State v. Hake, 2019 Ohio 1402

Nathaniel Hake was indicted in 2012 for fifth-degree felony forgery; multiple continuances were granted and the court warned no further continuances would be allowed.
On the morning of trial, Hake’s newly retained counsel moved to withdraw after learning Hake attempted to tamper with the prosecution’s witness; counsel was allowed to withdraw but remained as shadow counsel.
At trial Hake sought to play a CD containing a voicemail he claimed was exculpatory; the CD could not be located and was not played.
The jury convicted Hake; he was sentenced to 120 days in jail and three years community control. Hake’s direct appeal was dismissed for failure to prosecute.
Nearly three years after trial the missing CD was found in the clerk’s file. Hake filed a postconviction petition in 2017 seeking relief based on the newly discovered CD and alleging ineffective assistance of counsel.
The trial court denied the petition as untimely and insufficient; Hake appealed and the appellate court affirmed.

Issue	Hake's Argument	State/Trial Court's Argument	Held
Whether the trial court erred by denying a hearing/postconviction relief based on missing evidence	The recovered CD contained exculpatory evidence and was "newly discovered," so Hake was unavoidably prevented from discovering facts and is entitled to a new trial	Petition was untimely under R.C. 2953.21; Hake knew the facts at trial and his own failure to preserve evidence does not show he was unavoidably prevented from discovering it; no showing of prejudice	Denied — petition untimely and Hake failed to show he was unavoidably prevented from discovering the evidence or that it would have changed the outcome
Whether Hake received ineffective assistance of counsel	Hake contends he was deprived of effective assistance (complaints vague)	Counsel withdrew due to Hake’s attempt to tamper with a witness; any waiver of counsel was by Hake’s conduct; no record evidence of prejudicial deprivation of counsel; claim could/should have been raised earlier	Denied — no evidence of constitutionally prejudicial ineffective assistance and claim was untimely/misplaced in postconviction petition

State v. Calhoun, 86 Ohio St.3d 279 (Ohio 1999) (sets the standard for denying postconviction relief without an evidentiary hearing)