State v. Nalls

Opinion

[Cite as State v. Nalls, 2026-Ohio-2854.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : C.A. No. 30691 Appellee : : Trial Court Case No. 1989 CR 03004 v. : : (Criminal Appeal from Common Pleas LARRY NALLS : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION

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Pursuant to the opinion of this court rendered on July 24, 2026, the judgment of the

trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

send a copy of the court’s ruling to each party and note that action on the docket.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

RONALD C. LEWIS, PRESIDING JUDGE

EPLEY, J., and HUFFMAN, J., concur. OPINION MONTGOMERY C.A. No. 30691

LARRY NALLS, Appellant, Pro Se MICHAEL P. ALLEN, Attorney for Appellee

LEWIS, P.J.

{¶ 1} Appellant Larry Nalls appeals from the Montgomery County Common Pleas

Court’s order denying his April 11, 2024 petition for postconviction relief. For the following

reasons, we affirm the judgment of the trial court.

I. Course of Proceedings

{¶ 2} In 1989, Nalls was charged with two counts of rape and one count of kidnapping.

The rape charges involved allegations that Nalls had purposely compelled the victim to

engage in sexual conduct with him on August 10, 1989, by force, or by threat of force.

Following a trial, Nalls was convicted on both counts of rape, but acquitted of kidnapping.

On direct appeal, we found no error in the convictions but reversed the judgment and

remanded the matter to the trial court for resentencing, having concluded that Nalls had not

been afforded his right of allocution. State v. Nalls, 1990 WL 174154 (2d Dist. Nov. 9,

1990).

{¶ 3} On remand, the trial court sentenced Nalls to serve an indefinite term of 6 to

25 years in prison on each rape conviction. The court ordered the sentences to run

consecutively. On appeal, we affirmed the judgment of the trial court. State v. Nalls,

1991 WL 249530 (2d Dist. Nov. 7, 1991).

{¶ 4} On July 30, 1999, Nalls filed a motion for leave to file a motion for new trial.

Nalls relied on an affidavit of John Perry, who allegedly overheard the victim bragging about

putting Nalls in prison, and the recantation of trial testimony by Anthony Martin, an

2 eyewitness. Following a hearing, the trial court denied the motion for leave. We affirmed

the trial court’s judgment on appeal. State v. Nalls, 2002-Ohio-2701 (2d Dist.).

{¶ 5} In 2003, Nalls filed a petition for postconviction relief, alleging that he had

recently learned of favorable evidence that had been withheld from him by defense counsel

and the prosecutor. The trial court denied Nalls’s petition. Nalls filed a notice of appeal

from the trial court’s judgment, but we dismissed the appeal as untimely filed.

{¶ 6} On April 11, 2024, Nalls filed a second petition for postconviction relief. Nalls

identified sixteen “claims for relief.” The State filed an answer to Nalls’s petition, in which it

raised res judicata as an affirmative defense. On May 1, 2024, the trial court denied the

petition for postconviction relief. According to the trial court, Nalls had failed to demonstrate

that he was unavoidably prevented from discovering the facts that he relied on in his petition,

which concerned knowledge he had gained well before he filed the petition. The court also

found that Nalls had “not shown by clear and convincing evidence that but for a constitutional

error at trial, no reasonable factfinder would have found him guilty.” Nalls filed a notice of

appeal on November 24, 2025.

II. Jurisdictional Issue

{¶ 7} Before we resolve Nalls’s assignments of error, we must consider whether we

have jurisdiction over this appeal, because the notice of appeal was not filed within 30 days

of the trial court’s final entry as required by App.R. 4(A)(1). To vest jurisdiction in an

appellate court, a party must file a timely notice of appeal. State v. Bray, 2017-Ohio-118,

¶ 9 (2d Dist.). We may raise jurisdictional issues on our own motion because subject-

matter jurisdiction “‘may not be waived or bestowed upon a court by the parties to the case.’”

Care Risk Retention Group v. Martin, 2010-Ohio-6091, ¶ 97 (2d Dist.), quoting State ex rel.

White v. Cuyahoga Metro. Hous. Auth., 1997-Ohio-366, ¶ 6.

3 {¶ 8} “A postconviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Steffen, 1994-Ohio-111, ¶ 60,

citing State v. Crowder, 60 Ohio St.3d 151 (1991). Consequently, courts have held that

“App.R. 4(A)(1) and (3) control appeals from the denial of a postconviction relief petition.”

State v. Brisco, 2020-Ohio-4582, ¶ 11 (10th Dist.). As noted, under App.R. 4(A)(1), notices

of appeal must be filed within 30 days after a final entry is filed.

{¶ 9} In civil cases, “if the clerk has not completed service of the judgment within the

three-day period prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R. 4(A)(1)

and 4(A)(2) begin to run on the date when the clerk actually completes service.”

App.R. 4(A)(3). Thus, “‘the filing of a notice of appeal from the denial of a petition for post-

conviction relief under R.C. 2953.21 must be made within 30 days of the entry of judgment

where there is compliance with Civ.R. 58(B), or within 30 days of notice of the judgment and

its entry if service is not made within the three day period of Civ.R. 58(B).’” Brisco at ¶ 13,

quoting State v. Williams, 2006-Ohio-842, ¶ 6 (10th Dist.).

{¶ 10} Civ.R. 58(B) contains certain requirements, including that the court shall

endorse on its judgment a direction to the clerk to serve upon all parties notice of the

judgment and its date of entry upon the journal. “Within three days of entering the judgment

upon the journal, the clerk shall serve the parties in a manner prescribed by Civ. R. 5(B) and

note the service in the appearance docket.” Civ.R. 58(B). The rule further states: “Upon

serving the notice and notation of the service in the appearance docket, the service is

complete.”

{¶ 11} In the case before us, the trial court did not make the required endorsement

on the judgment entry, and the clerk did not make a notation in the appearance docket

concerning the fact that it had served the required notice. In this regard, we note that there

4 is no such notation in the docket sheet the clerk transmitted to us, nor is there any such

notation in the clerk’s online docket. As a result, though Nalls’s notice of appeal was not

filed within 30 days of the May 1, 2024 judgment, Nalls’s appeal of the trial court’s decision

was timely. Therefore, we have jurisdiction to resolve Nalls’s assignments of error.

III. The Trial Court Did Not Abuse Its Discretion by Denying Nalls’s Successive

Petition for Postconviction Relief

{¶ 12} Nalls raises 19 assignments of error, which are largely based on the 16 claims

for relief that he presented in his petition for postconviction relief. Based on our review of

the record and applicable law, we conclude that the trial court correctly denied his petition

because Nalls failed to satisfy the requirements of R.C. 2953.23(A)(1)(a) and (b), and most

of his arguments are barred by the doctrine of res judicata.

{¶ 13} Generally, we review trial court’s decisions granting or denying petitions for

postconviction relief under an abuse-of-discretion standard. State v. Perkins, 2011-Ohio-

5070, ¶ 16 (2d Dist.), citing State v. Gondor, 2006-Ohio-6679, ¶ 45. However, whether the

trial court possessed subject-matter jurisdiction to entertain a petition for postconviction relief

is a question of law subject to de novo review. State v. Bethel, 2022-Ohio-783, ¶ 20, citing

State v. Apanovitch, 2018-Ohio-4744, ¶ 36.

{¶ 14} Pursuant to R.C. 2953.21(A)(1)(a), “[a]ny 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 . . . 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.” Nalls’s

19 assignments of error are based on the 16 claims for relief he raised in his petition for

postconviction relief. Many of Nalls’s assignments of error are conclusory and repetitive.

5 He raises the following primary arguments in his 19 assignments of error: (1) Anthony

Martin, a key eyewitness, recanted his trial testimony; (2) state authorities failed to conduct

a fair and reasonable investigation; (3) the prosecutor willfully threatened and tampered with

witnesses; (4) the prosecutor and defense counsel willfully conspired and colluded with each

other to threaten witnesses and withhold exculpatory evidence; (5) Nalls was wrongfully

imprisoned; (6) the trial court abused its discretion by denying his petition without a hearing;

(7) his convictions were against the manifest weight of the evidence; (8) he was falsely

arrested; and (9) the cumulative effect of errors during trial deprived him of a fair trial.

{¶ 15} The petition at issue in this appeal is Nalls’s second petition for postconviction

relief relating to his convictions for rape. A trial court does not have subject-matter

jurisdiction to adjudicate a successive petition for postconviction relief unless one of the

exceptions in R.C. 2953.23(A)(1) and (2) apply. The only possible exception that could

apply in this matter is set forth in R.C. 2953.23(A)(1). That provision requires the petitioner

to establish that he was either: (1) unavoidably prevented from discovering the facts upon

which he relies to present his claim or (2) subsequent to the period prescribed in

R.C. 2953.21(A)(2) or to the filing of an earlier petition, the United States Supreme Court

recognized a new federal or state right that applies retroactively to the petitioner’s situation

and the petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a). “The petitioner

must also show by clear and convincing evidence that, if not for the constitutional error from

which he suffered, no reasonable factfinder could have found him guilty.” State v.

DeVaughns, 2017-Ohio-475, ¶ 26 (2d Dist.), citing R.C. 2953.23(A)(1)(b).

{¶ 16} We agree with the trial court that Nalls’s petition for postconviction relief did

not satisfy the requirements of R.C. 2953.23(A)(1)(a). First, Nalls did not demonstrate that

he was unavoidably prevented from discovering the facts upon which his postconviction

6 claims depended. Second, he did not allege that the United States Supreme Court had

recognized a new federal or state right that applied retroactively to his situation.

{¶ 17} Nalls “bears the burden of showing that he was unavoidably prevented from

discovering the evidence on which the petition relies.” State v. Johnson, 2024-Ohio-134,

¶ 18. “A petitioner may make the required showing either by establishing a violation under

Brady [v. Maryland, 373 U.S. 83 (1963)], or by demonstrating that he was previously

unaware of the evidence on which the petition relies and could not have discovered it by

exercising reasonable diligence.” Id.

{¶ 18} Nalls did not explain in his April 11, 2024 petition how he was unavoidably

prevented from discovering the evidence that he referenced in his petition. Most of the

evidence referenced in his petition was dated prior to the date on which he filed his first

petition for postconviction relief. Notably, the only supporting document actually submitted

with his petition for postconviction relief is a March 28, 2024 affidavit signed by Nalls.

Nowhere in Nalls’s affidavit does he explain how he was unavoidably prevented from

discovering the evidence that he referenced in his petition. Therefore, Nalls failed to

establish that he was unavoidably prevented from discovering the facts upon which he relied

to present his claims. R.C. 2953.23(A)(1)(a).

{¶ 19} We acknowledge that Nalls referenced some evidence in his petition that was

dated after he filed his first petition for postconviction relief. For example, Nalls relied on

the March 4, 2011 affidavit of Loretta Barton. But “R.C. 2953.23(A)(1)(a) requires a

petitioner to submit evidence of specific facts beyond the supporting affidavit’s date to

explain why the petitioner was unable to timely obtain an affidavit from” a witness. Johnson

at ¶ 27. The Barton affidavit is not in the record before us, so we cannot determine whether

it provided specific facts to explain why Nalls was unable to timely obtain the affidavit.

7 Nalls’s petition also identified a 2019 sexual abuse psychosocial assessment in which Nalls

claims the mother of the rape victim stated that the victim had admitted she lied about being

raped by Nalls. However, Nalls did not submit the alleged psychosocial assessment with

his petition for postconviction relief. The lack of any evidence in support of his petition for

postconviction relief is a recurring, fatal problem with Nalls’s April 11, 2024 petition.

{¶ 20} Alternatively, Nalls could have met his burden under R.C. 2953.23(A)(1)(a) by

establishing a Brady violation. To do so, Nalls was required to establish that the State had

suppressed the evidence on which he relies, as is necessary for a Brady claim. While Nalls

stated repeatedly in his petition for postconviction relief that the State had committed Brady

violations, Nalls did not attach any affidavits establishing that the State had possessed the

alleged evidence prior to Nalls’s trial and that the State had not provided Nalls with the

evidence before trial through the discovery process. Indeed, Nalls did not submit any

affidavits or evidence detailing how and when he learned about the existence of any alleged

Brady material. Rather, his petition simply notes that he was incorporating by reference

several affidavits and pieces of evidence that were filed in another criminal case,

Montgomery C.P. No. 2020 CR 1992, which involved Nalls’s convictions in 2022 for illegal

use of a minor in nudity-oriented material or performance; gross sexual imposition; sexual

imposition; and having a weapon under disability.

{¶ 21} In Case No. 2020 CR 1992, the trial court denied Nalls’s motion to consolidate

that case with the criminal case before us. We affirmed that judgment on direct appeal.

State v. Nalls, 2025-Ohio-3168, ¶ 19 (2d Dist.). Nalls also filed a motion in the current case

to consolidate his two criminal cases. The trial court denied his motion to consolidate and

Nalls does not challenge that decision in this appeal. As a result, the affidavits and

evidence referenced in Nalls’s petition that presumably were filed at some point in Case No.

8 2020 CR 1992 are not in the record before us and were not before the trial court when it

ruled on Nalls’s successive petition for postconviction relief.

{¶ 22} In short, our record does not contain the affidavits and evidence that Nalls

unsuccessfully attempted to incorporate by reference in his second petition for

postconviction relief. We acknowledge that Nalls attached the affidavits of Loretta Barton

and Anthony Martin to his appellate brief in the current appeal. But “[a] reviewing court

cannot add matter to the record before it, which was not a part of the trial court’s

proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail,

54 Ohio St.2d 402 (1978), paragraph one of the syllabus. Due to the lack of affidavits and

evidence in support of his petition for postconviction relief, Nalls has failed to establish a

Brady violation. Therefore, the trial court was without subject-matter jurisdiction to entertain

Nalls’s successive petition for postconviction relief. R.C. 2953.23(A)(1).

{¶ 23} There are two additional, independent bases on which we affirm the trial

court’s judgment. First, Nalls’s failure to submit any evidence in support of his petition for

postconviction relief prevented Nalls from showing by clear and convincing evidence that, if

not for the constitutional error from which he suffered, no reasonable factfinder could have

convicted him. DeVaughns, 2017-Ohio-475, at ¶ 26 (2d Dist.), citing R.C. 2953.23(A)(1)(b).

Consequently, the trial court correctly denied Nalls’s petition for postconviction relief

pursuant to R.C. 2953.23(A)(1)(b).

{¶ 24} Second, most of Nalls’s claims raised in his successive petition for

postconviction relief are barred by res judicata. The state raised a res judicata defense in

its answer to Nalls’s successive petition for postconviction relief. Under the doctrine of res

judicata, “[a] valid, final judgment rendered upon the merits bars all subsequent actions

based upon any claim arising out of the transaction or occurrence that was the subject matter

9 of the previous action.” Grava v. Parkman Twp., 1995-Ohio-331, syllabus. “‘Accordingly,

if the claims brought in a second petition for post-conviction relief are ones that were or could

have been brought in an earlier petition for post-conviction relief, a trial court does not abuse

its discretion in denying the second petition for post-conviction relief on the basis of res

judicata.’” State v. Weber, 2020-Ohio-4851, ¶ 15 (2d Dist.), quoting State v. Finfrock,

1998 WL 726478, *5 (2d Dist. Oct. 16, 1998).

{¶ 25} Most of the arguments Nalls raised in his April 11, 2024 petition were or could

have been raised in prior proceedings. For example, (1) his manifest weight and cumulative

error arguments were or could have been raised on direct appeal from his convictions; (2) his

arguments regarding Anthony Martin’s recantation were raised in his 1999 motion for leave

to file a motion for new trial and could have been raised in his 2003 petition for postconviction

relief; and (3) his arguments regarding the withholding of exculpatory evidence were or could

have been raised in his 2003 petition for postconviction relief. Consequently, the trial

court’s denial of Nalls’s second petition for postconviction relief is also supported by the

doctrine of res judicata.

{¶ 26} Finally, Nalls states that the trial court abused its discretion by failing to hold a

hearing before denying his April 11, 2024 petition for postconviction relief. We do not agree.

“According to the postconviction relief statute, a criminal defendant seeking to challenge his

conviction through a petition for postconviction relief is not automatically entitled to a

hearing.” State v. Calhoun, 1999-Ohio-102, ¶ 13, citing State v. Cole, 2 Ohio St.3d 112

(1982). Rather, “[b]efore granting a hearing on a petition . . . , the court shall determine

whether there are substantive grounds for relief.” R.C. 2953.21(D). Moreover,

R.C. 2953.23(A) states that regardless of whether a hearing is held, a trial court may not

consider a successive petition for postconviction relief if the petitioner failed to satisfy

10 R.C. 2953.23(A)(1) or (2). Given that Nalls failed to satisfy the requirements of

R.C. 2953.23(A)(1) or (2) and failed to submit any evidence to establish a substantive

ground for relief, we cannot conclude that the trial court abused its discretion by denying

Nalls’s April 11, 2024 petition for postconviction relief without holding a hearing.

{¶ 27} The assignments of error are overruled.

IV. Conclusion

{¶ 28} Having overruled the assignments of error, we affirm the judgment of the trial

court.

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EPLEY, J., and HUFFMAN, J., concur.