State v. Miller , 2022 Ohio 378 ( 2022 )

[Cite as State v. Miller, 2022-Ohio-378.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110571
v. :
LEELIN J. MILLER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 10, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-13-572533-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
John P. Parker, for appellant.
SEAN C. GALLAGHER, A.J.:
Appellant Leelin J. Miller appeals the trial court’s decision that
denied his motion for leave to file a new trial motion and his petition for
postconviction relief. Upon review, we affirm.
Background
In August 2013, Miller was convicted of aggravated murder and
related offenses arising from the shooting of Richard McCoy (“the victim”). Miller
was sentenced to an aggregate prison term of 49 years to life. The conviction was
affirmed on direct appeal in State v. Miller, 8th Dist. Cuyahoga No. 100461, 2014-
Ohio-3907. A detailed factual history of the case is set forth in that opinion. We
include a brief overview of the facts for purposes of this appeal.
During Miller’s trial, Mario Godfrey provided eyewitness testimony
of events leading up to and including the shooting, and he identified Miller as the
shooter. According to Godfrey’s testimony, he was in the front passenger seat of a
van driven by the victim, Miller was seated in the rear passenger seat behind the
driver, and Miller shot the victim after the victim ignored Miller’s repeated requests
to be dropped off. Godfrey testified that after the shooting occurred, he called his
girlfriend to pick him up and told her what happened, and the next day he told his
mother what happened. Godfrey learned of the victim’s death the morning after the
shooting. Godfrey stated that Miller called him the next evening and threatened the
same thing would happen to Godfrey if he opened his mouth.
Evidence was introduced that corroborated Godfrey’s account of the
shooting. Godfrey’s cell phone records corroborated his testimony that he
telephoned his girlfriend shortly after the shooting and his mother the next day. The
testimony of Godfrey’s then girlfriend and his mother corroborated that Godfrey
told each of them about the shooting. The medical examiner testified that the path
of the bullet wounds was consistent with the victim being seated and shot from
behind, but he also acknowledged that it was plausible that it was consistent with a
person running with their hip flexed. According to the forensic scientist, gunshot
residue was found on the victim’s hand, which would be consistent with being inside
a vehicle and the gun being shot close to him. Miller’s own statement placed him in
the vehicle with both Godfrey and the victim on the night of the victim’s shooting.
Miller also implicated himself in his interview with the police, expressing that only
three people “knew what happened,” yet stating the victim dropped off Godfrey first.
Seven years after Miller’s conviction, on November 30, 2020, Miller
filed a motion for leave to file new trial motion under Crim.R. 33(A)(6), and on
December 1, 2020, he filed a petition for postconviction relief. Attached to the
motion and the petition are (1) a handwritten, notarized statement from Godfrey;
(2) an affidavit of the notary confirming that on July 15, 2019, she notarized a three-
page document signed in her presence by Godfrey; (3) an affidavit from Miller’s son
stating he was given the three-page document from a family friend in September
2019 and that Miller directed him to send it to the Ohio Innocence Project; and (4)
a letter from the Ohio Innocence Project dated September 16, 2020, to Miller’s
counsel that attached the original three-page document.
In his sworn statement, Godfrey now maintains that on the night in
question, he was dropped off before Miller, that the victim left with Miller to drop
Miller off, that Godfrey does not know what happened to the victim thereafter, that
Godfrey learned of the victim’s death the next morning, and that Godfrey never saw
Miller with a gun or Miller shoot the victim. Godfrey also states he was told if he did
not testify to his statement given to the police, then he would be charged with
murder, and he was pressured into testifying. He further states he told his girlfriend
at the time and his mother that if he did not testify, he was getting charged with
murder, and he made them “think I seen it so they would testify to it.”
On May 26, 2021, the trial court denied both Miller’s petition for
postconviction relief and his motion for leave to file new trial motion without a
hearing. Miller timely filed this appeal.
Law and Analysis
Under his assigned errors, Miller challenges the trial court’s decision
to deny his motion for leave to file new trial motion and to deny his petition for
postconviction relief. He also raises an actual innocence claim.
Although Miller states that the November 30, 2020 docket entry for
the filing of the motion for leave notes it was granted June 2, 2021, this was noted
in error on the docket. There is no corresponding journal entry granting leave, and
the trial court’s journal entry dated May 26, 2021, contains the court’s ruling
denying the motion for leave. Because leave was denied, the court never reached a
ruling on the motion for new trial.
A. Motion for leave to file new trial motion
Under his first assignment of error, Miller claims the trial court erred
in denying his motion for leave to file new trial motion.
A party who fails to timely file a motion for new trial must seek leave
from the trial court to file a delayed motion for new trial. State v. Murphy, 8th Dist.
Cuyahoga Nos. 110220 and 110483, 2021-Ohio-3925, ¶ 25, citing State v. Hale, 8th
Dist. Cuyahoga No. 107782, 2019-Ohio-1890, ¶ 9. This court reviews a trial court’s
denial of leave to file an untimely motion for new trial for an abuse of discretion.
State v. Briscoe, 8th Dist. Cuyahoga No. 110490, 2021-Ohio-4317, ¶ 19, citing State
v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981, ¶ 13 (8th Dist.). We also review the trial
court’s decision whether to hold a hearing on the motion for an abuse of discretion.
Id., citing Sutton at ¶ 24. An abuse of discretion implies that a trial court’s decision
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
Miller moved the trial court for leave to file a delayed motion for new
trial based on newly discovered evidence under Crim.R. 33(A)(6). Crim.R. 33(B)
requires a motion for new trial on account of newly discovered evidence to be filed
“within one hundred twenty days after the day upon which the verdict was
rendered,” unless “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” within the 120-day period prescribed by the rule. Crim.R.
33(B); see also Briscoe at ¶ 20-21. 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. The defendant is “unavoidably
prevented” from discovering evidence if he has no knowledge of the existence of the
grounds supporting the motion and could not have learned of that existence in the
exercise of reasonable diligence within the time prescribed by the rule. Briscoe at
¶ 24, citing State v. Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11, ¶ 17. A trial
court does not abuse its discretion in denying a motion for leave to file a delayed
motion for new trial without an evidentiary hearing when the motion and
supporting affidavits fail on their face to demonstrate that the defendant was
unavoidably prevented from timely discovery of the statement. Id. at ¶ 23.
Miller’s motion for leave to file new trial motion was filed over seven
years after the verdict was rendered in this case, which is well over the 120-day
deadline stated in Crim.R. 33(B). Crim.R. 33(B) required Miller to demonstrate, by
clear and convincing proof, that he was unavoidably prevented from discovering the
evidence upon which he relies within 120 days of the verdict. Miller does not
describe any actions undertaken within the 120-day period and fails to explain why
he, through counsel, was unavoidably prevented from speaking with Godfrey after
trial regarding his testimony. Godfrey’s sworn statement was provided to a friend
of Miller’s family and does not explain the circumstances under which it was made
or indicate that he was not willing to provide the information earlier.
A defendant and his counsel have a duty of their own to make a
serious effort to discover favorable evidence. Murphy, 8th Dist. Cuyahoga Nos.
110220 and 110483, 2021-Ohio-3925, at ¶ 29, citing State v. Williams, 8th Dist.
Cuyahoga No. 99136, 2013-Ohio-1905, ¶ 8; see also State v. Hubbard, 8th Dist.
Cuyahoga No. 108853, 2020-Ohio-2726, ¶ 56, citing State v. Jackson, 8th Dist.
Cuyahoga No. 108241, 2019-Ohio-4893, ¶ 20. One may not claim that evidence was
undiscoverable simply because an affidavit recanting testimony was not obtained
sooner. State v. Fortson, 8th Dist. Cuyahoga No. 82545, 2003-Ohio-5387, ¶ 11.
Also, “[m]ere 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, citing State v. Noor, 10th Dist. Franklin No. 16AP-340, 2016-Ohio-
7756, ¶ 11.
We recognize that Miller is incarcerated and appreciate the logistical
difficulties for inmates in obtaining legal representation and investigating.
However, Miller offered no explanation of any potential efforts to discover favorable
evidence in the exercise of reasonable diligence during the 120-day period. Also,
although Miller claims Godfrey did not recant his trial testimony until years after
the trial, Miller did not provide any evidence that Godfrey was unwilling to speak
with him or a representative regarding Godfrey’s trial testimony, such that he was
unavoidably prevented from discovering this purported new evidence sooner. See
Murphy at ¶ 29-32. Even if Miller had established that he was unavoidably
prevented from discovering the purported new evidence within the time prescribed
by the rule, Miller was required to demonstrate that his motion for leave was filed
within a reasonable time after discovering the new evidence. See State v. Lundy,
10th Dist. Franklin No. 19AP-505, 2020-Ohio-1585, ¶ 14, citing State v. N.D.C., 10th
Dist. Franklin No. 15AP-63, 2015-Ohio-3643, ¶ 16.
To obtain leave, the movant must show that the motion for leave was
filed within a reasonable time after the new evidence was discovered. Gray, 8th
Dist. Cuyahoga No. 92646, 2010-Ohio-11, at ¶ 18, citing State v. Berry, 10th Dist.
Franklin No. 06AP-803, 2007-Ohio-2244, ¶ 37. “If a significant delay occurs, the
trial court must ascertain whether the delay was reasonable under the circumstances
or whether the movant adequately explained why the delay occurred.” Murphy at
¶ 6, citing Gray at ¶ 11. Miller has failed to show that he requested leave to file a
motion for new trial within a reasonable period of time after learning of Godfrey’s
recantation. Godfrey’s sworn statement was known to Miller as early as September
2019, when Miller’s son obtained the document and was instructed by Miller to take
it to the Ohio Innocence Project. Yet, Miller’s motion for leave to file new trial
motion was not filed until November 2020. Although Miller attributes the delay to
the Ohio Innocence Project, stating they did not act more quickly, Miller fails to
sufficiently explain the delay of over a year in filing his motion. See Lundy at ¶ 19.
Miller has failed to show that he took any other steps to file his motion within a
reasonable time or to establish the delay was reasonable under the circumstances.
See Gray at ¶ 33 (“in the world of technology and e-filing, the delay of ten months,
under the timing and circumstances * * *, is unreasonable.”); Hubbard, 8th Dist.
Cuyahoga No. 108853, 2020-Ohio-2726, at ¶ 62-63 (motion for leave was not filed
within a reasonable time when filed more than one year after affidavits were
executed); State v. Hill, 8th Dist. Cuyahoga No. 108250, 2020-Ohio-102, ¶ 25, 28
(affidavit recanting affiant’s prior trial testimony submitted over a year after its
receipt was not timely brought to the court’s attention); State v. Woodward, 10th
Dist. Franklin No. 08AP-1015, 2009-Ohio-4213, ¶ 17 (“Although we appreciate the
logistical difficulties an inmate faces in trying to communicate with a lawyer, the
trial court did not abuse its discretion in concluding this explanation does not justify
appellant’s delay of more than two years before filing his motions.”).
We also recognize the purported newly discovered evidence is
Godfrey’s recantation of his trial testimony. “A witness’s recantation of testimony
can be newly discovered evidence if the court finds the new testimony credible and
if the new testimony would materially affect the outcome of the trial.” Gray at ¶ 29,
citing State v. Burke, 10th Dist. Franklin No. 06AP-686, 2007-Ohio-1810, ¶ 18.
Courts view a witness’s recantation of trial testimony with the utmost suspicion.
State v. Collins, 8th Dist. Cuyahoga No. 108486, 2020-Ohio-918, ¶ 53, citing State
v. Nunez, 8th Dist. Cuyahoga No. 104917, 2017-Ohio-5581, ¶ 35. “Newly discovered
evidence must do more than merely impeach or contradict evidence at trial, and
there must be some compelling reason to accept a recantation over testimony given
at trial.” Fortson, 8th Dist. Cuyahoga No. 82545, 2003-Ohio-5387, at ¶ 13, citing
State v. Mack, 8th Dist. Cuyahoga No. 75086, 1999 Ohio App. LEXIS 5063, 7-8
(Oct. 28, 1999). Under the circumstances of this case, the trial court would have
been justified in finding Godfrey’s statement lacks credibility and does not create a
strong probability of a different result.1
Godfrey provided no reason for why he waited several years to come
forward with his statement. The record before us reflects that unlike his sworn
statement, Godfrey’s trial testimony was consistent with and corroborated by other
testimony and evidence. In his sworn statement, Godfrey indicates that he was
pressured into testifying and that he told his then girlfriend and his mother that if
he did not testify, he was getting charged with murder and he made them “think I
seen it so they would testify to it.” However, the testimony and evidence at trial
showed that Godfrey informed his then girlfriend and his mother what happened
before he ever contacted the police. In this court’s decision on the direct appeal, this
court reviewed the testimony on this as follows:
[After Miller shot Godfrey], Godfrey ran out of the van and up the street
to his uncle’s house. Godfrey testified that he was not sure if Miller
actually shot [the victim] because he saw [the victim] “running up the
street.” Godfrey then saw Miller take off in the van.
1 The circumstances of this case are distinguishable from Gray, 8th Dist. Cuyahoga
No. 94282, 2010-Ohio-5842, which is cited by appellant. In Gray, the affidavits, one of
which was from a person claiming to be the actual shooter and the other from a recanting
witness, if true, would have exonerated the defendant and could not be discredited on
their face under the circumstances involved. Id. at ¶ 24.
Godfrey called his girlfriend to pick him up and told her what
happened. * * *
Godfrey testified that, in addition to telling his girlfriend, he told his
parents what happened, all of whom encouraged him to contact the
police. * * *
Godfrey testified that he feared Miller, resulting in him hiding in his
house after the shooting. After consulting with an attorney, Godfrey
eventually contacted the police and provided a written statement
regarding the shooting. * * *
Maurita Mays, Godfrey’s girlfriend, testified that Godfrey called her in
the evening [of the shooting], and asked her to pick him up at his
uncle’s house. According to Mays, Godfrey told her that “some effed up
stuff had happened. That [Miller] shot [the victim].” Mays testified
that Godfrey was crying when he told her and that the two of them were
in shock. Mays testified that they went to the Fourth District to report
the shooting but that Godfrey never went inside. Mays testified that
she told Godfrey to get an attorney first before reporting it to the police.
The state also offered the testimony of Godfrey’s mother, who
corroborated that Godfrey told her about the shooting the next day.
According to Godfrey’s mother, she too told him that he had to report
the shooting to the police.
Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, at ¶ 12-17.
Additionally, Godfrey’s cell phone records confirmed the timing of the
calls made to his then girlfriend and to his mother. The victim’s gunshot wounds
were consistent with being shot from behind, and gunshot residue was found on the
victim’s hand, which would be consistent with being shot inside the vehicle and
being close to the gun being shot. Also, Miller’s own statement placed himself in the
vehicle with Godfrey and the victim on the night of the shooting, and Miller also
implicated himself, expressing that only three people “knew what happened.” As
found in Miller’s direct appeal, “Godfrey’s testimony was further substantiated by
other evidence presented by the state, including Miller’s own statement placing him
with [the victim] and Miller on the night of the shooting” and “the state presented
other circumstantial evidence that corroborated various aspects of Godfrey’s
testimony.” Miller at ¶ 39, 53.
There was no compelling reason to accept Godfrey’s recantation over
his testimony given at trial. Godfrey’s sworn statement was contradictory to his trial
testimony and the corroborating evidence that was presented. The trial court could
have determined, without the need for a hearing, that Godfrey’s sworn statement
lacked credibility. See Collins, 8th Dist. Cuyahoga No. 108486, 2020-Ohio-918, at
¶ 55.
For all the foregoing reasons, we find the trial court did not abuse its
discretion in denying the motion for leave to file new trial motion or in denying the
motion for leave without an evidentiary hearing. We overrule the first assignment
of error.
B. Actual innocence claim
Under his second assignment of error, Miller claims that he is entitled
to relief because “he is actually innocent” and that his convictions violate the federal
Constitution and the Ohio Constitution in light of Godfrey’s recantation. This court
has previously rejected any request to recognize a “freestanding actual innocence
claim” that “no other court in Ohio has previously recognized in a petition for
postconviction relief.” State v. Jordan, 8th Dist. Cuyahoga No. 109345, 2021-Ohio-
701, ¶ 55. “A claim of actual innocence is not itself a constitutional claim, nor does
it constitute a substantive ground for postconviction relief.” State v. Lavette, 8th
Dist. Cuyahoga No. 108997, 2020-Ohio-5338, ¶ 14, citing State v. Apanovitch, 155
Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 26,2 citing Herrera v. Collins,
506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); see also State v. McLin,
8th Dist. Cuyahoga No. 103172, 2016-Ohio-302, ¶ 10 (recognizing “the plethora of
case law establishing that a claim of actual innocence based on newly discovered
evidence is not itself a constitutional claim nor does it constitute a substantive
ground for postconviction relief”). Such a claim “fails to raise a denial or
infringement of rights under the Ohio Constitution or the Constitution of the United
States as required by R.C. 2953.21.” Lavette at ¶ 14, citing R.C. 2953.21(A)(1)(a)(i).
We are not persuaded by Miller’s argument and overrule his second assignment of
error.
C. Petition for postconviction relief
Under his third assignment of error, Miller claims the trial court erred
in denying his petition for postconviction relief. “‘[W]hether a court of common
pleas possesses subject-matter jurisdiction to entertain an untimely petition for
postconviction relief is a question of law, which appellate courts review de novo.’”
Apanovitch at ¶ 24, quoting State v. Kane, 10th Dist. Franklin No. 16AP-781, 2017-
Ohio-7838, ¶ 9. R.C. 2953.23(A) permits a prisoner to file an untimely petition for
2
In Apanovitch, the Supreme Court of Ohio has held that a claim of “actual
innocence” does not amount to a “constitutional error at trial” for purposes of satisfying
R.C. 2953.23(A)(1)(b). Apanovitch at ¶ 26.
postconviction relief under limited circumstances. Relevant to this case, R.C.
2953.23(A) requires Miller to (1) show he “was unavoidably prevented from
discovery of the facts upon which the petitioner must rely to present the claim for
relief,” and (2) show “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 * * *.”
“[T]he ‘unavoidably prevented’ requirement in R.C. 2953.23(A)(1)
mirrors the ‘unavoidably prevented’ requirement in Crim.R. 33(B).” Murphy, 8th
Dist. Cuyahoga Nos. 110220 and 110483, 2021-Ohio-3925, at ¶ 37, citing State v.
Waddy, 2016-Ohio-4911, 68 N.E.3d 381, ¶ 27 (10th Dist.). Accordingly, for the same
reasons stated in denying Miller’s motion for leave, we also find Miller has failed to
demonstrate that he was unavoidably prevented from discovering Godfrey’s
purported recantation so as to permit a trial court to consider an untimely petition
for postconviction relief. See Murphy at ¶ 37.
Also, Miller’s actual innocence claim, based on Godfrey’s purported
recantation, is not a constitutional claim, nor does it constitute a substantive ground
for postconviction relief. See Lavette at ¶ 14-15. “[A] violation of due process is not
implicated merely because a state’s trial witness recants his trial testimony. A
conviction based upon perjured testimony does not implicate constitutional rights
absent a showing that the state knew of the perjury.” Lavette at ¶ 12, citing State v.
Blalock, 8th Dist. Cuyahoga No. 100194, 2014-Ohio-934, ¶ 50.
Although Miller argues the trial court should have conducted an
evidentiary hearing, “a hearing is not automatically required whenever a petition for
postconviction relief is filed.” Murphy, 8th Dist. Cuyahoga Nos. 110220 and 110483,
2021-Ohio-3925, at ¶ 9, citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d
819 (1980). Rather, “a trial court may dismiss a petition for postconviction relief
without a hearing ‘where the petition, the supporting affidavits, the documentary
evidence, the files, and the records do not demonstrate that petitioner set forth
sufficient operative facts to establish substantive grounds for relief.’” Id., quoting
State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the
syllabus. Because Miller did not raise any recognized constitutional claim or
substantive ground for relief, the trial court did not abuse its discretion in not
holding an evidentiary hearing on his petition.
Appellant’s third 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.
____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR
KEYWORDS: State v. Miller 110571 KK (SG) ET
Leave; new trial; hearing; abuse of discretion; newly discovered; Crim.R. 33(A)(6);
Crim.R. 33(B); unavoidably prevented; reasonable time; eyewitness testimony;
recantation; actual innocence; postconviction relief; untimely; R.C. 2953.23(A)(1).
The trial court did not abuse its discretion in denying appellant’s motion for leave
to file new trial motion based on newly discovered evidence or in denying the
motion for leave without an evidentiary hearing. Appellant did not show that he
was unavoidably prevented from discovering the purported newly discovered
evidence of an eyewitness’s statement recantation of his trial testimony or that he
requested leave to file his motion for new trial within a reasonable period of time.
Appellant’s claim of actual innocence was rejected. Appellant’s untimely petition
for postconviction relief was properly denied.