[Cite as State v. Murphy,

.]

COURT OF AMPPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : Nos. 110220 and 110483 v. :

ALLEN MURPHY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 4, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-625470-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey and Tasha L. Forcione, Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Erica B. Cunliffe and Paul Kuzmins, Assistant Public Defenders, for appellant.

KATHLEEN ANN KEOUGH, J.:

In this consolidated appeal, Allen Murphy appeals from the trial court’s

denial of his petitions for postconviction relief and motion for leave to file a motion

for a new trial. For the reasons that follow, we affirm. I. Procedural Background

In 2018, Murphy was named in a five-count indictment charging him

with three counts of rape, and one count each of kidnapping and disseminating

matter harmful to juveniles. A jury found him guilty of all counts, and the trial court

sentenced him to 25 years to life in prison.1

Murphy appealed his convictions, raising nine assignments of error.

State v. Murphy, 8th Dist. Cuyahoga No. 107836,

(“Murphy I”).2

Relevant to this appeal, he contended that his convictions were against the

sufficiency of the evidence because the state’s “primary witness ‘really does not

know’ whether the incident charged actually occurred”; (2) his convictions were

against the manifest weight of the evidence; (3) the trial court erred by permitting

Dr. McPherson to testify “that he diagnosed the alleged victim as a victim of sexual

abuse”; (4) he was denied a fair trial when the state solicited testimony from its

social worker that the victim’s allegations were “substantiated”; (5) the trial court

erred by not permitting Murphy to develop that the girlfriend of the victim’s father

had a history of speaking with young children about sexual matters; (6) “the trial

court erred in allowing the government to introduce evidence of Murphy’s

1 Following the jury’s verdict, but prior to sentencing, Murphy filed a motion for acquittal or new trial. The trial court did not specifically rule on the motion, but in its sentencing journal entry, the trial court stated “[a]ll motions not specifically ruled on prior to the filing of this judgment entry are denied as moot.” 2 The facts of the case can be found in Murphy I, but the relevant facts will be discussed herein. willingness to take a polygraph test and then impeach that same statement; (7) “the

trial court erred in allowing the government to introduce statements on whether

Appellant viewed pornography on his cellular phone and then impeach that same

statement”; (8) ineffective assistance of trial counsel; and (9) he was precluded from

cross-examining the state’s expert about the victim’s prior sexual abuse. This court

found no merit to his assigned errors and affirmed his convictions and sentence.

On December 3, 2019, Murphy timely filed a petition for postconviction

relief, raising three grounds — (1) actual innocence because the victim recanted her

allegation; (2) the state committed a Brady violation by failing to disclose that the

victim attempted to recant her allegations; and (3) his trial counsel was ineffective.

Attached to his petition, filed under seal, were (1) a transcript of the October 1, 2018

ex parte civil stalking protection order hearing conducted in Portage County, Ohio

(Exhibit A) and (2) records from Cuyahoga County Division of Children and Family

Services (Exhibit B).3 Murphy requested that the trial court allow him to conduct

3 The state contends in its appellate brief that the transcript was not attached to the petition as Exhibit A but rather, Exhibit A is a sworn statement by the victim’s mother dated November 25, 2019. A review of the record demonstrates that in the state’s brief in opposition to Murphy’s petition, it relied on this November 25, 2019 statement as well. We also note that Murphy’s motion to file his petition exhibits under seal indicated that Exhibit A was the victim’s mother’s sworn statement. However, as the trial court noted in its written opinion denying Murphy’s petition, Exhibit A to the petition was the Portage County transcript. No party filed any motion or request with the trial court that the wrong information was considered, and no party has suggested to this court that the record should be corrected. Accordingly, this court will consider the same information that the trial court relied on in denying Murphy’s 2019 petition. discovery on his claims, afford him an evidentiary hearing, and grant him a new trial.

The state opposed the petition.

In December 2020, the trial court denied Murphy’s petition without

conducting an evidentiary hearing, but issued findings of fact and conclusions of

law. The trial court concluded that the evidence submitted did not support his

grounds for relief and did not demonstrate that any constitutional violation occurred

that would afford him relief or an evidentiary hearing. Additionally, the trial court

concluded that Murphy’s claim of ineffective assistance of trial counsel was barred

by res judicata because he raised or could have raised those arguments on direct

appeal. Murphy timely appealed the trial court’s decision.

While the appeal was pending, Murphy filed a successive petition for

postconviction relief and requested leave to file a motion for new trial. Both filings

asserted the same arguments raised in his 2019 petition — that a Brady violation

occurred when prosecutors failed to disclose that the victim attempted to recant her

allegations prior to trial. Murphy supported these motions with (1) a transcript of

the victim’s sworn statements given during a Zoom interview conducted by

Murphy’s appellate counsel on September 3, 2020; (2) an affidavit from Murphy’s

trial counsel; and (3) an affidavit from Murphy’s appellate counsel. This court

issued a limited remand for the trial court to rule on Murphy’s filings. On May 3,

2021, the trial court denied the request for leave to file a motion for a new trial and

successive petition for postconviction relief. Murphy timely appealed the trial

court’s decisions. This court consolidated Murphy’s two appeals for briefing and

disposition. In his sole assignment of error, Murphy contends that the trial court

violated his state and federal constitutional rights when it summarily denied his

petition, successive petition for postconviction relief, and delayed motion for a new

trial.

II. 2019 Petition for Postconviction Relief

A petition for postconviction relief is a collateral civil attack on a

criminal judgment, not an appeal of the judgment. State v. Lenard, 8th Dist.

Cuyahoga No. 108646,

, ¶ 8, citing State v. Steffen,

,

(1994). To prevail on a petition for postconviction relief, a

defendant must establish a violation of his constitutional rights that renders the

judgment of conviction void or voidable. R.C. 2953.21. A petition for post-

conviction relief is a means to reach constitutional issues that would otherwise be

impossible to reach because the evidence supporting those issues is outside the

record of the petitioner’s criminal conviction.

It is well settled that a hearing is not automatically required whenever

a petition for postconviction relief is filed. State v. Jackson,

,

(1980). Rather, in considering a petition for postconviction relief, a

trial court acts as a gatekeeper in determining whether a defendant will receive a

hearing. State v. Gondor,

,

,

.

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.” State v. Calhoun,

,

(1999), paragraph two of the syllabus.

“‘The most significant restriction on Ohio’s statutory procedure for

postconviction relief is that the doctrine of res judicata requires that the claim

presented in support of the petition represent error supported by evidence outside

the record generated by the direct criminal proceedings.’” Lenard at ¶ 10, quoting

State v. Monroe, 10th Dist. Franklin No. 04AP-658,

.

Under the doctrine of res judicata, constitutional issues cannot be

considered in postconviction proceedings brought pursuant to R.C. 2953.21 where

they have already or could have been fully litigated by the defendant, either before

the judgment of conviction or on direct appeal from that judgment. State v.

Stedman, 8th Dist. Cuyahoga No. 83531,

, citing State v.

Perry,

,

(1967), paragraph seven of the syllabus.

Issues properly raised in a petition for postconviction relief are those that could not

have been raised on direct appeal because the evidence supporting such issues is

outside the record. Stedman at

citing State v. Milanovich,

,

(1975). If an issue has, or should have been raised on direct appeal,

the trial court may dismiss the petition on the basis of res judicata. Stedman at

citing State v. Spisak, 8th Dist. Cuyahoga No. 67229,

(Apr. 13, 1995). We review the trial court’s denial of Murphy’s petition for an abuse of

discretion. Gondor,

,

,

.

The term “abuse of discretion” connotes more than an error of law or judgment; it

implies that the court’s attitude was unreasonable, arbitrary, or unconscionable. Id.

at ¶ 16, citing State v. Adams,

,

(1980).

In his 2019 petition, Murphy raised three grounds for relief: (1) actual

innocence; (2) the state committed a Brady violation; and (3) ineffective assistance

of trial counsel.

A. Actual Innocence

In his first claim for relief, Murphy contended that he is actually

innocent of the charged offenses because the allegations were uncorroborated and

the victim recanted her allegations. He supported this claim with Exhibit A, a

transcript of an ex parte civil stalking protection order hearing conducted in Portage

County, Ohio. Although this evidence is outside the record, the trial court

determined that this transcript did not demonstrate any recantation of the victim’s

testimony. We agree. Our review of the supporting transcript reveals that the

testimony presented at the hearing was given solely by the victim’s mother.

Accordingly, the testimony given regarding alleged statements, if any, made by the

victim were merely hearsay.

Additionally, there is no freestanding constitutional right to

postconviction relief based on actual innocence. A claim of actual innocence is not

itself a constitutional claim, nor does it constitute a substantive ground for postconviction relief. State v. Apanovitch,

,

,

, citing Herrera v. Collins,

,

,

(1993); see also State v. Williams, 8th Dist. Cuyahoga No. 85180, 2005-

Ohio-3023, ¶ 31. Accordingly, the trial court did not abuse its discretion in

summarily denying his petition on the basis of actual innocence.

B. Brady Violation

Murphy contends in his second ground for relief that the state violated

Brady v. Maryland,

,

,

(1963), by

withholding exculpatory evidence from his trial counsel. The exculpatory evidence

that Murphy claims the state withheld are statements made by the victim prior to

trial during meetings with the prosecutors. He contends that the victim attempted

to recant the allegations but was told that she was unable to recant. Additionally,

Murphy contends that the victim provided varying accounts of the allegations

during those conversations. Finally, he maintains that the victim told the

prosecuting attorney that she was uncertain whether the allegations were true

because she had false, but vivid, memories of attending a boot camp for children

who misbehaved. According to Murphy, those statements from the victim were

recorded or memorialized but never provided to trial counsel.

Our review of Murphy’s petition and exhibits reveal that these

allegations are unsupported by any evidence. First, the arguments raised in the

petition do not cite to any evidence outside the record. And the exhibits filed under

seal do not contain any information supporting Murphy’s arguments. We note that the state opposed Murphy’s petition by discrediting the victim’s mother’s sworn

statement, but as the trial court correctly noted, “the record being reviewed by this

court does not contain such a statement.” Accordingly, we find that the trial court

did not abuse its discretion in concluding that Murphy failed to establish any Brady

violation.

C. Ineffective Assistance of Counsel

In his third ground for relief, Murphy contends that his trial counsel

was ineffective because he only met briefly with counsel before trial, and that

counsel failed to (1) call any witnesses to provide an alibi; (2) subpoena or speak

with doctors and counselors who treated the victim; (3) retain a medical expert to

rebut the state’s expert regarding the correlation between sexual abuse and a

physical examination; (4) call the victim’s mother as a witness; (5) cross-examine

the victim on a prior false allegation of assault; (6) object to the state’s use of

Murphy’s internet searches and willingness to take a polygraph; (7) object to the

testimony of Detective Adkins; and (8) fully develop and proffer the facts and

circumstances surrounding an alleged incident of abuse in 2013 and the

involvement of the victim’s “stepmother.” He further contends that counsel opened

the door to damaging testimony from Dr. McPherson. According to Murphy, had

counsel investigated and developed this new information and the information

readily available to him, the state’s case against him would have been undermined.

In support of these allegations, Murphy relies on confidential records

from the Cuyahoga County Division of Children and Family Services related to a prior allegation and investigation in 2015 involving the victim. A review of the

record reveals that these records were provided or made available to trial counsel

prior to trial; thus, the records are not evidence outside the record. See Docket No.

13, Submission of CCDCFS Records; and Docket No. 17, Supplemental Response to

Request for Discovery.

Additionally, Murphy challenged on direct appeal (1) Dr. McPherson’s

testimony; (2) the discussions and interactions between the victim and her father’s

girlfriend; (3) testimony regarding Murphy’s willingness to take a polygraph test;

(4) the use of his internet searches; and (5) that he was denied effective assistance

of counsel. See

.

Accordingly, because the evidence relied upon by Murphy in support

of this ground for relief was available to him during trial, and the arguments made

in his petition were or could have been addressed on direct appeal, we agree with

the trial court that res judicata bars his postconviction ground for relief regarding

his ineffective assistance of counsel claim.

Based on the foregoing, we find that the trial court did not abuse its

discretion in dismissing Murphy’s 2019 petition for postconviction relief without a

hearing because the petition, the supporting evidence, and the record do not

demonstrate sufficient operative facts to establish substantive grounds for relief, or

in the alternative, res judicata bars his requested grounds for relief. III. 2021 Leave to File Motion for New Trial

This court reviews the denial of a motion for leave to file a delayed

motion for new trial for an abuse of discretion, which is not simply an error of law

or judgment, but implies the court’s attitude is unreasonable, arbitrary, or

unconscionable. State v. Dues, 8th Dist. Cuyahoga No. 105388,

; Adams,

,

.

According to Crim.R. 33(A)(6), a new trial may be granted on a

defendant’s motion for new trial where new evidence materially affects the

defendant’s substantial rights and meets the following:

When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.

Under Crim.R. 33(B), 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,

. 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 was unavoidably prevented from filing the motion for new trial and he sought leave

within a reasonable time after discovering the evidence. Id. at ¶ 9-10.

“Unavoidably prevented” from filing a timely motion for new trial

occurs when the defendant (1) had no knowledge of the existence of the grounds

supporting the motion for new trial, and (2) could not have learned, in the exercise

of reasonable diligence, of the existence of those grounds within the prescribed time.

State v. Gray, 8th Dist. Cuyahoga No. 107394,

. Additionally,

he must show that the motion for leave was filed within a reasonable time after the

new evidence was discovered. Id. at ¶ 18. 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. Id.

It is undisputed that Murphy’s motion for a new trial was filed well

beyond Crim.R. 33(B)’s 120-day time limit. Accordingly, Murphy must establish by

clear and convincing evidence that he was unavoidably prevented from discovering

the grounds or new evidence and his motion was filed within a reasonable time.

We find that Murphy has failed to demonstrate that he was

unavoidably prevented from discovering any pretrial conversations between the

victim and the prosecutors prior to the expiration of the time constraints of Crim.R.

33. In fact, the victim testified at trial that she was uncertain whether the allegations

were true because “like it could have been a dream,” and testified regarding false-

memory events, including the “boot camp story.” (Tr. 418.) Accordingly, Murphy was on notice that the victim’s allegations may have been based on a faulty

recollection.4

Additionally, Murphy has not demonstrated that he, or through

counsel, was unavoidably prevented from speaking with the victim before or after

trial regarding her testimony. It is the duty of the defendant and his counsel to make

a serious effort, on their own, to discover favorable evidence. State v. Williams, 8th

Dist. Cuyahoga No. 99136,

. Claims that evidence was

undiscoverable simply because the defense did not take the necessary steps earlier

to obtain the evidence do not satisfy the requisite standard. State v. Hill, 8th Dist.

Cuyahoga No. 108250,

. In this case, trial counsel stated in his

affidavit that he relied on the state producing any and all statements made by the

victim, and although he spoke with the victim’s mother, he did not interview the

victim himself prior to trial. To the extent that trial counsel was ineffective because

he failed to conduct a pretrial interview with the victim, this issue could have been

raised on direct appeal.

Additionally, the victim’s sworn statement from the September 3,

2020 interview with appellate counsel revealed that once allowed, she re-established

4 Murphy raised on direct appeal that his convictions were not supported by sufficient evidence “because [the victim] does not really know whether the incident really occurred and there is little to no evidence that corroborates [the victim’s] memory.”

. This court disagreed and cited to pages of transcript where the victim was extensively questioned about her August 2017 statement to her mother that the “incident seemed like a dream,” and about a prior false memory of attending a boot camp. Id. at ¶ 14-16. communication with Murphy. He has failed to demonstrate that he or appellate

counsel was unavoidably prevented from interviewing the victim after such time to

ascertain what conversations she had with the state prior to trial — conversations

that Murphy already knew occurred.

The victim’s alleged recantation of her trial testimony was known to

Murphy and counsel as early as December 2019 when his petition for postconviction

relief was filed. Murphy specifically raised a Brady violation as a ground for relief,

contending that the prosecutor withheld evidence that the victim attempted to

recant her trial testimony during a pretrial interview. See Docket No. 73, Petition to

Vacate or Set Aside Judgment and/or Sentence Pursuant to R.C. 2953.21.

Accordingly, Murphy has failed to show by clear and convincing

evidence that he was unavoidably prevented from discovering this purported new

evidence prior to the prescribed time in Crim.R. 33.

Murphy has also failed to show that he requested leave to file a motion

for new trial within a reasonable period of time. We note that the new evidence was

purportedly discovered as soon as June 2020 — when appellate counsel first

interviewed the victim — yet his motion was not filed until April 2021. Granted, the

COVID-19 pandemic may have caused some delay, but in the world of technology

and e-filing, the delay of ten months, under the timing and circumstances previously

discussed, is unreasonable. Moreover, when Murphy obtained the victim’s sworn

statement, his 2019 petition for postconviction relief — which raised the issue that

the victim recanted her trial testimony — was still pending and could have been supplemented with the victim’s sworn statement; the trial court did not deny the

petition until December 2020.

Accordingly, we find that the trial court did not abuse its discretion in

denying Murphy’s motion for leave to file a motion for new trial

IV. Successive Petition for Postconviction Relief

R.C. 2953.23 governs untimely and successive petitions for

postconviction relief. R.C. 2953.23(A) prohibits a trial court from entertaining a

second or successive petition for postconviction relief unless the petition meets two

conditions. First, the petitioner must show either that he was unavoidably

prevented from discovering the facts upon which he relies in the petition, or that the

United States Supreme Court has, since his last petition, recognized a new federal

or state right that applies retroactively to the petitioner. Second, the petitioner must

show by clear and convincing evidence that a reasonable factfinder would not have

found him guilty but for constitutional error at trial. See R.C. 2953.23(A)(1).

Murphy raised two grounds for relief in his successive petition: (1) the

state committed a Brady violation for failing to disclose the victim’s alleged

recantation during pretrial interviews; and (2) actual innocence based on the alleged

recantation. These two grounds were also the basis of his 2019 petition and

subsequent motion for new trial. Notwithstanding the effects of res judicata, we find

no abuse of discretion by the trial court in summarily denying his successive

petition. Murphy does not contend that a new right has been recognized and

retroactively applies to him; he contends that he was unavoidably prevented from

discovering new evidence. However, the “unavoidably prevented” requirement in

R.C. 2953.23(A)(1) mirrors the “unavoidably prevented” requirement in Crim.R.

33(B). State v. Waddy,

,

, ¶ 27 (10th Dist.).

Accordingly, for the same reasons stated in finding no abuse of discretion by the trial

court in denying Murphy’s motion for leave, we also find no abuse of discretion in

denying his successive petition for postconviction relief without conducting a

hearing. Murphy has failed to demonstrate that he was unavoidably prevented from

discovering the victim’s alleged recantation to permit a trial court to consider a

successive postconviction relief. The 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.

KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, A.J., and EILEEN T. GALLAGHER, J., CONCUR