State v. Walton

[Cite as State v. Walton, 2023-Ohio-3872.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
Nos. 112127 and 112892
v. :

ALVIN WALTON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 26, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-05-466982-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sarah E. Hutnik, Assistant Prosecuting
Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellant.

KATHLEEN ANN KEOUGH, P.J.:

Defendant-appellant, Alvin Walton, appeals from the trial court’s

judgments denying his petition for postconviction relief and motion for leave to file

a motion for new trial. Finding no merit to the appeal, we affirm.
I. Trial Testimony and Jury Verdict

In 2005, Walton was charged with one count each of aggravated

murder and aggravated robbery for the murder of Van Echols, each count carrying

one- and three-year firearm specifications. He was also charged with one count of

having weapons while under a disability. The trial court’s journal entry denying

Walton’s petition for postconviction relief accurately set forth the evidence adduced

at trial and the jury’s verdict as follows:

At the time of his death, Echols was living with Veronica Malloy at 3239
East 49th Street in Cleveland. For about a year before Echols’s murder,
Malloy also knew Alvin Walton — who went by the nickname “Kato” —
as a person dealing drugs from an apartment across the street from her
house. On May 21, 2005, a little after midnight, Malloy heard a car
horn just outside her house. She looked out her window and saw a
pickup truck owned by an acquaintance, so she went outside to see
what was happening. When she got to the truck she saw that Walton
was driving the truck, not her friend. Once she realized it was [Walton],
she “turned around and ran inside the house and locked the door * * *
because I knew there were going to be problems.”

Walton followed her and began pounding on her front door, eventually
kicking it in and entering the house. He told Malloy he was looking for
Echols, and all she could tell him was that Echols was out at a bar, so
Walton settled in to wait. It was during this time that Walton handed
his business card to Malloy and her mother and told them [“I’m not
here to shoot him. I’m not here to hurt him. Would I be passing out my
business cards if I was?”]1 Soon the home phone rang. Echols was on
the other end of the line and Walton took the phone from Malloy and
began to tell Echols that “everything was cool” and he “just needed to
clean things up.” During that same call, Walton received a call on his
cell phone, and Malloy heard Walton say that Echols was coming down
Dolloff, one street over from East 49th. Soon thereafter, Echols arrived
at the broken front door and Walton went out the back door to chase
him. Malloy did not leave the house, but she heard three gun shots and

1 A peculiar comment because, as the trial court’s judgment entry noted, “no one

had said anything about shooting or hurting anyone.”
then she heard two vehicles pull away. At that point, she went outside
and saw Echols’s jacket in the driveway of the apartment across the
street. Malloy began to look for Echols; in the meantime, her mother
called the police.

Although [Malloy] could not see the shooting through her wall,
Deborah Peterson had an unobstructed view of the slaying. Peterson
lived at 3244 East 49th, across the street from Malloy. She testified
that at 3:35 a.m., she “woke up to just hard banging” and looked outside
to see two men on Malloy’s porch. After banging on Malloy’s door with
no answer, the men got into a truck and left. She soon heard yelling in
the street and looked out to see two men come off Malloy’s porch. One
of them — Echols, as it turned out, but Peterson only knew of him as
Veronica Malloy’s boyfriend — kept saying “I wouldn’t do you that
fucking way” while the other man repeated “you fucked me over,
mother fucker.” Echols then began to run and the other man ran after
and shot him. Under cross-examination by defense counsel, Peterson
— who is five feet and seven inches tall — acknowledged that the
shooter “was about my height.”

Peterson immediately called 911. During her trial testimony, she
described the shooter as a black man with a bald head and wearing all
black, but she admitted she did not see his face. She also testified that
a gold Ford Taurus drove up, in reverse, alongside the shooter right
after the first shot; then continued to drive next to him as he chased the
victim until both the shooter and the car were out of sight.

Her rendition of events during the 911 call was somewhat different
from her trial testimony. The entire 911 call was played at least twice
in the hearing of the jury while Peterson testified. During the call, she
said that the shooter got out of the gold Taurus before the shooting, but
in her testimony, she stood by her assertion that the gold car pulled up
after the first shot and there were only ever two men on the street, the
killer and the killed. But Peterson’s observation of the gold sedan was
important because Echols’s sister, Tina Echols, testified that the last
place her brother was before getting murdered was her house, and that
when he left her house, a gold four-door owned by Charles Pinson
“made a U-turn real fast in my parking lot and zoomed behind my
brother.”

Pinson, as it happens, was Alvin Walton’s best friend and roommate,
and had known Van and Tina Echols for a number of years. Indeed,
Pinson and Tina Echols dated for awhile, but that relationship ended
about a month before the murder when Van Echols and others robbed
 Pinson of money and drugs at Tina Echols’s house. After that robbery,
Pinson told Tina Echols that he was going to kill Van Echols.

One other fact about Charles Pinson was in evidence at trial: he is
“approximately five-six or five-seven with a bald head.”

When the police investigated the scene of the crime, they found a
quilted black jacket that Veronica Malloy identified as the same jacket
Walton was wearing when he broke into her house. A forensic
examination of the garment revealed that Walton’s DNA and gunshot
primer residue were on it. Additionally, cell phone records showed
calls between Pinson’s phone and Walton’s around the time of the
murder.

At the state of Ohio’s request, and over the defendant’s objection, the
court provided the jury with an instruction on accomplice liability.2
Nevertheless, the thrust of the prosecutors’ closing argument to the
jury was that Walton was the shooter.

Walton’s counsel, however, argued that Pinson shot Echols. The
defense also tried to persuade the jury that the shooter couldn’t have
been Walton by pointing out that Deborah Peterson said the killer was
five-foot-seven and “nobody in their right mind is going to confuse
Alvin Walton as five-foot-seven.”

The jury then returned verdicts of guilty on count one, murder under
R.C. 2903.02, the lesser included offense of aggravated murder as
charged, and count two burglary [the lesser included offense of
aggravated burglary, as charged]. The jury, however, found Walton not
guilty of all firearm specifications. Count three, having a weapon under
a disability, was tried to the court and the judge found Walton guilty on
that count. The defendant was then sentenced to a prison term of life
with first parole eligibility after 15 years on the murder, and concurrent
sentences of eight and five years on the other two counts. He remains
in prison today.

2 In the state’s final argument to the jury, the prosecutor told the jury that “if it

happened the way defense counsel suggested it did, this defendant is still guilty when you
go through the law of aider and abettor. He’s the one that went there. He’s the one that
got Van back to the killing site. He’s the one that’s chasing him down the street. He’s the
one that’s been looking for him for weeks. He — if you believe his theory, he’s still guilty.”
(Trial Transcript, p. 2267-2268.)
(10/20/22 Judgment Entry, p. 5-8.)

II. Petition for Postconviction Relief and Motion for Leave to File a
Motion for New Trial

This court affirmed Walton’s convictions on appeal. State v. Walton,

8th Dist. Cuyahoga No. 88358, 2007-Ohio-5070. Walton’s discretionary appeal of

that decision was denied by the Ohio Supreme Court, as was his application for

reopening. See State v. Walton, 117 Ohio St.3d 1408, 2008-Ohio-565, 881 N.E.2d

275, and State v. Walton, 8th Dist. Cuyahoga No. 88358, 2009-Ohio-1234,

respectively. Following the appellate litigation, Walton filed numerous pro se

motions in the trial court. In September 2019, he filed a motion for leave to file a

motion for new trial and, in October 2019, a petition for postconviction relief.

Both motions claimed that Walton was entitled to a new trial because

the state had suppressed exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).3 Specifically, Walton alleged that

despite the state’s assertion in its discovery response that “[n]o exculpatory material

[was] available to or in the possession of the Prosecuting Attorney,” the state had

not disclosed prior to trial the existence of police reports regarding interviews with

Larenzo Ealom and Walter Doss, two eyewitnesses to the shooting. Walton alleged

3 In Brady, the Supreme Court of the United States held that a state violates the

Fourteenth Amendment to the United States Constitution when it “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).
that he had only recently obtained the police reports through a public-records

request.

Exhibit C to Walton’s petition was a typed statement dated June 1,

2005, prepared by Cleveland police detective Michael Beaman, signed by Ealom.

According to Ealom’s statement, as he and Doss were walking down an alley near

East 49th Street, they heard two gunshots. Ealom said he then looked and saw “a

guy named Van” being chased and shot at by a male who had a gun in his hand.

Ealom said the gunman ran after Echols and then Ealom heard two more shots.

According to Ealom, he and Doss ran but the male with the gun caught up with them

at some point and pointed the gun at them. Ealom said he and Doss ran to his house,

where he called the police. He then showed the police where the victim’s body was.

Ealom described the shooter as “a dark skin guy, dressed all in black * * * he might

have been bald headed, but I could not tell for sure because he had a hood on.”

Ealom acknowledged that he initially told the police that he thought the shooter was

“a male I knew named Anthony who lived in my hood, but after I thought about it, I

knew it wasn’t Anthony.” Ealom’s statement did not describe the shooter’s height.

Exhibit D to Walker’s petition were supplemental police investigation

reports dated May 21, 2005, prepared by Cleveland police detectives Sahir Hasan

and Beaman summarizing their interviews with Ealom and Doss, both of whom

reported observing the shooter chasing and shooting at the victim. Relevant to

Walton’s petition, in the summary of Doss’s statement, the supplemental report

stated, “This male and LARENZO EALOM describes the suspect as being a
B/M/AGE UNKNOWN, 5’07” TALL, MEDIUM BUILD, WEARING ALL BLACK

CLOTHING.” (Emphasis sic.)

Although the record reflects that Ealom and Doss were both listed on

the witness list provided to defense counsel by the prosecutor prior to trial, in his

petition, Walton asserted that the undisclosed police investigation reports contained

exculpatory facts, including “two previously undisclosed eyewitnesses” to the

shooting, one who said he initially thought the shooter was Anthony, and both who

described the shooter’s height as 5’7” tall. Walton, who is 6’2” tall, alleged that but

for this newly discovered evidence, he would not have been convicted.

III. Evidentiary Hearing

The trial court held an evidentiary hearing on Walton’s petition for

postconviction relief and motion for leave to file a motion for new trial. The trial

court admitted the transcript of Walton’s third trial into evidence.4 In addition, the

case file of Walton’s trial counsel James McDonnell was subpoenaed in connection

with the petition.5 McDonnell’s file included five pages of detailed handwritten

notes summarizing witness statements. One of the handwritten pages stated, “2

guys in alley see shooting & knew D. Lorenzo _____ _____ _____ They insist

police look for body.”

4 The first two trials ended in mistrials.

5 Walton’s other trial counsel, Kevin Cafferkey, informed the parties that he no

longer has a case file relating to Walton.
 Walton submitted the following documentary evidence in support of

his petition: (1) his pretrial motion for discovery and to examine exculpatory and

mitigating material dated June 21, 2005; (2) the state’s discovery response, dated

July 13, 2005, in which it listed the witnesses it intended to call at trial, including

Ealom and Doss, with their addresses, and indicated that “[n]o exculpatory material

is available to or in the possession of the Prosecuting Attorney”; (3) Ealom’s June 1,

2005 statement to Detective Beaman; (4) the May 1, 2005 Cleveland Police

Department Supplementary Reports regarding Ealom and Doss; (5) a Cleveland

Police Department Offense Report dated June 7, 2005, indicating that Walton is 6’2”

tall; (6) Walton’s affidavit averring he had not seen the supplementary police reports

prior to or during trial; and (7) an August 19, 2005 report from Dennis Murphy, a

private investigator appointed for Walton at the state’s expense, in which Murphy

stated that he had attempted to contact Ealom at the address on the state’s discovery

response but was advised that he did not live at that address and that he had found

the address given for Doss to be a “bad address.” (Tr. 49-50.)

The state also submitted various documentary evidence, including

subpoenas issued by the state for Ealom and Doss to appear at all three trials,6 the

prosecutor’s handwritten case notes, and a Cleveland Police Department “Divisional

Information” form dated May 21, 2005, prepared by Cleveland police officer Donald

Nuti, stating that he had responded that day to a call for shots fired near East 49th

6 They did not appear for any of the trials.
Street and interviewed various witnesses, including Ealom. Nuti’s report stated that

Ealom said he was walking on East 49th Street when he heard arguing, looked over,

and saw a male he knew as “Al” tell another male “don’t run mother fucker, don’t

run,” and then saw “Al” shoot the victim three times, and twice more after the victim

ran into a nearby backyard and fell. Ealom told the detective that “Al” then looked

over and saw him and pointed the gun at him before Ealom ran away. (Tr. 79-80.)

George Rukovena, the lead prosecutor on the case, testified at the

evidentiary hearing that although he did “not have an independent recollection”

regarding discovery in the case, his review of the case log demonstrated that there

were a number of pretrials in the case and that he “gave complete oral discovery in

accordance with Criminal Rule 16 and the methods and practices of the office at that

time.” (Tr. 87.) He testified that although it was not the state’s discovery practice to

give copies of documents in its possession to defense counsel, the methods and

practices in 2005 were “at the pretrials to provide oral discovery, summarizing the

case and the evidence to be presented at trial.” (Tr. 87, 91.) He testified that

although he would not give physical copies of police reports or statements to defense

counsel, he would often “provide defense counsel an opportunity to review witness

statements for the sake of expediency” and from time to time, he would read police

reports verbatim to defense counsel. (Tr. 88-89.) Rukovena testified further that

he had a “good working relationship” with defense counsel McDonnell and

Cafferkey and that “everything was straightforward. There was no gamesmanship.
The facts of the case were not shaded. What was contained in the facts was revealed

to defense counsel in an unbiased or unedited fashion.” (Tr. 89.)

On cross-examination, Rukovena admitted that he had no

independent recollection of seeing the supplemental police reports indicating that

Ealom and Doss identified the shooter as 5’7” tall and no independent recollection

of telling defense counsel about those reports. Rukovena admitted further that the

box was checked on the state’s discovery response indicating that the state did not

have any exculpatory evidence in its possession. (Tr. 93.)

Andrew Nichol, the assistant prosecuting attorney at Walton’s trial,

testified that in 2005 and 2006, to obtain discovery, defense counsel would take

notes as the prosecutors read witness statements and police reports to them. (Tr.

101.) The only paper copies given to defense counsel were the defendant’s or co-

defendant’s statements. Id. Nichol testified that he did not conduct any of the

discovery in this case and never spoke with Ealom or Doss. (Tr. 107, 109.)

Walton’s defense counsel, McDonnell, testified that he had “no idea”

whether he was ever shown Exhibits C or D to Walton’s petition, but that Rukovena

was “one of the [prosecutors] that revealed everything, held nothing back, whether

it was good or bad.” (Tr. 180, 204.) He testified further that the defense was aware

of Ealom and Doss prior to trial and that Murphy, their investigator, had

unsuccessfully attempted to contact them. (Tr. 183.) McDonnell also testified that

the handwritten notes from his file stating “2 guys in an alley see shooting and know

D,” etc., were from a pretrial, date unknown. (Tr. 185.) He acknowledged that at
some point during discovery, he was made aware that Ealom had identified Walton

as the shooter (tr. 186), but said that he did not know if the prosecutor ever made

him aware that Ealom described the shooter as 5’7” tall. (Tr. at id.) McDonnell

testified, however, that knowing that Ealom had identified Walton as the shooter,

he would not have put Ealom on the stand if he had known that Ealom had identified

the shooter as 5’7” tall because despite the height discrepancy between the shooter

and Walton, Ealom’s testimony would “put Walton at the scene by someone who

knew him.” (Tr. 187.)

On cross-examination, McDonnell testified that “based upon [his]

recollection and the way the cases went it would not have helped Mr. Walton” to put

Ealom on the stand because his “recollection of this case is that everybody knew

everybody.” (Tr. 201.) McDonnell explained that witnesses “will first say something

and then change their testimony,” (tr. at id.), and that putting Ealom on the stand

would have allowed the prosecutor to bring out the fact that Ealom had first

identified the shooter as “Al,” thus helping the state make its case. (Tr. 202.)

IV. The Trial Court Denies the Petition and Motion for Leave

After the hearing, the trial court issued a judgment entry denying

Walton’s petition for postconviction relief. The court rejected the state’s argument

that the disclosure of Ealom’s and Doss’s names on the witness list was enough to

demonstrate that Walton was not unavoidably prevented from discovering the

evidence supporting his position. Nevertheless, the court found that the alleged

Brady violation did not happen because “the evidence was not suppressed and the
handwritten notes of Walton’s trial counsel, McDonnell, prove it.” The court

explained:

As already described above, those notes first say “2 guys in alley see
shooting.” A review of Ealom’s signed June 1, 2005 statement attached
as exhibit C to Walton’s petition for postconviction relief shows that he
said “I was walking down the alley with my friend Walter.” He then
goes on to say that “I saw a guy behind Van with a gun in his hand,
running after Van shooting at him.” McDonnell’s first note is a succinct
and accurate summary of those portions of Ealom’s statement. His
note goes on to say “Lorenzo _______”. Unquestionably this is a
reference to the name of witness Larenzo Ealom, despite the
misspelling of his first name. That portion of the note is followed by
two lines, presumably representing the name of the second of the “2
guys in the alley,” i.e., Walter Doss. Why McDonnell didn’t write down
the name can only be speculated about, but it is fair to conclude that he
was given a name, otherwise there would not be any lines representing
the name. The final portion of the note says “they insist police look for
body.” This is a direct paraphrase of the portion of Ealom’s written
statement where he says “I called the police and told them what
happened and showed them where Van’s body was.” These notes leave
no doubt that the witness statements were, at a minimum, orally
disclosed to Walton’s counsel during pretrial discovery.

(10/20/22 Judgment Entry, p. 11.)

The trial court further found that “the inferential evidence” supported

a finding that Ealom’s and Doss’s statements were disclosed to defense counsel. The

court reasoned:

If the suppression was intentional, why would a prosecutor intent on
concealing evidence give a defendant the names and addresses of the
witnesses who could supply that evidence and then subpoena those
very witnesses for trial testimony? And if the suppression was
inadvertent, why would a lazy prosecutor orally summarize every bit of
the police investigation to defense counsel, including witness
statements — as reflected by McDonnell’s five pages of handwritten
notes7 — with the single exception of the version of events given by two

7 Exhibit 15 from the hearing on Walton’s petition.
 witnesses? Finally, why would defense counsel instruct their
investigator to seek out Doss and Ealom for statements — to the
exclusion of almost every other witness in the case8 — if they didn’t
have some knowledge of the substance of their statements and the
possibility that they might provide information useful to the defense?
These questions have no plausible answers that could buttress Walton’s
claim.

Id. at p. 11-12.

The trial court found that “McDonnell’s thorough notes” also defeated

any contention that the shooter’s height was not disclosed even though the notes

contain no mention of height. Id. at p. 12. The court noted that in her 911 report,

which Walton does not claim was not disclosed, Peterson described the shooter as

5’7” tall, and as evidenced by defense counsel’s first question to Deborah Peterson

on cross-examination at the first trial — “Do you recall telling the police that the

person who did the shooting was 5’7” and stocky?” — “defense counsel obviously

knew through pretrial discovery that Peterson had described the shooter as 5’7”.”

Id. Accordingly, the trial court concluded that “the specifics of McDonnell’s notes

notwithstanding, there is no reason to believe that the witnesses’ estimates of the

suspect’s height were omitted from that disclosure.” Id.

The trial court also found that even if Walton could prove the evidence

had been suppressed, there was no reason to believe that the evidence, in the context

of the entire record and the jury’s verdict, was exculpatory, nor that the result at trial

would have been any different if the evidence had been disclosed. The court found

8 Murphy, the investigator, appears to have been asked to interview only six

prospective witnesses from a list of about 44.
that Walton’s argument that Ealom’s and Doss’s description of the shooter as 5’7”

tall was unquestionably exculpatory because he is 6’2” tall “may be true in the

absence of any other evidence,” but the jury in this case heard Peterson’s testimony

that the shooter was 5’7” tall and nevertheless, returned a guilty verdict. The court

concluded that “[t]he difference, then, between the described height of the killer and

Walton’s height wasn’t enough to exculpate Walton in the minds of the 12 actual

jurors, which is better evidence of the effect of the testimony than Walton’s surmise.”

Id. at p. 13.

The trial court found that even more importantly, Walton’s argument

ignored the actual jury verdicts, which included not guilty findings on the firearm

specifications. The court explained that “[t]he only reasonable inference from that

finding is that the jury rejected the contention that Walton actually shot Van Echols

but [found] that he was still guilty of murder as an aider and abettor, presumably to

Charles Pinson.” Id. The court reasoned, “[A] defendant’s liability as an accomplice

to a principal offender is unrelated to any height, weight, or gender difference

between co-conspirators, and any such difference in this case must have been

rejected by the jury as inconsequential in the face of every other bit of evidence

proving Walton’s involvement.” Id.

In summary, the trial court found that the evidence at issue was not

exculpatory, the evidence was disclosed to Walton through his defense counsel, and

even assuming the evidence was not disclosed, Walton was not prejudiced because
there is no reasonable probability that the result of the trial would have been any

different if it had been disclosed. Id. at p. 14.

The trial court also denied Walton’s motion for leave to file a motion

for new trial, finding that the motion was untimely under Crim.R. 33(B) because

Walton was not unavoidably prevented from discovering the evidence he relies upon

to support his motion for new trial. This appeal followed.

V. Law and Analysis

A. Petition for Postconviction Relief

In his first assignment of error, Walton contends that the trial court

erred in finding that he did not prove a Brady violation. In his second assignment

of error, Walton contends that the trial court erred in denying his petition for

postconviction relief because he established a Brady violation. Because they are

related, we consider these assignments of error together.

Under R.C. 2953.21:

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

A petition for postconviction relief is a collateral civil attack on a

criminal judgment, not an appeal of the judgment. State v. Lenard, 8th Dist.

Cuyahoga No. 108646, 2020-Ohio-1502, ¶ 8, citing State v. Steffen, 70 Ohio St.3d

399, 410, 639 N.E.2d 67 (1994). It is a means to resolve constitutional claims that
cannot be addressed on direct appeal because the evidence supporting the claims is

outside the record. State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975).

Walton filed his petition for postconviction relief approximately 12

years after the trial transcript in his direct appeal was filed in the court of appeals;

his petition is therefore untimely, a fact he does not dispute. See R.C. 2953.21(A)(2).

R.C. 2953.21(A) precludes the trial court from entertaining an untimely petition for

postconviction relief unless the petition meets two conditions. First, the petitioner

must show either that he was unavoidably prevented from discovering the facts

upon which he relies in his petition, or that the United States Supreme Court has

recognized a new federal or state right that applies retroactively to the petitioner.9

R.C. 2953.23(A)(1)(a). Second, the petitioner must show by clear and convincing

evidence that a reasonable factfinder would not have found him guilty but for the

constitutional error at trial. R.C. 2953.23(A)(1)(b).

Because the timeliness requirement of R.C. 2953.23 is jurisdictional,

a trial court does not have jurisdiction to entertain an untimely filed petition for

postconviction relief that does not meet the exceptions set forth in

R.C. 2953.23(A)(1). State v. Barrow, 8th Dist. Cuyahoga No. 108832, 2020-Ohio-

3719, ¶ 7, citing State v. Kleyman, 8th Dist. Cuyahoga No. 93896, 2010-Ohio-3612,

¶ 35. Typically, a reviewing court reviews a trial court’s decision granting or denying

9 Walton does not claim the existence of a new right in his petition; accordingly,

the only focus is on whether he was unavoidably prevented from discovering the evidence
upon which he now relies.
a petition for postconviction relief for an abuse of discretion. State v. Gondor, 112

Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. However, whether the trial

court possessed subject-matter jurisdiction to entertain an untimely petition for

postconviction relief is a question of law, which we review de novo. State v.

Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 24.

To establish a due process violation under Brady, the defendant must

demonstrate that (1) favorable evidence, either exculpatory or impeaching; (2) was

willfully or inadvertently withheld by the state; and (3) the defendant was prejudiced

thereby. Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166

(2004), citing Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d

286 (1999).

Favorable evidence is material, and constitutional error results from

its suppression, “‘if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.’”

State v. Royster, 2d Dist. Montgomery No. 26378, 2015-Ohio-625, ¶ 16, quoting

United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

“A reasonable probability does not mean that the defendant ‘would more likely than

not have received a different verdict with the evidence,’ only that the likelihood of a

different result is great enough to ‘undermine * * * confidence in the outcome of the

trial.’” Lemons v. State, 2020-Ohio-5619, 164 N.E.3d 538, ¶ 65 (8th Dist.), quoting

Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The

defendant bears the burden of demonstrating that a Brady violation rises to the level
of a denial of due process. State v. Glover, 2016-Ohio-2833, 64 N.E.3d 442, ¶ 35

(8th Dist.).

For the trial court to have jurisdiction to entertain a Brady claim in

an untimely petition for postconviction relief, the petitioner must first establish that

he was unavoidably prevented from discovery of the facts on which he relies. State

v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 21, citing R.C.

2953.23(A)(1)(a). The petitioner 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 petitioner relies. Id. at ¶ 25.

As support for his assertion that the subject evidence was suppressed,

Walton argues that neither the prosecutor nor defense counsel had any independent

recollection that the statements of Ealom and Doss identifying the shooter as 5’7”

tall were provided to defense counsel, and thus, the trial court’s conclusion that the

evidence was disclosed was mere speculation. See State v. Buehner, 8th Dist.

Cuyahoga No. 109699, 2021-Ohio-4435, ¶ 57, 62 (“In the absence of specific

recollections or documentary evidence to establish clear disclosures,” court declined

to reject the petitioner’s Brady claims merely because the prosecutor “had no reason

to believe he would not have disclosed the witness statements pursuant to his

common practice of meticulously ready each statement to counsel.”).

He further contends that despite the trial court’s conclusion

otherwise, McDonnell’s handwritten notes actually prove that Ealom’s and Doss’s

witness statement were not provided to defense counsel. As support for this
contention, he points out that the notes do not specifically mention that Ealom and

Doss identified the shooter as 5’7” tall. He also argues that the first page of the

supplementary police report gives Ealom’s address as 3186 East 49th Street but on

all other discovery documents, Ealom’s address appears as 3324 East 49th Street.

Walton notes that Murphy went to the 3324 East 49th Street address to talk to

Ealom but was told he did not live at that address and contends that if the police

report had been disclosed in its entirety to defense counsel, the investigator would

have tried to reach Ealom at the alternative address.

Walton also contends that it is apparent that defense counsel was not

told that Ealom and Doss had identified the shooter as 5’7” tall, as specified on the

supplemental police reports, because counsel did not use that information at trial.

See State v. Larkins, 8th Dist. Cuyahoga No. 82325, 2003-Ohio-5928 (where state’s

witnesses testified that it was the prosecutor’s “habit and custom” to be open in

discovery and to read police reports and allow defense counsel to look at the file, but

defense counsel affirmatively testified that he was not provided the exculpatory

evidence from the newly discovered police reports and would have incorporated the

evidence into his defense at trial, appellate court affirmed the trial court’s ruling

granting motion for new trial on the basis of newly discovered evidence, agreeing

that the most persuasive indication that the defense did not possess the evidence

was that it did not use it at trial).

We are not persuaded and agree with the trial court that Walton did

not establish that any evidence was suppressed, either purposely or inadvertently.
We recognize that Rukovena did not specifically remember disclosing the disputed

evidence and McDonnell did not know whether he was ever given the evidence.

However, as the trial court found, McDonnell’s detailed handwritten notes, which

he acknowledged were from a pretrial, demonstrate that Ealom’s witness statement

and the supplemental police reports were disclosed to defense counsel, even though

they do not include a specific mention of the shooter’s height as 5’7” tall.

McDonnell’s note that “2 guys in an alley see shooting” accurately

summarizes Ealom’s June 1, 2005 witness statement, as well as Ealom’s and Doss’s

reports in the supplemental police reports that they were walking in an alley and saw

the suspect chasing and shooting at the victim. The name “Lorenzo” followed by a

line, and the two lines following indicate that McDonnell was given the names of

Ealom and Doss, although it is unclear why McDonnell did not write down the full

names. McDonnell’s note that “[t]hey insist police look for body” accurately

summarizes Ealom’s June 1, 2005 written statement, in which he said, “I called the

police and told them what happened and showed them where Van’s body was.”

Although McDonnell’s notes do not list the height of the shooter, we agree with the

trial court that it is inconceivable that a prosecutor would relay, in detail, police

reports and witness statements, with the single exception of two witnesses’

description of the shooter. Furthermore, why would the prosecutor disclose that

Deborah Peterson had described the shooter as 5’7” tall but then not disclose that

Ealom and Doss gave a similar physical description of the shooter? And, as the trial

court reasoned, why would a prosecutor intent on concealing evidence give the
defense the names and addresses of the witnesses who could supply the allegedly

concealed evidence and then subpoena those witnesses for trial?

Thus, the documentary and inferential evidence demonstrate that the

disputed evidence was not suppressed. And because no evidence was suppressed,

Walton failed to demonstrate that he was unavoidably prevented from discovering

the facts upon which he relies in his petition, as required by R.C. 2953.23(A)(1)(a).

Nevertheless, even assuming that Ealom’s and Doss’s identification

of the shooter as 5’7” tall, and Ealom’s statement that he initially thought the shooter

was Anthony were suppressed, Walton did not demonstrate, pursuant to R.C.

2953.23(A)(1)(b), that no reasonable factfinder would have found him guilty but for

constitutional error at trial. As the Supreme Court of Ohio stated in Bethel, “this

question goes to the heart of Brady’s third prong, which requires [Walton] 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.’” Bethel, 167 Ohio

St.3d 362, 2022-Ohio-783, 192 N.E.3d 47, at ¶ 31, citing Kyles, 514 U.S. at 433, 116

S.Ct. 1555, 131 L.Ed.2d 490, quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375, 87

L.Ed.2d 481.

The Brady standard does not require Walton to show that the

disclosure of the disputed evidence would have resulted in his acquittal. Bethel at

¶ 32, citing Kyles at 434. Rather, he must prove that “in the context of the entire

record,” United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342
(1976), suppression of the evidence “undermines confidence in the outcome of the

trial.” Bethel at id., citing Kyles at 434, quoting Bagley at 678.

Walton cannot make such a showing because, as the trial court found,

the jury heard evidence that the shooter was 5’7” tall but did not acquit him; instead,

the jury found him guilty as an aider and abettor to Echols’s murder. We disagree

with Walton’s contention that this is “a wholly unfounded assumption.” As this

court stated in its decision regarding Walton’s challenge on appeal to the propriety

of the aider-and-abettor jury instructions at trial, “although defense counsel at trial

pursued the theory that Pinson actually committed the murder,”

defense counsel conceded in opening argument that Walton was at the
scene when the crime occurred and that Walton was attempting to
recover Pinson’s money and drugs from Echols. * * * Although a
witness testified that Walton fired the first shot at Echols, it is unclear
who fired the second and third shots and which shot killed Echols.
Although the state concedes it consistently pursued Walton as the
principal offender, we find that the evidence presented at trial also
supported an instruction on aiding and abetting.

Walton, 8th Dist. Cuyahoga No. 88358, 2007-Ohio-5070, at ¶ 19, 22. It is not

“wholly unfounded” to assume that the jury followed its instructions on aiding and

abetting. By finding Walton not guilty of the firearm specifications but guilty of

murder, it is apparent that the jury believed that even if Walton did not shoot Echols,

he aided someone else, presumably Pinson, in killing him.

In considering whether the result of the proceeding would have been

different had the evidence been disclosed to the defense, “the question [we must ask]

is whether we can have confidence in the jury’s verdict,” even assuming the
prosecution suppressed Ealom’s and Doss’s description of the shooter and Ealom’s

statement that he initially thought the shooter was Anthony. Bethel, 167 Ohio St.3d

362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 34, citing Kyles, 514 U.S. at 434, 116 S.Ct.

1555, 131 L.Ed.2d 490.

We conclude that we can. The jury heard Deborah Peterson’s

testimony that the shooter was 5’7” tall, as well as defense counsel’s argument that

Walton was not the killer because “nobody in their right mind is going to confuse

Alvin Walton as five-foot-seven.” Two more witnesses testifying to the shooter’s

height as 5’7” tall or one witness testifying that he initially mistakenly thought the

shooter was Anthony would not have changed the jury’s verdict that Walton was an

accomplice to Echols’s murder because, as the trial court found, Walton’s liability as

an accomplice is unrelated to his height or to a witness’s initial mistaken belief about

the identity of the shooter. There is simply no reason to believe that the allegedly

suppressed evidence would have changed the result of the trial in any way, especially

in light of the defense’s concession that Walton was at the scene of the crime

attempting to recover money and drugs from Echols.

Furthermore, Ealom’s and Doss’s description of the shooter as 5’7”

tall would have been merely cumulative to Deborah Peterson’s testimony that the

shooter was 5’7” tall. “There is no Brady violation ‘if the evidence that was allegedly

withheld is merely cumulative to evidence presented at trial.’” Buehner, 8th Dist.

Cuyahoga No. 109699, 2021-Ohio-4435, at ¶ 42, quoting State v. Bonilla, 2d Dist.

Greene No. 2008 CA 68, 2009-Ohio-4784, ¶ 26. Under the Brady standard, a
petitioner must prove that in the context of the entire record, suppression of the

subject information undermines confidence in the outcome of the trial. Bethel at

¶ 34, citing Agurs, 427 U.S. at 112, 96 S.Ct. 2392, 49 L.Ed.2d 342. On this record, it

is apparent that the subject evidence was immaterial for Brady purposes because its

disclosure would have been cumulative to other evidence at trial and would not have

changed the result at trial in any way.

In sum, Walton has not proven a Brady violation, nor shown that he

was unavoidably prevented from discovering the facts upon which he relies in his

petition and by clear and convincing evidence that no reasonable factfinder would

have found him guilty as an aider and abettor but for constitutional error at trial, as

required by R.C. 2953.23(A)(1). Therefore, the trial court lacked jurisdiction to

entertain Walton’s untimely petition and properly denied it.10 The first and second

assignments of error are overruled.

10 In its journal entry denying Walton’s petition, the trial court stated that it was

combining a decision on the merits of the petition with its decision on the timeliness of
the petition because the disposition of whether there was a Brady violation would “almost
mostly” decide the merits of the petition. (10/20/2022 Journal Entry, p. 10). A trial court
has no jurisdiction to consider the merits of an untimely petition, however, unless the
requirements of R.C. 2953.23 have been established. Nevertheless, the trial court
correctly denied the petition because Walton failed to demonstrate that he met the
requirements of R.C. 2953.23(A)(1) to allow the court to consider the merits of the Brady
claim in his untimely petition.
 B. Motion for Leave to File a Motion for New Trial

In his third assignment of error, Walton contends that the trial court

erred in denying his motion for leave to file a motion for new trial because he

established a Brady violation.

Motions for a new trial are governed by the framework provided in

Crim.R. 33. Crim.R. 33(B) requires a motion for a new trial to be made within 14

days after a verdict is rendered. If a motion for a new trial is made on grounds of

newly discovered evidence, the motion must be filed within 120 days after the day

the verdict is rendered. Id. A defendant may file a motion for a new trial outside the

120-day deadline only by leave of court and only if “it is made to appear by clear and

convincing proof that the defendant was unavoidably prevented from the discovery

of the evidence upon which he must rely.” Id. Because the 120-day deadline has

expired, Walton had to establish by clear and convincing evidence that he was

unavoidably prevented from discovering the subject evidence as a predicate for

obtaining leave. State v. Shabazz, 8th Dist. Cuyahoga No. 100623, 2014-Ohio-3142,

¶ 9.

We review the trial court’s ruling denying the motion for leave to file

a motion for new trial under the abuse-of-discretion standard. State v. Gray, 8th

Dist. Cuyahoga No. 92646, 2010-Ohio-11, ¶ 19. “‘Abuse of discretion’ is a term of

art, describing judgment neither comporting with the record, nor reason.” Klayman

v. Luck, 8th Dist. Cuyahoga Nos. 97074 and 97075, 2012-Ohio-3354, ¶ 12, citing

State v. Ferranto, 112 Ohio St. 667, 676-677, 148 N.E. 362 (1925). “‘A decision is
unreasonable if there is no sound reasoning process that would support that

decision.’” Klayman at id., quoting AAAA Ent. Inc. v. River Place Comm. Urban

Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

The trial court denied Walton’s motion for leave to file a motion for

new trial upon finding that he was not unavoidably prevented from discovering the

evidence he relies upon to justify the motion for new trial. We find no abuse of

discretion.

“The ‘unavoidably prevented’ requirement in Crim.R. 33(B) mirrors

the ‘unavoidably prevented’ requirement in R.C. 2953.23(A)(1).” Bethel, 167 Ohio

St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 59, quoting State v. Barnes, 5th

Dist. Muskingum No. CT 2017-0092, 2018-Ohio-1585, ¶ 28. As discussed above,

because the state did not suppress Ealom’s witness statement and the supplemental

police reports, Walton failed to establish that he was unavoidably prevented from

discovering the evidence upon which he now relies. Walton also failed to establish

that the allegedly suppressed evidence would have changed the result of the trial in

any way. Accordingly, the trial court did not abuse its discretion in denying his

motion for leave to file a motion for new trial. The third assignment of error is

overruled.

C. Clear and Convincing Evidence

In his fourth assignment of error, Walton contends that the trial court

erred in denying his petition for postconviction relief and motion for leave to file a

motion for new trial because the trial court’s judgments were “based on speculation
that was not supported by the record.” Specifically, Walton contends that the trial

court’s conclusion that McDonnell’s handwritten notes demonstrated that Ealom’s

witness statement and the supplemental police reports were disclosed to defense

counsel and that he was therefore not unavoidably prevented from discovering the

information contained therein, was not based on any credible evidence but merely

speculation. We disagree.

As discussed above, the notes contain information that accurately

summarizes both Ealom’s witness statement and the supplemental police reports.

Accordingly, no layering of inferences is required to conclude that the prosecutor

disclosed the statements and reports to defense counsel. The fourth assignment of

error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant 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.

----------------------------------------------------------

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR