[Cite as State v. Barnette,
2024-Ohio-2870.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
LORENZA I. BARNETTE,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 MA 0027
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2009 CR 01122
BEFORE:
Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Gina DeGenova, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Chief,
Criminal Division, for Plaintiff-Appellee and
Lorenza I. Barnette, Defendant-Appellant.
Dated: July 26, 2024
–2–
DICKEY, J.
{¶1} In the tenth appeal following his 2011 conviction for aggravated murder,
kidnapping, and arson, Appellant, Lorenza I. Barnette, acting pro se, contends the
Mahoning County Court of Common Pleas abused its discretion in overruling his third
motion for leave to file a motion for new trial. The trial court concluded Appellant did not
establish he was unavoidably prevented from discovering the new evidence (coerced
testimony of a state’s witness) in a timely manner. For the following reasons, the
judgment entry of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY
{¶2} On October 1, 2009, Appellant was indicted on two counts of aggravated
murder in violation of R.C. 2903.01(A)(F) (prior calculation and design) with death penalty
specifications; two counts of aggravated murder in violation of R.C. 2903.01(B)(F) (felony
murder) with death penalty specifications; two counts of kidnapping in violation of R.C.
2905.01(A)(2); two counts of aggravated robbery in violation of R.C. 2911.01(A)(3)(c);
and arson in violation of R.C. 2909.03(A)(1)(B)(2). Appellant and two others, Joseph
Moreland and Kenneth Moncrief (who entered guilty pleas subsequent to Appellant’s
convictions), were accused of killing two men on August 11, 2009 while committing or
attempting to commit a robbery. After Appellant and Moncrief suffocated the victims
pursuant to Moreland’s order, Appellant placed the bodies in an automobile, which he set
on fire in order to conceal the crimes.
{¶3} A jury convicted Appellant on all four counts of aggravated murder, both
counts of kidnapping, and the sole count of arson. He was acquitted of the two charges
of aggravated robbery. The trial court imposed the following sentences to be served
consecutively: life imprisonment without parole for each of the two aggravated murder
convictions (which merged with the remaining two), ten years for each of the kidnapping
convictions, and eighteen months for the arson conviction.
{¶4} On direct appeal, we affirmed Appellant’s convictions and sentence. State
v. Barnette, 2014-Ohio-5673 (7th Dist.), appeal not allowed,
2015-Ohio-2747. We denied
Appellant’s subsequent application for reopening in State v. Barnette,
2015-Ohio-1280
(7th Dist.). Next, Appellant filed an appeal regarding the trial court’s decision to deny his
Case No. 24 MA 0027
–3–
motion for leave to file an untimely motion for new trial, which this Court affirmed in State
v. Barnette, 2016-Ohio-3248 (7th Dist.) (“Barnette III”). Appellant appealed the trial
court’s denial of his first postconviction petition in State v. Barnette,
2017-Ohio-9074 (7th
Dist.). Appellant then appealed a resentencing entry, which we vacated in part and issued
a limited remand, instructing the court to hold a hearing solely on the issue of postrelease
control. State v. Barnette,
2020-Ohio-6817 (7th Dist.). Thereafter, Appellant filed his
second application for reopening which was denied in State v. Barnette,
2021-Ohio-2484
(7th Dist.). Appellant then filed a writ of mandamus, which we denied in State ex rel.
Barnette v. Sweeney,
2022-Ohio-3425 (7th Dist.). Appellant filed yet another petition to
vacate or set aside the judgment of conviction or sentence, which was construed as a
postconviction petition. The trial court overruled the petition as untimely, and the decision
of the trial court was affirmed in State v. Barnette,
2023-Ohio-2377 (7th Dist.), appeal not
allowed,
2023-Ohio-3328. Finally, we affirmed the trial court’s decision overruling
Appellant’s postconviction application for DNA testing and his public records request last
year in State v. Barnette,
2024-Ohio-1172 (7th Dist.), appeal not allowed, 2024-Ohio-
2373.
{¶5} On January 8, 2024, Appellant filed the motion for leave to file motion for
new trial/motion for new trial currently before us on appeal. The motion constitutes
Appellant’s third effort to receive a new trial. The first motion for leave to file motion for
new trial was predicated upon the affidavit of a fellow inmate, Rayshawn Powell, and was
overruled by the trial court, and affirmed by this Court in Barnette III. Appellant’s second
motion for leave was predicated upon a Forensic Bioinforamatics DNA Report. The
motion was similarly overruled by the trial court, however the appeal was dismissed for
failure to file a merits brief.
{¶6} The motion for leave currently before us reads, in relevant part, “the
prosecution threaten, [sic] and pressured Alfonda Madison its own witness into recanting
his exculpatory testimony, and giving false testimony that incriminated [Appellant.]”
(Motion for Leave, p. 1.) The motion further reads, “[Appellant] had no knowledge of the
threats, [sic] and pressure that [Madison] received from the Prosecuting Attorney to recant
his exculpatory testimony, and give false testimony that incriminated [Appellant.]” (Id. at
p. 2.) Finally, the motion reads, “[Madison] can, [sic] and will explain at an evidentiary
Case No. 24 MA 0027
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hearing if granted, or once [Appellant] retains an attorney or private investigator to secure
his affidavit.” (Id.)
{¶7} In the motion, Appellant concedes he was aware that Madison “changed his
prior statements and gave false testimony at trial,” but Appellant contends he “exercised
reasonable diligence to get in contact with [Madison].” (Id. at p. 3.) Appellant writes:
While incarcerated [Appellant] asked Fredrick Moreland, Michael Austin Sr.,
and Lawrence Ross, to reach out to [Madison], because they could contact
him. They were not corroborative [sic], or successful. [Appellant] then asked
Lorenza Barnette Sr. to reach out to Attorney Gerald Ingram to contact
[Madison]. Mr. Ingram did not attempt to do so. Finally, [Appellant] reached
out to [Madison] by way of Hilary Sension through her Facebook unto
[Madison’s] Facebook. [Madison] recently responded to [Appellant] on
December 12, 2023, through [Sension’s] Facebook.
(Id. at p. 3-4.) A list of four names captioned “[a]ffidavits that are expected” are listed in
the motion: Hilary Sension, Alfonda Madison, Lorenza Barnette Sr., and Appellant.
{¶8} Due to the time limits prescribed by the Criminal Rules, Appellant filed a
combined motion for leave and motion for new trial. The “expected” affidavits were not
attached to the motion.
{¶9} After the state filed its response brief, Appellant filed an amended motion
for leave to file motion for new trial on January 29, 2024. Appellant attached his own
affidavit and the affidavit of Hilary Grace Sension. Sension’s affidavit reads, in its entirety,
“Per [Appellant’s] request, I messaged [Madison] via Facebook on May 31, 2022.
[Madison] messaged me back via Facebook on December 16, 2023. Appellant’s affidavit
reads, in relevant part:
I hereby swear under oath that I had no knowledge of the existing threats
that were made by the Prosecution to [Madison]. I had no knowledge of this
information until December 16, 2023. I could not have known this
misconduct took place without [Madison] coming forward or the Prosecution
coming forward.
Case No. 24 MA 0027
–5–
{¶10} At trial, Madison, who was present at the murder scene, testified Appellant
and Moncrief committed the murders. (Trial Tr., 768-770). Madison admitted, however,
he initially told law enforcement that Appellant tried to stop the murders and was not
aware of the kidnapping and murder plan. Madison originally told law enforcement that it
was Moncrief and Moreland who duct taped the plastic bags on the victims’ heads. (Id.,
789-790). Madison explained he made these false statements because he feared for his
life. Appellant was already in jail when Madison provided his original statement, however
Moncrief and Moreland were not. (Id., 794). Madison conceded he received a deal from
the State in exchange for his cooperation in this case. (Id., 782-784).
{¶11} Asa Bush, who was also present at the murder scene, likewise testified that
Appellant and Moncrief committed the murders. (Id., 507-511). However, when Bush was
first interviewed by law enforcement, he implicated Moreland and “Dajuan” as the
perpetrators. (Id., 516–517). Lieutenant John Kelty testified that he never identified
“Dajuan” during his investigation. (Trial Tr., p. 870.). Bush similarly stated he was afraid
of Moreland and wanted him to be arrested because Bush had a better chance of
surviving if Moreland was in jail. (Id., 517). The second time Bush talked to law
enforcement, he identified Appellant and Moncrief as the perpetrators, and added they
were acting on Moreland’s orders. (Id., 518–519). Bush conceded he was seeking a deal
with prosecutors on pending charges. (Id., 525-526). Bush further conceded he was
facing a possible sentence of 46 years in prison, but he negotiated a deal to cooperate in
this case in exchange for a reduced prison sentence. (Id., 526–530).
{¶12} Appellant challenged the veracity of the foregoing testimony in Barnette III.
Appellant offered the Powell affidavit in support of his motion for leave to file an untimely
motion for new trial. According to Powell’s affidavit, Damon Clark confided in Powell that
Clark coerced and manipulated his cousin, Madison, and Madison’s friend, Bush, into
implicating Appellant in the double homicide. According to Powell, the three men, Clark,
Madison, and Bush, formulated the plan to get revenge on their cousin, Moreland, for
testifying against Clark. The three men manufactured multiple statements to prompt
Moreland’s arrest and to reduce the charges pending against Madison and Bush.
{¶13} According to Powell’s affidavit, Clark told Powell that Appellant was
innocent. Clark explained Madison and Bush gave perjured testimony at Appellant’s trial
Case No. 24 MA 0027
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that contradicted their original police statements because Appellant did not participate in
their scheme to imprison Moreland.
{¶14} In affirming the trial court’s judgment entry overruling the motion for leave
to file in Barnette III, we recognized that Powell’s affidavit constituted inadmissible
hearsay (as it contained the purported statement of Clark) and would not be admitted at
trial. Further, Appellant knew Clark personally and should have sought the information
from Clark directly. Finally, we opined the outcome of the trial would not have been
different due to vigorous cross-examination of Madison and Bush by defense counsel.
We observed:
The statements in the affidavit, even if they were admissible, would not have
changed the outcome of appellant’s trial. Both Madison and Bush changed
their accounts of who committed the murders. The jury heard this. The jury
also knew that Madison and Bush received breaks in the charges/sentences
they were facing in other cases in exchange for their testimony against
appellant. Thus, the jury was well aware that Madison and Bush both lied
to police and changed their stories and that they were benefitting
themselves by testifying against appellant. Thus, testimony that Madison
and Bush lied to police and changed their stories would not have been new
information for the jurors to consider. Therefore, it would not have changed
the outcome of appellant’s case.
Barnette III at ¶ 27.
MOTION FOR NEW TRIAL
{¶15} A motion for new trial may be granted when new evidence material to the
defense is discovered, which the defendant could not with reasonable diligence have
discovered and produced at the trial, and the defendant can show the new evidence
materially affected his rights. Crim.R. 33(A)(6). “When a motion for a new trial is made
upon the ground of newly discovered evidence, the defendant must produce at the
hearing on the motion, in support thereof, the affidavits of the witnesses by whom such
evidence is expected to be given . . .” Id. The rule does not mandate an oral, evidentiary
Case No. 24 MA 0027
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hearing on every motion, and the “trial court holds the discretion to decide whether a
Crim.R. 33 hearing should be held.” State v. Baer, 2017-Ohio-7759, ¶ 12 (7th Dist.).
{¶16} There are time requirements for new trial motions. “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, or the decision of the court where trial by
jury has been waived.” Crim.R. 33(B). However, “[i]f it is made to appear by clear and
convincing proof that the defendant was unavoidably prevented from the discovery of the
evidence upon which he must rely, such motion shall be filed within seven days from an
order of the court finding that he was unavoidably prevented from discovering the
evidence within the one hundred twenty day period.” Id.
{¶17} If the court does not grant leave, then a contemporaneously-filed motion for
new trial need not be addressed. “Leave must be granted before the merits are reached.”
State v. Lordi, 2002-Ohio-5517, ¶ 25 (7th Dist.).
{¶18} To meet the clear and convincing standard, the evidence offered by a
defendant in support of his motion for leave must “produce in the mind of the trier of facts
a firm belief or conviction” that he was unavoidably prevented from discovering the facts
sought to be established. State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). A defendant is
unavoidably prevented from filing a motion for a new trial if he “had no knowledge of the
existence of the ground supporting the motion for a 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.”
Lordi at ¶ 26, 29, quoting State v. Walden,
19
Ohio App.3d 141, 145-146 (10th Dist.1984).
{¶19} A trial court’s ruling on a motion for leave to move for a new trial is reviewed
for an abuse of discretion. See State v. Davis, 2011-Ohio-5028, ¶ 37 (explaining that “[t]he
trial court acts as the gatekeeper for [motions for a new trial] and, using its discretion, can
limit the litigation to viable claims only”); State v. Hessler,
90 Ohio St.3d 108, 124 (2000)
(applying the abuse-of-discretion standard to review a trial court’s denial of a motion for
a new trial without conducting an evidentiary hearing). However, questions of law are
reviewed de novo. Johnson v. Abdullah,
2021-Ohio-3304, ¶ 38-39.
Case No. 24 MA 0027
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ANALYSIS
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
GRANT APPELLANT AN ATTORNEY INVESTIGATOR, OR EXTENSION
OF TIME TO OBTAIN ALFONDA MADISON’S AFFIDVIT TO SUPPORT
HIS CRIM.R. 33(B) MOTION FOR LEAVE TO FILE A DELAYED MOTION
FOR NEW TRIAL.
ASSIGNMENT OF ERROR NO. 2
IN VIOLATION OF THE 6 AND 14 AMENDMENT [SIC] OF THE
CONSTITUTION THE PROSECUTOR DEPRIVED APPELLANT OF A
FAIR TRIAL.
{¶20} Appellant argues that a 2022 Ohio Supreme Court decision, State v.
McNeal, 2022-Ohio-2703, compels reversal of the trial court’s judgment entry. In McNeal,
the trial court concluded the appellant failed to demonstrate he was unavoidably
prevented from filing a timely motion for new trial. McNeal, who was convicted of rape
based on the testimony of a victim that she was too intoxicated to provide informed
consent, predicated his motion for leave on an alleged violation of Brady v. Maryland,
373
U.S. 83, 86, (1963). In support of the motion, he offered a laboratory report that reflected
the victim’s blood contained no alcohol content, which he obtained through a post-trial
public records request.
{¶21} “There are three components of a Brady violation: The evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,
(1999). “[F]avorable evidence is material, and constitutional error results from its
suppression by the government, ‘if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.’ ”
Kyles v. Whitley,
514 U.S. 419, 433, (1995), quoting United States v. Bagley,
473 U.S.
667, 682 (1985). A different result is reasonably probable “when the government’s
Case No. 24 MA 0027
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evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles at
434, quoting
Bagley at 678.
{¶22} For the trial court to have jurisdiction to entertain the Brady claim alleged in
a motion for leave to file a motion for new trial, the defendant first has to establish he was
“unavoidably prevented from discovery of the facts” on which he relies.
R.C. 2953.23(A)(1)(a). To meet this standard, courts in Ohio have previously held that a
defendant ordinarily must show that he was unaware of the evidence he is relying on and
that he could not have discovered the evidence by exercising reasonable diligence. See
State v. Harrison, 2018-Ohio-1396, ¶ 6 (8th Dist.).
{¶23} However, where a Brady violation is alleged, a defendant may satisfy the
“unavoidably prevented” requirement contained in Crim.R. 33(B) simply by establishing
the prosecution suppressed the evidence on which the defendant relies in seeking a new
trial. In other words, a defendant seeking to assert a Brady claim is not required to show
that he could not have discovered suppressed evidence prior to the statutory deadline by
exercising reasonable diligence. State v. Bethel, 2022-Ohio-783, ¶ 25, 59.
{¶24} In McNeal, supra, the victim testified she was “really, really drunk,” and
unable to consent to sexual intercourse. In support of the motion for leave to file a motion
for new trial, McNeal offered a laboratory report, which was not disclosed by the state,
which revealed the victim had no detectable amount of alcohol in her bloodstream. The
trial court overruled the motion for leave, opining the introduction of the report at trial
would not have altered the outcome, based on the victim’s trial testimony that she had
also smoked marijuana and ingested Klonopin (an anti-anxiety medication), which was
confirmed by the report. The Second District Court of Appeals affirmed.
{¶25} The Ohio Supreme Court framed the sole issue before the trial court on the
motion for leave as follows: “[W]hether leave to move for a new trial should be granted to
McNeal because he was unavoidably prevented from timely moving for a new trial due to
the state’s suppression of evidence.” Id. at ¶ 21. The Ohio Supreme Court reasoned the
“reasonable diligence” requirement was excused where a Brady violation is alleged
because the state has a duty to disclose exculpatory or impeachment evidence. The
McNeal Court quoted the United States Supreme Court for the rationale that “defendants
have no duty to ‘scavenge for hints of undisclosed Brady material.’ ” Id. at ¶ 23 (quoting
Case No. 24 MA 0027
– 10 –
Banks v. Dretke, 540 U.S. 668, 695 (2004)). Because the trial court addressed the merits
of the motion for new trial, rather than the limited issue presented by the motion, the Ohio
Supreme Court reversed the judgment of the Second District and remanded the matter
to the trial court with instructions to grant the motion for leave to file.
{¶26} In the above-captioned appeal, Appellant’s affidavit provides no timeline of
events. Appellant does not plainly state when or why he first suspected Madison’s
testimony was the result of coercion by the state, nor does he state when he initiated his
efforts to contact Madison. Appellant simply avers he had no knowledge of the threats
made by the state to Madison until December 16, 2023, the date that Madison responded
to Sension’s Facebook contact. As a consequence, we find no clear and convincing proof
that Appellant was unavoidably prevented from the discovery of the state’s alleged
coercion of a witness, and we are unable to determine whether Appellant through
reasonable diligence could have discovered the alleged coercion prior to the statutory
deadline.
{¶27} Further, Madison underwent vigorous cross-examination by defense
counsel, and provided a reasonable explanation for his initial report to police. Madison
testified that he feared for his life and wanted to implicate Moreland in the actual murders
so that Moreland would be jailed. Madison originally attributed Appellant’s conduct to
Moreland because Appellant was already in jail and no threat to Madison.
{¶28} In summary, we find Appellant has failed to offer clear and convincing proof
that establishes a firm belief or conviction that he was unavoidably prevented from
discovering the state’s alleged coercion of a witness. Appellant’s conclusory affidavit
provides no evidence that he was unaware of the existence of the ground supporting the
motion for a 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. Accordingly, the judgment entry of the trial court is affirmed.
Robb, P.J., concurs.
Hanni, J., concurs.
Case No. 24 MA 0027
[Cite as State v. Barnette, 2024-Ohio-2870.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
