2020 Ohio 971
Ohio Ct. App.2020Background
- Larry E. Brown II was tried in Preble C.P. for multiple sexual-offense counts alleging abuse of B.H. when she was 11–12; the bench found him guilty, merged rape count, and sentenced him to 10 years to life; direct appeal affirmed.
- Brown previously filed a postconviction petition that the trial court denied and this court affirmed; the Ohio Supreme Court declined review.
- Brown filed a successive petition for postconviction relief and moved for a new trial, asserting newly discovered evidence and multiple trial improprieties: the victim's mental illnesses/hallucinations, a defective bill of particulars, falsified police reports, undisclosed CSD reports, voice-stress analysis issues, alleged barium poisoning, and ineffective assistance (including failure to convey a plea offer and not using/examining certain evidence).
- The trial court dismissed the successive petition as untimely/successive under R.C. 2953.23 and denied the new-trial motion for lack of newly discovered, material evidence and because many claims were previously available (res judicata); no evidentiary hearing was held.
- The Twelfth District Court of Appeals affirmed: it held Brown was not ‘‘unavoidably prevented’’ from discovering the asserted facts, many claims were strategic or barred by res judicata, and Brown failed to show prejudice required under Strickland for the plea-offer claim.
Issues
| Issue | Brown's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Brown's successive postconviction petition met R.C. 2953.23(A) exception (unavoidably prevented from discovering facts) | Brown: victim’s mental illness/hallucinations and other evidence were newly discovered and trial counsel was ineffective for not using them | State: Brown and counsel knew of the information before/during trial; decisions were trial strategy; not ‘‘unavoidably prevented’’ | Denied — petition dismissed: Brown was not unavoidably prevented from discovering the facts; no new federal/state right invoked |
| Whether defects in the bill of particulars or the trial court’s failure to reference transcripts/findings required relief | Brown: bill lacked time brackets and court failed to make findings, denying meaningful review | State: issues could have been raised on direct appeal (res judicata); trial court not required to cite the record or issue findings for dismissing untimely petition | Denied — res judicata and no basis to find unavoidable prevention or court error |
| Whether a new trial should be granted for newly discovered evidence (recanted prior allegation, falsified reports, undisclosed CSD reports, VSA, barium claims, etc.) | Brown: new evidence and misconduct would likely change the outcome; investigators/prosecutor suppressed or falsified material reports | State: Brown offers speculation, no affidavits/new admissible evidence showing a strong probability of a different result; many claims previously raised | Denied — no newly discovered, material evidence showing strong probability of different outcome; many claims speculative or barred by res judicata |
| Whether counsel was ineffective for failing to advise Brown of a plea offer | Brown: counsel did not inform him of a plea; would have accepted | State: Brown did not allege he would have accepted the offer; no prejudice shown under Strickland | Denied — no prejudice shown (Brown failed to show he would have accepted the plea) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance standard: deficient performance and prejudice)
- State v. Apanovitch, 155 Ohio St.3d 358 (2018) (statutory limits on untimely or successive postconviction petitions)
- State v. Parker, 157 Ohio St.3d 460 (2019) (confirmation of trial court's limited authority to grant untimely/successive postconviction petitions)