State v. Bonnell , 2019 Ohio 5342 ( 2019 )

[Cite as State v. Bonnell, 2019-Ohio-5342.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108209
v. :
MELVIN BONNELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 26, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-87-223820-ZA
Appearances:
Micahel C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder, Assistant
Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Kimberly S.
Rigby and Erika M. Lahote, Assistant State Public
Defenders, for appellant.
LARRY A. JONES, SR., J.:
In 1988, defendant-appellant Melvin Bonnell (“Bonnell”) was
sentenced to death after a jury found him guilty of two counts of the aggravated
murder of Robert Bunner (“Bunner”) with felony murder and firearm specifications,
one count of aggravated burglary with firearm and aggravated felony specifications,
and recommended a death sentence to the trial court.
In the years since, as will be set forth below, Bonnell has been
challenging his convictions and sentence, without success. The record shows (and
has been conceded by the state through the years) that some evidence from the crime
scene was either not collected or preserved, including blood droppings from the back
porch and its railing; vomit located near Bunner’s body; certain fingerprints;
substances on Bonnell’s hands; the contents of Bonnell’s car; and some of the clothes
Bonnell was wearing on the night of the murder. The failure to collect and preserve
the evidence has been a central challenge made by Bonnell throughout the years.
Relative to this appeal, in January 2018, Bonnell filed a motion for
leave to file a motion for a new trial, contending that he had new evidence. In
January 2019, the trial court denied his motion for leave without a hearing, and
adopted plaintiff-appellee’s, the state of Ohio, unopposed proposed findings of fact
and conclusions of law. For the reasons that follow, we affirm the trial court’s
judgment.
Factual Background
The following facts are summarized from the direct appeal, State v.
Bonnell, 8th Dist. Cuyahoga No. 55927, 1989 Ohio App. LEXIS 4982 (Oct. 5, 1989).
As mentioned, the victim was Bunner. He lived with Ed Birmingham
(“Birmingham”) and Shirley Hatch (“Hatch”) in the upstairs portion of an
apartment on Bridge Avenue in Cleveland. On November 27, 1986, Bunner,
Birmingham, and Hatch began drinking in their apartment at noon. Bunner and
Hatch continued drinking into the early morning hours of the following day;
Birmingham, who was intoxicated, went to bed at 8:30 p.m. Id. at 2.
At approximately 3:00 a.m., on November 28, Hatch heard a knock
on the back door. She looked through the peephole on the door, but could not
identify who was there; the person outside identified himself as “Charlie.” Hatch
then asked Bunner to help; Bunner opened the door. Id.
When Bunner opened the door, Hatch saw Bonnell standing there
with his hands in his coat pocket. Bonnell walked into the kitchen, uttered an
expletive, and fired twice at Bunner at close range. Hatch testified that Bonnell then
turned to her, but she was able to run to Birmingham’s bedroom. Bonnell, 8th Dist.
Cuyahoga No. 55927, 1989 Ohio App. LEXIS 4982.
Hatch woke Birmingham up, and Birmingham went into the kitchen
where he saw Bonnell sitting on top of Bunner and striking him repeatedly in the
face. Id. at 2-3. Birmingham intervened, pulling Bonnell off Bunner; Birmingham
then threw Bonnell out the door and down the back steps. Hatch called the police.
Id. at 3.
Two of the downstairs tenants testified at trial. They heard a
commotion at the time in question, and at about the same time they heard the
commotion, they also heard what they believed was someone falling heavily to the
floor. One of them also testified that it sounded like someone had fallen down the
back steps. The neighbors testified that they did not see a car, but heard the sound
of car wheels “squealing.” Immediately after hearing the “squealing,” one of the
neighbors saw a police car with its lights on pass by the apartment. Id.
Meanwhile, two Cleveland police officers were patrolling on Bridge
Avenue when, at approximately 3:40 a.m., they saw a blue Chevrolet without
headlights on travelling backward on the street. The police attempted to stop the
car, but the driver, later identified as Bonnell, sped away and a chase ensued.
Bonnell eventually crashed into a funeral home. Bonnell, 8th Dist. Cuyahoga No.
55927, 1989 Ohio App. LEXIS 4982.
One of the officers at the crash scene received an emergency call about
the murder at the apartment and left to respond to that scene. Upon arriving at the
scene, the officer got a description of the assailant and realized that it matched the
person who had crashed the blue Chevrolet into the funeral home, that is, Bonnell.
Bonnell was transported to the hospital, where Birmingham identified him as the
assailant. Id. at 3-4.
The police searched the crash area and found a .25 automatic pistol.
Test firings of the pistol revealed that it fired the bullets that were removed from
Bunner’s body. Id. at 4.
Bonnell presented witnesses on his behalf. The witnesses
corroborated a statement Bonnell had made to the police, that on the day of the
incident, he had been out drinking with a friend, Joe Popil. In his statement, Bonnell
maintained that Popil owned the gun and was driving the blue Chevrolet. According
to Bonnell, Popil stopped at the Bridge Avenue address and entered the apartment
alone with the weapon. When Popil returned to the car, he put the gun in the glove
compartment. Bonnell stated that he (Bonnell) passed out from the drinking and
did not remember anything thereafter until he woke up in the hospital. According
to Popil, he had been out with Bonnell, but he maintained that he was driven home
at 11:30 p.m., whereupon he got sick from drinking. Bonnell, 8th Dist. Cuyahoga
No. 55927, 1989 Ohio App. LEXIS 4982 (Oct. 5, 1989).
Procedural History
As mentioned, this case has been extensively litigated in the years
since Bonnell was convicted and sentenced. The following is a summation of the
prior history.
Direct Appeal
In his direct appeal to this court, Bonnell raised 30 assignments of
error challenging his convictions and sentence. The alleged errors included
challenges to the sufficiency and weight of the evidence, allegations that the state
failed to provide exculpatory or favorable evidence prior to trial, and an allegation
that the trial court erred by denying his motion to suppress an unnecessarily
suggestive line-up. This court found the alleged errors, with the exception of one,
without merit and affirmed the convictions but remanded for resentencing solely on
the aggravated burglary conviction. Id. at 42.
Appeal to Ohio Supreme Court
Bonnell appealed to the Ohio Supreme Court, where he presented 29
propositions of law. The court found the “evidence of [Bonnell’s] guilt to be
overwhelming,” and affirmed his convictions and sentence. State v. Bonnell, 61
Ohio St.3d 179, 183, 187, 573 N.E.2d 1082 (1991).
Attempted Appeal to United States Supreme Court
Bonnell attempted to appeal to the United States Supreme Court, but
the court denied his petition for a writ of certiorari. Bonnell v. Ohio, 502 U.S. 1107,
112 S.Ct. 1205, 117 L.Ed.2d 444 (1992).
Murnahan
In November 1992, Bonnell filed an application in this court for
delayed reconsideration pursuant to State v. Murnahan, 63 Ohio St.3d 60, 584
N.E.2d 1204 (1992). In his application, he alleged that 55 acts and omissions by his
appellate counsel rendered counsel ineffective. His application sought relief based
on claims, among others, that the state’s identification witnesses were tainted, some
of the state’s witnesses’ testimony was unreliable and inaccurate, and the state failed
to provide timely discovery.
In May 1994, this court denied Bonnell’s application. State v.
Bonnell, 8th Dist. Cuyahoga No. 55927, see Motion No. 248402. Bonnell appealed
to the Ohio Supreme Court, which affirmed this court, State v. Bonnell, 71 Ohio St.3d
223, 643 N.E.2d 108 (1994), and denied Bonnell’s request for reconsideration. State
v. Bonnell, 71 Ohio St.3d 1459, 644 N.E.2d 1031 (1995).
Postconviction Proceedings
In 1995, Bonnell filed a postconviction petition in the trial court. In
the petition, he claimed 53 grounds on which he sought relief, much of which
revolved around his contention that the state suppressed exculpatory evidence,
either by failing to collect it from the crime scene or failing to preserve what it had
collected; the petition included over 500 pages of supporting information. The
evidence at issue was blood samples, vomit, fingerprints, and other miscellaneous
materials.
The state acknowledged that the evidence Bonnell sought had not
been preserved, but maintained that Bonnell’s rights had not been violated. The
trial court denied the petition without a hearing. The trial court found that Bonnell
failed to establish that there was a due process violation in the lack of preservation
of the evidence because he failed to show that the state acted in bad faith. Bonnell
appealed to this court, and in August 1998, this court affirmed the trial court’s
judgment denying his petition. State v. Bonnell, 8th Dist. Cuyahoga Nos. 69835 and
73177, 1998 Ohio App. LEXIS 3943 (Aug. 27, 1998). This court found,
The fact that blood was found on the back porch hand railing and on a
green pillow on the back porch is not material. Birmingham had
testified that he witnessed [Bonnell] punching the victim and that
blood was all over the place. He then picked up [Bonnell] and threw
him out of the back door onto the back porch. It is conceivable that the
blood was transferred to these areas by [Bonnell]. Therefore, since
there is no reasonable probability that this evidence would have
affected the outcome of the trial, it was not material.
Id. at 17. The United States Supreme Court denied certiorari in October 1999.
Bonnell v. Ohio, 528 U.S. 842, 120 S.Ct. 111, 145 L.Ed.2d 94 (1999).
Habeas Corpus
In March 2000, Bonnell filed a petition for writ of habeas corpus in
the United States District Court for the Northern District of Ohio. He claimed 20
areas of alleged constitutional violations, including the state’s suppression of
exculpatory evidence, the state’s failure to preserve exculpatory evidence from the
crime scene, the trial court’s failure to suppress the unnecessarily suggestive lineup,
and he challenged the sufficiency of the evidence. The district court denied Bonnell’s
petition. Bonnell v. Mitchell, 301 F.Supp.2d 698 (N.D.Ohio 2004). The Sixth
Circuit Court of Appeals affirmed the district court. Bonnell v. Mitchell, 212
Fed.Appx. 517 (6th Cir.2007).
2004 Application for DNA Testing
In October 2004, Bonnell filed an application for DNA testing of the
following items: vomit from the kitchen; blood from Bonnell’s car; hairs on a green
pillow; bags that were placed over his hands at the hospital (to determine if the bags
contained gunshot residue); blood from the back stairs, stairwell, and railing; and
testing of any swabs or stains taken from Bonnell’s hands.
The state opposed Bonnell’s application and also, in accordance with
R.C. 2953.75(B),1 filed a report, in which it again acknowledged that, despite a
search, it was “unable to locate any of the items defendant has requested to be
tested.” The state further noted, “[i]ndeed, as the State’s objection to DNA testing
details, Bonnell has argued, and the Courts have recognized for the past ten years
that this evidence does not exist.” The trial court denied the application, finding that
none of the materials Bonnell sought to have tested existed.
2008 Application for DNA Testing
In February 2008, Bonnell filed a second application for DNA testing.
In addition to the items he sought testing on in his 2004 application, he added to his
request testing for blood on the jacket and other clothes he was wearing at the time
in question, and one or two guns recovered by the Cleveland police. Bonnell
contended that the testing on the jacket “may pinpoint the actual killer.” In his
application, Bonnell stated that “there is no reason to believe that the evidence has
been contaminated or tampered with while in the State’s possession and control.”
The jacket had been lost, but in April 2008, the state informed the
trial court that it had located the jacket in this court’s clerk of court files. The parties
then filed a joint motion for DNA testing, which the trial court granted. The jacket
was sent to an agreed-upon independent testing agency, the DNA Diagnostic Center
1R.C. 2953.75 is titled “determinations by prosecuting attorney as to whether
biological material was collected and whether parent sample still exists.” Subsection (B)
requires the state to prepare a report with its determinations.
in Fairfield, Ohio. The results of the testing revealed that Bunner’s blood was on
Bonnell’s jacket in five different places.
Bonnell’s 2017 Motion for Accounting of Physical Evidence
In April 2017, Bonnell filed a motion to compel the state to provide an
accounting of the physical evidence in the case; he sought more DNA testing on
other evidence. Pursuant to his request, the state filed another report under R.C.
2953.74(B), documenting its efforts to find biological material that could possibly
be DNA tested. The assistant prosecuting attorney handling the matter submitted
an affidavit averring to his efforts searching for evidence. In short, except for
Bonnell’s jacket, which as mentioned had been DNA tested pursuant to Bonnell’s
2008 application, the other evidence either could not be located and/or it appeared
to have not been preserved.
In August 2017, the trial court denied Bonnell’s second request for
DNA testing. The court found the state’s search adequate, but that despite the
search, no other evidence existed. Moreover, the court found that even if any
biological material did exist, Bonnell could not show that any additional DNA testing
would be outcome-determinative. The Ohio Supreme Court upheld the trial court’s
decision, State v. Bonnell, 155 Ohio St.3d 176, 2018-Ohio-4069, 119 N.E.3d 1285,
and denied Bonnell’s motion for reconsideration, State v. Bonnell, 113 N.E.3d 554,
2018-Ohio-4962. The United States Supreme Court denied certiorari. Bonnell v.
Ohio, 139 S.Ct. 2644, 204 L.Ed.2d 289 (2019).
Judgment at Issue Here: Bonnell’s 2018 Motion for Leave to File a Motion for New
Trial
Meanwhile, in January 2018, Bonnell filed a motion for leave to file a
motion for a new trial in the trial court. In his motion, he contended that the state’s
2017 R.C. 2953.74(B) report gave rise to a renewed failure to preserve evidence claim
under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).
He also submitted a 2017 affidavit from eyewitness Hatch, which Bonnell contended
raised discrepancies that should cast doubt on the convictions; the affidavit was not
a recantation of her trial testimony, however. As stated, the trial court denied the
motion for leave. The state submitted proposed findings of fact and conclusions of
law; Bonnell neither submitted his own proposed findings of fact and conclusions of
law, nor did he oppose the state’s submission. The trial court adopted the state’s
findings of fact and conclusions of law.
Bonnell now appeals, raising the following four assignments of error:
I. The trial court abused its discretion when it failed to invoke a due
process analysis and grant Bonnell’s motion for leave to file a motion
for new trial or hold a hearing when the issues Bonnell raised in his
motion for leave to file a motion for new trial and in the accompanying
motion for new trial demonstrated violations of his right to due process.
II. The trial court abused its discretion when it denied Bonnell’s motion
for leave to file a motion for a new trial when the record demonstrated
by clear and convincing proof that Bonnell was unavoidably prevented
from discovering the evidence within 120 days of his conviction.
III. The trial court abused its discretion when it denied Bonnell’s
motion for leave to file a motion for a new trial when the newly
discovered evidence Bonnell submitted establishes substantive
grounds which require a new trial.
IV. The trial court deprived Bonnell of meaningful review of his motion
for leave to file a motion for new trial where, after previously adopting
erroneous findings, it once again delegated its judicial function to the
State and adopted verbatim erroneous proposed findings of fact and
conclusions of law.
Based on these alleged errors, Bonnell seeks a reversal and remand to
the trial court with instructions to (1) grant his motion for leave and permit him to
file his motion for a new trial, or (2) alternatively, hold a hearing on his motion for
leave, or (3) alternatively, revise its findings of fact and conclusions of law.
We note that much of Bonnell’s arguments in his brief relate to the
substantive grounds of his request for a new trial. The judgment at issue here was
the denial of his motion for leave to file a motion for a new trial. The motion for
leave is addressed in Bonnell’s second assignment of error; we consider that error
first.2
2See,
e.g., State v. Phillips, 8th Dist. Cuyahoga No. 104810, 2017-Ohio-7164, ¶ 23,
where this court, in considering a judgment denying the defendant’s motion for leave to
file a motion for a new trial stated that,
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 [after a hearing on remand]. At this point in the
proceedings, it does not matter whether a Brady violation did occur, what
matters is whether [the defendant] can show by clear and convincing
evidence that he was unavoidably prevented from discovering the potential
violation during trial and the 120 days following.
Law and Analysis
Untimely Motion
For his second assigned error, Bonnell contends that the trial court
abused its discretion by finding that he failed to show that he was unavoidably
prevented from timely discovering the grounds for his motion for a new trial. The
“new evidence” Bonnell contends he was unavoidably prevented from discovering
was the state’s 2017 R.C. 2953.75(B) “newly discovered” report and “new
statements” made by Hatch in her 2017 affidavit.
Crim.R. 33 governs motions for new trials and provides that motions
for new trials based on account of newly discovered evidence must be filed within
120 days of a jury verdict unless the petitioner demonstrates by clear and convincing
proof that he or she was unavoidably prevented from discovering the evidence upon
which he or she must rely. Crim.R. 33(B).
A person is unavoidably prevented from discovering evidence if the
person had no knowledge of the existence of the grounds supporting the motion and
could not have learned of the existence in the exercise of reasonable diligence within
the time prescribed by the rule. Phillips, 8th Dist. Cuyahoga No. 104810, 2014-
Ohio-7164, at ¶ 16. 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.
If a petitioner fails to meet this burden, “[r]es judicata bars all
subsequent motions seeking a new trial that are based on claims that were brought
or could have been brought on direct appeal or in prior motions filed under Crim.R.
33.” State v. Blalock, 8th Dist. Cuyahoga No. 104773, 2017-Ohio-2658, ¶ 36.
The trial court has sound discretion on whether to grant an
evidentiary hearing on a defendant’s request for leave to file a delayed motion for
new trial; we will not disturb the decision absent an abuse of that discretion. State
v. Hill, 8th Dist. Cuyahoga No. 102083, 2015-Ohio-1652, ¶ 16.
The extensive record in this case is replete with evidence that Bonnell
had been aware well before the state’s 2017 R.C. 2953.75(B) report of the state of the
evidence. That is, that the items he sought testing on did not exist. The record
demonstrates that this was evident since at least 1995. The following illustrates this:
(1) Bonnell’s March 1995 petition for postconviction relief: he contended that the
state failed to collect and/or preserve certain evidence from the crime scene, and in
the state’s May 1995 response to his petition, the state acknowledged that “blood
samples, vomit, fingerprints, and other miscellaneous materials were not
preserved”; (2) trial court’s October 1995 judgment denying his postconviction
petition: Bonnell failed to “show that the State acted in bad faith in not preserving
the evidence in this case”; (3) 1998 appeal to this court of the denial of his
postconviction petition: Bonnell contended that the state “failed to preserve the
scene of the homicide and secure exculpatory evidence,” and the state responded
that his “rights were not violated if blood samples, vomit, fingerprints, and other
miscellaneous materials were not preserved”; (4) Bonnell’s 2000 habeas petition:
Bonnell contended that the state “failed to preserve exculpatory evidence from the
crime scene,” and in its decision, the federal district court held that he “failed to
establish that the unpreserved or untested evidence is exculpatory”; and (5) state’s
2005 R.C. 2953.75(B) report: the state maintained that “Bonnell has argued, and
the Courts have recognized for the past ten years that this evidence [Bonnell seeks
testing on] does not exist,” and the trial court agreed in denying his request.
We are not persuaded by Bonnell’s insinuation that destruction or
nonpreservation of evidence in this case was merely a claim he made, without
knowledge of whether that was actually true. The above-mentioned details that he
was made aware that the evidence he sought did not exist. The state’s 2017 R.C.
2953.75(B) report did not disclose anything “new”; rather, it reiterated what had
been a centerpiece of much of the litigation in this case dating back to 1995 ─ the
evidence Bonnell sought did not exist.3
We are likewise not persuaded by Bonnell’s contention that Shirley
Hatch’s 2017 affidavit constituted newly discovered evidence that he was
unavoidably prevented from discovering. Bonnell contends that he was unable to
3Further, any contention Bonnell has regarding the adequacy of the state’s search
for the evidence he sought testing on vis-à-vis the testing on his jacket under his 2008
application for testing is misleading. Specifically, he had not previously requested testing
on the jacket. When he did, the state searched for the jacket, found it, and agreed to
testing, which revealed Bunner’s blood in five different places.
find Hatch sooner because she moved out of state and changed her last name.
However, the state was able to find Hatch several years earlier through a public
records search on Lexis. Moreover, Bonnell did not set forth in his motion what
efforts he made to find Hatch sooner.
In State v. Moore, 7th Dist. Mahoning No. 13 MA 9, 2014-Ohio-358,
¶ 24, the Seventh Appellate District held:
Even though Moore has been incarcerated, he does not explain how he
has been prevented from contacting the affiant, Butler Johnson.
Indeed, it is unreasonable for Moore not to have attempted to contact
Johnson sooner if he knew that Johnson and Elizabeth Williams had
provided false testimony. Moore was present at his own trial where
Johnson and Elizabeth Williams presumably testified. If he genuinely
knew Johnson’s or William’s testimony to be false, he should have
known that at the time of their testimony. Consequently, it was upon
Moore to exercise reasonable diligence to make efforts to obtain an
affidavit from one of them establishing the fact of their false testimony
and the reasons for it a lot sooner than fifteen years following his
conviction. In other words, Moore did have knowledge of the existence
of the ground supporting the motion from the time of his trial and,
although he was incarcerated, he could have contacted the witnesses
himself or through representatives and investigated the nature of the
alleged false testimony and the reasons behind it.
(Emphasis sic.)
Like the defendant in Moore, Bonnell has not set forth an adequate
explanation as to why it took him 30 years to find Hatch. On this record, therefore,
the trial court properly found that Bonnell failed to show that he was unavoidably
prevented from discovering Hatch’s affidavit.
Moreover, both of Bonnell’s grounds on which his request for leave
were based ─ that “new evidence” showed that the state failed to preserve evidence
and Hatch provided “new evidence” in her affidavit ─ have already been litigated
and are, therefore, barred under the doctrine of res judicata. Under res judicata, a
defendant is barred from raising an issue in a postconviction relief petition if he or
she raised, or could have raised, the issue at trial or on direct appeal. State v. Cody,
8th Dist. Cuyahoga No. 102213, 2015-Ohio-2764, ¶ 16.
We have already set forth the prior rulings by the courts regarding the
state’s failure to preserve evidence. In regard to Hatch, on direct appeal this court
considered the alleged inconsistencies in her testimony, finding that “[m]inor
inconsistencies which may impeach the accuracy of a witness’ recollection of a
drunken traumatic episode do not warrant grounds for overturning a murder
verdict.” Bonnell, 8th Dist. Cuyahoga Nos. 69835 and 73177, 1998 Ohio App. LEXIS
3943, 13 (Aug. 27, 1998). “The defendant’s list of other minutiae to which Hatch
inconsistently testified amounted to immaterial details surrounding the event. As
stated before, even a cursory review of the evidence displays its immateriality.” Id.
at 16. Bonnell continued to raise this claim in his 1995 postconviction relief petition,
federal habeas litigation, and 2018 appeal to the Ohio Supreme Court. It has been
rejected at every turn. Hatch’s averments in her affidavit are not a recantation. They
deal with inconsistencies in her trial testimony vis-à-vis her current recollection of
events ─ inconsistencies that have been determined to be “immaterial.”
In light of the above, Bonnell has failed to establish by clear and
convincing evidence that he was unavoidably prevented from discovering the
evidence upon which his motion for leave was based. There was no abuse in the trial
court’s decision to not have a hearing. The second assignment of error is therefore
not well taken.
Adoption of State’s Proposed Findings of Fact and Conclusions of Law
In his fourth assignment of error, Bonnell challenges the trial court’s
adoption of the state’s proposed findings of fact and conclusions of law. We note
that Bonnell did not file his own proposed findings of fact and conclusions of law,
nor did he object to the state’s submission.
“A trial court does not err when it adopts a party’s proposed findings
of fact and conclusions of law as its own if it has thoroughly read the document to
ensure that it is completely accurate in fact and law.” Cody, 8th Dist. Cuyahoga No.
102213, 2015-Ohio-2764, at ¶ 37, citing State v. Williams, 8th Dist. Cuyahoga No.
99357, 2013-Ohio-2706, and State v. Thomas, 8th Dist. Cuyahoga No. 87666, 2006-
Ohio-6588. Thus, when a trial court adopts proposed findings of fact and
conclusions of law verbatim, the findings and conclusions are those of the court and
may be reversed only if they are clearly erroneous. Anderson v. Bessemer City, 470
U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Cody at id.Upon review, we find no error in the trial court’s adoption of the
state’s proposed findings of fact and conclusions of law. Bonnell has not
demonstrated that the trial court failed to review the record and the documentation
submitted in support of his motion for leave. Further, the trial court judge who
considered his motion for leave was the same judge who considered his 1995 petition
for postconviction relief and both of the applications for DNA testing and, therefore,
presumably was familiar with the case. Our review of the findings and conclusions
does not show that they are “clearly erroneous.”
In light of the above, Bonnell’s fourth assignment of error is
overruled.
The second and fourth assignments of error are dispositive of the
appeal, and we decline to consider the remaining assignments. See App.R.
12(A)(1)(c).
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.
LARRY A. JONES, SR., JUDGE
EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR