[Cite as State v. Bethel, 2023-Ohio-4843.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 23AP-333
(C.P.C. No. 00CR-6600)
v. :
(ACCELERATED CALENDAR)
Robert W. Bethel, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 29, 2023
On brief: [Janet Grubb, First Assistant Prosecuting
Attorney], and Seth L. Gilbert, for appellee.
On brief: Robert W. Bethel, pro se.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Defendant-appellant, Robert W. Bethel, appeals from a judgment of the
Franklin County Court of Common Pleas, denying postconviction relief. For the following
reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 25, 1996, appellant shot and killed James Reynolds and his girlfriend
Shannon Hawks. Appellant was convicted of two counts of aggravated murder after a jury
trial and sentenced to death. The most significant evidence tying appellant to the murders
of Reynolds and Hawks was a confession appellant had proffered as part of a plea deal to
avoid the death penalty. The plea deal was contingent on appellant’s willingness to testify
against fellow gang member Jeremy Chavis, but when appellant later refused to do so, the
deal fell through, and appellant’s confession was used against him at trial. At trial,
No. 23AP-333 2
appellant testified he and Chavis were at appellant’s mother’s house when Reynolds and
Hawks were believed to have been killed.
{¶ 3} The Supreme Court of Ohio affirmed the convictions and death sentence in
appellant’s direct appeal. State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853. Appellant’s
application to reopen the appeal was denied without opinion. State v. Bethel, 114 Ohio
St.3d 1503, 2007-Ohio-4285.
{¶ 4} In addition to his direct appeal to the Supreme Court, in 2005, appellant
asserted 23 grounds for relief in a timely filed petition for postconviction relief. The trial
court rejected appellant’s claims and dismissed his petition. This court affirmed the
dismissal of that petition in State v. Bethel, 10th Dist. No. 07AP-810, 2008-Ohio-2697
(“Bethel I”).
{¶ 5} In 2009, appellant filed a motion for leave to file a motion for a new trial
alleging a Brady violation. Brady v. Maryland, 373 U.S. 83 (1963). The trial court denied
the motion, and this court affirmed. State v. Bethel, 10th Dist. No. 09AP-924, 2010-Ohio-
3837. The Supreme Court did not accept jurisdiction over appellant’s discretionary appeal.
State v. Bethel, 132 Ohio St.3d 1513, 2012-Ohio-4021. Appellant also filed a Crim.R. 33
motion for a new trial and a second petition for postconviction relief in 2018. The trial court
denied the 2018 motion and petition, and this court affirmed. State v. Bethel, 10th Dist.
No. 19AP-324, 2020-Ohio-1343 (“Bethel II”). The Supreme Court accepted jurisdiction of
appellant’s appeal but affirmed our decision in Bethel II. State v. Bethel, 167 Ohio St.3d
362, 2022-Ohio-783 (“Bethel III”).
{¶ 6} On January 26, 2021, appellant filed the instant motion for leave to file a
delayed motion for a new trial, motion for new trial, and successive petition for
postconviction relief, arguing that defense counsel provided ineffective assistance by not
obtaining the services of a ballistic expert to perform testing on the existing physical
evidence and then presenting expert testimony regarding the findings at trial. Appellant
claims the 2020 expert report of John Nixon refutes appellant’s proffered confession and
proves his innocence. Plaintiff-appellee, State of Ohio, argued that appellant failed to show
he was unavoidably prevented from obtaining the ballistic evidence within the time
required to timely file his petition and motion and alternatively, trial counsel’s decision to
forego expert testimony was reasonable trial strategy, not ineffective assistance of counsel.
No. 23AP-333 3
{¶ 7} On May 3, 2023, the trial court denied the untimely filed motions and
successive petition because appellant failed to show that he was unavoidably prevented
from discovering the ballistic report. The trial court further found that the 2020 Nixon
report was inconclusive and did not support the conclusion that no reasonable factfinder
would have found appellant guilty if presented with this new evidence.
{¶ 8} Appellant timely appealed to this court from the May 3, 2023 judgment.
II. ASSIGNMENTS OF ERROR
{¶ 9} Appellant assigns the following as trial court errors:
[1.] THE TRIAL COURT ABUSED ITS DISCRETION IN
FINDING THAT APPELLANT WAS NOT UNAVOIDABLY
PREVENTED FROM DISCOVERING THE EVIDENCE[.]
[2.] THE TRIAL COURT ERRED IN HOLDING THAT
BETHEL CANNOT SATISFY R.C. § 2953.23(A)(1)(b) AND
INEFFECTIVE ASSISTANCE OF COUNSEL UNDER
STRICKLAND[.]
(Emphasis sic.)
III. STANDARD OF REVIEW
{¶ 10} Ordinarily, appellate courts review a decision to grant or deny a petition for
postconviction relief, including the decision whether to afford the petitioner a hearing,
under an abuse of discretion standard. State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-
3991, ¶ 38, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 51-52, 58. A trial
court, however, fundamentally lacks jurisdiction to entertain an untimely or successive
petition for postconviction relief unless petitioner satisfies the exceptions provided in R.C.
2953.23(A). State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 24. Because “the
question whether a court of common pleas possesses subject-matter jurisdiction to
entertain an untimely [or successive] petition for postconviction relief is a question of law,”
an appellate court applies a de novo standard of review to the trial court’s determination.
Id., quoting State v. Kane, 10th Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9.
{¶ 11} Regarding a motion for new trial, “[a]n appellate court reviews a trial court’s
decision granting or denying a Crim.R. 33 motion for new trial for an abuse of discretion.”
State v. Howard, 10th Dist. No. 15AP-161, 2016-Ohio-504, ¶ 46, citing State v. Townsend,
10th Dist. No. 08AP-371, 2008-Ohio-6518, ¶ 8, citing State v. Schiebel, 55 Ohio St.3d 71,
No. 23AP-333 4
76 (1990). An abuse of discretion implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
IV. LEGAL ANALYSIS
A. Appellant’s First Assignment of Error
{¶ 12} In appellant’s first assignment of error, appellant contends the trial court
erred when it determined that appellant failed to prove he was unavoidably prevented from
discovering the ballistic evidence upon which both his successive petition for
postconviction relief and his motion for new trial depend. We disagree.
1. Successive Petition for Postconviction Relief
{¶ 13} “The post-conviction relief process is a statutory method by which criminal
defendants may bring a collateral civil attack on their convictions and sentences.” Bethel I
at ¶ 16, citing R.C. 2953.21; State v. Calhoun, 86 Ohio St.3d. 279, 281 (1999); State v.
Steffen, 70 Ohio St.3d 399, 410 (1994); State v. McKinney, 10th Dist. No. 07AP-868, 2008-
Ohio-1281. “[P]ost-conviction relief is not an appeal of the judgment; rather, it is intended
as a means to reach constitutional issues that would otherwise be impossible to reach
because the evidence supporting those arguments is outside of the trial court record (e.g.,
ineffective assistance of counsel, prosecutorial misconduct, newly-discovered evidence).”
(Emphasis omitted.) Bethel I at ¶ 16. Though, res judicata bars a postconviction relief
“petitioner from ‘re-packaging’ evidence or issues which either were, or could have been,
raised in the context of the petitioner’s trial or direct appeal. * * * There is a narrow
exception to this rule with regard to claims of ineffective assistance of counsel.” (Citation
omitted.) Bethel I at ¶ 18-19.
{¶ 14} A trial court may not entertain a successive petition for postconviction relief
unless (1) the petitioner was unavoidably prevented from discovering the facts upon which
he bases his petition, or that the petitioner’s claim is based upon a newly created federal or
state’s right pursuant to R.C. 2953.23(A)(1)(a); and (2) clear and convincing evidence
demonstrates that no reasonable factfinder would have found him guilty in the absence of
the alleged constitutional error pursuant to R.C. 2953.23(A)(1)(b). R.C. 2953.23(A)(1).
{¶ 15} 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. State v. McDonald, 6th Dist. No. E-04-009, 2005-Ohio-798, ¶ 19. “The ‘facts’
No. 23AP-333 5
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.” State v. Turner, 10th Dist. No. 06AP-876,
2007-Ohio-1468, ¶ 11. “Thus, the exception provided in R.C. 2953.23(A)(1)(a) involves
newly discovered evidence.” State v. Black, 10th Dist. No. 22AP-180, 2022-Ohio-3119, ¶ 11.
{¶ 16} Here, appellant’s claim for postconviction relief asserts a claim of ineffective
assistance of trial counsel purportedly supported by evidence outside the record in the form
of a 2020 ballistic report issued by an expert. Appellant’s current claim of ineffective
assistance of trial counsel is the same claim appellant asserted in his 2005 petition for
postconviction relief. (Feb. 28, 2005 Petition for Post-Conviction Relief at 32, Fifth Ground
for Relief.) In his 2005 petition, appellant claimed that a preliminary ballistic report
authored by Nixon on January 19, 2005 and forwarded to appellant’s counsel on
January 26, 2005, contradicts appellant’s proffered confession and supports the conclusion
that he was not the shooter. Nixon’s 2005 report is predicated on evidence admitted at his
criminal trial or otherwise available to appellant’s trial counsel prior to trial. Appellant
claimed his trial counsel provided ineffective assistance by failing to retain the services of a
ballistic expert to pursue this theory of innocence. Nixon’s cover letter to appellant’s
counsel recommends further testing of the available ballistic evidence and provides a cost
estimate. In connection with appellant’s 2005 petition for postconviction relief, appellant
moved the trial court to provide him with the funds necessary to cover the cost of the
recommended testing.
{¶ 17} The trial court dismissed the 2005 petition. Concerning the fifth grounds for
relief, the trial court found alternatively that the claim of ineffective assistance of trial
counsel was barred by res judicata and failed on the merits. Appellant appealed the trial
court decision to this court. In affirming the dismissal of his 2005 petition for
postconviction relief, this court stated:
We are not at liberty to re-decide any issues that were already
decided by the Supreme Court of Ohio unless the appellant
presents some new evidence or factual information that was
unavailable on direct appeal. Similarly, any argument that
was previously raised, or could have been raised, is barred
under the doctrine of res judicata. The record before us is void
of any new evidence or factual information that would be
material to the issues raised in the petition and, therefore, we
must affirm the trial court’s dismissal.
No. 23AP-333 6
(Emphasis added.) Bethel I at ¶ 2.1
{¶ 18} In 2012, the federal public defender undertook appellant’s representation.
The federal public defender subsequently financed further testing by Nixon and the
September 2020 ballistic report upon which appellant’s successive petition relies. Further
investigation led to the development of supporting testimony from witnesses who were also
known to appellant at the time of trial. According to affidavits submitted by appellant with
his successive petition, other priorities of the federal public defender delayed funding for
the report.
{¶ 19} The record in this case conclusively establishes that both the grounds for relief
and the facts on which appellant’s successive petition relies were known to appellant well
prior to the deadline for filing a timely motion for postconviction relief. Appellant admits
the basic facts supporting the motion were available to his counsel prior to his criminal trial
and could or should have been developed and submitted to the trial court as a theory of
innocence in his criminal case. There is no claim in this case that the state suppressed
potentially exculpatory physical evidence from appellant’s counsel prior to the criminal
trial. Simply put, the facts on which appellant’s successive petition relies are the historical
facts of the case, not newly discovered facts or facts existing outside the trial court record.
{¶ 20} Even though Nixon’s 2020 ballistic report was developed from the historical
facts of the case and testimony from witnesses who were known to appellant at the time of
his criminal trial, appellant claims that Nixon’s 2020 ballistic report qualifies as newly
discovered evidence, outside the record, because appellant’s indigence and incarceration
prevented him from timely developing the evidence and presenting it to the court.
Appellant’s argument distorts the concept of newly discovered evidence. In our view, the
fact that the evidence on which appellant’s successive petition relies was known to appellant
but not fully developed and presented to the court in a timely fashion does not mean the
evidence exists outside the record or is “newly discovered.” See, e.g., Turner, 2007-Ohio-
1468 (Because the time sheets allegedly supporting appellant’s alibi were available and
known to appellant prior to trial, the time sheets do not qualify as newly discovered
evidence for purposes of a successive petition for postconviction relief.); State v. Brown,
1 The Supreme Court refused to hear the appeal in State v. Bethel, 122 Ohio St.3d 1502, 2009-Ohio-4233.
No. 23AP-333 7
6th Dist. No. L-99-1251, 2000 Ohio App.LEXIS 65, *7 (Jan. 14, 2000) (“A newly discovered
legal argument is not a ‘newly discovered fact’ as contemplated by R.C. 2953.23 to support
a successive petition for postconviction relief.”).
{¶ 21} Moreover, even if the 2020 Nixon report could be considered a newly
discovered fact for purposes of R.C. 2953.23, appellant must show that he was unavoidably
prevented from timely discovering the Nixon report in the exercise of reasonable diligence.
The record contains no such showing.
{¶ 22} As noted, one of the grounds for relief set out in appellant’s 2005 petition for
postconviction relief was a claim that appellant’s trial counsel failed to follow up on ballistic
evidence and present the evidence to the jury. Accordingly, in January 2005 appellant
knew he needed an expert to conduct further testing of the ballistic evidence. The 2005
petition was dismissed by the trial court, and we affirmed the decision on appeal. The
Supreme Court refused to hear the case in 2009. Although appellant maintains that the
federal public defender took his case in 2012, the formal ballistic report was not authored
by Nixon until September 2020.
{¶ 23} Appellant has submitted several affidavits to explain the circumstances
surrounding the lengthy delay in obtaining Nixon’s 2020 ballistic report and filing his
successive petition and motions. The affidavits establish appellant’s indigence and outline
the efforts made by appellant’s counsel to obtain funds to pay the cost of obtaining a ballistic
report. Based on our review of this evidence, we cannot say the trial court abused its
discretion when it concluded that lengthy and largely unexplained delay in this case was
not reasonable. Indeed, the fact that appellant was financially unable to acquire expert
assistance does not excuse a lack of diligence in discovering and developing the evidence
allegedly supporting postconviction relief. State v. Thornton, 12th Dist. No. CA2012-09-
063, 2013-Ohio-2394, ¶ 26. Similarly, indigent inmates are not legally entitled to funding
for experts when pursuing collateral attacks on their convictions. State v. Simpson, 2d Dist.
No. 26632, 2016-Ohio-1267, ¶ 15. Nor does the inability to afford counsel to pursue
postconviction remedy excuse a lack of diligence in discovering the evidence on which the
petition relies. State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 25.
Accordingly, even if the Nixon’s 2020 ballistic report could be considered a newly
No. 23AP-333 8
discovered fact, the trial court did not err when it determined that appellant failed to
exercise reasonable diligence in discovering it.
{¶ 24} Because we agree that appellant failed to show he was unavoidably prevented
from timely discovering the evidence on which the successive petition relies, appellant
cannot meet the jurisdictional requirements of a successive petition for postconviction
relief. Accordingly, we hold that the trial court lacked jurisdiction to entertain the merits
of appellant’s successive petition. Apanovitch, 2018-Ohio-4744, at ¶ 24, citing Kane, 2017-
Ohio-7838, at ¶ 9.
{¶ 25} For the foregoing reasons, we must overrule appellant’s first assignment of
error as it pertains to the successive petition for postconviction relief.
2. Crim.R. 33 motion
{¶ 26} Unlike a petition for postconviction relief brought pursuant to
R.C. 2953.23(A)(1), “a motion for a new trial is not a collateral challenge—a motion for a
new trial is an attempt to void or correct the judgment as provided by law under Crim.R.
33.” Bethel III at ¶ 44. Under Crim.R. 33(A)(6), “[a] new trial may be granted on motion of
the defendant * * * [w]hen new evidence [material to the defense] is discovered which the
defendant could not with reasonable diligence have discovered and produced at the trial.”
Crim.R. 33(B) provides in relevant part as follows:
Motions for 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. 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, such motion shall be filed within
seven days from an order of the court finding that he was
unavoidably prevented from discovering the evidence within
the one hundred twenty day period.
{¶ 27} “Crim.R. 33(B) does not give a deadline by which a defendant must seek leave
to file a motion for a new trial based on the discovery of new evidence. The rule states only
that a defendant must show that he was ‘unavoidably prevented from the discovery of the
evidence upon which he must rely.’ ” Bethel III at ¶ 53, quoting Crim.R. 33(B). “A party is
‘unavoidably prevented’ from filing a motion for a new trial if the party had no knowledge
of the existence of the ground supporting the motion and could not have learned of that
No. 23AP-333 9
existence within the time prescribed for filing the motion in the exercise of reasonable
diligence.” Berry at ¶ 39. “ ‘The “unavoidably prevented” requirement in Crim.R. 33(B)
mirrors the “unavoidably prevented” requirement in R.C. 2953.23(A)(1).’ ” Bethel III at
¶ 59, quoting State v. Barnes, 5th Dist. No. CT2017-0092, 2018-Ohio-1585, ¶ 28.
{¶ 28} We have previously determined the trial court did not err when it found
appellant failed to show he was unavoidably prevented from discovering the ballistic
evidence on which his successive petition for postconviction relief relies. As the burden of
proof on this threshold requirement is the same for a movant under Crim.R. 33(A)(6), we
cannot say the trial court abused its discretion in reaching the same conclusion in ruling on
the motion for a new trial. Thus, we agree with the trial court that appellant cannot
establish the threshold requirement of a motion for new trial based on newly discovered
evidence.
{¶ 29} For the foregoing reasons, we overrule appellant’s first assignment of error as
it relates to the Crim.R. 33 motion.
B. Appellant’s Second Assignment of Error
{¶ 30} In appellant’s second assignment of error, appellant contends that the trial
court erred when it rejected his claim of ineffective assistance of trial counsel. The trial
court found that the evidence presented by appellant’s successive petition and motion for
new trial, failed to satisfy the requirements of Strickland v. Washington, 466 U.S. 668
(1984). We find appellant’s second assignment of error is mooted by our resolution of
appellant’s first assignment of error. See App.R. 12(A)(1)(c).
{¶ 31} In State v. Stewart, 10th Dist. No. 19AP-458, 2020-Ohio-4709, ¶ 13, this court
made the following relevant observations concerning untimely or successive petitions for
postconviction relief:
This court has previously advised trial courts should dismiss
a petition for postconviction relief when jurisdiction is
lacking, rather than denying the petition on some other
grounds. See, e.g., State v. Banks, 10th Dist. No. 12AP-96,
2012-Ohio-3770, ¶ 11 (“the trial court did not err in denying
appellant’s petition, though technically the petition should
have been dismissed for lack of jurisdiction); State v. Mangus,
10th Dist. No. 06AP-1105, 2009-Ohio-6563, ¶ 13 (affirming
denial of postconviction petition as untimely filed even
though trial court should have dismissed the petition for lack
of jurisdiction); State v. Russell, 10th Dist. No. 05AP-391,
No. 23AP-333 10
2006-Ohio-383, ¶ 10 (although trial court did not err in
denying the petition on the merits, it should have been
dismissed for lack of jurisdiction); State v. Elkins, 10th Dist.
No. 10AP-6, 2010-Ohio-4605, ¶ 17 (the untimely
postconviction petition should have been dismissed for lack of
jurisdiction).
{¶ 32} In resolving appellant’s first assignment of error, we determined that
appellant failed to prove he was unavoidably prevented from discovering the ballistic
evidence on which his successive petition for postconviction relief relies. Because proof
appellant was unavoidably prevented from discovering the ballistic evidence was a
jurisdictional requirement of the successive petition for postconviction relief, we need not
consider the merits of appellant’s ineffective assistance of counsel claim to affirm the trial
court’s ruling on the successive petition for postconviction relief. Furthermore, because we
agree that appellant was not unavoidably prevented from discovering the ballistic evidence
upon which his Crim.R. 33(A)(6) motion relies, we need not resolve the merits of the
ineffective assistance claim to affirm the trial court. Thus, appellant’s second assignment
of error is moot.
V. CONCLUSION
{¶ 33} Having overruled appellant’s first assignment of error and mooted appellant’s
second assignment of error, we affirm the judgment of the Franklin County Court of
Common Pleas.
Judgment affirmed.
BEATTY BLUNT, P.J., and MENTEL, J., concur.
_____________