State v. Morton

• Court: Ohio Court of Appeals
• Decided: July 2, 2026
• Docket: 115390
• Status: Published

Opinion

[Cite as State v. Morton, 2026-Ohio-2536.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 115390 v. :

JEREMIAH D. MORTON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 2, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-636658-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Assistant Prosecuting Attorney, for appellee.

Jonathan Sidney, for appellant.

DEENA R. CALABRESE, J.:

Defendant-appellant Jeremiah D. Morton (“Morton”) appeals the trial

court’s denial of his petition for postconviction relief. For the reasons stated below,

we affirm the trial court’s denial of Morton’s petition for postconviction relief. I. Relevant Facts and Procedural History

This case stems from an incident that occurred on December 11, 2018.

On that date, several individuals who are developmentally disabled or have

psychiatric challenges first encountered Morton. Upon meeting these individuals,

Morton “tagged along” with the group to the apartment of one of the individuals.

T.B., the victim here, joined the group and Morton at the apartment.

T.B. consumed several alcoholic beverages, and events led to Morton and T.B. going

into the bathroom together. T.B. later testified that Morton orally and vaginally

raped her when they were alone in the bathroom. Another individual called the

police, and the first set of police officers arrived before Morton and T.B. exited the

bathroom. Police officers escorted Morton from the apartment, and then the police

also left the premises.

T.B. was visibly upset after Morton and the police officers left and

discussed the events that took place in the bathroom with her friend. T.B. and her

friend called the police again, and a second set of officers arrived at the apartment.

One of the officers was wearing a body camera, and the video shows the discussions

that took place between the officer and T.B. and her friends. The video from the

police officer’s body camera is of relevance here.

Morton was arrested and charged with four counts of rape; one count

of kidnapping; and one count of aggravated burglary. The police body-camera video

was produced prior to trial to Morton’s trial counsel. The case was tried before a

jury. The body-camera video was not shown or introduced into evidence during the trial, although Morton’s trial counsel referred to the video often during the trial and

cross-examined T.B. and other witnesses extensively based on the video. The jury

found Morton guilty on all counts, and the trial court sentenced him to a 20-year

prison term.

Morton filed a timely direct appeal to this court, State v. Morton, 2021-

Ohio-581 (8th Dist.) (“Morton I”), where he asserted that trial counsel was

ineffective for four reasons. The fourth reason involved the police body-camera

video. Morton specifically asserted that trial counsel was ineffective because he

failed to properly cross-examine inconsistencies in witness statements and failed to

introduce the police body-camera video. He further asserted that “[s]tories changed

significantly from the police report and body camera footage to the actual

testimony.” Morton I at ¶ 41. The Morton I Court found, in relevant part, as follows:

The final instance of alleged ineffectiveness of his counsel Morton cites is counsel’s failure to introduce exculpatory and mitigating evidence. Specifically, Morton challenges counsel’s decision to not admit the police body-camera footage despite referring to it on cross- examination of T.B. and during closing argument. The record reflects that counsel questioned T.B. on cross-examination about how her trial testimony differed from what she initially told the police during her second encounter with them that day. Counsel got her to admit the most relevant inconsistency: that she told the police on the scene that she did not believe Morton had raped her.

(Emphasis added.) Morton I at ¶ 43.

On December 23, 2020, while Morton I was still pending, Morton filed

a petition for postconviction relief. In his petition for postconviction relief, Morton

asserted that trial counsel was ineffective for failing to present the jury with exculpatory and impeaching video evidence, namely the police body-camera video.

Morton’s petition stated that “this evidence was clearly within the possession of

defense counsel and he had clearly viewed the video.” (Dec. 20, 2020 petition.)

On September 30, 2021, the trial court denied Morton’s petition for

postconviction relief. Morton appealed, asserting that the trial court erred when it

did not issue findings of fact and conclusions of law. This court, in State v. Morton,

2022-Ohio-2358 (“Morton II”) (S. Gallagher, J., dissenting), found that Morton’s

petition for postconviction relief was timely filed and that the trial court “erred in

denying Morton’s petition for post-conviction relief without issuing findings of fact

and conclusions of law. See R.C. 2953.21(D), (H).” Morton II at ¶ 20, 24. Although

the majority did not reach the merits of Morton’s petition in Morton II, Judge Sean

Gallagher’s dissenting opinion stated that Morton “is precluded from raising [the

ineffective assistance of counsel] claim anew in the petition for post-conviction relief

since he could have included that argument within his direct appeal.” Morton II at

¶ 34 (S. Gallagher, J., dissent).

On remand to the trial court, Morton filed an amended petition for

postconviction relief on June 5, 2023. The amended petition asserted that trial

counsel was ineffective because he did not present the body-camera video to the jury

for reasons that were not tactical or strategic. The petition specifically asserted that

trial counsel did not present the video because it was “hard to download” and he was

“not good at technology.” The petition also moved the trial court to order production of the police body-camera video and, if the video contained exculpatory and

impeaching footage, for an evidentiary hearing.

Morton attached two affidavits to the amended petition. In the first

affidavit, Morton avers that trial counsel’s assistant showed him the body-camera

video prior to his trial and includes his recollection of what was on the video and his

recollection of trial counsel’s assistant’s analysis of the video evidence. In the second

affidavit, Morton’s prior postconviction counsel makes statements regarding her

discussions with Morton trial counsel and trial counsel’s paralegal or secretary about

the body-camera video. She averred that trial counsel stated he did not download

or play the footage at trial because it was too difficult to download and he was “not

good at technology.” She further averred that trial counsel’s paralegal or secretary

stated that they no longer had access to the evidence.com link to the video.

On July 3, 2025, the trial court denied Morton’s petition and issued its

findings of fact and conclusions of law finding that “res judicata precludes relief

since [Morton] raised, or could have raised, the argument in his direct appeal and

the trial transcript sufficed for raising the claim.” The trial court further found that

Morton was not entitled to discovery or a hearing on his postconviction-relief

petition.

This appeal followed. Morton raises the following single assignment

of error for our review:

The trial court erred in denying Mr. Morton’s petition for post- conviction relief without holding an evidentiary hearing or ordering discovery. II. Law and Analysis

In his single assignment of error, Morton contends that the trial court

erred when it denied his petition for postconviction relief.

An appellate court reviews a trial court’s postconviction-relief

determination for an abuse of discretion. State v. Weaver, 2022-Ohio-4371, ¶ 24,

citing State v. Gondor, 2006-Ohio-6679, ¶ 58. An abuse of discretion occurs when

a court exercises “its judgment, in an unwarranted way, in regard to a matter over

which it has discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35.

“A post-conviction proceeding is not an appeal of a criminal

conviction, but, rather, a collateral civil attack on the judgment.” State v. Steffen,

70 Ohio St.3d 399, 410 (1994), citing State v. Crowder, 60 Ohio St.3d 151 (1991).

The postconviction process is governed by R.C. 2953.21(A)(1), which provides, in

relevant part:

Any person who has been convicted of a criminal offense . . . and who claims that there was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States . . . may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.

“Res judicata is applicable in all post-conviction relief proceedings.”

State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). This court has established that “[i]f an

issue has, or should have been raised on direct appeal, the trial court may dismiss

the petition on the basis of res judicata.” (Citations omitted.) State v. Murphy, 2021-Ohio-3925, ¶ 11 (8th Dist.). See also State v. Brown, 2025-Ohio-274, ¶ 39 (8th

Dist.). There are two exceptions to this rule: counsel in the direct appeal represented

the petitioner at trial, or the petitioner must rely on evidence outside the record to

prove an ineffective-assistance-of-counsel claim. State v. Blanton, 2022-Ohio-

3985, ¶ 2, citing State v. Cole, 2 Ohio St.3d 112, 113-114 (1982).

Morton asserts that pursuant to Blanton and Cole, his ineffective-

assistance-of-counsel claim is not barred by res judicata because he sought to

introduce evidence outside the record. See Blanton at ¶ 24 and Cole at ¶ 114. As

Blanton reaffirmed, ‘“[g]enerally, the introduction in an R.C. 2953.21 petition of

evidence dehors the record of ineffective assistance of counsel is sufficient, if not to

mandate a hearing, at least to avoid dismissal on the basis of res judicata.”’ Blanton

at ¶ 25, quoting Cole at id. During oral arguments, Morton asserted that the

evidence outside the record that he sought to introduce was the police body-camera

video. Morton’s appellate brief asserts that the two affidavits attached to the

amended petition are new evidence outside the record. However, in both Blanton

and Cole, the courts contemplated new evidence that was not available and thus not

considered at the time of the direct appeal.

The police body-camera video in this case was available prior to the

trial, was in the possession of trial counsel, and was referred to extensively during

the trial. We are in agreement with the trial court that the trial transcript sufficed

for raising the ineffective-assistance claim in the direct appeal. We are also in

agreement with the dissent in Morton II when it pointed out that Morton has not explained in his petition “how review of the actual video was necessary to

prosecuting that ineffective-assistance-of-counsel claim in the direct appeal.”

Morton II at ¶ 34 (S. Gallagher, J., dissenting).

In addition, trial counsel’s decision not to admit the police body-

camera video was considered in the direct appeal by the Morton I Court. Morton,

in Morton I, asserted that trial counsel was ineffective for failing to introduce the

police officer’s body-camera video at trial. Morton is asserting the same argument

in his petition for postconviction relief.

The two affidavits included in Morton’s amended petition for

postconviction relief do not save Morton’s petition from dismissal on the basis of res

judicata. In the first affidavit, Morton avers that prior to the trial in this case, he

viewed the police body-camera video. In the second affidavit, Morton’s prior

postconviction petition counsel makes statements regarding her discussions with

trial counsel and trial counsel’s paralegal or secretary about the police body-camera

video. This court has previously found that “[a] trial court may discount self-serving

affidavits from the petitioner or his family members, identical affidavits, or

affidavits which rely on hearsay as not being credible.” State v. Nelson, 2000 Ohio

App. LEXIS 4279, *8-9 (8th Dist. Sept. 21, 2000), citing State v. Moore, 99 Ohio

App.3d 748, 756 (1st Dist. 1994). In addition, nothing in Morton’s affidavit presents

new evidence that could not have been put forth in the direct appeal.

The trial court properly found that res judicata bars Morton from

raising the issue in a petition for postconviction relief because this issue was raised on direct appeal. Therefore, Morton’s single assignment of error is overruled and

the trial court’s denial of his motion for postconviction relief is affirmed. We decline

to address Morton’s arguments regarding postconviction discovery.

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.

__________________________ DEENA R. CALABRESE, JUDGE

LISA B. FORBES, P.J., CONCURS; SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, J., CONCURRING:

I fully concur with the majority opinion and analysis, and I agree that

Morton’s petition for postconviction relief was properly denied because it is barred

by res judicata. I write to continue to express my concerns with the trial court’s

jurisdiction in this matter.

Morton’s convictions for rape involving a developmentally disabled

adult victim, kidnapping with a sexual motivation specification, and aggravated

burglary were affirmed in State v. Morton, 2021-Ohio-581 (8th Dist.), appeal not accepted, 2021-Ohio-2742. He failed to file his petition for postconviction relief

with the trial court within the time requirements of R.C. 2953.21(A). Yet, on appeal

to this court in State v. Morton, 2022-Ohio-2358 (8th Dist.) (“Morton II”), the 2-1

majority carved out an exception and determined that the petition be considered

timely where it had initially been submitted for e-filing using the wrong case

number, which resulted in the petition being docketed in the appellate case rather

than in the court that imposed the sentence as required by R.C. 2953.21(A). As I

explained in my dissent in Morton II, “[i]f the petition for postconviction relief is

not timely filed in the court that imposed sentence, that court is without jurisdiction

to consider the merits of the petition or to grant additional time to file the petition.”

Id. at ¶ 28 (S. Gallagher, J., dissenting), citing State v. Apanovitch, 2018-Ohio-4744,

¶ 36.

Despite the majority determination in Morton II, I continue to believe

that Morton’s petition for postconviction relief was not timely filed with the trial

court for the reasons set forth in my dissenting opinion therein. Furthermore, I

believe that following the remand from this court for findings of fact and conclusions

of law, Morton sought to expand his petition and bring new issues into the equation

without meeting the threshold requirements. Nevertheless, I understand the

majority in Morton II found Morton’s petition to be timely and that R.C.

2953.21(G)(3) permits petitions to be amended with leave of court at any time. Also,

I recognize that certain arguments were not raised in the trial court, which this court

need not address on appeal. In any event, I fully concur with the majority opinion as written herein and agree that the trial court’s decision to deny Morton’s petition

should be affirmed.