State v. Gilbert, 2018 Ohio 3789

Background

Laurice Gilbert was convicted of aggravated murder and aggravated robbery in 2006; after direct appeal some robbery convictions were vacated and murder counts merged; aggregate sentence remained lengthy.
In 2016 Gilbert obtained leave and moved for a new trial based on newly discovered recantations by two witnesses at his trial, Jamie Byrd and Alan Davis, who now identify another man (Curtis Ogletree) as the shooter.
Byrd and Davis testified at the new-trial hearing that they lied at trial out of fear of Ogletree and his family; Ogletree was later murdered and cannot be tested or cross-examined further.
The trial court held a multi-day postconviction/new-trial hearing; Gilbert was excluded from the courtroom briefly during testimony by witness Davita Moton over defense objection.
The trial court found the Petro factors for newly discovered evidence were arguably met but concluded the recantations lacked credibility and denied the motion for a new trial; Gilbert appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether excluding Gilbert from portion of the new-trial hearing violated his Sixth Amendment confrontation or due process rights	State: Confrontation right is a trial right and does not apply to postconviction/new-trial hearings; exclusion permitted when witness is unwilling to testify in defendant's presence	Gilbert: Exclusion abridged confrontation and due process; less restrictive measures (CCTV, screen) were available	Court: No violation — Crim.R. 43 and precedent do not guarantee defendant presence at new-trial hearing; exclusion was permitted in these circumstances
Whether exclusion deprived Gilbert of effective assistance of counsel	State: Sixth Amendment right to counsel does not extend to collateral/postconviction proceedings; no constitutional right to counsel for new-trial motion	Gilbert: Exclusion prevented communication with counsel and participation in prosecution of his motion, amounting to ineffective assistance	Court: No ineffective-assistance claim — no constitutional right to counsel in this collateral proceeding
Whether the Petro factors for newly discovered evidence were satisfied	Gilbert: Recantations meet Petro factors and would likely change outcome at a new trial; credibility issues should be resolved by a jury at a new trial	State: Recantations are inherently suspicious and inconsistent with other evidence; credibility doubts defeat the motion	Court: Although Petro factors were arguably met, the trial court—best positioned to evaluate credibility—found recantations not credible and denied the motion
Whether trial court abused discretion in denying new trial after finding Petro factors fulfilled	Gilbert: If factors met, court should have ordered new trial and let jury decide credibility	State: Credibility determinations are for the trial court in the context of a motion to vacate; judge may deny if recantation not believable	Court: No abuse of discretion; trial judge properly assessed credibility and denied relief

Key Cases Cited

Wolff v. McDonnell, 418 U.S. 539 (1974) (confrontation/right-to-presence principles do not automatically apply to all postconviction proceedings)
Pennsylvania v. Finley, 481 U.S. 551 (1987) (Sixth Amendment right to counsel extends only to first appeal of right, not to collateral attacks)
Wainwright v. Torna, 455 U.S. 586 (1982) (a defendant cannot claim deprivation of effective assistance of counsel where no constitutional right to counsel exists)
State v. Petro, 148 Ohio St. 505 (1947) (establishes six-factor test for newly discovered evidence motions under Crim.R. 33)
State v. Schiebel, 55 Ohio St.3d 71 (1990) (trial court’s decision on new-trial motions reviewed for abuse of discretion)
Taylor v. Ross, 150 Ohio St. 448 (1948) (trial judge is in uniquely advantageous position to assess recantations and credibility)
State v. Irwin, 184 Ohio App.3d 764 (2009) (Crim.R. 43 does not grant right to be present at new-trial hearing)