STATE OF OHIO v. ERIC J. THORNTON
Case No. CT2016-0041
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 17, 2017
[Cite as State v. Thornton, 2017-Ohio-637.]
Hon. Patricia A. Delaney, P.J.; Hon. John W. Wise, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2013-0200; JUDGMENT: AFFIRMED
For Plaintiff-Appellee:
D. MICHAEL HADDOX
MUSKINGUM CO. PROSECUTOR
GERALD V. ANDERSON II
27 North 5th Street, P.O. Box 189
Zanesville, OH 43702-0189
For Defendant-Appellant:
ERIC J. THORNTON, PRO SE
Inmate No. A707-513
Noble Correctional Institution
15708 McConnelsville Rd.
Caldwell, OH 43724
OPINION
{¶1} Appellant Eric J. Thornton appeals from the “Findings and Decision” of the Muskingum County Court of Common Pleas dated July 25, 2016, overruling his joint motion for leave to file a delayed motion for new trial and petition for post-conviction relief. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of appellant‘s bench trial commencing on May 20, 2014.
Testimony of Jimmy Martin
{¶3} This case arose on June 8, 2013, into the early morning hours of June 9, 2013, when Jimmy Martin went to the Cozy Corner Bar in Zanesville for a drink with his friend James Ricket. In the bar they encountered appellant and Daniel Barnes, known to Martin and Ricket as “Fats” and “Louie.” Martin and Ricket decided to go to another bar, the “MVP,” and Ricket asked if they could give appellant and Barnes a ride. Martin agreed. Martin was driving a rental car because he planned to leave for vacation the next day.
{¶4} Martin drove with Ricket in the front passenger seat; appellant sat in the rear on the driver‘s side, behind Martin, and Barnes sat on the rear passenger side, behind Ricket. Appellant and Barnes said they wanted dropped off at an address on Cliffwood Avenue in Zanesville. The four arrived at the address but Barnes instructed Martin to drive around the block again. When Martin came back around, he stopped the car and put it into park. Appellant grabbed Martin from behind and Barnes grabbed Ricket. Martin felt a gun placed to the back of his head and turned his head far enough
{¶5} Barnes told Martin and Ricket to “Be easy.” Martin put his hands up and said they could have his money. Barnes replied, “This isn‘t a robbery. Pop the trunk.” Martin was unfamiliar with the car and didn‘t know how to pop the trunk.
{¶6} Appellant got out of the back seat, opened Martin‘s door, and unfastened his seat belt. Appellant found the button to pop the trunk and took Martin to the back of the car. Martin asked appellant, “Are you serious? Are you really going to do this?” and appellant told him to get in the trunk. Martin testified appellant ordered him into the trunk at gunpoint.
{¶7} Martin climbed into the trunk and appellant shut the lid. Martin observed a glow-in-the-dark trunk release lever and when he felt the car start, he popped the lever and jumped out of the trunk. He ran through yards toward Cliffwood Avenue, slipping and falling. Barnes took off in pursuit. Martin saw the beam of a laser sight on him and tried to dodge it as he ran. He ran up onto the front porch of a house and was about to knock when Barnes grabbed him.
{¶8} Martin and Barnes fought on the porch for 10 to 15 minutes. Barnes had the gun in his hand and the two struggled over it with Martin attempting to push it away. The gun went off. Martin hoped someone heard the gunshot and called police. He continued to struggle with Barnes, who was attempting to gouge his eye sockets. Martin “ran out of steam” and Barnes started dragging him down the street.
{¶9} The homeowner briefly opened her front door and saw two men fighting on her porch. She heard the gunshot and called 911.
Ricket‘s Trial Testimony
{¶11} In the meantime, Ricket had remained in the rental car, with appellant now in the driver‘s seat. Ricket had also placed his cash and phone on the console in the middle of the car. He heard a noise outside which he testified may have been a gunshot. Ricket asked appellant what he was going to do to him and appellant told him he could go. Ricket left and walked to his home about a mile away while appellant stayed with the rental car. Later that night Ricket went to the hospital and visited Martin.
Corroborating Evidence
{¶12} Martin sustained a bite mark to his shoulder, road rash, a possible graze wound from a bullet, and numerous cuts and scratches. His eye was bleeding because a “chunk” of it had been scratched out.
{¶13} Ptl. Chris Andrews is the officer who picked up Martin. He had responded to the area of Cliffwood Avenue for a report of two men fighting on a porch. He testified that Martin ran out of the woods, jumped into his cruiser, and said “Fats” and “Louie” had pulled guns on him and robbed him. Martin appeared to have been in a fight; he was visibly injured, distraught, “worn out,” and throwing up. Martin told Andrews about leaving the Cozy Corner with Ricket, “Fats” and “Louie;” having guns placed to their heads; handing over their money; being ordered into the trunk by appellant; and jumping out when the car moved. Martin further told Andrews of being chased down and assaulted
{¶14} Andrews was not further involved in the incident that evening but several days later, he was monitoring traffic when he saw a silver S.U.V. run a red light. Andrews pursed the vehicle, which initially failed to stop, and followed it as it ran another red light. Eventually the S.U.V. stopped and Andrews kept his eyes on the driver as he exited his cruiser. Andrews suspected the driver was about to flee or fight, and thus drew his weapon and crouched behind the cruiser door. The driver jumped out of the S.U.V. and took off running with Andrews in pursuit. As they ran, Andrews heard the noise of “a round being racked into a gun.”
{¶15} At trial, Andrews identified appellant at trial as the driver who took off running. The parties stipulated that appellant dropped a firearm as he ran, which was discovered to be the same firearm the fired the shot into the house the night Martin was assaulted by Barnes. Appellant‘s D.N.A. was also found on the firearm.
{¶16} Wall Street in Zanesville is a dead-end street near a bar called the “U-Bar.” A resident was out walking his dog at night when a “blacked-out” car pulled up across the street from his home. Two black males jumped out of the car and ran in opposite directions. The man went inside but looked out several hours later and saw the car was still parked outside, which was unusual because there is no reason to park on the dead-
{¶17} Inside, police found four cell phones, a scanner, and a small amount of cash and loose change. The car was processed for evidence and several latent fingerprints were developed on the trunk, the driver‘s door, and the rear passenger door. The parties stipulated these prints were appellant‘s.
Appellant‘s Trial Testimony
{¶18} Appellant testified on his own behalf at trial. He said he and Barnes drank at the “U-Bar” before leaving for the Cozy Corner, where they met up with Martin and Ricket. He said he and Martin wanted to leave for the “M.V.P.” bar, but Ricket and Barnes were barred from the premises. The four left together, though, in Martin‘s rental car. Appellant said Martin and Ricket were “sniffing” something from a bag they passed back and forth to each other as they drove; appellant claimed it is common knowledge Martin “snorts pot.”
{¶19} As they drove, appellant claimed Barnes asked Ricket where he could obtain low-cost cocaine, and Ricket said he was not able to get any but Martin could. Barnes purportedly responded that he would not accept it from Martin because Martin was known to always take some for himself, a remark which angered Martin. Barnes struck Martin inside the vehicle and Martin swerved. Appellant tried to prevent Barnes from hitting Martin again. Martin told appellant and Barnes to get out of the car, and appellant asked to be taken back to his own vehicle at another bar. When Barnes opened the car door to get out, Martin backed up and struck something. Barnes hit Martin again.
{¶20} Martin and Barnes ran off chasing one another. Appellant got back into the car with Ricket and the two drove around for a short time, looking for Martin and Barnes. Ricket said he couldn‘t drive so appellant dropped him off at his house. Appellant purportedly told Ricket to let Martin know appellant would leave the rental car near the U-Bar for him. Appellant said he parked the rental car on the dead-end street near the U-Bar because he didn‘t want to leave it at the bar with the keys in it.
{¶21} Appellant denied seeing or possessing any firearms the night of the incident. He denied brandishing a firearm or threatening anyone. He said he never ordered Martin to get in the trunk and did not take money or anything else from Martin or Ricket. He insisted his only role was to attempt to stop Barnes and Martin from fighting, but Martin was high on cocaine and Barnes was high on Percocet.
{¶22} Upon cross examination, appellant admitted he told evolving stories to law enforcement but denied that he had come up with the fight story after reading appellee‘s discovery materials and realizing he needed to explain his fingerprints on the rental car. Appellant claimed that after the incident Ricket called and said Martin was claiming the two were robbed. Appellant then obtained the firearm from Barnes for “protection” and it just happened to be the same firearm Barnes had on the night of the incident. Appellant said he had no idea the gun had been fired that night.
Indictment, Bench Trial, Conviction and Direct Appeal
{¶23} Appellant was charged by indictment with one count of aggravated robbery in violation of
{¶24} A bench trial commenced on May 20, 2014. By decision filed May 22, 2014, the trial court found appellant guilty of the aggravated robbery count, the kidnapping counts, and the firearm specifications, and not guilty of the weapon counts. By entry filed July 16, 2014, the trial court sentenced appellant to an aggregate term of twenty-three years in prison.
{¶25} Appellant filed a direct appeal from his convictions and sentence, raising four assignments of error. Appellant argued his convictions for aggravated robbery and kidnapping were against the manifest weight of the evidence and contrary to law; the trial court erred in failing to merge the two kidnapping convictions and in failing to merge count two and count one; he was denied the effective assistance of counsel; and the imposition of consecutive sentences was contrary to law. State v. Thornton, 5th Dist. Muskingum No. CT2014-0035, 2015-Ohio-289. We overruled each assignment of error, affirming the convictions and sentence. Id. A motion for delayed appeal to the Ohio Supreme Court was denied. 143 Ohio St.3d 1415, 2015-Ohio-2911, 34 N.E.3d 929.
Ricket “Recants” and Dickinson Comes Forward
{¶26} On April 29, 2016, appellant filed a pro se petition for post-conviction relief and motion for leave to file a motion for new trial. Appellant‘s arguments arose from a deposition given on March 16, 2016 by James Ricket in connection with co-defendant
{¶27} Appellant also attached an affidavit sworn to and signed on April 13, 2016 by Kayla Dickinson, stating on June 8, 2013 she lived on Cliffwood and was outside on her porch smoking a cigarette when she saw four men get out of the car. She recognized
{¶28} Appellee responded to appellant‘s motion on May 3, 2016 and appellant replied on May 16, 2016. By judgment entry dated July 25, 2016, the trial court overruled appellant‘s motion noting in pertinent part:
****
This Court has already considered a similar motion in the co-defendant‘s case based upon the same facts and has denied the same. This Court is denying this motion also. The Defendant‘s motion is based upon the perjured recanting of statements and sworn testimony given by a witness and a new witness who claims not to have known about the two trials and sentencings which were widely covered by the local media.
The Court finds that even with this “evidence” the other evidence produced at trial; to wit: other witnesses, fingerprints, gun, ballistics evidence, photographs, and other physical evidence all lead the Court to finding [appellant] guilty.
****
{¶29} Appellant now appeals from the trial court‘s judgment entry of July 25, 2016 overruling his joint motion for leave to file a motion for new trial and petition for post-conviction relief.
{¶30} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶31} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S MOTION FOR LEAVE TO FILE A DELAYED MOTION FOR NEW TRIAL WITHOUT A[N] EVIDENTIARY HEARING.”
{¶32} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S POSTCONVICTION RELIEF PETITION WITHOUT A[N] EVIDENTIARY HEARING.”
ANALYSIS
{¶33} Appellant‘s two assignments of error are related and will be considered together. Appellant argues the trial court should have granted leave to file a motion for new trial and should have granted his petition for post-conviction relief on the basis of the “new” evidence cited above. We disagree.
{¶34} Both assignments of error depend on the premise that appellant was unavoidably prevented from discovery of certain facts and evidence, thus we will separately review the law applicable to petitions for post-conviction relief and motions for leave to file a motion for new trial. See, State v. Leyman, 9th Dist. Medina No. 14CA0037-M, 2016-Ohio-59, appeal not allowed, 145 Ohio St.3d 1471, 2016-Ohio-3028, 49 N.E.3d 1314.
{¶35} The opinion infra addresses two of appellant‘s pieces of alleged newly-discovered evidence: Ricket‘s “recantation” and Dickinson‘s affidavit. We note appellant‘s argument repeatedly cites a third piece of alleged newly-discovered evidence:
****. Additionally, it was recently discovered that [appellee] also suppressed Mr. Martin‘s criminal record. [Appellant] had no knowledge that Mr. Martin possessed a criminal record prior to trial or during trial. [Appellant] did not discover this criminal record until April 20, 2016 when he received a copy of Attorney Kelley Donahue[‘s] motion for new trial on Mr. Barnes[‘] behalf.
Brief, 10-11.
{¶36} We have reviewed the record for the cited evidence of Martin‘s (allegedly) suppressed criminal history and find none. Appellant attached Barnes’ motion for new trial to his joint motion/petition in the trial court and that motion merely states: “****. The State of Ohio also seems to have failed to disclose to Defense that the alleged victim in this matter was a drug dealer who actually made a drug drop during the course of events that evening, a possible Brady violation.” (Underline in original).
{¶37} The trial court did not cite the alleged criminal history of Martin in its decision overruling appellant‘s joint motion and petition. We find the arguments on appeal premised upon Martin‘s alleged criminal history to be unsupported claims which are not supported by any affidavit or supporting documentation as required by
{¶38} We now turn to whether appellant has met the threshold requirement of establishing he was unavoidably prevented from discovering the evidence of Ricket‘s recantation and Dickinson‘s statement.
Motion for Leave to File Motion for New Trial
{¶39}
{¶40}
*** within one hundred twenty days after the day upon which the verdict was rendered. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.
{¶42} Appellant‘s proof must be more than conclusory allegations. “Clear and convincing proof that the defendant was ‘unavoidably prevented’ from filing ‘requires more than a mere allegation that a defendant has been unavoidably prevented from discovering the evidence he seeks to introduce as support for a new trial.‘” State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, 2005 WL 3220245, ¶ 9. The requirement of clear and convincing evidence puts the burden on the defendant to prove he was unavoidably prevented from discovering the evidence in a timely manner. State v. Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-44, 2012-Ohio-5360, 2012 WL 5863613, ¶ 11.
{¶43} A petition for post-conviction relief is a means to reach constitutional issues that would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner‘s criminal conviction.
{¶44} Although designed to address claimed constitutional violations, the post-conviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999); State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). A petition for post-conviction relief does not provide a petitioner a second opportunity to litigate his conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Lewis, 5th Dist. Stark No. 2007CA00358, 2008-Ohio-3113, ¶ 8, citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980).
Appellant bears the burden of establishing he was unavoidably prevented from discovering the evidence cited in his joint motion and petition.
{¶46} In his brief, appellant repeatedly states the trial court never “inquired” whether he was unavoidably prevented from discovering the evidence, thus “it may be assumed” he was unavoidably prevented from doing so. The burden, though, is appellant‘s, in the context of both the petition for post-conviction relief and the motion for leave to file a motion for new trial.
{¶47} “[I]n order to obtain relief pursuant to
{¶48} Thus, the central inquiry in either appellant‘s motion for a new trial or his petition for post-conviction relief is whether the purported evidence offered by Ricket and Dickinson disclose newly-discovered evidence appellant was unavoidably prevented from obtaining. The “phrases ‘unavoidably prevented’ and ‘clear and convincing proof’ do not allow one to claim that evidence was undiscoverable simply because affidavits were not obtained sooner.” State v. Williams, 12th Dist. Butler No. CA2003-01-001, 2003-Ohio-5873, ¶ 21.
{¶49} The trial court‘s ruling in this case does not include an explicit finding that appellant failed to demonstrate he was unavoidably prevented from discovering the evidence. Although
{¶50} Appellant has not offered any clear and convincing proof that he could not have learned of the existence of Ricket‘s recantation or Dickinson‘s statement within the time prescribed in the exercise of reasonable diligence.
{¶51} Regarding Ricket‘s affidavit and deposition testimony, “Nothing in those affidavits explains when or why [Ricket] decided to recant [his] trial testimony, whether appellant played a role in that decision, or whether and at what point appellant learned of [Ricket‘s] willingness to come forward with the new testimony.” State v. Peals, 6th Dist. Lucas No. L-10-1035, 2010-Ohio-5893, ¶ 24. Appellee has filled in the backstory to Ricket‘s recantation in its brief, although none of this information is in the record.2 The “deposition” transcript alone, without any affidavit from Ricket or appellant explaining the underlying circumstances of the recantation, does not establish a sufficient basis for us to find the trial court abused its discretion in overruling the joint motion and petition without a hearing. Id. at ¶ 26-27.
{¶52} Dickinson‘s statement presented by appellant also offers little evidence to establish that appellant was “unavoidably prevented” from discovering her statement within the time for filing a motion for new trial. The key issue is whether appellant knew or could have discovered through reasonable diligence within the time period provided under
{¶53} We are unconvinced Dickinson could not have been identified as a potential defense witness prior to trial. The reasonable diligence requirement of
{¶54} No hearing is required, and leave may be summarily denied, where neither the motion nor its supporting affidavits embody prima facie evidence of unavoidable delay. State v. Baldwin, 5th Dist. Stark No. 2013CA00134, 2014-Ohio-290, ¶ 24, citing State v. Peals, supra, 6th Dist. Lucas No. L-10-1035, 2010-Ohio-5893, ¶ 23; State v. Clumm, 4th Dist. Athens No. 08CA32, 2010-Ohio-342, ¶ 28; State v. Bush, 10th Dist. Franklin No. 08AP-627, 2009-Ohio-441, ¶ 12; State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, ¶ 21 (2nd Dist.); State v. Norman, 10th Dist. Franklin No. 04AP-1312, 2005-Ohio-5087, ¶ 9. Affidavits filed outside of the 120-day time limit of
{¶55} We find appellant failed to demonstrate why he could not have learned of Dickinson‘s purported knowledge of the crimes with reasonable diligence. Under Ohio law, “[e]vidence that merely contradicts the evidence presented at trial is not enough to constitute a new trial on the basis of ‘newly discovered’ evidence.” State v. Muntaser, 8th Dist. Cuyahoga No. 84951, 2005-Ohio-1309, ¶ 10.
{¶56} Upon review, appellant failed to prove by clear and convincing evidence that he was unavoidably prevented from discovering, within the prescribed time period, the evidence he is relying on to support his motion and petition.
{¶57} Accordingly, the trial court did not abuse its discretion in denying appellant‘s motion for leave to file a delayed motion for new trial and petition for post-conviction relief. We further find that the trial court did not abuse its discretion in denying the motions without a hearing because the evidence, on its face, did not support appellant‘s claims that he was unavoidably prevented from timely discovery of the evidence. State v. Davis, 9th Dist. Lorain No. 12CA010256, 2013-Ohio-846, ¶ 12, internal citation omitted.
{¶58} Appellant‘s two assignments of error are thus overruled.
{¶59} Appellant‘s two assignments of error are overruled and the judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Delaney, P.J. and
Wise, J.
Baldwin, J., concur.