State v. Taylor

[Cite as State v. Taylor, 2021-Ohio-1670.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 2019-CA-77 and
: 2020-CA-6
v. :
: Trial Court Case No. 2017-CR-566
PIERRE TAYLOR :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:

...........

OPINION

Rendered on the 14th day of May, 2021.

...........

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee

BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 40 North Main Street, Suite 1900,
Kettering, Ohio 45423
Attorney for Defendant-Appellant

.............

EPLEY, J.
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{¶ 1} Defendant-Appellant Pierre Taylor appeals from judgments of the Greene

County Court of Common Pleas, which denied his petitions for postconviction relief, his

motion for a new trial, and related motions. Taylor’s appointed counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

stating that he can find no non-frivolous issues for appeal. Upon our independent review,

we agree with counsel’s assessment. For the following reasons, the trial court’s

judgments will be affirmed.

I. Factual and Procedural History

{¶ 2} We detailed the facts underlying Taylor’s conviction in his direct appeal, State

v. Taylor, 2d Dist. Greene No. 2018-CA-9, 2019-Ohio-142, and we summarize them here.

{¶ 3} On September 26, 2017, Taylor’s ex-wife, C.T., lived at the Fairborn

Apartments on Wallace Drive with her four children, including B.W., who was 16 years

old at the time of trial. Nineteen-year-old C.B., who C.T. “took in * * * after she got out of

foster care,” also lived there. Taylor lived nearby on the same street.

{¶ 4} According to C.B., she and B.W. were walking around the apartment complex

when they saw Taylor arguing with some men on Williams Street. Taylor began calling

C.B. and B.W. names and threw a bottle at them. During the encounter, Taylor pushed

B.W. to the ground and put his hand around C.B.’s throat. C.B. and B.W. ran home and

called for C.T. Taylor followed them home.

{¶ 5} C.T. heard Taylor yelling, and she went outside to talk to him. C.T. testified

at trial that Taylor began yelling at her, and that her fiancé, Dwayne Ellington, then came

outside from the apartment to try to calm Taylor down. When C.T. and Ellington returned
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to the apartment, Taylor followed and put his foot in the doorway so C.T. could not close

the door. As C.T. walked toward the bedrooms, Taylor pushed the door open and

entered. While in the apartment, Taylor tried to fight Ellington and threatened to kill

everyone. Taylor said that he was going to get his gun. C.T. saw Taylor with an open

knife, and she tried to talk him into leaving the apartment. C.B. tried, unsuccessfully, to

get the knife away from Taylor, and she sustained a cut to her arm in the process.

{¶ 6} Taylor and C.T. eventually exited the apartment, and C.T. testified that Taylor

left and did not return. However, a friend of B.W.’s testified that she saw Taylor drop a

gun in the grass at the apartment complex, pick it up, and keep walking. At trial, Taylor

stipulated that he had two prior convictions in Xenia Municipal Court for domestic

violence.

{¶ 7} At 7:12 p.m., Fairborn police officers were dispatched to C.T.’s apartment on

a report that Taylor was fighting with the occupants and had a knife. While en route, the

officers learned that Taylor had left the apartment to retrieve a gun. Soon thereafter, the

police received another report that Taylor had discharged a weapon at the end of Williams

Street near Baker Junior High School.

{¶ 8} Officers headed to the location where the gun reportedly had been fired, but

they did not locate Taylor there. They then proceeded to Taylor’s residence, where they

found him. Officers handcuffed him and conducted a pat down for officer safety. Taylor

indicated that he had a knife in his pocket, which an officer retrieved. Officers placed

Taylor in a cruiser and later transported him to the police department. After the police

obtained a search warrant for Taylor’s residence, officers found a Hi-Point semi-automatic

handgun in his home. Testing revealed that Taylor’s DNA was on the gun.
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{¶ 9} Officers returned to the Fairborn Apartments and spoke with C.B. and C.T.

Based on C.B.’s statements, an officer took photographs of her face, neck, and arms.

{¶ 10} Detective Alan Kraker of the Fairborn Police Department located a shell

casing from a sidewalk across from 335 Williams Street, where Taylor reportedly fired his

weapon. It was determined that the casing had been fired from Taylor’s Hi-Point firearm.

{¶ 11} On October 9, 2017, Taylor was charged in a seven-count indictment with

aggravated burglary (with purpose to commit domestic violence against C.T.), two counts

of carrying a concealed weapon (knife and handgun), two counts of domestic violence

(C.T. and B.W.), aggravated menacing (C.B.), and assault (C.B.). The indictment also

contained a forfeiture specification for the Hi-Point handgun. Taylor moved to suppress

evidence obtained from his residence, alleging that officers unlawfully entered his

residence prior to obtaining a search warrant and that the search warrant was based, in

part, on false information in the affidavit. After a hearing, the trial court overruled the

motion.

{¶ 12} The matter proceeded to a two-day jury trial beginning on February 20,

2018. At the close of the State’s case, the trial court granted Taylor’s Crim.R. 29 motion

for an acquittal on Count 3 (carrying a concealed weapon: handgun), but denied the

motion as to all other counts. After deliberating, the jury found Taylor guilty of the

remaining charges and the forfeiture specification.

{¶ 13} On February 27, 2018, prior to sentencing, Taylor, pro se, filed a motion for

a new trial pursuant to Crim.R. 33(A). He raised the following claims: (1) the trial court

erroneously admitted prejudicial evidence, (2) the trial court excluded evidence that was

favorable to him, (3) the prosecutor withheld exculpatory evidence, in violation of Brady
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v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), (4) the prosecutor

tampered with witnesses, (5) C.T. gave contradictory testimony at trial, (6) trial counsel

rendered ineffective assistance, and (7) he had newly discovered evidence that he did

not enter the residence or have a handgun at the residence. Taylor did not identify what

the newly discovered evidence was.

{¶ 14} On March 2, 2018, Taylor’s counsel also filed a motion to set aside the

verdict or for a new trial, claiming that the State violated Brady by withholding a recorded

January 5, 2018 telephone conversation between Taylor and C.T. The State opposed

the motion, asserting that no Brady violation had occurred. It argued that the contents

of the call were not exculpatory, that Taylor made the call and was aware of what was

said, and that Taylor had the opportunity to cross-examine C.T. about their contacts at

trial. The trial court did not resolve the motions prior to sentencing.

{¶ 15} At the sentencing hearing held on March 9, 2018, the trial court imposed an

aggregate sentence of nine years in prison. On March 12, 2018, Taylor renewed his pro

se motion for a new trial, raising the same issues as in his prior pro se motion. The

following day, Taylor appealed from his conviction. The transcripts of a December 20,

2017 hearing, the suppression hearing, the trial, and sentencing were filed in his direct

appeal on March 26, 2018. On August 8, 2018, an additional transcript of a hearing on

another pretrial motion (original defense counsel’s motion to withdraw) was filed.

{¶ 16} On March 27, 2018, the trial court overruled both pro se motions on the

ground that Taylor was represented by counsel and could not simultaneously represent

himself. The court also overruled counsel’s March 2 motion, finding that Taylor had been

aware of the contents of the phone call and had had ample opportunity to cross-
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examination C.T. at trial. Taylor did not appeal the trial court’s ruling.

{¶ 17} In January 2019, we affirmed Taylor’s conviction. Taylor, 2d Dist. Greene

No. 2018-CA-9, 2019-Ohio-142. In doing so, we overruled assignments of error related

to the constitutionality of the domestic violence statute, the playing of the 911 call, Taylor’s

recorded conversation with C.T., jury instructions regarding consciousness of guilt,

prosecutorial misconduct, denial of his right to confront B.W. (who did not testify), the

manifest weight of the evidence, the forfeiture of the firearm, and his right to a speedy

trial. Taylor filed an application to reopen his direct appeal, which we denied. He then

sought reconsideration of that decision, which we also denied.

{¶ 18} Following the affirmance of his conviction, Taylor filed numerous pro se

motions, including (1) Petition to Vacate or Set Aside Judgment of Conviction or Sentence

(8/23/2019); (2) Motion for Appointment of Counsel (8/23/2019); (3) Motion for Disclosure

of Exculpatory Evidence/Brady Material (9/13/2019); (4) Motion to Supplement Petition to

Vacate or Set Aside Judgment of Conviction or Sentence (9/20/2019); (5) Motion for

Issuance of Subpoenas (10/21/2019); (6) Motion for New Trial Due to Newly Discovered

Evidence (10/21/2019); (7) Motion to Amend Motion for New Trial and Motion for Issuance

of Subpoenas (11/12/2019); and (8) Motion for Leave to File Delayed Motion for New Trial

(11/14/2019).

{¶ 19} Taylor’s initial petition for postconviction relief, filed August 23, 2019, raised

two claims. First, he asserted that the State had withheld Brady evidence, namely the

recordings of two phone calls between C.T. and him from January 2018, during which

C.T. allegedly admitted that Taylor did not enter her apartment. Second, he claimed that

Detective Kraker knowingly and intentionally used false statements in his affidavit in
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support of the search warrant for Taylor’s apartment. Taylor emphasized that certain

statements in the search warrant affidavit were contradicted by the detective’s and C.T.’s

testimony at trial. (Taylor appears to believe that Detective Kraker prepared the search

warrant affidavit, but the record indicates that Detective Kraker provided information to

Detective Shane Hartwell, who prepared the affidavit.)

{¶ 20} Taylor’s supplemental petition, filed on September 20, 2019, clarified his

two claims and added four additional claims. He again raised that the State had withheld

two phone calls between Taylor and C.T.; Taylor stated that one of those calls was a

three-person call also involving Rhonda Hoskins. Taylor reiterated that Detective

Kraker’s testimony at trial differed from statements in the search warrant affidavit and that

C.T.’s testimony at trial contradicted her other sworn statements about the incident.

{¶ 21} Taylor’s new claims consisted of: (1) his trial counsel rendered ineffective

assistance, (2) the prosecutor engaged in misconduct by providing a misleading bill of

particulars and misrepresenting the facts in her opening statement at trial, (3) the search

of his apartment violated the Fourth Amendment due to untrue statements in the search

warrant affidavit, and (4) the State perpetrated a fraud on the court by using perjured

testimony at trial and untrue statements in the search warrant affidavit.

{¶ 22} Taylor supported his petitions for postconviction relief with several

documents: (1) Detective Kraker’s probable cause statement in support of the initial

criminal complaint against Taylor in Fairborn Municipal Court, (2) an affidavit from Rhonda

Hoskins, dated July 19, 2018, in which Hoskins stated, among other things, that C.T. told

her that she (C.T.) had lied during her testimony, (3) the search warrant affidavit, prepared

by Detective Hartwell, and (4) C.T.’s petition for a domestic violence civil protection order
 -8-

against Taylor, filed in the domestic relations court on September 27, 2017 (the day after

the incident).

{¶ 23} Taylor sought the appointment of counsel so that he could have assistance

with obtaining evidence from the State. He separately requested the disclosure of

“exculpatory evidence/Brady material,” enumerating 15 categories of evidence. He also

moved for the issuance of subpoenas to the jail, sheriff’s office, and prison warden,

seeking recordings of certain recorded phone calls and certified transcripts of those

recordings.

{¶ 24} In addition, Taylor filed a motion for a new trial based on newly discovered

evidence, pursuant to Crim.R. 33, and a motion for leave to file a delayed motion for a

new trial. Taylor identified the newly discovered evidence as a phone call with Kendra

Lane, who allegedly stated that she had witnessed the events of September 26, 2017,

and that Taylor had not entered C.T.’s apartment. Taylor also indicated that a witness,

Samantha Taylor, spoke with C.T. prior to trial and told C.T. that he (Taylor) never went

into C.T.’s apartment. Taylor again asserted that C.T. made statements to Rhonda

Hoskins, some of which were recorded during a three-way telephone call with Taylor from

the prison, and that C.T. had lied at trial and made other statements that undermined her

credibility. Finally, Taylor attached electronic messages between C.T. and him, and

argued that they demonstrated that C.T. had lied on the stand and was pressured by the

prosecutor to testify. Taylor’s amended motion for a new trial corrected the date of his

phone call with Lane and the date he received copies of the electronic messages.

{¶ 25} The trial court overruled Taylor’s petitions and motions on December 10,

2019. It concluded that the petitions for postconviction relief were untimely, and the
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related motions were moot. As to Taylor’s motion for a new trial, the trial court concluded

that Taylor had failed to establish that he could not have learned of the alleged newly

discovered information within the 120-day time limit. The court reasoned that there was

“no evidence that Kendra Lane’s presence at the scene was new information to Taylor.”

The court further stated that Lane’s testimony “would merely impeach or contradict the

evidence adduced at trial,” and thus even if the evidence were considered to be newly

discovered, he still would not be entitled to a new trial based on newly discovered

evidence. Taylor appeals from the trial court’s judgment (Case No. 2019-CA-77).

{¶ 26} On December 6, 2019, Taylor filed a Motion to Vacate a Void Judgment.

In that motion, Taylor again argued that the prosecutor knowingly and intentionally used

perjured testimony, which violated his right to due process and resulted in a void

judgment. In a separate judgment entry, the trial court construed Taylor’s December 6,

2019 motion as a petition for postconviction relief and overruled it as untimely. Taylor

also appeals this judgment (Case No. 2020-CA-6).

{¶ 27} After the appeals were filed, Taylor filed a motion for appointment of counsel

in each case. Prior to our ruling on the motions, the parties filed their appellate briefs in

both cases. We granted Taylor’s motion for the appointment of counsel in Case No.

2019-CA-77 and, on March 9, 2020, we sua sponte consolidated Taylor’s two appeals.

Consistent with that entry, we appointed counsel to represent Taylor in both appeals and

struck the previously-filed briefs.

{¶ 28} Taylor’s appellate counsel has filed an Anders brief, stating that he could

find no non-frivolous issues for appeal and requesting permission to withdraw. Counsel

raised three potential assignments of error: (1) whether the trial court abused its discretion
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in denying Taylor’s petition for postconviction relief without a hearing, (2) whether the trial

court erred in denying the motion for disclosure of exculpatory evidence without a hearing

and without making specific findings of fact, and (3) whether the trial court erred in denying

Taylor’s motion for a new trial.

{¶ 29} We informed Taylor that his attorney had filed an Anders brief on his behalf

and granted him 60 days from that date to file a pro se brief. Taylor has filed a pro se

brief in Case No. 2019-CA-77, raising two claims. He asserts that the trial court erred in

denying his petition to vacate or set aside his conviction without an evidentiary hearing,

when the court knew that his conviction was based on perjured testimony and a fraud on

the court. He also claims that the trial court erred in denying his motion for new trial,

failing to issue subpoenas for phone calls that would have proven that the State withheld

exculpatory evidence, and denying his motion for disclosure of exculpatory evidence.

{¶ 30} The appeals are now before us for our independent review.

II. Anders Appeal Standard

{¶ 31} Upon the filing of an Anders brief, an appellate court must determine, “after

a full examination of all the proceedings,” whether the appeal is “wholly frivolous.”

Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75,

109 S.Ct. 346, 102 L.Ed.2d 300 (1988). “An issue is not frivolous merely because the

prosecution can be expected to present a strong argument in reply.” State v. White, 2d

Dist. Montgomery No. 28338, 2020-Ohio-5544, ¶ 14, citing State v. Pullen, 2d Dist.

Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that

presents issues lacking arguable merit, which means that, “on the facts and law involved,

no responsible contention can be made that it offers a basis for reversal.” State v.
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Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing Pullen at ¶ 4. If

we find that any issue – whether presented by appellate counsel, presented by the

defendant, or found through an independent analysis – is not wholly frivolous, we must

reject the Anders brief and appoint new appellate counsel to represent the defendant.

White at ¶ 14, citing Marbury at ¶ 7; State v. Almeyda, 2d Dist. Montgomery No. 28727,

2021-Ohio-862, ¶ 3.

{¶ 32} In its responsive brief, the State notes that Taylor filed his pro se brief in

Case No. 2019-CA-77, but not Case No. 2020-CA-6. We also had noted this failure and,

because the cases were consolidated, instructed Taylor to file his pro se brief under both

case numbers. Taylor failed to do so. The State now asks that we dismiss Case No.

2020-CA-6 for failure to prosecute.

{¶ 33} After consideration, we conclude that the dismissal of Case No. 2020-CA-6

is not appropriate, despite Taylor’s failure to comply with our instruction. Taylor’s

appointed counsel filed an Anders brief for both cases, which requires us to conduct an

independent review of the record to determine if non-frivolous issues exist in either case.

Taylor was not required to file any pro se brief, and his failure to do so in Case No. 2020-

CA-6 does not remove our existing obligation to conduct an Anders review in that case.

The State’s motion to dismiss Case No. 2020-CA-6 is overruled.

III. Taylor’s Petitions for Postconviction Relief

{¶ 34} The trial court overruled three of Taylor’s filings – the August 23, 2019

petition, the September 20, 2019 supplemental petition, and the December 6, 2019

motion – as untimely petitions for postconviction relief. Taylor’s initial and supplemental

petitions expressly stated that he was seeking relief under R.C. 2953.21, the
 -12-

postconviction relief statute. In contrast, Taylor refers to his December 6, 2019 motion

– titled “motion to vacate a void judgment” – as a “common law motion,” not a petition

under the postconviction relief statute. Upon review, we find no arguable error in the trial

court’s consideration of all three filings as petitions for postconviction relief.

{¶ 35} We have recognized that the “nature of a motion is not necessarily governed

by its title.” State v. Housley, 2d Dist. Miami No. 2019-CA-12, 2020-Ohio-1143, ¶ 15.

“When a motion is filed subsequent to a direct appeal (or the expiration of time for filing a

direct appeal), claims the denial of constitutional rights, seeks to render the judgment of

conviction void, and asks for vacation of the judgment and sentence, the motion is

properly construed as a petition for postconviction relief.” Id., citing, e.g., State v.

Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997); State v. Cline, 2d Dist.

Champaign No. 2013-CA-51, 2014-Ohio-4503, ¶ 7.

{¶ 36} Here, Taylor’s motion was filed after his direct appeal and claimed that

constitutional errors rendered his conviction void. The motion contained all of the

elements of a petition for postconviction relief, and the trial court properly treated it as

such. Any claim that the trial court erred in construing his December 6, 2019 motion as

a petition for postconviction relief would be frivolous.

A. Standard for Petitions for Postconviction Relief

{¶ 37} A petition for postconviction relief “is a means by which the petitioner may

present constitutional issues to the court that would otherwise be impossible to review

because the evidence supporting those issues is not contained in the record of the

petitioner's criminal conviction.” State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 14

(2d Dist.), quoting State v. Monroe, 2015-Ohio-844, 29 N.E.3d 391, ¶ 37 (10th Dist.). A
 -13-

postconviction proceeding is a “civil collateral attack on a criminal judgment,” not an

appeal from the criminal conviction. State v. Wells, 2d Dist. Montgomery No. 22389,

2008-Ohio-4932, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905

(1999).

{¶ 38} When a defendant has pursued a direct appeal of his or her conviction, as

Taylor has, a petition for postconviction relief must be filed no later than 365 days “after

the date on which the trial transcript is filed in the court of appeals in the direct appeal of

the judgment of conviction or adjudication.” R.C. 2953.21(A)(2). Trial courts lack

jurisdiction to consider an untimely or successive petition for postconviction relief, unless

the untimeliness is excused under R.C. 2953.23(A). State v. Current, 2d Dist.

Champaign No. 2012-CA-33, 2013-Ohio-1921, ¶ 16.

{¶ 39} The untimely filing of a petition for postconviction relief may be excused with

a showing that either (1) the defendant was unavoidably prevented from discovering the

facts upon which he or she relies to present the claim, or (2) the United States Supreme

Court recognizes a new federal or state right that applies retroactively to his or her

situation and the petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a).

The petitioner also must show by clear and convincing evidence that, if not for the

constitutional error from which he or she suffered, no reasonable factfinder would have

found the petitioner guilty. R.C. 2953.23(A)(1)(b).

{¶ 40} We review a trial court’s denial of a petition for postconviction relief without

a hearing for an abuse of discretion. State v. Clemmons, 2d Dist. Montgomery No.

28085, 2019-Ohio-2997, ¶ 18; State v. Harden, 2d Dist. Montgomery 23617, 2010-Ohio-

3343, ¶ 10. An abuse of discretion occurs when the trial court’s decision is
 -14-

unreasonable, arbitrary, or unconscionable. State v. Turner, 2d Dist. Montgomery No.

27350, 2017-Ohio-4101, ¶ 5, citing State v. Jenkins, 2d Dist. Montgomery No. 27173,

2017-Ohio-1073, ¶ 10.

B. Petitions for Postconviction Relief in Case No. 2019-CA-77

{¶ 41} Taylor’s initial petition for postconviction relief was filed on August 23, 2019,

and he supplemented that petition on September 20, 2019. Because Taylor filed a direct

appeal, he was required to file his petitions within 365 days of the filing of his “trial

transcript” in his direct appeal. At the latest, Taylor’s “trial transcript” was filed on August

8, 2018, when the last transcript was filed. See State v. Deaton, 2019-Ohio-2128, 137

N.E.3d 696, ¶ 11-15 (2d Dist.) (addressing the meaning of “trial transcript” under R.C.

2953.21(A)(2)). Because Taylor’s petitions were filed beyond the 365-day time limit, the

trial court correctly determined that Taylor’s petitions were untimely.

{¶ 42} Taylor argues that his untimeliness should be excused, because the United

States Supreme Court has recognized new federal and state rights that apply to him

retroactively. He cites to State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332, and State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960,

for the proposition that a void judgment may be challenged at any time. Taylor contends

that his conviction was void due to the use of perjured testimony and multiple instances

of fraud on the court and he, therefore, could challenge his conviction at any time.

{¶ 43} We disagree with Taylor that Fischer and Billiter satisfy the requirements of

R.C. 2953.23(A)(1)(a). First, recent Ohio Supreme Court authority indicates that the new

federal or state right must be recognized by the United States Supreme Court, not the

Supreme Court of Ohio. See State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137
 -15-

N.E.3d 1151 (with two justices concurring and two concurring in judgment only).

{¶ 44} Second, neither Ohio Supreme Court case involves the recognition of a new

“right.” In Fischer, the Ohio Supreme Court held that a sentence that did not include the

statutorily-mandated term of postrelease control was void, was not precluded from

appellate review by principles of res judicata, and may be reviewed at any time, on direct

appeal or by collateral attack. Fischer at paragraph one of the syllabus. Fischer made

clear that res judicata applied to other aspects of the judgment of conviction, including the

determination of guilt and lawful elements of the sentence. Id. at paragraph three of the

syllabus. Billiter held that “[w]hen a criminal defendant is improperly sentenced to

postrelease control, res judicata does not bar the defendant from collaterally attacking his

conviction for escape due to an earlier postrelease-control sentencing error.” Billiter at

syllabus.

{¶ 45} Significantly, both Fischer and Billiter have been overruled by State v.

Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. In Harper, the Ohio

Supreme Court concluded that it would “return to the traditional view of void and voidable

judgments.” State v. Florence, 2d Dist. Montgomery No. 28674, 2021-Ohio-867, ¶ 26

(discussing Harper). It held that “[a] sentence is void when a sentencing court lacks

jurisdiction over the subject matter of the case or personal jurisdiction over the accused.”

Harper at ¶ 42. Under this standard, Taylor’s conviction is not void.

{¶ 46} Taylor further claims that, under United States Supreme Court authority and

other federal case law, a conviction based on perjured testimony or fraud is void under

the Due Process Clause, and a challenge to the conviction is not barred by res judicata.

We have reviewed the cases cited by Taylor. None of the cases supports a conclusion
 -16-

that Taylor can bypass the procedures set forth in Ohio’s postconviction statutes or

demonstrate a new “right” within the meaning of R.C. 2953.23(A)(1)(a). In short, Taylor

has not demonstrated that the untimeliness of his petitions for postconviction relief is

excused under R.C. 2953.23(A)(1)(a).

{¶ 47} Upon review of the record, we further find no non-frivolous argument that

Taylor was unavoidably prevented from discovering the facts upon which he relies to

present his claims.

{¶ 48} First, as to the recordings of phone calls, Taylor focuses on two calls

between C.T. and him that occurred in January 2018. Those phone calls occurred prior

to trial, and Taylor acknowledges that he was a participant. Accordingly, Taylor was

aware of the content of those calls, and any claim that he was unavoidable prevented

from discovering the contents of those calls would be frivolous.

{¶ 49} Second, Taylor claims that Detective Kraker’s testimony at trial differed from

statements he made in the search warrant affidavit. The search warrant and

accompanying affidavit were offered as an exhibit at the February 7, 2018 hearing on

Taylor’s motion to suppress; Taylor was present and heard Kraker’s testimony at trial.

Taylor cannot reasonably argue that he was unavoidably prevented from discovering the

alleged discrepancies.

{¶ 50} The same is true regarding discrepancies between C.T.’s trial testimony and

her other sworn statements about the incident. C.T. filed her petition for a domestic

violence civil protection order September 27, 2017, the day after the incident and several

months prior to trial in this case. The record reflects that Taylor was served with C.T.’s

petition at the Fairborn Jail on the same date. Taylor heard C.T.’s testimony at trial, and
 -17-

thus he was not unavoidably prevented from learning of discrepancies between that

testimony and her petition for a domestic violence civil protection order. Taylor also

relied on an affidavit from Rhonda Hoskins in which Hoskins stated, among other things,

that C.T. told her that she (C.T.) had lied at trial. Hoskins’s affidavit was dated July 19,

2018, and well within the 365-day time limit for Taylor to file a timely petition for

postconviction relief.

{¶ 51} Taylor’s supplemental petition for postconviction relief further claimed that

his trial counsel rendered ineffective assistance by failing to properly prepare for trial and

to take certain actions at trial. Taylor also claimed that the prosecutor engaged in

misconduct in providing a misleading bill of particulars and misrepresenting the facts in

her opening statement at trial. In each instance, Taylor would have been aware of the

alleged improper conduct by the conclusion of his trial. He cannot reasonably argue that

he was unavoidably preventing from learning of these alleged facts. Taylor’s claims that

the search of his apartment violated the Fourth Amendment due to untrue statements in

the search warrant affidavit and that the State perpetrated a fraud on the court similarly

were based on evidence available prior to and at trial. With the record before us, any

claim that Taylor was unavoidably prevented from discovering the facts underlying his

petitions for postconviction relief would be frivolous.

{¶ 52} Accordingly, we find no non-frivolous claim that the trial court erred in

denying his initial and supplemental petitions for postconviction relief as untimely.

Consequently, the trial court lacked authority to consider the merits of his petitions. Any

claim that the trial court erred in failing to issue findings of fact and conclusions of law or

to hold a hearing on the petitions also would be frivolous. See State ex rel. George v.
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Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, 889 N.E.2d 533, ¶ 6 (court had no duty

to issue findings of fact and conclusions of law on successive or untimely petitions for

postconviction relief); State v. Kilbarger, 2d Dist. Montgomery No. 26284, 2015-Ohio-

2177, ¶ 10 (“Because Kilbarger’s petition was untimely, the trial court did not err when it

denied it without holding a hearing.”).

C. Petition for Postconviction Relief in Case No. 2020-CA-6

{¶ 53} Taylor’s motion to vacate a void judgment was filed on December 6, 2019,

more than 365 days after the trial transcripts were filed in his direct appeal. Accordingly,

the trial court correctly concluded that his motion/petition was untimely.

{¶ 54} Again, Taylor has not provided any basis to excuse his untimeliness, other

than to argue that his conviction is void. He did not argue either (1) that he was

unavoidably prevented from discovering the facts upon which he relies to present the

claim or (2) that the United States Supreme Court has recognized a new federal or state

right that applies retroactively to his situation and the petition asserts a claim based on

that right. Moreover, the record does not support a contention that Taylor was

unavoidably prevented from learning the facts upon which he relied in this petition. We

therefore conclude that any claim that the trial court erred in denying the December 6,

2019 motion as an untimely petition for postconviction relief would be frivolous.

IV. Motion for a New Trial

{¶ 55} As part of Case No. 2019-CA-77, Taylor appeals from the denial of his

motion for a new trial based on newly discovered evidence.

{¶ 56} Motions for a new trial are governed by Crim.R. 33. A new trial may be

granted if any of several grounds exist that materially affected the defendant’s substantial
 -19-

rights, including (1) “irregularity in the proceedings * * * because of which the defendant

was prevented from having a fair trial,” (2) misconduct of the jury, (3) accident or surprise

which ordinary prudence could not have guarded against, (4) the verdict is not sustained

by sufficient evidence or is contrary to law, (5) error of law occurring at trial, and (6) newly

discovered evidence. Crim.R. 33(A).

{¶ 57} Under Crim.R. 33(B), a motion for a new trial on account of newly

discovered evidence must be filed within 120 days after the verdict. Crim.R. 33(B). If,

as here, the 120-day time period has expired, the defendant must first seek leave of the

trial court to file a delayed motion for a new trial. State v. Harwell, 2d Dist. Montgomery

No. 28104, 2019-Ohio-643, ¶ 16.

{¶ 58} “To obtain leave, defendant must demonstrate by clear and convincing

evidence that he or she was unavoidably prevented from timely filing the motion for a new

trial or discovering the new evidence within the time period provided by Crim.R. 33(B).”

(Citations omitted.) Id., quoting State v. Warwick, 2d Dist. Champaign No. 01CA33,

2002 WL 1585663, *2 (July 19, 2002). “The reference to ‘clear and convincing proof’

means something more than bare allegations or statements in a motion.” State v. Morris,

2d Dist. Montgomery No. 26949, 2017-Ohio-1196, ¶ 19. “A defendant is entitled to a

hearing on a motion for leave to seek a new trial if he [or she] submits documents that on

their face support his [or her] claim of being unavoidably prevented from meeting Crim.R.

33's time requirement.” State v. Hiler, 2d Dist. Montgomery No. 27364, 2017-Ohio-7636,

¶ 12, citing State v. Lanier, 2d Dist. Clark No. 2009-CA-84, 2010-Ohio-2921, ¶ 16.

{¶ 59} “ ‘[A] party is unavoidably prevented from filing a motion for new trial if the

party had no knowledge of the existence of the ground supporting the motion for new trial
 -20-

and could not have learned of the existence of that ground within the time prescribed for

filing the motion for new trial in the exercise of reasonable diligence.’ ” State v. Parker,

178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d Dist.), quoting State v.

Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984); State v. Reed,

2d Dist. Montgomery No. 28272, 2019-Ohio-3295, ¶ 30. “Conversely, a defendant fails

to demonstrate that he or she was unavoidably prevented from discovering the new

evidence or the basis of the claim when he or she would have discovered that information

earlier with due diligence and some effort.” State v. Smith, 2d Dist. Montgomery No.

28307, 2019-Ohio-3591, ¶ 11.

{¶ 60} We review the trial court’s denial of leave to file a motion for a new trial for

an abuse of discretion. Smith at ¶ 13; State v. Devaughns, 2d Dist. Montgomery No.

25826, 2015-Ohio-452, ¶ 15.

{¶ 61} Taylor filed his motion for new trial on October 21, 2019, and his amended

motion on November 12, 2019, more than 120 days after the verdict. Accordingly, Taylor

was required to demonstrate, by clear and convincing evidence, that he was unavoidably

prevented from discovering the new information.

{¶ 62} Taylor’s motion indicated that he made a telephone call from Chillicothe

Correctional Facility on September 10, 2019, and spoke with Kendra Lane. During that

conversation, Lane allegedly admitted to being a witness to the September 26, 2017

incident and stated that Taylor did not enter C.T.’s residence. Taylor’s motion focused

on the phone call, not the content of the conversation, as the new evidence. He did not

indicate whether he knew Lane when the incident occurred or when he became aware

that Lane was present at C.T.’s apartment. Taylor provided no explanation as to why he
 -21-

could not have discovered earlier, with reasonable diligence, that Lane was present at

C.T.’s apartment on September 26, 2017, and what she saw.

{¶ 63} Taylor’s motion also referenced another witness, Samantha Taylor, who

allegedly spoke with C.T. prior to trial and told C.T. that Taylor had not entered C.T.’s

apartment. Taylor provided no additional information about Samantha Taylor. Taylor

provided no basis to conclude that Samantha Taylor’s information was new evidence to

him.

{¶ 64} Taylor further indicated that he and C.T. exchanged “J pay” electronic

messages. Taylor asserted that the messages reflected that C.T. was coerced to testify

and had lied on the stand. Taylor’s description of the messages is not entirely accurate.

{¶ 65} In the first message, dated July 26, 2019, Taylor wrote to C.T. that he never

“stepped foot” into C.T.’s apartment and he implored C.T. to “tell the truth.” C.T.

responded on August 4 that she tried hard not to testify and had told the prosecutor that

she did not want to testify. C.T. wrote that the victim advocate and detective brought her

to court. C.T. said that Taylor was drunk that day, and she expressed regret that he was

in prison; she wrote that she told the prosecutor that he needed help. C.T. stated that

she did not realize that Taylor had come to her apartment because he believed that C.T.

was being abused by her fiancé. However, C.T. did not, as Taylor asserts, admit to lying

on the stand. The additional three messages were from Taylor to C.T., claiming that he

did not enter her apartment and that he was convicted on a lie. Taylor asked C.T. to

write an affidavit that he did not enter her apartment. While the messages themselves

were exchanged in July and August 2019, there is nothing to suggest that C.T.’s message

contained new information to Taylor. Even if it did, the content of C.T.’s message was
 -22-

not sufficient to create a strong probability of a different outcome at trial. See State v.

Quinn, 2d Dist. Clark No. 2017-CA-102, 2018-Ohio-5279, ¶ 19-21.

{¶ 66} Taylor’s claim that the trial court erred in denying his motion for a new trial

lacks arguable merit.

V. Additional Postconviction Motions

{¶ 67} In his pro se brief, Taylor claims that the trial court erred in denying his

request for the issuance of subpoenas and for the disclosure of exculpatory

evidence/Brady material. Appellate counsel also raises as a potential assignment of

error that the trial court erred in denying Taylor’s motion for exculpatory evidence/Brady

material.

{¶ 68} It is well established that there is no right to discovery in postconviction

proceedings in non-capital cases. E.g., State v. Hazel, 2d Dist. Clark No. 2018-CA-39,

2018-Ohio-5274, ¶ 16; State v. Owensby, 2d Dist. Montgomery No. 27607, 2018-Ohio-

2967, ¶ 26, citing State ex rel. Love v. Cuyahoga Cty. Prosecutor’s Office, 87 Ohio St.3d

158, 159, 718 N.E.2d 426 (1999). We have specifically rejected the argument that the

postconviction process is inadequate and does not comport with due process because it

does not grant a petitioner the right to conduct discovery to acquire the evidence needed

to support his or her claim for postconviction relief. Owensby at ¶ 19-21. In this case,

we find no arguably meritorious claim that the trial court erred in denying Taylor’s motions

for exculpatory evidence and to issue subpoenas related to that evidence, particularly

given that Taylor’s petitions for postconviction relief were properly dismissed as untimely.

VI. Conclusion

{¶ 69} We have reviewed the potential assignments of error raised by Taylor and
 -23-

his appellate counsel and have performed our duty under Anders to conduct an

independent review of the record. After a thorough review, we have found no issues with

arguable merit for Taylor to advance on appeal. Accordingly, appellate counsel’s motion

to withdraw is granted. The trial court’s judgments will be affirmed.

.............

TUCKER, P. J. and DONOVAN, J., concur.

Copies sent to:

Marcy A. Vonderwell
Brian A. Muenchenbach
Pierre Taylor
Successor to Hon. Stephen Wolaver