State v. Mock, 2020 Ohio 3667

Tyrone Mock was convicted in a check-fraud scheme and sentenced to a total of 13 years; his direct appeal was affirmed and the Ohio Supreme Court declined jurisdiction.
Postconviction appellate counsel (Patterson) investigated and obtained information suggesting: the confidential informant did not sign a proffer or identify Mock in a photo lineup (contradicting a detective’s affidavit), and possible problems with phone‑record evidence linking Mock’s address.
Patterson’s legal assistant (Linda Head) reviewed the physical court file in 2018 and found four handwritten jury‑question notes with the court’s answers that were not reflected in the transcript; she was hospitalized and did not report the discovery until August 2018.
On December 14, 2018, Mock filed a delayed motion for new trial (Crim.R. 33) claiming newly discovered evidence, and a motion for leave to file the delayed motion, asserting he was "unavoidably prevented" from discovering the evidence within Crim.R. 33 time limits.
The state contested the affidavits (including an affidavit from the informant’s counsel denying Patterson’s assertions). The trial court denied leave, finding Mock had not shown by clear and convincing evidence that he was unavoidably prevented from discovering the jury notes or Brady evidence and that the motions were not filed within a reasonable time.
Mock appealed; the appellate court reviewed for abuse of discretion and affirmed the trial court’s denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Whether Mock was "unavoidably prevented" from discovering undisclosed jury questions/answers	State: Jury notes were part of the court file and available since Nov. 7, 2016; counsel failed to exercise reasonable diligence.	Mock: Notes were not in the transcript or otherwise obvious; counsel could not have found the four pages in a 2,400‑page file until Head discovered them in 2018.	Court: Denied relief — Mock failed to show by clear and convincing evidence he or counsel could not have discovered the notes with reasonable diligence.
2) Whether Mock was "unavoidably prevented" from discovering Brady evidence (search‑warrant and phone‑record issues)	State: The informant, phone records, and GPS warrant issues were raised at the 2016 suppression hearing and thus were discoverable earlier; counsel could and should have investigated during direct appeal.	Mock: Postconviction investigation uncovered informant counsel’s statements and witness affidavits in 2018 that allegedly show falsified facts and phone‑record problems.	Court: Denied relief — affidavits did not meet clear and convincing standard; no adequate explanation why evidence could not have been obtained earlier.

Brady v. Maryland, 373 U.S. 83 (1963) (prosecution duty to disclose exculpatory evidence)
State v. Mock, 106 N.E.3d 154 (Ohio Ct. App. 2018) (prior appellate decision reciting underlying facts)
Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979 (1987) (definition of clear and convincing standard cited)
In re Awkal, 95 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist. 1994) (discussion of clear and convincing proof standard)
Hungler v. Cincinnati, 25 Ohio St.3d 338, 496 N.E.2d 912 (1986) (appellate court may disregard issues not separately assigned and argued)