STATE OF OHIO v. JOJWAN MARTIN
No. 110549
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
May 5, 2022
[Cite as State v. Martin, 2022-Ohio-1494.]
ANITA LASTER MAYS, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-06-490688-A
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: May 5, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, LLC, Megan M. Patituce, and Joseph C. Patituce, for appellant.
ANITA LASTER MAYS, P.J.:
{¶ 1} Plaintiff-appellant Jojwan Martin (“Martin“) appeals the trial court‘s summary denial of his motion for leave to file a motion for new trial under
I. Background and Facts
{¶ 2} On November 11, 2006, a vehicle driven by victim Antonio Williams (“Williams“) crashed into a residence on Hecker Avenue in Cleveland, Ohio. Williams had been shot and was transported to the hospital and ultimately died of pneumonia on December 19, 2006. The autopsy recovered a bullet from Williams‘s spine that was too deformed for a weapons comparison.
{¶ 3} “On January 5, 2007, a Cuyahoga County Grand Jury indicted [Martin] on one count of aggravated murder, in violation of
{¶ 4} On February 11, 2008, the case proceeded to a jury trial. The source of the deformed bullet could not be identified. Police testified that Martin was arrested with another individual and a 9 mm weapon was retrieved. Possession of the weapon was attributed to Martin.
{¶ 5} Earwin Watters (“Watters“) and Debby Crayton (“Crayton“) served as key witnesses in the case. Voir dire of these witnesses was conducted outside the presence of the jury. Watters advised that he was incarcerated for a pending federal case for conspiracy to traffic crack cocaine and illegal firearms. The Federal Bureau of Investigation (“FBI“) asked whether Watters had information about unsolved homicides in his neighborhood and Watters responded that he was at the scene of
{¶ 6} Watters testified at trial
on the day of the shooting, he went into Papi‘s, a store on the corner of East 71st and Hecker Avenue. As he walked into Papi‘s, he noticed [Martin] talking to a man in a vehicle on the opposite side of the street. When Watters was inside the store, he heard screeching tires and a gunshot. He looked out the glass door of the store and saw [Martin] on foot chasing after the car. Watters ran in the opposite direction and heard two more gunshots.
Martin I at ¶ 8.
{¶ 7} Watters also testified that he did not immediately come forward because of a pending federal drug case but upon inquiry by the FBI, he agreed to provide the FBI and CPD with information that he was present at the shooting. Watters denied at trial that he had been promised a benefit for his testimony but admitted during cross-examination that his sentence in the federal case could possibly be reduced if he testified.
{¶ 8} Crayton stated during voir dire that she was doing her hair in the bathroom of her second-floor residence near East 71st and Hecker Street. Crayton stepped into the tub to look out of her bathroom window, was familiar with Martin, and saw him running down Hecker with a gun but did not see Martin fire a gun. Crayton also heard a vehicle repeatedly accelerate as if it was stuck in the mud.
{¶ 10} “The jury found appellant not guilty of aggravated murder, but guilty of murder and the firearm specification.” Id. at ¶ 3. Martin was sentenced to 18 years to life with eligibility for parole after 18 and one-half years, and a three-year firearm specification to be served prior and consecutive to the life sentence. Martin was also fined $20,000 and postrelease control was imposed.
{¶ 11} This court affirmed the convictions and observed as to Watters:
While it is true that Watters may receive a reduced federal sentence based upon his testimony, Watters had not been guaranteed anything for his testimony. Further, the jury heard the testimony regarding the possible deal, and it was not unreasonable for them to believe Watters‘s testimony in spite of this. Watters was able to provide the jury with a detailed account of the incident.
Martin I at ¶ 35. We also acknowledged that there were inconsistences in Crayton‘s statements but that her testimony was corroborated by Watters‘s testimony. Id. at ¶ 37.
{¶ 12} In 2011, Watters retracted his statement and advised that the information for his testimony was provided to him by the authorities and that he
In early 2011, Watters contacted Martin‘s mother, Cynthia Bester, and told her that he had given false testimony against Martin under pressure from the police and prosecutors, that he had not actually witnessed Martin kill anyone, and that he wanted to recant his testimony. On March 14, 2011, Watters executed a handwritten affidavit stating that he had been pressured to give false testimony at Martin‘s trial to obtain a lesser sentence in his own criminal case. Bester sent Watters‘s affidavit and other materials regarding Martin‘s case to the Ohio Innocence Project at the University of Cincinnati College of Law, but the project declined to take the case and returned the file to Bester in May 2012.
Bester and her mother met with Cheselka in November 2012 and gave him Watters‘s affidavit. Cheselka agreed to file a petition for postconviction relief on Martin‘s behalf for a flat fee of $10,000 (plus $525 for a copy of the trial transcript), which Bester and her mother paid in installments from 2013 to 2015.
Between August 2013 and March 2016, Cheselka asked Watters to write and execute four additional affidavits -- which he later claimed were necessary to correct procedural and substantive defects in Watters‘s original affidavit. But Cheselka did not file Martin‘s petition for postconviction relief until May 13, 2016 -- approximately three and a half years after he first met with Bester and received Watters‘s 2011 affidavit. And even then, Watters had not signed the affidavit that Cheselka notarized and submitted with Martin‘s petition for postconviction relief.
Disciplinary Counsel v. Cheselka, 159 Ohio St.3d 3, 2019-Ohio-5286, 146 N.E.3d 534, ¶ 6-8.
{¶ 13} The court determined:
Because Cheselka filed the petition more than 365 days after the transcript was filed in Martin‘s direct appeal, he was required to show that Martin had been unavoidably prevented from discovering the facts that supported the petition. See
R.C. 2953.21(A)(2) and2953.23(A)(1) . In the petition, Cheselka explained that Martin “was unavoidably delayed beyond the 365-day deadline because Earwin Watters only provided his unsolicited affidavit in 2016, well-past the statute‘s general rule and under circumstances unanticipated by [Martin].” (Emphasis added.) Cheselka failed to mention that Watters first came forward to recant his testimony in 2011 and that he had executed four previous affidavits. Cheselka continued that deception in his May 2017 response to relator‘s letter of inquiry, in which he affirmatively stated that “[t]here was no affidavit provided in 2011” and that “[t]here was never a proper affidavit executed before March of 2016.” And at his disciplinary hearing, Cheselka admitted that there was no legally significant difference between the first and final affidavits. The trial court denied Martin‘s postconviction petition without an opinion.
Id. at ¶ 9.1
{¶ 14} The court found:
The board found that Cheselka‘s conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 3.3(a) (prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal), 8.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter), and 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
Id. at ¶ 10.
{¶ 15} Notwithstanding Cheselka‘s malfeasance, the court concluded:
Citing the insufficiency of the evidence, however, the board recommends that we dismiss relator‘s allegations that Cheselka had failed to reasonably communicate with Martin and that Cheselka had failed to promptly refund any unearned portion of his fee at the conclusion of his representation. We adopt the board‘s findings of
misconduct and dismiss the remaining allegations of misconduct with respect to this count.
Cheselka at ¶ 10.2 The opinion was issued December 24, 2019.
{¶ 16} Martin and family was advised that they were unable to recover the $10,000 that his mother paid to Cheselka to secure new counsel until 2020. Counsel filed the instant motion for leave to file a motion for a new trial on July 17, 2020, approximately six months after the Cheselka decision. The current motion for leave to file a motion for a new trial under
{¶ 17} The state‘s brief in opposition was filed on September 17, 2020. The trial court issued a summary decision without a hearing on May 18, 2021.
II. Assignment of Error
{¶ 18} Martin assigns a single error on appeal: The trial court abused its discretion in denying Martin‘s motion for leave to file a motion for a new trial. We agree, reverse the judgment, and remand the case for a hearing.
A. Standard of Review
{¶ 19} “This court reviews the denial of leave to file a delayed motion for a new trial for an abuse of discretion.” State v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981, ¶ 13 (8th Dist.). An abuse of discretion is not simply an error of law or judgment, but implies the court‘s attitude is unreasonable, arbitrary, or unconscionable. State v. Yates, 8th Dist. Cuyahoga No. 96664, 2011-Ohio-4962, ¶ 5.
B. Law
{¶ 20}
{¶ 21} Historically, courts have been guided by the two-pronged requirement that a movant demonstrate by clear and convincing evidence that the movant: (1) “was unavoidably prevented from filing the motion for a new trial” and (2) “sought leave within a reasonable time after discovering the evidence.” (Emphasis added.) Id., citing id.
{¶ 23} The court applied “general principles of statutory construction” and determined that the cited rules do not authorize or support the “creation of a reasonable-time filing requirement” under
{¶ 24} Thus, our review is guided by Bethel‘s determination that
{¶ 26} “Clear and convincing evidence is ‘the amount of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.‘” State v. Metcalf, 2d Dist. Montgomery No. 26101, 2015-Ohio-3507, ¶ 10, citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180, 512 N.E. 2d 979 (1987).
C. Discussion
{¶ 27} The events that transpired as of 2011 when Watters came forward to recant are set forth in the Cheselka opinion. Cheselka, 159 Ohio St.3d 3, 2019-Ohio-5286, 146 N.E.3d 534. The state argues that the former counsel‘s misconduct does not render the delays in this case reasonable and that Martin was not constitutionally entitled to the effective assistance of counsel in a state postconviction proceeding under
{¶ 28} Pursuant to Bethel, reasonableness in the delay is no longer a factor and we consider the argument as an element underlying unavoidable prevention. In Bethel, the court clarified that a
{¶ 29} “[I]n order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. (Citations omitted). Counsel in this case violated Prof.Cond.R. 1.3, 3.3(a), and 8.1(a), the latter involving dishonesty, fraud, deceit, or misrepresentation. Cheselka, 159 Ohio St.3d 3, 2019-Ohio-5286, 146 N.E.3d 534, at ¶ 10. We find that Martin‘s argument that ineffective assistance of counsel under the unique facts of this case constitutes a cognizable claim that Martin was unavoidably prevented from presenting the newly discovered evidence in this case. Hill, 8th Dist. Cuyahoga No. 108250, 2020-Ohio-102, at ¶ 15.
{¶ 30} The state also argues that the current motion is barred by res judicata based on the 2016 summary denial of the
{¶ 31} We find that Bridges III is distinguishable. Bridges III involved a pro se appeal of a trial court‘s denial of Bridges‘s “motion for leave to file a delayed motion for new trial and his postconviction motion to correct an error in his conviction.” Id. at ¶ 1. Bridges filed a direct appeal in State v. Bridges, 8th Dist. Cuyahoga No. 100805, 2014-Ohio-4570 (”Bridges I“) and a petition for postconviction relief under
{¶ 32} Bridges filed multiple postconviction motions while Bridges I was pending and for several years afterward. We determined in Bridges III that res judicata applied because the issues posed in the current
{¶ 33} In contrast to the instant case, the trial court denied Bridges‘s petition without a hearing, but issued detailed findings of fact and conclusions of law that detailed the grounds for the denial. Bridges III, 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298, at ¶ 4. In this case, the record does not
{¶ 34} Bethel also addressed the doctrine of res judicata regarding the Brady claim under the
{¶ 35} As we have acknowledged, the instant motion filed approximately sixth months after Cheselka was issued, is accompanied by multiple supporting exhibits. In addition to a proper affidavit from Watters, Martin provides an affidavit from his mother and his own affidavit to supplement the Cheselka submissions as well as the additional evidence to substantiate Watters‘s claim. The exhibits also contain statements from Crayton and various CPD reports.
{¶ 36} A defendant that submits documents that on their face support the claim of being unavoidably prevented from timely discovering the new evidence is entitled to a hearing. Metcalf, 2d Dist. Montgomery No. 26101, 2015-Ohio-3507,
{¶ 37} Because Martin submitted evidence that on its face showed he was unavoidably prevented from discovering and presenting the evidence sooner, he was entitled to a hearing on his motion for leave. We find that the assignment of error has merit and for that reason is sustained.
IV. Conclusion
{¶ 38} Judgment reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
ANITA LASTER MAYS, PRESIDING JUDGE
EMANUELLA D. GROVES, J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION
{¶ 39} I respectfully concur in judgment only. I would reverse the judgment of the trial court denying the motion for leave to file a new trial but would remand this matter for the trial court to consider the motion for leave to file a motion for new trial under the standards of law announced in State v. Bethel, Slip Opinion No. 2022-Ohio-783.