State v. Mills
2023 Ohio 3783
Ohio Ct. App.2023Background
- Phil D. Mills was convicted by a jury of aggravated robbery, aggravated burglary, and having weapons while under disability after his DNA was found on a gun handle and a ski mask; a defense witness testified the actual offender, not Mills, committed the crimes.
- This Court previously affirmed the convictions on direct appeal but remanded for limited resentencing; earlier post-conviction relief was denied and that denial was upheld.
- Mills later filed a motion for leave to file a delayed Crim.R. 33 motion for new trial and a successive petition for post-conviction relief, relying on a new affidavit from a witness “D.J.” who said the real offender admitted taking the gun and mask from D.J.’s home.
- D.J. stated he did not come forward earlier because he assumed the real offender’s testimony would suffice; Mills and D.J. had prior contact and Mills knew D.J.’s identity and the substance of his potential testimony before trial.
- The trial court found Mills was not "unavoidably prevented" from discovering the evidence because he knew D.J. and had attempted post-trial to obtain an affidavit; it denied leave to file the new-trial motion and dismissed the successive post-conviction petition for lack of jurisdiction.
- The Ninth District affirmed, rejecting Mills’s arguments that D.J. only recently became willing to assist and distinguishing his case from authorities he cited.
Issues
| Issue | Mills' Argument | State's Argument | Held |
|---|---|---|---|
| Whether Mills was "unavoidably prevented" from discovering new evidence so as to obtain leave to file a delayed Crim.R. 33 motion | D.J. corroborates the real offender; D.J. only recently was willing to assist | Mills knew D.J.'s identity, whereabouts, and testimony before trial and remained in contact; not unavoidable | Trial court did not abuse discretion; leave denied |
| Whether a successive post-conviction petition met R.C. 2953.23(A)(1)(a) (unavoidably prevented or new retroactive right) and R.C. 2953.23(A)(1)(b) (clear-and-convincing proof of actual innocence) | D.J. was reluctant until recently; comparable precedents allow late petitions when affidavits are unavailable earlier | Mills had repeated contact with D.J.; distinguishing precedent cited; no unavoidable prevention shown, so court lacked jurisdiction to reach merits | Appellate court affirmed dismissal for lack of jurisdiction; petition untimely/successive |
Key Cases Cited
- State v. Petro, 148 Ohio St. 505 (1947) (distinguishes the substantive standards for granting a new trial from the separate threshold for leave to file an untimely new-trial motion)
- State v. Hatton, 169 Ohio St.3d 446 (2022) (de novo review applies to whether a court had jurisdiction to entertain an untimely, successive post-conviction petition)