[Cite as State v. Allen,
2024-Ohio-970.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112782
v. :
DEMETRIUS ALLEN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 14, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-10-540250-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Owen Knapp, Assistant Prosecuting
Attorney, for appellee.
Patituce & Associates, LLC, Joseph C. Patituce, Megan M.
Patituce, and Erin M. Branham, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant, Demetrius Allen, appeals the trial court’s denial
of his motion for leave to file a motion for a new trial. Allen contends that the trial
court abused its discretion in denying his motion for leave without a hearing because
he was unavoidably prevented from timely discovering (1) two affidavits related to
the testimony of a recanting witness and (2) municipal court records showing
another witness allegedly lied at trial regarding the date he performed court-ordered
community service. For the reasons that follow, we affirm.
Factual Background and Procedural History
The facts of this case are summarized in this court’s decision in
Allen’s direct appeal, State v. Allen, 8th Dist. Cuyahoga No. 97014, 2012-Ohio-
1831:
In the early evening of July 17, 2010, five men were socializing in
front of a house located near the intersection of East 123rd Street and
Signet Avenue in Cleveland, Ohio. At approximately 8:30 PM, two men
approached, one armed with an assault rifle, and unleashed a barrage
of gunfire on the assembled men. At the end of the onslaught, two men,
Miley Slaughter and Kenneth Green, were dead. Two others, Timothy
Sisson and Antwon Weems, were wounded, and a fifth man, Willie
Tyson, escaped unharmed.
Id. at ¶ 3.
A Cuyahoga County Grand Jury indicted Allen and Montez Logan on
seven counts as a result of the shootings: two counts of aggravated murder with
course-of-conduct and one- and three-year firearm specifications, three counts of
attempted aggravated murder with one- and three-year firearm specifications and
two counts of having weapons while under disability. Allen and Logan pled not
guilty to the charges, and the case proceeded to a joint jury trial. At trial, the state
presented testimony from over 20 witnesses including two rebuttal witnesses.
The defendants presented testimony from four witnesses including both
defendants.
The State’s Eyewitness Testimony
Two eyewitnesses, Eric Brown and Antwon Weems, identified Allen
as the shooter. Brown testified that, on the evening of July 17, 2010, he was
looking out his front window and saw Slaughter, Green, Sisson, Weems and Tyson
socializing in front of his house. A short time later, Brown heard gunfire, looked
out the window and saw Allen discharging a military-style automatic gun at the
men assembled, who attempted to flee. Brown testified that Slaughter was shot
and fell on his back in the driveway and that Green was shot and was later found
dead in Brown’s backyard. Brown testified that, as Allen was shooting, Logan was
standing close to Allen and was “hyped up,” but did not have a weapon.
Brown stated that he had an unobstructed view of Allen and Logan
from his front window. Although, initially, Brown did not want to be involved in
the police investigation, he later gave statements to police and identified Allen and
Logan in a photo array. Brown also identified both men in the courtroom. Brown
testified that he was “sure” Allen and Logan were the men he saw involved in the
shooting.
Weems testified that after the men heard gunfire, they started
running. Weems was struck in his right foot. He hopped across the grass towards
the driveway and saw Slaughter fall to the ground. Weems stated that as he
attempted to help Slaughter, he could see sparks from gunfire. Weems testified
that he turned around and saw the faces of the assailants. He saw a man (later
identified as Allen) with “a big gun.” He stated that the other man (later identified
as Logan) did not appear to have a weapon.
Weems indicated that he “didn’t know who they was right off” but
that he “recognized their face[s]” and that he never “forgot a face.” He testified
that while he was in the hospital for surgery on his foot, Christopher Perkins
visited him. Although Perkins was not present during the incident, Weems
indicated that Perkins told him the names of the two men who were involved the
shooting. Weems stated that after Perkins “came and told me their names,” it “hit
me that’s who it was.” Weems stated that he had gone to school with Logan and
knew the mother of Allen’s child.
Weems did not initially cooperate with police. He stated that when
he was first questioned by police, he “gave them a story” that was “a complete lie”
because he ”believed [in] another kind of justice at the time.” On May 5 and 6,
2011, after Weems was arrested and charged with several unrelated crimes,
Weems agreed to cooperate and gave additional statements to the police. Weems
identified Allen and Logan as the assailants in a photo array and later in the
courtroom during trial. Weems testified that he was “[p]ositive” Allen and Logan
were the men involved in the shooting. Weems stated that neither the police nor
the assistant prosecuting attorney promised him anything in exchange for his
cooperation.
Tyson testified that he did not see “anyone that was a shooter,” did
not know how many shooters there were and did not see Allen or Logan on the
day of the incident. Sisson testified that he just saw “a glimpse of a light-skin male
holding a rifle” and could “not identify [the shooter] personally.” Detectives
testified that, although Weems told them Perkins had given him Allen and Logan’s
names, they did not attempt to locate or interview Perkins.
Allen’s Defense and the State’s Rebuttal
Allen, Logan, Deandre Allen (Allen’s brother) (“Deandre”) and
Dapolo Green (Deandre’s friend and Kenneth Green’s cousin) (“Dapolo”) testified
that on the day of the shooting, Allen and Logan picked Deandre and Dapolo up
at 118th Street and Kinsman Road, took them to a shoe store located at the
intersection of Lee Road and Harvard Avenue and then drove Deandre and
Dapolo back to Deandre’s home in Garfield Heights. Allen, Logan and Deandre
— witnesses for the defense — testified that this trip took place between
approximately 6:30 p.m. and 8:30 p.m., such that Allen and Logan would not
have had time to travel to East 123rd Street and Signet Avenue, the scene of the
shooting, at the time it occurred.
Dapolo — a rebuttal witness for the state — testified that on July 17,
2010, he had performed court-ordered community service from 8:00 a.m. to 3:00
p.m. before meeting up with Deandre.1 He stated that the trip to the shoe store
1 Deandre also testified regarding Dapolo’s community service. He testified:
Q. … How long had you been with Dapolo on Saturday, July 17th?
occurred earlier in the day and that he and Deandre were dropped off at Deandre’s
house at approximately 7:00 p.m.
The jury returned a guilty verdict on all counts. In June 2011, Allen
and Logan were each sentenced to an aggregate prison term of 46 years to life.
This court affirmed Allen’s convictions on direct appeal. Allen, 8th Dist.
Cuyahoga No. 97014, 2012-Ohio-1831. Allen then appealed to the Ohio Supreme
Court. The Ohio Supreme Court declined to accept jurisdiction. State v. Allen,
132 Ohio St.3d 1516,
2012-Ohio-4021,
974 N.E.2d 113. Allen also filed an
application to reopen his appeal pursuant to App.R. 26(B), which was denied.
State v. Allen, 8th Dist. Cuyahoga No. 97014,
2012-Ohio-5709.
On October 17, 2022, more than eleven years after his convictions,
Allen filed a motion for leave to file a motion for a new trial pursuant to Crim.R.
33(A)(6) and (B) (“motion for leave”) and requested a hearing on the motion.
Allen claimed that, in March 2020, he had retained counsel to represent him on
postconviction matters and, “[i]n pursuit of proving his innocence,” had also
retained a private investigator, Tom Pavlish. He further claimed that, as part of
A. That day, well, he was with me all that week but that day we were together
all day.
Q. When you say he had been with you all that week, what do you mean?
A. He had community service to do in Garfield so he was at my house the
whole week.
his investigation, Pavlish contacted Perkins and obtained an affidavit from
Perkins. The affidavit, dated November 26, 2020, stated:
I, Chris Perkins, swear that I voluntarily provided this statement
to Tom Pavlish.
I was not present on July 17, 2010 when Miley Slaughter,
Kenneth Green and Antwon Weems were shot.
I never went to Metro Hospital to visit Antwon.
I never told him that Demetrius Allen or Montez Logan were the
shooters.
I have no idea why he is stating that I did.
No one ever interviewed me about this incident.
Allen asserted that after obtaining Perkins’ affidavit, “it became
evident that Weems would need to be interviewed based on Perkins’ statements.”
He claimed that Pavlish then contacted Weems and obtained an affidavit from
Weems. The affidavit, dated November 5, 2021, stated:
I, Anton Weems, swear that I voluntarily provided this statement
to Tom Pavlish.
I knew Montez Logan & Demetrius Allen from the
neighborhood. I went to school with Montez. I never had problems
with neither men [sic].
I did not see who shot any of us on July 17, 2010. Chris Perkins
NEVER saw me in the hospital.
I only identified Tez & DJ because the prosecutor told me that I
would get probation for [the] case I was locked up on.
They came to interview me before this. I only decided to lie for
me [sic] freedom.
All the information I gave the police was not first hand [sic]
knowledge or what I saw with my [own] eyes.
I deeply apologize for lying. I was just trying to get home.
(Emphasis sic.)
Allen argued that he was “unavoidably prevented” from timely
discovering that Perkins never spoke to Weems at the hospital and Weems never
saw the shooter(s) the night of the incident because (1) Perkins did not testify at
trial and (2) he had no other way to prove Weems had “lied” at trial until Pavlish
obtained Perkins’ affidavit. Allen asserted that Pavlish had been unable to
promptly contact Weems after obtaining Perkins’ affidavit because Weems was
“on the run” from June 2020 to February 2021 and then faced new criminal
charges, which were not resolved until September 7, 2021. Allen asserted that, at
the time he executed his affidavit, Weems was incarcerated and had “nothing to
gain by disclosing that he lied.”
Copies of the affidavits Pavlish obtained from Perkins and Weems
were attached to Allen’s motion for leave. No other evidence was submitted in
support of the motion.2 The state opposed the motion for leave.
On April 27, 2023, Allen filed a “supplemental motion for leave to
file motion for new trial,” providing “additional evidence in support of his motion
for leave.” Allen claimed that he had discovered new evidence establishing that
Dapolo had “lied” when he testified that he had performed community service on
July 17, 2010. Allen claimed that records obtained from the Garfield Heights
Municipal Court showed that Dapolo actually completed his community service
on August 7, 2010, not July 17, 2010, and that “[e]vidence establishing that
[Dapolo] was lying about his community services was material and would have
been relevant for defense counsel during cross-examination.” Allen argued that
2 Allen did not provide an affidavit from himself or Pavlish supporting his
assertions regarding the timing of, and circumstances surrounding, the acquisition of
Perkins’ and Weems’ affidavits.
he should be permitted to file a motion for a new trial based on this evidence (in
addition to the Perkins and Weems affidavits) because he had been “unaware of
the fact that evidence existed establishing [Dapolo’s] deceptions,” the state did
not produce this evidence prior to Allen’s convictions and “[d]efendants are ‘not
required to show that [they] could not have discovered suppressed evidence by
exercising reasonable diligence,’” quoting State v. Bethel, 167 Ohio St.3d 362,
2022-Ohio-783,
192 N.E.3d 470, ¶ 24-25. In support of his motion, Allen
attached copies of (1) a judgment entry in Garfield Heights Municipal Court Case
Nos. TRD 100379 (“TRD 100379”) and CRB 1001331 (“CRB 1001331”), dated
June 23, 2010, sentencing Dapolo to a 30-day suspended jail sentence and three
months of active community-control sanctions after he pled no contest to one
count of pedestrian in the road (in TRD 100379) and one count of possession of
marijuana (in CRB 1001331),3 (2) a notice of community service in TRD 100379,
dated July 26, 2010, indicating that Dapolo had been ordered to perform eight
hours of community service on August 7, 2010, at 9:00 a.m. and (3) a journal
entry in TRD 100379, dated August 9, 2010, terminating Dapolo’s probation and
indicating that “Defendant has completed community service with the Garfield
Heights Police Department.” The date on which Dapolo completed community
3 In his supplemental motion for leave, Allen asserted that, as part of its June 23,
2010 order, the Garfield Heights Municipal Court ordered Dapolo to serve eight hours of
community service. However, the copy of the order that is in the record is of poor quality
and that portion of the order is illegible. The copies of the documents Allen attached to
his motion were not certified copies.
service was not identified in the entry. No other evidence was submitted in
support of the supplemental motion for leave.
On May 1, 2023, the trial court summarily denied Allen’s motion for
leave to file a motion for a new trial.
Allen appealed, raising the following sole assignment of error for
review:
The trial court abused its discretion in denying Mr. Allen’s Motion for
Leave to File a Motion for New Trial.
Law and Analysis
Motion for Leave to File Motion for a New Trial under Crim.R. 33
Crim.R. 33(A)(6) allows a trial court to grant a new trial where “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’s “substantial rights” are “materially” “affect[ed].” A defendant whose
case was tried to a jury must file a motion for a new trial based on newly
discovered evidence within 120 days after the jury’s verdict; otherwise, leave of
court to file a motion for new trial must be sought and granted. To obtain leave
to file an untimely motion for a new trial, the defendant must show “by clear and
convincing proof” that he or she was “unavoidably prevented” from discovering
the evidence and filing a timely motion for a new trial within the 120-day period.
Crim.R. 33(B).
“Clear and convincing” evidence is that “measure or degree of proof”
that “produce[s] in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d
118 (1954), paragraph three of the syllabus. “It is intermediate, being more than
a mere preponderance, but not to the extent of such certainty as is required
beyond a reasonable doubt as in criminal cases. It does not mean clear and
unequivocal.” (Emphasis deleted.) Id. at 477.
When a defendant seeks leave to file a motion for a new trial under
Crim.R. 33(B), the merits of the new-trial claim are not before the trial court
unless, and until, it grants the motion for leave and the trial court, therefore, may
not consider the merits of a proposed motion for a new trial unless, and until, it
grants the motion for leave. State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-
3991,
205 N.E.3d 513, ¶ 30, 33; Bethel,
167 Ohio St.3d 362,
2022-Ohio-783,
192
N.E.3d 470, at ¶ 41. The sole question before the trial court when considering
whether to grant a motion for leave based on newly discovered evidence is
whether the defendant has established by clear and convincing proof that he or
she was unavoidably prevented from discovering the evidence at issue within the
time frame provided, e.g., within 120 days of the jury’s verdict.
Hatton at ¶ 30;
State v. Hale, 8th Dist. Cuyahoga No. 112163,
2023-Ohio-3894, ¶ 20. A
defendant’s “mere allegation” that he or she was unavoidably prevented from
discovering the evidence he or she seeks to introduce to support a new trial does
not meet that burden. State v. McFarland, 8th Dist. Cuyahoga No. 111390, 2022-
Ohio-4638, ¶ 17; State v. Hubbard, 8th Dist. Cuyahoga No. 108853, 2020-Ohio-
2726, ¶ 29; State v. Cowan, 8th Dist. Cuyahoga No. 108394,
2020-Ohio-666, ¶ 10.
A defendant is entitled to a hearing on a motion for leave to file an
untimely motion for a new trial only if the defendant submits documents that “on
their face” support his or her claim that he or she was unavoidably prevented from
timely discovering the grounds for the motion. See, e.g., State v. McAlpin, 8th
Dist. Cuyahoga No. 110811, 2023-Ohio-4794, ¶ 29; McFarland at ¶ 28; State v.
Dues, 8th Dist. Cuyahoga No. 105388,
2017-Ohio-6983, ¶ 12; State v.
Ambartsoumov, 10th Dist. Franklin Nos. 12AP-877 and 12AP-878, 2013-Ohio-
3011, ¶ 13 (motion for leave to file motion for new trial may be summarily denied
where neither the motion nor its supporting affidavits “‘embody prima facie
evidence of unavoidable delay’”), quoting State v. Peals, 6th Dist. Lucas No. L-10-
1035,
2010-Ohio-5893, ¶ 22; State v. Martin, 8th Dist. Cuyahoga No. 110549,
2022-Ohio-1494, ¶ 36-37 (defendant who submitted evidence that on its face
showed he was unavoidably prevented from discovering and presenting evidence
sooner was entitled to a hearing on motion for leave to file motion for new trial).
Standard of Review
We review both a trial court’s decision on a motion for leave to file
an untimely motion for a new trial and a trial court’s decision whether to hold an
evidentiary hearing on a motion for leave for abuse of discretion. Hatton at ¶ 29;
McAlpin at ¶ 29, citing State v. Cannon, 8th Dist. Cuyahoga No. 103298, 2016-
Ohio-3173, ¶ 16; Hale at ¶ 17.
A court abuses its discretion “when a legal rule entrusts a decision
to a judge’s discretion and the judge’s exercise of that discretion is outside of the
legally permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-
Ohio-6699,
172 N.E.3d 75, ¶ 19; see also Johnson v. Abdullah,
166 Ohio St.3d 427,
2021-Ohio-3304,
187 N.E.3d 463, ¶ 35 (describing the “common understanding
of what constitutes an abuse of discretion” as “a court exercising its judgment, in
an unwarranted way, in regard to a matter over which it has discretionary
authority”). A decision is an abuse of discretion when it is unreasonable, arbitrary
or unconscionable. See, e.g., State v. Brusiter, 8th Dist. Cuyahoga No. 112410,
2023-Ohio-3794, ¶ 10; McAlpin at ¶ 30; Blakemore v. Blakemore,
5 Ohio St.3d
217, 219,
450 N.E.2d 1140 (1983). A decision is “unreasonable” “‘if there is no
sound reasoning process that would support that decision.’” State v. Ford,
158
Ohio St.3d 139,
2019-Ohio-4539,
140 N.E.3d 616, ¶ 106, quoting AAAA Ents. v.
River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553
N.E.2d 597 (1990). An “arbitrary” decision is “made ‘without consideration of or
regard for facts [or] circumstances.’” State v. Beasley,
152 Ohio St.3d 470, 2018-
Ohio-16,
97 N.E.3d 474, ¶ 12, quoting Black’s Law Dictionary 125 (10th Ed.2014).
When applying an abuse-of-discretion standard, this court may not substitute its
judgment for that of the trial court. McFarland at ¶ 21.
A defendant may make the required showing that he or she was
“unavoidably prevented” from filing a timely motion for a new trial based on new
evidence by demonstrating that he or she was previously unaware of the evidence
on which the motion relies and could not have discovered it within the required
time by exercising reasonable diligence. State v. Johnson, Slip Opinion No. 2024-
Ohio-134, ¶ 18; Bethel, 167 Ohio St.3d 362,
2022-Ohio-783,
192 N.E.3d 470, at
¶ 21; McFarland at ¶ 16.
A defendant may also make the required showing by establishing
that the prosecution suppressed the evidence at issue. Bethel at ¶ 25 (“[W]hen a
defendant seeks to assert a Brady claim in an untimely or successive petition for
postconviction relief, the defendant satisfies the ‘unavoidably prevented’
requirement contained in R.C. 2953.23(A)(1)(a) by establishing that the
prosecution suppressed the evidence on which the defendant relies.”);
Johnson at
¶ 16, 18 (a petitioner who files an untimely or successive petition for
postconviction relief may show that he or she was unavoidably prevented from
discovering the evidence on which the petition relies “by establishing a violation
under [Brady v. Maryland,
373 U.S. 83,
83 S.Ct. 1194,
10 L.Ed.2d 215 (1963)]”);
State v. McNeal,
169 Ohio St.3d 47,
2022-Ohio-2703,
201 N.E.3d 861, ¶ 17 (“[A]
defendant may satisfy the ‘unavoidably prevented’ requirement contained in
Crim.R. 33(B) by establishing that the prosecution suppressed the evidence on
which the defendant would rely in seeking a new trial.”).
Allen has not claimed a Brady violation or that the state otherwise
suppressed the evidence at issue. Accordingly, to warrant a hearing on his motion
for leave, he needed to submit documents with his motion for leave that, on their
face, supported his claim that he was previously unaware of the evidence at issue
and could not have discovered it within the required time by exercising reasonable
diligence. After careful consideration of the record before us, we cannot say that
the trial court abused its discretion in concluding that Allen did not meet his
burden here.
Affidavits from Perkins and Weems
With respect to the Perkins and Weems affidavits, Allen argues that
(1) because Perkins did not testify at trial, Allen did not become aware of Perkins’
statement until Perkins spoke with Pavlish, (2) it was Pavlish’s conversation with
Perkins that led Pavlish to speak with Weems and (3) Allen had “absolutely no
control over when individuals were willing to provide affidavits” and could only
“deal with witnesses as they are available to him” once they “have decided to
provide affidavits,” he established, by clear and convincing evidence, that he was
“unavoidably prevented from discovering the affidavits of Mr. Perkins and Mr.
Weems within the pr[e]scribed 120-day period.” We disagree.
In Johnson, Slip Opinion No. 2024-Ohio-134, the Ohio Supreme
Court considered what evidence a petitioner needs in order to establish, for
purposes of an untimely or successive petition for postconviction relief under R.C.
2953.23(A)(1), that he or she was “unavoidably prevented” from discovering facts
involving a recanting witness. The court rejected the argument that an affidavit
from a recanting witness, dated after the statutory deadline for filing a timely
petition, was, in and of itself, sufficient to establish that a defendant was
unavoidably prevented from timely submitting the evidence. The court
explained:
R.C. 2953.23(A)(1)(a) requires a petitioner to show that he was
“unavoidably prevented” — not merely “prevented” — from discovering
the facts on which he would rely. (Emphasis added.) “Unavoidable”
means “not avoidable” or “inevitable.” Merriam-Webster’s Collegiate
Dictionary 1360 (11th Ed.2003). And something is “inevitable” if it is
“incapable of being avoided or evaded.” Id. at 638. Keeping in mind
that R.C. 2953.23 means what it says, a petitioner filing an untimely
postconviction petition must show that any delay in discovering the
facts undergirding the petition was “incapable of being avoided or
evaded,” Merriam-Webster’s Collegiate Dictionary at 638.
The light that an affidavit’s date sheds on that issue is dim, at
best. A date merely reveals when the affidavit was executed or
provided, not when the testimony it contains became available.
Without an explanation of how the recantation was discovered, the
information essential to the R.C. 2953.23 inquiry remains cloaked in
darkness. It is this type of information that bears on the petitioner’s
ability to avoid delay in discovering recanted testimony. …
Accepting an affidavit’s date as prima facie evidence satisfying
the strictures of R.C. 2953.23(A)(1)(a) would effectively eliminate the
word “unavoidably” from the statute. Thus, we hold that R.C.
2953.23(A)(1)(a) requires a petitioner to submit evidence of specific
facts beyond the supporting affidavit’s date to explain why the
petitioner was unable to timely obtain an affidavit from the recanting
witness.
Johnson at ¶ 24-25, 27.
The court also rejected the argument that questions concerning the
reasons for a recanting witness affidavit, the timing of a recanting witness
affidavit and efforts to discover a recantation must be explored at a hearing:
[T]he petitioner bears the burden of proving that he was unavoidably
prevented from discovering the evidence on which he must rely … .
Therefore, it is the petitioner’s duty to present sufficient evidence to
carry that burden at the time he files the petition. And there is no
practical reason why a hearing might be necessary for the petitioner to
satisfy this burden. If testimony can be elicited at a hearing, it can be
attested to in an affidavit. We therefore reject Johnson’s argument that
regardless of the circumstances, a hearing is required whenever a
petitioner produces an affidavit from a witness recanting the witness’s
testimony.
Johnson at ¶ 26.
In Johnson, the only evidence the petitioner, Johnson, had
submitted in support of his postconviction petition was an affidavit from the
recanting witness, the victim. Id. at ¶ 28. In his affidavit, the victim detailed his
“doubts” about his trial testimony, his limited recollection of his assailant and his
concern that he had improperly identified Johnson as his attacker. Id. at ¶ 7. He
also explained that he had “felt pressured by [a police detective] to … testify
against [Johnson] even though [he] wasn’t sure [Johnson] was the person who
committed these crimes against [him].” Id. Although Johnson asserted in his
petition, “in conclusory fashion,” that the information in the affidavit “was not
available to [him] until this time” and “was not discoverable by him until [the
recanting witness] presented it,” the affidavit did not state this. Id. at ¶ 29. The
affidavit contained no information about when or how Johnson learned of the
victim’s misgivings regarding his identification of Johnson, who contacted whom,
when such contact occurred or any other information “about whether Johnson
had been prevented, unavoidably or otherwise, from timely discovering [the
victim’s] uncertainties about his identification of Johnson.” Id. at ¶ 28-29.
Further, the victim claimed in his affidavit that he had “spent the past seven years
thinking about [his] testimony” and that he had daily “felt an incredible weight on
[his] shoulders” because he believed he did not identify the right person. Id. at
¶ 29. Under such circumstances, the court held that Johnson “did not carry his
burden” of showing that he was “unavoidably prevented” from discovering the
recantation within the statutory deadline. Id. at ¶ 8-30, 35.4
Because “‘the “unavoidably prevented” requirement in Crim.R.
33(B) mirrors the “unavoidably prevented” requirement in R.C. 2953.23(A)(1),’”
we must apply the same analysis when determining whether Allen met his burden
here. Bethel, 167 Ohio St.3d 362,
2022-Ohio-783,
192 N.E.3d 470, at ¶ 59, quoting
State v. Barnes, 5th Dist. Muskingum No. CT2017-0092,
2018-Ohio-1585, ¶ 28;
see also
Johnson at ¶ 16, fn. 3.
In this case, the only evidence Allen presented in support of his
claim that he was unavoidably prevented from discovering Weems’ recantation
were the affidavits from Perkins and Weems. Allen argues that he was “prevented
from obtaining [the affidavits] unless and until the individuals were willing to
provide those affidavits.” However, there is no evidence in the record detailing
Allen’s efforts, if any, to timely obtain an affidavit from Perkins or Weems or
establishing why any such efforts would have been unavailing.
4 The court also held that Johnson had failed to establish that he would not have
been convicted but for constitutional error at trial under R.C. 2953.23(A)(1)(b). Id. at
¶ 31-35.
In his motion for leave Allen asserts (unsupported by affidavit) that
the path to his discovery of Weems’ recantation began when he hired a private
investigator in 2020. Allen further asserts that the private investigator located
Perkins and obtained an affidavit from him in November 2020. No information
is provided in Perkins’ affidavit as to how or when the private investigator located
Perkins. Allen claims that it was only after obtaining the affidavit from Perkins —
in which Perkins disclaimed any role in Weems’ identification of Allen and Logan
— that he (or his private investigator) could approach Weems, but he offers no
explanation as to why he could not have reached out to Perkins or Weems sooner.
No information is provided in Weems’ affidavit as to what led him to execute an
affidavit in November 2021 recanting his trial testimony, i.e., whether it was
Perkins’ statement or something else. Perkins states in his affidavit that no one
ever interviewed him regarding the incident.
Allen and his defense attorneys were well aware of the existence of
Perkins and his role in the case at the time of trial — if not before. Multiple
witnesses, including Weems and police detectives, testified regarding the fact
Perkins had allegedly told Weems the names of the men involved in the shooting.
The record reflects also that a private investigator assisted in Allen’s defense prior
to trial.5
5 At oral argument, Allen’s counsel stated that Allen did not have a private
investigator assisting the defense at trial. However, the trial transcript reflects otherwise.
See tr. at 178-179 (indicating that the state had received “from defense counsel the audio
tape from their investigator” the state had requested). A private investigator was also
identified as a potential trial witness for the defense in Allen’s discovery responses.
In this case, all we have are Allen’s conclusory assertions
(unsupported by affidavit) that he was unavoidably prevented from discovering
Perkins’ statement and Weems’ recantation within the prescribed time frame.
However, “‘[m]ere conclusory allegations do not prove that the defendant was
unavoidably prevented from discovering the evidence he seeks to introduce as
support for a new trial.’” McFarland, 2022-Ohio-4638, at ¶ 28, quoting State v.
Cashin, 10th Dist. Franklin No. 17AP-338,
2017-Ohio-9289, ¶ 17, 20-23 (trial
court did not err in denying defendant’s motion for leave to file motion for new
trial based on evidence contained in new witness affidavits where defendant
“failed to produce any evidence regarding his efforts to obtain the witnesses’
affidavits”; defendant’s statement that he did “everything possible” to obtain the
witnesses’ testimony was a “conclusory allegation devoid of the detail necessary
to determine whether [the defendant] exercised reasonable diligence”).
Allen has not shown that the trial court abused its discretion in
denying his motion for leave based on Perkins’ and Weems’ affidavits.
Garfield Heights Municipal Court Records Relating to Dapolo’s
Community Service
With respect to the municipal court records, Allen claims, citing
Bethel, 167 Ohio St.3d 362,
2022-Ohio-783,
192 N.E.3d 470, at ¶ 24-25, that he
was “not under an obligation to ‘scavenge’ for material” and was “not required to
prove he could not have obtained the evidence through reasonable diligence.” He
asserts that he was “entitled to rely upon the prosecution’s production of
evidence” and that because the state “did not disclose the documentation related
to [Dapolo’s] term of community service prior to [Allen’s] trial,” it was
“reasonable to assume” that the state was unaware of it and “reasonable to
conclude” that Allen was “similarly unaware.” Allen further asserts that because
he “did not become aware of this evidence until approximately a decade after his
conviction,” he was “unavoidably prevented from providing this evidence to the
trial court within 120 days of his conviction.”
Bethel, however, involved an alleged Brady violation. In Bethel, the
defendant filed an untimely, successive petition for postconviction relief under
R.C. 2953.23 and a motion for leave to file a motion for a new trial under Crim.R.
33(B) based on the state’s alleged suppression of an investigation report. Bethel
at ¶ 24-25. The Ohio Supreme Court held that “when a defendant seeks to assert
a Brady claim in an untimely or successive petition for postconviction relief, the
defendant satisfies the ‘unavoidably prevented’ requirement contained in R.C.
2953.23(A)(1)(a) by establishing that the prosecution suppressed the evidence on
which the defendant relies.” Id. at ¶ 25. The court in Bethel did not state that
criminal defendants have no “obligation to ‘scavenge’ for material,” as Allen
claims. The court stated that “criminal defendants have no duty to ‘scavenge for
hints of undisclosed Brady material.’” (Emphasis added.) Id. at ¶ 24, quoting
Banks v. Dretke,
540 U.S. 668, 695,
124 S.Ct. 1256,
157 L.Ed.2d 1166 (2004). The
court further explained:
It is well settled that a defendant is entitled to rely on the prosecution’s
duty to produce evidence that is favorable to the defense. See [Kyles v.
Whitley, 514 U.S. 419, 432-433,
115 S.Ct. 1555,
131 L.Ed.2d 490 (1995)].
A defendant seeking to assert a Brady claim therefore is not required
to show that he could not have discovered suppressed evidence by
exercising reasonable diligence. See [Strickler v. Greene, 527 U.S. 263,
282-285,
119 S.Ct. 1936,
144 L.Ed.2d 286 (1999)]. We hold that when
a defendant seeks to assert a Brady claim in an untimely or successive
petition for postconviction relief, the defendant satisfies the
“unavoidably prevented” requirement contained in R.C.
2953.23(A)(1)(a) by establishing that the prosecution suppressed the
evidence on which the defendant relies.
Bethel at ¶ 25.
In Bethel, the court held that the documents the defendant
submitted with his successive postconviction petition “establish[ed] a prima facie
claim that the prosecution suppressed [information in the investigation report]”
in violation of Brady, thereby satisfying the “unavoidably prevented” requirement
in R.C. 2953.23(A)(1)(a).6 Id. at ¶ 25, 30, 59.
Although criminal defendants have no duty to “scavenge” for
“undisclosed Brady material,” that is not the situation here. As stated above,
Allen has not claimed that he was unavoidably prevented from discovering the
information in the municipal court records due to the state’s suppression of
6 In Bethel, the court ultimately held that the trial court had properly dismissed the
defendant’s successive postconviction petition for lack of subject-matter jurisdiction after
concluding that the defendant had failed to meet his burden under R.C. 2953.23(A)(1)(b)
to establish that the allegedly suppressed information was material. Id. at ¶ 60. The court
held that it was unnecessary to remand the defendant’s motion for leave to file a motion
for a new trial under Crim.R. 33, because, even assuming the defendant would be entitled
to a hearing on his motion for a new trial, the hearing would be an exercise in futility given
that the court had already concluded (in determining that the defendant had failed to
meet his burden under R.C. 2953.23(A)(1)(b)) that the defendant’s Brady claim, which
was the basis of the motion for a new trial, lacked merit. Id. at ¶ 59.
evidence. The municipal court records were public records. It was well known to
Allen that Dapolo claimed to have performed court-ordered community service
on July 17, 2010. Both Dapolo and Allen’s brother, Deandre, testified at trial
regarding Dapolo’s court-ordered community service. Allen provided no
affidavits or other evidence detailing how he learned of the existence of the
municipal court records and why he, his attorneys or his private investigator could
not have discovered them sooner. Evidence is not undiscoverable simply because
no one looked for it. See, e.g., McFarland, 2022-Ohio-4638, at ¶ 25 (“‘A
defendant cannot claim that evidence was undiscoverable merely because the
defendant or his defense counsel made no effort to obtain the evidence sooner.’”),
quoting Hubbard,
2020-Ohio-2726, at ¶ 56; Hale,
2023-Ohio-3894, at ¶ 31
(same); State v. Collins, 8th Dist. Cuyahoga No. 108486,
2020-Ohio-918, ¶ 45
(“It is the duty of the criminal defendant and his trial counsel to make a serious
effort, on their own, to discover potential, favorable evidence. … Claims that
evidence was undiscoverable simply because the defense did not take the
necessary steps earlier to obtain the evidence do not satisfy the requisite standard
[under Crim.R. 33(B)].”).
Allen has not shown that the trial court abused its discretion in
denying his motion for leave based on the municipal court records.
Conclusion
Crim.R. 33(B) puts the onus on the defendant to show that he or
she was unavoidably prevented from timely discovering the new evidence on
which a motion for a new trial is based. The only evidence Allen submitted in
support of his motion for leave to file a motion for a new trial were Perkins’ and
Weems’ affidavits and the municipal court records. These documents are silent
on the issue of whether Allen was unavoidably prevented from discovering this
evidence within 120 days of the jury’s verdict. Because Allen failed to present
evidence that, on its face, could support his claim that he was unavoidably
prevented from timely discovering Perkins’ statement, Weems’ recantation
and/or the municipal court records, the trial court did not abuse its discretion in
denying his motion for leave to file a motion for a new trial without a hearing.
Allen’s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
The defendant’s conviction having been affirmed, any bail pending appeal is
terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
_________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR
