State v. Murphy , 2021 Ohio 3925 ( 2021 )

[Cite as State v. Murphy, 2021-Ohio-3925.]
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, 2019-Ohio-4347 (“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, 2020-Ohio-1502, ¶ 8, citing State v. Steffen, 70 Ohio St.3d
399, 410, 639 N.E.2d 67 (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, 64 Ohio St.2d 107, 110,
413 N.E.2d 819 (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, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51.
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, 86 Ohio St.3d 279, 714
N.E.2d 905 (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, 2005-Ohio-5242, ¶ 9.
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, 2004-Ohio-3298, ¶ 17, citing State v.
Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (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 id., citing State v. Milanovich, 42 Ohio St.2d 46, 50,
325 N.E.2d 540 (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 id.,citing State v. Spisak, 8th Dist. Cuyahoga No. 67229, 1995 Ohio App. LEXIS 1567(Apr. 13, 1995).
We review the trial court’s denial of Murphy’s petition for an abuse of
discretion. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶ 52.
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, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (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, 155 Ohio St.3d 358, 2018-Ohio-4744, 121
N.E.3d 351, at ¶ 26, citing Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122
L.Ed.2d 203 (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, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 Murphy at ¶ 4, 82.
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, 2017-Ohio-6983,
¶ 11; Adams, 62 Ohio St.2d at 157, 404 N.E.2d 144.
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, 2019-Ohio-1890, ¶ 9. 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, 2019-Ohio-1638, ¶ 11. 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, 2013-Ohio-1905, ¶ 8. 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, 2020-Ohio-102, ¶ 31. 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.”
Murphy at ¶ 11. 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, 2016-Ohio-4911, 68 N.E.3d 381, ¶ 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