State v. Bethel (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Bethel, Slip Opinion No. 2022-Ohio-783.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2022-OHIO-783

THE STATE OF OHIO, APPELLEE, v. BETHEL, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Bethel, Slip Opinion No. 2022-Ohio-783.]

Criminal law—Successive postconviction motion—Suppression of evidence—R.C.

2953.23(A)(1)(b)—Defendant seeking to assert a claim under Brady v.

Maryland is not required to show that he could not have discovered

suppressed evidence by exercising reasonable diligence—Defendant must

establish that allegedly suppressed evidence is material—Motion for new

trial—Until a trial court grants leave to file a motion for a new trial, motion

for a new trial is not properly before the court—Crim.R. 33 prescribes the

circumstances under which a defendant may seek leave to file a motion for a

new trial alleging that he was unavoidably prevented from discovering

evidence but does not give a deadline by which leave must be sought—Trial

court does not have discretion to deny leave to file a motion for a new trial

based on failure to seek leave within a reasonable time after discovering new

evidence.

SUPREME COURT OF OHIO

(No. 2020-0648—Submitted September 8, 2021—Decided March 22, 2022.)

APPEAL from the Court of Appeals for Franklin County,

No. 19AP-324, 2020-Ohio-1343.

_______________________

FISCHER, J.

I. INTRODUCTION

{¶ 1} In 2003, appellant, Robert W. Bethel, was sentenced to death after

being convicted of the aggravated murders of James Reynolds and Shannon Hawk,

who were shot to death in a secluded field in Columbus in 1996. Evidence showed

that Bethel and another man, Jeremy Chavis, had killed Reynolds to prevent him

from testifying in the murder trial of one of their friends. Hawk was Reynolds’s

girlfriend and happened to be with him at the time.

{¶ 2} In 2018, Bethel filed a motion for leave to file a motion for a new trial

under Crim.R. 33(B), claiming that in violation of Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution had suppressed an

investigation report that was created in 2001. In a second filing, Bethel both moved

for a new trial and submitted a successive petition for postconviction relief under

R.C. 2953.23. In both filings, Bethel argued that the investigation report showed that

Chavis had committed the murders with Chavis’s cousin, Donald Langbein.

{¶ 3} The trial court denied Bethel’s motion for leave and the motion for a

new trial and found that it lacked jurisdiction to consider his successive

postconviction petition. The Tenth District Court of Appeals affirmed. We accepted

jurisdiction over Bethel’s discretionary appeal and now affirm.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Trial and direct appeal

{¶ 4} In 1995, Reynolds saw Tyrone Green shoot someone to death during a

burglary. The shooting led to Green’s indictment for aggravated murder with death

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specifications. During discovery, Green learned that Reynolds had been identified

as a potential witness against him.

{¶ 5} Green was a member of a street gang, along with Bethel, Chavis, and

Langbein. Langbein testified at Bethel’s trial that he and Bethel had been concerned

about witnesses testifying against Green and had discussed “tak[ing] steps to get rid

of them.” After Reynolds was killed, Green pleaded guilty to a reduced charge of

manslaughter.

{¶ 6} The main evidence tying Bethel to the murders of Reynolds and Hawk

came from three sources. The most significant evidence was a confession Bethel had

proffered as part of a plea deal to avoid the death penalty. In the proffer, Bethel

admitted that he and Chavis had lured Reynolds and Hawk to the secluded field to

kill them. He said that he used a 9 mm firearm and that Chavis used a shotgun. The

plea deal was contingent on Bethel’s willingness to testify against Chavis, and when

Bethel later refused to do so, the deal was voided and his confession was used against

him. Bethel testified at his own trial and denied killing Reynolds and Hawk. He

claimed that he and Chavis were at Bethel’s mother’s house when Reynolds and

Hawk were believed to have been killed.

{¶ 7} Next, Langbein gave testimony that was consistent with Bethel’s

proffered confession. When he was facing unrelated charges in 2000, Langbein told

police and Bureau of Alcohol, Tobacco, and Firearms (“ATF”) agents that he had

information about the Reynolds and Hawk murders. At Bethel’s trial, Langbein

testified that on the evening of the murders, he saw Reynolds and Hawk riding with

Bethel and Chavis in Bethel’s car. And he testified that a couple of weeks after the

murders, Bethel told him that he had shot Reynolds and Hawk multiple times with a

9 mm handgun and that Chavis had used a shotgun. Those details were consistent

with the autopsies; Hawk had four bullet wounds and Reynolds had nine bullet

wounds and one wound caused by a shotgun slug fired into his back.

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SUPREME COURT OF OHIO

{¶ 8} And finally, Bethel’s former girlfriend, Theresa Campbell, testified that

sometime after the murders, Bethel told her that he had shot Reynolds and Hawk.

She testified that Bethel told her that Chavis was with him at the time of the murders

but that Chavis started to cry and went to the car after he saw what Bethel had done.

{¶ 9} After finding Bethel guilty of two counts of aggravated murder with

death specifications, a jury recommended the death penalty for each count, which the

trial court imposed. We affirmed the convictions and death sentences on direct

appeal. State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150.

B. Postconviction proceedings

1. Bethel’s first postconviction petition

{¶ 10} Bethel filed a timely petition for postconviction relief under R.C.

2953.21 in February 2005. The trial court dismissed the petition, and the court of

appeals affirmed. State v. Bethel, 10th Dist. No. 07AP-810, 2008-Ohio-2697, ¶ 67.

We did not accept jurisdiction over Bethel’s discretionary appeal. 122 Ohio St.3d

1502, 2009-Ohio-4233, 912 N.E.2d 107.

2. Bethel’s first motion for leave to file a motion for a new trial

{¶ 11} In 2009, Bethel filed a motion for leave to file a motion for a new trial,

along with the new-trial motion itself. He alleged that the state had violated Brady

by suppressing an investigation report created in 2000 containing information that an

ATF agent had received about Langbein. Bethel alleged that he obtained a copy of

the report in 2008 through a public-records request to the Columbus Police

Department.

{¶ 12} According to the report, an inmate at the Franklin County jail,

Shannon Williams, said that Langbein (who had been in the jail) told him that he had

been “involved in a homicide with an individual who is now incarcerated at the

Federal Penn., Ashland, KY, where the victim was shot seventeen times. Williams

added that Langbein said that the other individual who was arrested was the driver

following the homicide.” Bethel argued that Chavis was incarcerated in a federal

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prison in Kentucky in 2000, so Langbein’s statement to Williams amounted to a

confession that Langbein—not Bethel—had committed the murders with Chavis.

{¶ 13} The trial court denied Bethel’s motions, and the court of appeals

affirmed. State v. Bethel, 10th Dist. No. 09AP-924, 2010-Ohio-3837. The court of

appeals noted, among other things, that it was “speculative as to whether Langbein’s

statements [were] referring to the homicides at issue” because he referred to only one

victim and Reynolds and Hawks were not shot 17 times, either individually or

collectively. Id. at ¶ 21. We did not accept jurisdiction over Bethel’s discretionary

appeal. 132 Ohio St.3d 1513, 2012-Ohio-4021, 974 N.E.3d 112.

3. Bethel’s second motion for leave to file a motion for a new trial and successive

postconviction petition

{¶ 14} In 2018, Bethel filed a second motion for leave to file a motion for a

new trial along with a combined new-trial motion and successive postconviction

petition. Bethel argued that the state had suppressed another investigation report—

called “Summary 86”—that he said also implicated Langbein in the murders of

Reynolds and Hawk. Summary 86 recounts a 2001 interview of Ronald Withers,

who was incarcerated in the Franklin County jail at the time. Withers told

investigators that while they were both in the jail, Chavis told him that he had been

involved in a murder but that “when [Chavis] shot the individual [the victim] was

already dead.” Summary 86 states that “Chavis told Withers that his cousin was the

other shooter, and his cousin is also incarcerated.”

{¶ 15} The trial court found that it lacked jurisdiction over Bethel’s

successive postconviction petition and denied Bethel’s motion for leave and motion

for a new trial. The court of appeals affirmed. We accepted jurisdiction over Bethel’s

appeal. 159 Ohio St.3d 1487, 2020-Ohio-4232, 151 N.E.3d 633. Amicus curiae, the

Innocence Network, has filed a merit brief urging this court to reverse the judgment

of the court of appeals.

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SUPREME COURT OF OHIO

III. ANALYSIS

A. Res judicata

{¶ 16} The state argues that we need not address Bethel’s propositions of law

because his Brady claim is res judicata. The state contends that Bethel received

Summary 86 in 2008 when the Columbus Police Department produced more than

1,200 pages of public records—and that Bethel therefore could have brought this

Brady claim in 2009 when he pursued his other Brady claim based on Shannon

Williams’s allegedly suppressed jailhouse statement. Bethel has not specified when

he discovered Summary 86, but his counsel leaves open the possibility that it was

produced in 2008.

{¶ 17} Res judicata generally bars a convicted defendant from litigating a

postconviction claim that was raised or could have been raised at trial or on direct

appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of

the syllabus. The state does not argue that Bethel could have raised this Brady claim

at trial or on direct appeal, but it relies on several cases in which Ohio courts of

appeals applied res judicata to prevent a convicted defendant from raising

postconviction issues in a piecemeal fashion. See, e.g., State v. Bene, 11th Dist. Lake

Nos. 2019-L-070, 2019-L-071, and 2019-L-072, 2020-Ohio-1560, ¶ 13-14.

{¶ 18} The state, in raising the doctrine of res judicata, has the burden of

showing that Bethel could have asserted this Brady claim in 2009. See In re

Application of Ohio Power Co., 144 Ohio St.3d 1, 2015-Ohio-2056, 40 N.E.3d 1060,

¶ 22. The state asserts only that it is “very likely” that Bethel received Summary 86

in 2008. And it argues that Bethel has not disproved that he could have presented

this Brady claim in 2009. But Bethel is not required to make that showing. We hold

that the state has not met its burden to show that res judicata bars Bethel’s claim.

B. The Brady standard

{¶ 19} In Brady, the Supreme Court of the United States held that a state

violates the Fourteenth Amendment to the United States Constitution when it

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“withholds evidence that is favorable to the defense and material to the defendant’s

guilt or punishment.” Smith v. Cain, 565 U.S. 73, 75, 132 S.Ct. 627, 181 L.Ed.2d

571 (2012) (summarizing Brady’s holding). “There are three components of a true

Brady violation: The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently; and prejudice must have

ensued.” Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d

286 (1999). “[F]avorable evidence is material, and constitutional error results from

its suppression by the government, ‘if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.’ ” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490

(1995), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87

L.Ed.2d 481 (1985). A different result is reasonably probable “when the

government’s evidentiary suppression ‘undermines confidence in the outcome of the

trial.’ ” Id. at 434, quoting Bagley at 678.

C. The successive postconviction petition

1. Legal standard and standard of review

{¶ 20} Bethel’s petition for postconviction relief was successive and

untimely under R.C. 2953.21(A). Therefore, given the substance of Bethel’s

allegations, for the trial court to have subject-matter jurisdiction to consider the

petition, Bethel had to show (1) that he was “unavoidably prevented from discovery

of the facts” upon which his claim relies and (2) by clear and convincing evidence,

that no reasonable fact-finder would have found him guilty or eligible for the death

sentence but for the constitutional error at trial. R.C. 2953.23(A)(1). See State v.

Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 36. We review

de novo whether the trial court had subject-matter jurisdiction to entertain Bethel’s

petition. Apanovitch at ¶ 24.

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2. “[U]navoidably prevented from discovery of the facts”

a. Reasonable diligence

{¶ 21} For the trial court to have jurisdiction to entertain the Brady claim

alleged in the successive postconviction petition, Bethel first had to establish that he

was “unavoidably prevented from discovery of the facts” on which he relies.

R.C. 2953.23(A)(1)(a). To meet this standard, courts in Ohio have previously held

that a defendant ordinarily must show that he was unaware of the evidence he is

relying on and that he could not have discovered the evidence by exercising

reasonable diligence. See State v. Harrison, 8th Dist. Cuyahoga No. 105909, 2018-

Ohio-1396, ¶ 6.

{¶ 22} In concluding that Bethel did not meet his burden, the trial court found

that Bethel had ample reason and opportunity to discover what Withers might have

known and what Chavis might have said about the murders. The trial court first noted

that there was no evidence that Withers or his attorney communicated or did not

communicate with Bethel’s legal team about what Chavis had said. However, based

on the fact that the state had disclosed Withers as a potential witness at trial, the trial

court concluded that the state had “invited Bethel’s counsel to interview Withers.”

The court further found that Bethel and his legal team knew that Chavis would have

information relevant to Bethel’s case and that they “were not unavoidably prevented

from discovering what [Chavis] might say.” In sum, the trial court found that Bethel

was not unavoidably prevented from discovering the substance of Summary 86,

because his attorneys could have uncovered the information by talking to Withers or

Chavis.

{¶ 23} The court of appeals used similar reasoning, holding that a “defendant

cannot claim evidence was undiscoverable simply because no one made efforts to

obtain the evidence sooner.” 2020-Ohio-1343, ¶ 20. The court stated that “Bethel

was not prevented by the state from discovering Chavis’ statements to Withers.” Id.

at ¶ 25. It reasoned that Bethel should have suspected that Withers had potentially

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relevant information because Withers’s name was on the prosecution’s pretrial

witness list and Bethel and his counsel had communicated with Chavis before trial.

Id. The court of appeals concluded, in other words, that Bethel should have

conducted his own investigation to discover what Chavis had said to Withers.

{¶ 24} The lower courts placed a burden on Bethel that is inconsistent with

Brady. In Banks v. Dretke, 540 U.S. 668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166

(2004), the Supreme Court of the United States explained that criminal defendants

have no duty to “scavenge for hints of undisclosed Brady material.” Since the

decision in Banks, multiple federal circuit courts and other state supreme courts have

repudiated the imposition of any due-diligence requirement on defendants in Brady

cases. See, e.g., Dennis v. Secy., Pennsylvania Dept. of Corr., 834 F.3d 263, 290-

293 (3d Cir.2016); Amado v. Gonzalez, 758 F.3d 1119, 1136-1137 (9th Cir.2014);

United States v. Tavera, 719 F.3d 705, 711-712 (6th Cir.2013); State v. Wayerski,

2019 WI 11, 385 Wis.2d 344, 922 N.W.2d 468, ¶ 51; People v. Bueno, 218 CO 4,409

P.3d 320, ¶ 39; State v. Reinert, 2018 MT 111, 391 Mont. 263, 419 P.3d 662, ¶ 17,

fn. 1; People v. Chenault, 495 Mich. 142, 152, 845 N.W.2d 731 (2014).

{¶ 25} It is well settled that a defendant is entitled to rely on the prosecution’s

duty to produce evidence that is favorable to the defense. See Kyles, 514 U.S. at 432-

433, 115 S.Ct. 1555, 131 L.Ed.2d 490. A defendant seeking to assert a Brady claim

therefore is not required to show that he could not have discovered suppressed

evidence by exercising reasonable diligence. See Strickler, 527 U.S. at 282-285, 119

S.Ct. 1936, 144 L.Ed.2d 286. We hold that when a defendant seeks to assert a Brady

claim in an untimely or successive petition for postconviction relief, the defendant

satisfies the “unavoidably prevented” requirement contained in R.C.

2953.23(A)(1)(a) by establishing that the prosecution suppressed the evidence on

which the defendant relies.

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b. Satisfying Brady’s second prong

{¶ 26} Although the state concedes that the holding just stated is correct, it

also argues that Bethel failed to satisfy Brady’s second prong (i.e., suppression by

the state), because he has not shown that he did not know about the evidence

contained in Summary 86 at the time of his trial. The state cites United States v.

Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), in which the court

stated that Brady claims involve the discovery of information that “had been known

to the prosecution but unknown to the defense.” (Emphasis added.) The state

contends that Bethel’s claim fails because he “failed to provide evidentiary

documentation indicating [his] actual unawareness” of the evidence he is relying on.

{¶ 27} The state exaggerates Bethel’s burden. Two of Bethel’s former

attorneys provided affidavits stating that Bethel and his legal team did not know

about Summary 86 before Bethel’s trial. The state provides no support for its claim

that these affidavits were insufficient or that Bethel needed additional evidence to

prove that he was unaware of the report before trial.

{¶ 28} The state’s argument also is problematic because it misconstrues the

evidence at issue. The state argues that Bethel himself necessarily knew the extent

of Langbein’s involvement, because Bethel’s own alibi placed Bethel with Chavis at

the time of the murders and the information from Shannon Williams would have

made Bethel the getaway driver. But Bethel’s knowledge of Langbein’s involvement

is not the question; the question is whether Bethel knew about Withers’s statement

concerning what Chavis allegedly had said while in jail.

{¶ 29} In sum, the state argues that the prosecution did not suppress the

Withers information, because Bethel “could have learned of the information through

other means.” The state contends that the “defense knew something, and the defense

was not limited to being a passive receptor of whatever discovery was provided by

the prosecution.” (Emphasis sic.) This is the state’s reasonable-diligence

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requirement dressed in different clothing. We reject the state’s arguments for the

reasons discussed above.

{¶ 30} We conclude that the documents Bethel submitted with his successive

postconviction petition establish a prima facie claim that the prosecution suppressed

Summary 86.

3. No reasonable fact-finder would have found him guilty or eligible

for the death sentence but for the constitutional error at trial

{¶ 31} Bethel’s postconviction petition faces an additional jurisdictional

hurdle: under R.C. 2953.23(A)(1)(b), he must show by clear and convincing evidence

that no reasonable fact-finder would have found him guilty or eligible for the death

sentence but for constitutional error at trial. This question goes to the heart of Brady’s

third prong, which requires Bethel to show that “ ‘there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.’ ” Kyles, 514 U.S. at 433, 115 S.Ct. 1555, 131 L.Ed.2d

490, quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375, 87 L.Ed.2d 481.

{¶ 32} The Brady standard does not require Bethel to show that disclosure of

the Withers information would have resulted in his acquittal. See Kyles at 434. Nor

does it require him to show that “after discounting the inculpatory evidence in light

of the undisclosed evidence, there would not have been [sufficient evidence] left to

convict,” id. at 434-435. Rather, Bethel must prove that “in the context of the entire

record,” Agurs, 427 U.S. at 112, 96 S.Ct. 2392, 49 L.Ed.2d 342, suppression of the

Withers information “ ‘undermines confidence in the outcome of the trial,’ ” Kyles

at 434, quoting Bagley at 678.

{¶ 33} The trial court found that Bethel was not prejudiced by his lack of

access to the Withers information prior to trial. The court characterized Summary 86

as a “cryptic double hearsay statement” that Bethel could not have used directly at

trial under the Rules of Evidence. The court concluded that “Summary 86 would not

have changed anything,” because Bethel had confessed to killing Reynolds and

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Hawk. The court of appeals agreed that the Withers information is immaterial for

Brady purposes. 2020-Ohio-1343 at ¶ 26-28. That court suggested that the theory

Summary 86 supports—that Chavis and Langbein murdered Reynolds and Hawk—

is untenable in view of Bethel’s own inconsistent statements (a confession and an

alibi), both of which placed Bethel with Chavis at the time of the murders. Id. at

¶ 27.

{¶ 34} Suppressed evidence must be “considered collectively, not item by

item.” Kyles, 514 U.S. at 436, 115 S.Ct. 1555, 131 L.Ed.2d 490. And the materiality

of suppressed evidence must be viewed “in the context of the entire record.” Agurs

at 112. Therefore, in examining the materiality of the Withers information, we also

must consider the pretrial statement that Shannon Williams made to investigators,

which the prosecution also allegedly suppressed. The question is whether we can

have confidence in the jury’s verdict even assuming that the prosecution suppressed

the information Williams and Withers had provided to investigators. See Kyles at

434. To answer that question, we must examine how Bethel might have benefited

from that information at trial.

{¶ 35} To start, Bethel could not have used the Withers information as direct

evidence that Langbein (and not Bethel) murdered Reynolds and Hawk. The

statements in Summary 86, which report what Withers had said to investigators, are

double hearsay. And although Withers affirmed his statements in an affidavit and

could have testified at trial, the statements are still hearsay because Withers merely

repeated what Chavis had allegedly told him. Bethel argues that the Withers

information would have undermined the state’s case against him, but he does not

identify any hearsay exception that would have allowed Chavis’s purported

statements to Withers to be introduced for the truth of the matter asserted. See

Evid.R. 801, 803, 804. And Summary 86 could not have been used to impeach

Langbein, because it does not involve a prior statement made by Langbein.

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{¶ 36} Bethel nevertheless argues that he could have used the Withers

information in his cross-examination of one of the investigators to attack the

thoroughness of the investigation. But Bethel has not shown that such questioning

would have “ ‘seriously undermine[d],’ ” Eakes v. Sexton, 592 Fed.Appx. 422, 427-

428 (6th Cir.2014), quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th

Cir.1989), any investigator’s credibility in view of the strong evidence that

corroborated the conclusion reached during the investigation that the evidence—

most significantly, Bethel’s confession—showed that Bethel had committed the

murders.

{¶ 37} Nor has Bethel shown that the information from Williams would have

bolstered the significance of the Withers information or detracted from the clear

evidence of Bethel’s guilt. Even if Bethel had called Williams to testify in an effort

to impeach Langbein, Williams would not have said that Langbein had confessed to

killing Reynolds and Hawk. It was not clear in the report relaying Williams’s

statement that Langbein was talking to Williams about the murders of Reynolds and

Hawk. Bethel’s confession, in contrast, included details about the types of firearms

that were used, which were consistent with the autopsies of Reynolds and Hawk.

And Bethel did not talk only to Langbein and investigators about the fact that he had

killed Reynolds and Hawk; he also confessed to Campbell.

{¶ 38} Bethel argues that if he had possessed the information from Withers

and Williams before his trial, he would not have proffered the confession. He

contends that he falsely confessed to murdering Reynolds and Hawk to avoid the

death penalty only because he had no viable defense on the eve of trial. This

argument invites us to stray from the main question of Brady’s third prong—i.e.,

whether Bethel received a fair trial. See Agurs, 427 U.S. at 108, 96 S.Ct. 2392, 49

L.Ed.2d 342. Bethel is not arguing here that the Withers and Williams information

would have been useful to his defense. Instead, he is arguing that his ignorance of

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the information induced him to lie about committing the murders. This tenuous

theory does not support Bethel’s claim that he did not receive a fair trial.

{¶ 39} Finally, Bethel argues that we must separately analyze whether the

suppression of the Withers and Williams information undermines the decision

sentencing him to death. Such an inquiry is appropriate. See R.C. 2953.23(A)(1)(b)

(requiring a petitioner to show that no reasonable fact-finder would have found him

guilty at trial or eligible for the death sentence but for constitutional error at the

sentencing hearing). But Bethel fails to demonstrate how he could have used the

Withers and Williams information during the sentencing phase of his trial. To the

extent that he is arguing that the information would have created residual doubt about

his guilt, that purpose would not have been proper under Ohio law. See State v.

McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997), syllabus.

{¶ 40} At bottom, the Withers and Williams information has limited

probative value in the context of the entire record, and Bethel’s opportunities to use

that information would have been limited. Bethel, again, was convicted on the weight

of his own proffered confession, Langbein’s testimony, and Campbell’s testimony.

110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 101. We hold that Bethel

has not shown by clear and convincing evidence that no reasonable fact-finder would

have found him guilty or eligible for the death sentence but for constitutional error at

trial. Therefore, the trial court lacked jurisdiction to entertain Bethel’s successive

postconviction petition.

D. The motion for a new trial

{¶ 41} The trial court also denied Bethel’s motion for a new trial and then

denied his motion for leave to file that motion. That approach was incorrect: until a

trial court grants leave to file a motion for a new trial, the motion for a new trial is

not properly before the court. State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-

Ohio-1080, ¶ 14. The trial court should not have purported to deny Bethel’s new-

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trial motion on its merits, because the court never permitted Bethel to file that motion.

The merits of Bethel’s new-trial motion, therefore, is not before us.

E. The motion for leave to file a motion for a new trial

1. R.C. 2953.21(K)

{¶ 42} R.C. 2953.21 authorizes a convicted person to challenge his

conviction or sentence by filing a petition for postconviction relief. R.C. 2953.21(K)

provides that except for an appeal, “the remedy set forth in [R.C. 2953.21] is the

exclusive remedy by which a person may bring a collateral challenge to the validity

of a conviction or sentence in a criminal case.” The state argues that a motion for a

new trial is a “collateral challenge,” so Bethel’s motion for leave to file a motion for

a new trial is improper and must be treated as a successive postconviction petition—

which as just discussed, the trial court lacked jurisdiction to entertain.

{¶ 43} The state argues that the issue is whether a motion for a new trial filed

under Crim.R. 33 is a “collateral challenge to the validity of a conviction or sentence

in a criminal case,” R.C. 2953.21(K). The term “collateral challenge” is not defined

by statute, so we must determine what that term meant when the exclusive-remedy

provision was enacted. See State v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, 30

N.E.3d 918, ¶ 39 (“In the absence of a definition of a word or phrase used in a statute,

words are to be given their common, ordinary, and accepted meaning”). The

exclusive-remedy provision of R.C. 2953.21 was first enacted in 1995. See former

R.C. 2953.21(I), Am.Sub.S.B. No. 4, 146 Ohio Laws, Part IV, 7815, 7825.

{¶ 44} Black’s Law Dictionary 261 (6th Ed.1990) defined a similar term,

“collateral attack”:

With respect to a judicial proceeding, an attempt to avoid,

defeat, or evade it, or deny its force and effect, in some incidental

proceeding not provided by law for the express purpose of attacking

it. May v. Casker, 188 Okla. 446, 110 P.2d 287, 289. An attack on a

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judgment in any manner other than by action or proceeding, whose

very purpose is to impeach or overturn the judgment; or, stated

affirmatively, a collateral attack on a judgment is an attack made by

or in an action or proceeding that has an independent purpose other

than impeaching or overturning the judgment. Travis v. Travis’

Estate, 79 Wyo. 329, 344 P.2d 508, 510.

By comparison, “direct attack” was defined as

an attempt, for sufficient cause, to have it annulled, reversed, vacated,

corrected, declared void, or enjoined, in a proceeding instituted for

that specific purpose, such as an appeal, writ of error, bill of review,

or injunction to restrain its execution; distinguished from a collateral

attack, which is an attempt to impeach the validity or binding force of

the judgment or decree as a side issue or in a proceeding instituted for

some other purpose. Ernell v. O’Fiel, Tex.Civ.App., 441 S.W.2d 653,

655. A direct attack on a judicial proceeding is an attempt to void or

correct it in some manner provided by law.

Id. at 459. These definitions show that a motion for a new trial is not a collateral

challenge—a motion for a new trial is an attempt to void or correct the judgment as

provided by law under Crim.R. 33. Bethel’s motion for leave, which Bethel filed in

his criminal case, is not prohibited under R.C. 2953.21(K) and is permitted under

Crim.R. 33. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522,

¶ 13 (stating that a motion to withdraw a plea filed under Crim.R. 32.1 is not a

collateral challenge, because it is filed in the underlying criminal case and attacks the

withdrawal of the plea). The state’s arguments to the contrary are not persuasive.

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{¶ 45} The state first suggests that Bethel’s motion constitutes a collateral

challenge simply because it was filed many years after his conviction and sentence.

The state points to State v. Frase, 87 Ohio St.3d 1412, 717 N.E.2d 345 (1999), in

which this court referred to a motion for leave to file an untimely motion for a new

trial as “a civil, post-conviction matter.” And it points to State v. Cowan, 8th Dist.

Cuyahoga No. 108394, 2020-Ohio-666, ¶ 9, citing State v. McConnell, 2d Dist.

Montgomery No. 24315, 2011-Ohio-5555, ¶ 18, in which the court described a

delayed new-trial motion as a collateral attack. Frase was not a decision on the merits

analyzing R.C. 2953.21(K); it was a dismissal entry explaining why an appellant had

no right to seek to file a delayed appeal. And the use of the word “collateral” to

describe the new-trial motion in Cowan was similarly unsupported. These lone

references, therefore, are unpersuasive.

{¶ 46} The state next argues that we should follow State v. Reynolds, 79 Ohio

St.3d 158, 679 N.E.2d 1131 (1997), in which this court treated a convicted

defendant’s motion to “Correct or Vacate Sentence” as a postconviction petition. We

held that that motion—which was not filed under a specific criminal rule—should

have been analyzed as a postconviction petition because it had the characteristics of

a request for relief under R.C. 2953.21. Id. at 160. The state argues that Bethel’s

new-trial motion also fits the R.C. 2953.21 mold, so it too should be analyzed as a

collateral challenge under the statute. But in Bush, 96 Ohio St.3d 235, 2002-Ohio-

3993, 773 N.E.2d 522, ¶ 10, we explained that Reynolds was unique because it

involved an “irregular ‘no name’ motion[]” in search of an identity. We determined

that it was proper to categorize the motion as a postconviction petition in the absence

of any other obvious standard for analyzing it. Id. at ¶ 10. We thus limited Reynolds

to its facts. Id. at ¶ 10-11.

{¶ 47} The state, in turn, argues that Bush was wrongly decided. Primarily,

the state contends that the different-proceeding/same-proceeding distinction breaks

down because a postconviction petition—which clearly is a collateral challenge—

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also is filed within an existing criminal case. The state misinterprets the significance

of this filing practice. It is well settled that a postconviction petition initiates a

separate civil proceeding notwithstanding the use of an existing criminal-case

number. See State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). See

also former R.C. 2309.04 (when R.C. 2953.21 was enacted in 1965, a case-initiating

pleading was called a “petition”); Am.H.B. 1201, 133 Ohio Laws 3017, 3020

(repealing former R.C. 2309.04 in 1971 following the adoption of the Rules of Civil

Procedure).

{¶ 48} The state also relies on Morgan v. Eads, 104 Ohio St.3d 142, 2004-

Ohio-6110, 818 N.E.2d 1157, ¶ 17, in which we held that an application for reopening

an appeal under App.R. 26(B) is “a distinct collateral postconviction process separate

from the original appeal.” Here again, the state tries to undermine the different-

proceeding/same-proceeding distinction by pointing to a collateral challenge that is

filed under an existing case number. But the state again overstates the significance

of the filing mechanics. Morgan involved a special type of postconviction relief (a

claim alleging ineffective assistance of appellate counsel) that does not fall under

R.C. 2953.21. Id. at ¶ 6. See State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204

(1992). App.R. 26(B) establishes by rule what the statute does not provide. Morgan

at ¶ 6-9. Morgan therefore is consistent with the above analysis: A request for

postconviction relief may be filed under an existing case number and yet be a separate

proceeding.

{¶ 49} Finally, the state argues that we should look to People v. Wiedemer,

852 P.2d 424 (Colo.1993), for guidance. But there is no need for us to do so because

Wiedemer did not involve a motion for leave to file a motion for a new trial and it is

clear that under Ohio law, a motion for leave to file a motion for a new trial is not a

collateral challenge under R.C. 2953.21(K).

{¶ 50} Bethel’s motion for leave to file a motion for a new trial is not barred

under R.C. 2953.21(K).

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2. The reasonable-time filing requirement

{¶ 51} Another preliminary issue is whether Bethel waited too long to file his

motion for leave. As noted above, Bethel’s counsel acknowledges that Bethel may

have obtained Summary 86 in 2008. At the latest, Bethel discovered the document

in May 2017, when Withers provided him with an affidavit reiterating the statement

Withers had made to investigators. This means that there was a delay of at least 16

months—and perhaps much longer—between the discovery of Summary 86 and the

filing of the motion for leave.

{¶ 52} The court of appeals held that it was within the trial court’s discretion

to deny Bethel’s motion for leave because this delay was unreasonable. 2020-Ohio-

1343 at ¶ 24. In so holding, the court of appeals followed a rule adopted by most

other courts of appeals—that under Crim.R. 33(B), a defendant seeking leave to file

a motion for a new trial must do so within a reasonable period of time after

discovering the new evidence on which he relies. Id. at ¶ 19. See also State v.

Thomas, 2017-Ohio-4403, 93 N.E.3d 227, ¶ 8 (1st Dist.) (collecting cases).

{¶ 53} Crim.R. 33(B) does not give a deadline by which a defendant must

seek leave to file a motion for a new trial based on the discovery of new evidence.

The rule states only that a defendant must show that he was “unavoidably prevented

from the discovery of the evidence upon which he must rely.” Courts nevertheless

have concluded that a convicted defendant must file a motion for leave within a

reasonable period of time after discovering the new evidence, to prevent defendants

from deliberately delaying filing the motion “in the hope that witnesses would be

unavailable or no longer remember the events clearly, if at all, or that evidence might

disappear.” State v. Stansberry, 8th Dist. Cuyahoga No. 71004, 1997 WL 626063,

*3 (Oct. 9, 1997). Bethel offers several reasons why we should reject this rule. He

argues that the rule discourages defendants from conducting full investigations

before seeking a new trial, ignores the fact that defendants often lack the resources

necessary to seek relief promptly after discovering new evidence, and wrongly

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assumes that defendants will delay filing a motion simply to gain an evidentiary

advantage at a potential new trial.

{¶ 54} We need not weigh the pros and cons of requiring defendants to seek

leave to file a delayed motion for a new trial within a reasonable time after

discovering new evidence. We instead must examine whether the Rules of Criminal

Procedure permit trial courts to impose this additional hurdle on criminal defendants.

In doing so, we apply general principles of statutory construction. See State ex rel.

Office of Montgomery Cty. Pub. Defender v. Rosencrans, 111 Ohio St.3d 338, 2006-

Ohio-5793, 856 N.E.2d 250, ¶ 23. Those principles instruct that our role is to apply

the language in Crim.R. 33(B) as written “without adding criteria not supported by

the text.” State v. Taylor, 161 Ohio St. 3d 319, 2020-Ohio-3514, 163 N.E.3d 486,

¶ 9.

{¶ 55} Crim.R. 33(B), again, does not establish a timeframe in which a

defendant must seek leave to file a motion for a new trial based on the discovery of

new evidence. Courts have justified imposing a reasonable-time filing requirement

by relying on Crim.R. 1(B) and 57(B). See, e.g., Thomas at ¶ 8; State v. York, 2d

Dist. Greene No. 2000 CA 70, 2001 WL 332019, *3-4 (Apr. 6, 2001). Neither of

those rules supports the imposition of a reasonable-time filing requirement.

{¶ 56} Crim.R. 1(B) provides that the Rules of Criminal Procedure “shall be

construed and applied to secure the fair, impartial, speedy, and sure administration of

justice, simplicity in procedure, and the elimination of unjustifiable expense and

delay.” Requiring a defendant to seek leave to file a motion for new trial within a

reasonable period of time after discovering the new evidence could help to further

some of these objectives, most notably the elimination of delay. But that does not

mean that Crim.R. 1(B) authorizes a court to narrow a defendant’s opportunity to

seek a new trial. Crim.R. 1(B) instructs courts to construe Crim.R. 33(B)—that is,

to explain its meaning. In requiring defendants to seek leave within a reasonable time

after discovering new evidence, courts have not construed Crim.R. 33(B); they have

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January Term, 2022

simply added a requirement that makes sense to them. Crim.R. 1(B) does not

authorize the creation of a new requirement that has no foundation within Crim.R.

33(B) itself.

{¶ 57} Crim.R. 57(B) also does not support the creation of a reasonable-time

filing requirement. Crim.R. 57(B) provides that “[i]f no procedure is specifically

prescribed by rule, the court may proceed in any lawful manner not inconsistent with

these rules of criminal procedure, and shall look to the rules of civil procedure and to

the applicable law if no rule of criminal procedure exists.” Crim.R. 33(B), of course,

already prescribes the circumstances under which a defendant may seek leave to file

a motion for a new trial. Crim.R. 57(B) does not authorize a court to establish a new

procedure when a rule of criminal procedure already governs.

{¶ 58} We hold that the court of appeals erred when it held that it was within

the trial court’s discretion to deny Bethel’s motion for leave based on Bethel’s failure

to file the motion within a reasonable time after discovering Summary 86.

3. The new-trial claim

{¶ 59} “The ‘unavoidably prevented’ requirement in Crim.R. 33(B) mirrors

the ‘unavoidably prevented’ requirement in R.C. 2953.23(A)(1).” State v. Barnes,

5th Dist. Muskingum No. CT2017–0092, 2018-Ohio-1585, ¶ 28. As we discussed

above, Bethel made a prima facie claim that he was unavoidably prevented from

discovering the Withers information. But we also determined above that the Withers

information is immaterial for Brady purposes. Thus, even assuming arguendo that

Bethel would be entitled to a hearing on his motion for a new trial, the hearing would

be an exercise in futility, because we have concluded that Bethel’s Brady claim,

which is the basis of his motion, is without merit. Therefore, it is unnecessary to

remand Bethel’s motion for leave to file a motion for a new trial under Crim.R. 33 to

the trial court, because we find that the motion for a new trial would be without merit.

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IV. CONCLUSION

{¶ 60} Because Bethel failed to meet his burden under R.C. 2953.23(A)(1)(b)

to establish that the allegedly suppressed evidence is material, the trial court correctly

dismissed Bethel’s successive postconviction petition for lack of subject-matter

jurisdiction. Bethel’s failure to meet his burden under R.C. 2953.23(A)(1)(b)

requires this court to deny his motion for leave to file a motion for a new trial. We

therefore affirm the judgment of the court of appeals.

Judgment affirmed.

O’CONNOR, C.J., and KENNEDY, DEWINE, and BRUNNER, JJ., concur.

DONNELLY, J., dissents, with an opinion joined by STEWART, J.

_________________

DONNELLY, J., dissenting.

{¶ 61} While I agree with the majority that appellant Robert W. Bethel’s

claim pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963), is not barred by res judicata, that Bethel established a prima facie claim that

the prosecution suppressed the 2001 interview statements of Ronald Withers, and

that the prosecution’s suppression of favorable evidence in itself satisfies the

“unavoidably prevented” requirement of both R.C. 2953.23(A)(1)(a) and Crim.R.

33(B), I would not be so quick to conclude that a timely disclosure of the Withers

statement would have had no impact on the fairness of Bethel’s criminal proceedings.

I especially would not give such short shrift to Bethel’s argument that he would not

have proffered a confession as part of a plea agreement had the state provided timely

disclosure of the 2001 Withers statements as well as the 2000 interview statements

of Shannon Williams. I would hold that in his 2018 motions for a new trial and for

postconviction relief, Bethel established a prima facie claim that the state’s

suppression of the statements undermined confidence in the outcome of Bethel’s

proceedings, and I would remand this case to the trial court for an evidentiary hearing

to properly examine Bethel’s claims.

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{¶ 62} I disagree with the majority’s statement that Bethel’s argument

regarding his proffered confession “invites us to stray from the main question of

Brady’s third prong—i.e., whether Bethel received a fair trial.” Majority opinion,

¶ 38. This notion seems to presuppose that our only consideration of the suppressed

evidence must be in the context of a spontaneous attempt to admit it into evidence at

trial. To the contrary, the state’s duty to disclose exculpatory information, and the

effect of its failure to disclose exculpatory information, extends to pretrial

proceedings and trials alike. See United States v. Nelson, 979 F.Supp.2d 123, 129

(D.D.C.2013) (most federal courts agree that “a Brady violation can justify

allowing a defendant to withdraw a guilty plea”); State v. Brown, 115 Ohio St.3d

55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 48 (impact on the defense’s trial-

preparation and strategic decisions are relevant to the prejudice prong of the Brady

analysis).

{¶ 63} The Brady rule is supposed to “ensure that a miscarriage of justice

does not occur.” United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87

L.Ed.2d 481 (1985). The risk of a miscarriage of justice does not exist only during

a trial. See Brady v. United States, 397 U.S. 742, 757-758, 90 S.Ct. 1463, 25

L.Ed.2d 747 (1970) (guilty pleas are “no more foolproof than full trials”). To

determine whether a Brady violation prejudiced the defendant, a court must look at

the “totality of the circumstances,” including “any adverse effect that the

[suppression] might have had on the preparation or presentation of the defendant's

case.” Bagley at 683.

{¶ 64} Establishing that prejudice has occurred in the context of pretrial

preparations and the strategic decisions of defense counsel is not an easy task, given

the “difficulty of reconstructing in a post-trial proceeding the course that the

defense and the trial would have taken,” id. at 683, had the Brady violation not

occurred. It is nonetheless possible to establish prejudice as long as the suppressed

evidence “could reasonably be taken to put the whole case in such a different light

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as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435,

115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). This court’s decision in Brown is the

perfect example of prejudice being established based on the impact of matters

beyond the trial itself.

{¶ 65} The defendant in Brown was found guilty of the aggravated murder

of two people and sentenced to death. The materials suppressed by the state in

Brown were reports from police interviews with two people who both indicated that

someone else had confessed to committing the murders. One person heard the

confession directly, while the other heard about it secondhand and from rumors.

The man named as a shooter was one of the state’s main witnesses against the

defendant at trial. Although the statements in the reports were hearsay and might

not have been admissible at trial, this court held that their suppression prejudiced

the defendant. This court noted that “the significance and materiality of the reports

are inherent in their content”: the reports indicated that someone other than the

defendant had committed the murders. Brown, 115 Ohio St.3d 55, 2007-Ohio-

4837, 873 N.E.2d 858, at ¶ 50. This court also noted that the reports could have led

defense counsel to call additional witnesses at trial and could have allowed counsel

to better cross-examine the state’s witness and impeach his credibility by

implicating him in the murders. Id. at ¶ 46-47. Moreover, the defense had made a

strategic decision not to contest the defendant’s general involvement in the charged

offenses, based on the paucity of evidence disclosed to them prior to trial, but “[h]ad

they known that someone else had claimed to have [committed the murders], they

may indeed have changed their strategy.” Id. at ¶ 48.

{¶ 66} Bethel’s case bears many similarities to Brown. Bethel was

convicted of the aggravated murder of James Reynolds and Shannon Hawk and

sentenced to death. The materials suppressed by the state were two reports of police

interviews with people who indicated that Jeremy Chavis and Donald Langbein had

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January Term, 2022

confessed to murdering Reynolds and Hawk and had implicated each other in their

confessions. Langbein was the state’s star witness against Bethel at trial.

{¶ 67} The attorneys who represented Bethel when he entered his guilty

plea made a strategic decision to advise Bethel to make some monumental

concessions in response to the state’s plea demands—namely, to enter a guilty plea,

proffer a confession, and waive any rights against admission of the confession and

guilty plea, thus allowing the state to eventually use the confession and plea in its

case-in-chief against Bethel. Members of Bethel’s original defense team testified

that they told Bethel that he should accept the terms of the state’s plea offer if he

wanted to save his life—advice that they thought was in his best interest in light of

the evidence known at the time.

{¶ 68} In addition to the type of evidence presented in Brown, Bethel’s 2018

motions included an affidavit from one of the original attorneys who represented

Bethel—Ronald Janes—stating that he had advised Bethel to proffer a confession

pursuant to the state’s plea terms. Janes averred that the reports would have been

“game changers” and that if the state had disclosed the two police interviews in a

timely manner, he would not have advised Bethel to agree to the state’s plea-

agreement terms, particularly the requirement that Bethel proffer a confession. He

stated, “I cannot stress enough how much I think these reports shed a whole different

light on this case.”

{¶ 69} If Withers’s and Williams’s statements had been properly disclosed at

the beginning of the proceedings against Bethel, the defense might have been able to

establish that Chavis and Langbein confessed to the murders to the exclusion of all

others, namely, Bethel, and the state’s case would have been significantly weakened.

And Janes’s affidavit raises the strong possibility that Bethel would not have

proffered a confession and would not have waived his right under Evid.R. 410 against

the admissibility of the confession and guilty plea and thereby, his right against self-

incrimination at trial.

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{¶ 70} Although the majority dismisses the possibility that Bethel’s

confession was false as a “tenuous theory,” majority opinion at ¶ 38, the record shows

otherwise. Throughout these proceedings, Bethel repeatedly stated that he did not

want to accept the state’s plea offer and that he did so in the end only because he felt

immense pressure from his attorneys, as well as his mother, to make a deal with the

state to avoid the death penalty. If Janes’s claims are true and Bethel’s defense team

would have advised him not to accept the deal offered by the state, Bethel most likely

would have rejected the state’s plea terms. As a result, Bethel’s confession would

never have been proffered and would never have been introduced at his trial.

{¶ 71} Accordingly, the import of the suppressed evidence in this case is not

limited to the hypothetical cross-examination of witnesses at trial, as discussed by

the majority; the suppressed evidence might have served to deprive the state of

Bethel’s confession, a confession that the majority concedes was the most significant

evidence of Bethel’s guilt at trial. If the state would not have had a confession to use

against Bethel at trial but for its suppression of Williams’s and Withers’s statements,

then Bethel would be entitled to a new trial.

{¶ 72} A trial court should hold an evidentiary hearing when a petitioner

alleges facts that are materially disputed and that, if proved, would entitle the

petitioner to relief. See Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933,

167 L.Ed.2d 836 (2007); Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9

L.Ed.2d 770 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504

U.S. 1, 5, 112 S.Ct. 1715, 118 L.Ed.2d 3318 (1992). The fact-finding procedures

in death-penalty cases are subject to a “heightened standard of reliability,” given

that “execution is the most irremediable and unfathomable of penalties; * * * death

is different.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d

335 (1986) (plurality); see also State v. Bonnell, 159 Ohio St.3d 1413, 2020-Ohio-

3276, 147 N.E.3d 647 (Donnelly, J., dissenting) (describing the extremely

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January Term, 2022

problematic nature of trial courts’ reluctance to conduct evidentiary hearings on

postconviction petitions in death-penalty cases).

{¶ 73} The trial court denied Bethel’s 2018 motions for new a trial and for

postconviction relief without holding an evidentiary hearing. Because Bethel made

an adequate showing that he may be entitled to a new trial, I would hold that the trial

court’s decision not to hold an evidentiary hearing was erroneous. Accordingly, I

dissent, and I would remand the cause to the trial court for an evidentiary hearing on

Bethel’s claims.

STEWART, J., concurs in the foregoing opinion.

_________________

Janet A. Grubb, First Assistant Franklin County Prosecuting Attorney, and

Seth L. Gilbert, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Rachel Troutman, Alison

Swain, and Joanna Sanchez, Assistant Public Defenders, for appellant.

Jones Day, Yvette McGee Brown, and Benjamin C. Mizer, urging reversal

for amicus curiae, the Innocence Network.

_________________

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