[Cite as State v. Kenney,
2025-Ohio-4841.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114553
v. :
PETER A. KENNEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 23, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-01-410438-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellee.
Kimberly Kendall Corral and Katerina Bravos MacGregor,
for appellant.
EMANUELLA D. GROVES, P.J.:
Defendant-appellant Peter A. Kenney (“Kenney”) appeals the trial
court’s denial of his untimely and successive petition for postconviction relief under
R.C. 2953.21 and 2953.23. Upon review, we affirm.
I. Facts and Procedural History
A. Convictions, Postconviction Filings, and Prior Appeals
In November 2001, a jury found Kenney guilty of aggravated murder
and kidnapping, each accompanied by a firearm specification. Kenney was
sentenced to life imprisonment with parole eligibility after 30 years on the
aggravated-murder count and nine years on the kidnapping count, to be served
concurrently. The trial court also sentenced Kenney to three years on each firearm
specification, both to be served prior to and consecutive with the base sentences.
Although witnesses saw or heard the shooting that culminated in
Kenney’s convictions, none were able to identify the shooter. Instead, the case
against Kenney was based on his admissions — made to several individuals at
different times — that he killed the victim. In Kenney’s direct appeal of his
convictions, this court made the following factual findings:
The facts leading to this appeal arise from the execution-style killing of
17-year-old Terrence Robinson on April 17, 2001. Just before dawn on
the 17th, police responded to a call about “gunshots in the area and a
male down in the backyard” at 3370 W. 95th Street, Cleveland, Ohio.
At trial, police officer Gary Helshel testified he was one of the first
officers to arrive at the scene. Officer Helshel entered the backyard at
3370 W. 95th and discovered Robinson’s partially nude and lifeless
body face down. Detective Michael O’Malley described how Robinson
was found clad in his underwear with other pieces of clothing strewn
near his body.
An autopsy revealed that Robinson had been shot seven times in
different parts of his body. One close-range gunshot wound was found
in the top of his head. The coroner testified that of the seven gunshot
wounds the one in the top of Robinson’s skull was fatal. The coroner
estimated that when that shot was fired, the gun was probably about 12
inches away from Robinson’s head. The head wound was the last of the
seven gunshot wounds Robinson endured. Before that shot, Robinson
was still alive but had been immobilized by the six other bullets, several
of them fired into his lower extremities.
Robinson was killed in the backyard of the house where Renee McBride
lives. She told the jury that Robinson sometimes stayed at her house
and that, as of the 17th, he had been living there for about a month. On
the morning of the shooting, McBride testified she heard two gunshots,
heard Robinson crying for help, and then heard four more shots.
Timmon Black, visiting at his girlfriend’s house on W. 95th on the 17th,
testified that he awoke when he heard gunshots around 4:00 a.m.
Black described what he saw when he looked out the window towards
McBride’s backyard: “I saw two guys standing off to the side and then I
saw the guy laying on the ground . . . and then a guy just popped out of
nowhere like a ghost, came from around the other two guys . . . and shot
him and they ran off.” Black stated the man who came out of nowhere
was “about a foot” away from Robinson when he fired the gun. Even
though there was very little illumination, Black was able to identify the
shooter as a white male because “as he jumped up to go away . . . the
hood come back . . . you could see that white face in the dark.” Lynette
Schirger, who lives on W. 97th, testified that Kenney was known in the
neighborhood as “Shorty.” Schirger told the jury that when she awoke
on the 17th between 10:00 a.m. to 11:00 a.m., Shorty, her friend, was
visiting her live-in boyfriend, Daniel Fox. According to Schirger, Fox
and some friends, including Kenney, had gone out the night before the
shooting to get high. When she spoke with Kenney the next morning,
Schirger stated that he was still “high.” Schirger described her
conversation with Kenney that morning:
Q: He was still under the influence of whatever he had
used?
A: Yes.
Q: Describe how you could tell that over and above the
eyes?
A: The slur of his speech, his eyes, his eyes just kept
moving like he couldn’t keep them still focused on one
thing. He just kept rolling them around and stuff.
Q: Did Shorty say anything to you?
A: He was all hyped up and he started talking about how
he murdered the black boy.
Q: Did he use the term black boy?
A: No.
Q: What term?
A: He used the term n****
Q: What exactly did Shorty say to you?
A: That he murdered the n**** and that’s what he
deserved.
...
Q: Did he use a name . . . did he say a name of the person
he shot?
A: Yeah. I specifically asked who and he said Terrence.
...
Q: What else does he say? Does he say where he did this?
A: He didn’t specifically say which backyard, he just said
it was in a backyard.
Q: What else did Shorty say other than it was in a
backyard?
A: That the kid was face down in a mud hole and that he
was stripped down to his boxers.
Bothered by Kenney’s statements, Schirger asked him to leave. Kenney
remarked, “If you don’t believe me watch the news.” When Schirger
watched the news, she did, in fact, see footage on Robinson’s murder.
Later, Schirger met with police and from a police photo array identified
Kenney’s photograph as that of Shorty.
Schirger’s boyfriend, Daniel Fox, was called as a court witness.
According to him, Kenney had arrived at the house in the early morning
hours of the 17th. Two weeks after Robinson’s murder, Fox gave a
written statement to police in which he said he had gotten high with
Kenney the night before Robinson’s murder. When Kenney left that
night he was so high he “could barely walk.” Fox went to bed and was
asleep when Kenney arrived at the house around 3:00 a.m. Fox opened
the door and saw Kenney hand a gun to another person who was also
standing outside with him. After entering the house, Kenney admitted
to Fox he had killed Robinson. During examination by the state,
however, Fox claimed police had threatened to charge him with
Robinson’s murder if he did not make the statement incriminating
Kenney.
Bonnie Cozart also lived in the W. 95th neighborhood and knew
Kenney. Two days after Robinson’s shooting, Cozart spoke with
Kenney and recalled that conversation to the jury:
Q: Now, tell the jury, ma’am, what did he tell you that day,
two days after this murder, what did he tell you?
A: Okay. I stopped because I said, “Hey what’s up,
Shorty.” He said, “Not much. Did you hear about what
happened the other night?” I said, “What? The kid that
got shot.” He said, “Yeah.” He said, “We shot him.” I said,
“Why did you do something like that?” “The kid pissed us
off, so we shot him.”
Cozart stated that, after this conversation, she did not see Kenney
around the neighborhood at all.
Police eventually learned that, on the same day as Robinson’s murder,
Kenney had asked a friend to take care of his dog. Kenney’s
whereabouts remained unknown until on or about May 5, 2001, when
he indicated a desire to surrender to police.
(Cleaned up and citations omitted.) State v. Kenney, 2003-Ohio-1501, ¶ 2-32 (8th
Dist.) (“Kenney I”).
In Kenney I, Kenney argued that the trial court committed reversible
error by allowing the State to impeach Fox with a prior written statement in which
he said that Kenney admitted to killing Robinson. Id. at ¶ 35. Kenney further argued
that the manifest weight of the evidence did not support his convictions. Id. at ¶ 41.
This court affirmed Kenney’s convictions, finding that the trial court did not abuse
its discretion and “the manifest weight of the evidence clearly identifie[d] [Kenney]
as the perpetrator of Robinson’s death.” Id. at ¶ 39, 49.
While Kenney’s direct appeal was pending, he filed a motion for new
trial and petition for postconviction relief at the trial-court level in July 2002. State
v. Kenney, 2003-Ohio-2046, ¶ 1 (“Kenney II”). Kenney claimed that he received
“additional information” about another person’s involvement in the homicide and
asserted that (1) the trial court erroneously denied his request for a continuance to
investigate exculpatory evidence; (2) the prosecutor failed to disclose exculpatory
evidence; and (3) he received ineffective assistance from his trial counsel. Id. at
¶ 49-50. Kenney supported his petition with affidavits from a juvenile-detention-
facility inmate, trial counsel, and himself. Id. at ¶ 46-49. The trial court denied
Kenney’s motion and petition and Kenney appealed those judgments. 1 Id. at ¶ 1.
1 Kenney appealed each judgment separately. This court consolidated those
appeals for purposes of review and disposition.
In Kenney II, this court dismissed Kenney’s appeal from the denial of
his motion for a new trial, finding that Kenney’s notice of direct appeal divested the
trial court of jurisdiction to consider the motion. Id. at ¶ 58-59. We also affirmed
the court’s dismissal of Kenney’s petition for postconviction relief, finding that the
evidence discussed in the affidavits was in existence and available for use at the time
of the trial. Id. at ¶ 51. Accordingly, we held that the issues raised in Kenney’s
petition should have been asserted at trial or on direct appeal and Kenney’s claims
were barred by res judicata. Id. at ¶ 51, 54-56. Kenney sought discretionary review
in the Ohio Supreme Court, but the appeal was not accepted. See State v. Kenney,
2003-Ohio-4671.
In June 2003, Kenney sought to reopen this court’s judgment in
Kenney I, alleging ineffective assistance of appellate counsel. We denied the
application in State v. Kenney, 2004-Ohio-972 (8th Dist.). Kenney challenged our
decision and the Ohio Supreme Court declined to accept the appeal for review. See
State v. Kenney,
2004-Ohio-3580.
Kenney then filed a petition for writ of habeas corpus in November
2004. Kenney claimed that the trial court violated due process by denying his
request for a continuance and both trial and appellate counsel were ineffective.
Kenney’s petition for writ of habeas corpus was denied by the United States District
Court for the Northern District of Ohio, which noted that the affidavits attached to
his petition for postconviction relief addressed evidence that was already in the
record and Kenney had no evidence of actual innocence. See Kenney v. Haviland,
2006 U.S. Dist. LEXIS 69323, *26-27 (N.D. Ohio Sept. 26, 2006).
B. Successive Petition for Postconviction Relief
In June 2023, nearly 22 years after his convictions, Kenney filed a
successive petition for postconviction relief. Kenney claimed that the prosecution
failed to disclose material, exculpatory evidence that was favorable to his defense.
Kenney asserted that several individuals gave statements to the police implicating
other suspects in Robinson’s shooting and that a detective knowingly concealed “a
mountain of exculpatory information” when he testified at Kenney’s trial. Kenney
further claimed that newly discovered evidence invalidated the testimony of two key
witnesses: Schirger and Cozart. Kenney asserted that this evidence established that
Schirger was coerced and Cozart was “incompetent” and “not of sound mind at the
time of her testimony.” Kenney supported his petition with 30 exhibits, including:
- Numerous police reports from April, May, September,
October, and November 2001 and signed statements
taken by detectives in May, August, and November 2001.
In his petition, Kenney claims that the reports and statements
contain “undisclosed facts” and establish that police knew that other
potential suspects confessed to several people that they killed or
shot Robinson. Kenney asserts that these witnesses communicated
the confessions to police prior to Kenney’s trial but the State failed
to share the information with the defense. Kenney also claims that
a detective concealed this information while testifying about his
investigation of Robinson’s murder.
- A police detail for another alleged shooter, which Kenney
uses to establish the individual’s race and height.
- An affidavit executed by Schirger and dated September
2022. Therein, Schirger attested that she “made false statement
and testified untruthfully against [Kenney] because [a detective]
threatened [her].” Schirger averred: “I don’t remember all that I
testified to because it wasn’t the truth. Everything I stated on the
stand was fed to me by [a detective].” Schirger further attested that
she was “coming forward now with the truth because [Kenney]
should not be in prison for a murder he did not commit.” Schirger
averred: “This has weighed heavily on my heart but at the time I felt
I had no choice because I was afraid of [the detective] taking my son
from me. I no longer have any reason to be afraid of [the detective].”
- An affidavit executed by Cozart’s husband and dated
February 2023. Therein, Cozart’s husband attested that he “was
not aware that [Cozart] testified” at Kenney’s trial in 2001, was
“recently informed . . . by an attorney working on behalf of
[Kenney],” and “believe[d] that [Cozart] was not well enough to be
a reliable witness” based on her “compromised mental state at the
time.”
- An affidavit executed by Cozart’s daughter and dated
March 2023. Therein, Cozart’s daughter attested that she was
contacted by one of Kenney’s attorneys in May 2022 and she
provided “information about [Kenney], about intimidation tactics
the local police engaged in, and about [her] mother’s mental
illness.” Cozart’s daughter averred that she was “coming forward
now because [she was] no longer afraid of retaliation.”
- The State’s August 2001 response to discovery requests. In
his petition, Kenney claimed that the State’s witness list attached
thereto revealed that four individuals were not called to testify at
Kenney’s trial despite hearing the alternative suspects’ confessions
and providing that “exonerating information” to police.
- An affidavit executed by Melanie Athey, a licensed private
investigator (“the PI”), and dated February 2023. Therein,
the PI attested that she was hired in 2022 by Kenney’s counsel to
investigate his arrest and conviction. The PI averred that she
interviewed several witnesses throughout the course of her
investigation and that two shared information that she “believe[d]
exonerate[d] [Kenney], but neither witness would provide an
affidavit.”2 The PI then attested to the information she learned
2 Interestingly, the PI attested that one witness “refused to sign a statement unless
he was offered a benefit” while the other advised that he did not remember anything and
claimed to be harassed and threatened after initially cooperating. According to the PI,
about these individuals, how and when she contacted them, and
what she was told during their conversations. The PI averred that
the information one witness shared with police “was not revealed
during [Kenney’s] trial.”
- An affidavit executed by a Hope Valentine (“Valentine”)
and dated September 2022. Therein, Valentine attested that
Kenney “was at Dino’s house on the night [Robinson] was
murdered. He was there when I went to sleep. He was there when I
woke up. As far as I know he was there all night.” Valentine averred
that she told police about Kenney’s whereabouts, “felt like [a
detective] was threatening [her] to get [her] to say or write what he
thought or felt to be true,” and believed the “statement or police
report with a so[-]called account of a conversation/interview with
[her]” was “completely fabricated.”
- An affidavit executed by Matthew Miller (“Miller”) and
dated November 2022. Miller attested that he and Kenney lived
in the same neighborhood and hung out together often. Miller
averred that he did not believe Kenney was responsible for
Robinson’s death because Kenney was not violent, he never saw
Kenney carry a gun, and he did not believe Kenney would have been
capable of running if he was using drugs that night.
- An affidavit executed by Scott Stansell (“Stansell”) and
dated December 2022. Therein, Stansell attested that he and
Kenney used to be “very good friends.” Stansell averred that he
heard from others at home and while incarcerated that Kenney was
not responsible for Robinson’s murder. Stansell attested that
Kenney was “incoherent” when he was high and would not have
been capable of planning or carrying out a plan, shooting a gun, or
running from the scene without leaving evidence behind if he was
high. Stansell further averred that Kenney was not a violent person
and he never saw Kenney handle or shoot a gun. Stansell attested
that he “provid[ed] this affidavit because I believe that [Kenney] is
innocent of [Robinson’s] death.”
- A letter dated November 2001 from Kenney’s trial counsel
to an assistant prosecutor, advising that he interviewed a
juvenile at the Juvenile Detention Center with the
that witness stated that he would not lie if he was called to court and would “‘show the
proof’’” that Kenney’s girlfriend offered to pay him in exchange for his help getting Kenney
out of prison.
juvenile’s attorney. Kenney’s trial counsel wrote that he was
informed that the juvenile heard the other alleged shooter confess
to killing Robinson and name the other two persons involved in the
homicide during a three-way telephone conversation and provided
this information to a detective. Kenney’s trial counsel stated, “At a
previous pretrial you indicated that there was word on the street
that [this individual] was the shooter but that there were no
witnesses to substantiate that information. Apparently [the
juvenile] may possess that information and he claims to have
previously provided it to the police.”
- An affidavit executed by Bobbi Dickson (“Dickson”) and
dated November 2022. Therein, Dickson attested to Kenney’s
whereabouts and condition the night before Robinson’s murder as
well as the events that transpired at Schirger’s home. Dickson, who
was fourteen at the time, averred that he wanted to tell police that
Kenney could not have killed Robinson because Kenney was on the
couch at Schirger’s home all night but was forbidden from getting
involved because his father was concerned about his safety. Dickson
attested, “I have carried a lot of guilt about [Kenney] being convicted
of [Robinson’s] murder and want to offer my sworn statement of the
events I witnessed.”
Kenney argued that this “undisclosed information” was favorable to his defense and
undermined the reliability of his conviction, concluding that the results of his trial
would have been different had the evidence been disclosed. Kenney asserted that he
was unavoidably prevented from discovering the evidence supporting his petition
until a public records request was made for documents involving alternative
suspects, the affiants came forward, and he was able to investigate further.
The State opposed the petition, countering that Kenney repeatedly
litigated the existence of additional suspects and merely repackaged those
arguments as a Brady claim, alleging that the State failed to disclose evidence
despite Kenney’s trial counsel being aware of those facts all along. The State further
countered that Schirger, the purportedly coerced witness, was examined at trial
regarding whether her statements were influenced by law enforcement. The State
also noted that any alleged competency issues would have been evident in Cozart’s
trial testimony. Consequently, the State concluded that Kenney was not
unavoidably prevented from learning about the supposed newly discovered
evidence and his claims could have been raised on direct appeal or in his first
petition for postconviction relief. The State supported its brief in opposition with an
appendix of exhibits.
While Kenney’s successive petition for postconviction relief remained
pending, the State filed multiple notices of supplemental authority, some of which
Kenney opposed through replies or motions to strike. In October 2024, the trial
court dismissed Kenney’s petition for lack of jurisdiction. The trial court did not
hold a hearing on the matter or detail its findings.
Kenney appeals, raising seven assignments of error for review.
Assignment of Error No. 1
The trial court abused its discretion when it unreasonably denied
[Kenney’s] petition, as evidence presented meets the requisite standard
under [R.C. 2953.21 and 2953.23].
Assignment of Error No. 2
The trial court abused its discretion as it acted unreasonably when it
failed to hold an evidentiary hearing.
Assignment of Error No. 3
The trial court abused its discretion as it acted unreasonably when it
failed to weigh the credibility and materiality of the evidence presented.
Assignment of Error No. 4
The trial court unreasonably abused its discretion as evidenced by
failing to identify the correct legal standard or to state findings
demonstrating its application of the correct legal standard.
Assignment of Error No. 5
Failure to hold an evidentiary hearing to favor finality and judicial
efficiency over [Kenney’s] right to a fair trial is unconscionable abuse
of judicial discretion.
Assignment of Error No. 6
The trial court abused its discretion when it arbitrarily dismissed
[Kenney’s] petition without an evidentiary hearing or inclusion in its
judgment of any findings or conclusions or law, shortly after the trial
court was reprimanded for its delay by the Ohio Supreme Court at the
request of [Kenney].
Assignment of Error No. 7
The trial court’s abuse of discretion is unconscionable when it is biased
and supports a credibility determination that is favorable to the State
while turning a blind eye to the State’s Brady violation.
II. Law and Analysis
A. Petitions for Postconviction Relief and Jurisdiction
As the State notes in its appellate brief, each of Kenney’s assignments
of error hinge on whether the trial court had jurisdiction to adjudicate the merits of
his untimely and successive petition for postconviction relief. After thoroughly
reviewing the record and relevant statutes and case law, we find that the trial court
did not have jurisdiction to adjudicate the merits of Kenney’s petition.
Whether a trial court possesses subject-matter jurisdiction to
entertain an untimely and/or successive petition for postconviction relief is a
question of law, which appellate courts review de novo. State v. Scott, 2024-Ohio-
6211, ¶ 12 (8th Dist.), citing State v. Apanovitch, 2018-Ohio-4744, ¶ 24.
“A petition for postconviction relief is a collateral civil attack of a
criminal conviction.” Scott at ¶ 7, citing State v. Garrett, 2024-Ohio-1367, ¶ 10-11
(8th Dist.). Since there is no constitutional right to a petition for postconviction
relief, a defendant in such proceedings is entitled only to those rights expressly
granted by the legislature.
Id., citing
id. “That includes the right to have one’s claim
heard at all[.]”
Apanovitch at ¶ 36. Indeed, ‘“‘‘[t]he most significant restriction on
Ohio’s statutory procedure for postconviction relief is that the doctrine of res
judicata requires that the claim presented in support of the petition represent error
supported by evidence outside the record generated by the direct criminal
proceedings.”’” State v. Brown,
2025-Ohio-274, ¶ 39 (8th Dist.), quoting State v.
Lenard,
2020-Ohio-1502, ¶ 10 (8th Dist.), quoting State v. Monroe, 2005-Ohio-
5242, ¶ 9 (10th Dist.). Accordingly, any issues that were, or could have been, raised
on direct appeal or in prior petitions for postconviction relief are barred by res
judicata and are, therefore, precluded from review in any subsequent proceedings
or successive petitions. State v. Kennedy,
2024-Ohio-66, ¶ 28-29 (8th Dist.).
Pursuant to R.C. 2953.21(A)(1)(a), “[a]ny person who has been
convicted of a criminal offense . . . and who claims that there was such a denial or
infringement of the person’s rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States” may file a petition
stating the grounds for relief relied upon and asking the sentencing court to vacate
or set aside the judgment or sentence or to grant other appropriate relief. When a
direct appeal of a conviction is filed, a petition under R.C. 2953.21(A)(1)(a) must be
filed no later than 365 days after the date that the trial transcript is filed in the court
of appeals. R.C. 2953.21(A)(2).
“[A] court may not entertain a petition filed after the expiration of the
period prescribed in [R.C. 2953.21(A)] or a second petition or successive petitions
for similar relief on behalf of a petitioner unless [R.C. 2953.23(A)(1) or (2)] applies.”
R.C. 2953.23(A). Relevant to this appeal, the R.C. 2953.23(A)(1) exception allows
the trial court to consider an untimely or successive petition if both of the following
conditions are met:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon, which the petitioner
must rely to present the claim for relief, or, subsequent to the period
prescribed in [R.C. 2953.21(A)(2)] or to the filing of an earlier
petition, the United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in the petitioner’s
situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have
found the petitioner guilty of the offense of which the petitioner was
convicted or, if the claim challenges a sentence of death that, but for
constitutional error at the sentencing hearing, no reasonable
factfinder would have found the petitioner eligible for the death
sentence.
“[A] petitioner’s failure to satisfy R.C. 2953.23(A) deprives a trial court of
jurisdiction to adjudicate the merits of an untimely or successive postconviction
petition.” Apanovitch, 2018-Ohio-4744, at ¶ 36. A trial court has no duty to issue
findings of fact and conclusions of law when it dismisses untimely or successive
petitions for postconviction relief. State ex rel. George v. Burnside, 2008-Ohio-
2702, ¶ 6.
B. The “Unavoidably Prevented” Standard
In his successive and untimely petition for postconviction relief,
Kenney does not claim that a new federal or state right applies retroactively.
Therefore, we focus our analysis on whether Kenney demonstrated that he was
unavoidably prevented from discovering the facts upon, which his claims for relief
rely.
To meet R.C. 2953.23(A)(1)(a)’s “unavoidably prevented” standard,
defendants must ordinarily show that they (1) were unaware of the evidence now
relied upon and (2) could not have discovered the evidence by exercising reasonable
diligence. State v. Bethel, 2022-Ohio-783, ¶ 21. In State v. Johnson, 2024-Ohio-
134, ¶ 17-18, 24, the Ohio Supreme Court reaffirmed that the burden of proof lies
squarely on the shoulders of the petitioner filing an untimely or successive petition
for postconviction relief and 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.
As it relates to witness recantation, the Johnson Court held 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 a recanting witness.” Id. at ¶ 27 (finding that the petitioner
did not carry his burden under R.C. 2953.23 where a recanting witness’s affidavit
did not (1) contain any details regarding when and how he first notified the
petitioner about his misgivings; (2) shed light on whether the recanting witness
contacted the petitioner or vice versa or when such contact occurred; and (3) provide
any information about whether the petitioner had been prevented, unavoidably or
otherwise, from timely discovering the recanting witness’s uncertainties).
In his petition, Kenney asserts that the State’s case against him was
only supported by the testimony of two witnesses — Schirger and Cozart — whose
testimony was recently discovered to be unreliable. Kenney claims that newly
discovered evidence invalidates their testimony. We find that Kenney has not
demonstrated that he (1) was unaware of the evidence now relied upon and (2) could
not have discovered the evidence by exercising reasonable diligence.
First, we address the affidavit of Schirger, the recanting witness. We
note that Schirger avers in her affidavit: “I was asked on the witness stand in
[j]uvenile [c]ourt if the police threatened me with withholding evidence and I told
them that I was threatened with charges. I felt like no one cared because nothing
was done, and the threats by [the detective] continued.” Kenney further
acknowledges in his petition that Schirger testified in juvenile court that “police told
her that she could be arrested for aiding and abetting or harboring a criminal when
they questioned her” and that she “backtracked [at Kenney’s trial] and asserted she
had lied.” Therefore, alleged theories of potential police coercion were admittedly
known to Kenney before his trial, addressed at trial, and could have been raised on
direct appeal.
We further note that absent from Schirger’s affidavit is any
information regarding the specific circumstances that led her to recant her prior
testimony, execute the affidavit, and provide it to Kenney. Schirger vaguely states
that she was “coming forward now with the truth because [Kenney] should not be in
prison for a murder he did not commit”; this “weighed heavily on [her] heart but at
the time [she] felt [she] had no choice because [she] was afraid of [the detective]
taking [her] son”; and she “no longer ha[d] any reason to be afraid of [the
detective].”
Schirger’s affidavit provides no information regarding when she
specifically decided to recant her testimony, whether Kenney or others acting on his
behalf played a role in that decision, what prior communications she had with
Kenney or his representatives regarding her testimony, at what point Kenney
learned of her willingness to come forward with the recantation, who prepared the
affidavit she executed, how and when the affidavit came into Kenney’s possession,
and why Kenney could not have discovered her recantation within the required
timeframe by exercising reasonable diligence. Kenney did not provide any affidavits
from himself or anyone else detailing these facts or identifying when and under what
circumstances he learned that Schirger recanted her trial testimony.
Next, we turn to the affidavits regarding Cozart’s purported
incompetence and Kenney’s alleged innocence. Kenney’s claim that Cozart “did not
have the soundness of mind required to be a competent witness” is based solely on
the affidavits of Cozart’s husband and daughter and is unsupported by any other
evidence, including medical records or professional opinions. These affidavits
contain several statements suggesting that Cozart’s alleged mental-health issues
were well-known, including to Kenney, and that Kenney and Cozart were not “close”
— a fact that Kenney certainly would have known before trial. Cozart’s husband
averred that Cozart “had several profound mental health issues” and “did not have
a close relationship with [Kenney].” He also attested that Kenney “would never have
shared [incriminating] information with [Cozart]” because she was “not the type of
person anyone would have opened up to or confided it.” Cozart’s daughter echoed
these sentiments, attesting that Cozart and Kenney “did not have the kind of
relationship that would lead to [him] confessing a crime to her” and that Kenney
“knew she was crazy.” Cozart’s daughter averred that her “mother’s behavior was
extreme” and “anyone who knew her knew that she was reckless and unreliable.”
Kenney also provided affidavits from Valentine, Miller, Stansell, and
Dickson, who attested to their relationships with Kenney, Kenney’s whereabouts
and condition after using drugs, their beliefs about Robinson’s murder and Kenney’s
noninvolvement, and their experiences with local police.
None of these affidavits — from Cozart’s husband and daughter nor
Valentine, Miller, Stansel, and Dickson — demonstrate that Kenney was unaware of
the affiants, the information contained in the affidavits, or the fact that the affiants
were willing to provide sworn statements. Nor do the affidavits provide any
information about whether Kenney was unavoidably prevented from discovering the
details contained therein. While Kenney argues that he was “unavoidably prevented
from discovering this new evidence until the affiants came forward,” there is no
evidence in the record detailing Kenney’s efforts, if any, to timely obtain the
affidavits or establish why those efforts would have been unsuccessful. Thus, we
find that Kenney’s successive and untimely petition for postconviction relief
contains conclusory assertions — unsupported by affidavits or other evidence — that
he was unavoidably prevented from discovering this “new evidence” within the
prescribed time frame.
C. Brady Claims
In his successive and untimely petition for postconviction relief,
Kenney also argues that the State committed Brady violations, claiming that it failed
to disclose material exculpatory evidence.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States
Supreme Court held that “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.” The evidence encompassed by Brady includes impeachment and
exculpatory evidence, as well as evidence known only by police investigators and not
the prosecutor, that was suppressed by the State either willfully or inadvertently.
State v. Addison,
2024-Ohio-5805, ¶ 20 (8th Dist.), citing Strickler v. Greene,
527
U.S. 263, 280-282 (1999). A Brady violation is established when a defendant shows
that “‘the favorable [but suppressed] evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.”’
(Brackets in original.) Id. at ¶ 21, quoting Kyles v. Whitley,
514 U.S. 419, 434 (1995).
The Ohio Supreme Court has reconciled the burden of proof
prescribed by R.C. 2953.23(A)(1)(a) with the dictates of Brady, holding that the
petitioner’s burden of proof is modified but not eliminated by such claims. Johnson,
2024-Ohio-134, at ¶ 17 (examining Bethel,
2022-Ohio-783). The Ohio Supreme
Court explained that because defendants are entitled to rely on the prosecution’s
affirmative duty to produce evidence favorable to the defense, defendants seeking to
assert Brady claims are not required to show that they could not have discovered
suppressed evidence by exercising reasonable diligence.
Bethel at ¶ 25. Rather,
defendants satisfy the “unavoidably prevented” requirement in the context of an
alleged Brady violation by establishing that the prosecution suppressed the
evidence on which they now rely.
Id.
In his petition, Kenney asserts that he was deprived of police reports
in existence at the time of his trial that included information favorable to the
defense, namely, witness statements that someone other than Kenney was
responsible for Robinson’s murder. Kenney also claims — while conceding that the
detective was “asked general, open-ended questions about his investigation in the
Robinson murder case” — that a detective knowingly concealed information by
omitting it from his testimony about Robinson’s murder investigation. In her
affidavit, the PI ambiguously avers that the information one witness shared with
police “was not revealed during [Kenney’s] trial,” and Kenney maintains that these
“previously undisclosed facts” only became available to him in late 2021 or early
2022, following a public-records request. (Emphasis added.)
However, this court has repeatedly held that there is no requirement
that contents of police reports and additional evidence referenced therein be made
available and known directly to a defendant prior to his trial. State v. Whatley,
2024-Ohio-4909, ¶ 14 (8th Dist.), citing State v. Dye,
2024-Ohio-3191, ¶ 26 (8th
Dist.). We explained: “Defendants are not generally ‘privy to the exchange of
discovery,’ and as a result, these types of claims depend on the knowledge of trial
counsel or the State’s concession.”
Id., quoting
id. Accordingly, a defendant’s
“‘unverified belief that his counsel was unaware of the existence or contents of the
police report[s] before trial’” and “‘“[u]nsubstantiated, self-serving allegations”’” are
insufficient to demonstrate that the State suppressed the evidence at issue,
especially for the purposes of establishing the unavoidably prevented prong of the
analysis for belated petitions for postconviction relief.
Id., quoting id. at ¶ 27-28,
quoting State v. Walter,
2020-Ohio-6741, ¶ 9 (8th Dist.), and State v. Hill, 2019-
Ohio-365, ¶ 70 (1st Dist.).
Kenney provided no affidavits or other evidence detailing how and
when he learned about the existence of the police reports, signed statements, and
information contained therein; establishing that the police records were, in fact,
suppressed; and explaining why he, his attorneys, or his private investigator could
not have discovered this “new evidence material to his defense” sooner. Rather, the
record reveals that Kenney was exploring alternative-suspect theories prior to trial
and continued to raise the issue both at the trial-court level and in prior appeals.
Accordingly, we find that evidence incorporated into Kenney’s untimely and
successive petition for postconviction relief does not establish that the disputed
evidence was suppressed. See, e.g., Kennedy, 2024-Ohio-66, at ¶ 39-40 (8th Dist.)
(finding there was no evidence attached to the petitioner’s successive petition for
postconviction relief to suggest that police reports were not disclosed by the State
during the discovery process utilized at the time of the petitioners trial and noting,
for example, that trial counsel did not aver that the defense did not know about the
police reports before trial or that the reports, if disclosed, would have been
incorporated into the petitioner’s defense); State v. Anderson,
2025-Ohio-1254, ¶ 13
(8th Dist.) (finding that the petitioner failed to establish that the State suppressed
evidence on which he relied where he failed to indicate when and how he obtained
the police reports and excluded any affidavits from people with firsthand knowledge,
including himself, to support his claim that he never received them).
Finally, we note that Kenney claims in his petition that his appointed
private investigator and trial counsel were unable to interview several witnesses or
secure an alibi and other evidence despite their best efforts. Kenney’s claims
regarding the necessity of additional time to investigate alternative suspects were
previously addressed when Kenney challenged the trial court’s denial of his motion
for continuance. Therefore, these arguments are barred by res judicata.
Based on the foregoing, we find that Kenney failed to withstand his
burden of proving that he was unavoidably prevented from discovering the evidence
within the statutory deadline or that the State suppressed evidence.3 Thus, the trial
court was deprived of jurisdiction to entertain Kenney’s successive and untimely
petition for postconviction relief. Accordingly, the trial court did not err in denying
Kenney’s R.C. 2953.23 petition and had no duty to hold a hearing or issue findings
of fact and conclusions of law under R.C. 2953.21. Kenney’s 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.
3 Because the R.C. 2953.23(A)(1) exception only allows the trial court to consider
an untimely or successive petition for postconviction relief if both R.C. 2953.23(A)(1)(a)
and (b) are satisfied, and we find that Kenney has not met the conditions set forth in
R.C. 2953.23(A)(1)(a), we need not determine whether Kenney’s petition fulfilled
R.C. 2953.23(A)(1)(b)’s requirements.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________
EMANUELLA D. GROVES, PRESIDING JUDGE
MARY J. BOYLE, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
