State v. Johnson , 2022 Ohio 78 ( 2022 )

[Cite as State v. Johnson, 2022-Ohio-78.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110205
v. :
EDWARDLEE JOHNSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 13, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-12-564315-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Kimberly Kendall Corral, for appellant.
LISA B. FORBES, J.:
Appellant Edwardlee Johnson (“Johnson”) appeals the trial court’s
order denying his petition for postconviction relief. After reviewing the facts of the
case and pertinent law, we affirm.
I. Fact and Procedural History
Johnson was convicted of murder, felonious assault, having weapons
while under disability, firearm specifications, notice of prior conviction, and repeat
violent offender specifications for the shooting of Carlos Coates (“Coates”) following
a five-day trial that began on March 11, 2013.
Johnson appealed his convictions, and the transcript of proceedings
was filed with the court of appeals on July 11, 2013. This court affirmed Johnson’s
convictions. For a full recitation of the facts and procedural history of the case, see
State v. Johnson, 8th Dist. Cuyahoga No. 99715, 2014-Ohio-2638.
On October 27, 2020, Johnson filed a petition seeking to vacate his
convictions for Coates’s murder. Johnson’s petition argued that he has newly
discovered evidence that he was unavoidably prevented from discovering within 365
days of the trial transcript being filed in his direct appeal.
The trial court denied Johnson’s petition without a hearing finding
that it was untimely and did not qualify for the exception to the timeliness
requirement. It is from this denial that Johnson appeals.
II. Trial Testimony
At trial five eyewitnesses testified to the events surrounding Coates’s
murder: Dione Green (“Green”), Tamera Coleman (“Coleman”), Miekal Gale
(“Gale”), Leon Howard (“Howard”), and Joseph Fussell (“Fussell”).
Testimony from those five witnesses demonstrated that on June 11,
2012, Coates, Green, Coleman, and Howard met at Green’s house at approximately
ten p.m. and planned to “go out to have a nice time * * *.” The four of them were
“drinking” and “not really” getting along when an altercation broke out between
Green and Coleman. Coates got involved, pushing Coleman against a wall. Coleman
and Coates began hitting each other, prompting Coleman to say she was going to call
her “brother” since Coates wanted to “fight like a b***h.” Howard broke up the fight
between Coleman and Coates and suggested they all go to a bar.
Coleman, Green, and Howard went to the bar, while Coates stayed at
the house to watch Coleman’s and Green’s children. Both Green and Howard
overheard Coleman on the phone several times throughout the night describing the
calls as “angry and hostile.” Green testified that while at the bar, Coleman called
Johnson and Gale and asked them to pick her up from Green’s house.
Coleman, Green, and Howard left the bar together and met up with
Gale and Fussell at a gas station. Coleman got into a car with Gale, telling him about
what happened at Green’s house and that she had asked her “brother” to come teach
Coates a lesson. Gale identified Johnson as Coleman’s “brother.”
Coleman left the gas station with Gale, while Howard, Green, and
Fussell went “up the street” to smoke PCP together. After they finished, Green asked
Fussell to come back to her house. Fussell agreed. Fussell left the gas station to get
his work truck and meet everyone back at Green’s house. Green and Howard arrived
at Green’s house together, followed by Fussell arriving in his work truck.
When Fussell pulled up to the house, Coates, who was outside, told
him to “watch out” for a car across the street that had been parked but from which
no one had gotten out. Fussell proceeded to park his truck on the road. At that
point, Coleman arrived with Gale. According to Fussell, Coleman immediately
began fighting with Green on the side of his truck. Simultaneously, Gale started
arguing with Coates by the porch. As Fussell was exiting his truck, he saw a man
cocking a gun walking beside the truck. The man then tucked the gun away and ran
between the houses. A few minutes later, Fussell heard a gunshot.
Howard was standing near the fight between Coates and Gale when
he noticed a man in a hoodie walking towards the house. That man walked up to
Coates, pulled off his hood, and asked, “[Y]ou remember me?” Gale and Howard
both identified the man as Johnson. Howard’s phone started ringing, and when he
went to grab it, Johnson pulled out a gun and pulled the trigger. The gun jammed.
Johnson ran into nearby bushes.
Coates and Gale began to physically fight, leading to Coates stabbing
Gale, and Gale falling off the porch. At this point, Johnson emerged from the
bushes, raised his gun, and shot Coates. Coleman went into the house, grabbed her
children, and left with Gale and Johnson in Johnson’s car.
III. Law and Analysis
Johnson raises three assignments of error for our review.
The trial court erred in finding that the [timeliness] exceptions set forth
in Ohio Revised Code Section 2953.23 do not apply.
The trial court abused its discretion in denying [Johnson’s] petition to
vacate convictions pursuant to Ohio Revised Code Sections 2953.21
and 2953.23 based on state’s [withholding] of favorable, material
evidence in violation of Brady v. Maryland.
The trial court abused its discretion in failing to hold an evidentiary
hearing on [Johnson’s] petition to vacate convictions pursuant to Ohio
Revised Code Sections 2953.21 and 2953.23 based on state’s
[withholding] of favorable, material evidence in violation of Brady v.
Maryland.
For ease of analysis, we address all three assignments of error together.
Postconviction relief is a civil collateral attack on a criminal judgment.
State v. Curry, 8th Dist. Cuyahoga No. 108088, 2019-Ohio-5338, ¶ 12.
“Postconviction review is not a constitutional right but, rather, is a narrow remedy
that affords a petitioner no rights beyond those granted by statute.” Id., citing State
v. Calhoun, 86 Ohio St.3d 279, 281-282, 714 N.E.2d 905 (1999). R.C. 2953.21 allows
convicted criminal defendants to file a petition requesting the court to vacate its
judgment on the grounds that there was a denial or infringement on his or her rights
rendering the judgment void or voidable. R.C. 2953.21(A)(1)(a)(i). That petition
must be filed no later than 365 days after the transcript being filed in his or her direct
appeal, or if no appeal is filed, no later than 365 days “after the expiration of the time
for filing the appeal.” R.C. 2953.21(A)(2)(a).
However, a convicted defendant may file a petition for postconviction
relief after the 365-day deadline if he or she meets the requirements of
R.C. 2953.23(A). Johnson argues that he meets the timeliness exception under
2953.23(A)(1), which states:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must
rely to present the claim for relief, or, subsequent to the period
prescribed in division (A)(2) of section 2953.21 of the Revised Code or
to the filing of an earlier petition, the United States Supreme Court
recognized a new federal or state right that applies retroactively to
persons in the petitioner’s situation, and the petition asserts a claim
based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted
or, if the claim challenges a sentence of death that, but for
constitutional error at the sentencing hearing, no reasonable factfinder
would have found the petitioner eligible for the death sentence.
Typically, a trial court’s decision on whether to grant postconviction
relief is reviewed for an abuse of discretion. See State v. Lawrence, 8th Dist.
Cuyahoga No. 109951, 2021-Ohio-2105, ¶ 12. However, whether a trial court had
subject matter jurisdiction to entertain an untimely postconviction relief petition is
a question of law that is reviewed de novo. State v. Apanovitch, 155 Ohio St.3d 358,
2018-Ohio-4744, 121 N.E.3d 351, ¶ 24.
Johnson admits that his petition for postconviction relief was
untimely pursuant to R.C. 2953.21’s 365-day time limit. However, he argues that
his petition qualifies for the R.C. 2953.23 exception to the 365-day time limit.
Specifically, Johnson argues that he was unavoidably prevented from discovering
affidavits from one of the state’s witnesses — Fussell — in which the witness admits
to committing perjury in a separate case, State v. Tucker, Cuyahoga C.P. No. CR-03-
437731-ZA. According to Johnson, but for the state’s alleged error in not producing
these affidavits prior to trial, the outcome of his trial would have been different. We
disagree.
We look to the second prong of R.C. 2953.23(A)(1) first and
acknowledge that had Johnson been made aware of Fussell’s affidavits in Tucker, he
may have been able to impeach Fussell at trial. However, he has not established “by
clear and convincing evidence that, but for constitutional error at trial, no
reasonable factfinder would have found the [him] guilty * * *.”
R.C. 2953.23(A)(1)(b).
Johnson alleges that Fussell first recanted via a signed affidavit in
2004. This court mentioned that recantation in a 2008 opinion. See State v.
Tucker, 8th Dist. Cuyahoga No. 90799, 2008-Ohio-5746, ¶ 11. Further, Johnson
states that on February 2, 2012, Fussell filed a new affidavit elaborating on his
recanted testimony. Fussell was declared a material witness in Johnson’s trial on
December 24, 2012, and the case proceeded to trial on March 11, 2013.
While Fussell was one of five eyewitnesses to the events the night of
Coates’s murder, he never identified Johnson as the shooter. Fussell’s testimony
can be summarized as him seeing a man with a lighter complexion than his own
walk towards Green’s house with a gun before Coates was shot. Then, Fussell heard
a gunshot, which prompted him to duck down in his truck. Fussell explained that,
at that moment, he was afraid the gunman would shoot him. Once Coleman left
with Gale and her children, Fussell exited his truck and went to see if Coates was
okay. At no point in the trial did Fussell ever identify Johnson as the shooter.
While the affidavit of Fussell in the Tucker case may have allowed
Johnson to impeach Fussell at trial, it would not have negated the plethora of
testimony presented at trial by other witnesses who not only put Johnson at the
scene of the crime but also identified Johnson as the gunman. Coleman testified
that she called Johnson and asked him to pick her up at Green’s house, where Coates
was murdered. Green and Howard both testified that Coleman had called Johnson,
angry about the altercation between her and Coates, asking him to come to Green’s
house. Both Howard and Gale testified that they saw the man approach Green’s
house with a gun, and they both identified Johnson as that man in court.
Accordingly, Johnson has not demonstrated by clear and convincing
evidence that the outcome of trial would have been different but for the state not
turning over Fussell’s affidavits from the Tucker case.
Because convicted criminal defendants must meet both prongs of
R.C. 2953.23(A)(1) to qualify for the exception to the 365-day time limit for
requesting postconviction relief, we need not address the first prong of the statute.
Johnson has not established the necessary second prong, that the outcome of his
trial would have been different but for the state’s alleged constitutional violation.
See State v. Morris, 2d Dist. Montgomery No. 27875, 2018-Ohio-4527, ¶ 25.
Nonetheless, we note that Johnson similarly cannot demonstrate that he was
unavoidably prevented from discovering the facts on which he relies.
“The phrase ‘unavoidably prevented’ from discovery of facts
warranting postconviction relief means that a defendant was unaware of those facts
and was unable to learn of them through reasonable diligence.” State v. Harrison,
8th Dist. Cuyahoga No. 105909, 2018-Ohio-1396, ¶ 6, quoting State v. Short, 8th
Dist. Cuyahoga No. 82246, 2003-Ohio-3538, ¶ 9. This court has previously held
that if something is stored within the public record, a defendant cannot be
unavoidably prevented from discovering it. State v. Roberts, 8th Dist. Cuyahoga
No. 95533, 2011-Ohio-2534, ¶ 19. A court’s docket is public record. Thomas v. ARM
Food, Inc., 8th Dist. Cuyahoga No. 82863, 2003-Ohio-6925, ¶ 9. References to
Fussell’s recanted testimony via affidavit have been mentioned in this court’s docket
since at least 2008. See Tucker, 8th Dist. Cuyahoga No. 90799, 2008-Ohio-5746,
at ¶ 10-11; State v. Tucker, 8th Dist. Cuyahoga No. 95556, 2011-Ohio-4092, ¶ 4;
State v. Tucker, 8th Dist. Cuyahoga No. 98685, 2013-Ohio-2527, ¶ 26. Because
Fussell’s affidavits have been mentioned in appellate court opinions that are part of
the public record, Johnson was not unavoidably prevented from discovering the fact
that the affidavits existed and that Fussell recanted testimony in that prior case.
Fussell’s recanted testimony was discussed in publicly available court records as
early as 2008. Johnson did not go to trial for Coates’s murder until 2013.
For the foregoing reasons, Johnson’s first, second, and third
assignments of error are overruled. Because Johnson did not qualify for the
timeliness exception in R.C. 2953.23(A)(1), the trial court was without jurisdiction
to entertain the merits of his postconviction relief petition argued in his second and
third assignments of error. See Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744,
121 N.E.3d 351, at ¶ 24.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
LISA B. FORBES, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MICHELLE J. SHEEHAN, J., CONCUR