State v. Burke

[Cite as State v. Burke, 2020-Ohio-5474.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2020-T-0013
- vs - :

AUSTIN TAYLOR BURKE, :

Defendant-Appellant. :

Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2017 CR 00403.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor; Christopher Becker & Ashleigh Musick,
Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
Warren, OH 44481-1092 (For Plaintiff-Appellee).

Megan M. Patituce & Kimberly Corral, Patituce & Associates, LLC, 16855 Foltz
Parkway, Strongsville, OH 44149 (For Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Austin Taylor Burke (“Burke”), appeals from the February 27,

2020 judgment entry of the Trumbull County Court of Common Pleas, granting

summary judgment in favor of appellee, the state of Ohio, on Burke’s petition for

postconviction relief. At issue on appeal is whether the trial court erred in dismissing

Burke’s petition without first holding an evidentiary hearing. For the reasons that follow,

we conclude the trial court did not abuse its discretion in weighing the credibility of the
affidavits submitted with Burke’s petition or in determining there were insufficient

grounds for relief to warrant a hearing. Further, the affidavit testimony does not rise to

the level of demonstrating a violation or infringement of Burke’s constitutional rights.

The judgment is affirmed.

PROCEDURAL POSTURE

{¶2} On March 9, 2018, a Trumbull County jury found Burke guilty of six

criminal charges related to the murder of Kenneth Brandon Sample (“Brandon”) and the

armed robbery of a Pizza Joe’s restaurant: one count of aggravated murder, two counts

of aggravated robbery, one count of tampering with evidence, and two counts of having

weapons while under disability. The trial court sentenced Burke to life imprisonment

with parole eligibility after 47 years.

{¶3} Burke’s convictions were upheld by this court on direct appeal. The

matter was remanded to the trial court for the limited purpose of issuing a nunc pro tunc

sentencing entry, incorporating the consecutive sentence findings that were made at the

sentencing hearing and correcting a clerical error related to the firearm specifications.

State v. Burke, 11th Dist. Trumbull Nos. 2018-T-0032 & 2018-T-0035, 2019-Ohio-1951.

{¶4} Burke, by and through his counsel of record, filed a Petition for

Postconviction Relief and Motion for a New Trial on May 16, 2019. The instant appeal

relates solely to the denial of Burke’s Petition for Postconviction Relief.

{¶5} Rather than claims for relief, Burke set forth “Issues Gleaned from the

Affidavits,” all prefaced by the following sentence:

Based on the accompanying affidavits, the defense posits that the
following points of fact present competent and credible evidence
dehors the record of, inter alia, constitutional error in terms of
prosecutorial discovery misfeasance, nonfeasance, and/or

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 malfeasance, in terms of the Fourth, Fifth, Sixth Amendments, and
Fourteenth Amendments to the U.S. Constitution, particularly of the
Sixth Amendment’s directive that a defendant be “…informed of the
nature and cause of the accusation[,]” trial counsel misfeasance,
nonfeasance, and/or malfeasance relative to the disclosure and
investigation of evidence in terms of the Sixth (and Fourteenth
Amendments’) guarantees of the right to effective assistance of
counsel, one instance of jury misconduct, in violation of the Sixth
and Fourteenth Amendment’s jury guarantees, and many instances
witness malfeasance relative to the veracity of certain facts, such to
violate, inter alia, the Sixth Amendment confrontation clause, as it
applies to the state through the Fourteenth Amendment. [Sic
throughout.]

Thus, the following claims have been identified from Burke’s petition throughout the

postconviction proceedings: (1) a prosecutorial discovery violation; (2) ineffective

assistance of trial counsel; (3) juror misconduct; and (4) a confrontation clause violation

due to lack of witness credibility.

{¶6} Burke attached many exhibits to his petition, incorporated by way of

eleven affidavits—one each from Cassandra Boyles, Donna Cottrill, Lisa Cope, and Lori

White; two from Burke’s younger brother, Gage Sell; and five from Burke’s mother,

Jamie Sell.

{¶7} On June 3, 2019, the state of Ohio filed a Motion for Summary Judgment

on Burke’s Petition for Postconviction Relief. The state contended that Burke failed to

argue any of his claims with specificity and that none of the affidavits or documents

attached to his petition support a claim of the denial or infringement of Burke’s

constitutional rights.

{¶8} Burke responded to the summary judgment motion on September 20,

2019. He attached an additional affidavit from Lisa Cope and a DVD-ROM of phone

records.

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 {¶9} On November 18, 2019, Burke filed a Motion to Obtain Trumbull County

Juvenile Records, in which he requested the trial court issue an order directing the

Trumbull County Juvenile Detention Center to release records of a certain juvenile

referenced in some of the affidavits attached to Burke’s petition. On November 26,

2019, the trial court overruled this motion on the basis that Burke had failed to show that

he was entitled to the confidential juvenile records. The trial court stated, however, that

it had secured the juvenile records under seal and had conducted an in camera review

for the purpose of addressing the relevant content in conjunction with the Petition for

Postconviction Relief.

{¶10} The trial court issued its final order in this matter on February 27, 2020.

The trial court determined Burke failed to establish substantive grounds for relief and

therefore dismissed his Petition for Postconviction Relief and Motion for New Trial

without hearing. The trial court concluded there are no genuine issues of material fact

and granted summary judgment in favor of the state. Within this entry, the trial court

also set forth findings of fact and conclusions of law. The trial court found Burke’s

petition vague, the affidavits unreliable and problematic, and the issues raised in the

affidavits vulnerable to the application of res judicata.

{¶11} From this entry, Burke asserts one assignment of error for our review:

{¶12} “The trial court erred by dismissing the petition without an evidentiary

hearing because the affidavits provided in a Petitioner’s Motion to Vacate filed pursuant

to R.C. 2953.21 established a meritorious issue.”

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 {¶13} Burke contends the trial court erred by dismissing his petition without first

holding an evidentiary hearing because the affidavits established a “meritorious issue”

and a “prima facie case for a valid claim.”

POSTCONVICTION RELIEF STANDARD

{¶14} R.C. 2953.21, Ohio’s postconviction relief statute, provides, in pertinent

part:

(A)(1)(a) Any person who has been convicted of a criminal offense
* * * and who claims that there was such a denial or infringement of
the person’s rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States * * *
may file a petition in the court that imposed sentence, stating the
grounds for relief relied upon, and asking the court to vacate or set
aside the judgment or sentence or to grant other appropriate relief.
The petitioner may file a supporting affidavit and other documentary
evidence in support of the claim for relief. * * *

(D) * * * Before granting a hearing on a petition filed under division
(A) of this section, the court shall determine whether there are
substantive grounds for relief. In making such a determination, the
court shall consider, in addition to the petition, the supporting
affidavits, and the documentary evidence, all the files and records
pertaining to the proceedings against the petitioner[.] * * * If the
court dismisses the petition, it shall make and file findings of fact
and conclusions of law with respect to such dismissal. * * *

(E) * * * Within twenty days from the date the issues are raised,
either party may move for summary judgment. The right to
summary judgment shall appear on the face of the record.

(F) Unless the petition and the files and records of the case show
the petitioner is not entitled to relief, the court shall proceed to a
prompt hearing on the issues even if a direct appeal of the case is
pending. * * *

(H) If the court does not find grounds for granting relief, it shall
make and file findings of fact and conclusions of law and shall enter
judgment denying relief on the petition. * * *

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 {¶15} “According to the postconviction relief statute, a criminal defendant

seeking to challenge his conviction through a petition for postconviction relief is not

automatically entitled to a hearing.” State v. Calhoun, 86 Ohio St.3d 279, 282 (1999),

citing State v. Cole, 2 Ohio St.3d 112 (1982). “Before granting an evidentiary hearing

on the petition, the trial court shall determine whether there are substantive grounds for

relief (R.C. 2953.21[D]), i.e., whether there are grounds to believe that ‘there was such

a denial or infringement of the person’s rights as to render the judgment void or voidable

under the Ohio Constitution or the Constitution of the United States.’” Id. at 282-283

(emphasis sic), quoting R.C. 2953.21(A)(1).

{¶16} “Postconviction relief is a remedy sought by a defendant who has either

been tried and found guilty beyond a reasonable doubt, or who has pled guilty and has

been convicted. In the interest of judicial economy and efficiency, [the Supreme Court

of Ohio has] held that it is not unreasonable to require the defendant to show in his

petition for postconviction relief that such errors resulted in prejudice before a hearing is

scheduled.” Id. at 283, citing State v. Jackson, 64 Ohio St.2d 107, 112 (1980).

{¶17} “[I]n reviewing a petition for postconviction relief filed pursuant to R.C.

2953.21, a trial court should give due deference to affidavits sworn to under oath and

filed in support of the petition, but may, in the sound exercise of discretion, judge their

credibility in determining whether to accept the affidavits as true statements of fact. To

hold otherwise would require a hearing for every postconviction relief petition. Because

the statute clearly calls for discretion in determining whether to grant a hearing,

accepting all supporting affidavits as true is certainly not what the statute intended.” Id.

at 284.

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 {¶18} “Unlike the summary judgment procedure in civil cases, in postconviction

relief proceedings, the trial court has presumably been presented with evidence

sufficient to support the original entry of conviction, or with a recitation of facts attendant

to an entry of a guilty or no-contest plea.” Id. “The trial court may, under appropriate

circumstances in postconviction relief proceedings, deem affidavit testimony to lack

credibility without first observing or examining the affiant. That conclusion is supported

by common sense, the interests of eliminating delay and unnecessary expense, and

furthering the expeditious administration of justice.” Id. (citations omitted).

{¶19} “An affidavit, being by definition a statement that the affiant has sworn to

be truthful, and made under penalty of perjury, should not lightly be deemed false.

However, not all affidavits accompanying a postconviction relief petition demonstrate

entitlement to an evidentiary hearing, even assuming the truthfulness of their contents.”

Id. “Thus, 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., citing State v. Perry, 10 Ohio St.2d 175 (1967).

{¶20} “[A] trial court, in assessing the credibility of affidavit testimony in so-called

paper hearings, should consider all relevant factors.” Id. at 285 (citation omitted).

“Among those factors are (1) whether the judge reviewing the postconviction relief

petition also presided at the trial, (2) whether multiple affidavits contain nearly identical

language, or otherwise appear to have been drafted by the same person, (3) whether

the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the

petitioner, or otherwise interested in the success of the petitioner’s efforts, and (5)

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whether the affidavits contradict evidence proffered by the defense at trial.” Id.

“Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by

evidence in the record by the same witness, or to be internally inconsistent, thereby

weakening the credibility of that testimony.” Id. (citation omitted).

{¶21} “Depending on the entire record, one or more of these or other factors

may be sufficient to justify the conclusion that an affidavit asserting information outside

the record lacks credibility. Such a decision should be within the discretion of the trial

court. A trial court that discounts the credibility of sworn affidavits should include an

explanation of its basis for doing so in its findings of fact and conclusions of law, in order

that meaningful appellate review may occur.” Id.

{¶22} This court’s standard of review, therefore, is whether the trial court abused

its discretion in determining the affidavits lack credibility and that no substantive

grounds for relief were raised that would warrant a hearing. Id. at paragraph one & two

of the syllabus; see also State v. Miller, 11th Dist. Lake No. 2018-L-055, 2018-Ohio-

5192, ¶12-13, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶51-52.

CREDIBILITY OF AFFIDAVITS

{¶23} Cassandra Boyles averred that she had a conversation with Ricky Roupe

(“Ricky”), who was one of the trial witnesses, and another juvenile, who was the subject

of the sealed juvenile records. This conversation allegedly took place at a party the

juvenile hosted in Boyles’ back yard sometime between August and December of 2017.

Boyles averred that the juvenile detailed how he and Ricky had recorded beating and

killing a man, but that Burke was “going down” for the murder. According to Boyles, the

juvenile was going to show her the video, “but his friends yelled for him to come

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outside.” She concluded, “I know he told me the truth because he never came around

after he confessed to the murder. He completely avoided being around me.”

{¶24} Donna Cottrill averred that her sister was dating Shawn Marx at the time

of the robbery at Pizza Joe’s. Marx testified at trial and identified Burke as the person

he saw fleeing the restaurant following the robbery. According to Cottrill, Marx and her

sister were using and selling crystal methamphetamine at the time of the event, and

Marx was high when he testified. Attached to her affidavit are unsworn copies of two

criminal court dockets for a “Shawn M. Marx,” both of which were filed after the time of

the robbery and the trial.

{¶25} Lisa Cope averred that on June 12, 2017, the day Brandon was reported

missing, she had a conversation with Mary Roupe (“Mary”). Mary’s mother, Pamela

Roupe (“Pamela”), owns the home at which Brandon was last seen alive by certain

witnesses at trial, including Pamela’s grandson Ricky Roupe. According to Cope, Mary

told her that Pamela was “flipping out” because, as Pamela had told Mary, “these kids

here were all fighting, Mary, I believe they killed someone, what should I do?” Cope

averred that she asked Mary all of the kids’ names. According to Cope, Mary listed off

six names that did not include Burke: “Ricky Roupe, Brandon Sample, [the juvenile from

the sealed records], Josh White, and Mary Roupe’s two nieces[.]” Cope averred that

she asked Mary where the dead body was, and “Mary said her mother, Pam, told her,

‘They went on a car ride.’”

{¶26} Lori White averred that on July 1, 2018, she was involved in a group

discussion on Facebook on the topic of “the innocence of Austin T. Burke” and received

a message request from Brandon’s sister, whom White did not know. White’s affidavit

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refers to disagreements between herself and Brandon’s sister regarding Burke’s

innocence, whether Burke was a member of a gang, and whether Josh White was an

addict and lied to the detectives about his and Brandon’s drug use. Attached to White’s

affidavit are portions of the conversation printed from Facebook messenger.

{¶27} Gage Sell (“Gage”), Burke’s younger brother, provided two affidavits. The

first affidavit pertains to the night of June 11, 2017, in which he states that “Austin was

home before I went to bed, and was home early in the morning when I woke up.” Gage

averred that he had told the detective the specifics of witnessing Burke getting dropped

off at home by two individuals in a white Chevy Malibu (which is the type of car Brandon

drove) and that he had offered to testify at trial. He further averred that Josh White lied

on the stand when he testified that he never saw or met Burke and that he and Brandon

never picked up Burke or drove him home.

{¶28} In Gage’s second affidavit, he testified that on the last day of trial he

recognized one of the jurors as his driving instructor, and that she had lied about

knowing the family or any facts of the case in order to be on Burke’s jury and possibly

influence the other jurors. According to Gage, they had four driving sessions together,

and she had picked him up at his house each time. Gage averred they spoke of the

case in great detail and that the instructor was aware of his connection with Burke.

Attached to this affidavit are Gage’s driving school records, which indicate that three of

the sessions took place prior to the crimes, on June 1, 2, and 8, 2017. The final session

took place two months after, on August 18, 2017.

{¶29} Jamie Sell (“Sell”), Burke’s mother, executed five affidavits. Much of the

information to which she avers is repeated in more than one affidavit.

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 {¶30} Sell first testified to performing a search on a phone number that was last

called from Brandon’s cell phone at 2:14 and 2:15 a.m. on June 12, 2017, and

discovering that it belongs to a local heroin dealer with an address on the “east side of

Warren.” The name of this dealer appears in the detective’s report, according to Sell,

although the detective testified that he had not looked into that particular phone number.

Sell averred that this information corroborates Burke’s statements to police as to

Brandon’s drug use and intention to go to the “east side of Warren” to get drugs on June

11, 2017. Attached to this affidavit are documents related to Sell’s online search,

unverified criminal records of the heroin dealer, a page from the detective’s report, and

fourteen pages of Brandon’s cell phone logs.

{¶31} Sell next testified that, in examining Brandon’s text message log after the

trial was over, she realized there were 19 text messages concealed by the prosecution.

According to Sell, if you compare Brandon’s text log with Burke’s cell phone extraction

report, there are messages missing. Both documents are attached to this affidavit.

{¶32} Next, Sell averred that when Burke’s property from the day of his arrest

was returned to her after trial, she discovered a shoe string tied around his cargo shorts

as a belt, which was the shoe string missing from the tennis shoes confiscated by police

following the Pizza Joe’s robbery. She claims that this means Burke would not have

been able to run from the scene while wearing his tennis shoes. Sell further avers that

the Pizza Joe’s employees described the perpetrator as mixed race, whereas Burke has

pale white skin. Attached to this affidavit are still shots from the video recording of the

robbery, the statements made by witnesses to the robbery, and pictures of the property

Sell retrieved from the jail.

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 {¶33} In the next affidavit, Sell averred to messages she exchanged with

Donavon Bunner, who was one of the individuals with Burke around the time the

robbery occurred and who had testified at trial. According to Sell, Bunner now has a

criminal record and more accurately resembles the description of the robber that was

given by Pizza Joe’s employees. Sell averred that Bunner told her that Melanie Engle,

another witness at trial, lied on the stand. Portions of these conversations were printed

from Facebook and attached to the affidavit, as were unverified criminal records and

allegations pertaining to Bunner. Also attached were text messages from Burke’s

extracted cell phone records in support of Sell’s averment that other witnesses had lied

on the stand about when they had met Burke.

{¶34} Finally, Sell averred that a photo of a 9mm gun provided in discovery was

extracted from Burke’s cell phone, which had been downloaded from a text message he

received from Josh White. According to Sell, Josh White texted Burke a photo of the

gun and asked if Burke wanted to purchase it. Sell makes further averments related to

the position of Brandon’s body at the time it was found, which, according to her, indicate

he was in a sitting position when his body went into “rigamortis” [sic]. A photo of a 9mm

gun is attached to the affidavit, as well as photos of Brandon’s deceased body at the

time of discovery.

{¶35} The trial court found inherent credibility issues pervade each of the

affidavits attached to Burke’s petition. First, the trial court found the affidavits are not

proper evidence as they contain hearsay and are based on little to no personal

knowledge of the affiants. Further, the trial court determined the affidavits contain

inherently false information based on the in camera review of the sealed juvenile

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records requested from the Trumbull County Juvenile Detention Center. Specifically,

the trial court found that these sealed records “conclusively and irrefutably dispute the

allegations raised in the affidavits regarding the identity of the perpetrator in this case as

being a person other than the Defendant.”

{¶36} While a sworn affidavit should not lightly be deemed untrue, an evidentiary

hearing was not required to determine that these particular affidavits lacked credibility

due to lack of personal knowledge, inherent bias, reliance on hearsay, and/or

objectively false statements. In addition, the judge who reviewed Burke’s petition was

the same judge who presided over his trial and sentencing hearing. Therefore, because

the judge was familiar with the underlying proceedings, the trial witnesses, and the other

evidence presented to the jury, the judge was also in the best position to assess the

credibility of the affidavits that attempt to undermine the authenticity and reliability of

that evidence as well as the credibility of trial witnesses. See Calhoun, supra, at 286.

{¶37} We conclude that the trial court properly weighed the credibility of these

affidavits and did not abuse its discretion in finding they lacked credibility.

SUBSTANTIVE GROUNDS FOR RELIEF

Witness Credibility

{¶38} In his petition, Burke makes a vague claim that his constitutional rights

under the Sixth Amendment’s Confrontation Clause were violated because the state’s

trial witnesses lacked credibility. We agree with the trial court that any challenges to the

state’s witnesses should have been made in the trial of this matter or on direct appeal,

and not raised as a collateral attack to Burke’s conviction. Burke did, in fact, challenge

the credibility of the state’s witnesses in his manifest weight argument on direct appeal,

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an argument this court determined lacked merit. Burke, supra, at ¶137. Thus, any

argument pertaining to witness credibility is barred by res judicata. See Perry, supra, at

paragraph eight & nine of the syllabus (“Under the doctrine of res judicata, a final

judgment of conviction bars a convicted defendant who was represented by counsel

from raising and litigating in any proceeding except an appeal from that judgment, any

defense or claimed lack of due process that was raised or could have been raised by

defendant at the trial, which resulted in that judgment of conviction, or on an appeal

from that judgment.”).

Ineffective Assistance of Trial Counsel

{¶39} “In a petition for post-conviction relief, which asserts ineffective assistance

of counsel, the petitioner bears the initial burden to submit evidentiary documents

containing sufficient operative facts to demonstrate the lack of competent counsel and

that the defense was prejudiced by counsel’s ineffectiveness.” Jackson, supra, at

syllabus; Calhoun, supra, at 283. “Broad assertions without a further demonstration of

prejudice do not warrant a hearing for all post-conviction petitions. General conclusory

allegations to the effect that a defendant has been denied effective assistance of

counsel are inadequate as a matter of law to impose an evidentiary hearing.” Jackson,

supra, at 111 (citation omitted).

{¶40} Burke has made only a broad assertion that his trial counsel was

ineffective, offering no specific instances of this alleged ineffectiveness, and has

submitted no evidentiary documents supporting such a claim. Accordingly, a hearing

was not warranted on this claim.

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 Juror Misconduct

{¶41} Burke alleges an instance of juror misconduct in that one of the jurors was

his younger brother Gage’s driving instructor. Gage did not testify at trial. Because

Gage’s affidavit was found to lack credibility, there is no evidence to support that this

juror was ever aware Gage and Burke are brothers, as they do not share a surname, or

that this juror discussed Burke’s case with Gage during the one driving lesson that took

place two months after Burke’s arrest. Nothing in the notes from Gage’s driving lessons

indicate the juror held any animosity or ill will toward Gage or his family; they were, in

fact, complementary of Gage. Further, during voir dire the juror disclosed that she was

a driving instructor at the Ohio State Driving Academy and that she knew juveniles who

had been familiar with the victim. Defense counsel did not raise a challenge to her seat

on the jury. Burke has provided no evidence to support his allegation that this juror lied

under oath in order to be seated on the jury and influence the other jurors against him.

Accordingly, a hearing was also not warranted on this claim.

Discovery Violation

{¶42} Finally, Burke claims the prosecutor committed a discovery violation by

withholding certain cell phone records. The state provided summary judgment evidence

that all available and extracted cell phone records in possession of the prosecutor were

turned over to the defense prior to trial.

{¶43} In one of Sell’s affidavits, she notes that the phone billing records from

Brandon’s phone were handed over to detectives by Brandon’s father. Detective

Greaver testified at trial that Brandon’s cell phone records had been requested from the

wireless carrier, but they were never received. Thus, the prosecutor was never in

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receipt or possession of these documents and could not have provided them to the

defense.

{¶44} Sell also avers that, after comparing Brandon’s phone billing records with

Burke’s extraction report, she discovered the prosecution failed to disclose 19 text

messages exchanged between the two.

{¶45} In an affidavit provided by the state, Assistant Prosecutor Christopher D.

Becker averred that he provided two flash drives to defense counsel on January 4,

2018, as part of the State’s Sixth Supplemental Answer to Request for Discovery.

These flash drives contained the extraction on Burke’s cell phone that was performed

by the state’s expert witness, JoAnn Gibbs of BCI. Becker further averred that State’s

Exhibit 47 submitted at trial was a printout of time-specific text messages from this

extraction. Four text messages from the extraction report were not included in the

exhibit because they were outside of a certain time frame. However, he averred,

because all the messages were contained in the extraction report, defense counsel

could have introduced them at trial.

{¶46} JoAnn Gibbs of BCI also provided an affidavit, explaining that certain

records were unable to be extracted from Burke’s cell phone. Specifically, a total of 15

messages between Brandon and Burke that were listed on Brandon’s phone billing

records between 12:19 a.m. and 1:18 a.m. on June 12, 2017, were not included on

Burke’s extraction report. Gibbs averred, consistent with her trial testimony, as follows:

The reason those text messages were not able to be extracted from
the defendant’s phone is because the data is not there on the
phone. The most likely explanation for this is that the text
messages were deleted from the phone and then were written over.
This process is called Wear Leveling. Wear Leveling is an
automated process used to evenly wear out the chip in the phone.

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 Upon deletion and depending on the status of the block on which
the data is written, the device will move data around and wipe
blocks of deleted data, ensuring an even wear of the chip. It is not
uncommon to be unable to recover blocks of deleted data.

{¶47} The fact that Brandon’s cell phone records were never received from the

wireless carrier and the fact that deleted text messages were unable to be extracted

from Burke’s phone were both raised at trial, and defense counsel had an opportunity to

cross-examine both witnesses.

{¶48} Burke has failed to raise any claim as to a discovery violation that would

rise to the level of a constitutional violation and has not shown that he is entitled to a

hearing on this issue.

CONCLUSION

{¶49} Burke’s sole assignment of error is without merit. The trial court did not

abuse its discretion in weighing the credibility of the affidavits or in determining there

were insufficient grounds for relief to warrant a hearing. Even if the information

contained in the affidavits was truthful and not tainted by bias or hearsay, the affidavit

testimony does not rise to the level of demonstrating a violation or infringement of

Burke’s constitutional rights.

{¶50} The judgment of the Trumbull County Court of Common Pleas, granting

summary judgment in favor of the state of Ohio on Burke’s Petition for Postconviction

Relief, is hereby affirmed.

MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.

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