postconviction proceedings. The second judge was then replaced by a third

judge, the second judge’s duly-elected successor, who presided over the instant

postconviction proceedings. As the second judge’s successor, the third judge was

authorized to rule on Dowell’s motion. See 

.

              Therefore, the first assignment of error is overruled.

      B.   Crim.R. 33

              We group Dowell’s second and third assignments of error for ease of

discussion. In his second assignment of error, Dowell argues that the trial court

abused its discretion by finding that Dowell was not unavoidably prevented from

filing a timely motion for a new trial under Crim.R. 33. In his third assignment of

error, Dowell contends that the trial court abused its discretion when it denied his

motion for leave without first holding a hearing on the motion. Plaintiff-appellee,
the state of Ohio, contends that none of the evidence Dowell identifies in his motion

for leave is newly discovered evidence.

               We review the denial of a motion for leave to file a motion for a new

trial for an abuse of discretion. State v. Hale, 8th Dist. Cuyahoga No. 107782, 2019-

Ohio-1890, ¶ 7, citing State v. Washington, 8th Dist. Cuyahoga No. 103875, 2016-

Ohio-5329, ¶ 16. We also review the decision whether to hold a hearing on the

motion for an abuse of discretion. State v. Phillips, 

, 

 (8th Dist.). A court abuses its discretion when its decision is unreasonable,

arbitrary, or unconscionable. Blackmore v. Blackmore, 

, 

 (1983). A decision is unreasonable when “‘no sound reasoning process

… would support that decision.’” AAAA Ents., Inc. v. River Place Community

Urban Redevelopment Corp., 

, 

 (1990).

               Under Crim.R. 33(B), a motion for a new trial based on newly

discovered evidence must be filed within 120 days after a verdict is rendered. A party

who fails to file a motion for new trial within that time must seek leave from the trial

court to file a motion for new trial. Hale at ¶ 9. The trial court may grant leave to

file a delayed motion if the movant shows, by clear and convincing proof, that he was

unavoidably prevented from filing the motion and sought leave within a reasonable

time after discovering the evidence. Id. at ¶ 9-10. Clear and convincing proof “is

that measure or degree of proof [that] is more than a mere ‘preponderance of the

evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable

doubt’ … and which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v. Ledford, 

, 

 (1954), paragraph three of the syllabus.

                 A defendant is “unavoidably prevented” from filing a timely motion

for new trial when the defendant (1) had no knowledge that grounds supporting the

motion for a new trial existed, and (2) could not have learned of those grounds in

the exercise of reasonable diligence within the time prescribed by the rule. State v.

Gray, 8th Dist. Cuyahoga No. 107394, 

.

                 Here, Dowell argues that in January 2021, he learned from a law clerk

at the Marion Correctional Institution that a police report and receipt showing $57

in cash seized by the police in 2003 undermined the state’s theory that Dowell shot

and killed Chester after an argument over coins and supported Dowell’s contention

that he shot and killed Chester in self-defense.         Dowell claims that he was

unavoidably prevented from discovering this evidence because his trial counsel

denied him effective assistance by colluding with the state in concealing this

evidence and perpetrating a fraud on the court. Dowell’s claims are not borne out

by the record.

                 First, Dowell fails to explain how he was unaware of the police report

and receipt for nearly two decades. He claims that this evidence was concealed from

him but offers no proof of concealment. Second, in addition to the police report and

receipt, Dowell references but does not attach to his motion several trial exhibits

that he offers to challenge his alleged motive for killing Chester. These exhibits were

available at the time of trial and direct appeal, and Dowell fails to provide a clear and
convincing explanation why he did not raise these arguments and evidence within

120 days of the verdict. Finally, this court has repeatedly found that the arguments

and evidence Dowell raises in his motion, which he recycles from his prior

postconviction petitions, are barred by the doctrine of res judicata. See Dowell, 8th

Dist. Cuyahoga No. 83575, 

 (claim of ineffective assistance of

counsel barred by res judicata); Dowell, 8th Dist. Cuyahoga No. 86232, 2006-Ohio-

110 (claim of ineffective assistance and any claim based on the receipt for $57, which

was available at the time of trial and direct appeal, are barred by res judicata).

               “Res judicata bars all subsequent new trial motions that are based on

claims that were brought or could have been brought on direct appeal or in prior

motions filed under Crim.R. 33.” State v. Williamson, 8th Dist. Cuyahoga Nos.

107117, 107162, and 107916, 

, citing State v. Bridges, 8th Dist.

Cuyahoga Nos. 103634 and 104506, 

. “To overcome res

judicata, the petitioner must present cogent, material evidence found outside the

record on appeal that was unavailable to the petitioner at the time of trial or direct

appeal.” State v. Shabazz, 8th Dist. Cuyahoga No. 100623, 

,

citing State v. Cole, 

, 

 (1982); State v. Lewis, 8th

Dist. Cuyahoga No. 73736, 

 (Dec. 3, 1998).

               As explained above, Dowell presents no cogent or material evidence

outside the record that was not available to him at the time of trial or direct appeal.

Instead, Dowell raises the same arguments and evidence in his motion for leave that

he raised in prior postconviction petitions. These arguments and evidence are
barred by res judicata. See Shabazz at ¶ 13. We therefore find that the trial court

did not abuse its discretion when it denied Dowell’s motion for leave to file a motion

for a new trial.

               Furthermore, when an appellant has not shown that he was

unavoidably prevented from discovering evidence that is the basis of his motion, the

trial court is not required to hold a hearing. State v. Sutton, 

, 

, ¶ 25 (8th Dist.). Here, Dowell failed to establish that he was unavoidably

prevented from discovering the evidence he references in his motion. Therefore, the

trial court did not abuse its discretion in denying Dowell’s motion without an

evidentiary hearing.

               Dowell’s second and third assignments of error are overruled.

               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.


_________________________
MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and
EMANUELLA D. GROVES, J., CONCUR