[Cite as State v. Phillips, 2017-Ohio-7164.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 104810



                                        STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      KENNY PHILLIPS
                                                     DEFENDANT-APPELLANT




                                     JUDGMENT:
                               REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-06-481840-C

        BEFORE: Boyle, J., Kilbane, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: August 10, 2017
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender
BY: Joanna Lynn Sanchez
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Gregory J. Ochocki
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Kenny Phillips, appeals from a trial court judgment

denying his motion for leave to file a motion for new trial. On appeal, Phillips raises

three assignments of error for our review:

       1. The trial court abused its discretion when it failed to grant Phillips’s
       motion for leave to file a motion for new trial or hold a hearing where he
       established that the state failed to disclose material exculpatory evidence, in
       violation of his right to due process.

       2. The trial court abused its discretion when it failed to grant Phillips’s
       motion for leave to file a motion for new trial when the record demonstrated
       by clear and convincing proof that Phillips was unavoidably prevented from
       discovering the evidence within 120 days of his conviction.

       3. The trial court abused its discretion when it failed to hold a hearing on
       Phillips’s motion for leave to file a motion for new trial when the record
       and circumstances supported Phillips’s claim that he was unavoidably
       prevented from discovering the new evidence.

       {¶2} We find merit to Phillips’s third assignment of error and reverse and

remand for a hearing on Phillips’s motion.

I. Procedural History

       {¶3} In 2007, Phillips, then a teenager, was tried before a jury and convicted of

several felony crimes including four counts of attempted murder, six counts of felonious

assault, and one count each of felonious assault and attempted felonious assault on a

police officer.   All charges arose out of his alleged involvement in a drive-by shooting

incident that left two persons permanently injured. The trial court sentenced Phillips to

92 years in prison.
      {¶4} On direct appeal, this court affirmed the jury’s findings of guilt, but

remanded for resentencing.     See State v. Phillips, 8th Dist. Cuyahoga No. 96329,

2012-Ohio-473. Upon remand, the trial court reduced Phillips’s sentence to 65 years of

imprisonment. In Phillips’s direct appeal, we set forth the state’s evidence as follows:

            Phillips’s convictions resulted from an early morning incident on
      May 26, 2006 at the intersection of East 55th Street, and Kinsman and
      Woodland Avenues. Phillips, Michael Sutton, Deante Creel, and Akeem
      Tidmore were together in a tan Chevrolet Caprice heading southbound on
      East 55th Street. The Chevrolet was “boxy” and had “84” printed on its
      side (“Chevy 84”). Officers Michael Keane and Daniel Lentz were
      heading northbound on East 55th Street when Keane observed Chevy 84
      make a reckless u-turn. Keane, weaving through traffic to catch up, saw
      Chevy 84 turn right and head east on Woodland.

            Keane and Lentz heard a gunshot as they turned right on Woodland.
      They saw Chevy 84 moving alongside a Lincoln Mark VIII (“Lincoln”).
      Keane and Lentz heard more gunshots and saw muzzle flashes between
      Chevy 84’s passenger side and the Lincoln’s left side. Lentz described the
      muzzle flashes as cone-shaped strobing, meaning the gunshots were coming
      from Chevy 84.

              Keane activated his lights and siren and pursued Chevy 84. Chevy 84
      first slowed down, but accelerated and turned south on East 65th Street.
      Keane followed Chevy 84. As Chevy 84 pulled over, four passengers
      exited and ran. Keane chased the driver, Michael Sutton, and took him
      into custody.

              Lentz saw two males exit the passenger side. They both wore white
      t-shirts and carried handguns. The two men ran toward a nearby house.
      A third male, dressed in black, also exited the passenger side and ran in a
      different direction.

             Since they carried handguns, Lentz followed the first two men
      behind the house. When attempting to retrieve his flashlight, Lentz heard
      three gunshots from two different caliber weapons, and observed strobing
      and star-patterned muzzle flashes. He turned back and nearly collided
      with one of the men, who took off running. As Lentz chased him, Lentz
      saw him throw something into a field. Lentz tackled the man, Deante Creel,
       and took him into custody.

              Meanwhile, Officer Keane also heard gunshots coming from the
       direction where Lentz chased the two men. He saw Lentz tackle Creel.
       Seeing Lentz had Creel under control, Keane continued searching for the
       other two men who exited from Chevy 84.

              Keane saw a man running on East 61st or 63rd Street. Keane exited
       his cruiser and chased the man until Keane fell and tore his calf muscle.
       Lentz saw Keane fall to the ground, and thought Keane was shot. After a
       zone car picked up Creel, Lentz chased and apprehended the man, Kenny
       Phillips, as he attempted a return to Chevy 84.

              Both Phillips and Creel wore light-colored shirts at the time of their
       arrest. A zone car picked up the fourth male, Akeen Tidmore, who wore
       dark clothing.

              As a result of the shooting, Kenneth Tolbert, the driver of the
       Lincoln, suffered paralysis to one side of his face from a gunshot wound to
       the head. Christopher Lovelady, who was behind Kenneth, suffered
       blindness to one eye from a gunshot wound to the head. Kevin Tolbert,
       the front passenger, and Leonard Brown, seated in the back passenger seat,
       were not injured. Bullet holes were located on the Lincoln’s left side.

               Phillips’s hands and the passenger door window area of Chevy 84
       tested positive for gunshot residue. Phillips denied, however, having a
       weapon when exiting Chevy 84. The hands of Creel, Sutton, and Tidmore
       all tested negative.

               Phillips, Creel, and Sutton collectively maintained that a gold car
       pulled up beside the black Lincoln, and an arm exited the gold car’s
       window and fired gunshots into the Lincoln. According to them, the
       Lincoln stopped, the gold car left, and Chevy 84 pulled to the side to allow
       the police to chase after the gold car. Officers Keane and Lentz both
       testified, however, that they did not follow the gold car because the muzzle
       flashes came from Chevy 84.

Id. at ¶ 4-14.

II. Motion for New Trial

       {¶5} In December 2015, Phillips filed a motion for leave to file a motion for new
trial and requested a hearing. Phillips asserted in his motion that there was newly

discovered evidence in his case and that he was unavoidably prevented from discovering

the same prior to the deadline for filing a motion for   new trial.   The newly discovered

evidence referred to was the statements of former Cleveland police officer Gregory Jones

and Cleveland police officer John Lundy, who were stationed in close proximity to the

scene of the shooting on the morning of May 26, 2006.            If believed, the officers’

statements, as outlined in separate sworn affidavits attached to the motion, call into

question the accuracy and truthfulness of Officers Lentz’s and Keane’s testimony at trial

and raise questions about possible Brady violations by the prosecution.

       {¶6} Phillips attached Jones’s November 24, 2015 affidavit to his motion for

leave. In it, Jones avers that on the night of May 26, 2006, he was parked at a Marathon

gas station near the corner of East 55th Street and Woodland Avenue, with his

then-partner Officer Lundy.    While at the gas station, Jones and Officer Lundy heard

gunshots that would later be attributed to the drive-by-shooting incident for which

Phillips and his codefendants were convicted.

       {¶7} According to Jones, Officers Keane and Lentz were also in the Marathon

parking lot at the time of the shooting event and were not behind Sutton’s car. Jones

avers that it was only after hearing gunshots that a car sped by at a high rate of speed, at

which point Keane and Lentz left the Marathon gas station and pursued Sutton’s car.

Jones states that Keane and Lentz were not in a position at the Marathon gas station to see

the shooting, and thus, could not have seen gunshots fired from Sutton’s car into the
Lincoln. Further, Jones states in his affidavit that neither he nor Officer Lundy heard

any additional shots fired while they, along with Officers Keane and Lentz, pursued

Phillips and the other suspects on foot. According to his affidavit, Jones states that both

he and Officer Lundy told a supervising detective working on the case that they did not

hear any additional gunshots.    Jones further states that the detective relayed this fact to

the prosecutor but neither the detective nor the prosecutor ever asked about it again.

       {¶8} Phillips also attached Officer Lundy’s December 18, 2015 affidavit that

corroborated Jones’s statements that no further gunshots were fired while the officers

pursued the suspects on foot. The affidavit did not expound on Officers Keane and

Lentz’s location at the time of the shooting or whether Officer Lundy disclosed to the

detective that he had not heard additional gunfire while pursuing the suspects.

       {¶9} Further, Jones claimed in his affidavit that he did not read the police report

of the incident until February 2014, when a wrongful conviction project investigator

contacted him.   It was then that he learned of Officers Lentz’s and Keane’s claims that

they were driving behind Sutton’s car when they saw shots fired from the vehicle into the

Lincoln and that more shots were fired during the foot pursuit.           According to the

affidavit, Jones was surprised by this information because it was inconsistent with what

he had observed. Moreover, Jones explained in his affidavit that when he was first

confronted with the knowledge that Officers Keane and Lentz might not have been

truthful in their testimony, at that time he was unwilling to sign an affidavit because he

was “dealing with [his] own legal issues” and “was worried that becoming involved in
[Phillips’s] case would impact [his own] case.”   He ended the affidavit by stating that he

was now willing to tell the court about what he observed.

       {¶10} Phillips further attached to his application for leave an affidavit of Ohio

public defender wrongful conviction project investigator Larry VanCant II.          In his

affidavit, VanCant averred that he first interviewed Jones in February of 2014. At that

time, Jones provided him the information that he would eventually swear to in his

November 24, 2015 affidavit. According to VanCant, Jones refused to sign the affidavit

or testify on the issue in February 2014 because of a pending criminal case against him at

that time.   VanCant stated further that he attempted to contact Officer Lundy several

times between February 4, 2014 and December 17, 2015, by visiting his last known

address, leaving business cards there and speaking with his mother and son to pass his

contact information to Officer Lundy. According to the affidavit, Officer Lundy did not

contact VanCant until December 17, 2015, at which point VanCant spoke with Officer

Lundy about Phillips’s case.

       {¶11} In addition to the information contained in the attached affidavits, Phillips

argued in the body of his motion for leave that he was unavoidably prevented from

discovering the new evidence because, although the wrongful conviction project

attempted to interview Officer Lundy numerous times following the conviction, Officer

Lundy refused to give an interview until December 2015.     Phillips further explained that

he was unavoidably delayed from discovering the extent of Jones’s knowledge because

the prosecution did not disclose the variations in what Jones observed compared to
Officers Keane’s and Lentz’s statements in the police report and testimony at trial.

       {¶12} Phillips argued that the state’s nondisclosure amounted to a suppression of

favorable evidence to the accused that resulted in a violation of his due process rights as

outlined in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Phillips also explained that any delay between discovery of Jones’s knowledge of the case

in February 2014, and the filing of the motion for leave to file a delayed appeal in

December 2015, was necessitated by Jones’s refusal to sign an affidavit until the

conclusion of his own criminal case and Lundy’s refusal to speak with investigators until

December 2015.

       {¶13} The state opposed Phillips’s Crim.R. 33(B) motion for leave to file a motion

for new trial on the grounds that Phillips failed to show he was unavoidably prevented

from discovering the evidence needed to support his motion for new trial because Phillip

did not include any evidence “documenting what steps— if any — were taken to find this

‘newly discovered evidence’ from the time of Phillips’s conviction and initial sentencing

in June 2007 through February 2014.”     The state further argued that because Jones was a

rebuttal witness at trial and appeared along with Officer Lundy as a potential witness on

the state’s witness list, Phillips could have discovered the evidence before February 2014.



       {¶14} On July 5, 2016, the trial court overruled the motion without a hearing,

stating that Phillips “failed to show by clear and convincing evidence that he was

unavoidably prevented from discovery what has been proffered as new evidence.”         It is
from that decision that Phillips now appeals.

III. Analysis

         {¶15} Because we find Phillips’s third assignment of error dispositive of the

instant appeal, we will address it first. In his third assignment of error Phillips argues

that the trial court abused its discretion in failing to hold a hearing on his motion for

leave.    We agree.

         {¶16} A motion for new trial based on newly discovered evidence must be filed

within 120 days of a jury verdict unless the petitioner demonstrates by clear and

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

which he must rely. Crim.R. 33(B).          A party is “unavoidably prevented” from

discovering evidence if the party had no knowledge of the existence of the grounds

supporting the motion and could not have learned of that existence in the exercise of

reasonable diligence within the time prescribed by the rule. See State v. Gray, 8th Dist.

Cuyahoga No. 2010-Ohio-11, ¶ 17 quoting State v. Lee, 10th Dist. Franklin No.

05AP-229, 2005-Ohio-6374, ¶ 7.

         {¶17} In order to file a motion for new trial based on newly discovered evidence

that was discovered beyond the 120 days prescribed in Crim.R. 33, a petitioner must first

file a motion for leave to file a delayed motion for new trial.   In it, the petitioner must

show by “clear and convincing proof that he has been unavoidably prevented from filing

a motion in a timely fashion.” Id. at ¶ 13, quoting State v. Morgan, 3d Dist. Shelby No.

17-05-26, 2006-Ohio-145, ¶ 9.     Clear and convincing proof “is that measure or degree of
proof [that] is more than a mere ‘preponderance of the evidence,’ but not to the extent of

such certainty as is required ‘beyond a reasonable doubt’ * * * and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E. 2d 118 (1954), paragraph

three of the syllabus.

       {¶18} In addition to showing an unavoidable delay in discovering the evidence, the

petitioners must also show that they filed their motion for leave within a reasonable time

after discovering the evidence. Id. at ¶ 18.   Whether a delay is reasonable depends on

the facts and circumstances surrounding the case and whether the petitioner has an

adequate explanation for the delay. Id.

       {¶19} Furthermore Ohio courts recognize that

       [a] trial court’s decision “whether to conduct an evidentiary hearing on a
       motion for leave to file a motion for a new trial is discretionary and not
       mandatory.”        State v. Cleveland, 9th Dist. No. 08CA009406,
       2009-Ohio-397, ¶ 54. A criminal defendant “is only entitled to a hearing
       on a motion for leave to file a motion for a new trial if he submits
       documents which, on their face, support his claim that he was unavoidably
       prevented from timely discovering the evidence at issue.” Id., citing State
       v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶ 7, 869 N.E.2d 77
       (2d Dist.). Thus, “no such hearing is required, and leave may be
       summarily denied, where neither the motion nor its supporting affidavits
       embody prima facie evidence of unavoidable delay.” State v. Peals, 6th
       Dist. Lucas No. L-10-1035, 2010-Ohio-5893, ¶ 23.

State v. Ambartsoumov, 10th Dist. Franklin Nos. 12AP-878 and 12AP-877,

2013-Ohio-3011, ¶ 13.

       {¶20} If the trial court finds that the documents submitted in support of a motion

for leave clearly and convincingly demonstrate that the petitioner was unavoidably
prevented from discovering the evidence, then the court must grant the motion for leave

to file a motion for new trial. State v. Glover, 8th Dist. Cuyahoga Nos. 102828, 102829,

and 102831, 2016-Ohio-2833, ¶ 28.

       {¶21} This court reviews the denial of leave to file a delayed motion for    new trial

for an abuse of discretion.        State v. Sutton, 8th Dist. Cuyahoga No. 103931,

2016-Ohio-7612, ¶ 13.     We further review the decision on whether to hold a hearing on

the motion for an abuse of discretion. Id. at ¶ 24.         “Abuse of discretion” has been

defined as an attitude that is unreasonable, arbitrary, or unconscionable. In re C.K., 2d

Dist. Montgomery No. 25728, 2013-Ohio-4513, ¶ 13, citing Huffman v. Hair Surgeon,

Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985).

       {¶22} Phillips presented evidence in the form of two affidavits from a current and

a former Cleveland police officer that, if believed, would seriously call into question the

accuracy and truthfulness of Officers Keane’s and Lentz’s trial testimony. The affidavits

further serve as a red flag for a potential Brady violation by the prosecution, as on their

face they show that the state was aware of potentially material and exculpatory evidence

and failed to disclose that evidence to the defense.

       {¶23} Although the state argues on appeal that no Brady violation actually

occurred, its argument puts the proverbial cart before the horse.      The proper place for

that discussion is the new trial motion itself — if the court grants leave to file the motion.

 At this point in the proceedings, it does not matter whether a Brady violation did occur,

what matters is whether Phillips can show by clear and convincing evidence that he was
unavoidably prevented from discovering the potential violation during trial and the 120

days following. Pursuant to Ohio case law, Phillips is entitled to an evidentiary hearing

on that question if he submits evidence that on its face shows he was unavoidably

prevented from timely discovering the evidence at issue.         Ambartsoumov,10th Dist.

Franklin Nos. 12AP-878 and12AP-877, 2013-Ohio-3011, ¶ 13.

       {¶24} Here, the evidence attached to Phillips’s motion for leave to file a motion

for new trial establishes a potential Brady violation on its face. In general, courts do not

fault the defendant for failing to discover evidence of prosecutorial misconduct that

would amount to a Brady violation.      Indeed, because the state has a duty to disclose

exculpatory evidence under Brady v. Maryland, the presumption, if anything, is that the

state has complied with its duty. Faulting a criminal defendant for failing to discover the

violation sooner, improperly and impermissibly reverses that presumption. Accordingly,

where the evidence shows that a potential Brady violation occurred, the evidence on its

face establishes unavoidable delay in the discovery of that evidence that would entitle a

petitioner to a hearing on the issue.

       {¶25} It is at the hearing on the motion for leave that the court must determine

whether the petitioner met his burden of clearly and convincingly showing that he was

indeed unavoidably prevented from discovering the evidence.       Whether a petitioner can

meet this burden depends on a number of factors and circumstances, including whether

the person should have been aware of the potential Brady violation at a sooner date.

       {¶26} Because Phillips submitted evidence that on its face showed he was
unavoidably prevented from discovering the evidence sooner, Phillips was entitled to a

hearing on his motion for leave.     We therefore agree with Phillips that the court abused

its discretion when it concluded that Phillips did not meet his burden of proof, without

first giving Phillips a chance to present his evidence in open court.

       {¶27} Given the disposition on appeal, we find that the first and second

assignments of error are moot.     Accordingly, we reverse and remand to the trial court for

a proper evidentiary hearing on the motion.

       {¶28} Judgment reversed and remanded.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, SR., J., CONCUR
