2019 Ohio 3941
Ohio Ct. App.2019Background
- In 1993 a riot occurred at Southern Ohio Correctional Facility; Darrell Depina (an inmate) was beaten to death in L-6 during the riot. Derek Cannon was later convicted (1996) of aggravated murder for Depina’s death.
- At trial jailhouse informant Dwayne Buckley testified that Cannon had confessed to participating in torturing/killing a guard and assaulting another inmate; Cannon denied the confession.
- In April 2017 Buckley executed an affidavit recanting his trial testimony, claiming he lied out of spite and in exchange for a promise of leniency and that police pressured him.
- The state produced a May 2018 affidavit in which Buckley repudiated the 2017 affidavit and swore his trial testimony was truthful, claiming threats had produced the 2017 statement.
- Cannon filed a Crim.R. 33(B) motion in 2018 for leave to file an out-of-time Crim.R. 33(A)(6) new-trial motion based on newly discovered evidence (Buckley’s 2017 recantation), supported by an investigator’s affidavit documenting efforts to locate Buckley and family affidavits denying threats.
- The trial court denied leave without an evidentiary hearing and (improperly) proceeded to rule on the merits of a new-trial motion it had not authorized; the appellate court reversed and remanded for further proceedings, holding a hearing was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cannon established unavoidable prevention and entitlement to an evidentiary hearing on his Crim.R. 33(B) motion for leave to file an out-of-time Crim.R. 33(A)(6) motion | The new evidence (Buckley’s 2017 affidavit) is unreliable; Buckley’s later May 2018 affidavit supports denying leave on the merits | Buckley’s 2017 affidavit and the PI’s affidavit show he lied at trial and that Cannon was unavoidably prevented from learning the recantation earlier despite reasonable diligence | Court abused its discretion by denying leave without an evidentiary hearing; remand for further proceedings |
| Whether the trial court properly considered and decided the merits of a new-trial motion after denying leave | The court’s substantive ruling would negate the need for leave | Trial court erred procedurally; it should decide only the Crim.R. 33(B) leave motion before any merits determination | Trial court erred in addressing merits after denying leave; the rule allows only determination of leave first |
Key Cases Cited
- State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (discusses Crim.R. 33(B) standard and "unavoidable prevention")
- State v. Mathis, 134 Ohio App.3d 77, 730 N.E.2d 410 (explains proof required to show defendant did not know of the new-ground within 120 days and exercised reasonable diligence)
- State v. Condon, 157 Ohio App.3d 26, 808 N.E.2d 912 (addresses related timeliness/diligence principles under Crim.R. 33)
- State v. Hill, 12 Ohio St.2d 88, 232 N.E.2d 394 (defines abuse-of-discretion standard)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (describes what constitutes an unreasonable decision lacking sound reasoning)
- State v. Morris, 132 Ohio St.3d 337, 972 N.E.2d 528 (cited for abuse-of-discretion standard and review principles)