[Cite as State v. Allen, 2016-Ohio-7045.]


                     Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103492




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      DAVID W. ALLEN
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-91-264901-ZA

        BEFORE: E.A. Gallagher, P.J., Kilbane, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: September 29, 2016
ATTORNEYS FOR APPELLANT

John J. Ricotta
John J. Ricotta, Co. L.P.A.
The IMG Center
1360 E. 9th Street, Suite 910
Cleveland, Ohio 44114

Henry J. Hilow
McGinty, Hilow & Spellacy Co., L.P.A.
614 W. Superior Avenue, Suite 1300
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
       Christopher D. Schroeder
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant David Allen appeals the denial of his motion for new

trial and petition for postconviction relief that were filed in the Cuyahoga County Court

of Common Pleas. For the following reasons, we affirm.

       Facts and Procedural Background

       {¶2} In 1991, Allen was convicted of two counts of aggravated murder and one

count of aggravated robbery and a death sentence was imposed.1 The victim in this case

was Chloie English. This court affirmed Allen’s convictions and sentence in State v.

Allen, 8th Dist. Cuyahoga No. 62275, 1993 Ohio App. LEXIS 4392 (Sept. 9, 1993). The

Ohio Supreme Court affirmed this court’s judgment in State v. Allen, 73 Ohio St.3d 626,

1995-Ohio-283, 653 N.E.2d 675, and set forth the relevant facts as follows:

       English knew Allen through her participation in a prison ministry program.

       English ministered to five convicted felons, including Allen. She visited

       and corresponded with Allen while he was in prison and they stayed in

       touch after his release in 1989. On January 9, 1991, English received a

       phone call from someone named “David.” According to English’s daughter,

       the conversation left English shaking.

       English was last seen alive at 5:45 p.m. on January 24, 1991, by her friend
       Judy Sperry (“Sperry”) who had visited English in her home. At 6:45 p.m.
       the next day, English’s friend Cathy Curry found English lying dead in her
       living room. The doors to English’s house were unlocked, which was

       1
         The trial court also imposed a prison term of 15 to 25 years for Allen’s aggravated robbery
conviction.
unusual because English always locked her doors and never opened them to
strangers.
After English’s body was found, Bedford police officers secured,

photographed, and searched the house. Detective Gerry Artl found

English’s eyeglasses on the floor and noted a large thumbprint on the inside

of the left lens. That thumbprint turned out to belong to David Allen. Police

recovered ten cigarette butts from English’s kitchen garbage. Saliva tests

showed that five of the butts had been smoked by a Type O secretor. (The

rest lacked sufficient saliva for testing.) Two of the butts still had the

“Doral” brand name on them. Allen is a Type O secretor, and there was

evidence that he smoked Dorals. English disapproved of smoking and was a

Type O non-secretor.

Although English’s last known visitor was a woman, someone had left the
toilet seat up in English’s bathroom. Moreover, the coffee pot in the
kitchen, empty when Sperry left, was half full when English’s body was
discovered. Police found several items burnt in the fireplace, including the
remains of English’s purse and wallet, a broken ashtray, a broken coffee
cup, a broken drinking glass, a wine bottle, and a knife with its handle burnt
off.

Police found no money in the house, even though English always kept about
$50 in her wallet for emergencies. English’s credit cards and checkbook
were also missing.

Detective Timothy Oleksiak (“Oleksiak”) obtained the names of prisoners
with whom English had corresponded. All but Allen were still in prison.
Oleksiak and Artl had the print on the eyeglasses compared with Allen’s;
when the print was identified as Allen’s, Oleksiak got an arrest warrant.

On January 29, Allen was arrested. He was wearing a denim jacket with a
stain on one of the sleeves. That stain turned out to be Type O blood, the
same type Allen and English shared. Allen was carrying a bus transfer
       issued between 6:04 and 7:00 a.m., January 25, on the No. 41 Warrensville
       bus route. The driver identified Allen as a passenger he had picked up on
       January 25 at 6:04 a.m., at a stop 1.3 miles from English’s house.

       Allen also had a refund receipt for a Greyhound bus ticket. There was no
       record of when the ticket was sold, but Allen got the refund on January 25,
       at 11:28 p.m. Moreover, when Detective Artl searched Allen’s bedroom, he
       found two packed suitcases under Allen’s bed.

Id.

       {¶3} After Allen’s convictions were affirmed, he filed an application for reopening

pursuant to App.R. 26(B) which was denied by this court. The Ohio Supreme Court

affirmed that decision in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d

638.

       {¶4} On September 20, 1996 Allen filed a petition for postconviction relief. The

trial court denied Allen’s petition without a hearing.   This court affirmed the trial court’s

decision in State v. Allen, 8th Dist. Cuyahoga No. 72427, 1998 Ohio App. LEXIS 2414

(June 4, 1998).

       {¶5} On February 16, 2006 the trial court granted a motion for DNA testing filed

by Allen relating to the blood sample found on his jacket and a blood sample from a pair

of gloves recovered from the scene. The trial court ordered further DNA testing on the

gloves to be performed by Orchid Cellmark Laboratories in May 2011.

       {¶6} Based on the results of the DNA testing, Allen filed a supplemental motion

for new trial and petition to set aside the death penalty determination and verdict on

November 28, 2011.       The trial court denied Allen’s motion and petition without a

hearing on August 14, 2015.
       I. Motion for New Trial

       {¶7} In his first assignment of error, Allen argues that the trial court abused its

discretion when it denied his motion for a new trial.2

       {¶8} A Crim.R. 33 motion for a new trial is addressed to the sound discretion of

the trial court and will not be reversed absent an abuse of discretion. State v. Schiebel, 55

Ohio St.3d 71, 77, 564 N.E.2d 54 (1990). An abuse of discretion implies the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 450 N.E.2d 1140 (1993).

       {¶9} To warrant the granting of a motion for a new trial in a criminal case, based

on the grounds of newly discovered evidence:

       it must be shown that the new evidence (1) discloses a strong probability
       that it will change the result if a new trial is granted, (2) has been
       discovered since the trial, (3) is such as could not in the exercise of due
       diligence have been discovered before the trial, (4) is material to the issues,
       (5) is not merely cumulative to former evidence, and (6) does not merely
       impeach or contradict the former evidence.

State v. Barnes, 8th Dist. Cuyahoga No. 95557, 2011-Ohio-2917, ¶ 23, quoting State v.

Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

       {¶10} Allen further argues that the state violated the rule of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Pursuant to Brady, the prosecutor is


       2
        In the heading of his first assignment of error Allen also asserts that the trial court erred in
denying his petition to set aside the death penalty determination and verdict. However, Allen
reserved his arguments pertaining to the denial of the petition for his second assignment of error and
we address the issue there.
required to disclose exculpatory and impeachment evidence that is material to guilt.

Brady at 87.   Evidence favorable to the defendant is deemed material only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682,

105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome. Bagley at 669; see also State v.

Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the syllabus. The

Supreme Court of Ohio cautioned that in order to find the undisclosed evidence material,

the omission must “reflect our overriding concern in the justice of the finding of guilty,”

which means “the omission must be evaluated in the context of the entire record,” and, if

“there is no reasonable doubt about guilt whether or not the additional evidence is

considered, there is no justification for a new trial.” State v. Jackson, 57 Ohio St.3d 29,

34, 565 N.E.2d 549 (1991), quoting United States v. Agurs, 427 U.S. 97, 112-113, 96

S.Ct. 2392, 49 L.Ed.2d 342 (1976).

       {¶11} The defendant carries the burden to prove a Brady violation rising to the

level of a denial of due process. See State v. Kulchar, 4th Dist. Athens No. 10CA6,

2015-Ohio-3703, ¶ 42, citing State v. Iacona, 93 Ohio St.3d 83, 92, 2001- Ohio-1292,

752 N.E.2d 937.    We review a Brady materiality question on appeal as a matter of law

and, therefore, apply a de novo standard of review.   See State v. Fox, 4th Dist. Ross No.

11CA3302, 2012-Ohio-4805, ¶ 25, citing State v. Geeslin, 116 Ohio St.3d 252,

2007-Ohio-5239, 878 N.E.2d 1, ¶ 12-13. See also United States v. Bullock, 130
Fed.Appx. 706, 722 (6th Cir.2005), citing United States v. Phillip, 948 F.2d 241, 250 (6th

Cir.1991) (“The standard of review for the materiality of a purported Brady violation is

de novo because it presents a mixed question of law and fact.”).

      {¶12} There are three essential components of a Brady violation: (1) evidence at

issue must be favorable to the accused because it is exculpatory or impeaching; (2)

evidence must have been willfully or inadvertently suppressed by the State; and (3)

prejudice ensued. Skinner v. Switzer, 562 U.S. 521, 536, 131 S.Ct. 1289, 179 L.Ed.2d

233 (2011), citing Strickler v. Greene, 527 U.S. 263, 281, 282, 119 S.Ct. 1936, 144

L.Ed.2d 286 (1999).

      {¶13} Allen argues that the state committed two Brady violations in this instance

by (1) failing to disclose a pair of blood-stained gloves found at the scene of the murder

and (2) failing to disclose a police report wherein a neighbor of the victim, Julie Walker,

reported observing a black male approach the home of the victim on Wednesday, January

23 or Thursday, January 24, 1991. Allen previously challenged the state’s failure to

disclose Julie Walker’s report in his 1996 petition for postconviction relief. In State v.

Allen, 8th Dist. Cuyahoga No. 72427, 1998 Ohio App. LEXIS 2414 (June 4, 1998), this

court rejected Allen’s Brady challenge to this report concluding that it “[could] not be

considered exculpatory nor material.”      Therefore, Allen’s present challenge to this

material is barred by res judicata. State v. Lott, 8th Dist. Cuyahoga Nos. 79790, 79791,

79792, 2002-Ohio-275, ¶ 36-39; State v. Flora, 8th Dist. Cuyahoga No. 87544,

2006-Ohio-5732, ¶ 43.
       {¶14} Turning to the matter of the blood-stained gloves, Allen argues that the state

failed to disclose that it had found a pair of gloves with blood stains at the feet of the

victim.   The recovery of the gloves was documented in a 1991 Bedford Police

Department report.

       {¶15} Y-STR DNA testing was performed on the gloves by Orchid Cellmark

Laboratories.   The results were as follows:   (1) due to a low amount of male DNA and

a possible mixture, no determination could be made regarding the DNA profile obtained

from the exterior of the right glove; (2) a DNA mixture of at least two males was detected

in the interior of the right glove, but due to the low amount and possible mixture, no

determination could be made as to whether Allen was a contributor; (3) male DNA was

not detected on the exterior of the left glove; and (4) the interior of the left glove

produced a DNA mixture of at least two males.       Allen was excluded as a contributor to

the DNA recovered from the interior of the left glove.

       {¶16} Allen’s motion for a new trial asserted his claim that the state had withheld

this evidence with an affidavit from his trial attorney who averred:

       During the discovery process it was never disclosed by the prosecuting

       attorneys that a pair of bloody gloves were found at the feet of the victim’s

       body.

       I did a review of a video of the crime scene but was unable to view the

       gloves, nor the alleged victim’s eyeglasses by the body.
       {¶17} After examining the record, including the affidavit of Allen’s trial attorney,

the trial court found that Allen failed to demonstrate a violation of Brady by the state in

this instance, explaining:

       Allen’s attorney had access to physical evidence obtained at the crime scene
       and a videotape of the crime scene during pretrial discovery. During the
       trial, video of the crime scene was paused and the prosecution specifically
       referred to the gloves in questioning Bedford police detective Gerry Artl.
       The video includes specific discussion referencing the gloves in relation to
       English’s body. Additionally, Allen’s counsel declined to cross-examine
       Sperry after she testified to giving English a pair of gloves. Furthermore,
       in 1996, Allen filed a motion containing a Bedford police report
       documenting the recovery of gloves from the crime scene. Thus, even
       assuming Allen requested disclosure of the gloves, Allen was provided
       access to the gloves and had knowledge of the gloves.

       {¶18} We agree with the trial court’s assessment and find that the averments of

Allen’s trial counsel are refuted by the record.   In a response to a request for notice of

evidence, filed April 25, 1991, the state documented its compliance with Allen’s requests

for discovery:

       A meeting was held with defense counsel in the Cuyahoga County

       Prosecutor’s Office on Tuesday, April 16, 1991 at 2:00 p.m. At that time,

       defense counsel was able to view the seven (7) boxes of evidence taken

       from both the victim’s and the defendant’s place of residence.   In addition,

       counsel for the defendant view [sic] the photographs from the County

       Coroner’s Office, Trace Evidence Unit, and the Bedford Police Department.

       ***

       Additionally, a crime scene video tape is being duplicated and supplied to
       the defense.
        {¶19} The above-referenced video was played at trial and depicts two plainly

visible brown gloves found underneath the victim’s left leg.                       The crime scene

investigators in the video explicitly noted the gloves while narrating the video,

commenting that the victim has a purple discoloration of her calf and an indentation

where the “calf was laying up against maybe that * * * either these gloves or something.”

 Detective Artl testified while the video was played and confirmed that the reference was

to a pair of gloves later determined to be given to the victim by her friend Judy Sperry.

Sperry testified that she gave English a pair of gloves that were too tight for her but fit

English perfectly. Sperry’s testimony described the gloves as leather winter gloves with

a fur lining that she last saw in English’s home near the rocking chair. Consistent with

this testimony, the gloves were found underneath English’s body near her rocking chair.

        {¶20} Under these facts we cannot say that Allen has demonstrated a Brady

violation. 3   In light of this, we consider Allen’s DNA evidence from the Orchid

Cellmark testing under the abuse of discretion standard for newly discovered evidence

rather than the elevated standard for a Brady violation.


        3
           We note that we granted a motion for leave to supplement Allen’s brief with the United
States Supreme Court’s decision in Wearry v. Cain, 577 U.S.              , 136 S.Ct. 1002, 194 L.Ed. 2d
78 (2016). We do not find that case to be applicable to Allen. Allen argues that pursuant to
Wearry the trial court in this instance erred in evaluating the materiality of the glove-related evidence
in isolation rather than cumulatively with the other evidence on the record. However, as we noted
above, our review of the materiality of Brady evidence on appeal is de novo. More importantly, we
do not reach that question because we find no Brady violation here because there is no evidence on
the record to indicate that the glove-related evidence was willfully or inadvertently suppressed by the
State.
         {¶21} We find that the trial court did not abuse its discretion in denying Allen’s

motion for a new trial on the grounds of newly discovered evidence because the Orchid

Cellmark DNA evidence does not discloses a strong probability that it will change the

result if a new trial is granted.

         {¶22} To begin, there is no evidence in the record to suggest that the blood stains

on the gloves came from anyone other than English. Orchid Cellmark’s testing was

limited to Y-STR testing that reveals only male DNA and ignores all the female DNA

present in a sample.       State v. Thornton, 12th Dist. Clermont No. CA2012-09-063,

2013-Ohio-2394, ¶ 7; State v. Prade, 126 Ohio St.3d 27, 2010-Ohio-1842, 930 N.E.2d

287, ¶ 21. That blood was found on gloves recovered from underneath the body of a

victim who suffered sixteen stab wounds and had both her wrists slashed is not a

revelation that alters the court’s view of the evidence.

         {¶23} While the Orchid Cellmark report reveals that the DNA of two males was, at

some point, deposited in the interior of the left glove, this tells us nothing about the time

frame, the circumstances of that contact or the form of the DNA recovered from the

glove.

         {¶24} Even excluding the significant evidence against Allen, it is hard to conceive

how the DNA evidence from the gloves would be exculpatory. The record establishes

that the gloves originated from Judy Sperry and not from the theorized perpetrators.    The

gloves were found in the same location that Sperry last saw them before English’s

death— next to English’s rocking chair. Allen would have to convince the jury that two
unknown men entered English’s home without force, found and used women’s winter

gloves in the commission of her murder, took turns putting on the gloves so as to both left

DNA at the scene and then left the gloves in the precise spot they were last seen by

Sperry— next to the rocking chair and underneath English’s body. This theory is wholly

inconsistent with actions of the perpetrator who burned other evidence of the crime in

English’s fireplace.

       {¶25} Finally, Allen argues that the evidentiary significance of the gloves is

bolstered by (1) a 1996 affidavit from a forensic pathologist who opined that English’s

time of death was between 11:30 a.m. and 5:30 p.m. on January 24, 1991 (roughly twelve

and a half hours earlier than the time of death provided at trial by the Coroner’s office)

and (2) a 2007 Cuyahoga County Coroner’s Office report that concluded that the blood

found on Allen’s jacket, referenced above in the Ohio Supreme Court’s recitation of facts,

did not match the DNA profile of either Allen or English. Viewed as context for

evaluation of the DNA evidence pertaining to the gloves, neither of these offerings alters

our conclusion that the glove evidence does not disclose a strong probability that it will

change the result if a new trial is granted.   The pathologist’s report merely contests the

conclusions of the coroner’s office based on diverging interpretations of the timing of

English’s body undergoing rigor mortis. Furthermore, Allen’s pathologist’s report directly

contradicts the testimony of Judy Sperry and places English’s death prior to the last time

Sperry testified to seeing English alive.   This evidence would appear to implicate Sperry

as being involved in English’s death and is completely inconsistent with Allen’s theory
that English was killed by two unknown males based on the male DNA recovered from

the interior of the left glove. Similarly, the fact that the blood found on Allen’s jacket

was not connected to the murder of English is not exculpatory in light of the other

significant evidence against Allen.    Nor does it bolster the glove-related evidence to a

position where we can say there is a strong probability that the outcome of the trial would

be changed.

       {¶26} In light of the above facts and within the context of what the Ohio Supreme

Court described as “ample evidence” of Allen’s guilt we find no abuse of discretion on

the part of the trial court in denying Allen’s motion for a new trial.

       II. Petition for Postconviction Relief

       {¶27} In his second assignment of error, Allen argues that the trial court erred in

denying his petition for postconviction relief seeking to set aside his death penalty

determination and verdict and that the trial court further erred in denying the petition

without holding a hearing. A postconviction relief proceeding is a collateral civil attack

on a judgment, therefore, the judgment of the trial court is reviewed under the abuse of

discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d

77.

       {¶28} Based on the Orchid Cellmark DNA test results of the gloves Allen sought

relief pursuant R.C. 2953.21(A)(1)(a) which provides:

       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, and any person who has been convicted
       of a criminal offense that is a felony and who is an offender for whom DNA
       testing that was performed under sections 2953.71 to 2953.81 of the
       Revised Code or under former section 2953.82 of the Revised Code and
       analyzed in the context of and upon consideration of all available
       admissible evidence related to the person’s case as described in division (D)
       of section 2953.74 of the Revised Code provided results that establish, by
       clear and convincing evidence, actual innocence of that felony offense or, if
       the person was sentenced to death, establish, by clear and convincing
       evidence, actual innocence of the aggravating circumstance or
       circumstances the person was found guilty of committing and that is or are
       the basis of that sentence of death, may file a petition in the court that
       imposed 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. The petitioner may file a supporting affidavit and other
       documentary evidence in support of the claim for relief.

R.C. 2953.21(A)(1)(a)

       {¶29} Allen first argues that he has demonstrated a constitutional violation in the

form of the alleged Brady violation addressed in the first assignment of error. Having

found no Brady violation, Allen’s reiteration of that argument under this assignment of

error lacks merit.

       {¶30} Allen also argues that the newly discovered Orchid Cellmark DNA test

results were the result of DNA testing performed under R.C. 2953.71 to 2953.81. To

establish Allen’s right to relief, however, the test results would need to establish, by clear

and convincing evidence, Allen’s actual innocence of the subject offenses. 4                   R.C.

2953.21(A)(1)(b) defines “actual innocence” as follows:



       4
        We disregard Allen’s framing of the argument that the test results somehow call into question
an aggravating circumstance relating to his sentence of death. The sole question raised by Allen’s
DNA evidence is the identity of the individual who robbed and murdered English.
       “[A]ctual innocence” means that, had the results of the DNA testing
       conducted under sections 2953.71 to 2953.81 of the Revised Code or under
       former section 2953.82 of the Revised Code been presented at trial, and had
       those results been analyzed in the context of and upon consideration of all
       available admissible evidence related to the person’s case as described in
       division (D) of section 2953.74 of the Revised Code, no reasonable
       factfinder would have found the petitioner guilty of the offense of which the
       petitioner was convicted, or, if the person was sentenced to death, no
       reasonable factfinder would have found the petitioner guilty of the
       aggravating circumstance or circumstances the petitioner was found guilty
       of committing and that is or are the basis of that sentence of death.

R.C. 2953.21(A)(1)(b)

       {¶31} “Clear and convincing evidence requires a degree of proof that produces a

firm belief or conviction regarding the allegations sought to be proven.” State v. Gunner,

9th Dist. Medina No. 05CA0111-M, 2006-Ohio-5808, ¶ 8. “It is intermediate, being more

than a mere preponderance, but not to the extent of such certainty as is required beyond a

reasonable doubt as in criminal cases.” Cross v. Ledford, 161 Ohio St. 469, 477, 120

N.E.2d 118 (1954).

       {¶32} In this instance, Allen has failed to establish actual innocence by clear and

convincing evidence for the same reasons we held in the first assignment of error that the

glove-related DNA evidence did not disclose a strong probability that it would change the

result if a new trial was granted. As detailed above, the DNA of two unknown males

found inside the left glove recovered from the scene does not demonstrate that no

reasonable factfinder would have found Allen guilty of the subject offenses when

considered within the context of all admissible evidence related to this case.
       {¶33} Similarly, we find no merit in Allen’s argument that the trial court erred in

denying his petition without holding a hearing. It is well established that “courts are not

required to hold a hearing in every postconviction case.” State ex rel. Madsen v. Jones,

106 Ohio St.3d 178, 2005-Ohio-4381, 833 N.E.2d 291, ¶ 10. The court acts as a

gatekeeper in reviewing the evidence to determine if there are substantive grounds for

relief. See State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51.

Where the petition, the supporting affidavits, the documentary evidence, the files, and the

records do not demonstrate that petitioner set forth sufficient operative facts to establish

substantive grounds for relief, the court may dismiss a petition for postconviction relief

without a hearing. See State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d

905, paragraph two of the syllabus; State v. Moon, 8th Dist. Cuyahoga No. 101972,

2015-Ohio-1550, ¶ 22.

       {¶34} Based on the above analysis of the evidentiary material within the full

context of the evidence introduced at trial, we cannot say that the trial court abused its

discretion in denying Allen’s petition for postconviction relief without holding a hearing.

       {¶35} Allen’s second assignment of error is overruled.

       {¶36} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant the 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.



_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS WITH SEPARATE OPINION


MARY EILEEN KILBANE, J., DISSENTING:

       {¶37} I respectfully dissent. I would sustain Allen’s second assignment of error

and remand the matter to the trial court to conduct an evidentiary hearing on Allen’s

petition.

       {¶38} While a hearing is not automatically required on every petition for

postconviction relief, the trial court is required to consider whether the petitioner has set

forth sufficient operative facts in the files and record of the case to establish substantive

grounds for relief. State v. Stedman, 8th Dist. Cuyahoga No. 83531, 2004-Ohio-3298, ¶

24, citing State ex rel. Jackson v. McMonagle, 67 Ohio St.3d 450, 1993-Ohio-143, 619

N.E.2d 1017; Calhoun, paragraph two of the syllabus. If the petition, the files, and the

records of the case demonstrate that the petitioner is entitled to relief, the court must then

proceed to a prompt hearing on the issues. R.C. 2953.21(E).

       {¶39} This court has stated that “there are two conditions that must be satisfied

prior to the court holding a hearing: the petitioner must state substantive grounds for
relief, and the issue cannot be determined through a review of the record.” State v.

Broom, 8th Dist. Cuyahoga No. 96747, 2012-Ohio-587, ¶ 14. We have “additionally

recognized that trial courts are required to hold an evidentiary hearing only if the

petitioner is relying on facts outside the record.” Id., citing State v. Milanovich, 42 Ohio

St.2d 46, 325 N.E.2d 540 (1975).

          {¶40} The petition at issue in this appeal was filed on November 28, 2011. In his

petition, Allen argues the newly discovered DNA evidence establishes that the jury could

not have found him guilty of aggravated murder and the aggravating circumstances,

which would warrant the vacation of the death penalty. After several continuances, the

state opposed Allen’s petition on April 30, 2012. On August 14, 2015, nearly four years

later, the trial court denied Allen’s petition. In its comprehensive opinion, the trial court

found that Allen has not provided any evidence demonstrating substantive grounds for

relief.

          {¶41} However, when this newly discovered DNA evidence is considered with his

trial attorney’s affidavit, it is arguable that this evidence puts “the whole case in such a

different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S.

419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), paragraph one of the syllabus. As a result,

the petition and supporting materials raise a genuine issue whether the state violated

Allen’s due process rights under Brady. Morever, given the length of time between

when Allen filed his petition and when the court issued its ruling, I would find that the

failure to conduct a hearing under these circumstances was unreasonable and arbitrary.
       {¶42} I recognize the trial court could reach the same conclusion after a hearing on

remand. However, in this case, the newly discovered DNA, the questionable evidentiary

concerns, and the long lapse of time all point to the grant of a hearing.

       {¶43} Accordingly, I would sustain the second assignment of error.
