State v. McFarland , 2022 Ohio 4638 ( 2022 )

[Cite as State v. McFarland, 2022-Ohio-4638.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111390
v. :
SHELIA A. MCFARLAND, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 22, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-604052-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Valore & Gordillo LLP and Dean M. Valore, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Sheila McFarland (“McFarland”), appeals the
denial of her motion for leave to file a motion for new trial and claims the following
error:
The trial court committed reversible error and prejudiced appellant
when it denied appellant’s motion for leave to file motion for new trial.
We affirm the trial court’s judgment.
I. Facts and Procedural History
In March 2016, McFarland was charged with multiple offenses,
including two counts of aggravated murder in connection with the shooting death of
Robert Williams (“Williams”) in November 2015. A jury found McFarland guilty of
all ten counts in the indictment, and the court sentenced her to an aggregate prison
term of life without the possibility of parole. The court also imposed a fine of
$20,000. See State v. McFarland, 8th Dist. Cuyahoga No. 105570, 2018-Ohio-
2067.
At trial, the prosecution presented testimony indicating that Williams
was living in the Indian Hills Apartments in Euclid, Ohio with his girlfriend, Korri
Henderson (“Henderson”) at the time of his death. Two months earlier, in
September 2015, Euclid narcotics detectives conducted a series of controlled drug
buys from Williams in the parking lots surrounding the Indian Hills Apartments. As
a result of the buys, the narcotics detectives obtained and executed a search warrant
for Williams’s apartment where they discovered crack cocaine. Both Williams and
Henderson were arrested and subsequently agreed to become confidential
informants to assist Euclid detectives in apprehending their supplier, Eddie
Brownlee (“Brownlee”), and his girlfriend, McFarland.
Williams conducted three controlled drug buys from Brownlee and
McFarland. Brownlee and McFarland were arrested during the third buy on
October 22, 2015, and they were both charged with drug offenses. McFarland was
released from jail on October 23, 2015, but Brownlee remained in jail.
While incarcerated on the pending drug charges, Brownlee made
several recorded phone calls to McFarland, who was using Brownlee’s cell phone.
During one of the calls, Brownlee told McFarland, who was then in the presence of
a mutual friend, codefendant Ryan Motley (“Motley”), that he suspected Williams
was an informant, who had “snitched” on him and set up the controlled buys.
Following the call, McFarland and Motley went to a hotel room, where Brownlee
and McFarland had been staying, and removed drugs to avoid further charges.
Motley also recovered a firearm from under a mattress and removed it from the
room. When Motley informed Brownlee that he had retrieved the gun, Brownlee
told Motley to “Get Rob. Get those mother***ckers.” McFarland, 8th Dist.
Cuyahoga No. 105570, 2018-Ohio-2067, ¶ 6. Brownlee also told Motley, “I need you
to handle this.” Id. McFarland replied that she and Motley were “about to do that
one thing now.” Id. Motley later claimed at trial that “what they were about to do”
referred to retaining a lawyer for Brownlee. Id.Meanwhile, McFarland and Motley sold drugs to raise money to post
Brownlee’s bond. McFarland posted Brownlee’s bond on November 10, 2015, and
he was released from the county jail. Thereafter, Brownlee again told Motley he
believed Williams was a snitch and instructed Motley to physically harm Williams.
Brownlee also called Williams and threatened that he (Williams) and Henderson
were going to “see their graves.” Id. at ¶ 8.
The trial testimony showed that on November 14, 2015, Motley, his
brother, and a friend, not McFarland, drove to the Indian Hills Apartments and
waited in the second-floor stairwell. When they heard Williams leave his apartment,
Motley ran toward Williams and shot him the chest. Motley and the others
immediately fled the scene, and Motley disposed of the gun. Henderson heard the
gunshot and called the police. Henderson told police that she and Williams had
been receiving threats from Brownlee and McFarland. Henderson knew McFarland
because Williams bought cocaine from Brownlee.
Motley testified against McFarland at trial. He stated that he was a drug
dealer in the Indian Hills Apartments area and that Brownlee was one of his
suppliers. He admitted that he went to Brownlee and McFarland’s hotel room,
where he retrieved the gun that he later used to shoot Williams. McFarland argued
in defense at trial that she was not present during the murder and that there was no
evidence that she participated in a conspiracy to murder Williams. (Trial tr. 730-
738.) The jury nevertheless found her guilty.
McFarland appealed her convictions, arguing, among other things,
that there was insufficient evidence to sustain her convictions because she was not
present during the murder and there was no evidence of any overt acts required to
support a conspiracy charge. See McFarland, 8th Dist. Cuyahoga No. 105570, 2018-
Ohio-2067. This court affirmed McFarland’s convictions but remanded the case to
the trial court to merge allied offenses of similar import. Id. McFarland appealed
this court’s decision to the Ohio Supreme Court, which affirmed this court’s decision
and found sufficient evidence to sustain her convictions. See State v. McFarland,
162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316.
On remand but before resentencing, McFarland filed, under seal,1 a
motion for leave to file a motion for a new trial pursuant to Crim.R. 33(A)(6). She
argued that after receiving psychiatric treatment in prison, she discovered that she
had been misdiagnosed while in the county jail, had not been given the appropriate
medication for her mental illness, and that, as a result, she was not competent to
stand trial at the time of trial. She also argued that she had a low IQ and a history of
childhood abuse that prevented her from being able to assist in her own defense.
The trial court resentenced McFarland in accordance with this court’s
mandate and sentenced her to 20 years to life in prison plus three years on an
attendant firearm specification for an aggregate 23 years to life in prison. This time,
the court did not impose any fines. In the court’s sentencing entry, the court denied
McFarland’s motion for leave to file a motion for new trial “as moot.” McFarland
now appeals the denial of her motion for leave to file a motion for new trial.
1 McFarland’s motion for leave to file a motion for new trial was filed under seal
because it contained confidential medical records, school records, and a presentence-
investigation report from a prior case. However, the parties have not filed their appellate
briefs under seal and they reference items submitted as exhibits to the motion for leave.
Under these circumstances, we find it appropriate to reference portions of the record cited
in the parties’ briefs to the extent it is necessary to resolve the arguments presented in
this appeal.
II. Law and Analysis
A. Standard of Review
McFarland filed her motion for leave to file a motion for new trial
pursuant to Crim.R. 33(A)(6). Crim.R. 33(A)(6) provides that a new trial may be
granted “when new evidence material to the defense is discovered, which the
defendant could not with reasonable diligence have discovered and produced at the
trial.” Crim.R. 33(A)(6); State v. Apanovitch, 8th Dist. Cuyahoga No. 108924,
2020-Ohio-4217, ¶ 15.
Crim.R. 33(B) provides that a motion for new trial based on newly
discovered evidence must be filed within 120 days after a verdict is rendered. A party
who fails to file a motion for new trial within that time must seek leave from the trial
court to file a delayed motion for new trial. State v. Hale, 8th Dist. Cuyahoga No.
107782, 2019-Ohio-1890, ¶ 9. The trial court may grant leave to file a delayed
motion for new trial if the movant shows, by clear and convincing evidence, that he
or she was unavoidably prevented from filing the motion for a new trial within the
120 days of the trial verdict, and he or she sought leave to file the motion for new
trial within a reasonable time after discovering the evidence. Id. at ¶ 9-10.
“Clear and convincing evidence is that measure or degree of proof * * *
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.
“‘[A] party is unavoidably prevented from filing a motion for new trial
if the party had no knowledge of the existence of the ground supporting the motion
for new trial and could not have learned of the existence of that ground within the
time prescribed for filing the motion for new trial in the exercise of reasonable
diligence.’” Apanovitch at ¶ 15, quoting State v. Walden, 19 Ohio App.3d 141, 483
N.E.2d 859 (10th Dist.1984).
The defendant bears the burden of demonstrating, by clear and
convincing evidence, that he or she was unavoidably prevented from filing his or her
motion within the time prescribed. State v. Hubbard, 8th Dist. Cuyahoga No.
108853, 2020-Ohio-2726, ¶ 29. To meet this burden, the defendant must present
“‘more than a mere allegation that he [or she] was unavoidably prevented from
discovering the evidence he [or she] seeks to introduce to support a new trial.’” Id.,quoting State v. Cowan, 8th Dist. Cuyahoga No. 108394, 2020-Ohio-666, ¶ 10.
Crim.R. 33 does not provide a specific time limit in which defendants
must file a motion for leave to file a delayed motion for new trial, but Ohio courts
have held that a defendant must file his or her motion for leave within a reasonable
time after he or she discovers the evidence. Apanovitch at ¶ 16. “The determination
of whether a delay is reasonable is based on the facts and circumstances of the case
and whether the defendant presents an adequate explanation for the delay in filing
his or her motion for leave.” Hubbard at ¶ 30.
“When a defendant seeks leave to file a motion for a new trial under
Crim.R. 33(B), the trial court may not consider the merits of the proposed motion
for a new trial until after it grants the motion for leave.” State v. Hatton, Slip
Opinion No. 2022-Ohio-3991, ¶ 30, citing State v. Bethel, 167 Ohio St.3d 362, 2022-
Ohio-783, 192 N.E.3d 470, ¶ 41. “The sole question before the trial court when
considering whether to grant leave is whether the defendant has established by clear
and convincing proof that he was unavoidably prevented from discovering the
evidence on which he seeks to base the motion for a new trial.” Id.A trial court’s decision on a Crim.R. 33 motion for a new trial will not
be reversed absent an abuse of discretion. State v. Sutton, 2016-Ohio-7612, 73
N.E.3d 981, ¶ 13 (8th Dist.). We also review the decision on whether to hold a
hearing on the motion for new trial for an abuse of discretion. Id. at ¶ 24. An abuse
of discretion occurs when a court exercises its judgment in an unwarranted way
regarding a matter over which it has discretionary authority. Johnson v. Abdullah,
166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. In other words, “[a]
court abuses its discretion when a legal rule entrusts a decision to a judge’s
discretion and the judge’s exercise of that discretion is outside of the legally
permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-
6699, 172 N.E.3d 75, ¶ 19.
This court has held that an abuse of discretion may be found where a
trial court “applies the wrong legal standard, misapplies the correct legal standard,
or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio
App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). When applying the
abuse of discretion standard, a reviewing court may not substitute its judgment for
that of the trial court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22
(8th Dist.).
B. Unavoidably Prevented
McFarland was required to seek leave of the trial court to file a motion
for new trial because she filed the motion more than 120 days after the jury rendered
its verdict. In order to obtain leave, McFarland had to demonstrate, by clear and
convincing evidence, that she was unavoidably prevented from discovering
information material to her defense that she could not, with reasonable diligence,
have discovered and produced at the time of trial. Crim.R. 33(A)(6).
In her motion for leave, McFarland argued that she was unavoidably
prevented from discovering how her mental illness impaired her ability to assist in
her defense due to a misdiagnosed mental illness. In support of this claim,
McFarland submitted (1) copies of her medical records from the county jail from the
time of her arrest to the time of trial; (2) copies of her school records from the
Cleveland Metropolitan School District from 1972 to 1978; (3) copies of her medical
records from the Ohio Department of Rehabilitation and Correction, Dayton
Correctional Institution, from 2017 to 2018; (4) a journal article regarding the
impact of childhood trauma on the cognitive function of individuals with bipolar
disorder; (5) a presentence-investigation report from a 2002 Cuyahoga County case;
(6) records from the Mississippi Department of Child Protective Services pertaining
to McFarland when she was a child; (7) records from the Center for Families and
Children and Circle Health Services Medical Records from 2012 to 2014; and (8) a
journal article regarding the use of antidepressants in the treatment of adults with
bipolar major depression.
There is no evidence in the record demonstrating that McFarland was
unavoidably prevented from obtaining her own medical records, presentence-
investigation report from her own prior case, or her own school records. And,
although the medical records from 2017 to 2018 indicate that McFarland was
prescribed different medications in the Dayton Correctional Institution from those
prescribed to her while she was in the county jail awaiting trial, there is no evidence
in the records, expert or otherwise, demonstrating that she was misdiagnosed prior
to trial or that she was not competent to stand trial. Indeed, the journal article
regarding the use of antidepressants in the treatment of bipolar major depression
states that “antidepressants * * * are the most commonly prescribed drugs for
bipolar depression.” (Motion for leave to file motion for new trial, exhibit B., p.1.)
McFarland was given an antidepressant to treat her illness while she was in the
county jail.
The evidence submitted in support of the motion for leave
demonstrates that McFarland had a history of mental-health issues and treatment,
long before trial. The 2002 presentence-investigation report states, in relevant part:
According to the offender[,] she is in good health at the present time
[and] does not take prescription medications. She is not currently
under a doctor’s care, but has received mental health treatment. The
offender indicates that she received an evaluation for depression on 4-
19-02 by Dr. P. White of University Hospitals located at E. 185th and
Lakeshore Avenue. Additionally, in 1985 she spent three days at the
Cleveland Psychiatric Institute, has been hospitalized at Meridia
Hospital in Warrensville Hts. for one day, as well as Charity Hospital
during an unknown year. * * * According to institutional records, on
6-5-85 during an intake screening evaluation at the Ohio State
Reformatory for Women by S. Bin Yun, M.D., Department of
Psychological Services, the offender was administered the MMPI, as
well as the revised Beta II tests, indicating that she was functioning at
the lower limits of below average level of non-verbal intelligence.
Further, these test results indicate that her “defense system is rather
weak yielding considerable emotional vulnerability and subsequent
feelings of anxiety and depression under pressure.” On 6-14-88, a
second intake screening evaluation was completed and it was stated
that “she could best be described as a psychopathic personality at this
time.” Test results “suggest that she is non-conforming and resentful
of authority figures. Her behaviors tend to be erratic and
unpredictable, while having marked problems with impulse control.
She also tends to be angry, irritable, and resentful, and tends to act out
in anti-social ways.”
(Motion for leave to file motion for new trial, exhibit D, p. 9.) Clearly, McFarland’s
mental illness and cognitive deficits are not new, and her records could have easily
been obtained by trial counsel prior to trial. “A defendant cannot claim that evidence
was undiscoverable merely because the defendant or his defense counsel made no
effort to obtain the evidence sooner.” Hubbard, 8th Dist. Cuyahoga No. 108853,
2020-Ohio-2726, at ¶ 56, citing State v. Jackson, 8th Dist. Cuyahoga No. 108241,
2019-Ohio-4893, ¶ 20.
The records from the Dayton Correctional Institution indicate that she
was diagnosed with schizoaffective disorder, bipolar type, while she was in the
institution after trial. This new diagnosis does not necessarily mean she was
previously misdiagnosed. And McFarland did not submit any affidavits, expert or
otherwise, to substantiate such a claim. Moreover, there is also no evidence
whatsoever that McFarland was not competent to stand trial even if she had
previously been misdiagnosed.
McFarland was offered a plea prior to trial that would have subjected
her to a five-year sentence. She rejected that offer, proceeded to trial, and was
convicted of aggravated murder, which now subjects her to a 20 year-to-life prison
sentence. The purpose of her motion for new trial is to ascertain why she rejected
the plea offer. She asserts that she must have been incompetent to reject such a plea
and risk a life sentence. However, McFarland maintained her innocence at trial and
presented the defense that there was no evidence that she participated in the
conspiracy to murder Williams. Such a defense was not unreasonable since she was
not present at the scene of the murder, and Motley admitted that he murdered
Williams at Brownlee’s direction. The fact that McFarland rejected the plea does
not, by itself, establish that McFarland was not competent to stand trial under these
circumstances.
A criminal defendant is only entitled to a hearing on a motion for leave
to file a motion for a new trial if he or she submits documents which, on their face,
support his or her claim that he or she was unavoidably prevented from timely
discovering the evidence at issue. State v. Dues, 8th Dist. Cuyahoga No. 105388,
2017-Ohio-6983, ¶12, citing State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-
1181, ¶ 7, 869 N.E.2d 77 (2d Dist.). “Mere conclusory allegations do not prove that
the defendant was unavoidably prevented from discovering the evidence he seeks to
introduce as support for a new trial.” State v. Cashin, 10th Dist. Franklin No. 17AP-
338, 2017-Ohio-9289, ¶ 17; see also State v. Miller, 8th Dist. Cuyahoga No. 110571,
2022-Ohio-378, ¶ 14 (same.).
McFarland failed to present evidence that, on its face, would support
her claim that she was unavoidably prevented from discovering that she was
misdiagnosed prior to trial and that improper treatment based on the misdiagnosis
impaired her ability to engage in her own defense. The fact that she had a mental
illness and cognitive deficits was known prior to trial. She, therefore, cannot meet
her burden of establishing, by clear and convincing evidence, that she was
unavoidably prevented from obtaining information regarding her mental-health
condition prior trial had she and her trial counsel exercised reasonable diligence.
The sole assignment of error is overruled.
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.
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR