[Cite as State v. Ellis,
2025-Ohio-4675.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114788
v. :
LDDARYL ELLIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 9, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-12-568532-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
Patituce & Associates, LLC, Megan M. Patituce, and
Joseph C. Patituce, for appellant.
SEAN C. GALLAGHER, J.:
Appellant Lddaryl Ellis appeals the trial court’s decision denying his
petition for postconviction relief. Upon review, we affirm.
In 2013, following a bench trial, appellant was found guilty of
discharge of a firearm on or near prohibited premises, involuntary manslaughter,
murder, aggravated riot, and multiple counts of felonious assault, all with attached
firearm specifications.1 The offenses stemmed from a gunfight, which involved two
shooting incidents occurring within a short time period, that happened on March 13,
2012, in the vicinity of East 95th Street in Cleveland. The victim, who had been
looking through her window at the gunfight, was struck and killed by a bullet that
entered her home. Several witnesses testified to seeing appellant with a gun in his
hand, which was believed to be a black semiautomatic handgun; to seeing appellant
shooting and/or hearing appellant and his companions shooting; and to observing
appellant’s location on East 95th Street. A detective testified that multiple shell
casings that were found in a direct line to the victim’s house were from a 9 mm
handgun. Those shell casings did not match any of the handguns recovered from
the other defendants. Another detective testified that a morgue pellet recovered
from the victim’s body matched the shell casings fired from the 9 mm handgun,
which handgun was never recovered. The morgue pellet contained “seven lands and
grooves with a right-hand-twist” that was unique to a Skyy 9 mm pistol. Other
testimony and evidence were provided.
The trial court merged several counts for sentencing purposes and
imposed an aggregate sentence of 15 years to life imprisonment to be served after
1 Appellant was acquitted on six other counts.
appellant served two consecutive three-year terms for firearm specifications, for a
total of 21 years to life. Appellant’s convictions, except for aggravated riot, were
affirmed on appeal in State v. Ellis, 2014-Ohio-116 (8th Dist.).2 Further review of
the evidence is set forth in that decision. See
id. As this court observed in Ellis, three
witnesses placed a gun in appellant’s possession and “[w]e can also conclude from
the physical evidence collected that Ellis was in possession of a handgun on East
95th Street and that handgun resulted in [the victim’s] death.” Id. at ¶ 28-31.
In March 2019, appellant filed a petition for postconviction relief
pursuant to R.C. 2953.23(A)(1)(a) and (b), and in April 2019, he filed an amended
petition. Following responsive briefing and the filing of supplemental authority, the
trial court denied appellant’s petition as untimely. This appeal followed.
Appellant’s sole assignment of error claims the trial court erred in
denying his petition for postconviction relief as untimely.
Our review of whether the trial court had subject-matter jurisdiction
to entertain appellant’s petition for postconviction relief is de novo. See State v.
Johnson, 2024-Ohio-134, ¶ 11, citing State v. Bethel,
2022-Ohio-783, ¶ 20. Relative
to this matter, for the trial court to have subject-matter jurisdiction to consider an
untimely petition for postconviction relief, appellant had to show that he “‘was
unavoidably prevented from discovery of the facts upon which the petitioner must
2 The aggravated riot conviction was ordered to be vacated because it was
uncontested that appellant participated in the shooting in the company of three other
gang members, but the charge of aggravated riot required four or more others. Ellis
at ¶ 33.
rely to present the claim for relief’” and show “‘by clear and convincing evidence that,
but for constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty[.]’” Id. at ¶ 10, quoting R.C. 2953.23(A)(1)(a) and (b).
As to the “unavoidably prevented” requirement, “[a] petitioner may
make the required showing either by establishing a violation under [Brady v.
Maryland, 373 U.S. 83 (1963)], or by demonstrating that he was previously unaware
of the evidence on which the petition relies and could not have discovered it by
exercising reasonable diligence.”
Johnson at ¶ 18. Pursuant to the United States
Supreme Court’s decision in Brady, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.” Id. at 87. The Supreme Court of Ohio has observed that
“criminal defendants have no duty to ‘scavenge for hints of undisclosed Brady
material.’”
Bethel at ¶ 24, citing Banks v. Dretke,
540 U.S. 668, 695 (2004).
However, the Brady test “is stringent” and “‘[t]he mere possibility that an item of
undisclosed information might have helped the defense, or might have affected the
outcome of the trial, does not establish “materiality” in the constitutional sense.’”
State v. Jackson,
57 Ohio St.3d 29, 33 (1991), quoting United States v. Agurs,
427
U.S. 97, 109-110 (1976). “Brady requires a ‘reasonable probability’ of a different
outcome with the exculpatory evidence, that is, an undermined confidence in the
trial result obtained without the exculpatory evidence.”
Jackson at 33, citing United
States v. Bagley,
473 U.S. 667, 682 (1985).
The record herein shows that the gunfight in this case occurred on
March 13, 2012. A police report noted that Jamar Ensley, who was associated with
the gunfight in this case, “had been mentioned in a CCW Arrest incident on April 26,
2012” along with two other individuals and that “[d]uring this incident[,] a SKYY
9 mm caliber pistol . . . was confiscated.” The report reflects that a ballistic
comparison request was submitted to the lab to have the confiscated Skyy 9 mm
pistol compared to the morgue pellet and casings recovered in the homicide
investigation. Appellant claims the prosecution failed to include evidence regarding
the ballistic testing and comparisons with that firearm during pretrial discovery.
Following his conviction, appellant eventually obtained documents
on March 4, 2018, from the Cleveland Police Forensic Laboratory, which revealed
the lab had received and analyzed the Skyy 9 mm pistol that had been seized during
the April 2012 incident involving Ensley and two others. However, the ballistic
laboratory report that was prepared on September 7, 2012, by James Kooser, the
firearms examiner, indicates that a microscopic examination and comparison of the
morgue bullet to a test-fired bullet from the submitted Skyy 9 mm pistol revealed
“corresponding general rifling characteristics seven (7) lands and seven (7) grooves
with a right-hand twist but dissimilar barrel engraved striations.” Therefore, Kooser
concluded in the report that the submitted weapon “did not fire the morgue bullet.”
Kooser also concluded from his examination and testing that the submitted weapon
“did not fire the crime scene spent cartridge cases.” Additionally, in another
referenced report, Kooser found a spent crime-scene bullet that was submitted to be
of “no analytical value due to impact with a hard surface.”
Nevertheless, appellant claims that he was unavoidably prevented
from discovery of the facts upon which his claim for relief relies. He argues that the
State withheld exculpatory evidence pertaining to the confiscated Skyy 9 mm pistol
and any scientific tests performed on that firearm. He argues that the dissimilarities
with the subject firearm were not expounded upon, and he claims that the State’s
failure to disclose the report deprived him of the full opportunity to cross-examine
Kooser on his conclusion and of the opportunity to obtain an expert to conduct an
independent analysis on behalf of the defense. He maintains that he has shown both
that a Brady violation occurred and that he was previously unaware of the evidence
on which his petition relies and could not have discovered it by exercising reasonable
diligence. He claims that after years of unsuccessful attempts to obtain information
in his case, which efforts are detailed in his petition, he obtained the evidence on
which his petition relies.
The State concedes that a Skyy 9 mm pistol was seized upon a
carrying-concealed-weapons arrest incident involving Jamar Ensley and two other
individuals on April 26, 2012, which was more than a month after the gunfight that
occurred in this case in which witnesses observed Ellis with a firearm. The State also
acknowledges that a report was prepared confirming the weapon confiscated during
the April 2012 incident with Ensley was operable, but that it was concluded that this
weapon “did not fire” the morgue pellet in the underlying homicide because the
recovered Skyy 9 mm handgun contained “dissimilar barrel engraved striations.” As
argued by the State, “that someone else’s gun did not fire [the fatal bullet], or that
one of the bullets [from the crime scene] could not be forensically examined, does
nothing to change the weight of the evidence against Appellant.” The State further
argues that the defense was aware the Skyy 9 mm pistol was confiscated upon
Ensley’s arrest and submitted for forensic testing. The State claims the defense had
the opportunity to cross-examine Kooser and could have obtained the information
with reasonable diligence.
Upon review, we find appellant has not demonstrated a Brady
violation. Appellant offers nothing more than a mere possibility that the
undisclosed information might have helped the defense. The ballistic reports on
which appellant relies do not show anything inculpatory or exculpatory. The fact
that the confiscated weapon had seven land groves with a right-hand twist, which is
a common feature of Skyy 9 mm handguns, shows no connection to the murder
weapon in this case. In fact, the reports show that the confiscated weapon had
dissimilar striations and that it had no connection to the fatal bullet or crime-scene
bullets in this case. Appellant’s theory that the disclosure of the reports may have
led to different testing or conclusions is speculative, and he fails to show any
reasonable probability of a different outcome or that there was any failure to disclose
material exculpatory evidence. Simply put, the fact that Kooser’s reports indicate
that a dissimilar Skyy 9 mm pistol was confiscated during a subsequent incident
involving Ensley and two others has no bearing upon the evidence against appellant
in this case. It cannot be said that there is an undermined confidence in the trial
result or that a Brady violation occurred.
Furthermore, even if appellant could demonstrate that he was
previously unaware of the evidence on which his petition relies and could not have
discovered it by exercising reasonable diligence, he fails to show by clear and
convincing evidence that, but for constitutional error at trial, no reasonable
factfinder would have found him guilty as required under R.C. 2953.23(A)(1).
Indeed, the firearms examiner found that the “SKYY 9 mm caliber pistol did not fire
the morgue bullet” and, as this court previously determined, “the logical conclusion
from the evidence [presented at trial] is that the bullet that struck and ultimately
killed [the victim] was fired from the firearm that [appellant] was shooting . . . .”
Ellis, 2014-Ohio-116, at ¶ 40.
Having reviewed the record and pertinent law, we conclude that the
trial court did not have subject-matter jurisdiction to consider appellant’s untimely
petition for postconviction relief. We are not persuaded by any of appellant’s
arguments otherwise. His sole assignment of error is 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.
______________________
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, A.J., and
EMANUELLA D. GROVES, J., CONCUR
