[Cite as State v. Covender, 2012-Ohio-6105.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.       11CA010093

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
JOEL COVENDER                                          COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   94CR045253

                                 DECISION AND JOURNAL ENTRY

Dated: December 26, 2012



        DICKINSON, Judge.

                                               INTRODUCTION

        {¶1}     Joel Covender has appealed the trial court’s denial of his third motion for leave to

file a delayed motion for new trial based on newly discovered evidence. The trial court denied

him leave because it determined that he had not proven that he was “unavoidably prevented”

from the discovery of the evidence upon which he must rely as required by Rule 33(B) of the

Ohio Rules of Criminal Procedure. This Court reverses because, under the circumstances, it is

unreasonable to hold that, because Mr. Covender knew of the existence of his accuser’s therapy

records before trial, reasonable diligence required him to discover the potentially exculpatory

content of those records within 120 days after the day on which the verdict against him was

rendered.
                                                  2


                                         BACKGROUND

       {¶2}    In 1996, the State tried Mr. Covender on charges of gross sexual imposition and

felonious sexual penetration involving his six-year-old stepdaughter, A.S., and her younger

brother, J.S. Mr. Covender denied the allegations and presented evidence tending to show that

the children’s paternal grandparents had concocted the story to get custody of the children from

their mother and that A.S. had told her mother that the allegations were not true. The jury

convicted Mr. Covender on all charges. This Court affirmed the convictions on appeal. State v.

Covender, 9th Dist. No. 96CA006457, 1997 WL 802947 (Dec. 24, 1997), appeal not accepted,

87 Ohio St. 3d 1490 (2000). Mr. Covender was released on parole in 2007 after serving more

than ten years in prison.

       {¶3}    Within a month of his release, Mr. Covender moved for leave to move for a new

trial under Rule 33(A)(6) of the Ohio Rules of Criminal Procedure based on the fact that both of

his stepchildren had come forward as adults to testify that the alleged abuse had never happened.

Following a hearing, the trial court granted Mr. Covender a new trial on all counts. The State

appealed the trial court’s decision granting a new trial on the counts related to Mr. Covender’s

stepdaughter, but did not appeal the decision on the counts related to his stepson. In a split

decision, this Court reversed the trial court’s decision to grant a new trial on the counts related to

the stepdaughter because it determined that her new testimony did not “recant” her trial

testimony and was not based on personal knowledge because she said she did not remember

much of her childhood. State v. Covender, 9th Dist. No. 07CA009228, 2008-Ohio-1453, ¶ 16

(“Covender II”).

       {¶4}    After this Court reversed the trial court’s decision granting Mr. Covender’s first

motion for a new trial, David S., A.S.’s biological father, came forward to testify by affidavit that
                                                  3


he had seen and heard his mother, along with A.S.’s mother’s stepmother, coaching A.S.

regarding her proposed testimony at the 1996 trial. In June 2008, in reliance on David S.’s

affidavit, Mr. Covender moved for leave to file a second motion for a new trial based on newly

discovered evidence. The trial court granted the second motion for leave to move for a new trial,

but denied the motion for a new trial because it determined that David S.’s testimony alone

would not have materially affected the outcome of the 1996 trial and it believed that this Court’s

decision in Covender II prevented it from considering the evidence Mr. Covender had presented

in support of his first motion for a new trial.

        {¶5}    Mr. Covender appealed that decision, and, in another split decision, this Court

affirmed. State v. Covender, 9th Dist. No. 09CA009637, 2010-Ohio-2808 (“Covender III”). In

doing so, this Court held that its prior conclusions that A.S.’s affidavit was not based on personal

knowledge and that “there was ‘no evidence properly before the trial court’ in support of the first

motion [for a new trial] that would have given the trial court the reasonable belief that A.S.’s

trial testimony was false” were law of the case. Id. at ¶ 10 (quoting State v. Covender, 9th Dist.

No. 07CA009228, 2008-Ohio-1453, ¶ 16). This Court also held that it could not review whether

the trial court properly denied the second motion for a new trial because Mr. Covender had not

included a copy of the trial transcript with the record on appeal. Id. at ¶ 17.

        {¶6}    Mr. Covender is now before this Court following denial of his third motion for

leave to move for a new trial based on newly discovered evidence. On July 27, 2011, Mr.

Covender moved for leave to file his third motion for new trial based on potentially exculpatory

evidence found in A.S.’s counseling records. The records revealed that, between the time that

the allegations first surfaced and when Mr. Covender went to trial in April 1996, A.S.’s therapist

had indicated that A.S. had a problem telling the truth. Mr. Covender argued that he had been
                                                 4


unavoidably prevented from discovering that information within the permissible 120-day

window following the verdict. Crim. R. 33(B).

       {¶7}    The trial court held a hearing on the timeliness of the discovery for the purpose of

ruling on the motion for leave. Mr. Covender testified that he served nearly 11 years in prison

before he learned at his first parole hearing that both of his stepchildren had petitioned the Parole

Board for his release, saying that the allegations they had made as children were not true.

According to Mr. Covender, within a week of his release in February 2007, he contacted his

lawyer about moving for a new trial based on the new testimony of both his accusers. He filed

his first motion for leave to move for new trial on April 11, 2007. That effort ended in March

2008 when this Court reversed the trial court’s ruling ordering a new trial on the counts

regarding A.S. Mr. Covender filed his second motion for leave to move for a new trial just three

months later, on June 27, 2008. He based his second motion on the affidavit of A.S.’s natural

father, who testified that he did not come forward to testify about the grandmothers coaching the

children until after this Court had reversed the order granting the new trial. Mr. Covender’s

second attempt at a new trial ended in June 2010 when this Court affirmed the trial court’s denial

of his second motion for a new trial.

       {¶8}    One year later, in July 2011, Mr. Covender filed his current motion for leave to

move for a new trial. The trial court held a hearing on that motion at which Mr. Covender

testified that he had been unable to continue his efforts to exonerate himself between December

2009 and the spring of 2011 because of medical problems. He testified that, in December 2009,

he had gallbladder surgery that went terribly wrong. He was flown to the Cleveland Clinic and

spent 30 to 40 days in a coma, then spent five weeks in a subacute center with a hole in his

stomach. He explained that he dealt with an open wound and home nursing care until October
                                                5


2010, when he underwent reconstructive surgery and spent another three weeks in the hospital

fighting off an infection. He said that he did not start getting better until around February or

March of 2011. He explained that he had not been able to work on his case while he was dealing

with his serious medical problems.

       {¶9}    Mr. Covender also testified that, by April 2011, he had begun searching for A.S.’s

therapy records. The agency that had treated her no longer existed, so Mr. Covender contacted

the local mental health board to find the records. Once he located them, he was not permitted to

review them without A.S.’s permission. He testified that he contacted A.S. and again sought her

help. A.S. testified that she happily complied, even traveling to the Nord Center twice in late

May 2011 to retrieve a copy, which she then reviewed and sent to Mr. Covender. Within two

months of A.S. obtaining a copy of the records, Mr. Covender filed his current motion for leave

to move for a new trial.

       {¶10} In 1995, before he went to trial, Mr. Covender had requested an in camera

inspection of A.S.’s therapy records. The trial court conducted the inspection, but refused to

disclose the records, ruling that there was nothing exculpatory in them. The trial court denied

Mr. Covender’s current motion for leave to move for a new trial because it determined that Mr.

Covender was not unavoidably prevented from discovering the contents of A.S.’s counseling

records because, “[a]lthough the contents of the records [were] unknown . . . the records were

known to exist before the time of the trial in 1996.” Mr. Covender has now appealed that

decision. This Court reverses the decision of the trial court because, under the circumstances, it

is unreasonable to conclude that reasonable diligence required Mr. Covender to revisit the

therapy records in the absence of any information that would have led him to believe the records

might be helpful.
                                                 6


                                         RES JUDICIATA

       {¶11} The State has argued that this Court should not consider Mr. Covender’s

assignment of error because it is barred by res judicata.        This Court is not barred from

considering the assignment of error because posttrial motions permitted by the Ohio Rules of

Criminal Procedure “provide a safety net for defendants who have reasonable grounds to

challenge their convictions and sentences.” State v. Davis, 131 Ohio St. 3d 1, 2011-Ohio-5028, ¶

37. Trial courts retain jurisdiction to decide motions for new trial based on newly discovered

evidence “when the specific issue has not been decided upon direct appeal.” Id. In this case, the

contents of A.S.’s therapy records were not in the trial court record and were not considered

during the direct appeal. Therefore, this Court may review Mr. Covender’s assignment of error

related to the content of the therapy records. See id.

                            LEAVE TO MOVE FOR A NEW TRIAL

       {¶12} Mr. Covender’s assignment of error is that the trial court incorrectly denied his

motion for leave to move for a new trial. Under Rule 33(A)(6) of the Ohio Rules of Criminal

Procedure, “[a] new trial may be granted on motion of the defendant . . . [w]hen new evidence

material to the defense is discovered which the defendant could not with reasonable diligence

have discovered and produced at the trial.” A motion for new trial based on newly discovered

evidence must be filed within 120 days after the day the verdict was rendered, unless the

defendant shows “by clear and convincing proof that [he] was unavoidably prevented from the

discovery of the evidence upon which he must rely [within the 120–day period].” Crim. R.

33(B). “[Although Criminal Rule] 33(B) does not provide a specific time limit [within] which

defendants must file a motion for leave to file a delayed motion for new trial [after the discovery

of the basis for the motion], many courts have required defendants to file such a motion within a
                                                7


reasonable time after discovering the evidence.” State v. Anderson, 10th Dist. No. 12AP-133,

2012-Ohio-4733, ¶ 17 (quoting State v. Wilson, 7th Dist. No. 11 MA 92, 2012-Ohio-1505, ¶ 57).

       {¶13} Mr. Covender’s third motion for leave to move for a new trial, filed 15 years after

his convictions, did not meet the 120-day deadline for the submission of newly discovered

evidence. Crim. R. 33(B). Therefore, before filing his motion for a new trial, he was required to

show, by clear and convincing evidence, that he was unavoidably prevented from discovering the

evidence within 120 days after the verdict. Id.; State v. Holmes, 9th Dist. No. 05CA008711,

2006–Ohio–1310, at ¶ 10-11. “Although a defendant may file his motion for a new trial along

with his request for leave to file such motion, ‘the trial court may not consider the merits of the

motion for a new trial until it makes a finding of unavoidable delay[.]’” State v. Brown, 8th Dist.

No. 95253, 2011-Ohio-1080, ¶ 14 (quoting State v. Stevens, 2d Dist. Nos. 23236, 23315, 2010-

Ohio-556, ¶ 11).

       {¶14} “Unavoidable delay results when the party had no knowledge of the existence of

the ground supporting the motion for a new trial and could not have learned of the existence of

that ground within the required time in the exercise of reasonable diligence.” State v. Rodriguez-

Baron, 7th Dist. No. 12-MA-44, 2012-Ohio-5360, ¶ 11. “Clear and convincing proof requires

more than a mere allegation that a defendant has been unavoidably prevented from discovering

the evidence he seeks to introduce as support for a new trial.” State v. Covender, 9th Dist. No.

07CA009228, 2008–Ohio–1453, ¶ 6 (quoting State v. Mathis, 134 Ohio App. 3d 77, 79 (1st Dist.

1999), overruled on other grounds, State v. Condon, 157 Ohio App. 3d 26, 2004–Ohio–2031 (1st

Dist.)). “[C]riminal defendants and their trial counsel have a duty to make a ‘serious effort’ of

their own to discover potential favorable evidence.” State v. Anderson, 10th Dist. No. 12AP-

133, 2012-Ohio-4733, ¶ 14 (quoting State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-
                                                8


4438, ¶ 15) (holding that defendant was not unavoidably prevented from discovering statement

made to police by a witness, despite the fact that the state had not disclosed it, because the

defendant was well acquainted with the witness). “The requirement of clear and convincing

evidence puts the burden on the defendant to prove he was unavoidably prevented from

discovering the evidence in a timely manner.” State v. Rodriguez-Baron, 7th Dist. No. 12-MA-

44, 2012-Ohio-5360, ¶ 11.

       {¶15} The only issue before this Court is whether the trial court correctly denied Mr.

Covender’s third request for leave to move for a new trial. The State’s argument and the trial

court’s ruling are based on the idea that, because Mr. Covender has known since before his trial

that A.S.’s counseling records existed and eventually obtained them with her help, he cannot

prove that he was unavoidably prevented from discovering their contents before trial or within

120 days after the verdict. Under the circumstances of this case, it is unfair to equate knowledge

that A.S.’s counseling records existed with knowledge of “the evidence upon which [Mr.

Covender] must rely” for his third motion for leave to move for a new trial. Crim. R. 33(B).

       {¶16} The State’s argument in this case is similar to that presented in State v. Anderson,

10th Dist. No. 12AP-133, 2012-Ohio-4733. In that case, involving charges of money laundering,

theft, and forgery, it was not until after trial that Mr. Anderson “remembered” the real estate

transaction and began searching for evidence related to it. Id. at ¶ 14. The Tenth District held

that Mr. Anderson was not unavoidably prevented from discovering the favorable evidence

“simply because the defense did not undertake efforts to obtain the evidence sooner.” Id.

Similarly, the State’s argument in this case is that Mr. Covender eventually procured the medical

records through a process he could have used earlier to discover the information that forms the

basis of his current motion for a new trial. The State has argued that, because Mr. Covender
                                                 9


knew of the existence of the therapy records, he should have acted sooner. This case is not

similar to Anderson, however, because Mr. Covender did all he could reasonably have been

expected to do to obtain the records before he went to trial and never had any basis to believe

that the records contained favorable evidence.

       {¶17} Mr. Covender knew as early as 1995 that the records existed.             The docket

corroborates his testimony that he tried to obtain the records before trial in order to search for

exculpatory information. After conducting an in camera inspection, the trial court refused to

disclose A.S.’s confidential therapy records to Mr. Covender, ruling that they contained “no

evidence favorable to [Mr. Covender] other than the statements provided by [his] wife and the

expert report provided by [Mr. Covender].” Mr. Covender could not have appealed that ruling

until after he was convicted. Even then, under the circumstances of this case, he had no

reasonable basis for a good faith belief that the trial court’s ruling was incorrect. Mr. Covender

did not have any knowledge about anything favorable to him that should have appeared in A.S.’s

counseling records. Furthermore, although his wife supported his innocence, she could not have

obtained her daughter’s therapy records because A.S. had been removed from her care in January

1994, more than two years before Mr. Covender went to trial. As Mr. Covender did what was

permissible to investigate the therapy records before trial, it is unreasonable to hold that he

failed, before trial, to make a “serious effort” to discover potentially favorable evidence that

might be contained in those records. State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-

4733, ¶ 14 (quoting State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 15).

       {¶18} After the verdict, Mr. Covender had 120 days to timely discover the evidence

supporting his motion for a new trial. Crim. R. 33(B). During that entire period, and for

approximately ten years thereafter, Mr. Covender was serving a prison sentence for these
                                                10


convictions. For obvious reasons, while he was incarcerated and A.S. remained a minor, he was

not in contact with A.S. or the grandparents who raised her after she was removed from her

mother’s care. Mr. Covender testified that he did not learn that A.S. had retracted her allegations

until his first parole hearing in early 2007. Mr. Covender presented clear and convincing

evidence that he was unavoidably prevented from discovering the contents of A.S.’s therapy

records before trial or within 120 days after the verdict. See Crim. R. 33(B).

       {¶19} “[Criminal Rule] 33 does not otherwise limit the time for filing a motion for a

new trial based on newly discovered evidence.” State v. Davis, 131 Ohio St. 3d 1, 2011-Ohio-

5028, ¶ 27. The State has not cited any authority for its implicit argument that, after the 120-day

window has closed, a subsequent discovery of new evidence requires the defendant to prove that

he was unavoidably prevented from discovering the evidence any earlier than he did. Focusing

on the time after Mr. Covender was released from prison, the State has essentially argued that, in

the exercise of reasonable diligence, Mr. Covender should have asked A.S. to help him obtain

her childhood therapy records in 2007 when he first spoke with her about signing an affidavit to

help him get a new trial. Thus, the State points to a four-year delay in obtaining the new

evidence.

       {¶20} Mr. Covender cannot have been expected, in the exercise of “reasonable

diligence,” to re-investigate A.S.’s childhood therapy records when he was first released from

prison or at any later time. Crim. R. 33(A)(6); State v. Rodriguez-Baron, 7th Dist. No. 12-MA-

44, 2012-Ohio-5360, ¶ 11. The trial court had reviewed her records in 1996 and determined that

there was nothing in them that would be helpful to him. Nothing had changed since that time

that should have caused a reasonable person to think the trial court might have incorrectly ruled

that there was nothing exculpatory in the therapy records. There is no evidence in this case that
                                                11


A.S. or anyone else ever told Mr. Covender that there might be something exculpatory in her

therapy records. As far as Mr. Covender knew, that issue had been settled in 1996. Even in

early 2011, when he started trying to locate the records, he had no good faith basis for believing

they would contain exculpatory information. He testified that he overcame many obstacles to

locate and obtain the records and quickly moved for leave to file his current motion for a new

trial.

         {¶21} The evidence supports Mr. Covender’s argument that he has worked diligently to

uncover additional exculpatory evidence since 2007, when he learned that his accusers had

retracted the allegations and he was released from prison. Thus, under these circumstances, even

if a reasonable-time standard were applied to the period after the 120-day window had closed, it

is unreasonable to rule that, because Mr. Covender knew that the records existed, he was not

unavoidably prevented from discovering their contents earlier. He was unavoidably prevented

from discovering the potentially exculpatory information earlier because, when he investigated

the records before trial, the trial court ruled that they would not be disclosed because they

contained nothing exculpatory. If Mr. Covender had known of the records before trial, but made

no effort to investigate their contents, this Court would agree with the trial court’s ruling. The

reason the ruling is unreasonable is because Mr. Covender did everything that could reasonably

be expected of him to investigate the contents of the records before his trial began. Further, there

was never a time when Mr. Covender learned anything that should have given him a reason to re-

investigate those records in spite of the trial court’s ruling. Therefore, in the exercise of due

diligence, he did not need to re-investigate those records. The fact that he did work so hard to re-

investigate a former dead-end appears to be evidence of his desperation.
                                                 12


       {¶22} “Unavoidable delay results when the party had no knowledge of the existence of

the ground supporting the motion for a new trial and could not have learned of the existence of

that ground within the required time in the exercise of reasonable diligence.” State v. Rodriguez-

Baron, 7th Dist. No. 12-MA-44, 2012-Ohio-5360, ¶ 11. Mr. Covender had no knowledge of the

potentially exculpatory information to be found in A.S.’s therapy records and he could not have

learned of that ground within the required time through the exercise of reasonable diligence. As

it would be unreasonable to hold that reasonable diligence required Mr. Covender to re-

investigate A.S.’s therapy records, the trial court’s decision must be reversed.

                                          CONCLUSION

       {¶23} Mr. Covender’s assignment of error is sustained because he proved by clear and

convincing evidence that he was unavoidably prevented from discovering the grounds upon

which he based his new trial motion. Under the circumstances, it would be unreasonable to hold

that, in the exercise of reasonable diligence, Mr. Covender should have discovered that A.S.’s

therapy records contain potentially exculpatory evidence. The judgment of the Lorain County

Common Pleas Court is reversed, and this matter is remanded for it to consider his motion for a

new trial.

                                                                                Judgment reversed,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                13


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT




MOORE, P. J.
CONCURS.

BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶24} I concur in the majority’s judgment. The issue before this Court is whether the

trial court erred in failing to grant Mr. Covender leave to file his motion for a new trial. Thus,

the question before the trial court was whether Mr. Covender established “by clear and

convincing proof that [he] was unavoidably prevented from the discovery of the evidence upon

which he must rely [within the 120–day period].” Crim.R. 33(B). I would conclude he met the

standard.

       {¶25} Prior to A.S.’s 18th birthday in 2005, A.S.’s legal guardian, Nancy Kullman,

would have been responsible for authorizing the release of A.S.’s records. At the hearing on Mr.

Covender’s motion, the trial court took judicial notice that “it would not have been reasonable to

expect Nancy Kullman [to] have cooperated in any way [with the release of the records].”
                                                 14


Further, prior to the 1996 trial, the trial court concluded that there was nothing exculpatory in the

records. Thus, Mr. Covender had no reason to even imagine that the records contained evidence

that would aid him. Moreover, since Mr. Covender became aware of A.S.’s recantation, Mr.

Covender has exercised diligence in investigating all possible avenues that would support his

claim that he is innocent. In light of the above, I agree that Mr. Covender was unavoidably

prevented from the discovery of the evidence within the 120–day period set forth in Crim.R.

33(B). I concur that the trial court erred in failing to grant Mr. Covender leave to file his motion

for a new trial.


APPEARANCES:

W. SCOTT RAMSEY, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
