State v. ScottState v. Scott
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 1, 2024
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Friedman, Gilbert & Gerhardstein and Marcus Sidoti, for appellant.
MICHAEL JOHN RYAN, J.:
{¶ 1} Defendant-appellant Marvin Lee Scott, III, appeals the judgment of the trial court denying his petition for postconviction relief without issuing findings of fact and conclusions of law. For the reasons that follow, this court affirms.
[Porche] Brooks testified that on February 24, 2017, she and Scott got into an argument at their shared residence in Cleveland, Ohio. At the time of the altercation, Brooks’s three minor children were asleep in the home. Scott is the father of the two youngest children. Brooks testified that the argument took place in their bedroom. Scott and Brooks were intoxicated from drinking alcohol earlier that evening.
At some point, a gun, which was previously stored under the bedroom mattress, fell to the floor. Brooks testified that she picked up the gun and pointed it at Scott in an attempt to “scare him off.” As Scott and Brooks moved out of the bedroom and towards the kitchen, Scott managed to take the gun away from Brooks. He then fired a single shot into the kitchen ceiling while Brooks was standing in the kitchen doorway. Brooks testified that she immediately called 911, and Scott went outside the house. While she was on the phone, Brooks stated to the 911 operator that Scott was “shooting at her.”
Brooks testified that she was “under the influence,” and was unable to recall precisely what she told the responding officers. However, she recalled showing the officers the bullet hole in the kitchen ceiling and conceded that she notified the 911 operator that Scott had fired a second shot at her from outside the house. She further agreed that her memory of the incident was more accurate at the time she made the 911 call then at the time of trial.
Officer Nick Stuhm of the Cleveland Division of Police testified that on February 24, 2017, he received a dispatch for “a male and female fighting and she’s being shot at and there’s kids in the house.” Upon arriving at the scene, Officer Stuhm secured the area and learned that Scott had fled the scene. Officer Stuhm summarized Brooks’s version of the incident as follows:
In speaking with the victim, while she was explaining the story, when we first got to Ms. Brooks explaining how they were upstairs wrestling over a gun, and he ended up chasing her down the stairs out of the house. As she ran out the side door, he popped a round off in the ceiling. He followed her outside, chased her around a little bit, and then when she got back inside, he fired another round at her [from the driveway outside of the house[.]
During the course of his initial investigation, Officer Stuhm observed a bullet hole in the kitchen ceiling and a shell casing on the kitchen floor. Officer Stuhm testified that he and his partner also searched outside the home for shell casings. However, he did not recall if he or his partner discovered any additional physical evidence. The video footage captured on Officer Stuhm’s body camera was played for the jury.
State v. Scott, 2018-Ohio-3791, ¶ 6 – 10 (8th Dist.).
{¶ 3} On September 29, 2017, a jury convicted Scott of felonious assault with one- and three-year firearm specifications; improperly discharging a firearm at or into a habitation; domestic violence; and endangering children. The trial court sentenced Scott to a total of 13 years in prison consecutive to a 24-month sentence in Cuyahoga C.P. No. CR-17 - 617649-A.1
{¶ 4} Scott filed a direct appeal and argued that (1) the conviction was based on insufficient evidence and against the manifest weight of the evidence and (2) the trial court failed to merge allied offenses. This court affirmed his convictions in State v. Scott, 2018-Ohio-3791. The Ohio Supreme Court declined to review our decision in State v. Scott, 2019-Ohio-173.
{¶ 5} Scott filed a motion for a final appealable order, which the trial court denied. Scott appealed that decision arguing that the trial court erred in denying his motion for a final appealable order because the sentencing entry did not include a period of postrelease control for each conviction. State v. Scott, 2020-Ohio-3676, ¶ 9 (8th Dist.). This court affirmed the trial court’s decision. Id. at ¶ 17. Scott
{¶ 6} On May 15, 2023, Scott filed a petition for postconviction relief claiming he was entitled to relief based on a new witness, the victim’s sister, coming forward. The trial court denied his petition, and Scott now appeals, raising a single assignment of error in which he argues that it was reversible error for the trial court to rule on his petition without issuing findings of fact and conclusions of law.
{¶ 7} A petition for postconviction relief is a collateral civil attack of a criminal conviction. State v. Garrett, 2024-Ohio-1367, ¶ 10-11 (8th Dist.). There is no constitutional right to a petition for postconviction relief; the only rights afforded to a defendant in a postconviction proceeding are those specifically granted by the legislature. Garrett at id., citing State v. Rackley, 2015-Ohio-4504, ¶ 10 (8th Dist.).
{¶ 8} Pursuant to
{¶ 10} However, a convicted defendant may file a petition for postconviction relief after the 365-day deadline if he or she meets the requirements of
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner’s situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶ 11} To meet the “unavoidably prevented” standard, Ohio courts have held that a defendant ordinarily must show that he or she was unaware of the evidence that the defendant is relying on and that the defendant could not have discovered the evidence by exercising reasonable diligence. Bethel at ¶ 21.
{¶ 13} The trial transcript in Scott’s direct appeal was filed in January 2018 but Scott did not file his petition until May 2023. Therefore, Scott’s petition for postconviction relief was untimely under
{¶ 14} Scott asks this court to overturn the trial court’s denial of his petition because the court made its decision without issuing findings of fact and conclusions of law.
{¶ 15} Although the statute appears to be clear enough when it states that that trial court “shall” make findings of fact and conclusions of law, the Ohio Supreme Court has held that “‘under Ohio law, a trial court has no legal duty to issue findings of fact and conclusions of law when it dismisses an untimely petition for
{¶ 16} Therefore, the fact that the trial court did not issue findings of fact or conclusions of law when it summarily denied Scott’s untimely petition is not reversible error.
{¶ 17} Although this is the sole assigned error, Scott additionally claims in his appellate brief that he established that he was unavoidably delayed from discovering certain evidence, namely the information contained in an affidavit from the victim’s sister, and that evidence would have changed the outcome of trial.
{¶ 18}
{¶ 19} Here, Scott did not assign as error that which he now argues. Although we could decline to address this argument, we will use our discretion to briefly discuss his claims.
{¶ 20} Scott argues that he was unavoidably prevented from discovering and using a statement from the victim’s sister, Precious Brooks, as to what happened on the date in question. A person is unavoidably prevented from discovering facts when the person is “unaware of those facts and was unable to learn of them through reasonable diligence.” State v. Harrison, 2018-Ohio-1396, ¶ 6 (8th Dist.), citing State v. Short, 2003-Ohio-3538, ¶ 9 (8th Dist.). Here, Precious averred that she was present at the February 24, 2017 incident and witnessed the altercation between Scott and the victim. She claims that no one, neither Scott’s trial attorney nor law enforcement, contacted her until an investigator for Scott contacted her in July 2022.
{¶ 21} On its face, Precious’s affidavit demonstrates that Scott was, or could have been, aware of this “new evidence” before trial. Scott does not deny that he was at the scene; his argument is that he was the victim and Porche Brooks was the attacker. But if Precious was at the scene, Scott would have been aware of this fact because he was also present and would have been able to investigate her observances or subpoena her for trial. He failed to do so.
{¶ 23} Here, neither Scott nor his trial counsel was unavoidably prevented from obtaining Precious’s statement; the information regarding witnesses on the scene could have easily been discovered with due diligence on the part of defense counsel before trial. Thus, Scott has not shown that Precious’s statement or testimony could not have been discovered in due diligence prior to trial.
{¶ 24} Scott also failed to demonstrate by clear and convincing evidence that a reasonable factfinder would have found him not guilty had the factfinder been aware of the information contained in Precious’s affidavit.
{¶ 25} The factors a trial court should consider when reviewing affidavits filed in postconviction proceedings include, but are not limited to:
- whether the judge reviewing the postconviction relief petition also presided at the trial,
- whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person,
- whether the affidavits contain or rely on hearsay,
- whether the affiants are relatives of the petitioner, or otherwise interested in the success of petitioner’s efforts, and
- whether the affidavits contradict evidence in the record proffered by the defense at trial.
{¶ 26} Where a “petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential.” Id. at 284.
{¶ 27} Again, in his postconviction petition, Scott alleged that he was the actual victim and that the victim was the real offender. But in his direct appeal, this court reasoned:
In this case, the felonious assault conviction is supported by the evidence detailing Scott’s conduct after he exited his home on February 24, 2017. Consideration of the gunshot fired into the kitchen ceiling is not necessary. Here, [the victim] admitted at trial that she told the 911 operator that Scott was shooting “at her” from outside the home. Similarly, Officer Stuhm testified that when he responded to the scene, [the victim] stated that Scott had fired a “round at her [from the driveway outside of the house.]” Under these circumstances, Scott’s intent to cause serious physical harm is inferred from his shooting the gun in the victim’s direction.
{¶ 28} In her affidavit, Precious stated that she never heard Scott threaten the victim; that she saw the victim with a gun but did not see Scott with a gun; that she did not see who was in possession of the firearm when it first fired; and that when the second gunshot went off, the victim was on the phone with 911 and that she did not know where the gunshot originated from.
{¶ 29} Precious’s affidavit does not contradict the evidence presented at trial. Precious concedes that she never saw who fired the gun and that one of the shots was fired when the victim was on the phone with 911. In other words, her
{¶ 30} The trial court did not err in denying Scott’s petition for postconviction relief without issuing findings of fact and conclusions of law because Scott’s petition was untimely. His untimely petition for postconviction relief failed to demonstrate that he was unavoidably prevented from discovering the evidence prompting the postconviction petition and that the outcome of trial would have been any different had the victim’s sister testified.
{¶ 31} The sole assignment of error is overruled.
{¶ 32} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR