[Cite as State v. Cannon, 2019-Ohio-3941.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :      APPEAL NO. C-180474
                                                    TRIAL NO. B-9507633
          Plaintiff-Appellee,                :

        vs.                                  :          O P I N I O N.

DEREK CANNON,                                :

          Defendant-Appellant.               :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 27, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Ohio Innocence Project, Mallorie Thomas and Donald Caster, for Defendant-
Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.

         {¶1}   Defendant-appellant Derek Cannon appeals the Hamilton County

Common Pleas Court’s judgment overruling his Crim.R. 33(B) motion for leave to file

a motion for a new trial. We reverse the judgment upon our determination that the

court abused its discretion in denying leave without an evidentiary hearing.

         {¶2}   In 1996, Cannon was convicted of aggravated murder for the death of

Darrell Depina, a fellow inmate at the Southern Ohio Correctional Facility in

Lucasville, Ohio (“Lucasville”), during the April 1993 riot there.              Cannon

unsuccessfully challenged his conviction on direct appeal and in postconviction

motions filed in 1996, 1998, and 2009. See State v. Cannon, 1st Dist. Hamilton No.

C-950710, 1997 WL 78596 (Feb. 26, 1997), appeal not allowed, 81 Ohio St.3d 1523,

692 N.E.2d 1024 (1998); State v. Cannon, 1st Dist. Hamilton No. C-980389 (Mar.

10, 1999); State v. Cannon, 1st Dist. Hamilton No. C-090907 (Jan. 12, 2010).

         {¶3}   In 2018, Cannon moved under Crim.R. 33(B) for leave to file a Crim.R.

33(A)(6) motion for a new trial on the ground of newly discovered evidence. In this

appeal, he advances two assignments of error contending that the common pleas

court abused its discretion in denying leave without an evidentiary hearing. We

agree.

                                       The Trial

         {¶4}   On the afternoon of April 11, 1993, Lucasville inmates seized control of

the facility’s cellblock “L” (“L-Block”), taking several correctional officers hostage

and locking inmates considered “snitches” into cells in the L-6 section of L-Block. A

“death squad” assembled by inmate Keith LaMar gathered bats, shovels, and weight

bars, and with their faces concealed in T-shirts, towels, and bandannas, they




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proceeded to L-6, where they beat to death a number of inmates, including Darrell

Depina.

       {¶5}   An autopsy showed the cause of Depina’s death to be skull fractures

and brain injury from two “heavy injuries” to the head. According to the state’s

witnesses, when the riot began, Cannon was in the prison recreation yard and, with

fellow inmates LaMar and Louis Jones, entered L-Block to check on personal

belongings in his cell. When rioting inmates barred them from returning to the

recreation yard, LaMar successfully bartered for their return in exchange for killing

the “snitches” confined in L-6. LaMar, Jones, and Cannon then enlisted and armed

other inmates for the death squad and entered L-6. State’s witnesses placed Cannon

with the death squad in L-6, with a weapon or baseball bat in his hand. Other

witnesses testified to seeing Cannon beat Depina about the head and body. Jones

testified that he and Cannon had wanted nothing to do with killing “snitches,” but

that Cannon had later confessed to having struck someone in the head.

       {¶6}   Cannon took the stand and denied entering L-6. He testified that he

had gone alone into L-Block, proceeded to his cell, and changed his shoes. As he was

returning to the recreation yard, he walked toward L-6 in search of his friend LaMar,

but he continued on to the yard when he saw that the L-6 windows and doors were

taped shut. Defense witnesses who had been with Cannon in the recreation yard

confirmed that he had gone alone into L-Block to get his shoes and other personal

items from his cell and had returned alone ten to 15 minutes later with his shoes.

Witnesses who saw Cannon in L-Block testified that he had appeared to have armed

himself, as had other inmates in L-Block, with a small club, but that he had not been

masked and had not entered L-6 with the death squad. And a witness who was




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confined in L-6 testified that Cannon had not been present when the “snitches” were

killed.

          {¶7}   Jailhouse informant Dwayne Buckley testified in the state’s case in

rebuttal. He stated that he had met Cannon in the Hamilton County Justice Center

while serving as a porter in Cannon’s pod, that they had discussed the Lucasville riot,

and that Cannon had confessed to being part of a group who had tortured and killed

“a guard” and shanked a “white guy” in another cell. Cannon, Buckley insisted,

declared that he would “beat” the charges and avenge himself on any “snitches” who

had implicated him.       Buckley stated that he had reported Cannon’s confession

because he feared for his safety and the safety of others after an argument between

the two had escalated into threats by Cannon against Buckley and his family.

          {¶8}   In rebuttal, Cannon testified that any contact with Buckley had been in

the presence of two corrections officers. And Cannon denied threatening Buckley or

confessing to torturing and murdering a corrections officer.

                                      The Motion

          {¶9}   In his April 2018 Crim.R. 33(B) motion, Cannon sought leave to file a

Crim.R. 33(A)(6) motion for a new trial on the ground of newly discovered evidence

or, in the alternative, an evidentiary hearing on his motion for leave. The motion for

leave was supported by Buckley’s April 2017 affidavit recanting his trial testimony.

Buckley averred that he and Cannon had discussed the riot, but that Cannon had not

confessed to killing the guard. Buckley stated that he had testified falsely at trial “to

get back at Cannon” after they had argued and to take advantage of an “offer[]” by

correctional officers at the jail of “some sort of minor incentive, maybe a few days off

of [his] sentence,” “in exchange for [his] statement.” Buckley asserted that he had

not intended to testify following his release from jail and had ignored a subpoena to



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appear at Cannon’s trial. But he came to court after a police detective had come to

his place of work and told him that he “had to testify.” The details of that testimony,

Buckley insisted, were “made up,” and although he remained “angry [with] and

wanted to get back at Cannon,” he was providing his 2017 affidavit in an effort “to

make things right.”

       {¶10} In opposition to the motion for leave, the state argued that the

proposed new-trial motion would not succeed on the merits and supported that

argument with an affidavit made by Buckley in May 2018, recanting his April 2017

affidavit. In his 2018 affidavit, Buckley averred that he had testified truthfully at

trial, and that his 2017 affidavit had been false and the product of threats against his

mother and against his nephew, who had been incarcerated with Cannon at the time.

       {¶11} Cannon, in response, argued that the only issue presented by his

Crim.R. 33(B) motion was whether he was entitled to leave. He supported that

argument with a June 2018 affidavit made by Buckley’s brother, denying that he, his

son, or his mother had been threatened in connection with Cannon’s case, and with

an affidavit made by a private investigator, detailing her efforts from late 2016 to

April 2017 to secure Buckley’s 2017 affidavit. The investigator averred that the Ohio

Innocence Project had engaged her in late 2016 to locate and interview Buckley after

he had expressed to family members regret about his testimony at Cannon’s trial.

The investigator spoke with Buckley’s brother and then Buckley in early January

2017. Buckley told the investigator that a correctional officer had “coached” him on

his statement to police, that that statement had been prompted by “pressure on his

family that ‘turned into something else,’ ” and that his reward had been early release.

The investigator’s subsequent meetings with Buckley provided greater detail and

culminated in his April 2017 affidavit.



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       {¶12} The common pleas court declined to conduct an evidentiary hearing on

Cannon’s motion for leave and overruled the motion. The court also went on, “in an

abundance of caution,” to “consider[] * * * Cannon’s Motion for New Trial on the

merits,” to find that his “Motion for New Trial fail[ed] on the merits,” and to

“overrule[]” his “Motion for New Trial.”

        Abuse of Discretion in Denying Leave without a Hearing

       {¶13} Crim.R. 33(A)(6) permits a trial court to grant a new trial on the ground

that “new evidence material to the defense [has been] discovered, which the defendant

could not with reasonable diligence have discovered and produced at trial.” A Crim.R.

33(A)(6) motion must be filed either within 120 days of the return of the verdict or

within seven days after leave to file a new-trial motion has been granted.

       {¶14} Crim.R. 33(B) provides that leave to file a Crim.R. 33(A)(6) motion for a

new trial out of time may be granted only upon “clear and convincing proof” that the

defendant had, within 120 days of the return of the verdict, been “unavoidably

prevented” from discovering, and from presenting in a new-trial motion, the

evidence upon which his proposed new-trial motion depends. See State v. Schiebel,

55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); State v. Carusone, 1st Dist. Hamilton No.

C-130003, 2013-Ohio-5034, ¶ 32.        A claim of unavoidable prevention must be

supported with evidence demonstrating that, within 120 days of the return of the

verdict, the movant did not know that the proposed ground for a new trial existed,

and that he could not, in the exercise of reasonable diligence, have learned of its

existence. State v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999),

rev’d in part on other grounds, State v. Condon, 157 Ohio App.3d 26, 2004-Ohio-

2031, 808 N.E.2d 912, ¶ 20 (1st Dist.). The court’s decision concerning leave may




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not be overturned on appeal if it was supported by some competent and credible

evidence. Schiebel at 74; Mathis at 79.

       {¶15} Crim.R. 33(B) does not mandate an evidentiary hearing on a motion

for leave. But an evidentiary hearing is warranted when the motion for leave is

supported by evidentiary material that, on its face, demonstrates unavoidable

prevention. See Carusone at ¶ 33.

       {¶16} We note at the outset that, under the bifurcated proceeding

contemplated by Crim.R. 33, the common pleas court erred when, “in an abundance

of caution,” it considered and overruled on the merits “Cannon’s Motion for New

Trial.” The rule required the court to decide only the motion before it—Cannon’s

Crim.R. 33(B) motion for leave to file a new-trial motion. And having overruled the

motion for leave, the court could not go on to decide on the merits a motion that was

not before it—a Crim.R. 33(A)(6) motion for a new trial on the ground proposed in

the motion for leave. See Carusone at ¶ 31.

       {¶17} Moreover, we conclude that Cannon established an entitlement to an

evidentiary hearing on his motion for leave. Throughout his trial, in his direct

appeal, and in postconviction motions filed in 1996, 1998, and 2009, Cannon

consistently maintained that he had not murdered Delpino. His 2018 new-trial

proceedings were also predicated upon his claim of actual innocence. That claim was

advanced by the averments contained in Buckley’s affidavit, that a falling-out with

Cannon, along with law enforcement’s promise of early release, had caused him to

provide a statement to police and trial testimony that falsely incriminated Cannon in

Delpino’s death. And Cannon’s assertion in his motion for leave to move for a new

trial out of time, that he had been unavoidably prevented from timely discovering

that evidence and presenting it in a new-trial motion, was supported by the affidavit



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of the Ohio Innocence Project’s investigator, describing her diligence in following

information provided in late 2016 by Buckley’s family to secure his 2017 affidavit

recanting his trial testimony. Thus, Cannon’s motion for leave, on its face, showed

that he had been unavoidably prevented from timely discovering, and from timely

presenting in a new-trial motion, that evidence of actual innocence. We, therefore,

conclude that Cannon demonstrated an entitlement to a hearing on the motion.

       {¶18} Because Cannon was entitled to an evidentiary hearing on his Crim.R.

33(B) motion for leave to file a new-trial motion, the common pleas court’s judgment

overruling the motion for leave without such a hearing cannot be said to have been

based on a sound reasoning process. We, therefore, hold that the court abused its

discretion in overruling Cannon’s Crim.R. 33(B) motion. See State v. Hill, 12 Ohio

St.2d 88, 232 N.E.2d 394 (1967), paragraph two of the syllabus (holding that an

abuse of discretion is more than an error of law or judgment, but rather implies that

the court’s attitude was unreasonable, arbitrary, or unconscionable); State v. Morris,

132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14 (quoting AAAA Ents., Inc.

v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 [1990] to define an “unreasonable” decision as one that lacks a sound

reasoning process). Accordingly, we sustain the assignments of error, reverse the

court’s judgment, and remand this cause to the court below for further proceedings

consistent with law and this opinion.

                                              Judgment reversed and cause remanded.

ZAYAS, P.J., and CROUSE, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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