State v. Black

[Cite as State v. Black, 2022-Ohio-3119.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 22AP-180
v. : (C.P.C. No. 19CR-611)

Stevie L. Black, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on September 6, 2022

On brief: G. Gary Tyack, Prosecuting Attorney, and
Darren M. Burgess.

On brief: Stevie L. Black, pro se.

APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Stevie L. Black, appeals pro se from a decision of the

Franklin County Court of Common Pleas denying his petition to vacate his convictions. For

the following reasons, we affirm.

I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The facts leading to Black's convictions and sentence are described in our

decision affirming the convictions and sentence on direct appeal. State v. Black, 10th Dist.

No. 19AP-637, 2021-Ohio-676, ¶ 2-14. To briefly summarize, Black was indicted on one

count of kidnapping, one count of rape, and two counts of robbery. Id. at ¶ 2. The victim,

A.S., testified at a jury trial that she frequently used a WiFi connection originating from the
No. 22AP-180 2

Sandpebble Lounge ("Sandpebble"), near the trailer park where she lived. Id. at ¶ 4. To

reach a path leading to the back of the Sandpebble, A.S. had to cross an open field between

the trailer park and the Sandpebble. The path leading to the back of the Sandpebble was

bordered by thick, tall brush. Id. A.S. testified that on the morning of September 25, 2018,

Black approached her while she was standing near the path leading to the Sandpebble. She

testified she had never seen Black before. Id. at ¶ 5. Black called to her and, when A.S.

approached, he shoved her to the ground and pulled off her leggings. He then climbed on

top of her and inserted his penis into her vagina. Id. After the assault ended, A.S. fled to

her trailer and put her leggings into a plastic bag. Id.

{¶ 3} A.S. returned to the Sandpebble approximately one hour later and again

encountered Black; he stole her purse, which contained her cell phone and other

belongings. Id. at ¶ 6. A.S. claimed she and her boyfriend also encountered Black the

following day when they were leaving a nearby grocery store. It was cold and rainy, and

Black offered A.S. his jacket. A.S. took the jacket home and placed it in a separate plastic

bag. Id. at ¶ 8. A.S. reported the rape to police that evening. Id. The officer who responded

to A.S.'s report and took custody of the leggings and jacket testified at trial. Id. at ¶ 9. The

sexual assault detective who investigated the incident also testified at trial. Id. at ¶ 10. Black

did not call any witnesses or testify in his own defense. Id. at ¶ 14. The jury convicted Black

of rape and kidnapping but acquitted him of the robbery charges. Id. at ¶ 14. On August

29, 2019, the trial court entered a judgment entry merging the rape and kidnapping

convictions, sentencing Black to 11 years of incarceration, and classifying him as a Tier III

sexual offender. Id. at ¶ 14.

{¶ 4} Black appealed, asserting the trial court erred by denying his Crim.R. 29

motion for acquittal, that the verdicts were against the manifest weight of the evidence, and
No. 22AP-180 3

that the trial court erred by failing to adequately explain his sex offender registration duties.

Id. at ¶ 15. This court affirmed the trial court's judgment, concluding the evidence was

sufficient to support the convictions, the convictions were not against the manifest weight

of the evidence, and the trial court provided the required notices regarding Black's sex

offender classification. Id. at ¶ 24, 36, 46. The Supreme Court of Ohio declined to accept

jurisdiction over Black's further appeal. State v. Black, 164 Ohio St.3d 1403, 2021-Ohio-

2742.

{¶ 5} On February 8, 2022, Black filed a pro se petition to vacate his convictions,

asserting he received ineffective assistance of trial and appellate counsel and the state failed

to produce exculpatory evidence. The state filed a memorandum in opposition, arguing

Black's petition was untimely and that he failed to present excusable reasons for the

untimely filing. The trial court denied Black's petition to vacate without conducting an

evidentiary hearing. Black timely appealed the trial court's denial.

II. ASSIGNMENTS OF ERROR
{¶ 6} Black assigns the following as trial court error:
[1.] The trial court abused its discretion when denying
appellant's motion to vacate or set aside conviction without an
evidentiary hearing.
[2.] Appellant was prejudicially denied due process and a fair
trial due to the intentional withholding of Brady material
evidence.
[3.] Appellant was deprived of his Sixth Amendment
guarantees as a result of trial counsel's failure to investigate
and deficient performance rendering the jury trial
fundamentally unfair.
III. STANDARD OF REVIEW
{¶ 7} A person convicted of a criminal offense "who claims that there was such a

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

under the Ohio Constitution or the Constitution of the United States" may file a petition
No. 22AP-180 4

asking the trial court to vacate the judgment or sentence. R.C. 2953.21(A)(1)(a)(i). Our

review of a trial court's decision to dismiss a postconviction relief petition without a hearing

involves a mixed question of law and fact, in which we " 'apply a manifest weight standard

in reviewing a trial court's findings on the factual issues underlying the substantive grounds

for relief, but we must review the trial court's legal conclusions de novo.' " State v. Vinson,

10th Dist. No. 20AP-536, 2021-Ohio-836, ¶ 9, quoting State v. Kane, 10th Dist. No. 16AP-

781, 2017-Ohio-7838, ¶ 9.

{¶ 8} When an individual who has taken a direct appeal files a postconviction relief

petition, it must be filed "no later than three hundred sixty-five days after the date on which

the trial transcript is filed in the court of appeals." R.C. 2953.21(A)(2)(a). In this case, the

trial transcript was filed in Black's direct appeal on November 6, 2019. Black filed his

petition to vacate his convictions on February 8, 2022; because this was more than one year

after the transcript was filed in his direct appeal, the petition was untimely.

{¶ 9} "[A] court 'may not entertain' an untimely or successive postconviction relief

petition unless the requirements of R.C. 2953.23(A)(1) or (2) are met." Vinson at ¶ 9,

quoting R.C. 2953.23(A). "Therefore, a petitioner's failure to satisfy R.C. 2953.23(A)

deprives a trial court of jurisdiction to adjudicate the merits of an untimely or successive

postconviction petition." State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36.

Whether a trial court has jurisdiction over an untimely petition for postconviction relief is

a question of law, which we review de novo. Vinson at ¶ 9.

IV. LEGAL ANALYSIS
{¶ 10} In his first assignment of error, Black argues the trial court erred by denying

his petition for postconviction relief without conducting an evidentiary hearing. Because

Black's petition was untimely, the trial court only had jurisdiction to consider the merits of
No. 22AP-180 5

the petition if the requirements of R.C. 2953.23(A)(1) or (2) were met. Apanovitch at ¶ 36.

Black did not rely on DNA testing to establish his innocence; therefore, R.C. 2953.23(A)(2)

is not relevant to his petition and we will focus solely on whether R.C. 2953.23(A)(1) was

satisfied. Under R.C. 2953.23(A)(1), a petitioner must demonstrate that he was

"unavoidably prevented from discovery of the facts upon which the petitioner must rely to

present the claim for relief" or that the United States Supreme Court recognized a new state

or federal right that applies retroactively to him. R.C. 2953.23(A)(1)(a). The petitioner also

must establish by clear and convincing evidence that, but for the alleged constitutional error

at trial, no reasonable factfinder would have found him guilty. R.C. 2953.23(A)(1)(b).

{¶ 11} Black asserts he was unavoidably prevented from discovering the facts

alleged in support of the claims asserted in his petition for postconviction relief. " 'The

"facts" contemplated by R.C. 2953.23(A)(1)(a) are the historical facts of the case, which

occurred up to and including the time of conviction.' " Vinson at ¶ 16, quoting State v.

Turner, 10th Dist. No. 06AP-876, 2007-Ohio-1468, ¶ 11. " 'The phrase "unavoidably

prevented" in R.C. 2953.23(A)(1)(a) means that a defendant was unaware of those facts and

was unable to learn of them through reasonable diligence.' " Id., quoting Turner at ¶ 11.

Thus, the exception provided in R.C. 2953.23(A)(1)(a) involves newly discovered evidence.

Id.

{¶ 12} Black generally alleged in his petition that A.S.'s trial testimony was false. He

asserted A.S. knew him before the incident and that they had done drugs together in the

past. Black claimed A.S. approached him on the day of the incident and agreed to have sex

in exchange for drugs. Black claimed he told his trial counsel about witnesses who would

testify to the existence of a friendly relationship between him and A.S. In the petition, Black

claimed there were affidavits from witnesses at the Sandpebble and from A.S.'s boyfriend,
No. 22AP-180 6

but no such affidavits were attached to his petition.1 Black alleged there was surveillance

video from the Sandpebble or the surrounding area that would exonerate him. Black also

asserted there was exculpatory material contained on a state laptop computer. Black

claimed his trial counsel failed to investigate the facts of the case or subject the state's

evidence to meaningful adversarial testing.

{¶ 13} On appeal, Black argues he was unavoidably prevented from discovering the

facts asserted in support of his petition due to the state's withholding of exculpatory

evidence and his trial counsel's failure to investigate and obtain the evidence on which he

now relies.

{¶ 14} Black asserts the state failed to produce two types of exculpatory evidence:

(1) surveillance video from the Sandpebble and surrounding buildings and (2) video or

audio evidence contained on a state laptop computer that contradicted A.S.'s testimony. As

discussed more fully below, Black has failed to demonstrate that any surveillance video

existed. Black claims there were surveillance cameras on the exterior of the Sandpebble

and nearby buildings. Black does not assert, however, that he became aware of the

existence of those purported cameras after his trial. Thus, Black would have known at the

time of his trial that these alleged cameras existed. Similarly, the trial transcript

demonstrates that an audio recording was played outside the presence of the jury to refresh

A.S.'s recollection of her prior statements. That recording appears to be the evidence

contained on a state laptop computer that Black claims was withheld. The record indicates

the state produced audio recordings of witness interviews in discovery. Because a portion

1 The only affidavits attached to the petition were made by Black and the "jailhouse lawyer" who assisted Black
in preparing the petition.
No. 22AP-180 7

of the recording was played to A.S. during the trial, Black necessarily was aware of this

evidence at the time of trial.

{¶ 15} Other than the alleged witness affidavits, it is apparent that all the facts

alleged in Black's petition were known or readily available to him at the time of trial. See

Vinson at ¶ 17 ("The facts supporting appellant's claim that the search warrant was defective

were, therefore, readily available to appellant prior to her prosecution and throughout the

criminal proceedings."); see also State v. Teitelbaum, 10th Dist. No. 19AP-137, 2019-Ohio-

3175, ¶ 14 (concluding petitioner was not unavoidably prevented from discovery of the facts

relied on in support of his claim because the fact that no warrant had been used to obtain

cell phone site location was apparent at the time of trial). Regarding the alleged witness

affidavits, Black's petition did not identify the purported witnesses or provide any

information about the contents of the alleged affidavits, and none of the alleged affidavits

were attached to the petition. Therefore, Black fails to demonstrate that these affidavits

contained any newly discovered evidence. Moreover, the trial court had no basis to

determine the credibility of these affidavits. See State v. Calhoun, 86 Ohio St.3d 279, 285

(1999) (setting forth factors to be considered in assessing credibility of supporting affidavits

in postconviction relief proceedings).

{¶ 16} Black failed to demonstrate that he was unavoidably prevented from

discovery of the facts relied upon in his petition; accordingly, we need not determine

whether he presented clear and convincing evidence that but for the alleged constitutional

error no reasonable factfinder would have found him guilty. See Turner at ¶ 18 ("Because

the two prongs set forth in R.C. 2953.23 are stated in the conjunctive, and we have found

appellant failed to satisfy the first prong under R.C. 2953.23(A)(1)(a), we need not address

whether appellant presented clear and convincing evidence demonstrating that no
No. 22AP-180 8

reasonable fact finder would have found him guilty in the absence of the alleged

constitutional error, pursuant to the second prong in R.C. 2953.23(A)(1)(b)."). Because

Black's petition was untimely and he failed to satisfy the requirements of R.C.

2953.23(A)(1), the trial court lacked jurisdiction to consider the merits of the petition and

did not err by denying it without an evidentiary hearing. Accordingly, we overrule Black's

first assignment of error.

{¶ 17} Notwithstanding our conclusion that the trial court lacked jurisdiction over

Black's petition, we will briefly consider the arguments asserted in support of his second

and third assignments of error.

{¶ 18} In his second assignment of error, Black asserts the trial court erred by

denying his petition because the state withheld exculpatory evidence. Black alleges there

were surveillance cameras inside and outside the Sandpebble and on the surrounding

buildings, including an exterior camera pointed toward the open field A.S. crossed to access

the Sandpebble. Black argues the police necessarily would have obtained video recordings

from those cameras as part of their investigation. He claims the video recordings would

have shown A.S. voluntarily approach him in the open field while he was smoking drugs

and engage in sexual acts with him in exchange for drugs. Black alleges his rights to due

process and a fair trial were violated by the state's failure to disclose this video surveillance

evidence.

{¶ 19} "[T]he suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution." Brady v.

Maryland, 373 U.S. 83, 87 (1963). See also State v. Johnston, 39 Ohio St.3d 48 (1988),

paragraph four of the syllabus (following Brady). To establish a Brady violation, a
No. 22AP-180 9

defendant must demonstrate that: (1) the prosecution withheld evidence, (2) the defense

was not aware of the evidence, and (3) the withheld evidence was material and exculpatory.

State v. Hawk, 10th Dist. No. 21AP-265, 2021-Ohio-4533, ¶ 20. See also State v. Bethel,

__ Ohio St.3d __, 2022-Ohio-783, ¶ 19, quoting Strickler v. Greene, 527 U.S. 263, 281-82

(1999) (" '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.' ").

{¶ 20} Implicit within the first element of a Brady claim is that the evidence

allegedly withheld must have actually existed.2 In this case, there is nothing other than

Black's unsupported allegations to establish that there was any video evidence from the

area around the Sandpebble. The police detective who investigated the case testified at trial

that he did not look for surveillance cameras around the open field. An item that could be

a surveillance camera can be seen on one of the crime scene area photos introduced at trial.

However, even if the item visible in that photograph was a surveillance camera, there is no

evidence it was operable or what was within the range of the camera. The investigating

detective testified that the photo depicted the front of a neighboring building and that the

open field area where the assault occurred was behind the building. Black has not provided

any evidence beyond his bare assertions to affirmatively demonstrate that there were any

surveillance cameras in the area or that any video evidence relevant to the charges against

him existed.

2A defendant may allege a Brady violation based on loss or destruction of exculpatory evidence; however, in
those cases the evidence must have actually existed at some point. See, e.g., State v. Walker, 10th Dist. No.
20AP-95, 2022-Ohio-1684, ¶ 34.
No. 22AP-180 10

{¶ 21} The Third District Court of Appeals rejected a similar claim, in which a

defendant asserted a Brady violation occurred when the prosecutor failed to disclose a

surveillance tape of the crime scene. State v. Lester, 3d Dist. No. 2-07-23, 2007-Ohio-5627,

¶ 15. The appellate court noted the appellant provided no proof that such a surveillance

tape actually existed and concluded it could not find a Brady violation where the allegedly

exculpatory evidence did not exist. Id. Likewise in this case, Black cannot establish a Brady

violation based solely on his unsupported assertion that exculpatory surveillance videos

could have existed without some evidence to suggest that such videos actually did exist.

{¶ 22} Accordingly, we overrule Black's second assignment of error.

{¶ 23} Black asserts in his third assignment of error that the trial court erred by

denying his petition because he was denied the effective assistance of counsel. Black claims

his trial counsel failed to investigate or present a meaningful defense on his behalf. Black

alleges he told his trial counsel that the sexual encounter with A.S. was consensual and that

he helped A.S. sell her purse to the bartender at the Sandpebble. Black maintains he

advised his counsel about these events so that counsel could obtain surveillance video from

in and around the Sandpebble. Black further alleges he gave his trial counsel the names of

individuals who were familiar with the friendly relationship between him and A.S. and

could testify about events on the relevant dates. Black claims his trial counsel's failure to

obtain surveillance video or subpoena favorable witnesses, along with the advice not to

testify on his own behalf at trial, constituted ineffective assistance.

{¶ 24} The state argues Black's ineffective assistance of counsel claim is barred by

res judicata because he was represented by different counsel in his direct appeal and could

have raised it as part of that appeal. However, Black's claim turns in part on what he

allegedly told his trial counsel, which would not be contained in the record on direct appeal.
No. 22AP-180 11

"When allegations of ineffective assistance of counsel hinge on facts not appearing in the

record, the proper remedy is a petition for post-conviction relief rather than a direct

appeal." State v. Davis, 10th Dist. No. 05AP-193, 2006-Ohio-5039, ¶ 19. See also State v.

Coleman, 85 Ohio St.3d 129, 134 (1999) ("Any allegations of ineffectiveness based on facts

not appearing in the record should be reviewed through the postconviction remedies of R.C.

2953.21."). Therefore, Black's ineffective assistance claim was properly brought as part of

his postconviction relief petition.

{¶ 25} A defendant asserting ineffective assistance of counsel must "demonstrate

that his trial counsel's performance was so deficient that it was unreasonable under

prevailing professional norms." State v. Battle, 10th Dist. No. 06AP-863, 2007-Ohio-1845,

¶ 13. The defendant also must establish a reasonable probability that, but for counsel's

deficient performance, the result of the proceeding would have been different. Id.

{¶ 26} "In a petition for post-conviction relief asserting ineffective assistance of

counsel, 'the petitioner bears the initial burden to submit evidentiary documents containing

sufficient operative facts to demonstrate the lack of competent counsel and that the defense

was prejudiced by counsel's ineffectiveness.' " Id. at ¶ 12, quoting State v. Jackson, 64 Ohio

St.2d 107 (1980), syllabus. " 'General conclusory allegations to the effect that a defendant

has been denied effective assistance of counsel are inadequate as a matter of law to impose

an evidentiary hearing.' " Id., quoting Jackson at 111.

{¶ 27} In Battle, the appellant, who had been convicted of multiple offenses

stemming from a robbery, filed a postconviction relief petition asserting ineffective

assistance of counsel. Id. at ¶ 3, 6. The petition claimed trial counsel was ineffective by

failing to call or contact certain witnesses; the petition included affidavits from the

appellant and four other individuals containing assertions about the appellant's
No. 22AP-180 12

whereabouts on the evening of the robbery. Id. at ¶ 6, 15. The trial court dismissed the

petition without a hearing. Id. at ¶ 7. On appeal, this court affirmed the trial court's

decision. Id. at ¶ 28. We held that the appellant's own self-serving affidavit was insufficient

to compel a hearing, and further noted that appellant's affidavit failed to explain whether

he informed his counsel about the witnesses in time to investigate their potential testimony.

Id. at ¶ 16. We concluded there was "nothing to indicate that appellant's trial counsel did

not investigate these matters, but instead, made a strategic decision not to call these

witnesses." Id. Further, we concluded that, even if the witnesses had testified at trial, there

was not a reasonable probability of a different result because of the overwhelming evidence

presented by the prosecution. Id. at ¶ 17.

{¶ 28} In this case, Black filed a self-serving affidavit in which he claimed he told his

trial counsel about potential witnesses and evidence in his favor. Black averred that his trial

counsel told him that the potential witnesses were not relevant to the case; this suggests

Black's trial counsel made a strategic decision not to call these individuals as witnesses at

trial. Black's affidavit alone was insufficient to compel a hearing on the postconviction

petition. Id. at ¶ 16. Further, unlike in Battle, Black's petition did not include any affidavits

from the alleged potential witnesses and failed to even identify them. Black generally

alleged the witnesses could give favorable testimony, but that general assertion alone did

not demonstrate a reasonable probability of a different result if those witnesses had been

called to testify at trial. Therefore, we cannot conclude the trial court erred by failing to

grant a hearing on Black's ineffective assistance of counsel claim.

{¶ 29} Accordingly, we overrule Black's third assignment of error.

V. CONCLUSION
No. 22AP-180 13

{¶ 30} For the foregoing reasons, we overrule Black's three assignments of error and

affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.
LUPER SCHUSTER, P.J., and KLATT, J., concur.
_____________