State v. Howard

[Cite as State v. Howard, 2022-Ohio-3739.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
v. : No. 111286
LEONARD HOWARD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 20, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-91-263243-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory J. Ochocki, Assistant Prosecuting
Attorney, for appellee.
Russell S. Bensing, for appellant.
SEAN C. GALLAGHER, A.J.:
Leonard Howard appeals the denial of his successive petition for
postconviction relief, in which he raises the same issue that arose in his delayed
motion for a new trial filed in 1997 — whether the state was aware of evidence that
would have impeached a witness who later recanted part of his testimony. For the
following reasons, we affirm.
Howard was convicted of aggravated murder, murder, felonious
assault, and having a weapon while under disability, along with an attendant firearm
specification for the killing of two victims, Mark Marshall and Thomas Ricardo
Allen, who were gunned down at a gas station on East 131st Street and Harvard
Avenue in the city of Cleveland, and the wounding of a third victim. State v.
Howard, 8th Dist. Cuyahoga No. 62191, 1993 Ohio App. LEXIS 1977, 1-2 (Apr. 8,
1993). The trial court sentenced Howard to serve an aggregate prison term of life,
with the possibility of parole after 59 years.
The trial transcript is not part of the appellate record. According to
the panel reviewing the direct appeal of the convictions, the primary evidence
entered against Howard at trial was the testimony of Howard’s codefendants,
Abraham Douglas, Andre Collier, and Jerrall Collier. Id. Thus, the state presented
eyewitness testimony from persons who were “with appellant prior to and just after
the murders and physical evidence linking appellant to the crimes.” Id. Although
Earl Johnson testified at Howard’s trial, Johnson’s testimony focused on other acts
evidence of an overall plan or scheme. As a sidenote, following the extensive trial
testimony, the panel noted that “[i]t was surmised that [Howard] discovered Earl
was an eyewitness to the earlier murders at [the gas station]. [Johnson] testified
that he happened to be riding as a passenger in a car and saw appellant, along with
others, firing at two people.” Id. at 6.
In resolving Howard’s argument challenging the weight of the
evidence in support of the convictions, the panel concluded as follows:
In this case, there was overwhelming evidence of appellant’s guilt.
Derrick Jones, an eyewitness, identified appellant shooting Marshall
and Allen. Jerrall, a co-conspirator, testified to the events of the
murders and implicated appellant. Moreover, Jerrall’s testimony was
corroborated by White and June. All the testimony was materially
consistent and we find no basis, nor has appellant presented one, why
we should disbelieve the factfinder’s assessment and verdict and
reverse his convictions.
Id. at 18. Thus, the panel did not discuss Johnson’s testimony in any further detail
and did not rely on Johnson’s testimony in sustaining the conviction.
Nevertheless, in 1997 Johnson recanted his trial testimony insomuch
as he claimed to have witnessed the shooting. He nonetheless maintained his
testimony regarding Howard’s attempt on his life. Howard filed a delayed motion
for a new trial based on the then newly discovered evidence. The transcript of those
proceedings was appended to Howard’s latest petition for postconviction relief. At
that time, Johnson testified that he did not witness the shooting but had simply
driven past the aftermath. Importantly, he also claimed to have told several
detectives of that fact during the investigation — setting the stage for the Brady
violation claim.
Howard’s latest petition for postconviction relief once again focuses
on the trial testimony of Johnson. In 2019, Howard’s family procured the police
reports confirming Johnson told detectives about his not witnessing the actual
shooting. Howard claims that he was unable to obtain the police report until 2016,
when the Ohio Supreme Court concluded that the investigatory-work-product
exception of the Public Records Act under R.C. 149.43(A)(2)(c) did not extend
beyond the completion of trial for which the information was gathered. State ex rel.
Caster v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 47; but
see State ex rel. Summers v. Fox, 163 Ohio St.3d 217, 2020-Ohio-5585, 169 N.E.3d
625, ¶ 47 (when witness statements to law enforcement are prepared for the “sole”
purpose of providing the prosecutor the necessary information, the exception to the
public records act request for investigatory work product applies). There is no
explanation for why Howard waited three additional years to seek the police reports
following the Ohio Supreme Court decision.
The trial court denied the successive petition for postconviction relief,
concluding that it lacked jurisdiction to consider the merits of the claim under
R.C. 2953.23(A)(1)(b).
In this appeal, Howard claims that “the trial court erred in imposing
an unconstitutional standard in determining the merits of [his] petition for
postconviction relief[,]” primarily relying on Kyles v. Whitley, 514 U.S. 419, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995), as applied through State v. Bethel, 167 Ohio St.3d 362,
2022-Ohio-783, 192 N.E.3d 470. See also State v. Mack, 8th Dist. Cuyahoga No.
101261, 2018-Ohio-301, ¶ 30 (applying Kyles to the appellate review of a
postconviction proceeding under R.C. Chapter 2953). According to Howard, the
statutory standard to properly invoke the trial court’s continuing jurisdiction to
consider a successive or untimely petition for postconviction relief under R.C.
2953.23(A) differs from the standard to review a claim of the deprivation of
constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), as announced in Kyles.
Bethel provides the procedural framework through which this appeal
from the denial of a successive petition for postconviction relief must be analyzed.1
The withholding of evidence, whether intentional or inadvertent, violates the
Fourteenth Amendment if the evidence is either exculpatory or provides
impeachment value and is prejudicial to the offender. Bethel at ¶ 19, citing Brady
and Smith v. Cain, 565 U.S. 73, 75, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012)
(summarizing the three components of “a true Brady violation”). “‘[F]avorable
evidence is material, and constitutional error results from its suppression by the
government, “if there is a reasonable probability that, had the evidence been
1 Although Howard claims that the “Ohio post-conviction statute is the only vehicle
for addressing a situation where the State has violated a defendant’s constitutional rights
by failing to disclose exculpatory evidence,” Howard has not cited any authority to
support such a notion. To the contrary, the Brady violation could have been addressed
in Howard’s 1997 delayed motion for a new trial in which Howard presented evidence that
detectives were aware of Johnson’s impeachable testimony; although it is recognized that
Howard would not have been able to produce the actual police reports at that time, he
could have also filed a separate motion for new trial after receiving the police report. See,
e.g., Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 59 (finding the
Brady violation to be a valid basis supporting a motion for leave to file a delayed motion
for a new trial); State v. Buehner, 8th Dist. Cuyahoga No. 109699, 2021-Ohio-4435.
Importantly, Howard has maintained that his petition for postconviction relief must be
analyzed under the statutory framework. App.R. 16(A)(7). His argument will be
addressed as presented, but it is noted that in Bethel, the Ohio Supreme Court applied the
materiality review under the Brady violation in considering both the petition for
postconviction relief and the motion for leave to file the delayed motion for a new trial.
Thus, the outcome hinges on the same analysis regardless of whether the motion is
brought under the statutory postconviction proceeding or the Ohio Criminal Rules for a
delayed motion for new trial, which does not contain the statutory jurisdictional
impediment.
disclosed to the defense, the result of the proceeding would have been different.”’”
Id., quoting Kyles at 433 and United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.
3375, 87 L.Ed.2d 481 (1985). Prejudice, under the Brady standard, is demonstrated
if “the government’s evidentiary suppression ‘undermines confidence in the
outcome of the trial.’” Id., citing Kyles and Bagley.
In order for an offender to advance a Brady violation claim following
a conviction under Ohio’s postconviction relief statutory structure, the jurisdictional
requirements under R.C. 2953.21 must be met. Id. at ¶ 20. If the petition is either
untimely or a successive petition, such as the petition at issue in this particular
appeal, R.C. 2953.23(A) controls. Under that section, in order to invoke the
continuing jurisdiction of the trial court in the postconviction proceeding, the
offender must demonstrate “(1) that he was ‘unavoidably prevented from discovery
of the facts’ upon which his claim relies and (2) by clear and convincing evidence,
that no reasonable factfinder would have found him guilty or eligible for the death
sentence but for the constitutional error at trial.’” Id., citing R.C. 2953.23(A)(1) and
State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 36; see
also State v. Jones, 8th Dist. Cuyahoga No. 110855, 2022-Ohio-1674, ¶ 7 (applying
Apanovitch).
The jurisdictional requirement under R.C. 2953.23(A)(1)(b) must be
considered in accordance with Brady and Kyles. Bethel, 167 Ohio St.3d 362, 2022-
Ohio-783, 192 N.E.3d 410, at ¶ 32. Accordingly, a petitioner advancing a Brady
violation claim within a petition for postconviction relief must prove “‘in the context
of the entire record, suppression” of the withheld information “‘undermines
confidence in the outcome of the trial.’” Id., quoting United States v. Agurs, 427
U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), Kyles, 514 U.S. at 434, 115 S.Ct.
1555, 131 L.Ed.2d 490, and Bagley, 473 U.S. at 678, 105 S.Ct. 3375, 87 L.Ed.2d 481.
In this case, the trial court issued its decision approximately a month
after the Ohio Supreme Court released Bethel. Nothing in the record indicates that
either party timely brought Bethel to the trial court’s attention. The trial court relied
on the language of R.C. 2953.23(A)(1)(b) to conclude that Howard failed to
demonstrate that no reasonable factfinder would have found him guilty at trial in
consideration of the withheld police reports and, thus, the court lacked jurisdiction
to review the merits of the claim. According to Bethel, that standard is not entirely
accurate when considering a Brady violation claim within Ohio’s postconviction
relief statutory structure, which must account for the differing standard for
demonstrating prejudice. Bethel at ¶ 32.
The Ohio Supreme Court nonetheless reiterated that citing the
language of the statutory provision is not detrimental to the outcome. Id. at ¶ 40.
In concluding that the trial court lacked jurisdiction to review the petition for
postconviction relief in Bethel, it was held that the petitioner had “not shown by clear
and convincing evidence that no reasonable factfinder would have found him guilty
or eligible for the death sentence but for constitutional error at trial” — a verbatim
recitation of the statutory standard. Bethel at ¶ 40; see also State v. Bethel, 10th
Dist. Franklin No. 19AP-324, 2020-Ohio-1343, ¶ 28 (the Tenth District concluded
that the trial court properly determined it lacked jurisdiction to consider a
successive petition for postconviction relief because the offender failed to “show by
clear and convincing evidence that, but for constitutional error at trial, no
reasonable jury would have found him guilty or eligible for a death sentence”). Thus,
in this respect, the Kyles standard was compatible with R.C. 2953.23(A)(1)(b) such
that in this case, the trial court’s stated rationale in denying the petition for
postconviction relief is in complete alignment with Bethel.
Howard nonetheless asks for this matter to be remanded to the trial
court to consider the appropriate constitutional standard based on the discrepancy
between the trial court’s stated rationale in this case and the standard to be applied
through Kyles. Even if we engaged in the extraordinary presumption that the trial
court applied the statutory standard to the exclusion of the constitutional standard
announced in Kyles for the sake of this discussion, it must be recognized that a
“reviewing court will not reverse a correct judgment merely because a trial court
relied on an erroneous reason as the basis for its determination.” O’Neal v. State,
2020-Ohio-506, 146 N.E.3d 605, ¶ 20 (10th Dist.), citing Hassey v. Columbus,
2018-Ohio-3958, 111 N.E.3d 1253, ¶ 33 (10th Dist.), and Joyce v. Gen. Motors Corp.,
49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990). “‘[A]n appellate court must affirm the
judgment if it is legally correct on other grounds, that is, it achieves the right result
for the wrong reason, because such an error is not prejudicial.’” Id. at ¶ 20, quoting
Reynolds v. Budzik, 134 Ohio App.3d 844, 846, 732 N.E.2d 485 (6th Dist.1999),
fn. 3; see, e.g., Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 410, at ¶ 59
(although the trial court committed error by denying leave to file a delayed motion
for new trial, the result was nonetheless correct). R.C. 2953.23(A) codifies a trial
court’s continuing jurisdiction to consider the merits of a petitioner’s requested
relief. Failure to properly invoke the trial court’s jurisdiction is fatal to the
postconviction process. See Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121
N.E.3d 351, at ¶ 36.
As Bethel emphasizes, not all withheld evidence will sustain the trial
court’s jurisdiction to entertain or consider a petition for postconviction relief.
Bethel at ¶ 40. If the information withheld has “limited probative” value in the
context of the entire record of the conviction, the information would have been of
limited use at trial and would not impact the confidence in the ultimate verdict. Id.In this case, Howard’s argument in support of the petition for
postconviction relief is based on his belief that Johnson was a “key” witness at trial.
Without the transcript of the trial proceedings, there is no substantive record upon
which that characterization of Johnson’s trial testimony can be resolved. Instead,
we are left to review the panel decision in the direct appeal, and upon that review,
there is no indication that Johnson’s testimony regarding witnessing the shooting
was anything more than duplicative testimony to that of the several witnesses and
codefendants who testified against Howard and were firsthand witnesses to the
murder or to Howard’s statements and actions after the fact. At the most basic level,
impeaching Johnson at trial would have limited probative value as to Howard’s
guilt, since the primary and overwhelming evidence of Howard’s misconduct was
secured through his codefendants’ decision to testify against Howard. See Bethel at
¶ 40 (the withheld information had limited probative value in the context of the
entire record, and therefore, the petition for postconviction relief was properly
denied). None of that evidence is impacted by Johnson’s recantation or the latest
evidence demonstrating Johnson in fact told detectives he had not witnessed the
shooting. In the context of the entire record, the alleged suppression of the withheld
information in this case cannot be said to have undermined the confidence in the
outcome of the trial.
Accordingly, and even though it is not outwardly apparent that the
trial court was provided the Bethel decision for consideration, the trial court
correctly determined that it lacked jurisdiction to consider the merits of Howard’s
petition for postconviction relief.
We affirm.
It is ordered that appellee recover of 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
EMANUELLA D. GROVES, J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR