State v. Martin

[Cite as State v. Martin, 2022-Ohio-1494.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110549
v. :

JOJWAN MARTIN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: May 5, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-06-490688-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.

Patituce & Associates, LLC, Megan M. Patituce, and
Joseph C. Patituce, for appellant.

ANITA LASTER MAYS, P.J.:

Plaintiff-appellant Jojwan Martin (“Martin”) appeals the trial court’s

summary denial of his motion for leave to file a motion for new trial under

Crim.R. 33 based on newly discovered exculpatory evidence. We find that the
appeal has merit, reverse the trial court’s judgment, and remand the case for a

hearing on the motion.

I. Background and Facts

On November 11, 2006, a vehicle driven by victim Antonio Williams

(“Williams”) crashed into a residence on Hecker Avenue in Cleveland, Ohio.

Williams had been shot and was transported to the hospital and ultimately died of

pneumonia on December 19, 2006. The autopsy recovered a bullet from Williams’s

spine that was too deformed for a weapons comparison.

“On January 5, 2007, a Cuyahoga County Grand Jury indicted

[Martin] on one count of aggravated murder, in violation of R.C. 2903.01(A), with a

firearm specification under R.C. 2941.145.” State v. Martin, 8th Dist. Cuyahoga

No. 91276, 2009-Ohio-3282, ¶ 3 (“Martin I”).

On February 11, 2008, the case proceeded to a jury trial. The source

of the deformed bullet could not be identified. Police testified that Martin was

arrested with another individual and a 9 mm weapon was retrieved. Possession of

the weapon was attributed to Martin.

Earwin Watters (“Watters”) and Debby Crayton (“Crayton”) served as

key witnesses in the case. Voir dire of these witnesses was conducted outside the

presence of the jury. Watters advised that he was incarcerated for a pending federal

case for conspiracy to traffic crack cocaine and illegal firearms. The Federal Bureau

of Investigation (“FBI”) asked whether Watters had information about unsolved

homicides in his neighborhood and Watters responded that he was at the scene of
the shooting involved in the instant case. The FBI contacted the investigating

detective at the Cleveland Police Department (“CPD”). Watters made a proffer to

the FBI and hoped to obtain a benefit from his trial cooperation. Watters advised

that he was aware that the county prosecutor would advise the FBI of his

contribution and his potential sentence could be reduced.

Watters testified at trial

on the day of the shooting, he went into Papi’s, a store on the corner of
East 71st and Hecker Avenue. As he walked into Papi’s, he noticed
[Martin] talking to a man in a vehicle on the opposite side of the street.
When Watters was inside the store, he heard screeching tires and a
gunshot. He looked out the glass door of the store and saw [Martin] on
foot chasing after the car. Watters ran in the opposite direction and
heard two more gunshots.

Martin I at ¶ 8.

Watters also testified that he did not immediately come forward

because of a pending federal drug case but upon inquiry by the FBI, he agreed to

provide the FBI and CPD with information that he was present at the shooting.

Watters denied at trial that he had been promised a benefit for his testimony but

admitted during cross-examination that his sentence in the federal case could

possibly be reduced if he testified.

Crayton stated during voir dire that she was doing her hair in the

bathroom of her second-floor residence near East 71st and Hecker Street. Crayton

stepped into the tub to look out of her bathroom window, was familiar with Martin,

and saw him running down Hecker with a gun but did not see Martin fire a gun.

Crayton also heard a vehicle repeatedly accelerate as if it was stuck in the mud.
 Crayton’s trial testimony was a more detailed version of her voir dire

testimony. However, the day prior to her trial testimony, the state advised the

defense that Crayton had just disclosed that she heard Martin make a statement

while running. Over objection, Crayton testified that she saw Martin “running down

Hecker Street with a gun in his hand, yelling ‘that’s what you do for motha f***s.’”

Id. at ¶ 9. In addition to the newly revealed oral statement, Crayton provided a

detailed timeline of events that was not set forth in prior statements.

“The jury found appellant not guilty of aggravated murder, but guilty

of murder and the firearm specification.” Id. at ¶ 3. Martin was sentenced to 18

years to life with eligibility for parole after 18 and one-half years, and a three-year

firearm specification to be served prior and consecutive to the life sentence. Martin

was also fined $20,000 and postrelease control was imposed.

This court affirmed the convictions and observed as to Watters:

While it is true that Watters may receive a reduced federal sentence
based upon his testimony, Watters had not been guaranteed anything
for his testimony. Further, the jury heard the testimony regarding the
possible deal, and it was not unreasonable for them to believe Watters’s
testimony in spite of this. Watters was able to provide the jury with a
detailed account of the incident.

Martin I at ¶ 35. We also acknowledged that there were inconsistences in Crayton’s

statements but that her testimony was corroborated by Watters’s testimony. Id. at

¶ 37.

In 2011, Watters retracted his statement and advised that the

information for his testimony was provided to him by the authorities and that he
testified to secure a shorter federal sentence. We extract a portion of the background

information from the opinion of the Ohio Supreme Court in the disciplinary action

finding that Martin’s postconviction counsel Cheselka, who took over four years to

submit a 2016 petition for postconviction relief under R.C. 2953.21 based on

Watters’s information, committed misconduct:

In early 2011, Watters contacted Martin’s mother, Cynthia Bester, and
told her that he had given false testimony against Martin under
pressure from the police and prosecutors, that he had not actually
witnessed Martin kill anyone, and that he wanted to recant his
testimony. On March 14, 2011, Watters executed a handwritten
affidavit stating that he had been pressured to give false testimony at
Martin’s trial to obtain a lesser sentence in his own criminal case.
Bester sent Watters’s affidavit and other materials regarding Martin’s
case to the Ohio Innocence Project at the University of Cincinnati
College of Law, but the project declined to take the case and returned
the file to Bester in May 2012.

Bester and her mother met with Cheselka in November 2012 and gave
him Watters’s affidavit. Cheselka agreed to file a petition for
postconviction relief on Martin’s behalf for a flat fee of $10,000 (plus
$525 for a copy of the trial transcript), which Bester and her mother
paid in installments from 2013 to 2015.

Between August 2013 and March 2016, Cheselka asked Watters to write
and execute four additional affidavits — which he later claimed were
necessary to correct procedural and substantive defects in Watters’s
original affidavit. But Cheselka did not file Martin’s petition for
postconviction relief until May 13, 2016 — approximately three and a
half years after he first met with Bester and received Watters’s 2011
affidavit. And even then, Watters had not signed the affidavit that
Cheselka notarized and submitted with Martin’s petition for
postconviction relief.

Disciplinary Counsel v. Cheselka, 159 Ohio St.3d 3, 2019-Ohio-5286, 146 N.E.3d

534, ¶ 6-8.

The court determined:
 Because Cheselka filed the petition more than 365 days after the
transcript was filed in Martin’s direct appeal, he was required to show
that Martin had been unavoidably prevented from discovering the facts
that supported the petition. See R.C. 2953.21(A)(2) and 2953.23(A)(1).
In the petition, Cheselka explained that Martin “was unavoidably
delayed beyond the 365-day deadline because Earwin Watters only
provided his unsolicited affidavit in 2016, well-past the statute’s
general rule and under circumstances unanticipated by [Martin].”
(Emphasis added.) Cheselka failed to mention that Watters first came
forward to recant his testimony in 2011 and that he had executed four
previous affidavits. Cheselka continued that deception in his May 2017
response to relator’s letter of inquiry, in which he affirmatively stated
that “[t]here was no affidavit provided in 2011” and that “[t]here was
never a proper affidavit executed before March of 2016.” And at his
disciplinary hearing, Cheselka admitted that there was no legally
significant difference between the first and final affidavits. The trial
court denied Martin’s postconviction petition without an opinion.

Id. at ¶ 9.1

The court found:

The board found that Cheselka’s conduct violated Prof.Cond.R. 1.3
(requiring a lawyer to act with reasonable diligence in representing a
client), 3.3(a) (prohibiting a lawyer from knowingly making a false
statement of fact or law to a tribunal), 8.1(a) (prohibiting a lawyer from
knowingly making a false statement of material fact in connection with
a disciplinary matter), and 8.4(c) (prohibiting a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Id. at ¶ 10.

Notwithstanding Cheselka’s malfeasance, the court concluded:

Citing the insufficiency of the evidence, however, the board
recommends that we dismiss relator’s allegations that Cheselka had
failed to reasonably communicate with Martin and that Cheselka had
failed to promptly refund any unearned portion of his fee at the
conclusion of his representation. We adopt the board’s findings of

1
In fact, Cheselka specifically represented to the trial court in the 2016 petition
that Watters did not come forward until 2016.
 misconduct and dismiss the remaining allegations of misconduct with
respect to this count.

Cheselka at ¶ 10.2 The opinion was issued December 24, 2019.

Martin and family was advised that they were unable to recover the

$10,000 that his mother paid to Cheselka to secure new counsel until 2020. Counsel

filed the instant motion for leave to file a motion for a new trial on July 17, 2020,

approximately six months after the Cheselka decision. The current motion for leave

to file a motion for a new trial under Crim.R. 33(B) is accompanied by multiple

supporting exhibits. The motion for leave details conflicts in the trial testimony by

and between key witnesses Watters and Crayton and provides substantiating

documentation to support Watters’s statement that he falsified his testimony for the

purpose of receiving a shorter sentence as well as support for Martin’s other related

arguments for relief.

The state’s brief in opposition was filed on September 17, 2020. The

trial court issued a summary decision without a hearing on May 18, 2021.

II. Assignment of Error

Martin assigns a single error on appeal: The trial court abused its

discretion in denying Martin’s motion for leave to file a motion for a new trial. We

agree, reverse the judgment, and remand the case for a hearing.

2 There were several criminal case grievants involved in the Cheselka action.
III. Discussion

A. Standard of Review

“This court reviews the denial of leave to file a delayed motion for a

new trial for an abuse of discretion.” State v. Sutton, 2016-Ohio-7612, 73 N.E.3d

981, ¶ 13 (8th Dist.). An abuse of discretion is not simply an error of law or

judgment, but implies the court’s attitude is unreasonable, arbitrary, or

unconscionable. State v. Yates, 8th Dist. Cuyahoga No. 96664, 2011-Ohio-4962,

¶ 5.

B. Law

Crim.R. 33(B) requires that “Motions for a new trial on account of

newly discovered evidence shall be filed within one hundred twenty days after the

day upon which the verdict was rendered, or the decision of the court where trial by

jury has been waived.” Id. “A party who fails to file a motion for new trial within the

prescribed timeframe must seek leave from the trial court to file a delayed motion

for new trial.” State v. Hill, 8th Dist. Cuyahoga No. 108250, 2020-Ohio-102, ¶ 15,

citing State v. Hale, 8th Dist. Cuyahoga No. 107782, 2019-Ohio-1890, ¶ 9.

Historically, courts have been guided by the two-pronged

requirement that a movant demonstrate by clear and convincing evidence that the

movant: (1) “was unavoidably prevented from filing the motion for a new trial” and

(2) “sought leave within a reasonable time after discovering the evidence.”

(Emphasis added.) Id., citing id.
 The Ohio Supreme Court has recently examined Crim.R. 33(B) to

determine whether the rule imposes a reasonable time requirement in State v.

Bethel, Slip Opinion No. 2022-Ohio-783. Bethel clarifies the scope and focus of our

Crim.R. 33(B) review and addresses issues relating to R.C. 2953.21 postconviction

relief. The court examined Crim.R. 1(B) and 57(B) upon which courts have relied in

imposing a reasonable time filing requirement under Crim.R. 33(B). Id. at ¶ 55,

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

The court applied “general principles of statutory construction” and

determined that the cited rules do not authorize or support the “creation of a

reasonable-time filing requirement” under Crim.R. 33(B). Id. at ¶ 55. The court

held that the appellate court’s finding 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” the purported new evidence was in error. Id. at

¶ 58.

Thus, our review is guided by Bethel’s determination that

Crim.R. 33(B) “states only that a defendant must show that he was ‘unavoidably

prevented from the discovery of the evidence upon which he must rely.’” State v.

Bethel, Slip Opinion No. 2022-Ohio-783, ¶ 53. The court further explained that

“[t]he ‘unavoidably prevented’ requirement in Crim.R. 33(B) mirrors the

‘unavoidably prevented’ requirement in R.C. 2953.23(A)(1).” Id. at ¶ 59, citing

State v. Barnes, 5th Dist. Muskingum No. CT2017-0092, 2018-Ohio-1585, ¶ 28.
 Our focus shifts to whether, to obtain leave, Martin has demonstrated

“by clear and convincing evidence that he was unavoidably prevented from

discovering the new evidence within the 120-day time period.” State v. Dues, 8th

Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 10, citing State v. Mathis, 134 Ohio

App.3d 77, 79, 730 N.E.2d 410 (1st Dist. 1999).

“Clear and convincing evidence is ‘the amount of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the facts

sought to be established.’” State v. Metcalf, 2d Dist. Montgomery No. 26101, 2015-

Ohio-3507, ¶ 10, citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d

176, 180, 512 N.E. 2d 979 (1987).

C. Discussion

The events that transpired as of 2011 when Watters came forward

to recant are set forth in the Cheselka opinion. Cheselka, 159 Ohio St.3d 3, 2019-

Ohio-5286, 146 N.E.3d 534. The state argues that the former counsel’s misconduct

does not render the delays in this case reasonable and that Martin was not

constitutionally entitled to the effective assistance of counsel in a state

postconviction proceeding under R.C. 2953.21 and 2953.23 based on State v. Lott,

8th Dist. Cuyahoga Nos. 79790, 79791, and 79792, 2002-Ohio-2752, ¶ 10 (“[a]

postconviction relief proceeding is a collateral civil attack on a judgment”). Id.

Pursuant to Bethel, reasonableness in the delay is no longer a factor

and we consider the argument as an element underlying unavoidable prevention. In

Bethel, the court clarified that a Crim.R. 33 “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, Slip Opinion No. 2022-Ohio-783, at

¶ 44. “[I]t 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).” Id. at ¶ 49.3

"[I]n order to show deficient performance, the defendant must prove

that counsel’s performance fell below an objective level of reasonable

representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848

N.E.2d 810, ¶ 95. (Citations omitted). Counsel in this case violated

Prof.Cond.R. 1.3, 3.3(a), and 8.1(a), the latter involving dishonesty, fraud, deceit, or

misrepresentation. Cheselka, 159 Ohio St.3d 3, 2019-Ohio-5286, 146 N.E.3d 534,

at ¶ 10. We find that Martin’s argument that ineffective assistance of counsel under

the unique facts of this case constitutes a cognizable claim that Martin was

unavoidably prevented from presenting the newly discovered evidence in this case.

Hill, 8th Dist. Cuyahoga No. 108250, 2020-Ohio-102, at ¶ 15,

The state also argues that the current motion is barred by res

judicata based on the 2016 summary denial of the R.C. 2953.21 petition for

postconviction relief filed by former counsel Cheselka that Martin argues was

unauthorized. The state offers that the current Crim.R. 33 motion advances the

3R.C. 2953.21(K) provides, “Subject to the appeal of a sentence for a felony that is
authorized by section 2953.08 of the Revised Code, the remedy set forth in this section 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 or to the validity of an adjudication of a child
as a delinquent child for the commission of an act that would be a criminal offense if
committed by an adult or the validity of a related order of disposition.”
same arguments as the 2016 motion and that in spite of the multiple exhibits filed

with Martin’s current motion only the Watters affidavit is relevant. The state cites

State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298,

¶ 26 (Bridges III”), in support of the premise that “arguments raised in a motion for

leave that were previously raised in a prior petition for postconviction relief are

barred by res judicata.” Appellee’s brief, p. 18.

We find that Bridges III is distinguishable. Bridges III involved a pro

se appeal of a trial court’s denial of Bridges’s “motion for leave to file a delayed

motion for new trial and his postconviction motion to correct an error in his

conviction.” Id. at ¶ 1. Bridges filed a direct appeal in State v. Bridges, 8th Dist.

Cuyahoga No. 100805, 2014-Ohio-4570 (“Bridges I”) and a petition for

postconviction relief under R.C. 2953.21 in State v. Bridges, 8th Dist. Cuyahoga

Nos. 102930 and 103090, 2015-Ohio-5428, ¶ 10 (“Bridges II”).

Bridges filed multiple postconviction motions while Bridges I was

pending and for several years afterward. We determined in Bridges III that res

judicata applied because the issues posed in the current Crim.R. 33 motion either

should have been raised in Bridges I or were reiterations of arguments made in

Bridges I and Bridges II.

In contrast to the instant case, the trial court denied Bridges’s

petition without a hearing, but issued detailed findings of fact and conclusions of

law that detailed the grounds for the denial. Bridges III, 8th Dist. Cuyahoga

Nos. 103634 and 104506, 2016-Ohio-7298, at ¶ 4. In this case, the record does not
reveal whether the trial court’s summary denial was due to consideration of the

merits of the case or the failure to submit a signed affidavit that was construed as a

failure to support the petition or improper submission.

Bethel also addressed the doctrine of res judicata regarding the Brady

claim under the R.C. 2953.21 petition. The state argued that Bethel could have

discovered the information earlier and relied on several Ohio appellate cases that

“applied res judicata to prevent a convicted defendant from raising postconviction

issues in a piecemeal fashion.” Bethel, Slip Opinion No. 2022-Ohio-783, at ¶ 17,

citing State v. Bene, 11th Dist. Lake Nos. 2019-L-070, 2019-L-071, and 2019-L-072,

2020-Ohio-1560, ¶ 13-14. The court disagreed and advised that where the state

raises the doctrine of res judicata, the state has the “burden of showing” that the

defendant could have asserted the claim earlier. Based on the unique facts of this

case, res judicata does not apply.

As we have acknowledged, the instant motion filed approximately

sixth months after Cheselka was issued, is accompanied by multiple supporting

exhibits. In addition to a proper affidavit from Watters, Martin provides an affidavit

from his mother and his own affidavit to supplement the Cheselka submissions as

well as the additional evidence to substantiate Watters’s claim. The exhibits also

contain statements from Crayton and various CPD reports.

A defendant that submits documents that on their face support the

claim of being unavoidably prevented from timely discovering the new evidence is

entitled to a hearing. Metcalf, 2d Dist. Montgomery No. 26101, 2015-Ohio-3507,
¶ 10; State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77,

¶ 19 (2d Dist.). “It is at the hearing on the motion for leave that the court must

determine whether the petitioner met his burden of clearly and convincingly

showing that he was indeed unavoidably prevented from discovering the evidence.”

State v. Phillips, 2017-Ohio-7164, 95 N.E.3d 1017, ¶ 25 (8th Dist.).

Because Martin submitted evidence that on its face showed he was

unavoidably prevented from discovering and presenting the evidence sooner, he was

entitled to a hearing on his motion for leave. We find that the assignment of error

has merit and for that reason is sustained.

IV. Conclusion

Judgment reversed and remanded.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

ANITA LASTER MAYS, PRESIDING JUDGE

EMANUELLA D. GROVES, J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT
ONLY WITH SEPARATE OPINION
MICHELLE J. SHEEHAN, J., CONCURRING IN JUDGMENT ONLY:

I respectfully concur in judgment only. I would reverse the judgment

of the trial court denying the motion for leave to file a new trial but would remand

this matter for the trial court to consider the motion for leave to file a motion for

new trial under the standards of law announced in State v. Bethel, Slip Opinion

No. 2022-Ohio-783.