[Cite as State v. Croom, 2016-Ohio-6997.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )            CASE NO. 15 MA 0110
V.                                              )
                                                )                  OPINION
STANLEY CROOM,                                  )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Mahoning County, Ohio
                                                Case No. 2010 CR 35

JUDGMENT:                                       Affirmed

APPEARANCES:
For Plaintiff-Appellee                          Paul Gains
                                                Prosecutor
                                                Ralph M. Rivera
                                                Assistant Prosecutor
                                                21 W. Boardman St., 6th Floor
                                                Youngstown, Ohio 44503

For Defendant-Appellant                         Attorney Fred D. Middleton
                                                3139 Morley Road
                                                Cleveland, Ohio 44122


JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                Dated: September 22, 2016
[Cite as State v. Croom, 2016-Ohio-6997.]
DONOFRIO, P.J.

        {¶1}    Defendant-appellant, Stanley Croom, appeals from a Mahoning County
Common Pleas Court judgment denying his motion for leave to file a postconviction
petition.
        {¶2}    This case has been before this court on multiple occasions. The facts
were set out in appellant’s direct appeal as follows:

                Around 7:20 p.m. on December 29, 2009, a man entered Belleria
        Pizza in Youngstown with a gun and demanded money from the
        register. The cashier hit a panic button, which alerted the Youngstown
        police. When she could not open the register, the robber left the store.
        She reported to Youngstown police that the robber was a black male
        around 50 years old wearing a black coat with brown fur around the
        hood. It was also reported that he was approximately 6 feet tall and 200
        pounds.
                The first responding officer watched the store's surveillance
        video and noticed that the robber had on a black wave cap and that he
        raised the fur-trimmed hood on his dark jacket as he neared the
        register. In addition, the officer noticed that the robber wore dark gloves
        with yellow writing on them.
                A bystander outside of the restaurant reported the robbery to a
        police officer at Youngstown State University, stating that the robber
        was a dark-complected black man wearing a thick, black coat with fur
        and that another black male wearing a black hat was the get-away
        driver of an older model dark pink or maroon Lincoln with damage to
        the rear. (Tr. 687).
                A police officer listening to the bulletin realized that she was
        familiar with the vehicle described therein. She testified to its distinctive
        “weird” color and the rear-end damage. She knew where the owner of
        the car lived because she worked security at his apartment building.
        (Tr. 666). She did not find the car there, but she did see it while
                                                                              -2-


       patrolling the streets less than an hour after the robbery, and she thus
       effected a stop of the vehicle. (Tr. 667).
               Defendant-appellant Stanley Croom, the car's owner whom she
       recognized, was driving. (Tr. 670). Jeffrey Shorter, appellant's co-
       defendant in the robbery case, was the passenger. (Tr. 673). A black
       hat and black gloves with yellow writing were found in the vehicle. (Tr.
       651). There was a large amount of DNA on both items that belonged to
       Shorter, and the gloves also had some DNA consistent with appellant's
       DNA (but also consistent with one out of fifty people).
               Two days after the robbery, a detective showed two six-person
       photographic arrays to the victim. The victim picked the photograph of
       appellant from the second array. She did not identify anyone from the
       first array, which contained Shorter's photograph.

State v. Croom, 7th Dist. No. 12 MA 54, 2013-Ohio-5682, ¶ 3-8.
       {¶3}    Appellant was convicted of aggravated robbery with a firearm
specification, having a weapon under disability, and attempted aggravated murder
with a repeat violent offender specification (stemming from a charge that he
attempted to have the victim/witness murdered). The trial court sentenced him to a
total prison term of 30 years.
       {¶4}    In his direct appeal, this court reversed the having a weapon under
disability conviction and remanded that matter.        We affirmed appellant’s other
convictions.    Plaintiff-appellee, the State of Ohio, later dismissed the having a
weapon under disability charge.
       {¶5}    Relevant to this case is another case in which only Shorter was indicted
and convicted. A robbery was committed at a Walgreen’s store just days before the
Belleria robbery. Shorter was charged in that case and eventually pleaded guilty to
the Walgreen’s robbery.          There was a surveillance video available from the
Walgreen’s robbery. Appellant has contended throughout these proceedings that the
Walgreen’s video and the Belleria surveillance video show that it was the same
                                                                                  -3-


person (Shorter) who committed both of the robberies.
         {¶6}   Appellant filed his first postconviction petition on January 14, 2013.
This petition focused on DNA evidence and witness credibility but it also mentioned
the Walgreen’s video. The trial court denied the petition. Appellant filed an appeal
from that denial. State v. Croom, 7th Dist. No. 13 MA 98, 2014-Ohio-5635. We
affirmed the trial court’s judgment.
         {¶7} Appellant filed his second postconviction petition on October 29, 2014.
This time he included the Walgreen’s video. The trial court overruled the petition.
Appellant filed an appeal from that denial. Recently, we affirmed the trial court’s
judgment. State v. Croom, 7th Dist. No. 14-MA-175, 2016-Ohio-5686.
         {¶8}   Appellant next filed a “Motion for Leave to File Petition for Post
Conviction Relief Pursuant to Ohio Revised Code 2953.21” (his third postconviction
petition and the one that is the subject of this appeal) on December 18, 2014.
Appellant alleged that he was entitled to postconviction relief based on the “newly
discovered” video of the Walgreen’s robbery, which was allegedly not produced
during discovery. In support of his claims, appellant attached the affidavits of two of
his three prior trial counsel who averred that they did not receive and were not told of
the Walgreen’s video. He claimed the Walgreen’s video was not provided to him until
two years after his conviction and even then, he could not view it because it required
an expert videographer to enhance and print them. Appellant also attached his own
affidavit stating that he has never actually seen the Walgreen’s video.
         {¶9}   In response, the state filed a motion for summary judgment. The state
alleged appellant could not prove he was unavoidably prevented from discovering the
Walgreen’s video in a timely manner because his prior counsel was aware of the
video.     Additionally, the state argued, even if appellant could prove he was
unavoidably prevented from discovering the video, he did not establish by clear and
convincing evidence that, but for constitutional error at trial, no reasonable factfinder
would have found him guilty.
         {¶10} In support of its motion, the state attached the affidavit of the prosecutor
                                                                                  -4-


who prosecuted appellant’s and Shorter’s cases. The prosecutor stated that on May
20, 2010, appellant’s first appointed counsel filed a motion for exculpatory evidence
in which he requested, among other items, all video tapes of any other aggravated
robberies of which Shorter was a suspect. The prosecutor stated that she personally
spoke to both appellant’s and Shorter’s counsel concerning the Walgreen’s robbery
and reviewed the photographs and video from the Walgreen’s robbery with both
counsel. The prosecutor further averred that appellant’s counsel was aware of the
Walgreen’s robbery and reviewed the video.
       {¶11} The trial court granted the state’s motion for summary judgment and
denied appellant’s motion for leave to file a postconviction petition. The court noted
that because this was a successive postconviction petition, appellant first had to
establish that he was unavoidably prevented from the discovery of facts upon which
he now relies to present his claim. The court found that appellant’s former counsel
was aware that Shorter was a suspect in the Walgreen’s robbery. It further noted
that at appellant’s and Shorter’s sentencing hearing, appellant claimed the
prosecutor knew he was not guilty because she indicted someone else for the
Walgreen’s robbery based on the same photographs used in his case and mentioned
the video. The trial court also pointed out that this court referenced the video in
appellant’s direct appeal from his conviction. Finally, the court noted that appellant’s
current counsel received a copy of the video on or about February 27, 2014. Yet
appellant did not file his postconviction motion until October 29, 2014. Thus, the
court found appellant was unable to establish that he was unavoidably prevented
from discovering the Walgreen’s video and denied appellant’s motion.
       {¶12} Appellant filed a timely notice of appeal on July 8, 2015. Appellant
raises two assignments of error. In both assignments of error, appellant argues the
trial court erred in overruling his postconviction petition without first holding a hearing
and makes the same arguments in support.             Therefore, we will address them
together.
       {¶13} Appellant’s first assignment of error states:
                                                                            -5-


             THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
       POST-CONVICTION         PETITION       WHERE      HE     PRESENTED
       SUFFICIENT OPERATIVE FACTS TO MERIT AN EVIDENTIARY
       HEARING AND REVERSAL BASED ON NON PRODUCTIONS OF
       DISCOVERY      IN   VIOLATION     OF   APPELLANT’S       RIGHTS     AS
       GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH
       AMENDMENTS TO THE UNITED STATES CONSTITUTION.

       {¶14} Appellant’s second assignment of error states:

             THE COURT ERRED IN OVERRULING THE MOTION FOR A
       NEW    TRIAL    BASED     ON    NEWLY     DISCOVERED       EVIDENCE
       PURSUANT TO OHIO RULE OF PROCEDURE 33 AND OHIO
       REVISED CODE SECTION 2353.21.

       {¶15} Appellant argues the state was in possession of the Walgreen’s video
prior to his trial but never mentioned it to him. Appellant asserts his defense was
based on his being misidentified by the Belleria cashier. He claims he did not learn
about the Walgreens video until two years after he had already been in prison. The
Walgreen’s video, appellant claims, shows that Shorter was the robber at Walgreen’s
and when viewed with the Belleria video, shows that Shorter was the robber there as
well. Appellant urges these facts show that he could not present this evidence within
180 days of his conviction. He claims the state withheld this exculpatory evidence
from him. Appellant asserts the affidavits he presented demonstrate that the state
only mentioned and produced the Belleria video, not the Walgreen’s video. For these
reasons, appellant argues the trial court erred in failing to hold a hearing on his
petition.
       {¶16} An appellate court reviews a trial court's denial of a petition for
postconviction relief under an abuse of discretion standard. State v. Gondor, 112
Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. Abuse of discretion connotes
                                                                               -6-


more than an error of law; it implies the trial court acted arbitrarily, unreasonably,
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
      {¶17} A postconviction petitioner is not automatically entitled to a hearing.
State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982).            Before granting an
evidentiary hearing on the petition, the trial court shall determine whether there are
substantive grounds for relief. R.C. 2953.21(C). The trial court's decision of whether
to hold an evidentiary hearing in postconviction matters is reviewed for abuse of
discretion. State v. Haschenburger, 7th Dist. No. 08-MA-223, 2009-Ohio-6527, ¶ 43.
      {¶18} A trial court may not entertain a second postconviction petition or
successive postconviction petitions unless 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, or, subsequent to the
      period prescribed in division (A)(2) of section 2953.21 of the Revised
      Code or to the filing of an earlier petition, the United States Supreme
      Court recognized a new federal or state right that applies retroactively
      to persons in the petitioner's situation, and the petition asserts a claim
      based on that right.
             (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 * * *.

R.C. 2953.23(A).
      {¶19} The thrust of appellant’s argument as to why he was unavoidably
prevented from discovering the facts upon which he now relies is that the prosecutor
never informed him of the Walgreen’s video and he was unaware of the video until
two years after he was convicted.
      {¶20} But the record is replete with examples that appellant was aware of the
                                                                              -7-


Walgreen’s video as early as May 2010.
       {¶21} On May 20, 2010, while preparing for trial, appellant’s first appointed
counsel filed a motion for exculpatory evidence. The motion specifically requested
the state to provide appellant “with all police reports, witness statements, pictures,
and video tapes of any other aggravated robberies of which co-Defendant Jeffrey
Shorter is a suspect.”    (Emphasis added; May 20, 2010, Defendant’s Motion for
Exculpatory Evidence). The motion stated it was appellant’s belief that these items
contained exculpatory evidence.
       {¶22} A year later, on May 12, 2011, appellant’s third appointed counsel filed
a motion to withdraw. In support, counsel attached a copy of a letter appellant wrote
to him.   Included in appellant’s letter to his third appointed counsel, were the
following statements: “Then the original disk of the robbery to prove it’s not me
nobody wants to put it on display. You as my attorney should be hell over hills
getting that. Not no copy of it but the original!!!” (May 12, 2011, Motion to Withdraw
as Counsel).
       {¶23} Then on August 1, 2011, appellant wrote a letter to the trial court. In
the letter appellant wrote, “I know for a fact that you and the prosecutor know this as
well. How I know this: for a victim to point finger at me robbing her and the same
person on camera robbing a Walgreens that suppose [sic.] to have robbed Belleria.
That be the case then why was Shorter indicted for robbing Walgreens if I am the
person in the photo robbing Belleria?” (August 1, 2011, letter to court).
       {¶24} And at appellant’s sentencing hearing, he stated that the prosecutor
“knows I’m not the robber because she did indict someone else for another robbery
based upon the same photos of the robbery in this case that was used in this
robbery.” (Sentencing Tr. 26). When the court stated it did not know anything about
that situation, appellant stated, “[t]he Walgreen’s robbery that she indicted Mr.
Shorter on[.]” (Sentencing Tr. 26).
       {¶25} Moreover, in appellant’s direct appeal of his conviction, his appointed
counsel stated that appellant complained that the state “withheld a video tape of
                                                                            -8-


another robbery,” which appellant believed would exonerate him. (Appellate brief
filed November 21, 2012, case number 12-MA-54). Counsel then stated, however,
there was nothing in the record to suggest these allegations were true. In addressing
appellant’s allegations on appeal, this court found “there is no indication that the
information was unknown to the defense during trial.” Croom, 2013-Ohio-5682, at
¶ 147.
         {¶26} Considering all of the above, we cannot conclude that the trial court
abused its discretion in denying appellant leave to file a successive postconviction
petition without holding a hearing. The record demonstrates that appellant was well
aware of the Walgreen’s video for quite some time. There are indications that he
knew about it as early as May 2010.       The video was mentioned before trial, at
sentencing, on direct appeal of his conviction, and in appellant’s first and second
postconviction petitions.    Thus, appellant has not demonstrated that he was
unavoidably prevented from discovering the Walgreen’s video until two years after his
conviction, as he now alleges.
         {¶27} Accordingly, appellant’s first and second assignments of error are
without merit and are overruled.
         {¶28} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

DeGenaro, J., concurs.

Robb, J., concurs.
