State v. Wood

2025 Ohio 2170

Opinion

[Cite as State v. Wood, 2025-Ohio-2170.]

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

STATE OF OHIO : : Appellee : C.A. No. 2024-CA-49 : v. : Trial Court Case No. 22-CR-0488 : MICHAEL WOOD : (Criminal Appeal from Common Pleas : Court) Appellant : :

...........

OPINION

Rendered on June 20, 2025

MICHAEL WOOD, Pro Se Appellant

ROBERT C. LOGSDON, Attorney for Appellee

.............

LEWIS, J.

{¶ 1} Defendant-Appellant Michael Wood appeals from a judgment of the Clark

County Common Pleas Court that denied his petition for postconviction relief, overruled

his motion for leave to file a motion for new trial, and overruled his motion for appointed

counsel. For the following reasons, the judgment of the trial court will be affirmed.

I. Procedural History and Facts -2-

{¶ 2} Following a jury trial in August 2022, Wood was convicted on one count of

operating a motor vehicle while under the influence of alcohol (“OVI”) in violation of R.C.

4511.19(A)(1)(b), along with a repeat-offender specification.1 The charges arose from

an April 22, 2021 traffic stop of Wood by Clark County Sheriff’s Deputy Brenden McDuffie.

For additional underlying facts of the case, see State v. Wood, 2023-Ohio-2788 (2d Dist.).

Wood was ordered to serve 36 months in prison for the underlying OVI and a consecutive

36 months in prison for the repeat-offender specification. Accordingly, Wood received

an aggregate prison sentence of 72 months. The trial court also suspended Wood's

driver's license for 10 years and ordered him to pay a $1,350 fine.

{¶ 3} Wood filed a timely appeal and raises four assignments of error: (1) the trial

court erred in overruling his motion to suppress; (2) the admission of a laboratory report

violated the confrontation clause; (3) one of the OVI offenses for which he was charged

was unconstitutional; and (4) his conviction was against the manifest weight of the

evidence. On August 11, 2023, we overruled all of Wood’s assignments of error and

affirmed the judgment of the trial court. Id. at ¶ 81.

{¶ 4} Wood filed an application for reconsideration of our decision, which we

denied. State v. Wood, 2023-Ohio-3735 (2d Dist.). Wood also filed an application for

reopening his direct appeal, arguing that his appellate counsel was ineffective for failing

to raise the following additional assignments of error: (1) the trial court abused its

discretion in overruling his Crim.R. 29 motion and submitting a prejudicial jury instruction;

1 Wood was found guilty of three counts of OVI and attendant repeat-offender specifications at trial. However, due to merger, he was only convicted and sentenced on one count of OVI and its attendant repeat-offender specification. -3-

(2) trial counsel was ineffective; and (3) there was prosecutorial misconduct. We

concluded that Wood had failed to demonstrate that there was a genuine issue as to

whether he was deprived of the effective assistance of counsel on appeal and denied

Wood’s application for reopening.

{¶ 5} On October 19, 2023, Wood filed a motion in the trial court for leave to file a

delayed motion for a new trial, claiming that the prosecution had suppressed

impeachment evidence related to Deputy McDuffie in violation of Brady v. Maryland, 373

U.S. 83 (1963). In support of his motion, Wood attached an affidavit stating that he only

learned of the newly discovered impeachment evidence in March 2023. Wood also

submitted a case information sheet from Nolan v. Clark Cty. Bd. of Cty. Commrs., S.D.

Ohio No. 3:21-cv-00330. Wood simultaneously filed a motion for a new trial pursuant to

Crim.R. 33.

{¶ 6} On October 23, 2023, Wood filed a petition for postconviction relief along with

an affidavit of indigency, an application for a subpoena duces tecum of an April 22, 2022

gas station video, an application for a subpoena duces tecum for electronically-stored

information from the body cameras of two of the deputies involved in Wood’s arrest, a

motion for appointed counsel, a motion to pay the cost of an independent forensic

behavior sequence analyst, and a motion to pay the cost of an independent forensic audio

and video data analyst and/or independent forensic information technology specialist.

Wood’s petition argued: (1) the video evidence submitted at trial had been altered; (2)

trial counsel was ineffective; (3) the State permitted a witness to give perjured testimony;

(4) the State suppressed impeachment evidence; (5) prosecutorial misconduct occurred -4-

during trial; and (6) Wood was actually innocent. Wood filed a second affidavit of

indigency along with a separate affidavit attached to the filing collectively identified as

Wood’s affidavit of indigency.

{¶ 7} On January 4, 2024, Wood filed a motion for summary judgment regarding

his petition for postconviction relief. He then filed an amended petition for postconviction

relief on January 29, 2024, reasserting that the State had suppressed impeachment

evidence. Attached to his amended petition, Wood submitted a letter he had written

regarding his driving record, a printout of a Google search, and an affidavit of Wood

related to his 2016 convictions and attempted postconviction relief.

{¶ 8} On February 6, 2024, the State filed a response to Wood’s motion for leave

to file a delayed motion for a new trial and to Wood’s motions for appointed counsel and

expert assistance.

{¶ 9} On February 9, 2024, Wood filed a second amended petition reasserting his

original claims. On February 12, 2024, Wood filed a reply to the State’s response to

Wood’s motion for leave to file a motion for a new trial as well as a “Notice” asking the

trial court to disregard the State’s untimely filing because it had not first sought leave of

court. Wood also filed a response to the State’s motion in opposition to his request for

appointed counsel and expert assistance.

{¶ 10} On March 7, 2024, the State filed a response to Wood’s petition and

amended petition for postconviction relief. On March 8, 2024, Wood filed another

amended petition for postconviction relief focused on his original sixth claim of actual

innocence. On March 13, 2024, Wood filed a motion to strike the State’s untimely -5-

response to his petitions for postconviction relief. On April 26, 2024, Wood filed a motion

asking the court to proceed to a hearing on his petition.

{¶ 11} On July 30, 2024, the trial court denied Wood’s petition for postconviction

relief and overruled Wood’s other pending motions.2 Wood timely appealed and raises

five assignments of error. We elect to consider the assignments of error out of order for

ease of discussion.

II. Second and Fourth Assignments of Error: Petition for Postconviction

Relief

{¶ 12} Wood’s second and fourth assignments of error will be considered together

as they both relate to the trial court’s denial of his petition for postconviction relief. The

assignments of error state as follows:

The trial court abused its discretion, failed to render adequate

findings of fact/conclusions of law, failed to conduct Calhoun analysis to

determine the credibility of sworn testimonial statements and erroneously

denied post-conviction relief requested pro se in violation of Due process of

law guaranteed by the Fifth, Sixth and Fourteenth Amendment to the United

States Constitution as well as comparable provisions of the Ohio

Constitution.

The trial court abused its discretion, applied incorrect legal

standards, and erroneously denied Wood’s pro se post-conviction relief

2 Unlike Wood’s petition and amended petition, the trial court’s entry did not address

Wood’s second and third amended petitions for postconviction relief filed in February and March 2024, and, therefore, those filings will not be addressed in this opinion. -6-

petition without conducting a hearing in violation of R.C. 2953.21(D), (F),

(H) and Due process of law guaranteed by the Fifth, Sixth and Fourteenth

Amendment to the United States Constitution as well as comparable

provisions of the Ohio Constitution.

{¶ 13} Wood first argues that the trial court erred in denying his petition and failing

to provide findings of fact and conclusions of law. Second, Wood contends that the trial

court should have, at a minimum, granted him a hearing.

a. Applicable Law

{¶ 14} We review the trial court's ruling on a petition for postconviction relief for an

abuse of discretion. State v. Gondor, 2006-Ohio-6679, ¶ 45. “A trial court abuses its

discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

State v. Darmond, 2013-Ohio-966, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157

(1980).

{¶ 15} “Pursuant to R.C. 2953.21(A)(1)(a), a convicted defendant who asserts a

denial or infringement of constitutional rights sufficient to render his conviction void or

voidable may file a petition asking the court that imposed sentence to vacate the judgment

or sentence or to grant other relief.” State v. Hatton, 2022-Ohio-3991, ¶ 37. “[A]

postconviction proceeding is not an appeal of a criminal conviction but, rather, a collateral

civil attack on the judgment.” State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). A

petition for postconviction relief “ ‘is a means by which the petitioner may present

constitutional issues to the court that would otherwise be impossible to review because

the evidence supporting those issues is not contained in the record of the petitioner's -7-

criminal conviction.’ ” State v. Clark, 2017-Ohio-120, ¶ 14 (2d Dist.), quoting State v.

Monroe, 2015-Ohio-844, ¶ 37 (10th Dist.).

{¶ 16} When filing a petition for postconviction relief, the petition shall state all

grounds for relief claimed and any ground for relief that is not so stated in the petition is

deemed waived. R.C. 2953.21(A)(4). The petitioner may file a supporting affidavit and

other documentary evidence in support of the claim for relief. R.C. 2953.21(A)(1)(b).

To prevail on a petition for postconviction relief, the petitioner must establish such a denial

or infringement of the petitioner’s constitutional rights as to render the judgment of

conviction void or voidable under the Ohio Constitution or the Constitution of the United

States. R.C. 2953.21(A)(1)(a)(i).

{¶ 17} A petitioner is not automatically entitled to a hearing on a petition for

postconviction relief. State v. Cole, 2 Ohio St.3d 112, 113 (1982), citing State v.

Jackson, 64 Ohio St.2d 107, 110 (1980). Before granting a hearing on a timely-filed

petition for postconviction relief, the trial court must “determine whether there are

substantive grounds for relief.” R.C. 2953.21(D). “In making that determination, the

court must consider, in addition to the petition, the supporting affidavits, the documentary

evidence, all the files and records pertaining to the proceedings against the petitioner,

including, but not limited to, the indictment, the court's journal entries, the journalized

records of the clerk of the court, and the court reporter's transcript.” State v. Marcum,

2023-Ohio-4058, ¶ 26 (2d Dist.), citing R.C. 2953.21(D). “The post-conviction relief

statute imposes on a petitioner ‘the initial burden to submit evidentiary documents

containing operative facts sufficient to demonstrate substantive grounds for relief that -8-

merit a hearing.’ ” State v. Lenoir, 2009-Ohio-1275, ¶ 11 (2d Dist.), citing State v. Gapen,

2005-Ohio-441, ¶ 21 (2d Dist.). “A petition presents substantive grounds for relief when

it contains allegations that are sufficient to state a constitutional claim and the files and

records of the case do not affirmatively disprove the claim.” State v. Blanton, 2022-Ohio-

3985, ¶ 24, citing State v. Milanovich, 42 Ohio St.2d 46, 50 (1975), and R.C. 2953.21(F).

“Broad conclusory allegations are insufficient, as a matter of law, to require a hearing.”

Gapen at ¶ 21, citing State v. Moreland, 2000 WL 5933 (2d Dist. Jan. 7, 2000). “A

petitioner is not entitled to a hearing if his claim for relief is belied by the record and is

unsupported by any operative facts other than Defendant's own self-serving affidavit or

statements in his petition, which alone are legally insufficient to rebut the record on

review.” State v. Coleman, 2005-Ohio-3874, ¶ 17 (2d Dist.), citing State v. Kapper, 5

Ohio St.3d 36, 38 (1983), and State v. Vanderpool, 1999 WL 64238 (2d Dist. Feb. 12,

1999). Furthermore, “[t]he evidence submitted with the petition must be competent,

relevant, and material and not merely cumulative of or alternative to evidence presented

at trial.” State v. Jackson, 2017-Ohio-2651, ¶ 16 (8th Dist.), citing State v. Combs, 100

Ohio App.3d 90, 98 (1st Dist. 1994).

{¶ 18} “Res judicata is applicable in all postconviction relief proceedings.” State

v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). “Under the doctrine of res judicata, a final

judgment of conviction bars the convicted defendant from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial which

resulted in that judgment of conviction or on an appeal from that judgment.” State v. -9-

Perry, 10 Ohio St.2d 175, 180 (1967). Generally, res judicata does not apply to a claim

raised in a petition for postconviction relief that relies on evidence outside the record of

the direct criminal proceedings. State v. Monroe, 2005-Ohio-5242, ¶ 9 (10th Dist.).

However, “simply overcoming the res judicata bar through the introduction of evidence

outside the record is not sufficient to entitle the petitioner to a hearing.” Blanton at ¶ 31.

“When the evidence a petitioner relies upon [is] dehors the record that evidence must

meet a threshold of cogency.” State v. Hill, 2005-Ohio-3176, ¶ 8 (2d Dist.), citing State

v. Lawson, 103 Ohio App.3d 307, 315 (12th Dist. 1995). “Cogent evidence is that which

is more than ‘marginally significant’ and advances a claim ‘beyond mere hypothesis and

desire for further discovery.’ ” Id., quoting Lawson at 315. A self-serving affidavit filed

by a petitioner generally does not meet the minimum level of cogency needed to support

a petitioner’s postconviction claims. State v. Clinton, 2024-Ohio-4720, ¶ 128 (6th Dist.),

citing State v. Curtis, 2018-Ohio-2822, ¶ 24 (5th Dist.).

b. Findings of Fact and Conclusions of Law

{¶ 19} In his second assignment of error, Wood argues that the trial court erred by

not making findings of fact and conclusions of law that discussed the substantive issues

or the evidence offered in support of his claims. Wood contends that the trial court

summarily denied his petition without addressing every claim raised. We do not agree.

{¶ 20} “The purpose of findings and conclusions are to apprise the petitioner of the

grounds for the judgment of the trial court and to enable appellate courts to properly

review the cause.” State v. Harris, 1992 WL 190653, *5 (2d Dist. Aug. 13, 1992), citing

State ex rel. Carrion v. Harris, 40 Ohio St.3d 19 (1988). “A trial court need not discuss -10-

every issue raised by appellant or engage in an elaborate and lengthy discussion in its

findings of fact and conclusions of law. The findings need only be sufficiently

comprehensive and pertinent to the issue to form a basis upon which the evidence

supports the conclusion.” Calhoun, 86 Ohio St.3d at 291-92, citing State v. Clemmons,

58 Ohio App.3d 45, 46 (2d Dist. 1989).

{¶ 21} “If the trial court finds, on the facts of a case, that a petitioner's claim was

fully litigated at trial or upon appeal, or that the claim could have been fully litigated in an

appeal, the court can summarily dismiss the claim as barred by res judicata.” State v.

Lester, 41 Ohio St.2d 51, 55 (1975). “The determination of whether an issue is barred

by res judicata largely involves a perusal of the facts of record, turning on such matters

as the issues raised at trial and upon appeal, the availability of evidence and witnesses,

and the jurisdiction of the trial court.” Id.

{¶ 22} Based on our review of the record, we conclude the trial court's judgment

sufficiently apprised Wood of the bases for the denial of his petition: res judicata and

failure to submit substantive grounds to warrant the relief requested. While a trial court

must make its determination to grant or deny a petition for postconviction relief after

considering “the petition, the supporting affidavits, and the documentary evidence, all the

files and records pertaining to the proceedings against the petitioner,” a trial court need

not specifically address every item submitted by the petitioner. We also conclude that,

for the reasons discussed below, the trial court did not abuse its discretion in denying

Wood’s petition without a hearing.

c. Wood’s Postconviction Claims -11-

{¶ 23} When Wood filed his petition for postconviction relief, he submitted exhibits

labeled A through M. These exhibits included an affidavit of Wood and documents

related to other cases involving Wood that had nothing to do with the underlying charges.

Exhibits A, E, and G. Exhibit B was a printout of information about Deputy McDuffie from

the internet. Exhibit C was a printout of the case docket information for Nolan v. Clark

Cty. Bd. of Cty. Commrs., S.D. Ohio No. 3:21-cv-00330. Exhibit F was a screenshot

showing the results of a Google search for “expired license suspended.” Wood also

included an article explaining the use of the word “F***” as well as a definition of “pig” and

an article explaining the use of the word “pig” as slang for police. Exhibits H and I.

Exhibits D and J were Google map printouts. Wood submitted an affidavit by Richard

Gibson, an inmate in prison with Wood, for the proposition that Wood exhibited signs of

post-traumatic stress disorder (PTSD). Exhibit K. Wood also included articles about

police corruption. Exhibit L. Withdrawal check-out slips from LOCI (a prison) were

included as Exhibit M, along with a purported letter from Daniel Harkins, who was

apparently involved in a car crash in which Wood assisted Harkins after the crash, and

three letters from the Ohio Attorney General’s Office.

{¶ 24} One of the separately-filed affidavits of indigency included a 31-page

affidavit of Wood in which he described his version of events leading to his arrest for OVI

on April 22, 2021. A significant portion of Wood’s affidavit contained argument and

speculation. “[S]tatements contained in affidavits must be based on personal knowledge

and cannot be legal conclusions.” Brannon v. Rinzler, 77 Ohio App.3d 749, 756 (2d Dist.

1991), citing State v. Licsak, 41 Ohio App.2d 165, 169 (10th Dist. 1974). See also State -12-

ex rel. Ware v. DeWine, 2020-Ohio-5148, ¶ 19 (“when an affidavit contains legal

arguments and conclusions, a court will disregard those statements.”).

{¶ 25} To the extent Wood argues that the court failed to conduct a credibility

determination of the affidavits submitted on behalf of Wood’s petition in accordance with

Calhoun, 86 Ohio St.3d 279, we see no error warranting reversal. In Calhoun, the Court

held that “in reviewing a petition for postconviction relief filed pursuant to R.C. 2953.21, a

trial court should give due deference to affidavits sworn to under oath and filed in support

of the petition, but may, in the sound exercise of discretion, judge their credibility in

determining whether to accept the affidavits as true statements of fact.” Id. at 284. “The

trial court may, under appropriate circumstances in postconviction relief proceedings,

deem affidavit testimony to lack credibility without first observing or examining the affiant.”

Id. In assessing the credibility of an affidavit, the Court put forth several factors a trial

court may consider, including the following:

(1) whether the judge reviewing the postconviction relief petition also

presided at the trial, (2) whether multiple affidavits contain nearly identical

language, or otherwise appear to have been drafted by the same person,

(3) whether the affidavits contain or rely on hearsay, (4) whether the affiants

are relatives of the petitioner, or otherwise interested in the success of the

petitioner's efforts, and (5) whether the affidavits contradict evidence

proffered by the defense at trial. Moreover, a trial court may find sworn

testimony in an affidavit to be contradicted by evidence in the record by the

same witness, or to be internally inconsistent, thereby weakening the -13-

credibility of that testimony.

Id. at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-756 (1st Dist. 1994).

{¶ 26} “Depending on the entire record, one or more of these or other factors may

be sufficient to justify the conclusion that an affidavit asserting information outside the

record lacks credibility.” Id. “Such a decision should be within the discretion of the trial

court.” Id. Nevertheless, “where a petitioner relies upon affidavit testimony as the basis

of entitlement to postconviction relief, and the information in the affidavit, even if true,

does not rise to the level of demonstrating a constitutional violation, then the actual truth

or falsity of the affidavit is inconsequential.” Id. at 284.

{¶ 27} The affidavits submitted as exhibits to Wood’s petitions included those of

Richard Gibson and Wood. Gibson’s affidavit indicated that he believed Wood showed

signs of PTSD. This affidavit by a fellow inmate provided no support for any of Wood’s

claims and was therefore irrelevant. Wood’s affidavit submitted as an exhibit was also

entirely unrelated to the underlying facts and circumstances involved in this case and was

inconsequential. Although the trial court did not list the factors it considered in reviewing

Wood’s affidavit attached to his affidavit of indigency, it is clear from the court’s entry that

it did not find Wood’s affidavit credible, calling it a “self-serving statement that carries no

weight.” The judge who reviewed Wood’s postconviction relief petition was the same

judge who presided over the jury trial and sentencing hearing. The judge clearly found

that Wood was interested in the outcome of his petition by calling it “self-serving.” The

trial court also noted that some of Wood’s claims were “belied by the record.” These

findings reflect that the court considered the credibility of Wood’s affidavit under Calhoun -14-

and found it not credible. We conclude that the trial court considered the affidavits filed

in support of Wood’s petition and, in the sound exercise of its discretion, properly weighed

their credibility. We now examine whether there were substantive grounds for relief for

any of Wood’s claims that would have warranted an evidentiary hearing on Wood’s

petition.

i. First Claim: Audio/Video Evidence

{¶ 28} Although Wood’s first claim discussed an allegation that the State

suppressed or failed to preserve video evidence in terms of Brady, his actual argument

was that the videos submitted into evidence at trial had been intentionally altered and

that, “had the jury been informed that the evidence was maliciously altered, there is a

reasonable probability of a different outcome sufficient to undermine the jury’s verdict.”

Oct. 23, 2023 Petition p. 7. According to Wood’s affidavit, the April 22, 2021 video

recording that was admitted at trial had been altered and some statements had been

edited out. Two videos were submitted at trial. The first video was Deputy McDuffie’s

body camera footage, which was admitted as State’s Exhibit 10. At trial, Wood’s counsel

stated that “for the record we’ll stipulate to the accuracy and authenticity of the tape and

join in the motion to admit [it].” Trial Tr. 230. Moreover, when discussing the video, the

following exchange occurred:

[Prosecutor]: Okay. Deputy McDuffie, I’ve shown you what’s been marked as

State’s Exhibit 10. There were some edits and parts that were muted for

evidentiary purposes but does that video fairly and accurately depict the events

that occurred on April 22nd, 2021 in the early morning of April 23rd, 2021? -15-

[McDuffie]: Yes.

(Emphasis added.) Id. at 232.

{¶ 29} Sergeant Chad Brown similarly testified about his body camera footage,

which was admitted as State’s Exhibit 11. Portions of the video were played for the jury.

Thereafter, the following exchange occurred:

[Prosecutor]: Now, there’s been some parts that I fast forwarded through some

stuff but is that a fair and accurate representation of what occurred on April 22nd

and into the early morning of April 23rd, 2021?

[Brown]: Yes.

(Emphasis added.) Trial Tr. 281.

{¶ 30} No objections were made to the admission or presentation of the videos or

portions of the videos played at trial. Following the completion of the State’s witnesses,

a discussion was held regarding the admission of the State’s exhibits. Notably, defense

counsel stated, “I have no objection to any of the exhibits as long as the videos are

redacted ones.” (Emphasis added.) Id. at 391.

{¶ 31} During Wood’s allocution at sentencing, he claimed that the videos were

edited during trial. The State responded that “there were some parts edited out for

evidentiary purposes.” Disposition Tr. 34. The State explained that “Sergeant Brown

and Deputy McDuffie were talking about the Defendant’s prior OVI convictions which

wouldn’t have been admissible at court.” Id. at 35.

{¶ 32} Wood has presented no evidence outside the record to support an

argument that any video in this case was improperly tampered with or edited. Rather, -16-

the record demonstrates that the parties agreed at the time of trial to redact certain

portions of the videos for evidentiary reasons. Because Wood did not meet his initial

burden to produce evidence demonstrating a cognizable constitutional error, the trial court

did not abuse its discretion in denying his petition without conducting an evidentiary

hearing on this claim. Moreover, because the record identified both the videos and

redacted portions, Wood could have argued on direct appeal that the videos should not

have been redacted. Accordingly, the trial court did not abuse its discretion in denying

this claim because it was belied by the record and precluded by res judicata.

ii. Second Claim: Ineffective Assistance of Counsel

{¶ 33} “In order to prevail on an ineffective-assistance-of-counsel claim, a

defendant must prove that counsel's performance was deficient and that the defendant

was prejudiced by counsel's deficient performance.” State v. Davis, 2020-Ohio-309,

¶ 10, citing State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989); Strickland v.

Washington, 466 U.S. 668, 687 (1984). “Thus, the defendant must demonstrate that

counsel's performance fell below an objective standard of reasonableness and that there

exists a reasonable probability that, but for counsel's error, the result of the proceeding

would have been different.” Id. Failure to satisfy either part of the ineffective-

assistance-of-counsel test is fatal to the claim. Strickland at 697; State v. Madrigal, 87

Ohio St.3d 378, 389 (2000). In the postconviction context, Wood was required to raise

in his petition “a triable issue of fact, supported by evidence outside the record, whether

his trial counsel was deficient and whether that deficiency prejudiced him.” State v.

Bunch, 2022-Ohio-4723, ¶ 37. -17-

{¶ 34} When a defendant files a petition for postconviction relief and alleges

ineffective assistance of counsel, “the petitioner typically bears the burden to submit

documentary evidence containing sufficient operative facts to show deficient performance

and prejudice.” State v. Henry, 2019-Ohio-1256, ¶ 45 (2d Dist.), citing State v. Cox,

2015-Ohio-894, ¶ 8 (2d Dist.). “Where a defendant does not demonstrate how he was

prejudiced by counsel's performance, he fails to establish substantive grounds for relief

and his petition for postconviction relief may be denied without a hearing.” Id., citing

State v. Pianowski, 2013-Ohio-2764, ¶ 31 (2d Dist.).

{¶ 35} In his petition, Wood raised five separate allegations of ineffective

assistance of counsel, which can be categorized as follows: 1) failing to conduct pretrial

investigation; 2) erroneously promising the jury that Wood would testify; 3) failing to object

to statements of the prosecutor during trial; 4) failing to object to prejudicial jury

instructions; and 5) requesting a jury trial rather than a bench trial. We will address each

of Wood’s claims.

1. Failure to conduct pretrial investigation

{¶ 36} In Wood’s petition, he listed seven items that his trial counsel allegedly

failed to investigate prior to trial. Besides listing the items, Wood did not submit

documentary evidence to support a finding that counsel failed to conduct sufficient

investigation into them that rose to the level of a constitutional violation resulting in

prejudice. Nor did Wood submit any affidavits from his trial counsel explaining the steps

he took or did not take to investigate Wood’s case. Wood merely speculates as to what -18-

such evidence would or could have been or what counsel allegedly failed to do. Wood

is correct that res judicata does not necessarily operate to bar relief based on ineffective

assistance of counsel even if similar claims were addressed on direct appeal. However,

in those circumstances, the petitioner must submit competent evidence from outside the

trial record, and that evidence must present substantive grounds for relief, that is, if

believed, the newly-presented evidence, together with any evidence in the trial record,

would establish that counsel was ineffective. Blanton, 2022-Ohio-3985, at ¶ 33.

{¶ 37} Contrary to Wood’s contentions, he did not submit competent evidence from

outside the record that “[c]ounsel ignored [him], failed to develop and present evidence

material to [his] claims of innocence and misconduct and did so over [his] clearly

expressed wishes.” Appellant’s Brief p. 11. Notably, Wood did not include the specifics

of any conversation he had with his counsel about these pretrial issues or any other issues

in his affidavit. “A petitioner is not entitled to a hearing if his claim for relief is belied by

the record and is unsupported by any operative facts other than Defendant's own self-

serving affidavit or statements in his petition, which are legally insufficient to rebut the

record on review.” Gapen, 2005-Ohio-441, at ¶ 21 (2d Dist.), citing Kapper, 5 Ohio St.3d

at 38, and Vanderpool, 1999 WL 64238 (2d Dist. Feb. 2, 1999). In sum, the trial court

did not err in concluding that Wood’s claim lacked merit. The evidence submitted by

Wood did not provide sufficient operative facts to demonstrate the lack of competent

counsel or that Wood was prejudiced as a result.

2. Promising the jury Wood would testify

{¶ 38} Wood claimed that his attorney was deficient for promising the jury during -19-

opening statements that Wood would testify at trial. According to Wood’s petition, his

attorney failed to investigate his criminal record prior to trial, and when the prosecutor

threatened to use Wood’s criminal history against him if he were to testify, Wood’s

attorney instructed Wood not to testify.

{¶ 39} To the extent Wood alleges that counsel’s unfulfilled promise to the jury that

Wood would testify was itself constitutionally ineffective assistance of counsel, this claim

could have been raised on direct appeal and was therefore barred by res judicata. See

State v. West, 2009-Ohio-6270 (2d Dist.) (considering on direct appeal whether counsel’s

promise to the jury that defendant would testify was ineffective assistance of counsel).

The promise to the jury upon which Wood relied and his decision to decline to testify at

trial were both in the trial transcript on direct appeal. Thus, the trial court did not abuse

its discretion in denying this portion of Wood’s petition based on res judicata.

{¶ 40} On the other hand, with respect to Wood’s claim that counsel was ineffective

for unreasonably instructing him not to testify after promising the jury that Wood would

testify during opening statements, Wood failed to meet his burden of providing evidence

outside the record to demonstrate a cognizable claim of constitutional error. According

to Wood’s petition, “the prosecutor said he would use my prior record to impeach and

counsel instructed me not to testify, despite my willingness.” (Emphasis in original.) Oct.

23, 2023 Petition, p. 9. Although argued generically in his petition, Wood’s affidavit does

not identify the purported conversation between him and his counsel. Instead, Wood

alleges that he mailed a letter to his attorney “requesting a letter” to support Wood’s

allegations. However, Wood’s affidavit further stated that he had not yet received a -20-

response.

{¶ 41} Besides Wood’s driving record, which included prior felony OVIs, no

evidence of Wood’s other criminal history, if any, is part of the record before us. The

record reflects that defense counsel was aware of Wood’s driving record and prior felony

OVIs prior to the alleged off-the-record discussion that resulted in counsel’s advising

Wood not to testify at trial. Wood does not explain what, if anything, in his criminal record

should have alerted his attorney prior to opening statements to recommend that he not

testify. There is also no evidence to indicate that Wood’s criminal record was the basis

of counsel’s recommendation for Wood not to testify. Without knowing what other

criminal record Wood may have had that would have altered defense counsel’s

recommendation, i.e., a criminal history that his attorney failed to investigate, we cannot

conclude that counsel’s advice was not reasonable trial strategy. “The decision as to

whether a defendant should testify is a matter of trial strategy. Defense tactics, even

ineffective ones, are usually not considered grounds for reversal.” State v. Faulkner,

1993 WL 125452, *3 (2d Dist. Apr. 22, 1993). Importantly, the ultimate decision of

whether a defendant will testify on his own behalf is the defendant’s, not counsel’s, and

only the defendant can waive that right. State v. Bey, 85 Ohio St.3d 487, 499 (1999).

The trial transcript reflects that Wood knowingly, intelligently, and voluntarily waived his

right to testify. Trial Tr. 465-466.

{¶ 42} Wood failed to demonstrate sufficient operative facts to establish

substantive grounds for relief. Therefore, the trial court did not abuse its discretion in

denying this claim without a hearing. -21-

3. Failing to object to prosecutor’s statements at trial

{¶ 43} Wood’s petition does not specifically identify what statements his attorney

should have objected to during trial or how they prejudiced him, though it appears Wood

was concerned with the prosecutor’s statements during closing argument. We

considered this issue in Wood’s application for reopening; we concluded that there was

nothing inappropriate or prejudicial about the State’s statements and determined that

Wood’s argument lacked merit. Further, this issue could have been raised on direct

appeal as it related directly to statements made during trial, which were part of the record

on direct appeal. Blanton, 2022-Ohio-3985, at ¶ 40. Accordingly, this argument was

precluded by res judicata.

4. Jury Instructions

{¶ 44} In his petition, Wood argued that counsel was ineffective for failing to object

to prejudicial jury instructions. Because this issue could have been raised on direct

appeal, as the jury instructions were part of the trial record, this argument was precluded

by res judicata. State v. Jamison, 2009-Ohio-3515, ¶ 13 (2d Dist.).

5. Jury Waiver

{¶ 45} Finally, Wood claimed in his petition that counsel was ineffective because

“[t]rial counsel failed to execute a jury waiver, thereby avoiding the danger of unfair

prejudice by opting for a bench trial.” Oct. 23, 2023 Petition, p. 11. According to Wood,

“[t]here was no conceivable benefit to be derived from allowing this OVI case to be heard

by a jury,” and the case “should have never been tried before a jury.” Id.

{¶ 46} A defendant in a serious criminal case has a constitutional right to be tried -22-

by a jury. State v. Robbins, 176 Ohio St. 362, 363 (1964). Like other constitutional

rights, the right to a jury trial may be waived. State v. Pasqualone, 2009-Ohio-315, ¶ 23.

However, the decision to waive a jury trial belongs to the defendant, not counsel. State

v. Lawson, 2021-Ohio-3566, ¶ 82. Thus, Wood’s counsel could not have waived a jury

for him. Wood did not introduce any evidence outside the record to support this claim,

and therefore he could have raised this issue on direct appeal. This argument was

barred by res judicata.

iii. Third Claim: Witness Perjury

{¶ 47} In his third claim, Wood argued that some of the witnesses at trial perjured

themselves. On appeal, Wood focuses his perjury argument on Deputies McDuffie and

Brown. Wood argues that, based on his version of events, there was insufficient

evidence that the officers had reasonable, articulable suspicion to conduct an OVI

investigation or probable cause to arrest him. Wood also argued in his petition that all

police lie and therefore the police in this case also lied. In support of this argument,

Wood attached documents discussing police misconduct in general. Further, according

to Wood’s affidavit, his eyes were not bloodshot or glassy, there was no strong odor of

alcohol coming from his car, person, or breath, and his speech was not slurred. Wood

contends that his own version of events was correct and therefore the officers who

testified must have lied at trial.

{¶ 48} In a lengthy analysis conducted in Wood’s direct appeal, we concluded that

the officers had reasonable suspicion to prolong the traffic stop to detain Wood to

investigate for OVI and further that they had probable cause to arrest him for OVI. Wood, -23-

2023-Ohio-2788, at ¶ 42, 49 (2d Dist.). Wood relies primarily on his version of events as

set forth in his affidavit to support his claim. Generally, affidavits that are self-serving or

conclusory, without more, submitted by a defendant in support of his or her claim for

postconviction relief are insufficient to trigger the right to a hearing or to justify granting

the petition under R.C. 2953.21. State v. Perkins, 2011-Ohio-5070, ¶ 15 (2d Dist.), citing

State v. Pierce, 127 Ohio App.3d 578, 586 (11th Dist. 1998). See also Kapper, 5 Ohio

St.3d at 38. Additionally, the other documents upon which Wood relied were not cogent

evidence that entitled him to a hearing on his petition. The trial court denied this claim

because it was without merit, belied by the record, and unsupported by any operative

facts other than Wood’s self-serving affidavit. We cannot conclude that the trial court

abused its discretion in denying Wood’s third claim without a hearing.

iv. Fourth Claim: Nolan Case

{¶ 49} Wood argued in his petition that the State committed a Brady violation by

failing to disclose that Deputy McDuffie was the subject of a federal civil lawsuit at the

time of Wood’s trial. On appeal, Wood argues that the trial court erred in finding that

there was no Brady violation and also inappropriately relied on the prosecutor’s statement

in his response that he was not aware of the civil case at the time of Wood’s trial. While

we agree with Wood that the trial court should not have relied on the prosecutor’s

statement, which was not presented in the form of an affidavit, we nevertheless agree

with the trial court that there was no Brady violation.

{¶ 50} In Brady, the Supreme Court of the United States held that a state violates

the Fourteenth Amendment to the United States Constitution when it “withholds evidence -24-

that is favorable to the defense and material to the defendant's guilt or punishment.”

Smith v. Cain, 565 U.S. 73, 75 (2012) (summarizing the Court’s holding in Brady, 373

U.S. 83). “There are three components of a true Brady violation: The evidence at issue

must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-

282 (1999). To prevail on a Brady claim, a defendant must show that “the government's

evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles v.

Whitley, 514 U.S. 419, 434 (1995), quoting United States v. Bagley, 473 U.S. 667, 678

(1985).

{¶ 51} The materiality of “suppressed evidence [is] considered collectively, not

item by item.” Kyles at 436. “The mere possibility that an item of undisclosed

information might have helped the defense, or might have affected the outcome of the

trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs,

427 U.S. 97 109-110 (1976). “[E]vidence is ‘material’ within the meaning of Brady when

there is a reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70 (2009), citing

Bagley at 682.

{¶ 52} The duty of the State to disclose evidence encompasses both impeachment

evidence and exculpatory evidence. Strickler at 280-281, citing Bagley at 676. To

comply with Brady, the prosecution has a duty to learn of favorable evidence known to

others acting on the State’s behalf in the case, including the police. Kyles at 437. As a -25-

result, Brady encompasses both willful and inadvertent suppressions of evidence by the

State. McNeal, 2022-Ohio-2703, at ¶ 19, citing Strickler at 282.

{¶ 53} Wood’s criminal case was tried by a jury on August 16, 2022. According

to Wood’s affidavit, he inadvertently discovered the filing of Nolan v. Clark Cty. Bd. of

Commrs., No. 3:21-cv-330, a wrongful death civil lawsuit filed in the United States District

Court for the Southern District of Ohio. Deputy McDuffie, who testified at Wood’s trial,

was a named defendant in the civil lawsuit. Wood contends that, because McDuffie was

a named defendant in a civil lawsuit, that information by itself was favorable to the

defense, and he could have used it to impeach McDuffie at trial. Although unclear, it

appears Wood discovered the Nolan case sometime in March 2023.

{¶ 54} There is no evidence in the record that the State suppressed evidence of

the civil lawsuit. Wood made no effort to attribute knowledge of the federal civil lawsuit

filed in the United States District Court for the Southern District of Ohio to the Clark County

Prosecutor’s Office. There was also no evidence that the prosecutor’s office had

knowledge of the existence of the civil lawsuit, had any involvement in the preparation for

that case, or had any duty to discover the existence of the civil lawsuit. See Clark, 2009-

Ohio-2101, at ¶ 15. Merely asserting in conclusory fashion that the State suppressed

the evidence does not warrant a hearing on a petition for postconviction relief.

{¶ 55} Moreover, the fact that the lawsuit was a public record necessarily made

the information available to Wood from sources other than the prosecution. Indeed,

Wood claimed he discovered the information during his own internet research. “Brady

does not apply when the information is available from another source, such as by looking -26-

at public records.” State v. Barron, 2023-Ohio-1249, ¶ 45 (12th Dist.), citing Owens v.

Guida, 549 F.3d 399, 418 (6th Cir. 2008). This is because “Brady does not apply to

materials that are not ‘wholly within the control of the prosecution.’ ” United States v.

Delgado, 350 F.3d 520, 527 (6th Cir. 2003), quoting Coe v. Bell, 161 F.3d 320, 344 (6th

Cir. 1998). Accordingly, we cannot conclude that the State suppressed evidence of the

civil lawsuit, either purposefully or inadvertently, or that the lawsuit fell within the

parameters of Brady’s requirements to disclose.

{¶ 56} Furthermore, Wood has not demonstrated that the evidence in question was

Brady material. The existence of the civil lawsuit was not material to Wood’s guilt or

punishment and was not relevant impeachment material. In Nolan, Kenneth Nolan was

arrested on November 20, 2019, following a traffic stop, and was booked into the Clark

County Jail. Deputy McDuffie, who was Nolan’s booking officer, performed a pre-

booking medical screen of Nolan. Nolan self-reported that he had arthritis, a heart

murmur, and was on gout medication. Deputy McDuffie concluded, based on his

observations, that Nolan did not appear to be under the influence of drugs or alcohol or

to be experiencing symptoms of withdrawal. Nor did Nolan appear to be suffering from

a fever or infection or present any other medical problem. Deputy McDuffie did not recall

whether he had contacted the Medical Department or a shift supervisor for an on-site

evaluation prior to placing Nolan in the general population. After having some medical

issues and being treated by a jail nurse on at least two occasions the following day, Nolan

was taken to the hospital. The doctors at the hospital were unable to determine the exact

cause of Nolan’s condition, and he was transferred on November 27, 2019, to the Ohio -27-

State University Hospital in Columbus. Nolan died on November 29, 2019, from an

infection of the heart and sepsis. The civil complaint alleged that Deputy McDuffie had

acted recklessly during Nolan’s initial medical screening by failing to consult medical staff

prior to placing him in the general population. On May 6, 2024, McDuffie’s motion for

summary judgment was granted, and he was dismissed as a defendant in the lawsuit.

Nolan v. Clark Cty. Bd. of Cty. Comms., 2024 WL 1990799 (S.D. Ohio May 6, 2024).

{¶ 57} Wood contends that the fact that McDuffie was a named defendant in a civil

wrongful death lawsuit would have been a proper basis on which to impeach McDuffie’s

credibility at trial. However, the fact that McDuffie was listed as a named defendant in a

civil lawsuit had no bearing on McDuffie’s character for truthfulness or untruthfulness and

had no bearing on his credibility. The fact that an individual has been sued in an

unrelated case is insufficient, by itself, to constitute Brady material. There is no

reasonable probability that, had the evidence been disclosed, the result of the proceeding

would have been different or that the evidence was sufficient to undermine confidence in

the verdict. Because the evidence did not constitute material evidence so as to be

considered Brady material, the trial court did not abuse its discretion in denying Wood’s

petition without a hearing on this claim.

v. Fifth Claim: Prosecutorial Misconduct

{¶ 58} The prosecutorial misconduct alleged in Wood’s fifth claim based on

statements the prosecutor made during trial was precluded by res judicata, as that

evidence was available in his direct appeal and could have been raised at that time.

Moreover, Wood has not presented competent, relevant, and material evidence that the -28-

prosecutor knowingly used perjured testimony. Wood's contention that he was not

intoxicated on the night of April 22, 2021, which was his defense at trial, did not establish

competent, relevant, and material evidence that the State knowingly used perjured

testimony at trial. Indeed, a defendant cannot establish prosecutorial misconduct simply

by filing a self-serving affidavit stating what he believes the facts were and then claiming

that anyone who testified contrary to his version of the facts “must have” committed

perjury. Such conclusory and speculative evidence did not meet the minimum level of

cogency needed to properly support a petition for postconviction relief. Consequently,

the trial court did not abuse its discretion in denying Wood’s fifth claim without a hearing.

vi. Sixth Claim: Actual Innocence

{¶ 59} Wood argued that he was “actually innocent” of the charges and therefore

his petition should be granted. In support of his claim, Wood alleged that an

“independent forensic expert analysis” would prove that the audio and video evidence

was deliberately altered, and a “behavioral sequence expert” would establish “a

behavioral finger-print to prove that [his] behaviors were impulsive, oppositional defiant

and consistent by comparing other evidence and accounts, all proving that the

presentation by the State was false and misleading.” Oct. 23, 2023 Petition, p. 22. No

expert report was submitted in support of his petition. Wood also stated that he had

“already established, through the credible, uncontradicted expert testimony of Dr. Belloto”

that the blood test results were inaccurate and should have been excluded at trial. Wood

did not rely on any evidence outside the record to support his assertions; rather, he relied

on testimony from his trial transcript and his belief that unidentified experts would support -29-

his contentions. Because this argument, which was essentially a manifest weight of the

evidence challenge, had been raised and rejected on direct appeal, his claim was

precluded by res judicata. Moreover, his speculative claims regarding what an expert

would find were not cogent evidence outside the record sufficient to warrant a hearing on

his petition.

{¶ 60} In conclusion, upon the record before us, including all the supporting

affidavits and other documentary evidence submitted in support of Wood’s petition, the

trial court reasonably concluded that Wood had not met his initial burden of demonstrating

that there were substantive grounds for relief and, thus, an evidentiary hearing was not

required. Wood’s second assignment of error is overruled.

III. Third Assignment of Error: Motion for Leave to File a Motion for New

Trial

{¶ 61} Wood’s third assignment of error states as follows:

The trial court abused its discretion, applied incorrect legal standards

and erroneously denied Wood’s pro se Motion for Leave to File a Delayed

Motion for a New Trial in violation of Crim.R. 33 (A)(6), (B) and Due process

of law guaranteed by the Fifth, Sixth and Fourteenth Amendment to the

United States Constitution as well as comparable provisions of the Ohio

{¶ 62} On October 19, 2023, Wood filed a motion for leave to file a motion for new

trial. Wood acknowledged that his motion for a new trial was untimely and explained that

his untimeliness was due to newly discovered impeachment evidence. According to -30-

Wood, the new evidence that formed the basis of his motion for leave to file a motion for

a new trial had been discovered in March 2023. The “new evidence” was that Deputy

McDuffie, who testified at Wood’s trial, was listed as a defendant in a civil wrongful death

lawsuit, which had been filed in federal district court on November 29, 2021. Along with

a memorandum of law, Wood attached the case information sheet of the Nolan case and

his own affidavit.

{¶ 63} The trial court found that Wood’s motion for a new trial was untimely and

failed to show that he had been unavoidably prevented from discovering the alleged new

evidence. The trial court further noted that the civil case was a matter of public record.

It denied Wood’s motion for a new trial without a hearing.

{¶ 64} “A trial court's ruling on a motion for leave to move for a new trial is reviewed

for an abuse of discretion.” McNeal, 2022-Ohio-2703, at ¶ 13. An “abuse of discretion”

implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Adams, 62 Ohio St.2d at 157.

{¶ 65} Crim.R. 33(A)(6) provides that a defendant may file a motion for a new trial

“[w]hen new evidence material to the defense is discovered which the defendant could

not with reasonable diligence have discovered and produced at the trial.” If the motion

for new trial is made on account of newly discovered evidence, the motion “shall be filed

within one hundred twenty days after the day upon which the verdict was rendered, or the

decision of the court where trial by jury has been waived.” Crim.R. 33(B). Failure to file

the motion within 120 days after the verdict was rendered requires the defendant to first

seek leave of court to file a delayed motion for a new trial. State v. Harwell, 2019-Ohio- -31-

643, ¶ 16 (2d Dist.). To obtain leave, the defendant must demonstrate by clear and

convincing proof that he or she was unavoidably prevented from the discovery of the

evidence upon which he or she must rely. Crim.R. 33(B). “ ‘[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.’ ” State v. Thompson, 2012-Ohio-4862, ¶ 7 (2d Dist.),

quoting State v. Walden, 19 Ohio App.3d 141, 145-146 (10th Dist. 1984). Clear and

convincing evidence has been defined as “that measure or degree of proof which is more

than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is

required ‘beyond a reasonable doubt’ in criminal cases, and 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, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶ 66} “[U]ntil a trial court grants leave to file a motion for a new trial, the motion

for a new trial is not properly before the court.” State v. Bethel, 2022-Ohio-783, ¶ 41,

citing State v. Brown, 2011-Ohio-1080, ¶ 14 (8th Dist.). “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.” Hatton,

2022-Ohio-3991, at ¶ 30.

{¶ 67} Wood was found guilty by a jury on August 18, 2022. Wood maintains that

he was unavoidably prevented from discovering the federal civil lawsuit before the time -32-

limitation prescribed in Crim.R. 33(B) had expired, because the State suppressed the

evidence until after the 120-day time limitation had expired. Wood claims that because

he established a prima facie showing that he was unavoidably prevented from timely

moving for a new trial due to the State’s suppression of the evidence, the trial court

abused its discretion in denying him leave to file his motion for a new trial. We do not

agree.

{¶ 68} There is no question here that Wood failed to file his motion within 120 days

of the jury verdict. Consequently, he was required to show by clear and convincing

evidence that he had been unavoidably prevented from timely discovering the evidence

on which his motion relied. However, the evidence in question was not “new evidence,”

as the civil lawsuit was a matter of public record and evidence of its existence could have

been discovered by exercising due diligence before trial or within the 120 days following

the jury’s verdict. See State v. Clark, 2009-Ohio-2101, ¶ 25 (12th Dist.). The civil

lawsuit was filed on November 29, 2021. Wood’s jury trial began on August 16, 2022,

nine months after the civil lawsuit was filed. Not only has Wood failed to establish that

his trial counsel did not have such information at the trial, but he has failed to give any

reason why such information was unobtainable at that time, much less as a result of

prosecutorial misconduct. The only evidentiary support for Wood’s motion was his

affidavit and a copy of a case information sheet of the Nolan case. In his affidavit, Wood

stated in conclusory fashion that he had been unavoidably prevented from discovering

the evidence until March 2023. Wood explained that he came across the case while

researching his own federal civil lawsuit. No other facts were provided by Wood that -33-

were based on personal knowledge and that did not constitute conclusory or legal

arguments. See State v. Pelfrey, 2022-Ohio-721, ¶ 65-66 (2d Dist.) (an affiant is

incompetent to testify in the form of an affidavit to any fact absent firsthand knowledge of

that fact). Accordingly, Wood did not carry his burden to establish by clear and

convincing evidence that he had been unavoidably prevented from timely filing the motion

for a new trial or discovering the “new evidence” within the time provided under Crim.R.

33(B).

{¶ 69} Nevertheless, Wood relies heavily on the Supreme Court of Ohio’s holding

in State v. McNeal, 2022-Ohio-2703, to support his position. Wood’s reliance on McNeal

is misplaced. Under McNeal, “a defendant may satisfy the ‘unavoidably prevented’

requirement contained in Crim.R. 33(B) by establishing that the prosecution suppressed

the evidence on which the defendant would rely in seeking a new trial.” Id. at ¶ 17, citing

Bethel, 2022-Ohio-783, at ¶ 25, 59. However, as explained above in our resolution of

Wood’s fourth assignment of error, the record does not reflect that Wood’s purported new

evidence was either suppressed by the State or constituted Brady material.

{¶ 70} Based on this record, we conclude that the trial court did not abuse its

discretion in finding that Wood had failed to demonstrate, by clear and convincing

evidence, that he was unavoidably prevented from discovering the alleged newly

discovered evidence. Wood’s third assignment of error is overruled.

IV. First Assignment of Error: Consideration of State’s Responses

{¶ 71} Wood’s first assignment of error states as follows:

The trial court abused its discretion, refused to acknowledge Wood’s -34-

pro se Motions to Strike invalid state responses to pro se Post-conviction

motions and gave undue consideration to the invalid responses from the

State, which should have been disregarded as void and stricken from the

record, in violation of Due process of law guaranteed by the Fifth, Sixth and

Fourteenth Amendment to the United States Constitution as well as

comparable provisions of the Ohio Constitution.

{¶ 72} Wood contends that the trial court abused its discretion in considering the

State’s untimely responses to Wood’s motion for leave to file a motion for a new trial and

his petition for postconviction relief, and then gave those responses undue consideration,

which violated his right to due process. We do not agree.

{¶ 73} Regarding his motion for leave to file a motion for a new trial, the burden

was on Wood to establish by clear and convincing proof that he had been unavoidably

prevented from discovering the evidence upon which he relied. Although Wood made

an allegation that he had been unavoidably prevented from discovering the Nolan case

until March 2023, as we explained above, the Nolan case was not Brady material, and

Wood did not establish by clear and convincing proof that he was unavoidably prevented

from discovering it. Notably, the State submitted no evidence in response to Wood’s

motion and merely argued the applicable law. Because Wood did not satisfy his burden,

even if the court had not considered the State’s response, the outcome would not have

changed. With respect to harmless error, Crim.R. 52(A) states that “[a]ny error, defect,

irregularity, or variance which does not affect substantial rights shall be disregarded.”

Because any error in considering the State’s response was harmless, Wood’s assignment -35-

of error fails in this respect.

{¶ 74} We also conclude that the trial court did not abuse its discretion in

considering the State’s untimely response to Wood’s petition for postconviction relief. As

explained in detail in our resolution of the second and fourth assignments of error above,

Wood’s claims for relief were without merit. Nothing in the record suggests that the trial

court would not have reached the same decision in the absence of the State’s untimely

response to Wood’s petitions. “Because the trial court has an independent obligation to

analyze the petition under R.C. 2953.21(D), any error in allowing the State's response

would be harmless.” Marcum, 2023-Ohio-4058, at ¶ 22 (2d Dist.). Wood has failed to

demonstrate that his substantial rights were affected by the trial court's consideration of

the State's response. Therefore, his first assignment of error is overruled.

V. Fifth Assignment of Error: Motion for Appointed Counsel

{¶ 75} Wood’s fifth assignment of error states as follows:

The trial court abused its discretion by denying Wood’s pro se Motion

For Appointment of Counsel in violation of R.C. 120.16(A)(1), (D) and Due

process of law guaranteed by the Fifth, Sixth and Fourteenth Amendment

to the United States Constitution as well as comparable provisions of the

Ohio Constitution

{¶ 76} On October 23, 2023, Wood filed a motion to appoint counsel from the State

Public Defender’s Office to represent him on his petition for postconviction relief. The

trial court overruled Wood’s motion.

{¶ 77} “[A]n indigent petitioner has neither a state nor a federal constitutional right -36-

to be represented by an attorney in a postconviction proceeding.” State v. Crowder, 60

Ohio St.3d 151, 152 (1991). Where, however, a trial court finds that a petitioner is

entitled to a hearing on a petition for postconviction relief, R.C. 120.16(A)(1) and (D)

implicitly require the trial court to promptly notify the public defender of the pending

hearing. Id. at paragraph two of the syllabus. “Pursuant to R.C. 120.16(D), the public

defender may, within his discretion, represent or refuse to represent an indigent petitioner

seeking post-conviction relief.” State v. Simons, 2013-Ohio-3654, ¶ 35 (2d Dist.), citing

State v. Beane, 1995 WL 472153 (2d Dist. Aug. 9, 1995).

{¶ 78} “[A] trial court's duty to notify the public defender's office of the pendency of

a petition for post-conviction relief only arises when, and if, the petition is scheduled for

an evidentiary hearing.” State v. Singleton, 2006-Ohio-4522, ¶ 30 (2d Dist.), citing

Crowder at 153. Because the trial court reasonably found that Wood was not entitled to

an evidentiary hearing on his petition for postconviction relief, the court had no duty to

notify the public defender's office or to appoint counsel. State v. Beechler, 2017-Ohio-

1385, ¶ 43 (2d Dist.). Wood’s fifth assignment of error is overruled.

VI. Conclusion

{¶ 79} Having overruled all of Wood’s assignments of error, we will affirm the

judgment of the trial court.

TUCKER, J. and HANSEMAN, J., concur.