[Cite as State v. Cunningham, 2016-Ohio-3106.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 1-15-61

        v.

JERONIQUE CUNNINGHAM,                                   OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR-2002-0010

                                    Judgment Affirmed

                            Date of Decision: May 23, 2016




APPEARANCES:

        Michael J. Benza for Appellant

        Jana E. Emerick for Appellee
Case No. 1-15-61


PRESTON, J.

       {¶1} Defendant-appellant,      Jeronique    Cunningham       (“Cunningham”),

appeals the September 9, 2015 judgment entry of the Allen County Court of

Common Pleas (1) overruling Cunningham’s petition for postconviction relief,

motion for leave to file a delayed motion for a new trial, and motion for funds to

employ an investigator and (2) granting the State’s motion to dismiss

Cunningham’s postconviction petition and delayed motion for a new trial. For the

reasons that follow, we affirm.

       {¶2} The Supreme Court of Ohio and this court have recited much of the

factual and procedural background of this case, and we will not duplicate those

efforts here. State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, ¶ 1-19;

State v. Cunningham, 3d Dist. Allen No. 1-04-19, 2004-Ohio-5892, ¶ 1-9.

       {¶3} Relevant to this appeal, after this court affirmed the trial court’s denial

of Cunningham’s August 1, 2003 petition for postconviction relief, and after the

Supreme Court of Ohio affirmed Cunningham’s convictions and sentences,

including the sentence of death, Cunningham filed a petition for a writ of habeas

corpus in the United States District Court for the Northern District of Ohio. See

Cunningham v. Hudson, N.D.Ohio No. 3:06 CV 0167, 2010 WL 5092705, *11

(Dec. 7, 2010). The district court denied his petition for a writ of habeas corpus.

See id. at *78.


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          {¶4} On appeal from that decision,

          the [United States Court of Appeals for the] Sixth Circuit issued a

          per curiam opinion addressing one of Cunningham’s claims of juror

          bias. That claim is based on evidence Cunningham acquired during

          his habeas action that the jury foreperson in his trial had a

          relationship with the families of the murder victims and that this

          relationship impacted her impartiality. The court concluded that this

          claim is unexhausted but not procedurally defaulted, because

          Cunningham still may raise it in a motion for a new trial or a second

          petition for post-conviction relief in the Ohio state courts.

Cunningham v. Hudson, N.D.Ohio No. 3:06 CV 0167, 2014 WL 5341703, *1

(Oct. 20, 2014), citing Cunningham v. Hudson, 756 F.3d 477, 479 (6th Cir.2014).

The Sixth Circuit vacated the district court’s judgment denying Cunningham’s

petition for a writ of habeas corpus and remanded the petition to the district court

“to determine whether it is appropriate to stay-and-abey the petition while

Cunningham returns to state court to exhaust this claim.” Cunningham, 756 F.3d

at 479.

          {¶5} On remand to the district court, the court, on October 20, 2014,

“grant[ed] Cunningham’s request to stay this matter and hold it in abeyance

pending exhaustion of his juror-bias claim in state court.” Cunningham, 2014 WL


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5341703, at *3. The district court further ordered that “Cunningham present a

post-conviction petition and/or motion for new trial to the state trial court within

sixty (60) days of the issuance of this Opinion & Order.” Id.

        {¶6} On December 18, 2014, Cunningham filed in the trial court a second

petition for postconviction relief, a motion for leave to file a delayed motion for a

new trial, and a motion for funds to employ an investigator. (Doc. Nos. 409, 412,

411).    Cunningham’s December 18, 2014 petition for postconviction relief

contained one claim: “The presence of a biased juror deprived Cunningham of a

fair trial.” (Doc. No. 409 at 8). Specifically, he alleged that Juror Number 21,

Nichole Mikesell (“Mikesell”), “told the jurors that the jury had to return a death

sentence because she worked with the victims’ families” through her employment

at Allen County Children Services. (Id.). In support, he relied on a private

investigator’s July 16, 2003 affidavit and undated report, the October 29, 2009

depositions of two jurors, Stacie Freeman (“Freeman”) and Roberta Wobler

(“Wobler”), the November 9, 2008 deposition of Freeman, the October 26, 2008

deposition of Wobler, and the January 22, 2009 deposition of Mikesell. (Id. at 8-

9). Cunningham’s motion for leave to file a delayed motion for a new trial was

similarly based on the purportedly new revelations regarding Mikesell. (See Doc.

No. 412).




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         {¶7} On March 13, 2015, the State filed a combined (1) motion to dismiss

Cunningham’s petition for postconviction relief and motion for leave to file a

delayed motion for a new trial1 and (2) response to Cunningham’s petition for

postconviction relief, motion for leave to file a delayed motion for a new trial, and

motion for funds to employ an investigator. (Doc. No. 418). On April 20, 2015,

Cunningham filed a “response to State’s motion to dismiss Cunningham’s

petition” for postconviction relief, a “response to opposition to motion for leave to

file a delayed motion for new trial,” and a “response to opposition to motion for

funds to employ investigator.” (Doc. Nos. 423, 420, 422).

         {¶8} On September 9, 2015, the trial court filed its judgment entry (1)

overruling Cunningham’s petition for postconviction relief, motion for leave to

file a delayed motion for a new trial, and motion for funds to employ an

investigator and (2) granting the State’s motion to dismiss Cunningham’s

postconviction petition and delayed motion for a new trial. (Doc. No. 434).

         {¶9} Cunningham filed a notice of appeal on October 5, 2015. (Doc. No.

436). He raises three assignments of error for our review.




1
  Despite the caption of this document, stating that the State was requesting dismissal of Cunningham’s
motion for leave to file a delayed motion for a new trial, the State’s argument in this document reflects that
it was requesting that Cunningham’s motion for leave to file a delayed motion for a new trial be both
“summarily dismiss[ed] * * * without a hearing” and “overruled without a hearing.” (Doc. No. 418 at 24,
30).

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                                  Assignment of Error I

       The trial court erred in dismissing Cunningham’s post-
       conviction petition as a second or successor petition.

       {¶10} In his first assignment of error, Cunningham argues that,

notwithstanding his August 1, 2003 petition for postconviction relief, the trial

court should have treated his December 18, 2014 petition as a timely filed, first

petition for postconviction relief. He also argues that, even if his December 18,

2014 petition is an untimely, second petition, he satisfied the conditions of R.C.

2953.23. Finally, Cunningham makes several constitutional challenges to Ohio’s

postconviction-relief statutes.

       {¶11} R.C. 2953.21 governs petitions for postconviction relief and permits

a criminal defendant “who claims that there was such a denial or infringement of

the person’s rights as to render the judgment void or voidable under the Ohio

Constitution or the Constitution of the United States” to “file a petition in the court

that imposed sentence, stating the grounds for relief relied upon, and asking the

court to vacate or set aside the judgment or sentence or to grant other appropriate

relief.” See State v. Nolde, 3d Dist. Defiance No. 4-15-23, 2016-Ohio-636, ¶ 8,

citing R.C. 2953.21(A)(1)(a).

       {¶12} A petition for postconviction relief is subject to strict timeliness

requirements. See id. at ¶ 9. At the time Cunningham filed his December 18,



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2014 petition for postconviction relief,2 R.C. 2953.21(A)(2) required that a

petition for postconviction relief

          be filed no later than one hundred eighty days after the date on

          which the trial transcript is filed in the court of appeals in the direct

          appeal of the judgment of conviction or adjudication or, if the direct

          appeal involves a sentence of death, the date on which the trial

          transcript is filed in the supreme court.

See id.

          {¶13} “A trial court lacks jurisdiction to entertain an untimely or successive

petition for postconviction relief unless the petitioner establishes that one of the

exceptions in R.C. 2953.23(A) applies.” State v. Chavis, 10th Dist. Franklin No.

15AP-557, 2015-Ohio-5549, ¶ 14, citing State v. Campbell, 10th Dist. Franklin

No. 12AP-109, 2012-Ohio-5195, ¶ 9. Under R.C. 2953.23(A)(1),

          a court may entertain an untimely or successive petition for

          postconviction relief only if the petitioner demonstrates either: (1)

          he was unavoidably prevented from discovering the facts necessary

          for the claim for relief; or (2) the United States Supreme Court has

          recognized a new federal or state right that applies retroactively to

2
  Effective March 23, 2015, R.C. 2953.21(A)(2) “was amended by 2014 Sub.H.B. No. 663, which extended
the timeframe for defendants to file their motions for postconviction relief from 180 days to 365 days.”
State v. Worthington, 12th Dist. Brown No. CA2014-12-022, 2015-Ohio-3173, ¶ 43, fn. 4. Although not
dispositive to this appeal, Cunningham’s December 18, 2014 petition for postconviction relief is governed
by the version of R.C. 2953.21 in effect on that date. Id.

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       persons in the petitioner’s situation and the petitioner asserts a claim

       based on that right.

State v. Lawson, 12th Dist. Clermont No. CA2013-12-093, 2014-Ohio-3554, ¶ 16,

citing R.C. 2953.23(A)(1)(a) and State v. Kent, 12th Dist. Preble No. CA2013-05-

003, 2013-Ohio-5090, ¶ 12.         If the petitioner is able to satisfy one of these

threshold conditions, he must then demonstrate by clear and convincing evidence

that, but for the constitutional error at trial or the sentencing hearing, no

reasonable fact-finder would have found him guilty of the offenses or found him

eligible for a death sentence.      Id., citing R.C. 2953.23(A)(1)(b) and State v.

Hibbard, 12th Dist. Butler No. CA2013-03-051, 2014-Ohio-442, ¶ 22.

       {¶14} Cunningham argues that “although this petition is technically second

in time to Cunningham’s first petition for post-conviction relief, it cannot be

construed as a ‘second or successive’ petition pursuant to O.R.C. § 2953.23.”

(Appellant’s Brief at 4).       Cunningham argues that, “[b]ecause Ohio’s post-

conviction process in Cunningham’s case failed to provide an adequate corrective

process for review of his Constitutional and statutory claims, the Court must treat

this petition as a timely, initial post-conviction petition.” (Id. at 7).

       {¶15} Cunningham’s arguments are erroneous for a host of reasons.

Cunningham fails to realize that a petitioner must establish one of the exceptions

in R.C. 2953.23(A) if the petitioner files a second or successive petition or if the


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petitioner files an untimely first petition. See R.C. 2953.23(A). In this case, even

assuming Cunningham’s December 18, 2014 petition was a first petition, he filed

it more than a decade—easily over 180 days—since the date on which the trial

transcript was filed in the Supreme Court of Ohio in Cunningham’s direct appeal.

See Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007.

       {¶16} We reject Cunningham’s argument that we should bypass the

requirements of R.C. 2953.23 and consider his petition because Ohio’s

postconviction process somehow failed him. “[T]he only rights afforded to a

defendant in post-conviction proceedings are those specifically granted by the

legislature.” State v. Palmer, 2d Dist. Montgomery No. 26279, 2014-Ohio-5266, ¶

10, citing State v. Steffen, 70 Ohio St.3d 399, 410 (1994) and State v. Calhoun, 86

Ohio St.3d 279, 281 (1999).        In rejecting a similar argument made by a

postconviction petition, the Ninth District Court of Appeals explained:

            This Court is not the proper forum for [the petitioner’s] policy

      argument. The Ohio General Assembly enacted a postconviction

      relief statute with clear language and directives. It could have, but

      did not, make an allowance for the situation [the petitioner]

      describes. It is not this Court’s place to rewrite the statute to allow

      him to proceed with a successive petition. State ex rel. Carnail v.

      McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, ¶ 30. Where the


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       language of a statute is clear, this Court cannot interpret it, but must

       apply it as written. Id.

State v. Hartman, 9th Dist. Summit No. 25055, 2010-Ohio-5734, ¶ 9.

       {¶17} Finally, Cunningham’s reliance on State v. Lott in support of his

argument is misplaced. 97 Ohio St.3d 303, 2002-Ohio-6625. That case, unlike

this one, involved “a new federal right,” and the Supreme Court of Ohio

nevertheless applied R.C. 2953.23. See id. at ¶ 17. As the Ninth District observed

in Hartman, “[t]he Court [in Lott] did not * * * establish a new category of

successive petitions that must be treated as first petitions.” Hartman at ¶ 10. In

sum, we are unpersuaded by Cunningham’s arguments and conclude that his

December 18, 2014 petition for postconviction relief was his second petition for

postconviction relief and therefore subject to R.C. 2953.23(A). See id. at ¶ 11.

       {¶18} “‘Whether to entertain a second or successive petition for

postconviction relief lies within the sound discretion of the trial court, and that

ruling will not be disturbed on appeal absent a clear showing of abuse of

discretion.’” State v. Keith, 176 Ohio App.3d 260, 2008-Ohio-741, ¶ 22 (3d

Dist.), quoting State v. Hayden, 2d Dist. Montgomery No. 21764, 2007-Ohio-

5572, ¶ 12, citing State v. Perdue, 2 Ohio App.3d 285, 286 (10th Dist.1981). An

abuse of discretion suggests that the trial court’s decision is unreasonable,




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arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

       {¶19} As the trial court pointed out, Cunningham “does not assert that a

new federal or state right provides him with the claim he presents in the subject

petition.” (Doc. No. 434 at 9). Accordingly, Cunningham was first required to

show, under R.C. 2953.23(A)(1)(a), that he “was unavoidably prevented from

discovery of the facts upon which the petitioner must rely to present the claim for

relief.” A defendant is “unavoidably prevented” from the discovery of facts if he

had no knowledge of the existence of those facts and could not have, in the

exercise of reasonable diligence, learned of their existence within the time

specified for filing his petition for postconviction relief. State v. Holnapy, 11th

Dist. Lake No. 2013-L-002, 2013-Ohio-4307, ¶ 32, citing State v. Sansom, 2d

Dist. Champaign No. 2009 CA 38, 2010-Ohio-1918, ¶ 9; State v. Ruark, 10th Dist.

Franklin No. 15AP-142, 2015-Ohio-3206, ¶ 11, citing State v. Turner, 10th Dist.

Franklin No. 06AP-876, 2007-Ohio-1468, ¶ 11, citing State v. McDonald, 6th

Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 19. “And the ‘facts’ contemplated by

R.C. 2953.23(A)(1)(a) are the historical facts of the case, which occurred up to

and including the time of conviction.” Ruark at ¶ 11, citing Turner at ¶ 11.

       {¶20} Cunningham argues, “Even if the Court considers this petition to be a

second petition, it is clear that because of the ineffectiveness of former post-


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conviction counsel, the active obstruction of discovery by the State, and this [trial]

Court’s denial of discovery and fact development that Cunningham was

unavoidably prevented from discovering the factual basis of this claim.”

(Appellant’s Brief at 8).      Despite Cunningham’s arguments, the trial court

concluded that Cunningham “cannot successfully argue that he was unavoidably

prevented from discovering the factual basis of his claim.” (Doc. No. 434 at 10).

Because Cunningham’s arguments do not satisfy the “unavoidably prevented”

standard of the R.C. 2953.23(A)(1)(a) exception, we hold that the trial court did

not abuse its discretion in reaching its conclusion.

        {¶21} In his first petition for postconviction relief—filed on August 1,

2003—Cunningham alleged juror misconduct on the part of Mikesell. (Doc. No.

385).   See Cunningham, 2004-Ohio-5892, at ¶ 60.           In support of his claim,

Cunningham relied on the affidavit and report of a privately hired investigator,

who interviewed Mikesell, Freeman, and Wobler.            (Doc. No. 386, Ex. D).

Accordingly, Mikesell was available and interviewed by a privately hired

investigator some time prior to the private investigator’s July 16, 2003 affidavit—

which authenticated his undated report and was within the time specified for filing

Cunningham’s petition for postconviction relief. (Id.). See State v. Crawford, 5th

Dist. Richland No. 09-CA-16, 2009-Ohio-5176, ¶ 22; State v. Leyman, 9th Dist.

Medina No. 14CA0037-M, 2016-Ohio-59, ¶ 12; State v. Schrock, 11th Dist. Lake


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No. 2007-L-191, 2008-Ohio-3745, ¶ 22. Freeman and Wobler were likewise

available and interviewed by the privately hired investigator within the time

specified for filing Cunningham’s petition for postconviction relief. (Doc. No.

386, Ex. D). See Leyman at ¶ 12. In addition, although Cunningham asserts that a

new factual basis exists demonstrating juror bias on the part of Mikesell, the fact

remains that in his first petition for postconviction relief, Cunningham alleged that

Mikesell committed “juror misconduct,” that she was prejudiced against

Cunningham, and that her presence on the jury “may have also contaminated the

remainder of the jury”—the same arguments that Cunningham presents in his

second petition for postconviction relief.3 (Doc. No. 385). See Schrock at ¶ 22.

         {¶22} All of these circumstances belie Cunningham’s arguments that the

“ineffectiveness of former post-conviction counsel” and the inability to conduct

discovery unavoidably prevented him from discovering the factual basis of his

second petition for postconviction relief. Moreover, “[t]he fact that appellant

raises claims of ineffective assistance of counsel suggests that the bases for his

claims could have been uncovered if ‘reasonable diligence’ had been exercised.”


3
  As an additional ground for disposing of Cunningham’s December 18, 2014 petition for postconviction
relief and motion for leave to file a motion for a new trial, the trial court concluded that res judicata barred
Cunningham’s claim of juror bias because his “argument in his first petition was nearly identical to the
Petition and Motion he now brings before the Court; the only difference is the added affidavits and
depositions of various jurors * * *.” (Doc. No. 434 at 14). In view of our conclusions in this opinion that
the trial court did not abuse its discretion in dismissing Cunningham’s December 18, 2014 petition for
postconviction relief and in denying his motion for leave to file a motion for a new trial, we need not decide
whether Cunningham’s juror-misconduct claim is barred by res judicata. See State v. Wheeler, 2d Dist.
Montgomery No. 24427, 2011-Ohio-5565, ¶ 25.

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State v. Creech, 4th Dist. Scioto No. 12CA3500, 2013-Ohio-3791, ¶ 18. For these

reasons, we conclude that the trial court did not abuse its discretion in concluding

that Cunningham did not satisfy the “unavoidably prevented” standard of the R.C.

2953.23(A)(1) exception.4             On that basis alone, the trial court was without

jurisdiction to entertain Cunningham’s December 18, 2014 petition for

postconviction relief. See State v. Kilbarger, 2d Dist. Montgomery No. 26284,

2015-Ohio-2177, ¶ 9. Therefore, we need not address the applicability of R.C.

2953.23(A)(1)(b). Ruark, 2015-Ohio-3206, at ¶ 13; State v. Pianowski, 2d Dist.

Montgomery No. 25369, 2013-Ohio-2764, ¶ 22.

        {¶23} Even were we to consider Cunningham’s arguments that he satisfied

R.C. 2953.23(A)(1)(b), we would conclude that he has not shown that, but for any

purported constitutional error at trial, no reasonable fact-finder would have found

him guilty of the offenses or found him eligible for a death sentence. Cunningham

simply argues “that a biased juror is a structural defect that does not require a

showing of harm” and that, because “[i]t is presumptive that a biased juror tainted

the outcome of the trial,” “Cunningham satisfies the standards set forth in O.R.C.


4
  Cunningham argues, “There is a split among the Ohio courts of appeals on whether juror bias issues
satisfy O.R.C. § 2953.23.” (Appellant’s Brief at 3). Concerning this issue, the Sixth Circuit stated, “We
have identified only two cases addressing whether a juror-misconduct claim satisfied the statutory
requirements of § 2953.23(A), and these cases provide divergent approaches to the second statutory
requirement.” Cunningham, 756 F.3d at 484. We need not and do not address any split of authority
concerning whether a juror-misconduct claim could satisfy the requirements of R.C. 2953.23(A). Rather,
even assuming that a juror-misconduct claim could satisfy the requirements of R.C. 2953.23(A), we
conclude that the trial court did not abuse its discretion in concluding that Cunningham failed to make the
necessary showings under R.C. 2953.23.

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§ 2953.23(A).”     (Appellant’s Brief at 8).     Cunningham cites no authority to

support these propositions. It is as though Cunningham believes that his assertion

of juror bias as a constitutional violation trumps the need under R.C.

2953.23(A)(1)(b) to demonstrate by clear and convincing evidence that, “but for

the constitutional error” at trial or the sentencing hearing, no reasonable fact-finder

would have found him guilty of the offenses or found him eligible for a death

sentence. (Emphasis added.) R.C. 2953.23(A)(1)(b).

       {¶24} Cunningham’s suggestion that he is exempt from satisfying the

entirety of R.C. 2953.23(A)(1)(b) contradicts the plain language of the statute and

is erroneous. To the extent Cunningham argues that a showing of “structural

error” alleviates the need for him to satisfy the entirety of R.C. 2953.23(A)(1)(b),

Cunningham is incorrect.      “[S]tructural errors are constitutional defects” not

subject to harmless-error analysis. (Emphasis added.) State v. Perry, 101 Ohio

St.3d 118, 2004-Ohio-297, ¶ 17. However, postconviction proceedings are purely

statutory, not constitutional. State v. Broom, ___ Ohio St.3d ___, 2016-Ohio-

1028, ¶ 28, citing State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). Accordingly,

a postconviction petitioner has no more rights than those specifically enumerated

in the postconviction-relief statutes. Id., citing Calhoun at 281. In other words,

Cunningham cannot offer a constitutional structural-error argument as a way of

alleviating himself of compliance with the statute. For these reasons, were we to


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consider the issue, Cunningham has failed to satisfy his burden under R.C.

2953.23(A)(1)(b).

        {¶25} Finally, Cunningham makes several arguments challenging the

constitutionality of Ohio’s postconviction statutes, namely R.C. 2953.21 and

2953.23. “Failure to raise the constitutionality of a statute at the trial court level

waives the issue for appellate purposes.” State v. Bates, 10th Dist. Franklin No.

07AP-753, 2008-Ohio-1422, ¶ 16, citing State v. Awan, 22 Ohio St.3d 120 (1986),

syllabus. Because Cunningham failed to raise these issues in the trial court, we

decline to address them. Id. See also State v. Combs, 62 Ohio St.3d 278, 290-291

(1991).

        {¶26} For the reasons above, the trial court did not abuse its discretion in

dismissing Cunningham’s December 18, 2014 petition for postconviction relief.5

Cunningham’s first assignment of error is overruled.

                                     Assignment of Error II

        The trial court abused its discretion by denying Cunningham’s
        [sic] leave to file a delayed motion for a new trial.

        {¶27} In his second assignment of error, Cunningham argues that the trial

court abused its discretion:




5
 The trial court’s judgment entry indicates that it both overruled and dismissed Cunningham’s petition for
postconviction relief. (See Doc. No. 434). Given our disposition of this assignment of error, this
distinction is immaterial.

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       (1) [by] ruling that Cunningham was not unavoidably prevent [sic]

       from discovering the new evidence within the time limit provided in

       Crim.R. 33(B); (2) by adopting a single-step procedure to establish

       both that Cunningham was not unavoidably prevented from filling

       [sic] a motion for a new trial, and that he did not have sufficient

       basis for a new trial; (3) by requiring that the evidence Cunningham

       submitted in support of his motion for a new trial needed to be

       admissible at trial; and (4) by ruling that the evidence Cunningham

       submitted in support of his delayed motion for a new trial constituted

       all the evidence in support of a new trial motion.

(Appellant’s Brief at 15).

       {¶28} Motions for a new trial are governed by Crim.R. 33. State v. Keith,

192 Ohio App.3d 231, 2011-Ohio-407, ¶ 37 (3d Dist.). Relevant to this case,

Crim.R. 33(A) provides: “A new trial may be granted on motion of the defendant

for any of the following causes affecting materially his substantial rights: * * * (2)

Misconduct of the jury * * *.” See State v. Depinet, 3d Dist. Seneca No. 13-12-32,

2013-Ohio-1850, ¶ 22. Crim.R. 33(B) sets forth timing requirements for new trial

motions and provides:

       Motions for new trial on account of newly discovered evidence shall

       be filed within one hundred twenty days after the day upon which


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      the verdict was rendered, or the decision of the court where trial by

      jury has been waived.       If it is made to appear by clear and

      convincing proof that the defendant was unavoidably prevented from

      the discovery of the evidence upon which he must rely, such motion

      shall be filed within seven days from an order of the court finding

      that he was unavoidably prevented from discovering the evidence

      within the one hundred twenty day period.

See Keith at ¶ 38. “Accordingly, a party may not seek a new trial on the basis of

newly discovered evidence after the 120-day time limit unless he can demonstrate

that he was unavoidably prevented from discovering the new evidence within the

time limit.” Id. at ¶ 39. “‘A party is “unavoidably prevented” from filing a

motion for a new trial if the party had no knowledge of the existence of the ground

supporting the motion and could not have learned of that existence within the time

prescribed for filing the motion in the exercise of reasonable diligence.’” Id.,

quoting State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 8.

      {¶29} “In order to be able to file a motion for a new trial based on newly

discovered evidence beyond the 120 days prescribed in the above rule, a petitioner

must first file a motion for leave, showing by ‘“clear and convincing proof that he

has been unavoidably prevented from filing a motion in a timely fashion.”’” Id. at

¶ 40, quoting State v. Graham, 3d Dist. Hancock No. 5-05-13, 2006-Ohio-352, ¶


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10, quoting State v. Neace, 3d Dist. Mercer No. 10-99-07, 2000 WL 228921, *4

(Mar. 1, 2000). “The standard of clear and convincing evidence used in Crim.R.

33(B) means ‘that measure or degree of proof which is more than a mere

“preponderance of the evidence,” but not to the extent of such certainty as is

required “beyond a reasonable doubt” in criminal cases, 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.’” Id., quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph

three of the syllabus.

       {¶30} Motions for a new trial are addressed to the sound discretion of the

trial court. State v. Moore, 3d Dist. Allen No. 1-08-27, 2008-Ohio-6751, ¶ 12.

“Thus, a trial court’s decision to deny such a motion will not be disturbed on

appeal absent an abuse of discretion.” Id., citing State v. Ray, 3d Dist. Union No.

14-05-39, 2006-Ohio-5640, ¶ 53, citing State v. Farley, 10th Dist. Franklin No.

03AP-555, 2004-Ohio-1781, ¶ 6-7.

       {¶31} Cunningham argues that “[i]t was not until 2009 that it was

discovered that Nichole Mikesell had a preexisting relationship with the victims’

families” and that he “could not have known about this fact within the time limit

provided in Crim. R. 33(B).” (Appellant’s Brief at 16). Cunningham further

argues that he learned of Mikesell’s supposed relationship with the victims’

families only after a federal court allowed him to conduct discovery in January


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2009 and that the private investigator’s July 16, 2003 affidavit and report “did not

provide any information relating to juror Mikesell’s relationship with the victims’

families.” (Id. at 16-17). In denying Cunningham’s motion for leave to file a

Crim.R. 33 motion for a new trial, the trial court concluded that Cunningham “has

not shown that he was unavoidably prevented from filing his motion for a new

trial and thus has not met the Rule 33 requirements to be granted a new trial.”

(Doc. No. 434 at 14). In reaching that conclusion, the trial court noted, “[I]t is

clear that [Cunningham] had notice of the underlying factual basis for his claim

long before he was granted discovery by the United States District Court, as it was

included in [the private investigator’s] 2003 Affidavit and was raised during

[Cunningham]’s first post-conviction petition.” (Id. at 13).

       {¶32} We hold that the trial court did not abuse its discretion in concluding

that Cunningham was not unavoidably prevented within the 120-day time limit

from discovering the purported new evidence of juror misconduct. The record

reflects that the jury rendered its verdict on June 20, 2002. (June 20, 2002 Tr. at

154-155). Accordingly, the 120-day time limit for filing a Crim.R. 33 motion

expired on October 18, 2002. See Crim.R. 33(B). As we discussed above, the

private investigator—on whose affidavit and undated report Cunningham relied in

his August 1, 2003 postconviction petition and his December 18, 2014

postconviction petition—interviewed jurors Mikesell, Freeman, and Wobler


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sometime after trial but before executing his July 16, 2003 affidavit. As we

discussed above, these facts belie Cunningham’s argument that he was unable to

discover the purported new evidence of juror misconduct until he was granted the

opportunity to conduct discovery in federal court. See State v. Jackson, 3d Dist.

Union No. 14-04-11, 2004-Ohio-5103, ¶ 8-9. The purported new evidence of

juror misconduct was not undiscoverable simply because, as Cunningham argues,

he did not discover it sooner. See id. at ¶ 10, quoting State v. Williams, 12th Dist.

Butler No. CA2003-01-001, 2003-Ohio-5873, ¶ 21 (“However, the phrases

‘unavoidably prevented’ and ‘clear and convincing proof’ do not allow one to

claim that evidence was undiscoverable simply because affidavits were not

obtained sooner.”).

         {¶33} To be granted leave to file a motion for a new trial, Cunningham was

required to offer clear and convincing proof that he was “unavoidably prevented

from the discovery of the evidence upon which he must rely.” Crim.R. 33(B).

Because Cunningham did not offer that clear and convincing proof, we conclude

the trial court did not abuse its discretion in denying his motion for leave to file a

motion for a new trial.6 See Jackson at ¶ 12. We need not and do not address

Cunningham’s other arguments under his second assignment of error.

        {¶34} Cunningham’s second assignment of error is overruled.

6
  The trial court’s judgment entry indicates that it both overruled and dismissed Cunningham’s motion for
leave to file a delayed motion for a new trial. (See Doc. No. 434). Given our disposition of this assignment
of error, this distinction is immaterial.

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                              Assignment of Error III

       The trial court erred in denying Cunningham an investigator to
       assist in the litigation.

       {¶35} In his third assignment of error, Cunningham argues, “Because

Cunningham was appointed private counsel without a staff of investigators,

experts, and other staff, the failure of the trial court to provide those resources

denied him Equal Protection of law.” (Appellant’s Brief at 24). Therefore, he

argues, the trial court violated his “rights under the Fifth, Sixth, Eighth, Ninth, and

Fourteenth Amendments as well as Article I, Sections 1, 9, 10, 16, and 20 of the

Ohio Constitution.” (Id.). Cunningham is incorrect.

       {¶36} “The right to file a postconviction petition is a statutory right, not a

constitutional right.” Broom, ___ Ohio St.3d ___, 2016-Ohio-1028, at ¶ 28, citing

Calhoun, 86 Ohio St.3d at 281. Thus, the postconviction-relief statutes grant a

petitioner only those rights specifically enumerated in them and no more. Id.,

citing Calhoun at 281. See also State v. Osie, 12th Dist. Butler No. CA2014-10-

222, 2015-Ohio-3406, ¶ 39, citing Calhoun at 281. Under, R.C. 2953.21(I), an

indigent person sentenced to death who “intends to file a petition under [R.C.

2953.21]” is entitled to appointed counsel.       See State v. Monroe, 10th Dist.

Franklin No. 04AP-658, 2005-Ohio-5242, ¶ 15. “[T]he mandatory appointment of

counsel applies only to a petitioner who files a petition under [R.C.] 2953.21.”

State v. Conway, 10th Dist. Franklin No. 12AP-412, 2013-Ohio-3741, ¶ 72. “In

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other words, appointment of counsel is required only in the case of a timely-filed

first petition for post-conviction relief.” Id.

         {¶37} While an indigent defendant sentenced to death has a statutory right

under R.C. 2953.21 to appointed counsel to pursue a timely filed, first

postconviction petition, the statute “does not provide for appointment of experts or

investigators.” Monroe at ¶ 15. Ohio appellate courts have concluded that there is

no constitutional right to appointment of an expert or an investigator even where

the statute provides for appointed counsel in a postconviction proceeding. Id.,

citing State v. Smith, 9th Dist. Lorain No. CA 98CA007169, 2000 WL 277912, *3

(Mar. 15, 2000) and State v. Trummer, 7th Dist. Columbiana No. 96 CO 97, 1998

WL 896457, *3 (Dec. 16, 1998). See also State v. Coleman, 2d Dist. Clark No.

2001-CA-42, 2002-Ohio-5377, ¶ 109 (noting that there is “no constitutional or

statutory right to funding of an expert in aid of a post-conviction petition”), citing

State v. Hooks, 2d Dist. Montgomery No. CA 16978, 1998 WL 754574 (Oct. 30,

1998). Nor does a criminal defendant have a constitutional right to appointment of

an expert or investigator based on his or her filing a Crim.R. 33 motion for a new

trial. See State v. Noling, 11th Dist. Portage No. 2007-P-0034, 2008-Ohio-2394, ¶

93-98.

         {¶38} In this case, while Cunningham, as an indigent defendant who

received a death sentence, had a statutory right to appointed counsel to pursue a


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timely filed, first postconviction petition, he did not have a constitutional or

statutory right to the counsel that the trial court appointed for him in pursuing his

second postconviction petition. See Conway at ¶ 72. Moreover, even assuming

Cunningham was entitled to the appointment of counsel in pursuing his second

postconviction petition, he had no constitutional right to an investigator. See

Monroe at ¶ 15. Therefore, the trial court did not err in denying his motion for

funds to employ an investigator.

       {¶39} Cunningham’s third assignment of error is overruled.

       {¶40} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW, P.J. and ROGERS, J., concur.

/jlr




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