[Cite as State v. Mackey, 2018-Ohio-516.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2017-CA-42
                                                  :
 v.                                               :   Trial Court Case No. 97-CR-318
                                                  :
 ROBERT L. MACKEY                                 :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 9th day of February, 2018.

                                             ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, 4th Floor,
Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

DEREK A. FARMER, Atty. Reg. No. 0071654, 106 Short Street, Suite 101, Gahanna,
Ohio 43230
      Attorney for Defendant-Appellant

                                            .............
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HALL, J.

       {¶ 1} Robert L. Mackey appeals from the trial court’s denial of his R.C. 2953.21

petition for post-conviction relief after an evidentiary hearing.

       {¶ 2} Mackey advances two assignments of error. First, he contends the trial court

erred in failing to find him unavoidably prevented from timely obtaining recantations from

two witnesses who testified at his trial. Second, he claims the trial court erred in failing to

strike an untimely post-hearing memorandum filed by the State.

       {¶ 3} The record reflects that a jury convicted Mackey in September 1998 on one

count of drug trafficking with a schoolyard specification, two counts of drug possession

(one count for possession of over 100 grams of crack cocaine (described by the court at

sentencing as 252 grams) with an MDO specification, and one count for possession of

cocaine), one count of having a weapon while under disability, and one count of

possessing criminal tools. He received a twenty-eight-year prison sentence to be served

consecutive to a mandatory ten-year sentence from another drug case for which Mackey

was out of custody on an appeal bond at the time of the events that led to the charges in

this case. Upon a motion by Mackey, he was resentenced on February 8, 2011 and the

28 year sentence in this case was made concurrent to the other case for an aggregate

sentence of 28 years in prison.

       {¶ 4} More than 15 years after his conviction, in March 2014, Mackey filed a

petition for post-conviction relief under R.C. 2953.21. Therein, he argued that he had been

unavoidably prevented from securing affidavits from Cairo Buggs and Heather Peterson,

two prosecution witnesses at his trial. In documentation accompanying the petition, Buggs

and Peterson recanted their trial testimony incriminating Mackey. In his affidavit, Buggs
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claimed, contrary to his apparent trial testimony, that the drugs and guns police found in

his apartment were his and not Robert Mackey’s, that he was a confidential informant for

the police and that he had made a deal with the police and did not want to do anything to

break it. Peterson’s “affidavit,” a handwritten note with a notary seal, indicates, apparently

contrary to her trial testimony, that Robert Mackey was not one of the two men who came

into her apartment to sell her cocaine at the time of what appears to be a controlled buy

set up by police with Peterson wearing a “wire.”1 In April 2014, the trial court dismissed

the petition, without a hearing, on the basis of untimeliness. Mackey appealed the

dismissal, and this court reversed and remanded in State v. Mackey, 2d Dist. Clark No.

2014-CA-68, 2015-Ohio-899, reasoning:

              As previously discussed, Mackey submitted the affidavits of himself,

       Buggs, and Peterson. For his part, Mackey claims that he was unavoidably

       prevented from obtaining Buggs and Peterson’s sworn statements because

       they were both heavily abusing drugs, and Buggs was serving a sentence

       in federal prison. Mackey also averred that Buggs and Peterson would

       simply not talk to him out of fear of the police. Mackey stated that Peterson

       would not recant her incriminating testimony because she had been

       threatened by authorities that her children would be taken away from her.

       Mackey’s counsel was able to eventually contact Buggs while he was

       incarcerated and was able to procure a written statement in which Buggs

       recanted his testimony, but he was unable to get the document notarized


1 Appellant has not requested or caused the transcript of the trial to be part of the record
and we are unable to analyze whether this “new” evidence would have made any
difference in light of whatever other evidence was introduced at trial.
                                                                                          -4-


       while in prison. Mackey asserts that as soon as Buggs was released from

       prison, he came to Mackey’s counsel’s office and had his affidavit notarized.

       Lastly, Mackey avers that he and his family were simply unable to obtain

       the exculpatory testimony in Buggs’ and Peterson’s affidavits until they

       freely and voluntarily provided it.

              Pursuant to R.C. 2953.23(A)(1)(a), we find that Mackey’s affidavit

       established that he was entitled to a hearing in order to establish that he

       was “unavoidably prevented” from the discovery that Buggs and Peterson

       recanted their incriminating trial testimony against him. Accordingly, the trial

       court erred when it overruled Mackey’s petition for post-conviction relief

       without a hearing.

Id. at ¶ 16-17.

       {¶ 5} On remand, the trial court held an August 3, 2015 evidentiary hearing to

determine whether Mackey had been unavoidably prevented from timely discovering

Buggs’ and Peterson’s recantations. Mackey testified at the hearing along with Peterson,

Buggs, and Mackey’s mother, Maryam Muhammad. After considering their testimony, the

trial court held that Mackey had failed to establish being unavoidably prevented from

timely discovering the recantations at issue. It reasoned in part:

              This is not a case of “new evidence recently discovered.” The

       defendant’s motion is based upon the allegation that the witnesses lied at

       his trial. He argues that he was unavoidably prevented from presenting the

       contradictory evidence showing that the witnesses lied at his trial until they

       were willing to come forward and admit the same. This gives rise to the
                                                                                      -5-


      credibility of the affidavits.

              The affidavits recant the testimony of the witnesses given during the

      trial. They are statements of the witnesses given years after the trial on

      behalf of an individual who personally and/or through family has close

      connections with the witnesses. Further, as indicated in the Court’s prior

      order, the records indicate that both of these witnesses have prior felony

      convictions for trafficking in drugs, which would be one factor in weighing

      their credibility.

              Upon review of the record of this case, the Court finds that the

      petition has been filed out of the time period allowed pursuant to O.R.C.

      section 2953.21 and the defendant has failed to establish any exception set

      forth in O.R.C. section 2953.23 that applies to the factual history of this

      case.

              It is therefore ORDERED that the Petition be DENIED.

(Doc. #78 at 1-2).

      {¶ 6} On appeal, Mackey challenges the trial court’s finding that he was not

unavoidably prevented from timely obtaining the recanting affidavits of Peterson and

Buggs. Mackey asserts that his witnesses presented uncontroverted testimony explaining

the efforts made to obtain the affidavits, the delay in obtaining them, and the

circumstances that led Peterson and Buggs to provide them. With regard to the trial

court’s credibility determinations, Mackey contends the issue before the trial court was

not whether the recantations were true or false. According to Mackey, the sole issue was

whether he was unavoidably prevented from obtaining them in a timely manner. In any
                                                                                          -6-


event, Mackey also challenges the trial court’s credibility determinations on the merits.

He argues that Peterson and Buggs did not present inconsistent or conflicting testimony.

He also asserts that the witnesses’ criminal records and the fact that he may have had

personal or family connections with the witnesses does not necessarily render them non-

credible, particularly where the State relied on the credibility of those same witnesses to

obtain his conviction.

       {¶ 7} Under then-existing R.C. 2953.21(A)(2), Mackey was required to file his

petition within a 180-day time limit, which expired on or about May 2, 1999. See Mackey

at ¶ 14. As relevant here, a court may not entertain a late petition unless “both of the

following apply:” (1) that he “was unavoidably prevented from discovery of the facts upon

which the petitioner must rely to present the claim” and (2) “[t]he 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). These twin showings are

jurisdictional requirements that must be met before a trial court may consider his

otherwise-untimely petition for post-conviction relief. State v. Baker, 2d Dist. Montgomery

No. 27596, 2017-Ohio-8602, ¶ 12.2


2 Because Mackey has not demonstrated a constitutional basis for his petition, see ¶ 12-
13 infra, his request should more properly have been made in the form of a motion for
leave to file a motion for a new trial under Crim. R. 33. However, if treated as such,
Mackey would not prevail under the more stringent analysis of that rule. A motion for leave
to file a delayed motion for a new trial requires a defendant to prove “by clear and
convincing proof [emphasis added] that he has been unavoidably prevented” from
discovering the evidence, Crim R. 33(B), the motion must be filed within a reasonable
time, State v. Tubbs, 2d Dist. Miami No. 2015-CA-14, 2016-Ohio-842, ¶¶ 16-17, and
“[n]ewly discovered evidence must do more than merely impeach or contradict evidence
at trial, and there must be a compelling reason to accept a recantation over the trial
testimony of the witness.” State v. Howard, 5th Dist. Stark No. 2014-CA-00136, 2015-
Ohio-2053, ¶ 13, citing Toledo v. Easterling, 26 Ohio App.3d 59, 62, 498 N.E.2d 198 (6th
Dist. 1985).
                                                                                          -7-


       {¶ 8} As set forth above, the trial court ruled that Mackey’s petition was untimely

and that he had failed to make the showing necessary to avoid the time bar. We review

this ruling for an abuse of discretion, which most often involves an “unreasonable”

decision that is not supported by a sound reasoning process. State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58; Mackey at ¶ 11. In conducting our

review, we must give deference to the trial court’s post-evidentiary-hearing findings and

credibility determinations. Id. at ¶ 47; State v. Hathaway, 2d Dist. Greene No. 2015-CA-

11, 2015-Ohio-5299, ¶ 21.

       {¶ 9} With the foregoing standards in mind, we see no abuse of discretion in the

trial court’s ruling. As a threshold matter, we see no error in the trial court making

credibility determinations. The central issue before the trial court was whether Mackey

had been unavoidably prevented from timely obtaining the recantations. But resolution of

that issue involved matters of credibility insofar as the witnesses were required to explain,

either in their affidavits or at the hearing or at both times, the efforts made to obtain the

recantations, the reasons for the delay, and the circumstances that led to the affidavits

being provided. The trial court appears to have disbelieved the explanations, which it had

discretion to do.

       {¶ 10} We have repeatedly stated that evidence which recants testimony given at

trial is “looked upon with the utmost suspicion.” See, e.g., State v. Rossi, 2d Dist.,

Montgomery No. 24740, 2012–Ohio–2545, ¶ 17. This is “because, ‘where a witness

makes subsequent statements directly contradicting earlier testimony the witness either

is lying now, was lying then, or lied both times.’ ” United States v. Earles, 983 F.Supp.

1236, 1248 (N.D.Iowa 1997), quoting United States v. Provost, 969 F.2d 617, 620 (8th
                                                                                             -8-


Cir. 1992). We see no reason why the recanted testimony dichotomy cannot be part of

the trial court’s evaluation of the credibility of those witnesses. Additionally, we note that

Buggs’ affidavit states “I wanted to provide this information after Mr. Mackey was

convicted years ago, but I never heard from his attorney,” Buggs’ Affidavit at ¶ 10,

indicating a willingness to change his testimony years earlier. Peterson’s “affidavit” does

not explain when she was willing to change her story or why it took some 15 years. And

at the hearing, although she testified that after the trial she wanted no involvement with

the case, “I came to court, did what I had to do, and just tried to leave it alone; and I didn’t

want to have contact with anyone, no one.” Hearing Transcript, August 3, 2015, at 25.

But she has always lived in Springfield, except for a short stint in Marysville prison. Id. at

30. She has had contact with Mackey’s family over the years and their children went to

school together. Id. at 36. Referring to Mackey’s family in the courtroom she said “these

are just people that I see all the time.” Id. at 37. When asked if there was any reason she

couldn’t be found she said “[n]o reason at all.” Id. at 38.

         {¶ 11} The trial court appears to have also disbelieved the substance of the

recantations in the affidavits. Although the narrow issue before the trial court was whether

Mackey had been unavoidably prevented from obtaining the affidavits from Peterson and

Buggs, we see no reason why the trial court also could not consider their recantations to

the extent as it reflects on the credibility of the hearing testimony. This is not a case where

the trial court ruled based solely on paper affidavits. Rather, the trial court held an

evidentiary hearing during which it heard Peterson and Buggs explain what led them to

recant their trial testimony.3 On this record, we cannot say that the trial court’s conclusion,


3   Although the credibility of the recantations themselves, was not the direct issue at the
                                                                                              -9-


that Mackey failed to prove that he was unavoidably prevented from obtaining the

evidence on which he relies, was unreasonable.

       {¶ 12} Finally, we note that Mackey could overcome the statutory time bar only by

making the “unavoidably prevented” showing and by demonstrating “[b]y clear and

convincing evidence that, but for constitutional error at trial” no reasonable factfinder

would have found him guilty. R.C. 2953.23(A). We have recognized that “[e]vidence of

perjury, without proof of knowledge on the part of the prosecution of that perjury, does not

implicate constitutional rights and therefore, does not support a petition for post-conviction

relief.” State v. Parker, 2d Dist. Montgomery No. 25518, 2013-Ohio-3177, ¶ 19, citing

State v. Clark, 2d Dist. Montgomery No. 16463, 1998 WL 271853, *2 (May 29, 1998).

Mackey’s petition alleges that the “Constitutional Claim” is that “petitioner’s convictions

were obtained with materially untruthful and false testimony.” Petition at 2. It does not

assert that the prosecution was aware of the allegedly false testimony.

       {¶ 13} In his appellate brief, Mackey asserts that “both witnesses, Peterson and

Buggs, claim that the State knew or should have known that they were providing false

information at trial.” (Appellant’s brief at 13). But none of the affidavits attached to

Mackey’s post-conviction relief petition support that assertion. To the contrary, Buggs

asserted in his affidavit that he implicated Mackey because Buggs had made a deal with

the police and “was afraid to do or say anything that would cause the police to be



hearing, the trial court was in as good of a position as it ever will be in to make a credibility
determination regarding the veracity of the recantations. Given that the trial court
apparently disbelieved the affiants, nothing would be accomplished by declaring Mackey
was unavoidably prevented from obtaining the affidavits sooner and remanding the case
to the trial court for it again to reject the recantation documentation on its face, without an
evidentiary hearing, on the merits as lacking in credibility.
                                                                                         -10-


suspicious of [him] or to break the deal with [him].” (Buggs affidavit at paragraph 4,

attached to Doc. #61). Absolutely nothing in Buggs’ affidavit suggests that the prosecutor

knew his trial testimony was false. For her part, Peterson averred that she implicated

Mackey because police told her she would go to jail and lose her children if she “didn’t

cooperate.” (Peterson affidavit, attached to Doc. #61). Nowhere in her affidavit did

Peterson aver that the prosecutor knew her trial testimony implicating Mackey was false.

The failure to include such an averment in either Buggs’ or Peterson’s affidavit was itself

enough to justify denying Mackey’s post-conviction relief petition, even if the trial court

had concluded that Mackey was unavoidably prevented from earlier discovery of the

recantations, without an evidentiary hearing.4 Parker at ¶ 19. For this additional reason,

we cannot say the trial court erred in denying post-conviction relief under R.C. 2953.21.

Accordingly, we overrule the first assignment of error.

       {¶ 14} In his second assignment of error, Mackey claims the trial court erred in

failing to strike an untimely post-hearing memorandum filed by the State.

       {¶ 15} The record reflects that the trial court gave the parties until the end of the

week to file post-hearing memos after the evidentiary hearing held on Monday, August 3,

2015. Mackey filed his memorandum on Friday, August 7, 2015. (Doc. #75). The State

did not file its memorandum until February 22, 2016. (Doc. #76). On March 7, 2016,



4 We note too that neither Buggs nor Peterson asserted during the post-conviction
evidentiary hearing that the prosecutor knowingly presented perjured trial testimony from
them. Mackey has attached apparent trial-transcript pages to his appellate brief in an
effort to make this showing, but they do not establish that the prosecutor knowingly
presented perjured testimony. In the referenced pages, Peterson merely testified that she
agreed to work with police because they told her she could go to prison and lose custody
of her children. At the time of the trafficking she was working with the police to make a
controlled buy and was wearing a “wire”. (Appellant’s brief at Appendix B).
                                                                                            -11-


Mackey moved to strike the tardy memorandum. (Doc. #77). In support, he noted that the

State’s filing was late and that it purported to cite a hearing transcript that Mackey had

not obtained prior to filing his memorandum. The trial court subsequently denied Mackey’s

post-conviction relief petition more than a year later on April 4, 2017, without explicitly

ruling on his motion to strike.

       {¶ 16} Given the trial court’s failure to address the motion to strike, it implicitly was

overruled. State v. Matthews, 2d Dist. Greene No. 2015-CA-73, 2016-Ohio-5055, ¶ 15.

We review that decision for an abuse of discretion. Furnas v. Clay Twp. Trustees, 2d Dist.

Montgomery No. 25239, 2012-Ohio-5408, ¶ 36-37. We see no abuse of discretion in the

trial court’s refusal to strike the State’s memorandum. Other than the fact that the State

filed it beyond the allowed time, Mackey’s only complaint was that it purported to cite a

hearing transcript, which Mackey did not have and which the State did not attach to its

memorandum. But regardless of whether Mackey had access to the hearing transcript,

the trial court itself had access to the testimony that it heard during the hearing. Likewise,

we have access to a transcript of the evidentiary hearing on appeal. That being so, we

fail to see how Mackey would have been any better off if the trial court had stricken the

State’s memorandum or how he was prejudiced by the failure to do so. At a minimum, the

trial court did not abuse its discretion in refusing to strike the tardy memorandum. The

second assignment of error is overruled.

       {¶ 17} The judgment of the Clark County Common Pleas Court is affirmed.



                                       .............
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DONOVAN, J. and TUCKER, J., concur.


Copies mailed to:

Andrew P. Pickering
Derek A. Farmer
Hon. Richard J. O’Neill
