[Cite as State v. Mock, 2020-Ohio-3667.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108837 v. :
TYRONE MOCK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 9, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597566-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione, Assistant Prosecuting Attorney, for appellee.
Susan J. Moran, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant Tyrone Mock (“appellant”) brings the instant
appeal challenging the trial court’s denial of his motion for leave to file a delayed
motion for new trial. Appellant argues that the trial court erred by finding that he
was not unavoidably delayed in discovering previously undisclosed jury questions and answers and evidence of Brady violations.1 After a thorough review of the
record and law, this court affirms the decision of the trial court.
I. Factual and Procedural History
Appellant was convicted on a number of counts relating to a check fraud
ring he had cultivated and was sentenced to a prison term totaling 13 years.2
Appellant appealed his conviction and sentence, which were affirmed by this court.
Appellant then appealed this court’s decision to the Supreme Court of Ohio,
which declined to accept jurisdiction. See State v. Mock, 06/06/2018 Case
Announcements #2, 2018-Ohio-2155, 99 N.E.3d 426.
In pursuing postconviction remedies, appellant’s prior appellate
counsel, David N. Patterson (“Attorney Patterson”), conducted an investigation of
the facts surrounding appellant’s criminal case. As part of his investigation,
Attorney Patterson reviewed the detective’s affidavit that was submitted to the
common pleas court in support of a search warrant to install and monitor a GPS
tracking device on appellant’s vehicle. From this review, Attorney Patterson
determined that the statements of a confidential informant were the sole material
factors in establishing probable cause to support the issuance of the search warrant.
The detective’s affidavit for the GPS tracking warrant noted that the confidential
1See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 2 For a thorough recitation of the underlying facts and prior procedural history of this matter, see this court’s opinion in appellant’s direct appeal, State v. Mock, 2018- Ohio-268, 106 N.E.3d 154 (8th Dist.). informant signed a proffer letter and positively identified appellant from a photo
lineup.
Attorney Patterson then contacted the confidential informant’s
attorney, Mitchell J. Yelsky (“Attorney Yelsky”). From this conversation, Attorney
Patterson determined that the confidential informant had not signed a proffer letter
nor had she identified appellant from a photo lineup. Attorney Patterson surmised
that the detectives and the state intentionally withheld relevant and material
evidence from appellant and falsified facts and events in the affidavits for the search
warrant in order to mislead the court.
Attorney Patterson also conducted phone interviews with two women
associated with appellant, Tammy Jordan and Brandon Fambro, in March and July
2018, respectively. Ms. Jordan provided an affidavit to Attorney Patterson, and Ms.
Fambro made statements to Attorney Patterson that appellant claims constitute
evidence that the phone records used in his criminal case could not have had a
relationship to appellant’s address.
In addition, in 2018, Attorney Patterson’s legal assistant, Linda Head
(“Ms. Head”), reviewed the entire physical record of appellant’s case on file with the
clerk of courts. During this review, Ms. Head located four notes containing jury
questions to the trial court and the corresponding answers. After this discovery, Ms.
Head was taken ill and hospitalized with copies of the notes still in her possession.
She was unable to advise appellant’s counsel of her discovery until she returned to
work in August 2018. In reviewing the transcript of the proceedings in appellant’s criminal case, she noted that it did not contain any memorialization of the jury
questions and the court’s answers.
As a result of the discovery of the notes containing the jury questions
and the court’s answers and the possible evidence relating to the phone records and
the probable cause for the search warrant, appellant sought to file a motion for new
trial. On December 14, 2018, appellant filed (1) delayed motion for a new trial
pursuant to Crim.R. 33(A)(1), (2), and (6) based on newly discovered evidence; and
(2) motion for order finding he was unavoidably prevented from filing a motion for
a new trial within the fourteen days after the verdict was rendered or within the 120
days after the verdict was rendered and motion for leave to file a delayed motion
for new trial pursuant to Crim.R. 33(A)(1), (2), and (6) based on newly discovered
evidence. In support of his motions, appellant submitted affidavits of Ms. Head,
Attorney Patterson, and Ms. Jordan along with his own affidavit.
The state filed a brief in response to appellant’s motion that included
an affidavit of Attorney Yelsky in which he averred that several paragraphs of
Attorney Patterson’s affidavit were materially false and denied saying “anything
remotely close” to what Attorney Patterson stated.
On May 21, 2019, following a status conference, the trial court
requested supplemental briefing to address the issue of whether there was an
unavoidable delay in obtaining the alleged new evidence to be used in support of
appellant’s motion for new trial. Appellant and the state subsequently submitted
additional briefing on this issue. On June 24, 2019, the trial court denied appellant’s motion for leave
to file a motion for a new trial, finding that appellant did not demonstrate by clear
and convincing evidence that he was unavoidably prevented from discovering the
new evidence and filing his motion within the time provided by Crim.R. 33(B). With
regard to the notes containing the jury questions and the court’s answers, the trial
court specifically found that the record of appellant’s case had been available to the
parties since November 7, 2016, and that, even though appellant himself was
incarcerated, appellant was represented by counsel throughout his appeal, who had
access to the record.
The trial court held that appellant had not shown that he or his counsel
exercised reasonable diligence in investigating the record from the time it was
available until sometime in 2018 when Ms. Head conducted her review. Further,
the trial court noted that appellant was aware of Ms. Jordan and Ms. Fambro’s
relevance to the case as their names had come up during the June 2016 suppression
hearing, and appellant did not identify any impediments that would have prevented
him from obtaining affidavits or statements from either of the women prior to 2018.
The trial court therefore found that appellant failed to demonstrate that he was
unavoidably prevented from discovering evidence challenging the search warrants
or the phone records.
Appellant filed the instant appeal on July 23, 2019, raising the
following assignments of error for our review: I. The trial court erred in denying appellant’s motion for new trial under Crim.R. 33 based on a finding that appellant was not unavoidably delayed in discovering previously undisclosed jury questions and the court’s answers which were the basis for a motion for new trial.
II. The trial court erred in denying appellant’s motion for new trial under Crim.R. 33 based on a finding that appellant was not unavoidably delayed in discovering Brady violations which were the basis for a motion for new trial.
II. Law and Analysis
This court reviews the denial of a motion for leave to file a delayed
motion for new trial for an abuse of discretion. State v. Dues, 8th Dist. Cuyahoga
No. 105388, 2017-Ohio-6983, ¶ 11. An abuse of discretion is not simply an error of
law or judgment, but implies the court’s attitude is unreasonable, arbitrary, or
unconscionable. State v. Yates, 8th Dist. Cuyahoga No. 96664, 2011-Ohio-4962,
¶ 5.
Under Crim.R. 33(A), a new trial may be granted on motion of the
defendant for any of the following causes materially affecting his or her substantial
rights:
(1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
***
(6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial * * *. A motion for new trial based upon grounds other than newly
discovered evidence must be filed within 14 days after the verdict was rendered.
Crim.R. 33(B). A motion for new trial based upon newly discovered evidence must
be filed within 120 days after a verdict is rendered. Id. A party who fails to file a
motion for new trial within the prescribed time frame 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 or discovering the
evidence and he sought leave within a reasonable time. Id. at ¶ 9-10. If a significant
delay occurs, the trial court must ascertain whether the delay was reasonable under
the circumstances or whether the movant provided an adequate explanation as to
why the delay occurred. Id.
The jury rendered its verdict on August 19, 2016, and appellant did not
file his motion for leave to file a delayed motion for new trial until December 14,
2018. As this was well beyond the fourteen or 120-day time limits of Crim.R. 33(B),
appellant’s motion for leave must have established by clear and convincing evidence
that he was unavoidably prevented from filing his motion or discovering the new
evidence and that the motion for leave was filed within a reasonable time.
In appellant’s first assignment of error, he argues that the trial court
erred by finding that he was not unavoidably delayed in discovering previously
undisclosed jury questions and the court’s corresponding answers. A. Discovery of the jury questions and the court’s answers
Appellant asserts that four notes with jury questions and court
answers3 that had not been previously disclosed to him were discovered when
Attorney Patterson’s legal assistant, Ms. Head, conducted a review of the physical
court file. Appellant argues throughout his brief that he could not have known of
the existence of these notes because they were not part of the record. Appellant
contends that expecting his appellate counsel to be aware of the notes was
comparable to requiring him to “find a needle in a haystack” because the notes
accounted for only four pages in a file of over 2,400 pages.
In support of his motion for leave, appellant submitted the affidavit of
Ms. Head, who stated that she reviewed the physical court file of appellant’s case in
2018 and discovered the notes at that time. After her discovery, Ms. Head stated
that she was taken ill and hospitalized with the copies of the notes still in her
possession. She was not able to inform Attorney Patterson of her findings until she
returned to work in August 2018. It was at that time that she reviewed the transcript
from appellant’s case and determined that there was no memorialization of the
notes.
The trial court found that appellant did not present clear and
convincing evidence that appellant was unavoidably prevented from discovering the
notes containing the jury questions and the court’s answers. Clear and convincing
Appellant states in his brief that there were three jury questions and court 3
responses and one response without an accompanying question. evidence is the amount of proof that ‘“will produce in the mind of the trier of fact a
firm belief or conviction as to the facts sought to be established.’” In re K.W., 8th
Dist. Cuyahoga No. 106039, 2018-Ohio-1096, ¶ 14, quoting In re Awkal, 95 Ohio
App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), fn. 2, citing Lansdowne v. Beacon
Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987).
A defendant is “unavoidably prevented” from filing a timely motion for
new trial “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. Hill, 8th Dist. Cuyahoga No. 108250, 2020-Ohio-102, ¶ 16-17, citing
State v. Gray, 8th Dist. Cuyahoga No. 107394, 2019-Ohio-1638, ¶ 11. The trial court
held that appellant had not demonstrated that he or his counsel exercised
reasonable diligence in investigating the record on appeal during the extensive time
that it was available.
As noted by the trial court, Ms. Head stated very generally in her
affidavit that she discovered the notes “in 2018”; the record had been available to
appellant and his counsel since November 7, 2016. Appellant’s motion did not
identify any reason why the record had not been examined between that date and
the time “in 2018” when Ms. Head conducted her review. In Ms. Head’s affidavit,
she does not claim that she was prevented from examining the file any earlier than
she did or cite any other impediments to her review of the file. Appellant stated in his affidavit in support of his motion that Attorney
Patterson “litigated [his] appeal to the Eighth Appellate District of Cuyahoga County
in Case No. CA-16-104997 * * * and litigated [his] Notice of Appeal and
Memorandum in Support of Jurisdiction in a Discretionary Appeal to the Ohio
Supreme Court in Case No. 2018-0363.” Attorney Patterson was therefore involved
in the case prior to Ms. Head’s review of the physical record of the appeal in 2018
and could have reviewed the record long before that time.
R.C. 2945.10(G) requires the “[w]ritten charges and instructions shall
be taken by the jury in their retirement and returned with their verdict into court
and remain on file with the papers of the case.” The statute does not provide any
requirements that a trial court must adhere to when regarding jury questions and
responses. However, appellant acknowledged in his brief that the trial court
“physically placed [the jury questions and answers] in the court’s file which was
subsequently sent over to the Court of Appeals.” Accordingly, the jury questions and
the court’s responses thereto were a part of the file that was available for appellate
counsel to review since November 7, 2016. See, e.g., State v. Blanda, 12th Dist.
Butler No. CA2013-06-109, 2014-Ohio-2234, ¶ 22-25. Simply because Attorney
Patterson and/or his assistant did not examine the court’s file until 2018 does not
mean that the jury questions and court responses were not a part of the record in
existence and readily available to appellant and his counsel.
Based on the record before this court, we find that appellant has not
presented clear and convincing evidence to show that appellant or his counsel, with due diligence, could not have investigated the record on appeal and therefore,
appellant has not established that he was unavoidably prevented from filing his
motion. Accordingly, we cannot say that the trial court abused its discretion when
it denied appellant’s motion for leave to file a delayed motion for new trial.
Appellant’s first assignment of error is without merit and is therefore overruled.
B. Evidence relating to search warrants and phone records
In his second assignment of error, appellant argues that the trial court
erred in denying appellant’s motion for new trial under Crim.R. 33 based on a
finding that appellant was not unavoidably delayed in discovering evidence of Brady
violations that were the basis for appellant’s motion for new trial.
Appellant asserts that he has obtained information relevant to the
procurement of the search warrants utilized in appellant’s case and evidence
challenging the phone records’ link to his street address. Specifically, appellant
contends that, based upon Attorney Patterson’s conversation with Attorney Yelsky,
he has evidence that the confidential informant did not sign a proffer or participate
in a photo lineup and that the detectives falsified facts in order to mislead the court
into issuing the search warrant.4 In addition, appellant asserts that, through
conversations with Ms. Jordan and Ms. Fambro, Attorney Patterson discovered
4 The state disputes Attorney Patterson’s assertions and presented the affidavit of Attorney Yelsky in support of their brief opposing appellant’s motion, who denied the statements in Attorney Patterson’s affidavit. The trial court noted that possible false statements by Attorney Patterson in his affidavit were concerning but did not weigh the credibility of the affidavits because it held that the affidavits on their face did not demonstrate that appellant was unavoidably prevented from filing his motion. evidence that the phone records obtained by the police and used in his criminal case
could not have had a relationship to appellant’s address.
We find that appellant’s motion did not demonstrate clear and
convincing evidence that appellant was unavoidably prevented from discovering the
evidence relating to the search warrant or the phone records. Attorney Patterson
stated in his affidavit that he investigated the circumstances surrounding appellant’s
criminal case “for the purpose of raising the most viable issues on direct appeal,
and/or to advocate and exhaust all probable post-conviction remedies for
[appellant].” (Emphasis added.) Accordingly, Attorney Patterson acknowledged
that he investigated the case during the pendency of appellant’s direct appeal. The
opinion for appellant’s direct appeal was issued on January 25, 2018; however,
Attorney Patterson’s contact with Ms. Jordan did not take place until March 2018,
his conversation with Attorney Yelsky did not occur until May 2018, and he did not
speak with Ms. Fambro until July 2018.
Appellant did not identify any impediments that would have
prevented Attorney Patterson from having these conversations or from obtaining
Ms. Jordan’s affidavit or Ms. Fambro’s statement earlier. Ms. Jordan, Ms. Fambro,
the confidential informant, and the basis for the GPS warrant were all mentioned at
the suppression hearing that was held on June 1, 2016.
“It is the duty of the criminal defendant and his trial counsel to make
a serious effort, on their own, to discover potential, favorable evidence.” Hill, 8th
Dist. Cuyahoga No. 108250, 2020-Ohio-102, at ¶ 31, citing State v. Williams, 8th Dist. Cuyahoga No. 99136, 2013-Ohio-1905, ¶ 9. 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. Anderson, 10th
Dist. Franklin No. 12AP-133, 2012-Ohio-4733, ¶ 14; see also State v. Golden, 10th
Dist. Franklin No. 09AP-1004, 2010-Ohio-4438, ¶ 15. Moreover, “[t]he phrases
‘unavoidably prevented’ and ‘clear and convincing proof’ do not allow one to claim
that evidence was undiscoverable simply because affidavits were not obtained
sooner.” State v. Fortson, 8th Dist. Cuyahoga No. 82545, 2003-Ohio-5387, ¶ 11.
Because appellant has not presented clear and convincing evidence to
show that he or his counsel, with reasonable diligence, could not have learned of the
evidence relating to the search warrant or the phone records earlier, appellant has
not established that he was unavoidably prevented in obtaining this evidence. As
the affidavits submitted by appellant do not satisfy the required clear and convincing
standard, we cannot say that the trial court abused its discretion when it denied
appellant’s motion for leave to file a delayed motion for a new trial. Appellant’s
second assignment of error is overruled.
Finally, we note that appellant appears to raise two other instances in
which the trial court abused its discretion in ruling on his motion. Specifically,
appellant states that the trial court abused its discretion by not holding a hearing on
appellant’s motion and by not recusing itself and reviewing its own allegedly
improper conduct with regard to the jury questions and the court’s answers. Neither
of these arguments were set forth as assignments of error or separate issues. The propositions were simply mentioned in the statement of facts section of appellant’s
brief and as an aside in his argument regarding his first assignment of error without
any further explanation or supporting authority.
App.R. 12 outlines the parameters of the appellate court’s exercise of
its reviewing powers and provides that a court of appeals is not required to consider
errors that were not separately assigned and argued, as required by App.R. 16(A).
Hungler v. Cincinnati, 25 Ohio St.3d 338, 341, 496 N.E.2d 912 (1986). “[E]rrors
not specifically pointed out in the record and separately argued by brief may be
disregarded.” State v. Hill, 8th Dist. Cuyahoga No. 70930, 1997 Ohio App. LEXIS
3006, 12 (July 10, 1997), citing C. Miller Chevrolet v. Willoughby Hills, 38 Ohio
St.2d 298, 313 N.E.2d 400 (1974).
We find that appellant’s brief did not present any argument or
authority in support of the above-noted propositions, and we decline to craft an
argument for him. Accordingly, appellant’s assertions regarding the trial court’s
refusal to hold a hearing or recuse itself shall be disregarded.
III. Conclusion
Appellant failed to demonstrate that the trial court abused its
discretion in finding that appellant was not unavoidably prevented from discovering
either the notes containing jury questions and the court’s answers or the claimed
evidence of Brady violations within the time provided by Crim.R. 33(B).
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.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and RAYMOND C. HEADEN, J., CONCUR