[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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January Term, 2022
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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January Term, 2022
“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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SUPREME COURT OF OHIO
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
8
January Term, 2022
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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SUPREME COURT OF OHIO
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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January Term, 2022
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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