[Cite as State v. Davis, 2012-Ohio-32.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          Hon. Sheila G. Farmer, J.
                                                    Hon. Patricia A. Delaney, J.
-vs-
                                                    Case No. 09-CA-0019
ROLAND DAVIS

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Licking County, Ohio, Case No. 04-CR-464


JUDGMENT:                                        Affirmed


DATE OF JUDGMENT ENTRY:                          January 4, 2012


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


KENNETH W. OSWALT                               JOSEPH E. WILHELM
LICKING COUNTY PROSECUTOR                       ASSISTANT STATE PUBLIC DEFENDER
                                                250 E. Broad Street- Suite 1400
BY: KENNETH W. OSWALT                           Columbus, Ohio 43215
Licking County Prosecuting Attorney
20 S. Second Street
Fourth Floor
Newark Ohio 43055
Licking County, Case No. 09-CA-0019                                                          2

Hoffman, P.J.


       (¶1)   Defendant-Appellant Roland Davis appeals the January 30, 2009

Judgment Entry entered by the Licking County Court of Common Pleas denying his

request for leave to file a motion for new trial. Plaintiff-Appellee is the State of Ohio.

                           STATEMENT OF FACTS AND THE CASE

       (¶2)   This appeal stems from the murder of 86-year-old Elizabeth Sheeler by an

intruder to her apartment. The intruder murdered Sheeler by stabbing her in the neck

and chest. The intruder stole money from the apartment and fled the scene. The murder

went unsolved for almost four years. In 2004, DNA testing identified Appellant as the

murderer of Sheeler.

       (¶3)   Appellant was indicted on one count of aggravated murder while

committing kidnapping, aggravated robbery, or aggravated burglary. Count One

contained four death-penalty specifications, to wit: murder for the purpose of escaping

detection, apprehension, trial, or punishment, in violation of R.C. 2929.04(A)(3); murder

while committing, attempting to commit, or fleeing after committing kidnapping, in

violation of R.C. 2929.04(A)(7); murder while committing, attempting to commit, or

fleeing after committing aggravated robbery, in violation of R.C. 2929.04(A)(7); and

murder while committing, attempting to commit, or fleeing after committing aggravated

burglary, in violation of R.C. 2929.04(A)(7).

       (¶4)   Appellant was indicted with four additional counts: Count Two charged

Appellant with murder, Count Three charged kidnapping, Count Four charged

aggravated robbery, and Count Five charged aggravated burglary. The jury found

Appellant guilty of all charges, and he was sentenced to death. For a complete
Licking County, Case No. 09-CA-0019                                                      3

statement of the underlying facts see, State v. Davis, 116 Ohio St.3d 404, 880 N.E.2d

31, 2008-Ohio-2.

      (¶5)   On January 3, 2008, the Ohio Supreme Court upheld Appellant’s

convictions and his death sentence after independently reviewing his sentence as

required by R.C. 2929.05(A). Id. Appellant filed a petition for certiorari with the United

States Supreme Court, which was denied on October 6, 2008. Davis v. Ohio (2008),

___ U.S. ____, 129 S.Ct. 137.

      (¶6)   Appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21

on June 23, 2006. The State filed an Answer and Motion for Summary Judgment. On

July 20, 2006, Appellant filed a Motion for Leave to Amend Post-Conviction Petition, an

Amended Post-Conviction Petition, a Motion for DNA Testing, a Motion for Discovery

and Evidentiary Hearing, a Motion for Appropriation of Funds for Dr. Robert L. Smith,

Clinical Psychologist, and a Reply Opposing the State’s Motion for Summary Judgment.

The State opposed all of those pleadings. On November 8, 2007 the State filed a

Supplemental Motion for Summary Judgment addressing Appellant’s Fifteenth and

Sixteenth Grounds for Relief. On November 14, Appellant mailed his Response to the

State’s Supplemental Motion for Summary Judgment; however, on that day, the trial

court issued its findings of fact and conclusions of law. Appellant then filed a Motion for

New Trial under Civ.R. 59(A). The trial court re-considered its decision in light of

Appellant’s Response to the State’s Supplemental Motion for Summary Judgment and

issued its final entry on January 14, 2008, granting the State’s motion for summary

judgment, thereby dismissing Appellant’s post-conviction relief petition.
Licking County, Case No. 09-CA-0019                                                     4


         (¶7)   Appellant timely appealed the decision to this Court. While that appeal

was pending, Appellant filed his motion for leave to file a new trial motion which is the

subject of the instant appeal.

         (¶8)   We affirmed the trial court’s dismissal of Appellant’s amended PCR

petition on December 23, 2008. State v. Davis, 2008-Ohio-6841. Thereafter the trial

court entered its judgment filed January 30, 2009, denying Appellant’s motion for leave

to file a new trial motion.       The trial court specifically found Appellant was not

unavoidably prevented from discovering the new evidence he attached to his motion.

         (¶9)   It is from that judgment entry Appellant prosecutes this appeal, assigning

as error:

         (¶10) “I. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS

RIGHTS WHEN IT DENIED HIS REQUEST FOR LEAVE TO FILE A NEW TRIAL

MOTION. U.S. CONST. AMEND. XIV.”

         (¶11) Appellant maintains he was unavoidably prevented from discovery of

evidence attacking the State’s use of DNA evidence as required by Crim.R. 33(B)

because his trial counsel was ineffective in failing to properly challenge the same. As

such, Appellant argues he “…could not be expected to present evidence of their own

ineffectiveness.”1

         (¶12) Appellant bases his argument upon the affidavit submitted by his DNA

expert, Dr. Lawrence Mueller. While we agree Dr. Mueller’s affidavit was “outside the

record”, as then comprised at the time of his two previous appeals, such fact does




1
    Appellant’s Brief at pg. 7.
Licking County, Case No. 09-CA-0019                                                     5


nothing to demonstrate Appellant was unavoidably prevented from discovering it within

the applicable time limits of Crim.R. 33.

       (¶13) We note Appellant raised a claim of ineffective assistance of counsel as

his Sixteenth Ground for Relief in his previously filed PCR petition. Therein, Appellant

relied upon the opinion of Attorney Gregory Meyer regarding the deficiencies of the

State’s DNA evidence. This Court discounted Meyer’s affidavit because, although he

may have consulted with experts, his opinions as expressed in his affidavit were not

those of an expert witness.

       (¶14) We agree Dr. Mueller may well qualify as an expert witness and his

affidavit is “outside the record” as to issues previously raised and addressed by this

Court in the two previous appeals.          However, that does not bear upon, let alone

demonstrate, Appellant was unavoidably prevented from seeking or obtaining Dr.

Mueller’s testimony within the time parameters of Crim.R. 33.

       (¶15) As accurately stated by the trial court in its entry, while Appellant’s trial

counsel’s ineffectiveness may or may not be grounds for a new trial, it does not

demonstrate Appellant was unavoidably prevented from procuring Dr. Mueller’s

testimony in the 120 days after the trial. Likewise, as noted by the trial court, the fact

Appellant could not raise his instant ineffective assistance claim based upon Dr.

Mueller’s affidavit in his previous motions and/or appeals, does not demonstrate he was

unavoidably prevented from timely discovering such evidence. As pointed out by the

trial court, Dr. Mueller’s affidavit shows most, if not all, of the sources and studies he

cites to support his statistical contentions were available at the time Appellant was

convicted.
Licking County, Case No. 09-CA-0019                                                    6


      (¶16) We find the trial court correctly determined Appellant’s motion for new trial

was untimely, and properly denied his request for a finding he was unavoidably

prevented from discovering the new evidence upon which he relies.

      (¶17) Appellant’s assignment of error is overruled.

      (¶18) The judgment of the trial court is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
Licking County, Case No. 09-CA-0019                                             7


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :        JUDGMENT ENTRY
                                         :
ROLAND DAVIS                             :
                                         :
       Defendant-Appellant               :        Case No. 09-CA-0019


       For the reasons set forth in our accompanying Opinion, the January 30, 2009

Judgment Entry entered by the Licking County Court of Common Pleas Court is

affirmed. Costs assessed to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ Sheila G. Farmer __________________
                                         HON. SHEILA G. FARMER


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY
