[Cite as State v. Malone,
2024-Ohio-5215.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff- Appellee, :
No. 113700
v. :
JAMAL MALONE, :
Defendant-Appellant. :
_______________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 31, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-13-577833-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Mary Catherine Corrigan, for appellant.
MICHELLE J. SHEEHAN, P.J.:
Defendant-appellant Jamal Malone appeals the trial court’s decision
denying his motion for leave to file a motion for a new trial. On appeal, he argues
the trial court erred in denying his motion and failing to hold a hearing on his
motion. After a careful review of the record and pertinent case law, we affirm the
trial court’s judgment.
Background
In 2014, Malone and codefendant Darnell Holloway were convicted of
aggravated murder and related offenses after a joint jury trial. At the trial, the State
produced evidence to show that Malone paid his cousin Holloway to kill Kishawn
Stratford, who Malone believed had robbed him several days before. A surveillance
video depicted the victim riding his bicycle toward a white Chevy Impala — later
determined to be Malone’s vehicle — parked near the victim’s apartment building.
The victim approached the driver, later determined to be Malone, and while the
victim spoke to Malone, a man, later identified as Holloway, ran up behind the
victim and fired his gun into the victim’s back. Holloway then jumped into the
vehicle, and the vehicle sped away. A neighbor of the victim heard the gunshots and
ran to the victim. While assisting the victim, she asked him, “[W]ho did this?” The
victim repeatedly said “Mal” before losing consciousness.
This appeal concerns codefendant Holloway and John Young, who was
Holloway’s cellmate in Cuyahoga County Jail. Young testified at trial that Holloway
admitted to him that he was paid $3,500 and a pound of marijuana for his role as
the shooter in Stratford’s murder; Young, however, did not mention Malone’s name
in his testimony. Holloway also confided to another cellmate, Rodell Smith,
regarding his presence in the scene of the murder. Subsequently, Young and Smith
wrote to an assistant prosecutor regarding their knowledge of Holloway’s
involvement in Stratford’s murder. Both offered to testify against Holloway in
exchange for a plea agreement for reduced charges in their own cases. The
prosecutor granted their requests, and both testified at trial regarding what they
heard from Holloway about the murder and the plea bargain they received.
In his direct appeal, Malone argued that his conviction was not
supported by sufficient evidence and was against the manifest weight of the
evidence. He also argued he was denied a right to a fair trial when he was tried
jointly with Holloway. He additionally challenged the lack of certain jury
instructions he requested regarding Young’s and Smith’s testimony. He claimed
furthermore that the trial court should have instructed the jury on the issue of
accomplice testimony, despite the fact that Holloway did not testify at trial. This
court overruled all his assignments of error and affirmed his convictions. State v.
Malone, 2015-Ohio-2150 (8th Dist.), discretionary appeal not allowed, 2015-Ohio-
5225. In 2018, Malone initiated a habeas corpus proceeding in federal court, raising
essentially the same claims he had raised in his direct appeal. The federal court
dismissed his petition for writ of habeas corpus.
In 2023, Malone filed, through counsel, the instant motion for leave to
file motion for new trial and a proposed motion for new trial instanter. He claims
a new trial is necessary because one of his two trial counsel had previously
represented John Young. Although counsel represented Young in a 2004 drug
possession case, CR-04-460082-A, ten years before his trial, Malone claims
counsel’s conflict of interest deprived him of a fair trial. He attached as new evidence
the docket in the 2004 case and an entry issued by the trial court appointing counsel
to represent Young. Malone claims that the discovery of this new evidence warrants
a new trial.
Malone also claims a new trial is necessary because his codefendant
H0lloway was found incompetent in a 2010 case, CR-10-541700-A. He argues that
this information could have been used “to impeach or cross-examine the statements
made by Mr. Holloway.” He attaches to his motion for leave a journal entry dated
October 26, 2010, which shows that Holloway was charged with several weapons
offenses and the trial court ordered him to report to “Northcoast Behavioral
Healthcare Systems-Cleveland Campus-Court Evaluation Unit (NBHS-CC) for
treatment and competence restoration.”
As for the nine-year delay in the discovery of the new evidence, Malone
offered his own affidavit, which states merely that “[i]n 2023, I learned that [my
lawyer] had previously represented Mr. Young” and that “[i]n 2023, I also learned
that Darnell Holloway has serious mental health issues.” There is no further
averment regarding the circumstances leading to the 2023 discovery of the alleged
new evidence.
The trial court issued a journal entry denying Malone’s motion for leave
to file a motion for a new trial and an opinion setting forth its reasons for denying
the motion for leave and the motion for a new trial. Regarding Holloway’s
incompetence, the trial court found that Malone failed to demonstrate he could not
have discovered this evidence in the exercise of due diligence. The trial court also
noted Holloway was found to have been restored to competency on June 6, 2011,
and concluded Malone failed to demonstrate that there is a strong probability that
this new evidence would have changed the outcome of the trial. Regarding his claim
that his trial counsel had a conflict of interest in representing him at trial, the trial
court found the alleged new evidence does not establish a “current conflict” between
counsel’s representation of Young and Malone. The trial court also noted that the
alleged conflict of interest was “a matter of public record available on the docket”
and he could have discovered this evidence in the exercise of due diligence.
Malone now appeals, presenting the following two assignments for
our review:
I. The trial court erred by failing to hold a hearing on the
defendant-appellant’s motion for leave to file motion for new
trial.
II. The trial court erred by failing to grant the appellant’s motion
for leave to file motion for new trial and motion for new trial.
The two assignments of error are related, and we address them
jointly.
Motion for Leave to File a Motion for a New Trial
R.C. 2945.79 allows a defendant to file a motion for a new trial based
on a claim that his substantial rights are materially affected by certain
circumstances. One such circumstance is when “new evidence is discovered material
to the defendant, which he could not with reasonable diligence have discovered and
produced at the trial.” R.C. 2945.79(F). Similarly, Crim.R. 33(A)(6) permits a
defendant to file a motion for a new trial upon grounds that new evidence material
to the defense has been discovered that the defendant could not with reasonable
diligence have discovered and produced at trial. However, when a motion for a new
trial is made on grounds of newly discovered evidence, the motion must be filed
within 120 days after a verdict. Crim.R. 33(B). If a defendant files a motion for a
new trial after the expiration of that time, the defendant must first seek leave of the
trial court to file a delayed motion for a new trial. State v. Hale, 2019-Ohio-1890,
¶ 9 (8th Dist.). This is because “[a]llowing a defendant to drag the process out while
the evidence and the recollections of witnesses become increasingly stale defies the
very purpose of the criminal rules.” State v. McConnell,
2011-Ohio-5555, ¶ 18 (2d
Dist.).
To obtain leave to file a delayed new-trial motion, a defendant must
demonstrate “by clear and convincing proof that the defendant was unavoidably
prevented from filing his motion for a new trial[.]” Crim.R. 33(B). “When a
defendant seeks leave to file a motion for a new trial under Crim.R. 33(B), the trial
court may not consider the merits of the proposed motion for a new trial until after
it grants the motion for leave.” State v. Hatton, 2022-Ohio-3991, ¶ 30, citing State
v. Bethel,
2022-Ohio-783, ¶ 41, citing State v. Brown,
2011-Ohio-1080, ¶ 14 (8th
Dist.). “The sole question before the trial court when considering whether to grant
leave is whether the defendant has established by clear and convincing proof that he
was unavoidably prevented from discovering the evidence on which he seeks to base
the motion for a new trial.” Id.1
“A party is ‘unavoidably prevented’ from discovering evidence if the
party had no knowledge of the existence of the grounds supporting the motion and
could not have learned of that existence in the exercise of reasonable diligence
within the time prescribed by the rule.” State v. Gray, 2019-Ohio-1638, ¶ 11 (8th
Dist.). The trial court here denied Malone’s motion for leave to file a delayed motion
for a new trial. “A trial court’s ruling on a motion for leave to move for a new trial is
reviewed for an abuse of discretion.” State v. McNeal,
2022-Ohio-2703, ¶ 13, citing
State v. Hawkins,
66 Ohio St.3d 339, 350 (1993).
The evidence Malone claims to be newly discovered consists of a
journal entry appointing one of his trial counsel for Young in a 2004 case and the
docket of that case, as well as a 2010 journal entry ordering Holloway to report to
Northcoast for treatment and competence restoration. “A court’s docket is public
record.” State v. Johnson, 2022-Ohio-78, ¶ 24 (8th Dist.), citing Thomas v. ARM
Food, Inc.,
2003-Ohio-6925, ¶ 9 (8th Dist.). “[C]ourt records are matters of public
record.” State v. Stoutamire,
2009-Ohio-6228, ¶ 37 (11th Dist.). “[I]f something is
stored within the public record, a defendant cannot be unavoidably prevented from
discovering it.”
Johnson at ¶ 24, citing State v. Roberts,
2011-Ohio-2534, ¶ 19 (8th
1 The trial court here simultaneously issued a journal entry denying Malone’s motion for
leave to file a motion for a new trial and an opinion denying his motion for a new trial.
The latter is premature, and accordingly, we do not address it on appeal.
Dist.). See also State v. G.F.,
2019-Ohio-3673, ¶ 26 (10th Dist.) (court records are
public records freely available to a defendant).
We recognize that Malone is incarcerated, and we acknowledge the
logistical difficulties for inmates in investigating and obtaining legal representation.
State v. Miller, 2022-Ohio-378, ¶ 5 (8th Dist.). However, Malone does not attest to
the circumstances relating to his late discovery other than the fact that he discovered
the new evidence in 2023. This court has held that the clear and convincing
standard requires “‘more than a mere allegation that a defendant has been
unavoidably prevented from discovering the evidence he seeks to introduce as
support for a new trial.’” State v. Walter,
2018-Ohio-4415, ¶ 21 (8th Dist.), quoting
State v. Covender,
2012-Ohio-6105, ¶ 14 (9th Dist.). “The requirement of clear and
convincing evidence puts the burden on the defendant to prove he was unavoidably
prevented from discovering the evidence in a timely manner.” State v. Rodriguez-
Baron,
2012-Ohio-5360, ¶ 11 (7th Dist.), citing State v. Fortson,
2003-Ohio-5387
(8th Dist.).
Malone’s affidavit does not even allege that he was unavoidably
prevented from discovering the new evidence. He merely alleges that “[i]n 2023, I
learned that [my lawyer] had previously represented Mr. Young . . .” and that “[i]n
2023, I also learned that Darnell Holloway has serious mental heath issues . . . .”
The court has found that a vague statement in appellant’s affidavit that he just
discovered the new evidence “without clarification as to how appellant obtained the
evidence” is insufficient to show by clear and convincing evidence that he was
unavoidably prevented from timely filing a motion for a new trial. State v.
Armengau, 2017-Ohio-197, ¶ 14 (10th Dist.).
Furthermore, the court documents Malone claims to be new evidence
have been part of the public record since 2004 and 2010, respectively. When “there
has been a significant delay, the trial court must determine whether the delay was
reasonable under the circumstances or whether the defendant has adequately
explained the reason for the delay.” State v. Gray, 2010-Ohio-11, ¶ 18 (8th Dist.).
Despite the significant delay, Malone’s affidavit offered no explanations for his
efforts to uncover favorable evidence, the circumstances he discovered the new
evidence, or the reasons for the nine-year delay. Because he has failed to
demonstrate that he exercised due diligence to uncover the documents that have
been in existence for years even before his conviction, we do not find an abuse of
discretion by the trial court in denying the instant motion for leave. See State v.
Brown,
2011-Ohio-1080, ¶ 17 (8th Dist.) (where a 2003 docket entry referring the
victim to the court psychiatric clinic was made part of the public record and was
available to the defendant at the time of his 2008 trial, the defendant failed to
demonstrate that he exercised reasonable diligence to uncover the evidence between
his conviction and the motion for leave).2
2 Malone cites State v. Minifee,
2024-Ohio-64 (8th Dist.), in support of his contention
that there is no time frame in which a defendant must seek leave to file a motion for a new
trial based on the discovery of new evidence. Minifee is irrelevant to this case. That case
concerns the delay between discovering the new evidence and filing of the motion for
Hearing
Malone also argues that the trial court should have held an
evidentiary hearing “to determine the veracity of the statements contained in the
Appellant’s affidavit regarding the due diligence to find the newly discovered and
exculpatory evidence.” Crim.R. 33 does not require a hearing on a motion seeking
leave to file a delayed motion for a new trial. The decision to conduct a hearing on
such a motion lies within the sound discretion of the trial court, and it may not be
disturbed on appeal absent an abuse of the discretion. E.g., State v. Hill,
2020-Ohio-102, ¶ 49 (8th Dist.).
Malone’s counsel claims in the motion for leave that Malone was
unavoidably prevented from discovering the evidence within 120 days of the verdict
because he has been incarcerated and did not have adequate access to the internet
to research the court docket. A defendant is only entitled to an evidentiary hearing
on a motion for leave if he submits documents that “on their face support the claim
of being unavoidably prevented from timely discovering the new evidence.” State v.
McAlpin, 2023-Ohio-4794, ¶ 29 (8th Dist.); State v. Dues,
2017-Ohio-6983, ¶ 12
leave to file a delayed motion for a new trial. This court, citing State v. Bethel, 2022-Ohio-
783, ¶ 55 (rejecting the notion that it was within the trial court’s discretion to deny
appellant’s motion for leave based on his failure to file the motion within a reasonable
time after discovering the new evidence), reversed the trial court’s decision denying
Minifee’s motion for leave based on the unreasonable delay in filing the motion after
discovering the new evidence. Id. at ¶ 10-11. Minifee is inapposite because the delay in
this case concerns the lapse of time between his 2014 conviction and 2023 motion for
leave.
(8th Dist.); State v. McConnell,
2007-Ohio-1181, ¶ 19 (2d Dist.); and State v.
Ambartsoumov,
2013-Ohio-3011, ¶ 13 (10th Dist.). The only document submitted
relating to the issue of delay is Malone’s affidavit, which merely states that he
discovered the court documents at issue in 2023.
When discussing whether a hearing was required for an untimely
petition for postconviction relief in a recent decision, the Supreme Court of Ohio
rejected appellant’s contention that questions concerning his efforts to discover new
evidence should be explored at a hearing, reasoning that “[i]f testimony can be
elicited at a hearing, it can be attested to in an affidavit.” State v. Johnson,
2024-Ohio-134, ¶ 26. Malone’s affidavit attested to nothing regarding how he was
unavoidably prevented from a timely discovery of new evidence other than the year
of the discovery. He fails to carry his burden of submitting documents that on their
face support his claim of being unavoidably prevented from discovering the new
evidence. Accordingly, the trial court did not abuse its discretion in denying
Malone’s motion for leave without a hearing.
For all the foregoing reasons, we overrule Malone’s first and second
assignments of error and affirm the trial court’s judgment.
Judgment affirmed.
It is ordered that appellee recover of 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.
_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
ANITA LASTER MAYS, J., CONCUR
