[Cite as State v. Graggs, 2019-Ohio-361.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                    No. 18AP-491
v.                                                 :          (C.P.C. No. 08CR-1098)

John Q. Graggs,                                    :       (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                            D E C I S I O N

                                     Rendered on February 5, 2019


                 On brief: Ron O'Brien, Prosecuting                 Attorney,   and
                 Kimberly M. Bond, for appellee.

                 On brief: John Q. Graggs, pro se.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, John Q. Graggs, appeals from a judgment of the
Franklin County Court of Common Pleas denying his petition for postconviction relief,
without a hearing, due to the lack of subject-matter jurisdiction. For the reasons that
follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} This case has been before this court on numerous prior occasions. In a
previous decision in this case, we summarized the operative facts underlying appellant's
convictions as follows:
                 Marcus Jones ("Jones") leased an apartment at 3566 East
                 Main Street from which he and his friend, Jessie Lanier
                 ("Lanier"), ran a drug trafficking operation, selling bricks of
No. 18AP-491                                                                      2


               cocaine for approximately $ 28,000 each. Around January 5,
               2008, Jones hired Brock, a friend of Lanier's, to help guard
               the cocaine and money kept in the apartment.

               On the evening of January 8, 2008, Jones and his cousin left
               Brock and Lanier in the apartment while they attended a local
               high school basketball game. Lanier later joined the two men
               at the game. After the game, which ended at approximately
               8:30 p.m., Jones and his cousin drove to Jones' father's house.
               Around 9:00 p.m., Jones received a call from Lanier telling
               him to return to his apartment. When Jones and his cousin
               arrived at the apartment at approximately 9:15 p.m., Lanier
               was not there. However, Lanier and a girl arrived about two
               minutes later. The three men entered the apartment and
               found Brock lying face-down on the floor inside the
               apartment; he had been handcuffed and fatally shot in the
               back. The apartment had been ransacked; $35,000 in cash
               and Lanier's revolver were missing.

               For the next 15 minutes or so, Jones and Lanier cleared the
               apartment of items related to their drug trafficking operation,
               including $ 17,000 in cash hidden under the mattress in the
               bedroom. Jones and Lanier placed the items in Lanier's car,
               which he then drove away. Thereafter, Jones and his cousin
               went to a nearby recreation center and called Jones' father.
               Around 9:45 p.m., Jones' father met the two men at the
               recreation center and urged them to call the police. Jones and
               his cousin returned to the apartment and called 911 at
               approximately 9:52 p.m.

               Police responded to the 911 call at approximately 9:54 p.m.
               Evidence collected at the scene included the torn-off fingertip
               of a green latex glove found underneath Brock's body; the
               glove fingertip contained appellant's DNA. A revolver and a
               green latex glove similar to the glove fingertip found at the
               scene were recovered from appellant's residence. The
               revolver was later determined not to be the one that had fired
               any of the bullets recovered from the crime scene.

               As of January 8, 2008, appellant was employed full-time
               earning $16.36 per hour. He lived in a separate household
               from his wife and had difficulty paying his bills, including his
               car payment. However, on January 9, 2008, the day after
               Brock's murder, appellant spent over $5,200 in cash at a local
               jewelry store. On January 14, 2008, he made a $ 2,900
               payment on his car loan.
No. 18AP-491                                                                                                    3


                 Appellant was arrested on February 6, 2008. He told police
                 that he knew Brock, but had not seen him in ten years. He
                 also stated that he had never been to Jones' apartment and did
                 not even know where it was located.

                 At trial, the parties stipulated that on January 8, 2008,
                 appellant made three calls between 7:42 and 7:43 p.m. from
                 his cell phone in the vicinity of a cell tower one-half mile from
                 Jones' apartment and made two calls on his cell phone
                 between 8:54 and 8:57 p.m. in the vicinity of a cell tower near
                 his home.

State v. Graggs, 10th Dist. No. 10AP-249, 2010-Ohio-5716, ¶ 3-9 ("Graggs II").
        {¶ 3} Following a jury trial, appellant was convicted of aggravated robbery,
kidnapping, and aggravated murder in connection with Brock's death. The trial court
denied appellant's Crim.R. 33 motion for new trial and sentenced appellant to life in prison
without parole. Appellant appealed to this court from the judgment of conviction and
sentence. We affirmed appellant's convictions in State v. Graggs, 10th Dist. No. 09AP-339,
2009-Ohio-5975 ("Graggs I").
        {¶ 4} In overruling appellant's assignment of error challenging the sufficiency and
weight of the evidence, we noted, in Graggs I, that the following evidence supported
appellant's conviction of the charges: (1) a piece of torn latex glove containing defendant's
DNA was found under the victim's body despite defendant telling detectives he had never
been to the apartment complex in question and had not seen the victim for 10 years;
(2) phone records established calls from his cell phone were made in the vicinity of the
apartment near the time of the shooting; and (3) testimony that $35,000 in cash was
missing from the apartment, and defendant made large cash purchases at a jewelry store
the day after the victim's death. Id. at ¶ 25.
        {¶ 5} On November 10, 2009, appellant filed his first petition for postconviction
relief under R.C. 2953.21(A)(1)(a), which the trial court overruled.1 This court affirmed the
trial court decision in Graggs II.



1 Appellant alleged his trial counsel provided ineffective assistance by "(1) in stipulating to cell phone records

without first consulting with him, and in failing to include in the stipulation, or otherwise submit, exculpatory
cell phone records and testimony pertaining thereto; (2) in failing to prepare and attach to appellant's motion
for new trial an affidavit from his wife supporting the allegation of juror misconduct; and (3) in failing to call
Tierra Davis * * * to testify." Graggs II at ¶ 22.
No. 18AP-491                                                                               4


        {¶ 6} On August 8, 2013, appellant filed a motion for leave to file a delayed motion
for new trial, pursuant to Crim.R. 33, alleging that newly discovered evidence had emerged,
including the July 15, 2013 affidavit of Kelvin Bridges, which implicated Lanier in Brock's
murder. The trial court denied the motion, and we affirmed the trial court decision in State
v. Graggs, 10th Dist. No. 13AP-852, 2014-Ohio-1195, ¶ 13 ("Graggs III").
        {¶ 7} With respect to Bridges' affidavit, this court in Graggs III noted:
               The key issue is whether [appellant] knew or could have
               discovered through reasonable diligence within the time
               period provided under Crim.R. 33(B) that Bridges had
               potentially relevant information. The Bridges affidavit does
               not directly address whether Bridges knew [appellant] prior
               to July 2013. [Ugbe] Ojile attested in his affidavit that, when
               asked, Bridges indicated that [appellant's] name "didn't
               sound familiar, and he didn't think he knew him." (Ojile
               Affidavit.) Finally, in his own affidavit, [appellant] attested
               that, when asked by Ojile in July 2013 whether he knew
               Bridges, he responded that he did not. As the trial court
               concluded, these statements suggest that [appellant] may not
               have known prior to July 2013 that Bridges potentially had
               information relating to the night of the murder. However, we
               cannot conclude that the trial court abused its discretion by
               finding that the affidavits did not constitute clear and
               convincing evidence to establish that appellant could not have
               learned of the existence of the information Bridges claimed to
               possess within the time prescribed for filing a motion for new
               trial.

Id. at ¶ 11.
        {¶ 8} Appellant filed a second motion for leave to file a motion for new trial on
March 24, 2015, alleging that an inmate, Jamal Sealy, had told appellant that Lanier
admitted to him that he had murdered Brock. The trial court denied the motion, and this
court affirmed the trial court's ruling in State v. Graggs, 10th Dist. No. 15AP-480, 2015-
Ohio-3990, ¶ 16 ("Graggs IV"). In Graggs IV, this court concluded that even if appellant
was unavoidably prevented from discovering Sealy's claims about Lanier, "Sealy's
statement does not dispel the possibility that appellant was still involved in Brock's murder
as an aider and abettor, as the jury apparently believed because it acquitted him of the
firearm specifications." Id. at ¶ 12.
No. 18AP-491                                                                                               5


        {¶ 9} Appellant filed a third motion for a new trial on July 14, 2016. In support of
his motion, appellant submitted a June 8, 2016 affidavit from Michael Shepard, who
claimed to have been in the apartment at the time Brock was shot. According to Shepard's
affidavit, he and Lanier were the only ones in the apartment with Brock when Brock was
shot. Though Shepard did not see Lanier shoot Brock because he was in the bathroom, he
avers that he heard three gunshots, and when he came out of the bathroom, he saw Lanier
standing over Brock's body with a gun in his hand. The trial court denied appellant's
motion, and appellant appealed to this court.
        {¶ 10} We affirmed the trial court in State v. Graggs, 10th Dist. No. 16AP-611, 2017-
Ohio-4454 ("Graggs V"). In concluding that Shepard's affidavit did not constitute newly
discovered evidence, for purposes of Crim.R. 33(B), this court stated:
                The only evidence [appellant] has presented to satisfy his
                burden of clearly and convincingly demonstrating that he was
                unavoidably prevented from discovering Shepard's existence
                is that [appellant] did not know Shepard at the time of Brock's
                murder. But the mere fact that [appellant] did not know of
                Shepard's existence at that time is simply another way of
                saying that he did not know the evidence in question existed.
                This is nothing more than a description of all undiscovered
                evidence. The issue is whether [appellant] has shown that he
                was "unavoidably prevented from the discovery of the
                evidence," not whether he knew it existed or not.

Id. at ¶ 15.
        {¶ 11} On January 22, 2018, appellant filed the instant petition for postconviction
relief pursuant to R.C. 2953.21. In support of the petition, appellant submitted several
affidavits including Bridges' July 15, 2013 affidavit, Shepard's June 8, 2016 affidavit, the
August 25, 2017 affidavit of Albert Mullins, the October 25, 2017 affidavit of Kim Graggs,2
and the December 13, 2017 affidavit of appellant. Plaintiff-appellee, State of Ohio, did not
file a response to the petition. In his petition, appellant claimed he was denied his
constitutional right to effective assistance of trial counsel due to counsel's failure to properly
investigate the case.        Appellant alleges that had trial counsel conducted a proper
investigation of his case and discovered the exculpatory evidence on which appellant now

2Kim Graggs merely authenticates a MapQuest search showing that the apartment where the crimes took
place is just .7 miles from the car wash appellant frequented. Appellant offered this evidence to explain how
his cell phone records could have shown that he was in the area at the time the crime took place.
No. 18AP-491                                                                            6


relies in support of his petition for postconviction relief, no reasonable jury could have
convicted him. Appellant averred in his affidavit, in relevant part, as follows:
               During our second meeting, before Mr. Morgan [appellant's
               trial counsel] told me about the fingertip of the latex glove
               being found in the murder scene apartment with my DNA in
               it, he asked me how could my DNA get into a latex glove.

               I informed Mr. Morgan that I wore latex gloves all the time
               while working. I worked at Yenkin Magestie Paint and went
               through 15 to 20 pair each day.

               ***

               After Mr. Morgan told me the location of the murder scene
               apartment, (3566 E. Main St), I informed Mr. Morgan that I
               had used the car wash at the service station at 3140 E. Main
               St all the time.

               ***

               I gave Mr. Morgan a list of three guys who knew that I used
               latex gloves while washing cars at the car wash that had
               worked for me, which included Albert Mullins.

               ***

               When I suggested to Mr. Morgan that someone could have
               tracked the fingertip in to the apartment, because I had never
               been to that apartment and it was right down the street from
               the car wash.

               Mr. Morgan told me that he was not going to trial with that.

               Mr. Morgan never said another word concerning Albert or my
               suggested theory.

               The first time I heard that Albert Mullins had worked for,
               stayed at or had anything to do with the Whitehall apartment
               or the people whom were involved in the drug trafficking from
               the Whitehall apartment was during my trial.

               In August 2017, it was the first time that I saw Albert Mullins
               since January 2008, before any arrest.

               During our third or fourth conversation, I was telling Albert
               about I had never been in the Whitehall apartment and did
No. 18AP-491                                                                                 7


               not know how a latex glove with my DNA got in to the
               Whitehall apartment.

               This is when Albert told me about how he had always took
               discarded latex gloves that we had used while working to the
               apartment to be reused there, it was not only mine that Albert
               took, but also others latex gloves.

               At no time before August 2017 was I aware of Albert collecting
               the discarded latex gloves of mine or others and taking the
               gloves into the Whitehall apartment or any place else.

(Appellant's Aff. at 1-2, attached as Ex. E to Jan. 22, 2018 Petition.)
       {¶ 12} On April 11, 2018, the trial court denied the petition without a hearing. The
trial court found it did not have jurisdiction to entertain appellant's successive petition for
postconviction relief because appellant failed to make the required showing, pursuant to
R.C. 2953.23(A)(1)(a), that he was unavoidably prevented from discovery of the facts on
which his petition relies. In the alternative, the trial court concluded appellant did not
present clear and convincing evidence that, but for the constitutional error, no reasonable
jury would have convicted him of robbery, kidnapping, and murder.
       {¶ 13} Appellant timely appealed to this court from the judgment of the trial court.
II. ASSIGNMENTS OF ERROR
       {¶ 14} Appellant assigns the following as trial court error:
               [1.] The trial court abused its discretion when it dismissed Mr.
               Graggs' successive post conviction petition when the record
               showed that (1) Mr. Graggs was unavoidably prevented from
               discovery of the facts upon which he relies, and (2) but for the
               constitutional error in his trial, no reasonable factfinder would
               have found Mr. Graggs guilty.

               [2.] The trial court abused its discretion when it failed to hold
               an evidentiary hearing on Graggs' successive post conviction
               petition when the full balance of the evidence dehors the
               record, set forth sufficient operative facts that demonstrate
               substantial grounds for relief.

               [3.] Graggs' Conviction and Sentence is voidable because
               Graggs was denied the effective assistance of counsel in
               violation of his right under the Sixth Amendment of the United
               States Constitution.
No. 18AP-491                                                                                  8


III. STANDARD OF REVIEW
       {¶ 15} "The appropriate standard for reviewing a trial court's decision to dismiss a
petition for postconviction relief, without an evidentiary hearing, involves a mixed question
of law and fact." State v. Lacking, 10th Dist. No. 14AP-691, 2015-Ohio-1715, ¶ 8, citing
State v. Tucker, 10th Dist. No. 12AP-158, 2012-Ohio-3477, ¶ 9. "This court must apply a
manifest weight standard in reviewing a trial court's findings on factual issues underlying
the substantive grounds for relief, but we must review the trial court's legal conclusions de
novo." Lacking at ¶ 8. For example, 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, which appellate courts review de novo. State v.
Apanovitch, __ Ohio St.3d __, 2018-Ohio-4744, ¶ 24 (slip opinion), quoting State v. Kane,
10th Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9.
IV. LEGAL ANALYSIS
       A. Appellant's First and Second Assignments of Error
       {¶ 16} Because appellant's first and second assignment of error are interrelated, we
will consider them together. In appellant's first and second assignments of error, appellant
argues because he made the required showing that he was unavoidably prevented from
discovering the facts supporting his claim of ineffective assistance of trial counsel and that,
but for trial counsel's ineffectiveness, no reasonable jury could have convicted him, the trial
court erred when it dismissed his successive petition for postconviction relief without an
evidentiary hearing. For the reasons that follow, we agree the trial court erred in ruling on
the petition, and we remand the matter to the trial court to reconsider the petition.
       {¶ 17} In his latest petition for postconviction relief, appellant contends his trial
counsel's failure to conduct a proper investigation of his case amounted to a denial or
infringement of his right to counsel as guaranteed by the Sixth Amendment to the U.S.
Constitution and Section 10, Article I of the Ohio Constitution. When a petition for
postconviction relief is either untimely filed or is a successive petition, R.C. 2953.23 governs
the trial court proceedings and provides, in relevant part, as follows:
               (A) Whether a hearing is or is not held on a petition filed
               pursuant to section 2953.21 of the Revised Code, a court may
               not entertain a petition filed after the expiration of the period
               prescribed in division (A) of that section or a second petition or
No. 18AP-491                                                                                 9


                successive petitions for similar relief on behalf of a petitioner
                unless division (A)(1) or (2) of this section applies:

                (1) Both of the following apply:

                (a) Either the petitioner shows that the petitioner was
                unavoidably prevented from discovery of the facts upon
                which the petitioner must rely to present the claim for relief
                * * *.

                (b) The petitioner shows by clear and convincing evidence
                that, but for constitutional error at trial, no reasonable
                factfinder would have found the petitioner guilty of the offense
                of which the petitioner was convicted * * *.

(Emphasis added.)
       {¶ 18} The Supreme Court of Ohio in Apanovitch recently concluded that "a
petitioner's failure to satisfy R.C. 2953.23(A) deprives a trial court of jurisdiction to
adjudicate the merits of an untimely or successive postconviction petition." Id. at ¶ 36.
Accordingly, "a criminal defendant seeking to challenge his conviction through a petition
for postconviction relief is not automatically entitled to an evidentiary hearing." State v.
Calhoun, 86 Ohio St.3d 279, 282 (1999), citing State v. Cole, 2 Ohio St.3d 112 (1982). A
court may dismiss a petition for postconviction relief without a hearing when the petitioner
fails to submit evidentiary material "demonstrat[ing] that petitioner set forth sufficient
operative facts to establish substantive grounds for relief." Calhoun at paragraph two of
the syllabus.
       {¶ 19} In support of the petition, appellant submitted several affidavits including
Bridges' July 15, 2013 affidavit, Shepard's June 8, 2016 affidavit, Mullins' August 25, 2017
affidavit, the October 25, 2017 affidavit of Kim Graggs, and the December 13, 2017 affidavit
of appellant. The trial court found it did not have jurisdiction to entertain appellant's
successive petition for postconviction relief because appellant failed to make the required
showing, pursuant to R.C. 2953.23(A)(1)(a), that he was unavoidably prevented from
discovery of the facts on which his petition relies. In denying appellant's petition, without
an evidentiary hearing, the trial court noted: "So far as the court can observe, the only 'new'
material filed with this successive petition is a self-serving affidavit from [appellant],
notarized on December 13, 2017, and a very short affidavit from Kim Graggs authenticating
No. 18AP-491                                                                               10


a Map Quest [sic] search, notarized on October 25, 2017." (Apr. 11, 2018 Journal Entry at
1-2.) The trial court's decision does not mention Mullins' affidavit, even though Mullins'
affidavit postdates all of appellant's prior postconviction motions and petitions.
       {¶ 20} With respect to the Shepard affidavit, however, the trial court correctly
determined appellant was not unavoidably prevented from discovery of the facts contained
therein because appellant had previously submitted the same affidavit in connection with
his July 14, 2016 motion for leave to file a delayed motion for new trial. In affirming the
trial court's denial of the motion, this court agreed with the trial court that appellant was
not unavoidably prevented from discovering the facts in the Shepard affidavit. Similarly,
appellant previously submitted Bridges' affidavit to the trial court in support of his
August 8, 2013 motion for leave to file a delayed motion for new trial. The trial court denied
the motion, and this court affirmed the trial court in Graggs III on finding that appellant
failed to show he could not have discovered Bridges' evidence within the time prescribed
for a timely filed motion for new trial. Id. at ¶ 11. Similarly, the affidavit of Kim Graggs
does not supply any facts that were not readily available to appellant at the time of his
criminal trial. Thus, appellant cannot now rely on the facts in the affidavits of Shepard,
Bridges, and Kim Graggs to establish the trial court's jurisdiction of his successive petition
for postconviction relief.
       {¶ 21} With regard to the Mullins affidavit, however, our review of the trial court
decision shows the trial court failed to consider this affidavit in ruling on appellant's
petition. As noted above, the trial court did not mention the Mullins affidavit when it listed
the "new" evidence filed with the petition even though the affidavit postdated all of
appellant's prior postconviction motions and petitions. Additionally, the trial court's
discussion of the Mullins evidence is as follows:
               Albert Mullins is, likewise, not newly discovered. [Apellant's]
               2017 affidavit states that in preparing for his trial "I gave Mr.
               Morgan a list of three guys who knew that I used latex gloves
               while washing cars at the car wash *** which included Albert
               Mullins." (Affidavit marked Ex. "E", at p. 1.) Thereafter,
               Mullins name came up during [appellant's] January 2009
               trial. "The first time I heard that Albert Mullins had worked
               for, stayed at or had anything to do with the Whitehall
               apartment or the people whom [sic] were involved in the drug
               trafficking from the Whitehall apartment was during my
               trial." (Exhibit "E" p. 2.) According to [appellant], he finally
No. 18AP-491                                                                                11


               met with Mullins while both were in prison in August 2017.
               Subsequently "Albert told me about how he had always took
               discarded latex gloves that we had used while working to the
               apartment to be reused there, it was not only mine that Albert
               took, but also others['] latex gloves." (Ex. "E" p. 2).

               On one hand, [appellant] claims that he suggested to his trial
               counsel in 2009 that "someone could have tracked the
               fingertip [of the incriminating glove] in to the apartment" but
               on the other hand asserts "[a]t no time before August 2017
               was I aware of Albert collecting the discarded latex gloves of
               mine or others and taking the gloves into the Whitehall
               apartment." (Ex. "E" p. 2.) These statements appear
               contradictory. More importantly, the absence of any
               statement from Mr. Mullins himself makes the whole
               discussion frustratingly incomplete.

(Emphasis added.) (Apr. 11, 2018 Journal Entry at 2-3.)
       {¶ 22} The trial court decision clearly shows that no consideration was given to
Mullins' affidavit.   Though the trial court did consider appellant's affidavit wherein
appellant references Mullins' evidence, the trial court's decision shows it did not consult
Mullins' affidavit before ruling on appellant's petition. Mullins' affidavit, which is attached
as an exhibit to appellant's petition, provides, in relevant part, as follows:
               1. There were many times that I and others had used latex
               gloves in the apartment of Marcus Jones, during the time he
               lived in the apartment where Fred Brock was killed.

               ***

               9. I and others helped [appellant] paint other apartments and
               during these times he would always hand out and ware [sic]
               latex gloves.

               10. Many times I and others would help [appellant] detail
               cars, plus two times a week I would help him wash his and his
               wife's car, [appellant] always wore larex gloves.

               ***

               12. After we were done doing a job, I would clean up the area,
               which included rags, paper towels and latex gloves. I am not
               sure if [appellant] noticed me collecting the used latex gloves
               or even if he cared.

               ***
No. 18AP-491                                                                            12


               16. I never thought that [appellant] had anything to do with
               the murder, because I knew that he did not know Lanier or
               about the drug dealing going on in the apartment.

               17. In late 2009 after finding out that the A.P.A. had a warrant
               out on me for non reporting to my parole officer, I moved to
               Tennessee.

               18. In 2011, I was arrested in Tennessee and returned to
               Columbus. I was released from prison in 2013 and returned
               to Columbus.

               19. In 2017, I was arrested and returned to the Correctional
               Reception Center, where I ran into [appellant]. It was the first
               time I had saw him since late January 2008.

               20. During a conversation [appellant] stated that he had
               never been in the apartment and did not know how his DNA
               got in the apartment.

               21. I was under the impression that he was talking about his
               blood, hair or fingerprints, until in another conversation he
               told me about it was a fingertip of a latex glove.

               22. That is when I told him about how I had collected the used
               latex gloves from our worksites, which included his and took
               the gloves to the apartment many times to be reused.

               23. Up to that point I had no idea that the used latex gloves I
               had collected to be reused in the apartment may have had
               anything to do with [appellant's] case.

               24. At no time did anyone talk to me about anything to do
               with the murder of Brock or [appellant].

(Sic passim.) (Mullins' Aff. at 1-3, attached as Ex. C to Jan. 22, 2018 Petition.)
       {¶ 23} Appellant argues that he was unavoidably prevented from discovery of the
facts contained in Mullins' affidavit within the time permitted by R.C. 2953.21 to file a
timely petition for postconviction relief.    More particularly, appellant claims he was
unaware of Mullins' potentially exculpatory testimony until August 2017, when he ran into
Mullins in prison and that he was unable to learn of Mullins' evidence until that time. The
trial court determined appellant was not unavoidably prevented from discovering Mullins'
potentially exculpatory testimony because he had told his trial counsel that others,
including Mullins, could have been the source of the latex glove containing his DNA and
No. 18AP-491                                                                                     13


because appellant learned during his trial that Mullins had been one of the individuals
involved in the drug business at Brock's home.
          {¶ 24} "[I]n order to obtain relief pursuant to Crim.R. 33(B) or R.C. 2953.23, a
movant/petitioner must satisfy the threshold requirement of unavoidable prevention."
State v. Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, ¶ 27. " 'The phrase "unavoidably
prevented" in R.C. 2953.23(A)(1)(a) means that a defendant was unaware of those facts and
was unable to learn of them through reasonable diligence.' " Id. at ¶ 28, quoting State v.
Howard, 10th Dist. No. 15AP-161, 2016-Ohio-504, ¶ 21.
          {¶ 25} The trial court denied appellant's petition for postconviction relief without an
evidentiary hearing and, in doing so, did not consider Mullins' affidavit. In the context of a
petition for postconviction relief, "the trial court may, under appropriate circumstances,
deem affidavit testimony to lack credibility without first observing or examining the
affiant." State v. Taylor, 10th Dist. No. 14AP-166, 2014-Ohio-3574, ¶ 16, citing State v.
Davis, 10th Dist. No. 13AP-98, 2014-Ohio-90, ¶ 26, citing Calhoun, 86 Ohio St.3d at 284.
"[I]n determining the credibility of supporting affidavits in postconviction relief, trial courts
should consider all relevant factors, including: '(1) whether the judge reviewing the
postconviction relief petition also presided at the trial, (2) whether multiple affidavits
contain nearly identical language, or otherwise appear to have been drafted by the same
person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are
relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts,
and (5) whether the affidavits contradict evidence proffered by the defense at trial.' " Taylor
at ¶ 23, quoting Calhoun at 285. A trial court may also find sworn testimony in an affidavit
to be contradicted by evidence in the record by the same witness or to be internally
inconsistent, thereby weakening the credibility of that testimony. Taylor at ¶ 24. Such
credibility determinations are within the trial court's discretion and an appellate court
should not overturn the trial court's determinations absent an abuse of discretion. Calhoun
at 285.
          {¶ 26} If appellant's affidavit is believed, appellant's trial counsel told appellant that
locating other possible sources of the latex glove containing his DNA was not an effective
theory of innocence. According to appellant's affidavit, when he told trial counsel about
other possible sources of the latex glove, including Mullins, trial counsel told appellant that
No. 18AP-491                                                                                              14


"he was not going to trial with that" and "never said another word concerning Albert or my
suggested theory." (Appellant's Aff. at 1.) We also note the trial transcript in this case shows
that local law enforcement were not able to locate Mullins prior to trial and did not know
Mullins' whereabouts at the time of trial.3 Accordingly, even though appellant learned
during his criminal trial that Mullins was part of the drug ring that operated out of the
apartment where Brock was killed, the record supports a finding that Mullins' whereabouts
were unknown at that time.4
        {¶ 27} Furthermore, if Mullins' affidavit is believed, Mullins left Ohio and "[i]n late
2009, after finding out that the A.P.A. had a warrant out on [him] for non reporting to [his]
parole officer, [he] moved to Tennessee," and he did not return until 2011 when he was
arrested in Tennessee and returned to Ohio. (Mullins' Aff. at 2.) Mullins averred that he
was incarcerated until 2013 and then arrested again in 2017 when he ran into appellant at
the Corrections Reception Center. Appellant averred that in August 2017, he had several
conversations with Mullins and that Mullins eventually told him about the latex gloves.
Thus, the evidence in the record, including Mullins' affidavit, provides some evidentiary


3Detective Steve Brown of the Whitehall Police Department testified at appellant's trial that he investigated
the murder that occurred on January 8, 2008. Brown testified that police obtained DNA samples from several
individuals who had either been seen in the area on or about the time of the crime or who were suspected of
being involved in drug trafficking in the area including appellant, ones, Brian Boreman, Destiny Wade, and
Lanier. Brown explained that he was attempting to match the DNA profiles of these individuals to the DNA
evidence found on latex gloves in the apartment. On direct examination by the prosecutor, Brown testified as
follows:

                 Q: A final name, Albert Mullins. Did the name Albert Mullins come in to
                 the picture at some point?
                 A. Yea.
                 Q. When did Albert Mullins' name pop up?
                 A. After [appellant's] arrest.
                 Q. Did you ever get an opportunity to speak to Mr. Mullins?
                 A. No.
                 Q. Did you ever meet Mr. Mullins?
                 A. No.
                 Q. Did you ever find Mr. Mullins?
                 A. Did not find him.
                 Q. So to this day, do you know where Albert Mullins is?
                 A. No.

(Jan. 16, 2009 Tr. Vol. IV at 615.)

4 Under former R.C. 2953.21(A)(1)(b)(2), the 180-day period for filing a timely petition for postconviction
relief commenced on May 14, 2009, when the trial transcript was filed with this court in appellant's appeal
from the judgment of conviction and sentence and ended on November 10, 2010.
No. 18AP-491                                                                                               15


support for appellant's claim that he was unavoidably prevented from discovering the facts
on which his petition relies until August 2017. Mullins' affidavit is dated August 25, 2017,
and appellant filed his petition for postconviction relief on January 22, 2018.
        {¶ 28} Because the trial court did not consider Mullins' affidavit and did not conduct
a credibility analysis of the affidavits submitted in support of his petition, the trial court
erred by dismissing the petition, without a hearing, on finding that appellant failed to show
he was unavoidably prevented from discovering the facts on which his petition relies.
Under the circumstances, any determination by this court of the merits of appellant's claim
that he was unavoidably prevented from discovering the facts supporting his petition would
be premature. Calhoun at 285. It is for the trial court, in the first instance, to conduct a
credibility analysis of the affidavits submitted by appellant and to determine whether
appellant is entitled to a hearing on the merits of the petition.                     Id.   See also R.C.
2953.22(D).5
                1. R.C. 2953.23(A)(1)(b) "but for the constitutional error."
        {¶ 29} The trial court further concluded, pursuant to R.C. 2953.23(A)(1)(b), that
"there is not clear and convincing evidence that, but for constitutional error at trial,
[appellant] would have avoided criminal liability." (Apr. 11, 2018 Journal Entry at 3.) In
reaching this conclusion, the trial court reasoned as follows:
                The[] mere fact that others using the Whitehall apartment for
                drug storage and trafficking might have taken used latex
                gloves in to the apartment – even a glove containing
                [appellant's] DNA – is not necessarily exculpatory for
                [appellant]. He too might have gone there, or so any jury
                might reasonably conclude when a piece of a latex glove was
                found near the body after the murder, and other evidence
                independently pointed toward [appellant]. Thus, the second
                requirement of R.C. 2953.23(A)(1)(b) has also not been met.

(Emphasis added.) (Apr. 11, 2018 Journal Entry at 3.)
        {¶ 30} The trial court reached its conclusion under R.C. 2953.23(A)(1)(b) without
the benefit of reviewing Mullins' affidavit. Our review of Mullins' affidavit leads us to the
conclusion that the facts contained therein, if believed, cast doubt on the one piece of
physical evidence submitted by the state that places appellant inside the apartment where

5We note that the trial judge who presided over appellant's criminal trial in 2009 is the same judge who ruled
on appellant's 2018 petition for postconviction relief.
No. 18AP-491                                                                                       16


the crimes took place and contradicts appellant's statement to police that he had never been
in the apartment where Brock was killed. Though the cell phone records "established that
calls from appellant's cell phone were made in the vicinity of Marcus's apartment near the
time of the shooting," absent the DNA evidence, the phone records alone do not prove
appellant was in the apartment at the time the crimes were committed. Graggs I, 2009-
Ohio-5975, at ¶ 25. Similarly, while appellant's spending spree the day after the crimes
provides circumstantial evidence appellant may have come into possession of the $35,000
in cash stolen from the apartment where the crimes took place, the theory of guilt the state
presented to the jury was based exclusively on appellant's presence in the apartment at the
time Brock was shot.6
           {¶ 31} In our view, it is one thing for appellant to aver that Mullins might have
transferred a glove containing appellant's DNA to the apartment where the crimes took
place but it is quite another for Mullins to aver that he did, in fact, physically transfer latex
gloves containing appellant's DNA to the crime scene where a latex glove containing
appellant's DNA was later found by police under Brock's lifeless body. Mullins' testimony
provides an explanation of how appellant's DNA could be found on the tip of a latex glove
near Brock's body without appellant ever being present in the apartment where the crimes
took place. In the absence of DNA evidence found on the latex glove, there was no physical
evidence to support a finding that appellant had ever been in that apartment. Under the
state's theory of guilt, appellant could not have been convicted either as a principal offender
or as an aider and abettor to murder, aggravated burglary, and kidnapping if he was not in
the apartment with Brock at the time the crimes were committed. If appellant's affidavit is
to be believed, he informed his trial counsel prior to trial that certain other individuals,



6   In closing argument, the prosecutor told the jury the following:

                   There's no other reasonable explanation for [appellant’s] DNA being in a
                   rubber glove at the scene of a murder other than the fact that he was wearing
                   that glove and somehow that glove got broke apart and got ripped off when
                   taking it off and left a piece of it there. Bad for him.

                   No other reasonable explanation as to his DNA being in a rubber glove found
                   at the scene of a homicide, and, again, ladies and gentlemen, in an
                   apartment, by his own words, he's never been in in his life.

(Jan. 16, 2009 Tr. Vol. V at 771-72.)
No. 18AP-491                                                                                17


including Mullins, might be the source of the latex glove containing appellant's DNA, but
his counsel dismissed appellant's theory and refused to investigate the matter.
       {¶ 32} As previously stated, the trial court's decision denying appellant's petition,
without a hearing, shows the trial court did not give any consideration of Mullins' affidavit.
The trial court found certain statements in appellant's affidavit "appear contradictory" but,
in reaching that conclusion, the trial court acknowledged "the absence of any statement
from Mr. Mullins himself makes the whole discussion frustratingly incomplete." (Apr. 11,
2018 Journal Entry at 3.) Thus, the trial court did not fully and fairly consider the relevant
evidence submitted by appellant in support of his claim of ineffective assistance of trial
counsel.
       {¶ 33} "Where ineffective assistance of counsel is alleged in a petition for
postconviction relief, the defendant, in order to secure a hearing on his petition, must
proffer evidence which, if believed, would establish not only that his trial counsel had
substantially violated at least one of a defense attorney's essential duties to his client but
also that said violation was prejudicial to the defendant." Cole, 2 Ohio St.3d at 114, citing
State v. Jackson, 64 Ohio St.2d 107, 110 (1980). Broad assertions without a further
demonstration of prejudice and conclusory allegations to the effect that a defendant has
been denied ineffective assistance of counsel are inadequate as a matter of law to impose
an evidentiary hearing. Jackson at 111. Generally, the petitioner satisfies his initial burden
by submitting evidence of matters outside the record which raises a colorable claim of
ineffective assistance of counsel. State v. Hester, 45 Ohio St.2d 71, 79 (1976). See also State
v. Bethel, 10th Dist. No. 07AP-810, 2008-Ohio-2697, ¶ 33-34.
       {¶ 34} For purposes of a successive petition for postconviction relief, in order to
prove ineffective assistance of counsel, a petitioner must show, by clear and convincing
evidence, that his lawyer's conduct fell below reasonable professional standards and that,
but for trial counsel's ineffectiveness, no reasonable jury would have found him guilty of
the offenses of which he was convicted. R.C. 2953.23(A)(1)(b); Strickland v. Washington,
466 U.S. 668, 687-94 (1984); State v. Johnson, 88 Ohio St.3d 95, 108 (2000). Reasonable
investigation is a critical component of competent representation, and the prejudicial
failure to conduct reasonable investigation is ineffective assistance. Strickland at 690-91.
"Counsel for a criminal accused has 'a duty to make reasonable investigations or to make a
No. 18AP-491                                                                                                   18


reasonable decision that makes particular investigations unnecessary.' " Howard, 2016-
Ohio-504, at ¶ 25, quoting Strickland at 691.
        {¶ 35} Because the trial court, in this case, did not consider Mullins' affidavit and
did not conduct a credibility analysis of the relevant affidavits submitted in support of his
petition, a determination by this court of the merits of appellant's claim of ineffective
assistance of counsel would be premature. It is for the trial court, in the first instance, to
conduct an evaluation of the credibility of the relevant affidavits and to make a
determination whether appellant is entitled to an evidentiary hearing on the merits of his
petition. Because the necessary credibility analysis is a matter within the discretion of the
trial court, this court will not conduct the analysis in the first instance. Calhoun, 86 Ohio
St.3d at 325.
        {¶ 36} For the foregoing reasons, we hold the trial court erred when it denied
appellant's petition without giving any consideration to Mullins' affidavit and without
conducting the credibility analysis necessary to determine whether appellant is entitled to
a hearing on his petition. R.C. 2953.23; Apanovitch. Accordingly, we sustain appellant's
first and second assignments of error, in part, and remand this matter to the trial court for
further proceedings on appellant's petition.7
        B. Third Assignment of Error
        {¶ 37} In his third assignment of error, appellant contends that his convictions are
"voidable" because he was denied the effective assistance of trial counsel. (Appellant's Brief
at 20.) In light of our resolution of appellant's first and second assignments of error and
our order remanding this matter to the trial court for further proceedings, appellant's third
assignment of error is moot. App.R. 12(A)(1)(C).




7 The trial court's alternative holding that res judicata bars appellant for raising his ineffective assistance of

counsel claim because he has previously raised claims of ineffective assistance of trial counsel in state and
federal court is also without merit. Appellant's discovery of the facts in Mullins' affidavit postdates all prior
proceedings in this matter, either in state or federal court. Consequently, res judicata would not present a bar
to appellant's petition for postconviction relief predicated on trial counsel's failure to investigate Mullins'
evidence if the trial court determines, on remand, that appellant was unavoidably prevented from discovering
the facts in Mullins' affidavit prior to August 2017. See Kane, 2017-Ohio-7838, at ¶ 15 (the purpose behind
R.C. 2953.23 is to permit trial courts to consider factual information that may come to light after a defendant's
trial).
No. 18AP-491                                                                           19


V. CONCLUSION
       {¶ 38} Having sustained appellant's first and second assignments of error, in part,
and having found appellant's third assignment of error moot, we hereby reverse the
judgment of the Franklin County Court of Common Pleas and remand the matter for
further proceedings consistent with this decision.
                                                                     Judgment reversed;
                                                                       cause remanded.
                    DORRIAN and LUPER SCHUSTER, JJ., concur.
                                   _____________
