[Cite as State v. McFarland,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111390 v. :

SHELIA A. MCFARLAND, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 22, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-604052-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.

Valore & Gordillo LLP and Dean M. Valore, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Sheila McFarland (“McFarland”), appeals the

denial of her motion for leave to file a motion for new trial and claims the following

error: The trial court committed reversible error and prejudiced appellant when it denied appellant’s motion for leave to file motion for new trial.

We affirm the trial court’s judgment.

I. Facts and Procedural History

In March 2016, McFarland was charged with multiple offenses,

including two counts of aggravated murder in connection with the shooting death of

Robert Williams (“Williams”) in November 2015. A jury found McFarland guilty of

all ten counts in the indictment, and the court sentenced her to an aggregate prison

term of life without the possibility of parole. The court also imposed a fine of

$20,000. See State v. McFarland, 8th Dist. Cuyahoga No. 105570, 2018-Ohio-

2067.

At trial, the prosecution presented testimony indicating that Williams

was living in the Indian Hills Apartments in Euclid, Ohio with his girlfriend, Korri

Henderson (“Henderson”) at the time of his death. Two months earlier, in

September 2015, Euclid narcotics detectives conducted a series of controlled drug

buys from Williams in the parking lots surrounding the Indian Hills Apartments. As

a result of the buys, the narcotics detectives obtained and executed a search warrant

for Williams’s apartment where they discovered crack cocaine. Both Williams and

Henderson were arrested and subsequently agreed to become confidential

informants to assist Euclid detectives in apprehending their supplier, Eddie

Brownlee (“Brownlee”), and his girlfriend, McFarland. Williams conducted three controlled drug buys from Brownlee and

McFarland. Brownlee and McFarland were arrested during the third buy on

October 22, 2015, and they were both charged with drug offenses. McFarland was

released from jail on October 23, 2015, but Brownlee remained in jail.

While incarcerated on the pending drug charges, Brownlee made

several recorded phone calls to McFarland, who was using Brownlee’s cell phone.

During one of the calls, Brownlee told McFarland, who was then in the presence of

a mutual friend, codefendant Ryan Motley (“Motley”), that he suspected Williams

was an informant, who had “snitched” on him and set up the controlled buys.

Following the call, McFarland and Motley went to a hotel room, where Brownlee

and McFarland had been staying, and removed drugs to avoid further charges.

Motley also recovered a firearm from under a mattress and removed it from the

room. When Motley informed Brownlee that he had retrieved the gun, Brownlee

told Motley to “Get Rob. Get those mother***ckers.” McFarland, 8th Dist.

Cuyahoga No. 105570,

, ¶ 6. Brownlee also told Motley, “I need you

to handle this.”

McFarland replied that she and Motley were “about to do that

one thing now.”

Motley later claimed at trial that “what they were about to do”

referred to retaining a lawyer for Brownlee.

Meanwhile, McFarland and Motley sold drugs to raise money to post

Brownlee’s bond. McFarland posted Brownlee’s bond on November 10, 2015, and

he was released from the county jail. Thereafter, Brownlee again told Motley he

believed Williams was a snitch and instructed Motley to physically harm Williams. Brownlee also called Williams and threatened that he (Williams) and Henderson

were going to “see their graves.” Id. at ¶ 8.

The trial testimony showed that on November 14, 2015, Motley, his

brother, and a friend, not McFarland, drove to the Indian Hills Apartments and

waited in the second-floor stairwell. When they heard Williams leave his apartment,

Motley ran toward Williams and shot him the chest. Motley and the others

immediately fled the scene, and Motley disposed of the gun. Henderson heard the

gunshot and called the police. Henderson told police that she and Williams had

been receiving threats from Brownlee and McFarland. Henderson knew McFarland

because Williams bought cocaine from Brownlee.

Motley testified against McFarland at trial. He stated that he was a drug

dealer in the Indian Hills Apartments area and that Brownlee was one of his

suppliers. He admitted that he went to Brownlee and McFarland’s hotel room,

where he retrieved the gun that he later used to shoot Williams. McFarland argued

in defense at trial that she was not present during the murder and that there was no

evidence that she participated in a conspiracy to murder Williams. (Trial tr. 730-

738.) The jury nevertheless found her guilty.

McFarland appealed her convictions, arguing, among other things,

that there was insufficient evidence to sustain her convictions because she was not

present during the murder and there was no evidence of any overt acts required to

support a conspiracy charge. See McFarland, 8th Dist. Cuyahoga No. 105570, 2018-

Ohio-2067. This court affirmed McFarland’s convictions but remanded the case to the trial court to merge allied offenses of similar import. Id. McFarland appealed

this court’s decision to the Ohio Supreme Court, which affirmed this court’s decision

and found sufficient evidence to sustain her convictions. See State v. McFarland,

,

,

.

On remand but before resentencing, McFarland filed, under seal,1 a

motion for leave to file a motion for a new trial pursuant to Crim.R. 33(A)(6). She

argued that after receiving psychiatric treatment in prison, she discovered that she

had been misdiagnosed while in the county jail, had not been given the appropriate

medication for her mental illness, and that, as a result, she was not competent to

stand trial at the time of trial. She also argued that she had a low IQ and a history of

childhood abuse that prevented her from being able to assist in her own defense.

The trial court resentenced McFarland in accordance with this court’s

mandate and sentenced her to 20 years to life in prison plus three years on an

attendant firearm specification for an aggregate 23 years to life in prison. This time,

the court did not impose any fines. In the court’s sentencing entry, the court denied

McFarland’s motion for leave to file a motion for new trial “as moot.” McFarland

now appeals the denial of her motion for leave to file a motion for new trial.

1 McFarland’s motion for leave to file a motion for new trial was filed under seal because it contained confidential medical records, school records, and a presentence- investigation report from a prior case. However, the parties have not filed their appellate briefs under seal and they reference items submitted as exhibits to the motion for leave. Under these circumstances, we find it appropriate to reference portions of the record cited in the parties’ briefs to the extent it is necessary to resolve the arguments presented in this appeal. II. Law and Analysis

A. Standard of Review

McFarland filed her motion for leave to file a motion for new trial

pursuant to Crim.R. 33(A)(6). Crim.R. 33(A)(6) provides that a new trial may be

granted “when new evidence material to the defense is discovered, which the

defendant could not with reasonable diligence have discovered and produced at the

trial.” Crim.R. 33(A)(6); State v. Apanovitch, 8th Dist. Cuyahoga No. 108924,

.

Crim.R. 33(B) provides that a motion for new trial based on newly

discovered evidence must be filed within 120 days after a verdict is rendered. A party

who fails to file a motion for new trial within that time must seek leave from the trial

court to file a delayed motion for new trial. State v. Hale, 8th Dist. Cuyahoga No.

107782,

. The trial court may grant leave to file a delayed

motion for new trial if the movant shows, by clear and convincing evidence, that he

or she was unavoidably prevented from filing the motion for a new trial within the

120 days of the trial verdict, and he or she sought leave to file the motion for new

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

“Clear and convincing evidence is that measure or degree of proof * * *

which will produce in the mind of the trier of facts a firm belief or conviction as to

the facts sought to be established.” Cross v. Ledford,

,

(1954), paragraph three of the syllabus. “‘[A] party is unavoidably prevented from filing a motion for new trial

if the party had no knowledge of the existence of the ground supporting the motion

for new trial and could not have learned of the existence of that ground within the

time prescribed for filing the motion for new trial in the exercise of reasonable

diligence.’” Apanovitch at ¶ 15, quoting State v. Walden,

,

(10th Dist. 1984).

The defendant bears the burden of demonstrating, by clear and

convincing evidence, that he or she was unavoidably prevented from filing his or her

motion within the time prescribed. State v. Hubbard, 8th Dist. Cuyahoga No.

108853,

, ¶ 29. To meet this burden, the defendant must present

“‘more than a mere allegation that he [or she] was unavoidably prevented from

discovering the evidence he [or she] seeks to introduce to support a new trial.’”

quoting State v. Cowan, 8th Dist. Cuyahoga No. 108394,

.

Crim.R. 33 does not provide a specific time limit in which defendants

must file a motion for leave to file a delayed motion for new trial, but Ohio courts

have held that a defendant must file his or her motion for leave within a reasonable

time after he or she discovers the evidence. Apanovitch at ¶ 16. “The determination

of whether a delay is reasonable is based on the facts and circumstances of the case

and whether the defendant presents an adequate explanation for the delay in filing

his or her motion for leave.” Hubbard at ¶ 30.

“When a defendant seeks leave to file a motion for a new trial under

Crim.R. 33(B), the trial court may not consider the merits of the proposed motion for a new trial until after it grants the motion for leave.” State v. Hatton, Slip

Opinion No.

, citing State v. Bethel,

, 2022-

Ohio-783,

. “The sole question before the trial court when

considering whether to grant leave is whether the defendant has established by clear

and convincing proof that he was unavoidably prevented from discovering the

evidence on which he seeks to base the motion for a new trial.”

A trial court’s decision on a Crim.R. 33 motion for a new trial will not

be reversed absent an abuse of discretion. State v. Sutton,

,

, ¶ 13 (8th Dist.). We also review the decision on whether to hold a

hearing on the motion for new trial for an abuse of discretion. Id. at ¶ 24. An abuse

of discretion occurs when a court exercises its judgment in an unwarranted way

regarding a matter over which it has discretionary authority. Johnson v. Abdullah,

,

,

. In other words, “[a]

court abuses its discretion when a legal rule entrusts a decision to a judge’s

discretion and the judge’s exercise of that discretion is outside of the legally

permissible range of choices.” State v. Hackett,

, 2020-Ohio-

6699,

.

This court has held that an abuse of discretion may be found where a

trial court “applies the wrong legal standard, misapplies the correct legal standard,

or relies on clearly erroneous findings of fact.” Thomas v. Cleveland,

,

,

(8th Dist.). When applying the

abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Vannucci v. Schneider,

,

(8th Dist.).

B. Unavoidably Prevented

McFarland was required to seek leave of the trial court to file a motion

for new trial because she filed the motion more than 120 days after the jury rendered

its verdict. In order to obtain leave, McFarland had to demonstrate, by clear and

convincing evidence, that she was unavoidably prevented from discovering

information material to her defense that she could not, with reasonable diligence,

have discovered and produced at the time of trial. Crim.R. 33(A)(6).

In her motion for leave, McFarland argued that she was unavoidably

prevented from discovering how her mental illness impaired her ability to assist in

her defense due to a misdiagnosed mental illness. In support of this claim,

McFarland submitted (1) copies of her medical records from the county jail from the

time of her arrest to the time of trial; (2) copies of her school records from the

Cleveland Metropolitan School District from 1972 to 1978; (3) copies of her medical

records from the Ohio Department of Rehabilitation and Correction, Dayton

Correctional Institution, from 2017 to 2018; (4) a journal article regarding the

impact of childhood trauma on the cognitive function of individuals with bipolar

disorder; (5) a presentence-investigation report from a 2002 Cuyahoga County case;

(6) records from the Mississippi Department of Child Protective Services pertaining

to McFarland when she was a child; (7) records from the Center for Families and

Children and Circle Health Services Medical Records from 2012 to 2014; and (8) a journal article regarding the use of antidepressants in the treatment of adults with

bipolar major depression.

There is no evidence in the record demonstrating that McFarland was

unavoidably prevented from obtaining her own medical records, presentence-

investigation report from her own prior case, or her own school records. And,

although the medical records from 2017 to 2018 indicate that McFarland was

prescribed different medications in the Dayton Correctional Institution from those

prescribed to her while she was in the county jail awaiting trial, there is no evidence

in the records, expert or otherwise, demonstrating that she was misdiagnosed prior

to trial or that she was not competent to stand trial. Indeed, the journal article

regarding the use of antidepressants in the treatment of bipolar major depression

states that “antidepressants * * * are the most commonly prescribed drugs for

bipolar depression.” (Motion for leave to file motion for new trial, exhibit B., p.1.)

McFarland was given an antidepressant to treat her illness while she was in the

county jail.

The evidence submitted in support of the motion for leave

demonstrates that McFarland had a history of mental-health issues and treatment,

long before trial. The 2002 presentence-investigation report states, in relevant part:

According to the offender[,] she is in good health at the present time [and] does not take prescription medications. She is not currently under a doctor’s care, but has received mental health treatment. The offender indicates that she received an evaluation for depression on 4- 19-02 by Dr. P. White of University Hospitals located at E. 185th and Lakeshore Avenue. Additionally, in 1985 she spent three days at the Cleveland Psychiatric Institute, has been hospitalized at Meridia Hospital in Warrensville Hts. for one day, as well as Charity Hospital during an unknown year. * * * According to institutional records, on 6-5-85 during an intake screening evaluation at the Ohio State Reformatory for Women by S. Bin Yun, M.D., Department of Psychological Services, the offender was administered the MMPI, as well as the revised Beta II tests, indicating that she was functioning at the lower limits of below average level of non-verbal intelligence. Further, these test results indicate that her “defense system is rather weak yielding considerable emotional vulnerability and subsequent feelings of anxiety and depression under pressure.” On 6-14-88, a second intake screening evaluation was completed and it was stated that “she could best be described as a psychopathic personality at this time.” Test results “suggest that she is non-conforming and resentful of authority figures. Her behaviors tend to be erratic and unpredictable, while having marked problems with impulse control. She also tends to be angry, irritable, and resentful, and tends to act out in anti-social ways.”

(Motion for leave to file motion for new trial, exhibit D, p. 9.) Clearly, McFarland’s

mental illness and cognitive deficits are not new, and her records could have easily

been obtained by trial counsel prior to trial. “A defendant cannot claim that evidence

was undiscoverable merely because the defendant or his defense counsel made no

effort to obtain the evidence sooner.” Hubbard, 8th Dist. Cuyahoga No. 108853,

, at ¶ 56, citing State v. Jackson, 8th Dist. Cuyahoga No. 108241,

.

The records from the Dayton Correctional Institution indicate that she

was diagnosed with schizoaffective disorder, bipolar type, while she was in the

institution after trial. This new diagnosis does not necessarily mean she was

previously misdiagnosed. And McFarland did not submit any affidavits, expert or

otherwise, to substantiate such a claim. Moreover, there is also no evidence whatsoever that McFarland was not competent to stand trial even if she had

previously been misdiagnosed.

McFarland was offered a plea prior to trial that would have subjected

her to a five-year sentence. She rejected that offer, proceeded to trial, and was

convicted of aggravated murder, which now subjects her to a 20 year-to-life prison

sentence. The purpose of her motion for new trial is to ascertain why she rejected

the plea offer. She asserts that she must have been incompetent to reject such a plea

and risk a life sentence. However, McFarland maintained her innocence at trial and

presented the defense that there was no evidence that she participated in the

conspiracy to murder Williams. Such a defense was not unreasonable since she was

not present at the scene of the murder, and Motley admitted that he murdered

Williams at Brownlee’s direction. The fact that McFarland rejected the plea does

not, by itself, establish that McFarland was not competent to stand trial under these

circumstances.

A criminal defendant is only entitled to a hearing on a motion for leave

to file a motion for a new trial if he or she submits documents which, on their face,

support his or her claim that he or she was unavoidably prevented from timely

discovering the evidence at issue. State v. Dues, 8th Dist. Cuyahoga No. 105388,

, citing State v. McConnell,

, 2007-Ohio-

1181, ¶ 7,

(2d Dist.). “Mere conclusory allegations do not prove that

the defendant was unavoidably prevented from discovering the evidence he seeks to

introduce as support for a new trial.” State v. Cashin, 10th Dist. Franklin No. 17AP- 338,

; see also State v. Miller, 8th Dist. Cuyahoga No. 110571,

(same.).

McFarland failed to present evidence that, on its face, would support

her claim that she was unavoidably prevented from discovering that she was

misdiagnosed prior to trial and that improper treatment based on the misdiagnosis

impaired her ability to engage in her own defense. The fact that she had a mental

illness and cognitive deficits was known prior to trial. She, therefore, cannot meet

her burden of establishing, by clear and convincing evidence, that she was

unavoidably prevented from obtaining information regarding her mental-health

condition prior trial had she and her trial counsel exercised reasonable diligence.

The sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, A.J., and MARY EILEEN KILBANE, J., CONCUR